Justice Gerald Day has ruled that a release given by a plaintiff who had settled a claim arising out of one motor vehicle accident also applies to a second action brought by the same plaintiff, consequent upon another car accident. The decision is somewhat perplexing, as it suggests that a tortfeasor in one accident can properly seek contribution or indemnity from another tortfeasor involved in a completely separate accident. That is not our understanding of the law.
[For purposes of clarification, after originally posting about this case, we were contacted by the insurer of one of the parties. She, in turn, had heard from many claims personnel, excited at the prospect of being able to claim over against tortfeasors who had injured the plaintiff in another accident. She made it clear that that issue had not been argued before Justice Day. We agree, it clearly had not been. However, we still think that he proceeded on the assumption that such a procedure was possible. It doesn’t look like anyone corrected him. But readers should not conclude that the law of contribution and indemnity has changed as a result of this case. We don’t think it has. The balance of our original post appears below.]
In Drapeau v. Heald, the plaintiff was involved in four separate accidents, in 1998, 2000, 2002 and 2003. She brought separate actions in relation to the first three accidents. Today’s decision was given in the action arising out of the first accident.
In 2003, the plaintiff (through her then-lawyer, now a defendant in this lawsuit) settled the claim arising out of the third accident, for $12,000. The plaintiff’s lawyer drafted the release that she signed. It included the following commonly-seen provision:
AND FOR THE SAID CONSIDERATION, we further agree not to make any claim or take any proceedings against any other person or corporation who might claim contribution or indemnity under the provisions of the Negligence Act and the amendments thereto or otherwise from the person, persons or corporations discharged by this release.
The plaintiff’s complaints included back pain, headaches and dizziness. The plaintiffs’ medical expert said that it was “impossible to determine the effects of each accident individually”.
The defendants in this action, Drapeau v. Heald, included the company that had leased the car involved in that accident and an employee of that company. They brought a third party claim against the driver in the third accident (the driver with whom the plaintiff had settled). The leasing company’s third party claim sought contribution or indemnity from the driver who had settled, on the basis that the first accident had contributed to the damages that the plaintiff was claiming in this action. The released driver took the position that the release in relation to the third accident precluded the plaintiff from suing the leasing company and the driver, as they were a “person or corporation who might claim contribution or indemnity” from him. It appears that because this argument was being advanced, that the plaintiff’s original lawyer was also joined as a defendant in this action.
In this motion, the driver who had obtained the release sought a stay of the third party action against him. He relied on the terms of the release from the plaintiff, quoted above, whereby the plaintiff had agreed not to sue anyone who might claim contribution or indemnity from the released driver. Justice Day refused to grant the stay, saying that the leasing company and its employee were not parties to the release and so, the released driver was not entitled to require that the leasing company’s third party action be stayed.
The plaintiff’s original solicitor, as a defendant in this action, sought “rectification” of the release, to make it clear that the release did not prevent the plaintiff from claiming damages caused by accidents other than the third one. Justice Day struck out the claim for rectification, saying that the lawyer lacked status to make such a claim and that in any event, the wording of the release clearly extended to claims arising out of other accidents.
It seems to have been taken for granted in this decision, that in cases involving the same plaintiff being injured in multiple accidents, it is proper for the tortfeasor in one accident to claim contribution or indemnity under the Negligence Act, from the tortfeasor in another accident. In fact, there is considerable authority to the contrary.
In Roussel v. Durette, a 2002 decision of the New Brunswick Court of Queen’s Bench, the same issue arose. The plaintiff had been involved in two motor vehicle accidents. He settled his claim against the tortfeasor in the second accident and signed a release with a provision similar to the one quoted above, to the effect that he would not sue anyone who might claim contribution or indemnity from the releasees.
The tortfeasor in the other action commenced a third party action against the tortfeasor who had settled with the plaintiff. The third party claim sought contribution or indemnity. The tortfeasor who had been released successfully moved to strike out the third party claim. The court observed that “Neither the third party nor the defendant are liable, at law, to pay to the plaintiff a claim for damages caused by the other.” In other words, the second tortfeasor was fully protected by principles of causation: to the extent that the plaintiff’s present complaints had been caused by the negligence of the released tortfeasor, the second tortfeasor would not be liable. There could be no damages which could properly form the basis of a claim for contribution.
The Ontario Court of Appeal made a similar ruling in A.O. v. J.V. It held that the right to claim contribution or indemnity from a joint tortfeasor derives solely from s. 1 of the Negligence Act. The court noted that the caselaw has restricted the application of that section to concurrent tortfeasors (i.e., joint or several tortfeasors causing the same damage). In this case, the court refused to allow a third party claim by one tortfeasor against three other parties, as the torts alleged to have been committed by the latter were completely separate from the tort alleged to have been committed by the defendant. The acts complained of took place years apart. The Court of Appeal held that the original defendant would be liable only for the damage that his acts had caused. There was no basis for a claim of contribution or indemnity:
[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.
It would appear to us that the question in the Drapeau v. Heald case should have been whether the leasing company and its employee were entitled to bring a third party claim at all. The caselaw strongly suggests that the third party claim was not proper and could be struck out.