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Date: Wed, 26 Sep 2007 01:08 From: David Cheifetz Subject: Ontario and Several (Proportional) Liability
Dear Colleagues: For those of you who have to teach Ontario tort law, or care about it: The Ontario Court of Appeal seems to have just declared that, at least for tort, several (proportional) liability, not joint and several liability, to the injured person as between two or more tortfeasors may be held to exist where a basic principle of fairness requires this, notwithstanding section 1 of the Negligence Act and notwithstanding Athey v Leonati. The case is Misko v Doe. The key portion of the reasons is para 23:
Now, that's not quite the Blackwater passage and some could say it was used somewhat out of context because what Blackwater was talking about is what injuries each of the wrongdoer's conduct caused P, not the nature of their liability for injuries jointly caused; but it's likely an argument can be made that the quotation can be used as the Ontario CA used it. This is the full text of para. 80:
It seems it's possible to read the part the CA quoted as also justifying, on a normative base, in some cases, etc ... only several (proportional) liability among the multiple wrongdoers not orthodox "joint and several" liability, notwithstanding the statute, notwithstanding Athey. And, by the way, notwithstanding some 400 or more years of English and Canadian common law, since the liability in solidum aspect of joint and several liability of multiple concurrent tortfeasors to the injured person, which is what's involved here, isn't a creation of the Negligence Act. On the other hand, Vaughan Black pointed out, in 2002, in "Policyization", that the Supreme Court of Canada seemed to be prepared to toss 400 years of common law jurisprudence on the meaning of but-for out the window. If the SCC is prepared to do that, should Ontario's CA be able to be equally free with some 400 years of common law jurisprudence about liability in solidum. (To be fair, I haven't checked. It might be less. I do know that in 1988, the Ontario Law Reform Commission, in its Report on Contribution Between Wrongdoers and Contributory Negligence, came out strongly against changing that aspect of Ontario law.) Misko involves the status of a third party claim for contribution that had been struck out. M was in two accidents. M settled the first. M gave D, the tortfeasor in the first accident a release under which M promised to not sue anybody who could claim against D in relation to harm allegedly also caused by the first accident. (I'm paraphrasing of course.) Then sued the second. One of the 2nd accident defendants issued a third party notice against D claiming contribution. The third party claim was struck out. The Ontario CA affirmed the dismissal for different reasons. If one wants to be very careful, the key reason - one could say the only reason - that the Ontario CA needed to give for dismissing the 3rd party claim was that M was held to be claiming (and the CA said it wanted it made clearer in the in the statement of claim that that was all that M was claiming) only loss caused by the 2nd accident. On that basis, there was no need for contribution. The CA gave some other reasons, too, for deciding that in this case the defendant claiming over could only be held liable for his proportional share, and therefore didn't need to claim contribution and therefore had nothing for which to claim over. It missed a big one, too, I think, but neither that nor the other reasons are germane to this note. There are also other aspects of the case that will set the cat amongst the pigeons for defence lawyers. For example I anticipate seeing defences that will contain an allegation something like: "The defendant pleads that, as a matter of fairness, the amount of his/her/its liability, if any, to the plaintiff, if the defendant is held to be liable, should be limited to no more than this defendant's proportional share (several share) whatever." On the other hand, British Columbia has long had several liability in tort where the injured person is also at fault. Ontario's variation is just a broader version, right? If there may be proportional, not joint, liability amongst concurrent tortfeasors in cases where fairness (justice) requires it, does the same principle apply in other areas of concurrent wrongdoing? There, there isn't either a statute or an Athey which has to be overcome. What about the cases of concurrent harm caused by separate breaches of individual contracts. For those who see connections, it's at least plausible that somebody in the CA has been reading along in “Scraping”, realized that there could be a problem squaring section 1 of the Negligence Act problem with proportional liability under Resurfice material-contribution, and decided to lay the groundwork for dealing with that problem in due course. Or, maybe not. Regardless, there are interesting times ahead in Ontario.
Cheers, ---------------------------
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