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Tort - Negligence - Contribution and Indemnity [Negligence Act]. Moran v. Fabrizi
In Moran v. Fabrizi (Ont CA, 2023) the Court of Appeal considered contribution and indemnity of a messy third party motor vehicle tort proceeding:[7] Sections 1 and 5 of the Negligence Act are in issue. They provide:1. Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence…
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5. Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed, such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to the action in the manner prescribed by the rules of court for adding third parties. [8] Chu argues that “Fabrizi had to prove that ‘but for’ Chu’s breach of the standard of care that the injury of Tate Moran would not have occurred.” Chu asserts: “In short, there must be both negligence and causation established against two or more persons for there to be apportionment between them and a right of contribution and indemnity by one against the other.”
[9] As to the asserted requirement for negligence on the part of both tortfeasors, I discern a lurking ambiguity in Chu’s way of framing the test that must be clarified. To trigger third party indemnity under s. 5 of the Negligence Act there need not be negligence on the part of both parties. One party’s tort can be negligence and the other party’s tort intentional. The fact that Chu’s tort was intentional while Fabrizi’s tort was negligence has no bearing on whether Chu must share Fabrizi’s liability under s. 5 of the Negligence Act: see Bell Canada v. Cope (Sarnia) Ltd., (1980), 1980 CanLII 1868 (ON CA), 31 O.R. (2d) 571 (C.A.), 119 D.L.R. (3d) 254, at paras. 2-4; Pet Valu Inc. v. Thomas, 2004 CarswellOnt 370 (S.C.), at para. 24; J.K. v. Ontario, 2017 ONCA 902, 22 C.P.C. (8th) 306, at para. 31. See more generally the Report on Contribution Among Wrongdoers and Contributory Negligence (Toronto: Ontario Law Reform Commission, 1988), at pp. 60-65, which led to the 1990 amendments of the Negligence Act.
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[27] To summarize, the third party claim, as the trial judge explained, “seeks contribution and indemnity from Chu on the basis that the accident was caused entirely, or in part, by Chu's negligence, breach of duty, or perhaps some other tortious conduct.” The trial judge agreed with Fabrizi’s submission “that threats of physical violence amount to intentional tortious conduct.” The issue in the case was whether Chu’s tortious conduct “caused or contributed to” Moran’s injury, within the meaning of s. 1 of the Negligence Act. The trial judge correctly determined that issue on the facts and the law.
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