This thesis questions why young female and aboriginal plaintiffs consistently
receive lower damage awards for loss of future earning capacity than young white male
plaintiffs. I argue that due to the social construction of law, and specifically tort law, the
dividing line between public and private law should be challenged. The effect of tort is
partially "public" in nature due to the broad impact tort has on valuing the potential of
individual plaintiffs. When damages for female and aboriginal plaintiffs are assessed on
a reduced scale due to gender and race, a message is sent that the potential of these
plaintiffs, and the potential of the groups to which they belong, is somehow less. Due to
the "public" impacts of damages quantification, principles of equality derived from the
Canadian Charter of Rights and Freedoms should be considered in the quantification
process.
I argue further, that the current practice of damages quantification has been the
result of the court's over-reliance on "formalist" notions of tort law which has insulated
the area from the social context of law. In addition, I suggest that the acceptance by
courts of economic evidence, which is often reflective of discriminatory norms in the
labour market and our society generally, has had the effect of de-valuing certain members
of Canadian society; in particular women and aboriginal plaintiffs. I demonstrate this
analysis through an examination of cases dealing with young, catastrophically injured,
female and aboriginal plaintiffs. Finally, I suggest that, though an imperfect solution,
currently the only equitable method of quantifying damages for loss of future earning
capacity is to adopt white male earning tables for all young plaintiffs with no
demonstrated earning history.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/10468 |
| Date | 05 1900 |
| Creators | Ghitter, Corinne Louise |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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