Date: Tue, 22 Nov 2005 01:58:19 -0500

From: David Cheifetz

Subject: Alberta - Maternal Tort Liability Act

For those who want to read the whole (5 section) act the URL is:

http://www.assembly.ab.ca/net/index.aspx? p=bills_bill&selectbill=045

The subject matter is serious but the legislation is a work of art - of the paint by numbers variety.

Anybody notice what's missing from the operative section Vaughan quoted?

To start, how about a standard of care? What is there in the legislation that requires us to assume the cause of action referred in s. 4 is a fault based based tort? (It's not s. 3, for reasons I'll suggest below).

What does "may be liable mean"? Is that the standard of care reference?

What is the basis for liability apart from causation? Negligence? Recklessness? Moronic hurry? Admitting to a belief that the National Energy Program was good legislation and should be re-enacted?

How about absolute liability if causation is established subject only to judicial discretion not to impose liability if the judge feels it would be right or wrong impose to liability because he or she got out bed on the wrong side, that morning, and didn't like breakfast?

Why does "may be liable" mean fault or any sort? Why doesn't it mean that once causation is established - however that is done - the judge then decides whether to impose liability based on some <ahem> policy considerations?

What might these be? (Other than having an Eastern Canadian insurer?).

For what it's worth, there's no doubt the standard that the bill's sponsor intended is negligence. I checked Alta's Hansard for his speech at 2nd reading (which was adjourned, so the bill hasn't completed 2nd reading.)

Section 3 of the draft act is: "Sections 4 and 5 establish a limited exception to the immunity that a mother has at common law from actions in tort by her child for injuries suffered by the child on or after birth as a result of the mother's actions prior to the child's birth." All that necessarily tell us is that the legislation overrides the immunity. It doesn't mean that the resultant exposure to liability is fault based.

Section 5 deals with the limits of liability - the available motor vehicle liability insurance limit.

What about fraud? What about single car accidents where the mother is alone in the car and there's nothing to contradict whatever explanation she gives? Or where both parents are alone in the car etc. Isn't the legislation an invitation for the mother (or parents) to claim the accident was the mother's fault? It's likely to be the case that many will believe it's their fault if the infant is injured, even if it actually wasn't.

What if the mother is at fault and the vehicle is owned by the father or somebody else? Other Alberta legislation (common to Canada) makes the owner of the vehicle vicariously liable for damage caused by the negligent use or operation of the vehicle by the the mother, unless the vehicle is stolen. So doesn't that legislation make the owner vicariously liable for the child's injuries? And, as that liability isn't a result of the MTLA, why does the MTLA apply at all? Couldn't the MTLA as drafted, be read to mean that the limitation on the amount of liability is available only to the mother? But the owner is exposed to the entire damages award?

It's entirely plausible that a judge would use that sort of analysis. This is, after all, "remedial" legislation.

The Alta gov't has a lot of work to do on this idea.

The sponsor's speech stated that there's analogous English legislation. Could somebody post a URL? Thanks.

Apologies for the rant.

David Cheifetz

Vaughan Black wrote:

Canadians on the list may be interested to know that last week the Government of Alberta introduced Bill 45, The Maternal Tort Liability Act. It overrules Dobson v. Dobson, at least as far as car accidents are concerned. Section 4 provides:

A mother may be liable to her child for injuries suffered by her child on or after birth that were caused by the mother's use or operation of an automobile during pregnancy if, at the time of that use or operation, the mother was insured under a contract of automobile insurance evidence by a motor vehicle liability policy.

The bill goes on to provide that liability is only up to the maximum cover of the policy. That is, it is tightly keyed on insurance.

So far it has only passed first and second reading.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>