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Newsletter > May 2002

O. (A.) v V. (J.) et al  Court of Appeal of Ontario Docket C36291 Released April 2002

The defendant appealed from a refusal of the motion judge to add third parties from whom the defendant could claim contribution and indemnity for damages sought by plaintiff. The matter involved the defendant’s sexual oral contact with the plaintiff when she was a child. The defendant sought to add the plaintiff’s allegedly abusive parents and former boyfriend indicating that any damages as suffered by the plaintiff were caused by the parents or former boyfriend at a later time and not by the defendant. The motions judge denied the defendant’s motion to extend the time for service of third party notices as the plaintiff sought only damages caused by the defendant’s conduct and such damages could not be recovered on the basis of contribution and indemnity and there was no right to claim over.

The Court of Appeal considered and applied Martin v Listowel (2000) 51 O.R. (3d) 384 which restricted the ability to claim from another at fault party to those who were concurrent tortfeasors only. The Court further applied Athey v. Leonati [1996] 3 S.C.R. 458, indicating that each defendant is responsible for the damages flowing from his own activity regardless of whether there is another later tort which happens to impact in a similar manner. In order to be able to claim contribution and indemnity from another person under the Negligence Act, the wrongdoers must be acting concurrently and there is no need for the plaintiff to prove that the defendant’s conduct was the sole cause of the injury.

The Court went on to indicate however that, in cases where the defendant is only partially at fault and faces a full 100% of the damages , he can have apportionment of the damages if it can be said that the damages are divisible as enunciated in Athey. Therefore, if there is more than one cause (tortious and non tortious) then there may be separation of liability as one cannot be responsible for injuries that were not caused by one’s own negligence. If the injury is not divisible though (i.e. a hurt hand and a hurt foot) such separation is not possible. Where there are two tortfeasors, each is responsible for the damages caused by his own actions and sometimes the same damage will have more than one source and the plaintiff will have the onus of proving that the defendant’s conduct led to her alleged injuries.

Therefore, the appeal was denied and third party claims were not permitted to be issued in that there was no claim over for the defendant’s own conduct nor was there an ability to claim contribution and indemnity in a non-concurrent tortfeasor situation with non-divisible damages.


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