Annual Fall Conference
Joint & Several Liability
As plaintiff lawyers, we are familiar with the principles of joint and several liability. When an innocent victim is harmed through the fault or neglect of several wrongdoers, the victim can collect his or her damage award from one or all of the wrongdoers. If one of the wrongdoers is 50% responsible for the loss, (meaning his several liability is 50%) but is unable to pay the damages, the innocent victim can collect the entire loss from the remaining wrongdoers, who are "jointly" liable to the plaintiff for the loss.
This approach ensures the goal of restoring innocent victims to the position they would be in had the wrong not occurred; when one defendant cannot pay his or her several share of liability, the remaining defendants remain jointly liable, so the victim can be fully compensated.
These principles are longstanding in Ontario and the rest of common law Canada. Many consider these principles sacrosanct and untouchable. Be on guard, however, for a well-organized and well-funded lobby headed by chartered accountants, municipalities, and similarly aligned groups, which are pressuring the Ontario government to carve out exceptions to the long standing principle of joint and several liability.
If these lobby groups realize their vision, Ontario would see a much different system, where plaintiffs would no longer be fully restored. The lobby groups propose changes that would restrict innocent victims from recovering their losses when one or more wrongdoers is judgment proof or otherwise unable to pay his share. The changes proposed by the lobby groups are dramatic, jeopardize the rights of innocent victims, and require a serious debate and rebuttal.
The Ontario Trial Lawyers Association is actively monitoring these developments. OTLA will vigorously work to reveal the flaws with the lobbyists' arguments. OTLA will call for empirical data to be shared which will reveal the fallacy of the arguments presented as truth to the Ontario government. Throughout, OTLA will be the sober voice of reason to ensure that the disastrous changes being proposed are not implemented.
In 2009, the Law Commission of Ontario (LCO) undertook a study of the law of joint and several liability. The study was intended to be limited to a discussion about the implications of joint and several liability under Ontario’s Business Corporations Act (OBCA).
Last fall, OTLA Vice-President Andrew Murray represented the association at a preliminary roundtable discussion in Toronto, among a fairly unfriendly crowd of various lobbyists and stakeholders, nearly all of whom advocated wholesale changes to the law of joint and several liability.
Following the roundtable discussions, the LCO released its own Consultation Paper, reviewed changes already made to the Ontario Securities Act and the Canada Business Corporations Act, and sought input concerning changes to the OBCA.
It is important that OTLA maintain a strong voice of reason on this issue. Click here to read’s OTLA’s detailed and comprehensive response to the LCO Consultation Paper.