Harris.Tort Flashcards

1
Q

Would Canadian tort reform be provincial OR federal?

A

Provincial: (needs to be coordinated with the various Attorneys General)

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2
Q

Briefly explain the position of insurance industry on tort reforms.

A

Insurance industry WANTS REFORM:

  • lowers COSTS
  • increases STABILITY & PREDICTABILITY of awards
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3
Q

Briefly explain the position of the Supreme Court on tort reforms.

A

Supreme Court will continue to be plaintiff-friendly UNLESS insurance industry gets reform enacted

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4
Q

Briefly explain the position of trial lawyers on tort reforms.

A

Don’t want reform (compensation for both plaintiffs and lawyers could be lower)

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5
Q

Identify 4 potential reforms to Canada’s plaintiff-friendly tort system.

A
Joint & several liability (eliminate & replace with proportional liability)
Collateral source rule (eliminate)
Compensation basis (change from gross to net)
Vicarious liability (eliminate)
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6
Q

Define J&S (Joint & Several) liability.

A

Plaintiff may recover ANY or ALL damages from ANY or ALL defendants regardless of share of liability.

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7
Q

Describe the proposed reform for J&S liability.

A

ELIMINATE J&S: for non-pecuniary damages
REPLACE J&S: with rule of proportional liability
FUND creation: for guilty parties that can’t pay

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8
Q

Describe proportionate liability

A

Each defendant bears a cost proportionate to their degree of fault or liability.

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9
Q

Define the ‘collateral source rule’.

A
  • evidence of plaintiff’s collateral source need not be entered AT TRIAL
    (examples include sick pay & disability)
  • so there is potential for over-compensation
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10
Q

Describe the proposed reform for the ‘collateral source rule’.

A

Eliminate & allow collateral sources to be taken into account when determining award.

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11
Q

Define ‘compensatory basis’ in the context of income replacement.

A

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

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12
Q

Describe the proposed reform to ‘compensatory basis’ in the context of income replacement.

A

Switch from gross to net basis.

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13
Q

Define ‘vicarious liability’.

A
  • where one party is held responsible for actions of another

- EXAMPLES: employee, subordinate, sublease, car rental, sexual abuse

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14
Q

Describe the proposed reform to ‘vicarious liability’

A

Eliminate

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15
Q

Identify an advantage & disadvantage of ‘joint & several liability’ reform.

A

advantage: discourages search for deep pockets
disadvantage: increased cost of determining proportionate liability

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16
Q

Identify an advantage & disadvantage of ‘collateral source rule’ reform.

A

advantage: reduces likelihood of over-compensation
disadvantage: the guilty party shouldn’t be relieved (by any collateral sources) of providing full compensation

17
Q

Identify an advantage & disadvantage of ‘compensation basis’ reform.

A

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)

18
Q

Identify an advantage & disadvantage of ‘vicarious liability’ reform.

A

advantage: discourages search for deep pockets
disadvantage: all involved parties should be held responsible regardless of level of liability

19
Q

Briefly explain the deep pocket syndrome.

A

A situation where the plaintiff always looks for the defendant with the greatest ability to pay.

20
Q

Briefly explain how ‘joint & several liability’ increase efficiency.

A

Reduces time & costs: promotes pre-trial settlement since damages don’t have to be apportioned

21
Q

Briefly describe and advantage or disadvantage of J&S liability reform for the defendant.

A

advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability

22
Q

Briefly describe and advantage or disadvantage of J&S liability reform for the plaintiff.

A

advantage: increases probability of full compensation WITH access to assets of all defendants
disadvantage: none

23
Q

Briefly describe and advantage or disadvantage of J&S liability reform for the insurers.

A

advantage: can share burden
disadvantage: may have to pay a greater proportion THAN the degree of liability –> (cost,unpredictability) UP

24
Q

Briefly describe and advantage or disadvantage of J&S liability reform for the lawyers.

A

advantage: increases efficiency in legal system since it promotes settlement without trial
disadvantage: fewer cases go to court (lawyers get less $$$s)

25
Q

Briefly explain how Canadian tort laws are too plaintiff-friendly (3 reasons).

A

• 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

26
Q

Give an example of a defendant group negatively impacted by J&S liability & state the impact

A

GROUP: defendants in asbestos injury suits
IMPACT: many defendants are bankrupt, others may pay more than their fair share under J&S

27
Q

Disadvantage of simple elimination J&S liability

A
  • if a defendant goes bankrupt then there is no recourse to assets of other defendants
  • plaintiff may not be fully compensated
28
Q

Identify a remedy to disadvantage of simple elimination of J&S.

A

Creation of a fund for guilty parties that can’t pay their share