|
Damages - Apportionment. National Steel Car Limited v. Hamilton (City)
In National Steel Car Limited v. Hamilton (City) (Ont CA, 2025) the Ontario Court of Appeal mostly dismissed an appeal, here brought against findings that some defendants where "liable in nuisance, negligence, and under the rule in Rylands v. Fletcher" and in punitive damages.
Here the court considered damages 'apportionment' under the Negligence Act, distinguishing between 'causation' and 'fault':[29] The starting point for the City’s argument is s. 1 of the Negligence Act, R.S.O. 1990, c. N.1., which provides: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. [30] Section 4 of the Negligence Act provides further that:If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent. In Martin v. Listowel Memorial Hospital (2000), 2000 CanLII 16947 (ON CA), 51 O.R. (3d) 384 (C.A.), at para. 22, this court noted:Although it may be difficult, and often is, for the trier of fact to determine what role the negligence of each wrongdoer played in causing or contributing to the ultimate damage suffered when a number of mistakes together created the problem for the plaintiff, s. 4 is intended to apply only when it is fair to apportion responsibility equally. [31] The jurisprudence in Ontario and in other provinces with similar legislation distinguishes between fault and causation. In his majority reasons for the British Columbia Court of Appeal in Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 1997 CanLII 2374 (BC CA), 43 B.C.L.R. (3d) 219 (C.A.), at paras. 18-19, Lambert J.A. held that it is an error for a trial judge to apportion liability “based on an assessment of relative degrees of causation”, explaining:I think that such an approach to apportionment is wrong in law. The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person's fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances. [Emphasis in original.] These comments were adopted by Lang J.A., writing for this court on this point, in Rizzi v. Marvos, 2008 ONCA 172, 236 O.A.C. 4, at para. 49, leave to appeal refused, [2008] S.C.C.A. No. 200. See also Heller v. Martens, 2002 ABCA 122, 4 Alta. L.R. (4th) 51, at para. 31.
[32] In Parent v. Janandee Management Inc., 2017 ONCA 922, at para. 14, this court noted that “[f]ault is different than causation”, and added at para. 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. ....
[34] .... As this court noted in Ault v. Canada (Attorney General), 2011 ONCA 147, 274 O.A.C. 200, at para. 56, leave to appeal refused, [2011] S.C.C.A. No. 206, quoting from Bastarache J.’s judgment in Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, at para. 57:The test for appellate interference with a trial judge’s apportionment of liability is an exacting one: “The apportionment of liability is primarily a matter within the province of the trial judge. Appellate courts should not interfere with the trial judge’s apportionment unless there is demonstrable error in the trial judge’s appreciation of the facts or applicable legal principles” (citations omitted). [35] A trial judge’s reasons, considered as a whole, may make it clear that liability was properly apportioned based on the parties’ comparative blameworthiness, even when this is “not explicitly stated”: Heller, at para. 52. Moreover, although causation and blameworthiness are analytically distinct concepts, in a particular case they may align with one another. It is accordingly not an error per se for trial judges’ apportionment of liability to match their assessment of causal responsibility. . Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP [contract]
In Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP (Ont CA, 2024) the Ontario Court of Appeal supports the contract defence of 'contributory fault', aka damage apportionment in contract:[4] Queen opposed the Motion on two grounds. It submitted that: (1) Arcamm had caused, or contributed to, some of the contract damages for which it is claiming (the “Contributory Fault Defence”) which raised genuine issues for trial; and (2) granting the Motion would risk inconsistent and contradictory findings in another action arising from the Incident involving the same parties and others. I pause to note that contributory negligence and contributory fault are related concepts, a matter to which I return below. To keep the tort and contract concepts analytically separate, the apportionment of damages in a tort claim is termed “contributory negligence” whereas apportionment in contract is termed “contributory fault”.
....
[40] I conclude on this matter by addressing Arcamm’s submission that Queen could raise the Contributory Fault Defence only by way of counterclaim as against Arcamm or by seeking set-off for any amounts due to Arcamm’s alleged negligence and/or poor workmanship. I understand this submission to rest on the assumption that contributory fault cannot be raised as a defence to a claim in contract.
