Ontario Court: No Joint and Several Liability for Divisible Injuries

• Joint and several liability allows an injured plaintiff to collect full damages from any one defendant found at fault.
• The doctrine is codified in various provinces, including Ontario's Negligence Act.
• Defendants can pursue other defendants for their share of the damages, but this can lead to complex financial obligations.
• Developing evidence of divisibility is crucial in mitigating the impact of joint and several liability in multi-defendant cases.

The law's logic behind joint and several liability is straightforward: it shifts the burden of risk from the injured victim to the wrongdoers.

In Canadian personal injury litigation, joint and several liability can have far-reaching consequences for defendants found at fault. When one defendant is held responsible for the entire amount of damages, they may pursue other defendants for their share, but this can lead to a complex web of financial obligations. This doctrine has earned its nickname 'the one percent rule' due to its ability to hold even the smallest contributor liable for the full amount. The principle is codified in various provinces, including Ontario's Negligence Act, which states that where multiple parties are at fault, they are jointly and severally liable to the injured party.

The law's logic behind joint and several liability is straightforward: it shifts the burden of risk from the injured victim to the wrongdoers. In cases where an indivisible injury occurs, all defendants are held jointly and severally liable for the entire loss. This means that defence counsels should aggressively develop evidence of divisibility wherever it exists to mitigate the impact of joint and several liability in multi-defendant personal injury cases. The contribution process between defendants is a critical aspect of this doctrine, as seen in Endean v. St. Joseph's General Hospital.

In cases where an indivisible injury occurs, the question of whether joint and several liability applies often turns on whether the injury is divisible or indivisible. The Supreme Court of Canada has denied leave to appeal in cases where a trial judge found injuries to be indivisible, leaving all contributing defendants exposed for the full loss. This highlights the importance of developing evidence of divisibility, as seen in Bradley v. Groves, where a plaintiff suffered soft tissue injuries in two separate car accidents and was held responsible for 100 percent of the damages.

Defence counsels should aggressively develop divisibility evidence wherever it exists to mitigate the impact of joint and several liability in multi-defendant personal injury cases.

Source: Original reporting via Briefly