F. The Marginalization of Tort Law

Author:Philip H. Osborne
Profession:Faculty of Law. The University of Manitoba

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At the dawn of a new millennium, two competing visions of the future of the Canadian law of torts present themselves. Many of the trends that have been identified in this chapter promise a modern and robust tort system ready to face the challenges of the twenty-first century. Nevertheless, there is a darker vision that anticipates the growing marginalization of tort law and a diminution in both its vitality and the role it plays in Canadian society. Three phenomena threaten the significance of tort law, namely, the inaccessibility of tort remedies, the tort reform movement and the growth of alternative compensatory and accident prevention mechanisms.

The first phenomenon is a practical issue of access to justice. The expense of civil litigation, the rules relating to court costs, the complexities of civil procedure, the uncertainties of tort doctrine, the unpredictability of judicial decision making in many situations, the slow pace of civil process, the absence of legal aid for the middle class, and the emotional toll exacted on litigants by the adversary process all conspire to cause severe accessibility problems. There have been some initiatives that have provided some relief, such as procedural reform, the increased use of mediation, the increased availability of class actions, and the greater use of contingency fee arrangements, but many viable tort claims are not litigated. This presents a significant challenge to Canadian tort law and if solutions are not found, Canadian tort law will become increasingly remote from the citizens it is designed to serve.

The second phenomenon presents a more direct threat to some of tort law’s pro-plaintiff rules. It is the influence of the tort reform movement which began in the United States. Tort reform is a legislative response designed to repeal tort rules which are perceived as too pro-plaintiff and unduly burdensome to defendants. It is motivated by the belief that tort law creates too great a burden on business, government, and the insurance industry. Almost all American states have passed legislation introducing caps on non-pecuniary damages and punitive damages, changing joint and several liability to proportionate liability, or reducing limitation periods. In Australia the tort reform recommendations of the Ipp Committee11have been implemented by all state and territorial governments. The legislation narrows the scope of potential tort liability and limits the quantum of damages that may be awarded. It is designed to reduce the cost of the tort system in the area of personal

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injury and death. Cumulatively these reforms have significantly curtailed the Australian tort system. Canada has, however, been largely immune from these influences. In 2002 the British Columbia government released a consultation paper entitled Civil Liability Review. This paper suggested that it may be an appropriate time to reign in tort liability by introducing pro-defendant reforms of limitation periods, joint and several liability and non-delegable duties of care, and by making more extensive use of structured settlements. Insurers and some professional associations have also lobbied for similar initiatives. Legislative implementation of such an agenda would be a significant restraint on tort...

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