Date: Sat, 21 Oct 2006 09:43:53 -0400

From: David Cheifetz

Subject: Strict Liability and Contributory Negligence

As many of you will know, the problem and reason why the dissent had to fall back to first principles, justice, and policy is that the contributory fault provisions of older forms of apportionment statute use wording which taken literally restricts the application of the legislation to actions based on fault. The Ontario apportionment legislation - aka s. 3 of the Negligence Act - begins "In any action for damages that is founded upon the fault or negligence of the defendant". Nonetheless, I suppose it might have been worth Borins JA mentioning - since the majority had said they weren't going to deal with the topic as it wasn't necessary to do so - that the Ontario CA, some 30 years ago, had held (albeit in obiter) that "fault" in the contribution section of the legislation "includes a breach of statute or other act or omission giving rise to a liability in tort whether negligent or not" (Dominion Chain 68 DLR (3d) at 390). The dictum is little quoted; however it's easily found.

It probably won't come as a surprise to some that I agree that contributory fault apportionment should apply even where the basis for liability is "strict". (At least I'm consistent, there, for whatever 25 plus years of consistency is worth.) However, I stronger academic authority would be Glanville Williams, Joint Torts etc, section 79, p. 326.

I suppose it's a matter of perspective whether Lewis Klar has "little to contribute to this issue" (Cowles, para. 212). I, for one, would have thought that Klar, Tort Law (3d) at 461-462 and text associated with fns 35-37, though but a few words, would be somewhat more than "little" substance. There's this:

Contributory negligence ought to be an available defence in all tort actions [fn 36]. There may be situations in which the wrongdoing of the defendant is so serious, and that of the plaintiff so trivial in comparison, that the court will not choose to apportion. This, however, ought to be choice which is available. [fn 37]

If one is going to argue for the the contributory fault partial defence even in strict liability causes of action on grounds of justice and social policy (Cowles, para 219) because Ontario (and Canadian) apportionment legislation tends to be drafted in such a way as to literally restrict the legislation to actions based on fault or negligence, it probably wouldn't hurt to mention that both law reform groups and the Uniform Law Conference of Canada have recommended that the contributory fault defence apply to strict liability. (Klar does: p. 462, fn 37).

And, of course, there's the analysis of the Supreme Court of Canada in Bow Valley Husky [1997] 3 S.C.R. 1210 in which the SCC eliminated the contributory fault bar in maritime law. That analysis, even though in the context of a fault (negligence) case, makes it explicitly clear that the presumption is going to be in favour of apportionment in all cases where the harm is caused by the legally cognizable misconduct of more than one person, including the injured person.

On the analogy front, at least in Canada, there's also better and more longstanding example (than dog bite / animal legislation) of statutory recognition of the use of contributory fault in strict-liability based claims. For example, in Ontario employees whose employment is not subject to workers' compensation legislation can sue their employers and others. They do not need to establish fault to succeed. They will succeed if the injury was caused by a defect in the workplace or machinery, even if the defect isn't due to fault: where "the worker is injured by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises used in the employer’s business or connected with or intended for that business" - Workplace Safety & Insurance Act, s. 114.(1).1 (Negligence is specified in subsequent section.) However, contributory negligence is a partial defence: s. 116(3) & 116(4): "In an action for damages for an injury that occurs when a worker is in the service of an employer, contributory negligence by the worker is not a bar to recovery ... The worker’s contributory negligence, if any, shall be taken into account in assessing the damages in such an action."

In passing, I mention that there is a one-generation-old Canadian text which specifically discusses the problem of contributory fault and strict liability in the context of the Ontario legislation. I doubt Borins JA forgot that. However, it's very true that the discussion is light on doctrinal analysis. (I was younger, then, and thought I was writing for practitioners with even shorter attention spans than mine.)

David

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David Cheifetz
Bennett Best Burn LLP

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From: Jason Neyers
Sent: October 20, 2006 5:21 PM
Subject: ODG: Strict Liability and Contributory Negligence

Colleagues:

For an interesting case dealing with strict liability (for dangerous animals) and contributory negligence see, Cowles v. Balac & African Lion Safari. (The interesting bits are in the dissent, by the way).

(As coincidence might have it, I was at African Lion Safari several weeks ago -- glad I took the tour bus and not my car!).

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