CKNW Editorial
for December 13, 2001

The Attorney-General has proposed three major changes to the civil law – one which may make some sense - it's debatable as I will show in a moment - and the other two are massive intrusions by the government into the rights of citizens.

One, possible, out of three ain't bad for this AG.

First the marginal one, the debatable point.. He proposes changes to the Contributory Negligence Act that would restrict one's liability to the amount of negligence assessed against him. Let me explain - suppose you and I are found by the court to each have contributed to damages to Mr X, you being 25% at fault and I, 75%. I however have no money and you do. Mr X can collect all his damages from you, leaving it to you to try and collect my share back from me. Now this isn't entirely unjust since Mr X, is the innocent victim and would argue that if anyone should suffer because of Rafe's impecuniousity, it shouldn't be him.

Now as you can imagine, Mr Plant's concern is not you, me or Mr X but governments which, after all, are after all, we the taxpayers. And the problem arises with, say as an example, a leaky condo owner suing the contractor for negligence and the City as the building inspector. Say the court finds that the contractor is 90% at fault and the City 10%. If, as so often is the case, the contractor has no funds this means the entire judgment is paid by the
city who must go after the broke, and probably long gone contractor for his, 90% share. Again, we must decide who should bear the cost of the contractor's inability to pay - the individual who is innocent or the city who is not. It's as good debating point but it's not capable of a ready answer. We must decide who is to pay - the victim or one tortfeasor as we lawyers call them who while not entirely responsible, has some blame.

here are two other far more serious suggestions Mr Plant makes. He thinks judgments are too high in general and he thinks they are too high against governments. While it's not clear from the press reports, I gather Mt Plant is concerned about judicial damages awarded, in essence, against ICBC, as well as those assessed against the Provincial government proper. I notice he didn’t complain when the NDP government were hit with a potentially huge judgment in the Carriere case. The question of damages has always been left to the courts - in fact in civil matters that is one of two main things they principally deal with. Who's at fault and how much are the damages.

From time to time lower courts, judges and juries, have awarded damages that seemed too high. That's what the Appeal courts are for and in fact some 30 years ago, the Supreme Court of Canada imposed limits on how high damages could, for example, go under the head of pain and suffering in personal injury claims. The Supreme Court retained the right, of course, to adjust that if circumstances warranted and they have done just that. Mr Plant would now transfer the job of determining damages against the government from the courts to the government! An astonishing, breathtaking notion when you think on it.

That may well strike you as offensive in itself but consider this – the decision as to the amount of damages to be paid will be made by the defendant responsible for paying them. I can tell you, given that power in the media hands there would be very little fear of libel suits.

Mr Plant further wishes to restrict the rights of citizens to sue the government. This is a crucial issue. Of all the rights we fought for over the centuries, the last one won was the right to sue the Queen. It was always maintained that "the Queen can do no wrong" thus could not be sued. If a citizen was wronged by the crown, he had to grovel before the attorney-general and beg for what was called a Petition of Right. It was only in very recent times that this injustice was righted.

The argument in favour of Mr Plant setting the damages and Mr Plant deciding which if any citizens can sue the government is protection of the public purse. It's a seductive argument when you think of a small municipality saddled with a huge judgment.

We can follow Mr Plant's reasoning and just refuse, in whole or in part, to pay damages because as taxpayers we just don't want to. That's a pretty scary approach if you extend that to its logical conclusion. Governments, in order to save taxpayers money, might only have to pay minimum compensation or perhaps none for land or gravel pits they want ... or to take away timber rights ... or mining claims ... the list is a long one. If the criterion is the comfort of the taxpayer's wallet we move back into an era, philosophically speaking, that ended with Bad King John.
We have, since those days, progressively decided as a society that when it comes to matters between us citizens and Her Majesty, we would let the courts decide. We do that in criminal matters and no one would surely suggest that since guilty people sometimes get off we should let Mr Plant decide, on the basis of cost to the government, who should be found guilty and what penalty they should pay.

The principle on the civil side is the same. We hold it to be a sacred principle that one cannot be the judge in one's own cause.
What the attorney-general proposes is to do just that. The government, whether it be in their incarnation as ICBC, or as a government, will lay down limitations as to when they can be sued and what damages they will be prepared to pay.

One of the things Mr Plant knows well is this - we citizens seldom see ourselves as victims fighting the system but rather as payers of judgments. That makes it easy for him to convince us that the rights of victims - of which we are never going to be one - should be secondary to our requirement to pay damages to those victims.

We should think on this long and hard. Do we really want to place in the hands of this government or any other the power to decide who can sue and how much they will be entitled to in damages? Is Mr Plant and his bureaucracy better equipped to decide what is fair as between citizens and his government than the courts are?
When my neighbour has his land expropriated, I want my government to treat him fairly and, if it doesn't seem so, I want my neighbour to be able to get an independent judgment. I know that this will cost me money but I don't only look upon it as protecting my neighbour's rights, but mine as well.

If, in Mr Plant’s considered opinion, the government is paying too much by way of judgments he might want to ask why? Why are the lawsuits happening in the first place? Could it be because governments tend to be high handed with claimants. Is it perhaps that governments simply aren’t careful enough? The government already makes it pretty tough to sue a municipality and the time limits within which you must bring suit are pretty narrow.

We all know that the government is in a draconian mood to cut back costs and it would seem that the Attorney-General thinks he should do his bit by narrowing if not in some cases eliminating the rights of citizens. I say he should look elsewhere.

As an afterthought how about this – imagine if Glen Clark had announced that he was going to severely limit the right of citizens to sue the government and was going to seriously impair the damages they could collect. Can you imagine the stink the Liberals would have put up?