David Cheifetz, author of the well-known text, Apportionment of Fault in Tort and of numerous articles in legal journals, is a frequent commentator about posts on this site. Today, he sent us a comment about the recent decision of the Court of Appeal in Hockley v. Riley in which he has discussed what he says is “another example of a court seemingly confusing ‘joint liability’ with ‘joint tortfeasor’ status.” What follows is Mr. Cheifetz’ remarks about the decision, since we did not post anything about this particular decision. (This is a first for us: posting a case comment that originated entirely outside our firm. However, we welcome other contributions, with the caveat that we will retain editorial control over what appears on the site.)
Mr. Cheifetz had this to say about the ruling:
It’s another example of judges missing the point about the distinction between joint tortfeasors and concurrent tortfeasors who aren’t joint tortfeasors and missing what this means to joint liability.
Look at para 18. Did Cronk J.A. mean that Mrs. R. was both a “joint tortfeasor” and not a “joint tortfeasor” but only a “concurrent several tortfeasor”? Either she had the common purpose or design to abuse or she didn’t.
[Para. 18 of the reasons is reproduced below.]
[18] On the findings of the trial judge, therefore, the appellant engaged in tortious conduct against the respondent distinct from that of her husband and acquiesced in or furthered her husband’s wrongful conduct. These findings are sufficient to fix the appellant with liability on a joint and several basis, rendering her fully liable to the respondent for the damages awarded by the trial judge. Her actions, as found by the trial judge, were those of a joint or an independent concurrent tortfeasor.
Cronk J.A. must have meant “concurrent several tortfeasors” by the phrase, “independent concurrent”. In order to be a joint tortfeasor, there must be a common design (purpose). Was there actually a finding that it was Mrs. R’s purpose to abuse the plaintiff? If not, then the first two sentences recapitulate s. 1 of the Negligence Act, which makes concurrent several tortfeasors (i.e., tortfeasors who cause the same damage) jointly (and severally) liable but doesn’t turn them into joint tortfeasors. (See Reaney v. National Trust Co., [1964] O.R. 461 (H.C.J.). There are more recent cases, too.)
It’s not clear if the C.A. and the trial judge meant “or” as “and” or as “alternative”. The evidence recounted shows that the trial judge found independent fault on Mrs. R’s part. Joint tortfeasor status, however, would mean she and Mr. R had a common purpose or design – his abusing the plaintiff. Maybe that’s what they and the trial judge meant by referring to her deliberate failure to prevent the abuse.
If the Rs were “joint tortfeasors”, then his acts would be deemed to have been hers. In that case, the whole analysis of whether she should be held liable for punitives is somewhat different. The bad enough acts are deemed to be hers (legal fiction) but she still didn’t actually carry out the assaults. Is she still going to be punished for what she did? Does the fact she’s also deemed to have committed the assaults (if a joint tortfeasor) make a difference to the analysis? If so, why? The joint liability of joint tortfeasors isn’t vicarious liability (since the act isn’t imputed in vicarious liability) and the S.C.C. and the C.A. have said there’s no vicarious liability for punitive damages. Nonetheless, there are fictions involved in both types of liability and the less involved the “innocent” joint tortfeasor is in the conduct that merits punitive damages, the more the situation approaches vicarious liability and punishment for the conduct of others.
There is Ont. C.A. authority for punitive damages being awarded against joint tortfeasors but even there, the evidence has to be considered against them separately. See: Townsview Properties Ltd. v. Sun Construction and Equipment Co. (1974), 7 O.R. (2d) 666 at 669 where, in respect of what should be characterised as either a joint tort (joint venture) situation or a principal-agent relationship, Kelly, J.A. wrote:”… the trial judge erred in failing to consider the evidence against each of these defendants separately.”
So, either Hockley affirms (without mentioning) the proposition in Townsview – mere status as joint tortfeasor is not enough for punitive damages on the assumption the Rs were joint tortfeasors; or, on the assumption they were not joint tortfeasors, says nothing new. It merely confirms orthodox law that punitive damages require appropriate misconduct by the defendant from whom they’re sought.