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Simon Shields, LLB
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Torts - Negligence - Damages - Apportionment of Liability

Parent v. Janandee Management Inc. (Ont CA, 2017)

Here the Court of Appeal clarifies that when considering apportionment of liability under the Negligence Act, that the operative terms 'fault or negligent' should not be conflated with that of 'causation':
[12] The next issue raised by Janandee, and which appears to be the central one in this appeal, is whether the trial judge properly instructed the jury on the principles of apportionment of liability.

[13] The difficulty revolves around references to causation, both directly in the questions given to the jury, and indirectly in the charge to the jury as it related to apportionment. Janandee submits that the trial judge confused the issue of causation, which is relevant to the breach of the duty of care, with the issue of fault that is relevant to the apportionment exercise. Janandee says that this error may explain why the jury arrived at the somewhat unusual split of 94/6. Janandee says that this error is sufficiently serious that this court should intervene by setting aside the jury’s verdict and reapportioning the liability 75% to Upright Signs and 25% to Janandee.

[14] Janandee correctly points out that the Negligence Act, R.S.O. 1990, c. N.1 provides, in s. 1, that where damages are caused or contributed by two or more persons “the court shall determine the degree in which each of such persons is at fault or negligent”. Fault is different than causation. In commenting on s. 1 of the Negligence Act in Rizzi v. Mavros, 2008 ONCA 172 (CanLII), Lang J.A. said, at para. 48:
A plain reading of this provision requires apportionment based on the "fault or negligence" of each party, rather than on the basis of causation. It would be in error to apportion liability on the degree to which the appellant or the respondents caused the damages.
[15] The notion of fault involves a consideration of the blameworthiness of the actions of each of the defendants who have contributed to the damages suffered. As Professor Klar says in his text (L. N. Klar, Tort Law, 5th ed, (Toronto: Carswell, 2012)), at p. 582:
[A]ssessing degrees of fault or the extent of a person’s responsibility must relate to the relative culpability or blameworthiness of the parties. The apportionment decision depends upon which of the defendants failed most markedly to live up to the standards of conduct expected.


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