Date: Tue, 22 Nov 2005 14:32:41

From: David Cheifetz

Subject: Maternal Tort Liability Act

I agree that the MTLA is probably constitutional even under a Charter attack. It'll be saved by the reasonably justified saving provision, even assuming that the legislation's gender basis is held to be a prohibited gender discrimination under the equality provisions of s. 15 of the Charter.

In joint liability regimes a perhaps not obvious (to the legislatures) consequence of MTLA-type legislation will be the addition of one more party to almost every serious compromised baby case: the mother if she has motor vehicle insurance and have used or operated a vehicle at any time during pregnancy. What isn't within the scope of use or operation of the vehicle?

My guess is that most Canadian auto liability policies have liability limits of at least $1 million, regardless of the statutory minimum. That's more than enough to fund a very nice structure. (Even $500,000 would create a nice nest egg.) Bearing that in mind, and given the difficulties in medical malpractice litigation, plaintiffs' counsel might decide to sue just the mother in those cases and let the mother's insurer carry the burden of bringing the medical profession and hospitals in the action. Or, given joint liability, maybe you would sue them all and then sit back to let the insurer bear the cost of establishing the condition wasn't at all the fault of the mother. If you name only the child as the plaintiff, there's no work about a costs award - so the only financial risk is the lawyers'.

You asked about insurance policy exclusions. As you know, motor vehicle liability insurance is governed by statute in Canada. There are no exclusions for claims for family members - a good thing for a generation of the plaintiffs' bar who otherwise might have gone broke. Other forms of liability policy, now, tend to have exclusions for claims based on anything to do with fault in the use or operation of motor vehicles as well as claims by family members generally where it's personal liability coverage.

David Cheifetz

----- Original Message -----
From: Daved Muttart
To: Jason Neyers
Sent: Monday, November 21, 2005 3:50 PM
Subject: Re: ODG: Maternal Tort Liability Act

Presumably it would be constitutional.

First: It's squarely within property and civil rights, i.e. provincial jurisdiction.

Second, Dobson was decided on policy grounds and the Court decided that this was within the purview of the legislature. Thus the legislature can change the relative importance of the competing policy considerations.

The only caveat is the Charter which the Court specifically declined to address. I'll go out on a limb and predict that the Court would decide (with 3-4 dissents) that the legislation is constitutional.

A child subsequently born alive is able to sue strangers for damages sustained while en ventre sa mere, why should mothers be exempt from this? Say you had an accident at an intersection where each party (a male driving one car and a pregnant woman driving the other) causing the fetus to sustain a serious but not fatal brain injury. When the child is born, it can sue the male driver. Why should the mother not be jointly and severally liable for her child's injuries?

If the Charter prevents a gender-based tort, it should equally prevent a gender-based waiver of liability. The Charter provides for equality, not preferential treatment. Dobson holds differently of course, but I don't think that the Court's policy views are strong enough to override those of the legislature.

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