This past week, the Ontario Liberal government publicly indicated that the government isn’t planning on changing the province’s law on joint and several liability. This is welcome decision for the rule of law in Ontario. Joint and several liability has been part of the common-law legal system for centuries. Joint and several liability means that if there are more than one defendant and both are found by a judge or jury to be responsible for causing the injuries to a plaintiff, both defendants are liable to pay all of the damages to the plaintiff. For example, if one defendant is found 75 percent at fault and a second defendant is found 25 percent at fault, and one of the defendants cannot pay its proportion of the damages, the other defendant must pay all of the damages to the innocent plaintiff and seek reimbursement from the other non-paying defendant. At first blush this may see unfair. However, think of the alternative; the completely innocent injured plaintiff not receiving the compensation that has been awarded and is needed. The comparison must be between a defendant who has been found by a judge or jury to have at least contributed to causing the plaintiff’s injuries or the innocent plaintiff. Remember, if the defendant is completely absolved of any wrong doing, the defendant doesn’t need to pay; joint and several liability only applies if the defendant is at fault to some degree.
The Association of Municipalities of Ontario (“AMO”) and its insurers have been lobbying the Provincial Government to make restrictive changes to the law that would permit municipalities to escape paying innocent injured victims. However, the AMO has produced no empirical evidence to support its argument that any increase in insurance premiums is solely related to joint and several liability. Indeed, in Ontario, most defendants have insurance. Municipalities are generally included in lawsuits as co-defendant when there has been a collision on a snowy or icy public roadway.
In these cases, the defendant driver’s insurer will pay the driver’s proportionate negligence up to the driver’s policy limits. The municipality’s insurer will typically only be required to pay more than the municipality’s proportionate fault in the most serious cases. These cases are simply not that common. The AMO and its insurers are trying to save money on the backs of those innocent accident victims most in need.
In recent submissions to the Ministry of the Attorney General, OTLA noted that the Ontario Law Reform Commission in 1998 concluded that, “…any unfairness to a defendant flowing from joint and several liability was outweighed by the unfairness to an innocent plaintiff”.
In a recent interview, OTLA president Steve Rastin highlights the analysis done by the Law Commission of Ontario, which looked at joint and several liability in the context of the Ontario Business Corporations Act from 2009 to 2011, and recommended that no changes to joint and several liability be made. A copy of the report can be found here.
Keep in mind that absent joint and several liability, the injured victims will still need long-term medical care. The difference is that the private insurance companies will transfer these costs to the tax payers of Ontario through the Ontario Health Insurance Plan. For now at least, a centuries old doctrine of law will remain in Ontario protecting innocently injured accident victims.
Contributed by Kris Bonn, an OTLA Director and lawyer practising with Bonn Law Office PC in Trenton, ON.