C.A. Says No Contribution Claims When Plaintiff Limits Claim to Defendant’s Several Share of Liability

In Taylor v. Canada (Health), the Court of Appeal has dealt with an important issue in the law of apportionment of fault.  The court held that a defendant cannot assert a subsidiary claim (a third party claim in this case) for contribution or indemnity where the plaintiff has limited the claim against the defendant to the latter’s proportionate share of fault. The court did acknowledge that issues of discovery and production might arise in relation to the party insulated from suit. It left these to be dealt with on a case by case basis.

Writing for the Court, Justice Laskin made it clear that the portion of the Court’s 2000 ruling in Martin v. Listowel Hospital, in which it was said that courts cannot apportion fault to non-parties, was obiter and had been “overtaken” by subsequent decisions. It is now beyond doubt, that courts in Ontario can (and must, in cases like this one) apportion fault among both parties and non-parties. (David Cheifetz has been critical of Martin for a while on this point and must now feel somewhat vindicated.)

As luck would have it, we now have one of these cases in the office, but with a twist. The plaintiff has sued two sets of defendants, alleging negligence that resulted in personal injuries. The claim has been expressly confined to the defendants’ several share of liability. There is another obvious tortfeasor from which, in the ordinary course, the existing defendants would have claimed contribution or indemnity. But because the plaintiff’s claim is confined to the defendants’ several share of liability, Taylor makes it clear that a claim for contribution cannot be made.

The twist is that the plaintiff has also sued the other tortfeasor in a separate action and so far, appears to be trying to keep the two proceedings separate. We have little doubt but that, Taylor notwithstanding, the court will order common discoveries and at least trial together, if not consolidation.

However, more diffcult problems of discovery arise where the missing tortfeasor has not been sued (and, on the authority of Taylor, cannot be joined). Certainly, Laskin J.A. was alive to these. It is to be hoped that the courts will quickly develop procedures for obtaining production and discovery from non-parties, as more Taylor types of suits are brought.

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