Tort

Question 1

position of insurance industry for Canadian tort reforms & why

Answer 1

insurance industry wants reform:
- lowers costs
- increases stability & predictability of awards

Question 2

position of Supreme Court for Canadian tort reforms & why

Answer 2

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

Question 3

position of trial lawyers for Canadian tort reforms & why

Answer 3

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

Question 4

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

Answer 4

1. J&S liability
   - eliminate
   - replace with proportionate liability
   - created fund for guilty parties who can’t pay
2. collateral source rule
   - eliminate
3. compensatory basis
   - change from gross to net basis
4. vicarious liability
   - eliminate

Question 5

define J&S(joint&several) liability

Answer 5

plaintiff may recover any or all damages from any or all defendants regardless of share of liability

Question 6

describe proposed reform for J&S liability

Answer 6

• 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 7

describe proportionate liability

Answer 7

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

Question 8

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

Answer 8

• evidence for plaintiff’s collateral source need not be entered at trial
• examples include sick pay & disability

there is potential for overcompensation

Question 9

describe the proposed reform for the ‘collateral source rule’

Answer 9

eliminate & allow collateral source to be taken into account when determining award

Question 10

define ‘compensatory basis’ in the context of income replacement

Answer 10

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 11

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

Answer 11

switch from gross to net basis

Question 12

define ‘vicarious liability’ and provide an example

Answer 12

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

Question 13

describe the proposed reform to ‘vicarious liability’

Answer 13

eliminate

Question 14

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

Answer 14

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

Question 15

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

Answer 15

advantage: reduces possibility of over-compensation
disadvantage: guilty party may not provide full compensation but they should

Question 16

identify an advantage & disadvantage of ‘compensation basis’ reform

Answer 16

advantage: reduces possibility of over-compensation
disadvantage: interferes with intentional government tax break for injured party

Question 17

identify an advantage & disadvantage of ‘vicarious liability’ reform

Answer 17

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

Question 18

how does ‘joint&several liability’ increase efficiency

Answer 18

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

Question 19

advantage or disadvantage of J&S liability with respect to defendant

Answer 19

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

Question 20

advantage or disadvantage of J&S liability with respect to plaintiff

Answer 20

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

Question 21

advantage or disadvantage of J&S liability with respect to insurers

Answer 21

advantage: can share burden
disadvantage: may have to pay a greater proportion than the degree of liability -> cost, predictability up

Question 22

advantage or disadvantage of J&S liability with respect to lawyer

Answer 22

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

Question 23

how are Canadian tort laws too plaintiff-friendly

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 over-compensation 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 over-compensation for the plaintiff

Question 24

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

Answer 24

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

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