This province seeks insurers’ input on joint and several liability reform
March 5, 2019 by Greg Meckbach
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The Ontario government wants to hear from insurance companies on the controversial joint and several liability rule, which some say is unfair to deep pockets defendants.
“What we are looking for is consultation with the lawyers, the insurance industry, et cetera – as to how we can make the system fairer and those consultations will be starting soon in the future,” said Randy Pettapiece, a backbench Progressive Conservative government MPP, in an interview with Canadian Underwriter Tuesday.
When Pettapiece was an opposition MPP in 2014, he tabled a motion calling for a “comprehensive, long-term solution to reform joint and several liability insurance for municipalities.” That passed unanimously but the law has not changed because the 2014 motion was not binding on the government. The Progressive Conservatives replaced the Liberals as the ruling party in 2018.
The issue is Ontario’s Negligence Act, which stipulates that if more than one defendant is found liable, they are “jointly and severally liable” to the plaintiff.
This can be a problem if the defendant who is most liable is broke. Another defendant (even one who is less liable) might still have to pay the entire damage award.
“The courts will just look at a municipal government and say, ‘You can pay. Figure it out but you can do it,’” Pat Vanini, executive director of the Association of Municipalities of Ontario, said in an interview.
In a speech this past January, Premier Doug Ford said the province will launch consultations about the joint and several liability, the Canadian Press reported earlier.
The consultation will be done by the Ministry of the Attorney General and the government will have “more to say about the process and the timing when it starts,” Pettapiece told Canadian Underwriter Tuesday.
He did not promise any changes to the law but did suggest the concerns of both insurers and plaintiffs’ lawyers will be taken into account.
“We are looking for fairness to the system. Those who are hurt or receive devastating injuries need to be looked after,” said Pettapiece, who represents the riding of Perth-Wellington, northwest of Kitchener.
Pettapiece’s riding includes the City of Stratford and several small communities, including Monkton, Listowel, Mitchell and Mount Forest. Before he was elected to provincial office in 2011, Pettapiece was a councillor for the municipality of Perth North.
“We have municipalities that just have a small tax base. If they were ever involved in one of these judgements, it would be devastating from them.”
David Williams, a London Ont. lawyer with Harrison Pensa, has seen both sides of the debate, which has been going on for decades. Williams has represented both plaintiffs and insurers.
“The interests here are very, very significant,” Williams said Monday in an interview “There are losses here and you choosing how to allocate them.”
If the joint and several liability rule is changed and leaves accident victims uncompensated, those losses may have to be borne by the plaintiff or the taxpayer, suggested Williams.
This is because a person with catastrophic injuries may look to taxpayer-funded assistance.
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A quote from the “Law of Negligence and Delicts in Canada” (Stone and Cox, 1946) by J. B. Welson, Member of the English Bar, reads:-
Joint Wrongdoers:
Joint wrongdoers are jointly and severally responsible for the whole damage. That is to say, the person injured may sue any one of them separately for the full amount of the loss, or he may sue all of them jointly in the same action and even in this latter case the judgement so obtained against all of them may be executed in full against any one of them.
But no person who has been made liable has any right of contribution or indemnity against any other person who is a joint wrongdoer with him. This is known as the rule in Merryweather v. Nixon, the case in which it was first laid down in 1799. The result is that any wrongdoer who is compelled to pay the whole or more than his proportionate share of the damage is precluded from making any claim upon his fellow offenders for a fair division of the burden between them. The reason alleged for this rule is the technical one that any such claim must be based on an implied contract between the wrongdoers, and that such a contract is necessarily illegal and void as being made in contemplation of the commission of an illegal act. This reasoning is unconvincing, and though doubts have been expressed as to the rule being applicable to cases of mere negligence, it would seem to be too firmly established to be altered by anything but an Act of Parliament”.
Unless this rule has been altered, changed or replaced, a contractual agreement must be in place among the wrongdoers as to the apportionment of contribution by each to the whole. Otherwise, the payer of the whole is on his own.