Harris.Tort Flashcards
Would Canadian tort reform be provincial OR federal?
Provincial: (needs to be coordinated with the various Attorneys General)
Briefly explain the position of insurance industry on tort reforms.
Insurance industry WANTS REFORM:
- lowers COSTS
- increases STABILITY & PREDICTABILITY of awards
Briefly explain the position of the Supreme Court on tort reforms.
Supreme Court will continue to be plaintiff-friendly UNLESS insurance industry gets reform enacted
Briefly explain the position of trial lawyers on tort reforms.
Don’t want reform (compensation for both plaintiffs and lawyers could be lower)
Identify 4 potential reforms to Canada’s plaintiff-friendly tort system.
Joint & several liability (eliminate & replace with proportional liability) Collateral source rule (eliminate) Compensation basis (change from gross to net) Vicarious liability (eliminate)
Define J&S (Joint & Several) liability.
Plaintiff may recover ANY or ALL damages from ANY or ALL defendants regardless of share of liability.
Describe the proposed reform for J&S liability.
ELIMINATE J&S: for non-pecuniary damages
REPLACE J&S: with rule of proportional liability
FUND creation: for guilty parties that can’t pay
Describe proportionate liability
Each defendant bears a cost proportionate to their degree of fault or liability.
Define the ‘collateral source rule’.
- evidence of plaintiff’s collateral source need not be entered AT TRIAL
(examples include sick pay & disability) - so there is potential for over-compensation
Describe the proposed reform for the ‘collateral source rule’.
Eliminate & allow collateral sources to be taken into account when determining award.
Define ‘compensatory basis’ in the context of income replacement.
Compensatory basis:
- refers to basis for compensating loss of income
- the basis can be either prior net income OR prior gross income
- income replacement is a percentage of this basis
- current practice uses a percentage of gross income
comment:
- gross basis ignores taxes & work-related expenses that aren’t incurred when not working
- so there is potential for over-compensation
Describe the proposed reform to ‘compensatory basis’ in the context of income replacement.
Switch from gross to net basis.
Define ‘vicarious liability’.
- where one party is held responsible for actions of another
- EXAMPLES: employee, subordinate, sublease, car rental, sexual abuse
Describe the proposed reform to ‘vicarious liability’
Eliminate
Identify an advantage & disadvantage of ‘joint & several liability’ reform.
advantage: discourages search for deep pockets
disadvantage: increased cost of determining proportionate liability
Identify an advantage & disadvantage of ‘collateral source rule’ reform.
advantage: reduces likelihood of over-compensation
disadvantage: the guilty party shouldn’t be relieved (by any collateral sources) of providing full compensation
Identify an advantage & disadvantage of ‘compensation basis’ reform.
advantage: reduces likelihood of over-compensation
disadvantage: interferes with an intentional government tax break for plaintiff (using gross or pre-tax income as the basis for income replacement amounts to a tax break, and this tax break is sometimes intentional)
Identify an advantage & disadvantage of ‘vicarious liability’ reform.
advantage: discourages search for deep pockets
disadvantage: all involved parties should be held responsible regardless of level of liability
Briefly explain the deep pocket syndrome.
A situation where the plaintiff always looks for the defendant with the greatest ability to pay.
Briefly explain how ‘joint & several liability’ increase efficiency.
Reduces time & costs: promotes pre-trial settlement since damages don’t have to be apportioned
Briefly describe and advantage or disadvantage of J&S liability reform for the defendant.
advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability
Briefly describe and advantage or disadvantage of J&S liability reform for the plaintiff.
advantage: increases probability of full compensation WITH access to assets of all defendants
disadvantage: none
Briefly describe and advantage or disadvantage of J&S liability reform for the insurers.
advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability –> (cost,unpredictability) UP
Briefly describe and advantage or disadvantage of J&S liability reform for the lawyers.
advantage: increases efficiency in legal system since it promotes settlement without trial
disadvantage: fewer cases go to court (lawyers get less $$$s)
Briefly explain how Canadian tort laws are too plaintiff-friendly (3 reasons).
• Gross income wage replacement: Income replacement is based on gross income and
doesn’t consider expenses related to holding a job which result in overcompensation
for the plaintiff
• Vicarious liability: Some party may be held responsible for actions of their
subordinate/employees/sublease which make the search for deep pocket possible
• Collateral source: There is no need to disclose other source of compensation which
may result in double recovery and overcompensation for the plaintiff
Give an example of a defendant group negatively impacted by J&S liability & state the impact
GROUP: defendants in asbestos injury suits
IMPACT: many defendants are bankrupt, others may pay more than their fair share under J&S
Disadvantage of simple elimination J&S liability
- if a defendant goes bankrupt then there is no recourse to assets of other defendants
- plaintiff may not be fully compensated
Identify a remedy to disadvantage of simple elimination of J&S.
Creation of a fund for guilty parties that can’t pay their share
