Harris

Question 1

Would canadian tort reform be provincial or federal?

Answer 1

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

Question 2

What is the position of the insurance industry on Canadian tort reform and why?

Answer 2

Insurance industry WANTS REFORM:
- Lowers costs
- Increases stability & predictability of awards

Question 3

What is the position of the Supreme Court on Canadian tort reforms?

Answer 3

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

Question 4

What is the position of trial lawyers on Canadian tort reforms and why?

Answer 4

They don’t want reform
- Compensation for both plaintiffs & lawyers could be lower (victims may not be paid in full)

Question 5

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

Answer 5

1. Joint & Several Liability
   - Eliminate
   - Replace with proportional liability (each defendant bears a cost proportionate to their degree or fault or liability)
   - Create 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 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

This ensures that plaintiffs are still indemnified to the fullest in the event one or more defendants is insolvent, to the detriment of solvent co-defendants

Question 7

Describe the proposed reform for J&S liability (3)

Answer 7

ELIMINATE J&S: for non-pecuniary damages
REPLACES J&S: with rule of proportional liability (each defendant bears a cost proportionate to their degree or fault or liability)
FUND creation: for guilty parties that can’t pay

Question 8

Define the “collateral source rule” & provide an example of a collateral source

Answer 8

Rule: Evidence of a plaintiff’s collateral source of compensation need not be entered AT TRIAL (examples include sick pay & disability)

• There is therefore potential for over-compensation & double recovery of plaintiff

Question 9

Describe the proposed reform to the “collateral source rule”

Answer 9

Eliminate (& allow collateral sources to be taken into account when determining award, so as to not have over-compensation)

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 certain % of this basis
- Current practice uses a % 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 proporsed 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

Defn: where one party is held responsible for actions of another
- Examples: employee, subordinate, sublease, car rental, sexual abuse

This makes the search for deep pocket possible

Question 13

Describe the proposed reform to “vicarious liability”

Answer 13

Eliminate it entirely

Question 14

Identify an advantage/disadvantage of “joint & several liability” reform

Answer 14

Advantage:
- Discourages search for deep pockets & decreases costs

Disadvantages:
- Increased 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 “vicarous liability” reform

Answer 17

Advantage:
- Discourages 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 (1-1)

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 (1-0)

Answer 20

Advantage:
- Increases probability of full compensation WITH access to assets of all defendants

No disadvantages

Question 21

(Advantage or disadvantage) of J&S Liability with respect to Insurers (1-1)

Answer 21

Advantage:
- Can share burden

Disadvantage:
- May have to pay a greater portion THAN the degree of liability (cost unpredictability)

Question 22

(Advantage or disadvantage) of J&S Liability with respect to lawyer (1-1)

Answer 22

Advantage:
- Increases efficiency in legal system since it promotes settlement without trial

Disadvantage:
- Fewer cases go to court (so laywers get less settlement fees)

Question 23

How are Canadian tort laws too plaintiff friendly?

Answer 23

Essentially is due to the JCCV reasons

Question 24

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

Answer 24

Group: peripheral defendants in asbestos injury suits
Impact: major defendants are likely bankrupt, others may pay more than their fair share under J&S

Could also have been deep pocket defendants

Question 25

Disadvantage of simple elimination of 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