“At least one percent liable”?

Recently, I read Saldana v Caruana et al., 2015 ONSC 4426 (CanLII), a decision of Justice Mario D. Faieta. On a motion for summary judgment, His Honour ruled that a defendant was “at least 1% liable” for a motor vehicle accident. Does this finding bind the trial judge or jury?

The motion had been brought by Intact Insurance which had been sued under its uninsured motorist coverage. The plaintiff was a passenger in a car that was involved in a collision with an unidentified automobile. The driver of the plaintiff’s vehicle was named as a defendant, as was Intact.

Intact moved for summary judgment to dismiss the action against it. (If the identified defendant (the driver of the car in which the plaintiff was a passenger) was held liable to any degree, then Intact’s uninsured motorist coverage would not have to respond.)

In this case, the identified motorist (Caruana) had also moved for summary judgment, seeking a dismissal of the action as against him.

In the result, Justice Faieta granted Intact’s motion and dismissed Caruana’s motion. As mentioned above, His Honour ruled that Caruana was “at least 1% liable” for the collision. The result is that Caruana’s insurer will pay the plaintiff’s entire claim. By virtue of “the one percent rule”, even if, at trial,  Caruana is indeed found only one percent liable.

What struck me as odd about this case is that the trial judge or jury is now limited in the findings that can be made.

What if the judge or jury were to come to a different conclusion? What if, at trial, the trier of fact were of the view that Caruana (or anyone in his position) was not liable at all?

The “one percent rule” comes from s. 1 of the Negligence Act:

Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

So, “the court” is supposed to determine the degree of fault or negligence. Not several courts. The evidence at trial is bound to be at least somewhat different from the evidence at the motion for summary judgment. It might be considerably different. How can it be that the trial judge or jury can be constrained by findings made by another judge, on different evidence? Not sure…


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