Contributory Fault & Apportionment Among Wrongdoers Consultation

The Last Clear Chance doctrine was developed in a time where the common law did not allow a plaintiff to be indemnified for a loss which they had contributed to even in the slightest degree. However, a plaintiff could recover the total of his loss if the defendant had the 'last clear chance' to prevent the loss. This all or nothing approach could lead to outcomes inconsistent with the 'degree of fault' approach in the SK legislation. The doctrine has been explicitly abolished by B.C., Alberta,  and P.E.I. legislation, the New Brunswick Court of Appeal, and the Uniform Contributory Fault Act.

The Saskatchewan Court of Appeal most recently discussed the last clear chance doctrine in Anderson v Braun (2017 SKCA 93), in response to the appellant’s argument that s 6 of the CNA allows courts to apply the last clear chance doctrine. In response to this argument, the Court stated:

The Court ultimately declined to decide whether the doctrine still exists in Saskatchewan.

Clarifying the uncertainty in the law surrounding whether the last chance doctrine is applicable in Saskatchewan would not prevent a court from finding that a defendant’s negligence was not a proximate (or reasonably foreseeable) cause of the accident. As Professor Klar has observed:

Intentional torts result from an intentional and wrongful act committed by a tortfeasor. The tortfeasor may or may not have intended harm to occur as a result of their wrongful act, but the act must have been intentional, or in some cases, negligent. Intentional torts include torts such as: battery, assault, false imprisonment, intentional infliction of mental suffering, deceit, fraud, trespass, and conversion.

Contributory negligence has been held to be applicable to a variety of intentional torts in several common law jurisdictions in Canada. In British Columbia, courts have interpreted “fault” in British Columbia’s contributory negligence legislation to include intentional torts such as assault and slander. The Ontario Court of Appeal has held that Ontario’s legislation applies to trespass, and that fault incorporates “all intentional wrongdoing” and “other types of substandard conduct.” Alberta Court of Appeal and B.C. Supreme Court have held that contributory negligence does not apply to the tort of deceit, and fraud respectively. There are varied approaches between the jurisdictions as to when to apply contributory negligence in battery claims. 

Apportioning some degree of fault to a plaintiff in an intentional tort case can be difficult as “the exercise always amounts to suggesting the victim of an intentional act is responsible for his or her own damage, even though that damage was the result intended by the defendant.” (Wilson v Bobbie (2006), 394 AR 118 (QB)). This difficulty is more pronounced in cases where the defendant has deliberately and intentionally injured the plaintiff.

Professor Klar has suggested that contributory negligence should be available for all intentional torts, stating: "There may be situations in which the wrongdoing of the defendant is so serious, and that of the plaintiff so trivial in comparison, that the court will choose not to apportion. This, however, ought to be a choice which is available."
(Lewis N. Klar, Tort Law, 5th ed (Toronto- Thomson Reuters Limited, 2012))

The Alberta Law Reform Institute was of the view in 1979 that the liability between trustees and beneficiaries was adequately covered by the law of trust and thus did not recommend that contributory negligence be a defence to breach of trust. The Alberta Law Reform Institute did, however, conclude that contribution among tortfeasors should apply to breaches of trust.

The Uniform Contributory Fault Act does not include breach of trust in its definition of fault and thus contributory negligence is not applicable.

The Ontario Law Reform Commission considered this issue and also declined to recommend that apportionment legislation extend to breach of fiduciary duty and breach of trust, citing the higher standard expected of a fiduciary duty compared to a duty of reasonable care.

More recently, the Manitoba Law Reform Commission has taken the same position as the Ontario Law Reform Commission and has declined to recommend apportionment legislation rendering contributory negligence applicable to breaches of fiduciary duty, stating:

"In the Commission’s opinion, it is consistent with principles of fairness to take the fault of the plaintiff into consideration as a relevant factor in appropriate cases of breach of fiduciary duty. However, the courts’ equitable jurisdiction currently provides the flexibility to achieve justice and fairness in all of the circumstances, and the Commission does not recommend statutory intervention. Equitable doctrines are being applied satisfactorily by the courts, and should be allowed to continue to develop."

