[Originally posted on  Slaw.ca – Sept 15, 2012]

But for the moment we’ll stick to k-k-k-k-k-causation and contribution.

Does Clements-Resurfice material contribution apply between tortfeasors claiming contribution?

Is there any reason in principle not to allow contribution between tortfeasors where their liability to the plaintiff is based on material contribution?

I can’t see one.

(Other than that if we take Clements at face value its ratio deals only with causation injury in claims for damages in claims based on negligence.)

In principle, there is nothing about the  material contribution doctrine to risk doctrine that necessarily limits it to being a basis for causation of plaintiff’s claims for damages.

Causation is causation is causation.

(You won’t find an answer in the contribution statutes. Trust me on that one.)

Pull up a chair, etc. This one is somewhat long.

For present purposes, contribution in negligence is based on multiple tortfeasors where the negligence of each is a cause of the same injury that is the basis for the damages the plaintiff claims from each of them.

But Clements v. Clements 2012 SCC 32 at para. 46(2) – let’s not forget Clements – is

 Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

[Emphasis added]. So 46(2) taken, literally, deals only with the the plaintiff’s claim. It is silent on claims for contribution. That’s not surprising because contribution was never an issue in either action.

It is true that  experienced hands – I suppose that’s “fingers” in the computer age for most people – can easily find cases where the courts have said that, in a contribution claim, the tortfeasor claiming contribution is a “plaintiff”  and the “defendant” is the tortfeasor from whom contribution is claimed – trust me on that one, too. But, there’s no doubt that 46(2) as written, is literally referring to the person we immediately think of as a “plaintiff”: the “injured” person.

And, a premise of  Clements 46(2) is that each of the multiple negligent persons can “point to one another as the possible “but-for” cause of the plaintiff’s injury.

As mentioned, contribution in negligence is based on the concept of two or more persons being causes of the plaintiff’s injury. It’s also based on concepts of fairness and justice between the tortfeasors.

Contribution liability – a defendant’s legal obligation to pay more than that defendant’s “share” of the plaintiff’s judgment – is a loss to the paying tortfeasor. It’s not “damages” but it is “loss”.  It is “injury”. (Trust me.)

Contribution liability is proportional, too. That aspect is good where liability is based on the fact fault increasing risk even though the, ultimately, the negligent conduct might not, in fact, have been a cause of the injury that occurred. Contribution liability is based on the relative fault – “blameworthiness” of the negligent persons. A greater increase in risk does not necessarily equate to greater fault. However, in principle, the there’s nothing about the mechanics (the procedure) of determining liability to pay contribution under a blameworthiness approach that is inconsistent with the causation requirement being satisfied by causation established under material contribution to risk.

Jane Stapleton pointed that out in her article J. Stapleton “Lords a ‘leaping evidentiary gaps” (2002) Torts Law Journal 276. It would be a good article for lawyers in common law Canada to read, even if the Supreme Court hadn’t cited it with approval in Clements at para. 14.

Historically, in this country, the causation concept the underlay contribution was factual cause (cause-in-fact) but, since we’re now in an area where the basis of a tortfeasor’s liability to the injured person is not based on the negligence actually having been a probable factual cause,  how can we (in principle) require contribution to be based on “actual” – meaning probable – factual causation?

The point is that there’s no basis for liability for contribution if the multiple tortfeasors aren’t each held to be a cause of the plaintiff’s injury, regardless what “cause” means.

As I mentioned, contribution issues weren’t before the Court in Clements.  Or in Resurfice.  Both are literally silent on contribution under material contribution.

But then,  all of the Resurfice and Clements dicta on material contribution are technically obiter, but they are none the less the law. Don’t try telling a judge that he or she should ignore what the Supreme Court said because the comments were obiter. See the comments of Justice Binnie in R. v. Henry,  [2005] 3 SCR 609, 2005 SCC 76. I wouldn’t recommend you saying “but those comments  were obiter, too”.

