Economics and the Law
The following articles are available on our web site, under the topic “Economics and the Law”:
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Shortened Life Expectency: The "Lost
Years" Calculation
- Spring 1996 Expert Witness (1.1)
- In this article Scott Beesley analyses the impact which a reduced life expectancy has on the plaintiff's claim for loss of future earnings - the "lost years deduction." In a future issue, this discussion will be extended to the calculation of losses in fatal accident actions in which the deceased has left no dependents - following from the Alberta decisions in Galand and Duncan.
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Loss of Earnings for Wrongful
Confinement and Wrongful Sterilization: The Case of Leilani
Muir
- Spring 1996 Expert Witness (1.1)
- In this article Christopher Bruce offers a brief comment on the case Muir v. Alberta, in which damages were awarded to the plaintiff because she was wrongfully confined in a home for the mentally defective and was wrongfully sterilized. However, the court denied her loss of earnings claim.
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Fatal Accident Cases After
Galand
- Summer 1996 Expert Witness (1.2)
- In this article Christopher Bruce discusses the theoretical arguments raised by Mr. Justice Coté's decision that an estate is able to rely on the Survival of Actions Act to sue for a deceased's loss of earning capacity.
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Distinguishing Between Loss of
Income and Loss of Earning Capacity: The B.C. Case of
Pallos v. I.C.B.C.
- Summer 1996 Expert Witness (1.2)
- In this article Scott Beesley provides an analysis of the implications of the British Columbia case, Pallos v. I.C.B.C. In Pallos, the B.C. Court of Appeal ruled that although the plaintiff had returned to his former employer, earning as much as he had prior to the accident, his injuries acted to reduce his future "earning capacity." He was awarded $40,000 on this head of damages. Mr. Beesley shows that the approach adopted in Pallos is an extension of a widely-used concept, "weighted average."
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Damage Calculations in Fatal
Accident Actions After Galand
- Autumn 1996 Expert Witness (1.3)
- This article is Christopher Bruce's second of two reports on the ramifications of the Alberta Court of Appeal decision in Galand Estate v. Stewart. The article in this issue considers the implications of Galand for the calculation of damages.
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The "Lost Years" Deduction
- Spring 1997 Expert Witness (2.1)
- >In this article Christopher Bruce deals with the current issue of appropriate compensation for the "lost years" of a plaintiff with reduced life expectancy. One of the approaches discussed includes the view that the plaintiff should be compensated for the lost earnings which remain after the cost of necessities is deducted. Further clarification is required on this issue to establish an estimated cost for "necessities."
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Implications of Duncan v.
Baddeley
- Summer 1997 Expert Witness (2.2)
- This article deals with the impact of the recent Alberta Appeal Court decision in Duncan v. Baddeley. Christopher Bruce discusses the implications of this decision for: fatal accident actions in which there are no dependants; the selection between the Fatal Accidents Act and the Survival of Actions Act; and the valuation of the "lost years" deduction in both fatal accident and personal injury actions.
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D’Amato v. Badger –
Complications Arising when the Plaintiff is a Business
Partner
- Winter 1997 Expert Witness (2.4)
- In this article Christopher Bruce and Scott Beesley bring clarity to some of the complex issues that surround the loss of income which arises when the proprietor of a small business is injured. In particular, they deal with the situation encountered in the recent Supreme Court decision of D’Amato v. Badger, in which D’Amato was a partner in a small business. The issue of compensation became clouded because D’Amato, through his partner’s generosity, was in receipt of a wage post-accident that exceeded the value of his contribution, given his compromised condition.
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The Role of the Expert Witness in
Developing "New" Law
- Spring 1998 Expert Witness (3.1)
- In this article Christopher Bruce explores the role of the expert witness. He delineates both the advantages and disadvantages to the legal system when an expert adopts a "constructive" rather than a "passive" approach. While recognising the pitfalls with either approach, he points out the potential benefits that may accrue when the specialist is allowed to bring his/her expertise to bear, shedding light upon the complexities of personal injury litigation.
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Applying Economic Analysis to Tort
Law
- Summer 1998 Expert Witness (3.2)
- In this article Christopher Bruce expands the use of economic analysis in tort law. Dr. Bruce identifies the distinguishing characteristics of the economic approach versus the more traditional methods of legal analysis. This is the first of a series of articles to follow regarding the economic analysis of torts.
