Date: Fri, 8 Nov 2002 10:51:39 -0500

From: Jason Neyers

Subject: New HL case

Dear Andrew,

I guess from a Canadian perspective the case seems more interesting for two reasons:

1) The Ontario Negligence Act applies to any action "for damages that is founded upon the fault or negligence of the defendant", so it is not limited to situations where the defence of contributory negligence was available at common law. So the question then becomes would contributory negligence be at least a partial defence to an action in deceit given the wording of the Ontario Act (full text below)?.

2) On the company law point, while I agree wholeheartedly that the CA's decision makes no sense, the position that they take about attribution is one that I think would be supported by at least some of Canada's most prominent corporate lawyers/academics, see e.g. the work of Bruce Welling. So this issue is one which might be more alive on this side of the pond than yours.

Cheers,
Jason

Negligence Act, R.S.O. 1990, c. N.1

3. In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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