The common law rule for the liability of tortfeasors held to have caused the same injury is joint and several liability, also known as solidary liability. There’s nothing in Clements or Resurfice that  suggests the Court intended to change that rule. Indeed, there’s nothing in either set of reasons that suggests the Court considered that rule, even if the judges did in their discussions.

There’s nothing in Clements or Resurfice that necessarily suggests P has to sue all of the tortfeasors to succeed for all of P’s recoverable damages under the material contribution doctrine. There’s nothing in Clements that suggests that P has to sue more than one of the tortfeasors. Paragraph 46(2) can’t be properly interpreted to mean P has to sue more than one of them. It might be that only one is practically available to be sued. Heaven forfend, it might be that only that one has any money.

And so long as P’s recovery is solidary P can sue fewer than all and get judgment for all of the recoverable damages. Again, there’s nothing in Clements that suggests the extent of liability under Clements-Resurfice material-contribution is not solidary. (Those who know know that the default rule under the United Kingdom version of material contribution to risk  is proportional liability but that’s there, not here.)

There’s an Ontario decision that is based on the assumption that Resurfice material contribution liability is solidary. However, that case – predating Clements  is an Ontario Court of Appeal decision which also seems to be based on the premise that Resurfice material contribution was Athey material contribution – that is, material contribution to injury. See M.B. v. 2014052 Ontario Ltd.  2012 ONCA 135.

If a torfeasor’s liability under material contribution is solidary, a P may sue only the T who is at fault and has money, and recover all of P’s awarded damages, even though that T isn’t the one “more” at fault as between the wrongdoers. P doesn’t have to waste his or her hard-earned shekels suing stones. That would continue the law as we know it for ordinary but-for causation (except in British Columbia and maybe Nova Scotia where, if the plaintiff is also at fault, each of the wrongdoer’s liability becomes proportional, only. That’s a consequence of the statutes governing the consequence of contributory negligence.)

A tortfeasor is entitled to contribution when the tortfeasor has paid more than that tortfeasor’s “share” of the plaintiff’s damages. (There’s now contribution between wrongdoers at common law for those cases where the apportionment statutes don’t apply. Trust me on that one, too.)

If liability is based on fault and the possibility of causation then doesn’t that suggest the importance of contribution as between tortfeasors? Remember that neglgience (fault) can a mere moment of inattention.

There’s nothing about how causation plays out in contribution claims that, in principle, makes material contribution to risk inconsistent. Again, the fact that  liability for contribution is proportional could be said to be consistent with liability based on fault that increases risk.

Clements does mention contribution, just not under material contribution and not in the part of the reasons that deals with material contribution.

 [12] In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation.

Even conceding that this paragraph, as written, applies only to but-for causation, are we to believe that the Court meant that there’s contribution only between tortfeasors whose conduct is each a but-for cause? In a case where nobody seems to have raised the contribution issue because it wasn’t an issue in the action?

In system of tort compensation also based on fairness and justice? Where the the plaintiff’s right to resort to material contribution is based on fairness and justice

[19] …  To deny him recovery, while allowing the negligent defendants to escape liability by pointing the finger at each other, would not have met the goals of negligence law of compensation, fairness and deterrence, in a manner consistent with corrective justice.

[21] …  To allow recovery where the injury was the result of neutral factors would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence.

[27] …  The basis for the exception in these circumstances is that requiring “but for” causation “would offend basic notions of fairness and justice”

[32] …  As I will discuss further below, to allow the defendants to each escape liability by pointing the finger at one another would have been at odds with the fairness, deterrence, and corrective justice objectives of the law of negligence.

Where the court was addressing the need for a doctrine based on principles of corrective justice?

[41] In these circumstances, permitting the plaintiff to succeed on a material contribution to risk basis meets the underlying goals of the law of negligence. Compensation for injury is achieved. Fairness is satisfied; the plaintiff has suffered a loss due to negligence, so it is fair that she turns to tort law for compensation. Further, each defendant failed to act with the care necessary to avoid potentially causing the plaintiff’s loss, and each may well have in fact caused the plaintiff’s loss. Deterrence is also furthered; potential tortfeasors will know that they cannot escape liability by pointing the finger at others. And these goals are furthered in a manner consistent with corrective justice; the deficit in the relationship between the plaintiff and the defendants viewed as a group that would exist if the plaintiff were denied recovery is corrected. The plaintiff has shown that she is in a correlative relationship of doer and sufferer of the same harm with the group of defendants as a whole, if not necessarily with each individual defendant.

