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Joint & Several Liability Reform

Reforming Joint & Several Liability

Joint and several liability is a component of tort law in Ontario that allows a plaintiff to recover the entire claim for damages from one of several negligent defendants. Simply put, if one of the parties is 50% responsible for the loss, (meaning her/his several liability is 50%) but is unable to pay that portion of the damages, the injured party can collect the remaining damages from the other negligent parties, who are "jointly" liable to the plaintiff for the loss. This concept is established in the Ontario Negligence Act.

Currently, joint and several liability unfairly burdens Ontario municipalities, who are seen as deep-pocketed defendants in lawsuits. As a result, municipal insurance premiums continue to skyrocket. This diverts municipal funds from other essential municipal services and programs, and forces councils to raise property taxes.

Despite numerous failed attempts to reform this aspect of tort law, to date, the Minimum Maintenance Standards (MMS) remains the only relief provided by the provincial government. However, since its inception, the MMS has been under constant attack from defendants trying to circumvent the protection that it affords municipalities.

The principles contained in joint and several liability have long been established as tenets of Canadian law. OGRA therefore believes that there is room to reform joint and several liability while still maintaining it. Building on the efforts of other reform initiatives in Canada, any reform of joint and several liability should incorporate the following principles:

  • proportionate liability where a plaintiff is contributorily negligent;
  • proportionate liability where a defendant is a "peripheral wrongdoer" – a defendant whose fault is limited and secondary when compared to that of other defendants; and
  • the proportionate reallocation of the uncollected share of a damages award attributed to an insolvent defendant.

A reform predicated on these principles will ensure that the benefits of joint and several liability are retained. It will also align such a reform with the other significant precedents where joint and several liability was amended.

Although joint and several liability has been reformed significantly in the United States – it was abolished completely in Alaska, Arizona, Kansas, Utah, Vermont, Oklahoma and Wyoming – Canadians have been more reluctant to undertake reform.

Nonetheless, joint and several liability has already been amended in Saskatchewan. Known as the Saskatchewan Model, this modification of joint and several liability was adopted in 2004. Where there is a shortfall due to one defendant being insolvent and the plaintiff’s own negligence contributed to the harm, the shortfall is to be divided among the remaining defendants and the plaintiff in proportion to their fault. In Ontario, amendments were made eliminate the application of joint and several liability as it applies to car leasing companies.

This model would apply to all types of defendants in all types of negligence claims.

In February 2019, the Government of Ontario announced it was beginning consultations on reform. OGRA continues to monitor the progress being made.