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The Economics of Negligence
Rules
- Autumn 1998 Expert Witness (3.3)
- As a continuation of his series, Christopher Bruce expands on the use of economic analysis in tort law. He argues the economic approach can also be used to cast light on the development of the tort rules of negligence.
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Issues Arising in the Calculation of
Damages Under the Survival of Actions Act (Part 1)
- Winter 1998 Expert Witness (3.4)
- In this article Scott Beesley discusses the issues that arise in the calculation of damages under the Survival of Actions Act. Mr. Beesley addresses the possible size of the "necessities" deduction.
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Duty of Care
- Winter 1998 Expert Witness (3.4)
- In this article, Christopher Bruce continues with the third in his series on the economic analysis of tort law. Dr. Bruce discusses the "duty of care" issues including the economic reasoning behind liabilities in torts.
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The Current Status of Survival of
Actions Act Claims
- Autumn 1999 Expert Witness (4.3)
- In this article Christopher Bruce discusses two trial court decisions concerning the method by which claims for loss of earnings are to be calculated under the Survival of Actions Act. He argues that, although these two decisions clarify many of the outstanding issues in this area, a number of crucial problems remain unresolved.
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Case Comment: Madge v.
Meyer
- Summer 2000 Expert Witness (5.2)
- This article concerns a case in which there was no apparent loss of income following a farm owner’s injury. Mr. Beesley notes that it is critical to separate the farm income generated through the assistance of a friend or family member from the income earned by the injured farm owner. If the income generated by an unpaid (or underpaid) worker is attributed to the injured owner then the injured person’s loss of income could be greatly underestimated.
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The Deduction of Accelerated
Inheritance
- Summer 2001 Expert Witness (6.2)
- In this
article Chris Bruce discusses a requirement established
by the Court of Appeal in its October 17, 2000 ruling in
Brooks v. Stefura. This was that
“accelerated inheritances” should be deducted
from each plaintiff’s dependency award.
The Court did not, however, state clearly what it meant by “accelerated inheritances,” nor did it specify how those inheritances were to be calculated. In this article, Chris offers some observations that may cast some light on these issues.
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The Deduction (?) of
“Accelerated Inheritance” (Scott
Beesley’s view)
- Summer 2001 Expert Witness (6.2)
- In this
article Scott Beesley discusses a requirement established
by the Court of Appeal in its October 17, 2000 ruling in
Brooks v. Stefura. This was that
“accelerated inheritances” should be deducted
from each plaintiff’s dependency award.
The Court did not, however, state clearly what it meant by “accelerated inheritances,” nor did it specify how those inheritances were to be calculated. In this article, Scott offers some observations that may cast some light on these issues.
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Case Comment: Boston v. Boston
- Summer 2001 Expert Witness (6.2)
- The Supreme
Court of Canada recently ruled in the case of Boston
v. Boston. This was a case involving the variation of
spousal support at the time of the husband’s
retirement. He retired in 1997 and began to receive his
pension. He applied to have the original support payment
reduced, on the grounds that he was now paying support
from his pension, which had already been considered in
the original division of assets. It was argued that the
wife had traded off her right to half the pension, and in
return had received the bulk of the physical and other
assets. He succeeded in having the monthly payment
lowered from $3,200 to $950, but the Ontario Court of
Appeal increased the figure back to $2,000. The husband
was appealing that last OCA decision in the Supreme
Court.
The SCC’s decision allowed the husband’s appeal and restored the motions judge’s decision to reduce support to $950 per month. This was in my view correct, as it would appear to be unjust that the wife should receive half of an asset at separation, and then be allowed to claim part of the husband’s half of that asset later.
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No-Fault Automobile Insurance
- Autumn 2001 Expert Witness (6.3)
- In this article Christopher Bruce and Angela Tu Weissenberger respond to a recent paper which recommends that Alberta adopt a no-fault automobile insurance system. In their response, Dr. Bruce and Ms. Tu Weissenberger examine the deterrent effect of tort rules; the high cost of no-fault insurance systems; arguments concerning the role of lawyers; evidence concerning the costs of bodily injury claims; and evidence concerning insurance fraud. They identify several weaknesses in the usual arguments that are made in support of a no-fault regime.
