Harris.Tort

Question 1

Would Canadian tort reform be provincial OR federal?

Answer 1

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

Question 2

Briefly explain the position of insurance industry on tort reforms.

Answer 2

Insurance industry WANTS REFORM:

• lowers COSTS
• increases STABILITY & PREDICTABILITY of awards

Question 3

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

Answer 3

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

Question 4

Briefly explain the position of trial lawyers on tort reforms.

Answer 4

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

Question 5

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

Hint: JCCV

Answer 5

1. Joint & several liability (eliminate & replace with proportional liability)
2. Collateral source rule (eliminate)
3. Compensation basis (change from gross to net)
4. Vicarious liability (eliminate)

Question 6

Define J&S (Joint & Several) liability.

Answer 6

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

Question 7

Describe the proposed reform for J&S liability.

Answer 7

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

Question 8

Describe proportionate liability

Answer 8

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

Question 9

Define the collateral source rule.

Answer 9

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

Question 10

Describe the proposed reform for the collateral source rule.

Answer 10

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

Question 11

Define compensatory basis in the context of income replacement.

Answer 11

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

Question 12

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

Answer 12

Switch from gross to net basis.

Question 13

Define vicarious liability.

Answer 13

• where one party is held responsible for actions of another

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

Question 14

Describe the proposed reform to vicarious liability

Answer 14

Eliminate

Question 15

Identify an advantage & disadvantage of Joint & several liability reform.

Answer 15

advantage: discourages search for deep pockets

disadvantage: increased cost of determining proportionate liability

Question 16

Identify an advantage & disadvantage of collateral source rule reform.

Answer 16

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

Question 17

Identify an advantage & disadvantage of compensation basis reform.

Answer 17

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)

Question 18

Identify an advantage & disadvantage of vicarious liability reform.

Answer 18

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

Question 19

Briefly explain the deep pocket syndrome.

Answer 19

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

Question 20

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

Answer 20

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

Question 21

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

Answer 21

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

Question 22

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

Answer 22

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

Question 23

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

Answer 23

• 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

Question 24

Disadvantage of simple elimination J&S liability

Answer 24

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

Question 25

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

Answer 25

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