Is there anything about this rationale that can’t be transposed to claims for contribution between tortfeasors?

Contribution is a doctrine based in restitution or, if one prefers – broadly – unjust enrichment. If one of the multiple tortfeasors pays a portion of the plaintiff’s damages, that payment is a release to the extent of the payment for all of the other tortfeasors.

Putting aside that no case has ever claimed that contribution applies only to but-for causes – good thing because there’s many a defendant held liable who received contribution where the conduct wasn’t a but-for cause  and there’s no reason to read any of the apportionment statutes that way – I suppose the conclusion that contribution is limited to but-for causation does follow if the Court believes that the only way there can ever be factual causation is under the but-for test.

But we now know that can’t be so, don’t we?

I mean we know that there are many ways for there to be actual factual causation – aka the search for the “f” in actual causation (be careful how you say that if you read this paragraph aloud) – that don’t involve but-for causes, even if Clements doesn’t seem to acknowledge that.

Now let’s segue a bit.

Imagine that there are three tortfeasors T1, T2 and T3.

What if P sues only T2 and T3 – is evidence about T1’s negligence admissible? Maybe without T1’s conduct the problem that creates the pointing finger shtick can be “inferred” around.

What if reason that P didn’t sue T1 is that can’t be reached for service?

Or if T1 can be successfully sued but couldn’t be held liable for amounts that matter because of a contract with P or some law that limits T1’s  liability to P?

Good thing that one aspect Martin v. Listowel Memorial Hospital (2000), 51 OR (3d) 384 at para. 32, 192 DLR (4th) 250, 2000 CanLII 16947 (ON CA) – the so-called “missing tortfeasor” rule – never became the law elsewhere in Canada and isn’t the law in Ontario any more.

The Ontario Court of Appeal wrote in Martin:

  [31]         The trial judge fully considered Nurse James’s involvement in the birth of the plaintiff Steven Martin, and made several findings of negligence against her, concluding that her negligence materially contributed to the damage he suffered.  However he did not go on to determine her degree of fault because he did not consider her to be a party to the action.  The plaintiffs submit that because s. 1 refers to persons and not parties, he should have done so, even if she was not a party

[32]         We would not give effect to that submission.  There is no basis in s. 1 or anywhere  in the Act for a judge to attribute a portion of fault to a non-party.  Furthermore, although s. 1 refers to “persons”, in any particular action its effect is to impose joint and several liability to the plaintiff only on defendants found at fault or negligent, and not on any other person.

The Ontario Negligence Act s. 1 is

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.

The “missing tortfeasor” aspect of Martin isn’t the law any more,  in Ontario. See Taylor v. Canada (Health) (2009), 95 OR (3d) 561, 309 DLR (4th) 400, 2009 ONCA 487.

 [23]         The Attorney General submits that even if Ms. Taylor has limited her claim, the court has no jurisdiction to apportion fault against the doctor and the hospital unless they are parties to the action.  He relies on the judgment of this court in Martin v. Listowel Memorial Hospital 2000 CanLII 16947 (ON CA), (2000), 51 O.R. (3d) 384 (C.A.) where, at para. 32, the court said that “there is no basis in s. 1 [of the Negligence Act] or anywhere in the Act for a judge to attribute a portion of fault to a non-party.”  The court repeated this limit on the judge’s jurisdiction when it discussed the effect of s. 1 at para. 48 of its reasons, a paragraph the Attorney General says is decisive of this appeal:

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.  It is the only section of the Act which imposes liability, as opposed to apportioning fault.  The section is substantive, not procedural.  Therefore, when applying the section to any specific action, it is understood that joint and several liability to the plaintiff can and will attach only to a party defendant, although others who may also have been at fault could potentially have been found jointly and severally liable had they been sued by the plaintiff.  Because procedurally the section only affects defendants, under this section the court is to apportion degrees of fault only to defendants.  The court must also apportion fault to the other parties, the plaintiff and third parties, not under s. 1 of the Act but rather pursuant to ss. 3 and 4 of the Act, and in accordance with the requirements of the pleadings.

