HARRIS.TORT

Question 1

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

Answer 1

• replace joint & several liability with proportionate liability (and create a fund to be used for guilty parties who can’t pay)
• eliminate collateral source rule
• eliminate vicarious liability
• change compensatory basis from gross to net

Question 2

Define Joint & Several liability

Answer 2

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

Question 3

Define collateral source rule

Answer 3

Evidence of plaintiff’s collateral source need NOT be entered at trial (potential for over-compensation)

Question 4

Define compensatory basis in the context of income replacement

Answer 4

refers to the basis for compensating loss of income, current practice uses a percentage of gross income which ignore taxes & work-related expenses that aren’t incurred when not working (potential for over-compensation)

Question 5

Define vicarious liability

Answer 5

Where one party is held responsible for the actions of another (examples: employer responsible for the actions of an employee)

Question 6

Identify an advantage & a disadvantage of the joint & several liability reform

Answer 6

ADVANTAGE: discourage the search for deep pockets

DISADVANTAGE: there is a cost to determining proportional liability (parties would tend to argue for a lower percentage)

Question 7

Identify an advantage & a disadvantage of collateral source rule reform

Answer 7

ADVANTAGE: reduces possibility of over-compensation

DISADVANTAGE: plaintiff should not have to disclose because should be fully compensated for harm regardless of other sources of recovery

Question 8

Identify an advantage & a disadvantage of compensatory basis reform

Answer 8

ADVANTAGE: reduces possibility of over-compensation

DISADVANTAGE: interferes with intentional government tax break for injured party

Question 9

Identify an advantage & a disadvantage of vicarious liability reform

Answer 9

ADVANTAGE: discourage search for deep pockets

DISADVANTAGE: all involved parties should be held responsible regardless of level of liability

Question 10

How does joint & several liability increase efficiency vs proportional liability

Answer 10

reduces time & costs: promotes pre-trial settlement since damages do not have to be apportioned