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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.
KES
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