Law Times

LAW TIMES 10 COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 www.lawtimesnews.com BY MEAGAN GILLMORE For Law Times S ome personal injury law- yers are concerned after Ontario Premier Doug Ford announced recently that the government is considering reviewing joint and several li- ability. Changing joint and several liability may make it harder for injured parties to be fully com- pensated after an accident, they say. The premier made the com- ments while addressing the Rural Ontario Municipality As- sociation's annual conference in January. Some personal injury lawyers say such a review is unneces- sary, especially when previous reviews have decided that no changes should be made. "I would personally prefer that they just leave it the way it is," says Peter Cronyn, a part- ner at Nelligan O'Brien Payne LLP in Ottawa. "I think it's a very fair and appropriate way of dealing with losses where an in- nocent party will have the best opportunity of being placed in the position where they would be if the event hadn't happened by the combined activities of the wrongdoers. It's been in place for over a century. It's worked well for that period of time." The Negligence Act says that when someone is hurt because of the negligence of two or more persons, the defendants are "jointly and severally liable to the person suffering loss or dam- age for such fault or negligence, but as between themselves, in the absence of any contract ex- press or implied, each is liable to make contribution and indem- nify each other in the degree in which they are respectively found to be at fault or negligent." This means that if one defen- dant can't pay their portion of the costs, the other defendants have to pay for that portion as well as their own. Potentially, this could mean someone who is found one per cent guilty could have to pay all the costs. "Joint and several liability is a protection measure to ensure that somebody who has been wrongly injured through no fault of their own [gets] prop- erly compensated and put in the position they would have been had the wrongful incident not occurred, which is what the purpose of negligence law is," says Shane Katz, who practises with Singer Kwinter in Toronto. In his experience, he says, most cases settle out of court. "Where one of the defendants is unable to satisfy a judgment or is judgment proof, then the other defendant, if they are found to be at least one-per-cent liable, can be exposed to enforcement of the entire judgment," says War- ren Whiteknight, an associate at Bergeron Clifford LLP in Kings- ton, who acts only for injured parties. In his experience, he says, one defendant likely won't have to pay all the costs when multiple parties are negligent. "It is common? No. Is it a real risk? Yes," he says. "Is it an increasing topic of importance given the shrinking accident benefits? Yes, absolutely, because those people that are most in- jured in car accidents — who need the most care — have now half the amount of benefits that they did just a couple of years ago. Plaintiff lawyers have the obligation to look for that extra insurance." However, Andra Maxwell, deputy city solicitor and litigator at the City of Mississauga, says the current system of joint and several liability puts municipali- ties at risk for having to pay for other wrongdoers' negligence. "Joint and several liability puts municipalities in the posi- tion of the so-called 'deep pock- et' defendant," she says. Lawyers may feel pressure to include mu- nicipalities as a defendant be- cause they know they have more resources available to them than other defendants, she says. Municipalities do try to pre- vent injuries, she says. "Municipalities are always engaged in risk management, and that also comes with a cost," says Maxwell. "What we're talk- ing about with joint and several liability is the municipalities po- tentially picking up the tab for somebody else's responsibility. Increased risk management is not going to protect us from someone else's negligence and a co-defendant's insolvency. Risk management can only improve our exposure to our own liabil- ity." Mississauga, like many mu- nicipalities, is self-insured, she says. It's difficult to say how much of insurance increases are a di- rect result of joint and several liability, says Maxwell, but what is clear is that insurance costs are rising. "Legal expenses and the dam- ages awards are paid by the city, not the insurer, in the majority of cases, which means those ex- penses are funded by the resi- dents through property tax dol- lars," she says. "Those tax dollars could be used to provide other social services." Municipalities have often been concerned about poten- tially paying more when other defendants cannot afford their portion of the costs and that joint and several liability is caus- ing them to pay more for insur- ance. Ford referenced this in his announcement. "We will gather the facts and fix what needs fixing," he told the conference. "We have heard your concerns about increasing insurance costs and the impact that these costs can have on property taxes, on municipal taxpayers and on the average Ontario resident." "We need to make sure that Peter Cronyn says he thinks a review of joint and several liability is not needed. Joint and several liability review announced FOCUS Untitled-2 1 2018-06-04 3:42 PM See Incentive, page 12

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