FINLAYSON, CARTHY AND CRONK JJ.A.
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BETWEEN: |
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A.O. |
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N. W. Fursman |
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Plaintiff |
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J. O. |
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for the respondent |
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J.V. |
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David A. Maslak |
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Defendant |
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and E.O. |
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B.T., H.O., and E.O. |
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Third Parties |
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Heard: February 12, 2002 |
On appeal from the order of Justice J. Desotti striking out the claims of the Defendant against the Third Parties dated May 1, 2001.
CARTHY J.A.:
[1] The defendant appeals from a refusal by the motions judge to add third parties from whom the defendant would claim contribution and indemnity for the damages sought by the plaintiff.
[2] The plaintiff claims damages arising out of an incident that occurred in 1972 when the defendant made oral contact with the plaintiff’s genitalia. At the time she was three and he was about twelve years of age. Her claim is that she suffers depression, difficulty in developing male-female relationships, low self-esteem, and emotional and mental distress. The defendant seeks to join three third parties. He alleges that if the damages claimed were caused by other than natural causes the fault lies with the plaintiff’s parents who allegedly abused her during her childhood and a sometime boyfriend, B.T, who allegedly sexually assaulted her in or about 1988.
[3] The motions judge denied the defendant’s motion to extend the time for serving the third party notices, essentially because the plaintiff was seeking only the damages caused by the defendant’s conduct and these could not form a basis for a claim to contribution or indemnity. At best, he concluded, evidence of collateral events might operate in mitigation of the damages. Rule 29.02 has no application because the decision was not based on the timeliness of the proposed joinder, rather, on the defendant having no right to claim over.
[4] I agree with the motions judge in the result but do not endorse his assessment of the weight of the evidence in support of the third party claims. He, and this court, must take the pleadings as proved facts at this stage of the proceedings.
[5] At common law there is no right to contribution from joint tortfeasors and thus we find the sole authority for this remedy in Ontario in s. 1 of the Negligence Act, R.S.O. 1990, Chap. N. 1, which reads:
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, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.
[6] The jurisprudence has restricted the application of this section to concurrent wrongdoers. In Martin v. Listowel Memorial Hospital (2000), 51 O.R. (3d) 384, this court stated at para. 48:
[48] In our view, the effect of s. 1 of the Act is to define the legal effect of a finding of fault by concurrent wrongdoers. The effect is to change the common law, and impose on concurrent wrongdoers joint and several liability to the plaintiff.
[7] See also Cheifetz, Apportionment of Fault in Tort Cases Aurora (1981) at pp. 11-12.
[8] The appellant’s thesis is that the statement of claim “broadly claims damages for all injuries and illnesses she has suffered during her childhood, adolescence and adulthood” and that it will be impossible for the plaintiff to restrict her claim to the damages caused by the defendant. Because, he says, the tortious acts of the third parties, as alleged, are wholly or partly responsible for the plaintiff’s damages, the third parties must be joined so that fault can be apportioned. Otherwise the trial court will be apportioning fault to a non-party contrary to this court’s direction in Martin v. Listowel, supra.
[9] This argument is flawed: it addresses a trial problem in sorting out and allocating cause and effect for injuries and then reaches backward to assure that the concerned parties are joined in the action. This effectively jumps over s. 1 of the Negligence Act and the question of whether there is justification for joining the parties at the outset.
[10] A proper analysis starts at the beginning in 1972 when the appellant committed a tortious act against the plaintiff. The consequences of that act may or may not have been latent for a time but they continued and will continue until trial as a continuous stream of damage caused by a single act. That stream may have come into confluence with other streams flowing from other tortious or non-tortious acts, but the subsequent wrongdoers are no more jointly responsible for the full damages flowing after their acts than they would be for the plaintiff’s damages, if any, suffered before they committed torts. They are each answerable for their individual conduct but not for that of others.
[11] That is why the wrongdoers must be acting concurrently to attract the application of s. 1 of the Negligence Act. And that is why s. 1 has no application to this case and why the third party notices should not issue.
[12] This is not to deny the problems which will face the trial judge on the assumption that all the allegations are established. In Athey v. Leonati, [1996] 3 S.C.R. 458, the Supreme Court deals with non-tortious pre-conditions to tortious conduct and makes some broad statements. One example is found in the reasons of Major J. at para. 17:
It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. To borrow an example from Professor Fleming (The Law of Torts, (8th ed. 1992) at p. 193), a “fire ignited in a wastepaper basket is … caused not only by the dropping of a lighted match, but also by the presence of combustible material and oxygen, a failure of the cleaner to empty the basket and so forth”. As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.
[13] This might, on its face, support the appellant’s argument that he will be responsible for 100% of the damages, no matter how caused, if he is found partially at fault. In my view the facts of this case, where the conduct complained of is the first rather than, as is usual, the last of events, lend themselves to another category of claim identified by Major J. at paras. 24-25:
(2) Divisible Injuries
The respondents submitted that apportionment is permitted where the injuries caused by two defendants are divisible (for example, one injuring the plaintiff’s foot and the other the plaintiff’s arm): Fleming, supra, at p. 201. Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes: Fleming, supra, at p. 202. Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence.
In the present case, there is a single indivisible injury, the disc herniation, so division is neither possible nor appropriate. The disc herniation and its consequences are one injury, and any defendant found to have negligently caused or contributed to the injury will be fully liable for it.
[14] This is clearly not a complaint related to a foot and an arm and it may be difficult to separate out the consequences, if any, of the defendant’s conduct from all the influences upon the plaintiff over the intervening years – but that is her task as a plaintiff. And she has not backed away from that obligation. In repeated references in her factum filed in this court it is said that she seeks only damages for which the defendant is solely to blame. There is no suggestion that she seeks damages against him as a contributor along with other tortious or non-tortious causes. Nor could she, because the appellant is no more a contributor to any damages suffered as a result of the proposed third parties’ wrongdoing than they are for his conduct and its consequences. The tortfeasors are each distinct. Whatever difficulties may be presented at trial, the plaintiff will have to meet the onus of satisfying the court that the defendant’s conduct led to particular consequences.
[15] The appeal should therefore be dismissed with costs. Bills of costs have been filed and I would fix those of the plaintiff on a partial indemnity scale at $6,500.00 and those of the proposed third parties H.O. and E.O. a total of $4,500.00 both including disbursements and G.S.T. The proposed third party B.T. did not participate in the appeal.
Released: April 25, 2002 “GDF”
“J.J. Carthy J.A.”
“I agree G.D. Finlayson J.A.”
“I agree E.A. Cronk J.A.”