Harris.Tort

Question 1

would Canadian tort reform be provincial or federal?

Answer 1

provincial, need to be coordinated with the various attorneys general

Question 2

position of insurance industry and why

Answer 2

insurance industry wants reform to
- lower costs
- increase stability and predictability of awards

Question 3

position of supreme court

Answer 3

Supreme Court will continue to be plantiff friendly unless insurance industry gets reform enacted颁布

Question 4

position of trial lawyers and why

Answer 4

don’t want reform because compensation for both plantiffs and lawyers could be lower

Question 5

identify 4 potential reforms to Canada’s plaintiff friendly tort system

Answer 5

JCCV
1) Joint and several liab: plantiff may recover damages from any or all defendants regardless of share of liab
- eliminate
- replace with proportionate liability
- create a fund to be used for guilty parties who can’t pay
2) collateral source rule: evidence of plantiff’s collateral source of compensation not entered at trial so could be compensated twice
- eliminate
3) compensatory basis
- change from gross to net basis (net of expenses)
4) vicarious liability: where one person is held responsible for the actions of another
- eliminate

Question 6

define joint and several liability

Answer 6

plantiff 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

FREe
- create a Fund to be used for guilty parties who can’t pay
- Replace with a system of proportionate liabilities
- Eliminate J&S liab for non pecuniary damages

Question 8

describe proportionate liability

Answer 8

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

Question 9

define “collateral source rule” and provide an example

Answer 9

• evidence of plantiff’s collateral source need not be entered at trial
• ex: sick pay and disability
• there is potential for over compensation

Question 10

define “compensatory basis” in the context of income replacement

Answer 10

• refers to basis for compensating loss of income
• the basis can be either prior gross or net income
• income replacement is a % of this basis
• currently uses gross, ignores taxes and work related expenses that aren’t incurred when not working so there is potential for over compensation

Question 11

define vicarious liability and give an example

Answer 11

• where one party is held responsible for actions of another
• ex: work place harassments, employer has control over
• ex: car rental, company has no control over

Question 12

identify an advantage and disadvantage of ‘J&S reform’

Answer 12

• adv: discourages search for deep pockets and decreases costs
• disadv: there is a cost to determining proportionate liability

Question 13

identify an advantage and disadvantage of ‘collateral source rule’ reform

Answer 13

• adv: reduces likelihood of overcompensation
• disadv: guilty party may not provide full compensation but they should

Question 14

identify an advantage and disadvantage of ‘compensation basis’ reform

Answer 14

• adv: reduces likelihood of overcompensation
• disadv: interferes with intentional government tax break for injured pRTY

Question 15

identify an advantage and disadvantage of ‘vicarious liability’ reform

Answer 15

-adv: discourages search for deep pockets
-disadv: all involved parties should be held responsible regardless of level of liability

Question 16

how does J&S increase efficiency?

Answer 16

reduces time and costs, promotes pre trail settlement since damages don’t have to be apportioned 分摊的

Question 17

describe an advantage and disadvantage with respect to defendant in Joint & several liability

Answer 17

• adv: can share burden
• disadv: may have to pay a greater proportion than the degree of liability

Question 18

describe an advantage and disadvantage with respect to plaintiff in Joint & several liability

Answer 18

• adv: increases probability of full compensation with access to assets of all defendants
• disadv: none

Question 19

describe an advantage and disadvantage with respect to insurers in Joint & several liability

Answer 19

• adv: can share burden
• disadv: may have to pay a greater proportion than the degree of liability

Question 20

describe an advantage and disadvantage with respect to lawyers in Joint & several liability

Answer 20

• adv: increases efficiency in legal system since it promotes settlement without trial
• disadv: fewer cases go to court and lawyers will get less compensation

Question 21

identify and describe 3 reasons why Canadian tort laws can be considered too plaintiff friendly

Answer 21

JCCV
- compensation basis: gross income wage replacement (doesn’t consider expenses)
- vicarious liability: some party may be held responsible for actions of their sublease/employees which make the search for deep pockets possible
- collateral source: there is no need to disclose other source of compensation which may result in double recovery and overcompensation for plaintiff

Question 22

assess the potential size of damages received by the plaintiff and briefly describe whether any tort reforms may impact the potential compensation.
Plaintiff has retained legal counsel on a contingent fee basis and is suing a large tobacco company for 100M in damages

Answer 22

If the plaintiff win 100M, they will provide a large percentage of the settlement to the lawyer. This could lead to public corruption. Tort reforms to eliminate or limit contingent fees could have a large impact on the potential compensation for the plaintiff.

Question 23

assess the potential size of damages received by the plaintiff and briefly describe whether any tort reforms may impact the potential compensation.
In an asbestos class actin lawsuit, the plaintiffs have been awarded 50M in damages. The plaintiffs have not filed any trust claims prior to trial.

Answer 23

Plaintiffs may receive double compensation by filing trust claims after receiving the 50M, since trust claims do not verify if plaintiffs have already been compensated but trials do verify. A reform limiting recovery from multiple sources would limit the compensation to the 50M they have been awarded.

Question 24

assess the potential size of damages received by the plaintiff and briefly describe whether any tort reforms may impact the potential compensation.
the plaintiff is suing 2 defendants for a total of 10M in non economic damages in a joint and several liability jurisdiction. One defendant has been assessed to be 5% at fault and the other defendant has declared bankruptcy.

Answer 24

J&S allows the plaintiff to recover the full 10M claim from the co defendant that is only 5% at fault since the other is bankrupt.
reform1) replace J&S liability with proportional liability, so the co defendant will only be responsible for their part
2) bar application of J&S liability on non economic damages to prevent deep pocketing

Question 25

disadvantage of simple elimination J&S liability

Answer 25

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

Question 26

remedy to disadvantage of simple elimination of J&S

Answer 26

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