[41] I reject this submission and the assumption which underlies it. There has been a long-standing debate about whether the courts can apportion damages in a breach of contract case based on a consideration of the “contributory negligence” of the parties. While recognizing that the Negligence Act, R. S.O. 1990, c. N.1 does not apply to actions in contract, a number of first instance decisions in Ontario, beginning with Tompkins Hardware Ltd. v. North Western Flying Services Ltd. (1982), 1982 CanLII 3160 (ON SC), 139 D.L.R. (3d) 329, 22 C.C.L.T. 1 (Ont. H.C.J.), have applied the principle that damages in contract can be apportioned based on the degree of fault of the plaintiff and defendant. See, for example, Ribic v. Weinstein (1982), 1982 CanLII 3170 (ON SC), 140 D.L.R. (3d) 258 (Ont. H.C.), aff’d (1984), 1984 CanLII 1869 (ON CA), 47 O.R. (2d) 126 (C.A.); Treaty Group Inc. v. Drake International Inc. (2005), 2005 CanLII 45406 (ON SC), 36 C.C.L.T. (3d) 265, 15 B.L.R. (4th) 83 (Ont. S.C.), aff’d on other grounds, 2007 ONCA 450[2]; K-Line Maintenance & Construction Ltd. v. Scepter Corp., 2009 CarswellOnt 7398, 91 C.L.R. (3d) 73 (Ont. S.C.), at para. 161; Atos v. Sapient, 2016 ONSC 6852, at para. 389; and Parkhill Excavating Limited v. Robert E. Young Construction Limited, 2017 ONSC 6903, at para. 212. Appellate courts elsewhere in Canada have similarly held that damages in contract cases can be apportioned based on fault. See, for example, Coopers & Lybrand v. H.E. Kane Agencies Ltd. (1985), 1985 CanLII 125 (NB CA), 62 N.B.R. (2d) 1, (N.B. C.A.), at pp. 707-708; and Doiron v. Caisse populaire d'Inkerman Ltée (1985), 1985 CanLII 95 (NB CA), 17 D.L.R. (4th) 660, 61 N.B.R. (2d) 123 (N.B. C.A.), at p. 273.
[42] In Tompkins, Saunders J. gave compelling reasons for holding that the courts should allow for the apportionment of contract damages. He said that negligence on the part of a plaintiff should have the same effect in reducing damages regardless of whether the claim is brought in tort or contract. In his view, the principle in tort cases that where a person is part author of their own injury, the person cannot call upon the other party to compensate them in full, applies equally in contract cases: at para. 34.
[43] In Treaty Group, Ducharme J. thoroughly canvassed the caselaw and academic writing on the subject and applied the reasoning in Tompkins. At para. 70 of Treaty Group, Ducharme J. concluded that not only could he apportion damages in a contract action to recognize conduct on the part of the plaintiff that had increased their damages but, in appropriate cases, apportionment was “required by fairness, equity and justice”. I agree.
[44] Finally, I note that in Cosyns v. Smith (1983), 1983 CanLII 1750 (ON CA), 146 D.L.R. (3d) 622, 25 C.C.L.T. 54 (Ont. C.A.) Lacourciere J.A., writing for this court, considered the contributory fault defence, describing it as “analogous to contributory negligence” but where the Court holds the basis of recovery against the defendants to be contract, not tort: at para. 1. He reviewed the reasoning of Saunders J. in Tompkins, but concluded that it was not necessary to pronounce on the “attractive conclusion” that Saunders J. had reached because the plaintiff’s conduct did not amount to contributory negligence.
[45] I agree with the Ontario first instance courts that damages in contract cases can be apportioned based on fault. Accordingly, in my view, Queen was entitled to defend the Arcamm Action on the basis of contributory fault, and to seek to have the contractual damages Arcamm claimed reduced to recognize Arcamm’s alleged conduct in increasing those damages.
|
