Remarks of David N Osborne To Canadian Bar Association – BC

Document Sample
Remarks of David N Osborne To Canadian Bar Association – BC Powered By Docstoc
					    Remarks of David N. Osborne

Canadian Bar Association – BC Branch
  Civil Litigation and Insurance Law

  Re: Attorney General Geoff Plant’
        Civil Liability Review

         November 20, 2002

Thank you for inviting me to share some thoughts with you today on
the Attorney-General’ Civil Liability Review. These thoughts are born
of discussions that have taken place among the membership and the
executive of the Trial Lawyers Association of British Columbia.

Those of you who know me will know that my personal style is
inclined towards gentle, understated persuasion. Yet this particular
subject can tolerate no such serene approach.


We hear from this government talk of how justice needs to be
affordable as if we’ about to imminently face the privations and
hardships of some sort of “nuclear winter.”

  re                                     t
We’ told judges are making law that doesn’ give sufficient
protection to defendants and which too often finds government
accountable for its errors. The AG appears to overtly identify with
defendants when he states as he did in November 2001: “ have
met the defendant and he is us.”

We are told there is really no alternative for society but to retrench, to
limit traditional freedoms and services, to shrink government
overnight for the greater good of all. It’ as if we are being told we
can no longer afford to share “ milk of human kindness.”

We’ essentially being told the cost of judgments against the
government is bad for the economy.             That judgments against
municipalities that could have avoided harm had they properly
exercised their regulatory authority is bad for the economy. That the
cost of providing courthouses is bad for the economy. It’ as if even
justice and fair treatment of citizens is bad for the economy.

Well you know what? I grew up in a society, a society civilized by
laws that gave me and my generation the security of knowing we
were protected if someone negligently caused us harm. My parents
and grandparents enjoyed pretty much the same protections and
were the better for it.

Like you, I’ like my children and grandchildren to benefit from the
same or even greater protections under law.

What are these changes actually designed to do?

This government wants immunity from prosecution for itself and to
place strict limits on recovery against those who are its benefactors,
either through the abolishment of vicarious liability, or by limiting joint
and several liability to force innocent victims to pursue each and
every defendant responsible for their being harmed, or by reducing
limitation periods, or by essentially gutting class proceedings and,
finally, by imposing structured settlements on citizens thereby forcing
them to await handouts from the very people or institutions that have
victimized them.

It wants to turn back the hands of time at the expense of the most
vulnerable and needy among us, the innocent victim.

These changes would limit access to justice, to the courts, and to the
sense of security this access provides not just to those who have
been victimized but to the rest of us as well.

These are dark days for justice in British Columbia and I fear the
people most able to warn a sleeping public – its legal professionals –
are being lulled into the belief that what is being recommended are
“ideas whose time has come.”

There needs to be a loud and concerted rejection of this destructive

It is no overstatement to say the TLABC regards these proposed
changes as a blatant and underhanded attack on the traditional rights
and protections of the citizens of this province by a servile
government misguidedly trying to appease corporate “players” in the
naïve hope that this will lead to the attraction of greater business
investment in this province.

So, rather than venerate and guard these important citizen rights -- as
they are bound by duty, by tradition -- by simple human decency -- to
do, this government would give these rights and protections away for
free in order to please business or revise them to give itself immunity.

It is an exercise in government abuse of power which we as lawyers
should have no part of, no part of whatsoever.

A hundred years ago, our forefathers built courthouses in every city
and many interior towns of this province to ensure every citizen
young and old would have a guarantee of access to justice. They
would reproach this government for proposing these changes to civil
liberties - and they would reproach us - for permitting it to occur.