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The awarding of costs and payment of
legal fees in a case brought before the Court: is there a
potential injustice?
- Winter 2001 Expert Witness (6.4)
- This article shows that there may be a potential injustice due to the tax treatment of an employee-plaintiff versus a corporate-defendant. We show that the costs imposed on a losing employee-plaintiff impose a greater burden than the same level of costs imposed on a losing corporate defendant. This is because the employee-plaintiff must such pay costs with after-tax dollars, but the corporate defendant can use before-tax dollars.
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Destruction of evidence
- Winter 2001/02 Expert Witness (6.4)
- In this
article Christopher Bruce discusses situations in which
information required to establish negligence remains in
the possession of one of the parties. In the absence of
any penalties, a party who believes that this evidence
may suggest that he or she should be held liable will
have an incentive to destroy the evidence.
The purpose of Dr. Bruce’s article is to develop a model of the legal process that will offer insight into the determination of legal remedies for the destruction of evidence by a defendant. He bases this model on the assumption that the first role of such remedies must be to discourage the defendant from destroying any information that might reasonably be expected to assist the court in the determination of liability.
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Duty to Care for Orphaned Minors
- Summer 2002 Expert Witness (7.2)
- In this article Christopher Bruce considers cases in which the courts have been asked to calculate the loss of dependency of orphaned minors – who have been taken into the care of close relatives. The important issue that is raised by this arrangement is whether the expenditures incurred by the surrogate parents should be set off against the children’s loss of dependency on their natural parent(s).
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Assessment of damages in wrongful
birth cases
- Summer 2003 Expert Witness (8.2)
- Gerald Robertson is a Professor of Law at the University of Alberta, and a practising barrister and solicitor in the areas of civil litigation and personal injury. He is co-author of Legal Liability of Doctors and Hospitals in Canada (3rd ed.). He is also a director of the Robertson Personal Injury Newsletter, an on-line weekly digest of all personal injury judgments in Canada decided over the previous week, along with current developments in the area of personal injury litigation. More information about the Robertson Personal Injury Newsletter can be found at www.rpin.ca.
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Experience-Rating of Automobile
Insurance: A Good Idea that Won't Work
- Summer 2003 Expert Witness (8.2)
- In this article Christopher Bruce identifies some of the weaknesses of legislation that requires automobile insurance companies to use “experience rating” – a system in which the only factor that determines your premiums is your driving record.
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How are Automobile Insurance
Premiums Determined?
- Autumn 2003 Expert Witness (8.3)
- In this article Christopher Bruce Christopher Bruce provides a brief introduction to the process by which automobile insurance premiums are determined. He discusses actuarial rating, rating classes, and experience rating.
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The Impact of the “Net
Income” Provisions of the Insurance Amendment Act,
2003
- Summer 2004 Expert Witness (9.2)
- The article examines the implications of the changes to section 626.1 of the Insurance Act that were introduced in The Insurance Amendment Act, 2003. Dr. Bruce argues that these changes will: (i) require that income taxes be calculated for every year of both the with-accident and without-accident income streams in all personal injury cases; and (ii) raise the strong possibility that the courts will allow income tax “gross ups” on awards for loss of earnings. He also shows how the income tax gross up is calculated and estimates the overall impact of the revisions on personal injury awards; and he argues that those revisions will have no effect on the manner in which CPP premiums have been treated in Alberta.
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Fatal Accident Calculations Under
the New Legislation
- Autumn 2007 Expert Witness (12.2)
- In this article Kelly Rathje discusses the treatment of survivor pension benefits in fatal auto accidents, in light of the new rules defined by Alberta’s Insurance Amendment Act.
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Premiums, Profits, and Costs of Business in Alberta’s Automobile Insurance Industry, 1996–2006
- Winter 2008 Expert Witness (13.2)
- In February 2008, Economica was retained by the Canadian Bar Association to prepare a series of reports on automobile insurance premiums in five provinces: Alberta, Ontario, New Brunswick, Prince Edward Island, and Nova Scotia. We have now completed this work, having prepared two reports on Alberta and one on each of the other four provinces. The first article in this newsletter summarises the main findings of the first of these reports, Alberta’s Minor Injury Regulation: Automobile Insurance Profits, Premium Rates, and Costs.