Liability Provision Ensures Victims Compensated by At-Fault Parties

The Advocate Files: Liability Provision Ensures Victims Compensated by At-Fault Parties

Liability Provision Ensures Victims Compensated by At-Fault Parties

With comment from Ottawa Accident Lawyer – David Hollingsworth

In cases where joint and several liability apply, a person injured by multiple parties may be awarded compensation from one, several or all responsible — which can be crucial in motor vehicle accident proceedings, where defendants often have inadequate insurance, says Ottawa personal injury lawyer David Hollingsworth.

In Gardiner v. MacDonald Estate [2016] ONSC 602 , the defendant vehicle entered an intersection on a red light where it was struck by an OC Transpo bus owned and operated by the City of Ottawa and its employee.

A number of occupants in the defendant vehicle suffered fatal or catastrophic injuries, and the occupants and/or their estates began proceedings against the owner and operator of the defendant vehicle and the owner and operator of the City of Ottawa bus, among others.

In this case, the joint and several liability provision of the Negligence Act was applied to allow certain plaintiffs to obtain compensation from the at-fault driver’s insurer and the municipality, writes Hollingsworth.

“By virtue of the joint and several liability provisions of the Negligence Act, liability is established where the court makes a finding that a party is at least 1 per cent at fault. For the sake of argument, if the court in Gardiner were to make a finding that the City of Ottawa is not liable, there would be a significant shortfall in the insurance proceeds available to the plaintiffs, despite the fact that there were several respective under-insured motorist insurance defendants,” he explains.

Alternatively, Hollingsworth says in the article, if the court were to find the City of Ottawa and the bus operator at least 1 per cent at fault for the accident, the city and the bus operator would be responsible to pay the difference between the agreed upon damages and the $200,000 policy.

In this case, the court held that the bus operator, and therefore the City of Ottawa vicariously, were 20 per cent at fault for the accident and could in fact be responsible for 95 per cent of the plaintiffs’ damages. The City of Ottawa is appealing the decision.

The Negligence Act, and the principle of joint and several liability, recognizes that any defendant who is at fault in any way, is liable to indemnify an injured victim, writes Hollingsworth.

“In Gardiner, joint and several liability ensures that the victims and their families are fairly compensated by the negligent parties notwithstanding the apportionment of liability,” he says.

However, the doctrine of joint and several liability also arose recently in Tuffnail v. Meekes [2016] ONSC 710 with a different result.

In this case, the plaintiffs were involved in a single vehicle accident, and the defendant had a policy with $2 million limit. However the combined total of the plaintiffs’ claims amounted to approximately $8 million, resulting in a significant shortfall of insurance proceeds.

“In Tuffnail, it was alleged that the operator of the defendant vehicle consumed alcohol at a wedding reception. The wedding reception took place at a community centre that was rented by an individual and owned by the Township of Perth. Accordingly, the plaintiffs commenced proceedings against these parties and others. The plaintiffs in Tuffnail alleged that the operator of the defendant vehicle was over-served alcohol and argued that the over-service was a contributing factor in the accident,” writes Hollingsworth.

While a successful claim against the township may have made up the shortfall for the plaintiffs, the court dismissed the claim on the basis of the Supreme Court of Canada case Hryniak v. Mauldin [2014] SCC 7, which held that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”

For those concerned that joint and several liability prejudices deep pocket defendants, writes Hollingsworth, “the Tuffnail case demonstrates that the court does not readily attach liability to these parties. As a result, the victims and their families were inadequately insured.”