LCO review of Joint and Several Liability – No Changes Warranted!
July 2011 – Following an exhaustive two-year review of joint and several liability in the context of the Ontario Business Corporations Act (OBCA), the Law Commission of Ontario (LCO) has concluded that changes to the law of joint and several liability under the OBCA is unnecessary. The LCO has recommended that there be no changes at this time.
This is a significant development since many common law jurisdictions have looked at the issue of joint and several liability in tort law generally and, unfortunately, a number of jurisdictions have made changes to joint and several by introducing other kinds of liability such as proportionate liability or caps on damage recovery. Most recently, for example, Pennsylvania passed legislation that, according one observer, reduced joint and several liability to a “list of exceptions.”
Many powerful interests, including the Institute of Chartered Accountants of Ontario and the Association of Municipalities of Ontario, had been pressing for sweeping changes to joint and several liability – not just under the OBCA but in a more general context. Citing hot button examples – such as the so-called “one per cent rule,” and backed by extensive advertising and public relations campaigns – these groups were looking beyond this narrow review of joint and several under the OBCA to press for changes more broadly to tort law.
OTLA was a prominent participant in the LCO process from the very beginning. We submitted a detailed submission which was the most frequently-cited submission listed in the final LCO report. OTLA's efforts and submission was important in voicing the other perspective in this politically charged debate.
With the conclusion by the LCO to maintain the status quo, changes to joint and several liability have been put off – for now at least. But, we know from the examples from states like Pennsylvania, that there are forces at work to undermine the important principles in joint and several liability. We savour the victory but remain wary for the future.