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Date: Sun, 5 Mar 2006 15:12:49 -0500 From: David Cheifetz Subject: Apportionment Principles - Contributory Fault
Dear Colleagues: The Ontario CA has just released reasons in (what some might consider) an interesting case dealing with contributory fault apportionment where the plaintiff's fault went to both how the accident occurred and the extent of his injuries, an aspect of the fault of (one of) the defendants was relevant to the significance of the plaintiff's conduct, and the jury wasn't properly instructed on that aspect. In Pilon v Janveaux, P and J became extremely drunk at a tavern. P and J then left in J's car, J driving. Not surprisingly, there was an accident - a single vehicle accident. P was seriously injured. Even less surprisingly, P sued J and the tavern. The jury found P to have been 35.5% at fault. J and the tavern had admitted liability. P appealed. In the end result, the Court of Appeal reduced P's percentage to 21.3%. That strange figure is the result of the CA's conclusion that the jury hadn't been adequately instructed on the issue of the duty of care that the tavern owed to P as a patron. The CA held the appropriate consequence was to apportion the 35.5% in the ratio of 60-40 as between P and the tavern; hence 21.3% to P. The links, below, are to the two parts of the Ont CA's reasons. http://canlii.org/on/cas/onca/2005/2005onca10747.html
I'm also listing cites to the first of the appellate reasons, and the trial reasons, in case you have eCarswell access or the paper reports. There are headnotes, there. 2005 CarswellOnt 5660, 22 M.V.R. (5th) 223 (the November 2005 Ont CA reasons); 2002 CarswellOnt 1696, 27 M.V.R. (4th) 24 (the 2002 trial reasons). There are trial reasons because, though the case was tried with a jury, the judge delivered reasons on the plaintiff's motion for a mistrial and the defendants' motion for judgment in accordance with the jury's answers to the questions. The plaintiff's motion was dismissed. The defendants' was granted. As some of you know, I've taken issue, before, with the Ontario Court of Appeal's questionable jurisprudence on apportionment and Negligence Act issues, including an unfortunate tendency to make pronouncements inconsistent with prior jurisprudence supposedly binding on it under principles of stare decisis. In this case, it may well be that the reapportionment end-result was appropriate. That depends on the evidence, which I've not seen and the CA did. I have my doubts about the jurisprudence. An interesting sidelight is that the respondents argued that the mistake, if relevant, should result in nothing more than a reapportionment of fault as between J and the tavern, leaving P's 35.5% unaffected. That suggests that there was a falling out amongst the insurers of the defendants on the division between J and the tavern, once they realized that the CA might say the jury had failed adequately consider some aspect of the tavern's conduct so they asked the CA to resolve it for them. I suppose it's fortunate for the CA that the defendants had admitted liability; otherwise it might have to consider how J's conduct affected the tavern's duty to P as a patron. In any event, not surprisingly, and I believe correctly, the CA rejected the defendant's submission: see paras 9 and 10 of the recent reasons. (The question of J's and the tavern's separate shares wasn't an issue at trial. J and the tavern had determined that issue, privately. Whatever that division was isn't mentioned in the trial reasons).
Good reading, David Cheifetz
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