|
Date: Mon, 21 Nov 2005 12:50:06 -0800 From: Daved Muttart Subject: 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.
Daved Muttart
<<<< Previous Message ~ Index ~ Next Message >>>>>
|
»
»
»
»