Date: Sun, 5 Feb 2006 22:43:44 -0500

From: David Cheifetz

Subject: Standard of care in contribution proceedings

Dear Colleagues:

In response to Robert Steven's question, I sent him a message that begins, in substance, this way -

---------

This is a long message. It runs to 6 pages printed out.

Your proposition is that, for apportionment, "a different test of 'fault' ought to apply in the context of contribution from that which applies in the context of liability for negligence. Fault should approximate more closely with moral blameworthiness in the context of contribution, and so a more 'subjective' approach is appropriate."

I'll leave, for someone else, the question of whether some or any subjectivity would be appropriate, not the least because of issues surrounding "morality". It seems to me that the answer on current case law is that the Canadian approach to apportionment purports to be objective, at least for adult fault.

If we say that apportionment is ultimately based on the extent of the unreasonableness of the conduct of each person at fault, then I believe we have to say that the process is objective. However, if the apportionment result is not governed by the extent of unreasonableness, but may be modified for "just & equitable" reasons, then there's a principled opening for an argument for subjective factors.

--------

If anybody is interested (common sense might dictate otherwise) I'll e-mail it privately. I didn't undertake the discussion of whether apportionment should be subjective. I merely provided Canadian authority for the proposition that it purports to be objective.

David Cheifetz

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