Date: Fri, 23 Mar 2007 22:15

From: David Cheifetz

Subject: Contributory negligence in strict liability?

In my occasionally disrespectful opinion, the Ontario CA's track record on apportionment issues and the Ontario Negligence Act often leaves much to be desired. If we assume the majority in the Ontario CA was satisfied the plaintiff’s conduct was entirely unrelated to what happened for any blameworthy reason, then the majority is right. Otherwise, it wasn't.

The contributory negligence/fault section of the Ontario Negligence Act specifically refers to actions "founded upon the fault or negligence of the defendant". Section 3 provides

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.

That meant the courts should have considered whether there is now, in Ontario, analogous doctrine of "common law" contributory misconduct - by that, I mean a doctrine analogous to the statutory. And then consider if there was relevant misconduct on the part of the plaintiffs. Ontario courts have already held that there's a contributory fault doctrine applicable to actions for breach of contract. The Supreme Court of Canada said in two recent cases that apportionment doctrines are now part of Canadian common law.

So, yes, in my view, the dissent was right in substance on the law - but I'd characterize it as an inquiry into contributory fault, to avoid any suggestion it's somehow conduct that is tied to conduct that somehow fits the definition of negligence, because that term has defined content which can't apply to the injured person's own conduct.

David

----- Original Message ----
From: "Jones, Michael"
To: Lionel Smith
Sent: Friday, March 23, 2007 5:16:17 PM
Subject: ODG: RE: Contributory negligence in strict liability?

In English cases of employers' liability based on the common law action for breach of statutory duty contributory negligence is routinely pleaded, even where the duty can be said to fairly strict.

And, under the Animals Act 1971, s. 2(1) provides for a very strict form of liability for animals belonging to a dangerous species (which clearly covers tigers), yet s. 10 permits the defence of contributory negligence.

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