The Court of Appeal for Ontario recently handed down an important decision dealing with the ability of a defendant tortfeasor to third-party alleged joint tortfeasors pursuant to section 5 of the Negligence Act (Ontario). Shortly put, a defendant in a negligence action cannot maintain a third-party claim for contribution and indemnity against alleged joint tortfeasors if the plaintiff has limited their claim to damages attributable to the defendant’s degree of fault.
On this basis, the Court in Taylor v. Canada (Minister of Health) (2009), 95 O.R. (3d) 561 upheld the Motion Court’s decision to strike out the Third Party Claim under Rule 21.01(1)(b) as failing to disclose a reasonable cause of action. The Statement of Claim indicated that the defendant was liable only to “those damages that are attributable to its proportionate degree of fault”. Accordingly, no contribution rights arose, because the defendant was not required, in any event, to pay more than its proportionate share of the plaintiff’s potential damages (see paragraph 20 of the decision).
The decision is also noteworthy for the Court’s apparent acceptance of the view that its earlier ruling in Martin v. Listowell (2000), 51 O.R. (3d) 384, to the effect that a Court has no jurisdiction to apportion fault against a non-party, was not the correct view of the law (if it ever was). In doing so, the Court pointed to subsequent jurisprudence to the effect that section 1 of the Negligence Act would permit a Court to apportion fault against a non party. According to the Court, “permitting apportionment without insisting that they be parties will mean fewer parties at trial, a shorter trial and reduced costs”.
This decision is of considerable importance both when drafting Statements of Claim and when preparing Statements of Defence, in the context of a negligence action. A plaintiff who wishes to confine their claim to a particular entity or class of entities, without the risk of the addition of third parties (whether for business and/or legal reasons, e.g. a prior settlement agreement), should clearly indicate in the Statement of Claim that the damages being sought are those attributable only to the defendant’s proportionate degree of fault.
Conversely, when responding to a Statement of Claim without a limit on the damages being claimed vis-à-vis the defendant, it remains open to the defendant to third-party any other potential joint tortfeasors.