Courts in British Columbia and Manitoba have held that their province's contributory negligence legislation does not apply to breaches of fiduciary duty. The remedies for breach of fiduciary duty are, however, discretionary. The Ontario Court of Appeal has held that "plaintiffs should not be able to recover higher damage awards merely because their claim is characterized as breach of fiduciary duty as opposed to breach of contract or tort." (Martin v Goldfarb (1998), 163 DLR (4th) 639).

The law is unclear as to whether a defendant can claim contributory negligence against parties for which the plaintiff is vicariously liable. The Manitoba Law Reform Commission has observed: “On general principle it would seem that the contributory negligence of a plaintiff would include acts and omissions of those for whom the plaintiff is vicarious liable – for example, the plaintiff’s employees and agents.”

The Saskatchewan Court of Appeal has suggested that “there are compelling arguments that vicarious liability is a tort to which The Contributory Negligence Act” applies (DB v Parkland School Division No 63 Saskatchewan, 2004 SKCA 113 at para 16). The Supreme Court of Canada has commented that whether “fault” in British Columbia includes vicarious liability is an open question and that parties “may be more or less vicariously liable for an offence” (Blackwater v Plint, 2005 SCC 58 at paras 67, 69).

The Manitoba Law Reform Commission recommended that Manitoba’s legislation be clear on this point and provide that contributory fault include “fault for which the person is vicariously responsible.”

In a 2015 article providing a comprehensive review and discussion of the history and scope of the CNA, Professor Kleefeld agreed with the recommendation of the Manitoba Law Reform Commission. In his view, while the CNA is capable of being interpreted to allow apportionment in vicarious liability claims, it would be a better solution to expand the definition of fault to include fault for which a person is vicariously responsible.
(Kleefeld, John C, “The Contributory Negligence Act at Seventy” (2015) 78 Sask L Rev 31 at 122)

The Manitoba Law Reform Commission has recommended that apportionment for contributory fault be applicable to strict liability torts. The Commission stated it agreed with the reasoning of Borins JA (in dissent) of the Ontario Court of Appeal in Cowles v Balac ((2006), 273 DLR (4th) 597 at paras 217 – 218):

The Commission noted that applying contributory fault to strict liability torts will be “problematic if apportionment is based solely on the comparative blameworthiness of the parties” since in some cases, a defendant can be liable for a strict liability tort without being at fault. The Commission was of the view this difficulty could be overcome, however, if apportionment is based both on relative blameworthiness and the causal relevance of both parties’ conduct.

While a breach of a statutory duty may be evidence of negligence and be used to determine the applicable standard of care in a negligence claim, such breaches do not on their own amount to negligence or give rise to a cause of action. Some statutes do, however, expressly create a right of action in the event of a breach.

The Ontario Law Reform Commission recommended that Ontario follow the approach taken in the Uniform Contributory Fault Act and allow apportionment for breaches of statutory duties that create a liability for damages, stating “in such cases, in the absence of a contrary intention in the legislation, there seems no reason to exclude apportionment.” 

The Manitoba Law Reform Commission reviewed Manitoba statutes that create a right of action and concluded that Manitoba’s contributory negligence legislation should not include a provision for apportionment for breaches of statutory duties:

"Statutes creating rights of action do not occur frequently in the statute book. In some cases, the legislation creating the right has addressed the issue, and creates a right of apportionment for contributory negligence and among those liable to pay damages. In other cases, the statute creates a comprehensive scheme based on specific objectives.... In the Commission’s view, the application of apportionment principles is more appropriately dealt with within that scheme, rather than in other legislation of general application."

The Commission recommended that the government review those statues creating a cause of action to determine whether those provisions are consistent with the general principles of apportionment outlined in the Commission's report.

The Alberta Law Reform Institute recommended in its 1979 report that contributory negligence should be available only when the contract imposes a duty of care and there has been a breach of that duty.

The Uniform Contributory Fault Act takes the approach recommended by the Alberta Law Reform Institute: “Fault” is defined to include “a breach of a duty of care arising from a contract that creates a liability for damages.” An earlier, and ultimately rejected, draft version of the Uniform Act had defined fault to include any breach of contract creating a liability in damages.

