Law Times

Law Times • OcTOber 18, 2010 Harper makes up with law-and-order crowd in byelection P rime Minister Stephen Harper made a smart move in lining up former On- tario Provincial Police commis- sioner Julian Fantino to run for the Conservatives in the Vaughan riding north of Toronto. First of all, Fantino is a crime-and-punishment cop who thinks like Harper and is ripe cabinet material. That's if the Conservatives make it back to power in the next election. Secondly, Fantino has a solid right-wing reputation go- ing for him. That appeals to the law-and-order crowd that's part of Harper's voting base. Fantino is one of the best-known cops in Ontario with 42 years of experience. He lives in Wood- bridge, which is in the Vaughan riding and is home to a large num- ber of Italian-Canadians. But most importantly for Harper, after all of the dumping he and his people have done on cops this year, it's time for them to make nice with police, an impor- tant part of their base. Bringing Fantino in should help. This summer, the newly re- tired Fantino was one of the few Ontario police chiefs to side with Harper against the gun registry. Like Harper, Fantino is an outspoken and controversial fig- ure. He has often been in legal trouble over his application of the law in a number of highly publicized cases. In 1994, gays in London, Ont., accused Fantino of turning a child-pornography case into a witch hunt against them. He ad- mitted later that he might have handled it differently. He was also a central figure in the racial-bias issue involving Toronto police when he was that city's chief. Again, he might have used a little more cool. While he was OPP com- missioner, the Caledonia, Ont., native standoff blew up in his face. In that instance, Fantino might have taken a different approach. Harper has a lot to make up for with rank-and-file cops. Last sum- mer, Harper's ministers pumped out a story that the crime rate, contrary to Statistics Canada figures, was go- ing up. In doing so, Treasury Board President Stockwell Day invented a line about a wave of unreported crime sweeping across the country. Day said victims of crime are afraid to report incidents to po- lice because they often fail to in- vestigate and judges fail to con- vict. Cops don't like hearing that they're sitting on their hands any more than judges. Police, believing they work as The Hill By Richard Cleroux hard as ever, felt it was a bad rap and that Day had no right to slam them. They also believe their own reports showing crime rates going down steadily Harper then split with the cops over the government's plan to abolish the gun registry. The cops like the gun registry, no matter how little or how much they use it. Police always want ev- ery possible tool on their side for their own security. That includes a gun registry that they claim to use 10,000 times a day. Harper's people made the cops look like they were inventing how often they use the gun registry. The Conservatives came up with their own in-house survey to contradict the police and Statistics Canada findings about the registry. The cops weren't pleased. In another recent develop- ment, the media got a hold of documents showing outrageous police expenses during the G20 summit in Toronto. They made it look like the whole thing was a $2-billion party for police at taxpayers' expense with the cops running up bills for $400-a-night hotel suites, $100-a-plate steak meals, and the purchase of about 3,500 orange glow sticks. The Harper government, rath- er than taking part of the blame for the bills at last by admitting they had authorized some of the spending, instead let the cops stew in their own bitter soup. Harper also refused to ac- cept any blame for the violence that occurred in the riots that took place during the summit. The police passed for fools and goons for attacking innocent protesters in what was the big- gest mass arrest in Canadian history. Cases were still being tossed out of court this month much to enduring police anger. As a result, now is the time, be- fore an election gets underway, for Harper to kiss and make up with the cops. So they're getting some- body like Fantino on the team to run in Vaughan. At least some po- lice officers can trust him. Maybe then Harper can rest easy again if he can restore the trust he lost this summer. LT Richard Cleroux is a freelance re- porter and columnist on Parliament Hill. His e-mail address is richard cleroux@rogers.com. COMMENT PAGE 7 Joint and several liability: Putting innocent victims first BY ANDREW MURRAY For Law Times injury or those who have caused it? Lawyers who act for innocent victims of B wrongdoing take for granted the principles of tort compensation that strive to restore in- nocent victims as fully as possible to the position they would have been in had the wrongful act not occurred. An important and long-standing Cana- dian legal tradition that helps to ensure the goal of full recovery is the principle of joint and several liability amongst multiple tortfeasors. Yet, as fundamental and, dare I say, as sac- rosanct a principle as joint and several liability is to many of us, we are aware that our regard for it is not shared by all. Indeed, as recently as two weeks ago in these pages (see "Munici- palities seek reform of Negligence Act," Law Times, Oct. 4), there was yet another report of how joint and several liability has come under attack. The latest salvo comes from the Asso- ciation of Municipalities of Ontario, which argues for reform based on the U.S. propor- tionate liability model. Now, the AMO is ap- parently pressing the provincial government for changes prior to the election next year. In the past, there have been other critics as well. At least as far back as the mid-1980s, the Canadian Institute of Chartered Accountants expressed concern about joint and several li- ability and attempted to influence legislators to change the law. The accounting profession ar- gued that auditors faced a liability crisis brought on by the application of joint and several li- ability against them. At that time, the institute argued, as the AMO is now doing, in favour of a system of proportionate liability, at least as it related to auditors and professional account- ing advisers. Their arguments have never gone away and continue to resurface to this day. In the fall of 2009, the Law Commission of Ontario, in part as a result of the grow- ing lobbying efforts, undertook a study of the law of joint and several liability. On pa- per, the study was intended to be limited to a discussion about the implications of joint and several liability under Ontario's Business Cor- porations Act, but many groups took it as an opportunity to advocate for wholesale changes to the Negligence Act, just as the AMO now proposes. Municipalities and chartered accountants are lobbying hard for a system of proportionate liability, caps on the liability of select groups, and other changes that would erode the rights of innocent victims of wrongdoing. Their ar- guments are, unfortunately, a scaremongering approach that clouds the reality of the situa- tion. In response to these positions, the On- tario Trial Lawyers Association has identified a number of key arguments illustrating the fundamental flaws with those presented by the proponents of reform. First, there is a lack of empirical data jus- tifying reform. For more than 20 years, the accountants and now the municipalities have referred to the so-called one-per-cent rule, an urban legend whereby a tortfeasor with one-per-cent liability would be 100-per-cent responsible for a loss. No one has pointed to a single case — reported, settled or otherwise — in which this outcome occurred. Indeed, the two cases mentioned in the AMO white paper dealt with circumstances in which the municipality was 25-per-cent liable in one in- stance and 45-per-cent liable in the other, not one per cent. www.lawtimesnews.com efore considering reforms to the Negli- gence Act, we need to ask whose inter- ests take priority — those who suffer Secondly, proponents of change fail to Speaker's Corner recognize or admit that concurrent liability means the defendant is 100-per-cent at fault for causing the loss to the plaintiff because, without that particular party's individual wrongdoing, the plaintiff would not have suf- fered a loss at all or would have incurred a very different loss. It is not accurate to say that each of a number of concurrent wrongdoers is only partly responsible for the plaintiff's loss for li- ability. In all cases, the causal responsibility of each wrongdoer extends to the whole of a plain- tiff's loss. Each wrongdo- er is liable given that the plaintiff has been able to establish that the entire loss was caused by the defendant in question, not just one per cent or some other proportion. Thirdly, the U.S. experience is an inappro- priate comparator. It is unhelpful to look to the experience in U.S. jurisdictions, which are beginning to adopt proportionate liability re- gimes in some cases, given factors such as the much narrower scope and application of puni- tive damage awards in Canada compared to the United States; our experience with professional liability insurance; the Canadian duty-of-care analysis, which more than adequately protects defendants; and the fact that Canadian litiga- tion includes costs consequences for the loser, which isn't the case south of the border. In addition, there is no evidence of a li- ability crisis. Independent studies, such as a 1988 Ontario Law Reform Commission pa- per, a 1998 Law Reform Commission of Sas- katchewan paper, and one by the 1996 stand- ing Senate committee on banking, trade, and commerce, found the idea of a liability crisis to be unsupported by empirical data. At the same time, there is no evidence of competitive disadvantage. In fact, there is no proof that Canadian accounting firms suffer any competitive jurisdictional disadvantage with the existing legal scheme in place. Furthermore, fundamental reform of tort law requires a high burden of proof. We all must be wary of the law of unintended con- sequences, in which one change might trigger negative or unforeseen outcomes. We must never lose sight of the innocent and blameless victim whose right of recovery will be eroded or eliminated by the proposed changes. Most importantly, the existing legal frame- work works very well to provide a triple layer of protection in the form of the duty-of-care analysis, the but-for causation test, and public policy considerations. The flexible legal test is more than sufficient to address the anecdotal and exaggerated concerns raised by the propo- nents of change to the business corporations or negligence acts. Without wrongdoing, there are no damages paid by a defendant, and the blameless party recovers the costs of litigation. The AMO and the accounting organiza- tion's emotional claims and persistent lobby- ing of legislators are cause for concern. Any erosion of the principles of joint and several liability inflicts harm upon innocent accident victims and cannot be allowed to occur. The argument that citizens will be the ones to suffer as cities and towns have to cut services simply does not stand up to scrutiny. The AMO fails to recognize that if it is successful in changing the laws governing joint and several liability, it will be the very same people they claim to protect who will be at risk when tortfeasors es- cape the responsibility of paying full damages to the innocent plaintiff. LT Andrew Murray, a partner at Lerners LLP, is also vice president of the OTLA. The OTLA's full response to the law commission consultation paper is available at otla.com.

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