[24]         I do not accept the Attorney General’s submission.  In my view, the excerpts from Martin v. Listowel to which I have referred are not dispositive of this appeal.

[25]         As my colleague, Rosenberg J.A. observed in the later case of Misko v. Doe 2007 ONCA 660 (CanLII), (2007), 87 O.R. (3d) 517, at para. 20, these excerpts are obiter statements and therefore, strictly speaking, not a precedent binding on this court.  Indeed, in Martin v. Listowel itself, the court accepted the trial judge’s apportionment against two doctors who had been sued but had settled before trial, and therefore were not parties at the trial.

[26]         Moreover, the statement in Martin v. Listowel that a court has no jurisdiction to apportion fault against a non-party has been overtaken by later decisions of this court.  In different factual settings, this court held that a judge has jurisdiction under s. 1 of the Negligence Act to apportion fault against a person who is not a party to the action, and can exercise this jurisdiction in an appropriate case.  See M.(J.) v. B.(W.)(2004), O.R. (3d) 171 (C.A.), where Cronk J.A. discussed and distinguished Martin v. Listowel; and Misko v. Doe.

[27]         Both statutory interpretation and policy support the holdings in B.(W.) and Misko.  I think it noteworthy – although the panel in Martin v. Listowel did not – that s. 1 of the Negligence Act speaks of apportioning fault between “persons”, not between “parties.”  And s. 5 speaks of adding a “person” not already a party to the action.  As a matter of statutory interpretation it seems to me the Act itself recognizes that a court has jurisdiction to apportion fault against a person not a party to the action.  Put differently, nothing in the language of s. 1 precludes a court from doing so.

[28]         Interpreting s. 1 of the Negligence Act to permit a court to apportion fault against a non-party makes good sense.  Interpreting s. 1 in this way promotes the streamlining of litigation, as in the present case, and, as in other cases, the settlement of parts of the litigation.

[29]         In my view, this is an appropriate case for the court to determine whether to apportion fault against the doctor or the hospital, though neither is a party to the action.  Permitting apportionment without insisting that they be parties will mean fewer parties at trial, a shorter trial and reduced costs.  The remaining question is whether the Attorney General is entitled to procedural relief so he can pursue his claim to apportionment.

How could a court decide if all the finger-pointing is valid finger pointing if it couldn’t hear evidence about one of the players?

But, then, I’d been doing the Cassandra shtick – yeah, I know what supposedly happened to her – about that issue ever since the late 1970s. Even wrote a short article about  it: (1977) 1 Adv. Q. 270 titled – why mince words? — “The Missing Tortfeasor: A Problem in Fault Apportionment under the Ontario Negligence Act”. I don’t recall, now, if there was a case that triggered the article. I don’t think so. I could, of course, look at the article but that would be too easy. And mentioned the issue somewhere in my text, Apportionment, 1981. Of course, I was still living, then, and in 2000, and in 2009, too, so maybe that’s the reason.

We don’t have to worry about missing tortfeasors anymore – at least for apportionment purposes –  that any more (at least in Ontari-ari-o.). It’s worth remembering that the result of purpose of apportionment, where one of the persons at fault isn’t a party to the action, is not to impose liability on the non-party. It’s to determine the degrees of fault of the parties to the action for some purpose that requires that determination. Nothing more. Nothing less.

Anyway, now it’s time to segue back to Bob Seger:

K-k-k-k-k-Katmandu
I think that’s where I’m going to.
If i ever get out of here,
I’m going to Katmandu

(c) Bob Seger

Actually, it’ll be Australia in January to visit friends, but that’s much closer to K-k-k-k-k-Katmandu than C-c-c-c-c Canada. Warmer, too.

I’ll save Pete Seeger for another day.