Access to justice at stake in government's civil liability reforms

On September 23 President Richard Gibbs, QC wrote to Attorney General Geoff Plant, QC on behalf of the Benchers, urging that the provincial government hold off adopting civil liability reforms that might significantly affect the public's access to justice - such as those that would diminish the likelihood of plaintiffs receiving recompense for damages. The Benchers are asking the Attorney General to first conduct a broad consultation and to support the BC Law Institute undertaking a full review of the issues. The government's deadline for submissions on its review was October 1.

The Society has flagged a number of critical access to justice issues that have not been addressed by the Attorney General's Civil Liability Review and that merit full consideration.

While the Benchers were of the view that it is not within the Law Society's mandate to deal directly with the substantive issues raised by the Review, the Society should address matters affecting access to justice as well as matters generally affecting the public interest in the administration of justice as set out in s. 3 of the Legal Profession Act.

In his letter, Mr. Gibbs stressed that a careful, detailed examination of proposed reforms is required, a process requiring significantly more consultation and discussion.

"By way of comparison, the Law Society points to the process undertaken by your Ministry in its Administrative Justice Review Project," he wrote. "There, government released discussion papers on specific topics for consideration, and invited comment from interested parties. The government, we believe, benefited from the comment generated on the specific topics, and was able to create a White Paper that appears to have met with a general degree of approval."

On behalf of the Benchers, he identified some of Law Society's public interest concerns on the proposed reforms:

Limitations laws - The Civil Liability Review consultation paper appears to support changing the ultimate limitation period (ULP) from 30 years to 10 years, but does not address the question of whether some causes of action should continue to fall outside a ULP, nor the date from which the 10 years would run and whether a special limitation should apply to protect the most vulnerable members of society, including minors and persons with disabilities.

Joint and several liability - The consultation paper offers no evidence of a crisis in BC arising out of "at-fault" defendants being held jointly and severally liable to an innocent plaintiff. If a plaintiff is innocent of any wrongdoing, and the defendant is found negligent, resulting in a loss to the plaintiff, the present law reasonably places the burden on an "at-fault" defendant to seek indemnity against the other co-defendants, rather than on the blameless plaintiff.

It is not clear that it is in the public interest to change the system to make innocent plaintiffs bear the risk of a defendant's insolvency. In the absence of evidence that the current law is not operating well, it is difficult to postulate on possible alternatives for reform. If government's concern is with a particular industry (for example, insolvent defendants in the construction industry) consideration could instead be given to legislative changes in the industry concerned, rather than re-writing the law of negligence as a whole. For example, it may make more sense for government to consider requirements for performance bonds or mandatory minimum insurance, rather than embarking on a general revision to the law of joint and several liability.

Costs in class action suits - Class action proceedings vary the normal rules in costs by prohibiting the courts from awarding costs against either party unless there is improper conduct. Any change in the rules to allow costs against a plaintiff may, however, impede access to justice by deterring potential class proceedings. Lawyers may also not be willing to take on class proceedings on behalf of representative plaintiffs if they have to assume a burden of costs as well as the risk that the action may not succeed.

The consultation paper states that defendants must incur enormous and unrecoverable costs in the discovery process that are typically not incurred to the same extent by plaintiffs. While there are pros and cons of a no-costs regime, no empirical evidence was offered to show that defendants in BC are suffering severe prejudice. Without evidence of a pressing problem, and without the benefit of broader consultation and discussion, the Law Society does not see a need to amend the Class Proceedings Act.

Vicarious liability of employers - Without the vicarious liability doctrine, a plaintiff who has suffered damages is less likely to find a defendant able to pay on a judgment. The doctrine also serves to make it more likely that employers will exercise a higher degree of scrutiny or caution when hiring employees. The availability of insurance, based on risk, enables an employer to compensate the plaintiff, thereby removing the burden from the taxpayer. From a plaintiff's perspective, it is difficult to imagine why one would be opposed to the doctrine. From a public interest perspective, vicarious liability functions both as a fair and practical remedy for harm, and as a deterrent against possible future harm.

There is certainly principled legal analysis that can be raised against vicarious liability, and there has been some judicial invitation for the Legislature to consider reform of this area of law. The Law Society believes that there needs to be a clearer expression by the government of what it proposes as a legislative amendment before any useful comment could be made about alternatives. For example, if reform were needed, should vicarious liability be statutorily abolished? Or should it be kept, but have classes of defendants statutorily exempted? If this course were followed, what criteria would be required for a class of defendants to be exempted? Choosing one option over another without consultation or discussion by all interested parties is, in the view of the Law Society, a dangerous exercise.

Alternatives to traditional "lump sum" damage awards - The consultation paper provides no evidence that the current approach to damage awards is flawed or unjust. Disadvantages of structured settlements are that the plaintiff is denied the flexibility to make his or her own investment and consumption choices and the structure cannot usually be modified. Any mandatory scheme would prevent the courts from determining what arrangement is in the best interests of a particular plaintiff. Such a scheme gives rise to the risk of default if a defendant does not have adequate means to fund periodic payments over time.

The consultation paper suggests that there is a basis for legislation in support of judicial structured awards because of advances made in actuarial science and the experience gained from negotiated structured settlements - although no explanation of this is offered. Nor is there information on whether, or to what extent, a problem currently exists.

Non-delegable duty doctrine - The doctrine of non-delegable duty offers protection to an injured plaintiff by making a principal liable for the acts of independent contractors in some circumstances. There are good policy reasons for the doctrine in circumstances in which the nature of the relationship between the plaintiff and defendant contains a special element that may justify a higher obligation on the defendant to ensure that care is taken in the fulfilment of a duty. On the other hand, arguments have been made that there is an apparent absence of any coherent theory to explain why or when a particular duty should be classified as non-delegable. Questions have been raised as to whether the uncertainty and complexity of the law as it has developed is matched by corresponding advantages.

The consultation paper argues that one of the difficulties with the non-delegable duty doctrine is the "uncertainty of its conceptual foundations," but does not elaborate on this point. There is no discussion of problems raised by the doctrine, other than an underlying premise that the increased scope of liability is not warranted, and there has not been enough analysis or consultation on this issue.