7.10The rule of joint and several liability was considered a number of times in Canada between 1979 and 1998, both at federal and state level, and both generally and as it applies to specific sectors.
7.11It would be fair to say that the overwhelming outcomes of these various reviews were that joint and several liability should be retained, although there have also been some sector specific reforms. For example, the Canadian Business Corporations Act 1985 was amended in 2001 to provide a modified proportionate liability regime for certain forms of misconduct under that Act.
7.12Two provinces, British Columbia and Saskatchewan, have also made reforms to the rule of joint and several liability in cases where there is contributory negligence on the part of the plaintiff. In the rest of the common law provinces, joint and several remains the general rule for negligence.
7.13The Negligence Act 1996 (British Columbia) provides as follows:
Apportionment of liability for damages
(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.
(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.
(3) Nothing in this section operates to make a person liable for damage or loss to which the person's fault has not contributed.
7.14The result of this provision is that there is proportionate liability where the plaintiff is found to have contributed to the loss. Joint and several liability remains under the common law where the plaintiff is not at fault.
7.15Similarly, in Saskatchewan, the Contributory Negligence Act (Chapter 31 of the Revised Statutes, 1978), provides that:
Apportionment of damage or loss
2(1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault, but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
(2) Nothing in subsection (1) operates so as to render any person liable for any damage or loss to which his fault has not contributed.
7.16As in British Columbia, the Saskatchewan modification only applies if the plaintiff contributed to the loss through his or her own negligence. In 2004 this legislation was amended to provide for the apportionment of uncollectable contributions:
Apportionment of uncollectable contribution
3.1(1) In this section, “other persons found at fault” means:
(a) the person suffering the damage or loss if that person has been found to be at fault; and
(b) the other persons found to be at fault from whom the contribution can be collected.
(2) If the court is satisfied that the contribution of a person found at fault cannot be collected, the court shall, after determining the degree in which each person is at fault, make an order apportioning the contribution that cannot be collected among the other persons found at fault, proportionate to the degrees in which they have been respectively found to have been at fault.
(3) This section applies only to damages or losses caused or contributed to by a person’s acts or omissions that take place on or after January 1, 2005.
7.17This change introduces proportionality to allocation of uncollectable shares. Since these provisions came into effect the defendants, and in cases of contributory negligence the plaintiff, share the risk of an insolvent defendant in accordance with their contribution to the wrong. The risk is not borne wholly by a negligent plaintiff (as in British Columbia) or each defendant jointly and severally (as under pure joint and several liability). The following example illustrates how this might operate in practice:
- The loss is quantified at $7000. The plaintiff is found to be 10% at fault, D1 is 30% at fault and D2 is 60% at fault. Therefore D1 is liable to the plaintiff for $2100 and D2 is liable to pay $4200 (the sum being equal to $6300, or 90% of the total loss).
- If D1 becomes insolvent, the uncollectable contribution is $2100. In accordance with their proportion of wrongdoing, D2 will be required to pay an additional $1800 while the plaintiff will bear the remaining $300 of unrecoverable loss.
- If D2 becomes insolvent, the uncollectable contribution is $4200. In accordance with their proportion of wrongdoing, D1 will be required to pay an additional $3150 while the plaintiff will bear the remaining $1050 of unrecoverable loss.
7.18In 2002, the Attorney General for British Columbia undertook a review of civil liability. This recommended that the rule of joint and several liability be abolished entirely. This recommendation was not well received by the public, and no changes were made. The Law Society of British Columbia commented that:
It is not clear that it is in the public interest to change the system to make innocent plaintiffs bear the risk of a defendant's insolvency. In the absence of evidence that the current law is not operating well, it is difficult to postulate on possible alternatives for reform. If government's concern is with a particular industry (for example, insolvent defendants in the construction industry) consideration could instead be given to legislative changes in the industry concerned, rather than re-writing the law of negligence as a whole. For example, it may make more sense for government to consider requirements for performance bonds or mandatory minimum insurance, rather than embarking on a general revision to the law of joint and several liability.
7.19Overall it appears that Canada, like the United Kingdom, is adopting a cautious approach to reform. This position contrasts sharply with their neighbours, the United States of America, which is discussed in more detail below.