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

position of insurance industry (& why)

Answer 2

• insurance industry WANTS REFORM:
  
  • lowers COSTS
  • increases STABILITY & PREDICTABILITY of awards

Question 3

position of Supreme Court

Answer 3

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

Question 4

position of trial lawyers (& why)

Answer 4

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

Question 5

goal of tort reform

Answer 5

achieve stability & predictability in the tort system and to balance fairness between plaintiff & defendant

Question 6

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

Answer 6

J&S liability
- eliminate
- replace with proportionate liability
- created fund for guilty parties who can’t pay
Collateral source rule
- eliminate
Compensatory basis
- change from gross to net basis
Vicarious liability
- eliminate

Question 7

define J&S (Joint & Several) liability

Answer 7

plaintiff may recover (ANY or ALL damages) from (ANY or ALL defendants) regardless of share of liability

Question 8

describe the proposed REFORM for J&S liability (3)

Answer 8

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 9

describe proportionate liability

Answer 9

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

Question 10

define the ‘collateral source rule’ & provide an example of a collateral source

Answer 10

• 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 11

describe the proposed REFORM for the ‘collateral source rule’

Answer 11

eliminate (& allow collateral sources to be taken into account when determining award)

Question 12

define ‘compensatory basis’ in the context of income replacement

Answer 12

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 13

describe the proposed REFORM to ‘compensatory basis’ in the context of income replacement

Answer 13

switch from gross to net basis

Question 14

define ‘vicarious liability’ and provide an example

Answer 14

• where one party is held responsible for actions of another
• EXAMPLES: employee, subordinate, sublease, car rental, sexual abuse

Question 15

describe the proposed reform to ‘vicarious liability’

Answer 15

eliminate

Question 16

identify an advantage & disadvantage of ‘joint & several liability’ reform

Answer 16

advantage:
- discourages search for deep pockets & decreases costs
disadvantage:
- there is a cost to determining proportionate liability
- parties would tend to argue for a lower percentage