Dear Colleagues,

I am aware of only one Commonwealth decision in which a court has suggested that the rationale for the right of contribution between tortfeasors B and C is the wrong committed by one or the other of B or C against the other when each does not pay their share of A's loss before their obligations to A crystallise so as to include some portion of the other's share of A's loss.

Are any of you aware of any Commonwealth or or other cases that suggest that the right of contribution (between any form of wrongdoer) is somehow based on a wrong committed by the contribution defendant against the contribution claimant, the wrong being the former's failure to pay the former's share of the injured person's loss before the injured person obtains a judgment against, or settles with, the contribution claimant for an amount that includes (at least some portion of) the contribution defendant's share.

I very much hope the consensus answer is "NO".

I pose this question because, if one accepts the current view of UE (as I understand it) or at least Peter Birks' view, the UE remedy view of contribution requires one to accept that contribution is not based on any wrong committed by the contribution defendant against the contribution claimant.

I think I am correct in stating that Charles Mitchell very elegantly elided (as being unnecessary to decide) in c 3, paras. 3.01 - 3.03, the issue of whether B and C commit some sort of relevant to the classification issue "wrong" as as against one another by not paying their fair share to A, when he placed contribution in the law of unjust enrichment and stated that contribution claims should be classified "as claims in unjust enrichment, regardless of whether they can also be classified as equitable claims, statutory claims, claims at common law". [para 3.03 at 45]

There is an Ontario Court of Appeal that could be taken to assert that since it holds that the contribution right arose out of the failure of C to pay C's share to A before B's liability to A "crystallized" and so included C's share: See Placzek v. Green, 2009 ONCA 83 at [32]-[33]. The issue arises only if "failure" is understood to mean failure in relation to a duty to pay, rather than merely a marker identifying a relevant event for statute interpretation purposes.The text and context suggests the panel would have said "duty" if the question was put to them; however, the better way to understand the case, the context of obligations law in general and UE law in particular, is the latter: the event. The issue for the court was when the "cause of action arose", for the purpose of limitation of action legislation, as that determined whether a longer or shorter limitation period applied, in a case where the law had changed after the incident in which A was injured but before A's action commenced against B. if the cause of action for contribution arose when A was injured, the older longer limitation period applied. The contribution claimant wanted the longer period. The ONCA didn't need to use the language it did to characterise the nature of the contribution claim - it didn't have to at all since the only issue was when the cause of action was deemed to arise for the purpose of the transition rules between the old law and the new; however it did. Other paragraphs of the reasons make it impossible to be certain whether the panel understood contribution to be a remedy in Unjust Enrichment or a remedy in Restitution / Equity that remedies an unjust enrichment.

Off list, if you prefer, of course.

Thank you in advance.

Best wishes for continued good health for you, your families, and your friends in these trying times.

David Cheifetz