Yet we sit here today and discuss it as if we’ accepted it as a
proper subject for negotiation, trade-off, and compromise. As if there
exists some urgent, practical imperative that makes it necessary,
even enlightened, to make these changes. In my view, by having
these discussions, we start down the slippery slope to abdicating our
responsibilities to the public at large and to our profession.

   s                             t
Let’ be frank. These changes aren’ born of necessity, instead they
are an homage to favouritism, to backwardness, and reflect a belief in
                s survival of the fittest.”
social Darwinism’ “

The proposals contained in the Civil Liability Review are, in our view,
radical reforms, which have been essentially endorsed by the AG. By
radical we mean that if these changes were to harden into law they
would profoundly detract from the rights of litigants -- both individual
and commercial. We believe they are also radical because they have
the potential to trigger adverse impacts upon life and business in

British Columbia in the long run, including that they will significantly
limit access to justice.

In our view there would need to be critical pressing needs that would
be successfully served by these changes in order for there to be any
justification for the proposed changes.    We have not been shown
evidence suggesting any need for change. Without such evidence it
is impossible to decide – or to even consider -- whether the impacts
of the changes to the law can be justified once compared with the
benefits they are expected to produce.                           s
                                              Thus, to us, the AG’
proposed changes are “solutions” wandering in search of problems
that do not appear to exist.

These laws reflect some of society’ most civilizing aspects. Yet Mr.
Plant, at Mr. Campbell’ urging, intends to sweep them away with a
stroke of his pen.

Nowadays, we often hear Shakespeare’ words: “The first thing we
do is kill all the lawyers.” This phrase is cited in all strata of our
society as if it were the sage pronouncement of one of mankind’
greatest thinkers that society would thrive if only it were to
exterminate all the lawyers.

It is a sentiment widely exploited by government to influence a docile
population into believing that lawyers’opposition to bad ideas is proof
these same ideas must be instituted.

Yet the irony is that in uttering the words “kill all the lawyers”
Shakespeare was in fact referring to what was the crucial first step in
        etat by a group of traitors intending to abolish the freedoms
a coup d’
protected by the rule of law and thereby threaten the well-being of an
entire society.

Lawyers were then – in the mid-17th century -- regarded as the
guardians of justice and individual liberty, not, as we are maliciously
depicted today, as threats to those essential social values.

It is as true today as it was then that lawyers are the guardians – the
protectors -- of these values.

Who but lawyers are equipped with the resourcefulness and the
intellect to ensure the citizens of this province appreciate the
harmfulness, the backwardness of these changes?

Thomas Jefferson, the lawyer who authored the Declaration of
Independence and was the architect of the American Revolution -- at
a time when doctors were bleeding George Washington to death with
leeches -- regarded the citizens’access to justice as a higher priority
than even the right to vote. We should hold access to justice in at
least as high a regard as did Jefferson.

Accordingly, I urge you to see these changes for what they are, and
vigorously organize and act to oppose them.

Let me conclude by asking: What is the CBA’ proper role in this?

I’ sure there is a tendency – in wanting to do good work and in
being guided by honest motives -         for the members of the CBA
executive to want to digest and analyze what the government is
telling us in this Civil Liability Review so that we, as lawyers, can
apply our judgment and our abilities to generate progressive
“solutions” to what government tells us are the pressing problems of
our time.

But that is not what the CBA is obliged to do. The CBA owes its duty
to – and depends for its existence upon - lawyers and the legal
profession. It is to the interests of the lawyers of this province that the
CBA owes its paramount obligation to serve not government, or our
insurance company clients.

None of us, not the TLABC or the CBA, nor the Law Society, nor
government itself (unless it has been elected on a promise to do so)
has the authority to diminish the rights of the population or to ask
innocent victims to silently carry the burden of their victimization in
order to serve society as a whole or, instead, to become the
“regrettable but necessary byproduct” of an affordable system of

In any event, on these civil liability issues the interests of lawyers and
citizens converge and overlap in one simple coherent whole. That

was recognized in September in the discussions your executive and
provincial board had before passing its motion.

Let us all make sure the public understands this because once these
changes have been passed by this government our grandchildren will
be asking us why we didn’ act to stop it from happening.