The Law Reform Commission of British Columbia recommended in its 1986 report that BC’s legislation follow the approach taken in the Uniform Contributory Fault Act and define fault to include a breach of a duty of care arising from a contract that creates a liability for damages.

The Ontario Law Reform Commission concluded that in addition to breaches of contract where there is concurrent liability in tort, contributory negligence should also be extended to breaches of contract resulting in personal injury or property damage, subject to any express or implied agreement to the contrary.

The Manitoba Law Reform Commission has studied this issue recently and recommended in its 2013 report that apportionment for contributory fault be available for any breach of contract creating a liability for damages. The New Zealand Law Commission (2012) and Scottish Law Commissions (2018) have reached similar conclusions in recent years.

The Saskatchewan Court of Appeal  recently revisited the scope of section 3(2) in Sound Stage Entertainment Inc v Burns (2019 SKCA 18). In Sound Stage, the defendants were sued in negligence and sought to add a third party intentional tortfeasor.

Section 3 (2) of the CNA abolishes the common law no contribution among tortfeasors rule:

(Joint tortfeasors) ... are jointly and severally liable to the person suffering damage, but as between themselves they are liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault.

The majority held that "fault" in section 3 of the Act is limited to negligence after conducting an extensive review of the history of the section. Jackson JA dissented and suggested that "fault" in section 3 should be interpreted broadly to include intentional as well as negligent acts.

Courts in British Columbia, Ontario, and Nova Scotia have taken broader views of the scope of the contribution provisions in their respective statutes.

The Manitoba Law Commission expressed a preference for the “simple and inclusive” approach in the United Kingdom (discussed below) as compared to the approach taken in the Uniform Contributory Fault Act, and made the following recommendation: “Any person liable in respect of any damage suffered by another person should have a right to recover contribution from any person liable in respect of the same damage.”

Other international law reform bodies in the United Kingdom, Scotland, New Zealand, New South Wales, Victoria, and Hong Kong have similarly recommended that contribution should be available to any wrongdoer liable for the same damage to the plaintiff on any grounds.

The United Kingdom Law Commission recommended that rights of contribution should not be limited to claims arising out of tort and should be “widened to cover breaches of contract, breaches of trust and other breaches of duty as well.” The Commission was of the view that this recommendation would close the gap where there are no rights of contribution at common law” and give courts greater flexibility to prevent unjust results. The Commission’s recommendations were followed and implemented in the Civil Liability (Contribution) Act 1978, which provides, in part, as follows:

1(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly within him or otherwise).

6(1) A person is liable in respect of any damage for the purposes of this act if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise)

The Ontario, Alberta, and Manitoba law reform agencies as well as other law reform agencies in the United Kingdom, Scotland, New Zealand, New South Wales, South Australia, and Hong Kong have all recommended that contractual provisions pertaining to contribution should supersede statutory contribution provisions.

Prior to 2004, the CNA did not contain any specific apportionment provisions to deal with uncollectable contributions. As a result, a defendant who sought contribution from other defendants also found to be liable for the plaintiff’s injury bore the risk of one of the defendants being unable to pay their contribution. For example, if a plaintiff sued A, and A (40% liable) then sought contribution from other defendants B (30% liable) and C (30% liable) but was unable to collect from B, A would ultimately end up being responsible for 70% of the plaintiff’s damage. In 2004, s 3.1 was added to the CNA to determine how uncollectable contributions are apportioned. This section requires a contributorily negligent plaintiff to bear a portion of

The New Zealand Law Commission studied apportionment of liability and initially proposed a solution similar to s. 3.1 of the CNA in which a contributorily negligent plaintiff would bear a proportionate share of the irrecoverable portion alongside the other defendants. However, in its final report on the topic the Commission altered its proposal for reform, stating:

The Manitoba Law Reform Commission considered this issue, reached a similar conclusion to that of the New Zealand Law Reform Commission, and recommended in 2013 that Manitoba’s legislation be amended to allow uncollectable contributions to be reallocated only among defendants and stated: