Date: Tue, 28 Feb 2006 21:47:26 -0500

From: David Cheifetz

Subject: Apportionment Principles

Robert

You asked some weeks back about case law supporting the argument that conduct relevant to apportionment may [can] be different, or treated differently, from conduct relevant to liability. I'm paraphrasing but I think I have one aspect of the question.

I completely forgot about a decision discussed on this list, in another context, some months ago: Blackwater v Plint 2005 SCC 58. It was discussed in the context of 2 employers being vicariously liable for the conduct of one employee.

It's also potentially relevant to your question because, ultimately, the SCC (1) held both the United Church of Canada and the Canadian gov't liable on the basis of vicarious liability, only, and (2) affirmed an unequal apportionment of 75% to Canada and 25% to the Church. [paras 64-73] The basis for the apportionment was that Canada had greater control over the joint enterprise [paras 72-73].

It's possibly relevant because some of the impugned conduct wasn't sufficient to produce direct liability; but it was sufficient to affect the apportionment . On the other hand, since it wasn't sufficient for direct liability, it's hard to say how much weight it had in that context, so it's difficult to say if conduct considered at both liability and apportionment levels was given the same or different significance. It might be easier to tell what conduct wasn't considered at all in one question or the other, but I haven't gone back to the trial or provincial appellate reasons to puzzle that out.

Regards,

David Cheifetz

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