Note: a link to the Misko decision now appears in this post from last week.
The summer languor is over and the new court decisions are coming thick and fast.
We are obliged to Lawrence McRae of Bartlet & Richardes in Windsor, who emailed us a very interesting decision, rendered yesterday, by Justice John A. Desotti. Mr. McRae was winning counsel on this motion to strike a third party claim in Misko v. John Doe.
The case involved a factual scenario that occurs regularly and yet, seems to cause confusion and uncertainty among the bar and the judiciary.
The plaintiff was injured in car accident in January, 2001. It involved one Michael Bruin. He sued Mr. Bruin. The parties settled the claim for $130,000 in 2002 (fast work!). As part of the settlement, the plaintiff executed a release in which he agreed “not to make any claim or take proceedings against any person who might claim contribution or indemnity from the third party”.
But meanwhile, the same plaintiff had been injured in a second MVA, in December, 2001. Again, he sued. The defendant in that action was granted leave to commence third party proceedings against Michael Bruin (the defendant in the first action), seeking contribution or indemnity under the Negligence Act for any amount that it was required to pay in relation to injuries suffered in the second accident.
Yesterday’s decision of Justice Desotti was the result of a motion by Bruin, to dismiss the third party claim against him. The motion was successful.
The judge who had granted leave for the third party claim to be commenced in the first place had relied upon a 2002 decision of Madam Justice Sandra Chapnik in Medeiros v. Dilworth. In similar circumstances (two accidents, one plaintiff, settlement of first claim and attempted third party proceedings by first-accident driver against second-accident driver), Chapnik J. had permitted the third party claim to be brought. She reasoned that where the plaintiff’s injuries are attributable to multiple tortfeasors, the defendants in the two accidents “must seek contribution or indemnity from one another pursuant to the Negligence Act“.
In yesterday’s decision in Misko, Justice Desotti began by noting that if the defendant (Liberty Mutual) were permitted to add Bruin as a third party in relation to the claim arising out of the second accident, Bruin should be entitled to have the plaintiff’s action against Liberty Mutual dismissed, on the strength of the provision in the plaintiff’s release, that no suit would be brought against anyone who might claim contribution or indemnity from Bruin.
Justice Desotti discussed several well-known decisions, including Athey v. Leonati, Alderson v. Callaghan and Martin v. Listowel Hospital. We have not tried to summarize that analysis because Justice Desotti helpfully did so himself in his reasons. He formulated out seven principles that he had distilled from his analysis of the authorities. They are as follows:
1) Negligent conduct separated in time may give rise to separate causes of actions by the same plaintiff but will not allow for a Third Party claim by the second defendant (tortfeasor) against the original defendant (tortfeasor).
2) If the defendant’s conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant’s liability.
3) You must still take your victim as you find your victim but if you can establish that there is a pre-existing condition (crumbling skull) that would have resulted in a debilitating condition in the future that is unrelated to any act of negligence, then that can be taken into account in reducing the overall amount of the award.
4) Distinct and divisible injuries are to be assessed and not apportioned based on each defendant’s liability for the injury they have caused as a result of their respective accidents.
5) At common law, there is no right to contribution from joint tortfeasors but this right now exists within section [sic] of the Ontario Negligence Act. However, section 1 applies only to concurrent wrongdoers.
6) Similar in result to the first principle, if defendants are not concurrent tortfeasors (existing or happening at the same time) then they cannot third party one another.
7) Where there is a common plaintiff with personal injuries, but two defendants involved in separate negligent acts, the Court should have the actions tried together with a common jury. [Emphasis in original]
In our view, Justice Desotti was right to dismiss the third party claim in this case. The same evidence that the defendant would lead, to transfer liability to the third party, could more appropriately be used to reduce the defendant’s liability to the plaintiff.
But of course, we welcome other points of view.