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