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Torts - Contribution and Indemnity

J.K. v. Ontario (Ont CA, 2017)

In this case the Court of Appeal elaborates on the range of causes of action that may be subject to contribution and indemnity under the Negligence Act (and here includes breach of fiduciary duty):
[27] I agree with the Crown that it is not plain and obvious that J.K.’s claim that the Crown breached its fiduciary duty could not also support a third party claim. It is possible that the damages suffered by J.K. were caused concurrently by the Crown’s breach of its fiduciary duty and the Third Parties’ negligence.

[28] In concluding that J.K.’s claims for breach of fiduciary duty could not support a third party claim, the motion judge relied on Johnston v. Sheila Morrison Schools, 2012 ONSC 1322 (CanLII), 20 C.P.C. (7th) 103. In that case, the Divisional Court held that there can be no right of contribution and indemnity on account of a breach of fiduciary duty because such liability is not subject to apportionment. It did not cite authority for this proposition.

[29] However, in Ault v. Canada (Attorney General), 2011 ONCA 147 (CanLII), this court apportioned liability between one group of wrongdoers who were found liable for negligent misrepresentation and breach of fiduciary duty, and the Attorney General of Canada, who was found liable for negligent misrepresentation. Ault illustrates that one party’s breach of fiduciary duty and another’s negligence may contribute to a plaintiff’s loss.

[30] The indemnity clause in the service contracts might permit the Crown to seek indemnity for any damages for which it is found liable as a result of its breach of fiduciary duty if the damages were also “occasioned by or attributable to” the Third Party’s negligence.

[31] Further, the right to contribution under s. 1 of the Negligence Act has been held to apply not only to negligence, but to other fault-based causes of action: Pet Valu Inc. v. Thomas, [2004] O.J. No. 497, 2004 CanLII 23785 (ON SC), 2004 CanLII 23785, at para. 24, citing Bell Canada v. Cope (Sarnia) Ltd. (1980), 11 C.C.L.T. 170 (Ont. H.C.), at 179-80, affirmed (1981), 1980 CanLII 1868 (ON CA), 119 D.L.R. (3d) 254 (Ont. C.A.) As a result, it is not plain and obvious that the Crown would not have a claim under that Act in such a situation.


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