Re: BarTalk Vol 14/No 3 “Civil Liability Review”
In the June 2002 edition of BarTalk, Attorney General Geoff Plant outlined the basis for his belief that civil litigation in British Columbia is evolving in ways that unwisely favours plaintiffs and unfairly punishes defendants. Even a cursory review of the changes that government has brought to this important area of civil rights law illustrates that the Attorney General is flat out wrong in his thesis, which is a prescription for tort reform.
The Attorney General claims statutory, judicial rulings and common law changes have expanded civil liability and benefited plaintiffs in recent years. He believes it’s time to look at strengthening the rights of defendants. Anyone who practises in this area would know he is misguided. How can he not be aware of the systematic erosion, in recent years, of the rights of innocent victims of negligence?
Mr. Plant, please consider the following partial list of facts about the current state of law in BC:
- There is no compensation or deterrence for wrongful death – the lives of children and the elderly have no value in BC law.
- Prohibitively high hearing fees and other excessive costs.
- Caps on non-pecuniary losses that have been in place since the 1970s.
- Special limitation periods to protect special interests, such as: doctors, municipalities, etc.
- A public auto insurer with its own police powers, powers to compel doctors to report on their own patients, power to collect costs against an unsuccessful plaintiff by denying insurance and driver’s licence renewal, etc.
- ICBC has the economic clout to wage litigation warfare far beyond that of any other civil litigant. For example, it pushes for jury trials on smaller cases to make litigation uneconomical.
- Goodbye to pain and suffering awards to the victims of crime via the so-called Crime Victims Assistance Act.
- Loss of court ordered interest on general damages, which removed the incentive to settle claims promptly and fairly.
- Loss of action per quod servitium amisit.
- Abolishing the Human Rights Commission without enacting corresponding legislation to create rights for victims of discrimination in the regular court system.
- Taxes on legal services. This is a business expense for corporate defendants and insurers but the innocent victim takes it on the nose.
Now, consider the courthouses that have been closed. Is that beneficial to plaintiffs or, by denying access to justice, does it merely insulate defendants?
The Attorney General should have a profound appreciation for how tort law operates to deter dangerous behaviours and weed out faulty and hazardous product designs. These hallmark benefits of tort law are being seriously jeopardized by the changes the Attorney General would propose to bring in. In my view, Mr. Plant’s civil liability ‘review’ should scare every citizen of British Columbia.
Donald J. Renaud
Immediate Past President, Trial Lawyers Association of BC
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This letter was published in the August 2002 issue of BarTalk.