23 Ins. Counsel J. 201 (1956)
Canadian Comparative Negligence Law

handle is hein.journals/defcon23 and id is 203 raw text is: INSURANCE COUNSEL JOURNAL

Canadian Comparative Negligence Law
EDSON L. HAINES*
Toronto, Canada

L AWYERS ask, How long will the set-
tlement of automobile damage claims
be left to the courts?, and the answer
would seem to be, So long as public dis-
satisfaction does not increase to the point
where it commands the attention of the
legislators and encourages them to apply
their usual solution of administrative tri-
bunals.
Law is often far behind contemporary
thinking, and judges and lawyers are not
good social engineers. In their quest for
popular reforms, politicians are often re-
luctant to improve the old, particularly
when the old is in disrepute. It is much
easier to try the new. We know the public
dislike for the harsh common law rule
which prevents an injuried plaintiff from
recovering, if he is even 1% at fault. And
we are well aware of the inequity of re-
quiring one concurrent wrongdoer to pay
the plaintiff's entire loss without recourse
against another wrongdoer. And finally,
when such remedial legislation is enacted,
we discover how frustrating and illusory
the relief can be if the legislation is not
well-drafted.
It is the object of this paper to outline
the experience and practice in the Prov-
ince of Ontario, which was the first Prov-
ince to amend the rigours of the common
law. Today all other Provinces in Canada
have similar legislation. In 1914, after
years of statutory amendments and great
dissatisfaction with master and servant
litigation, Ontario adopted what appeared
to be then some rather radical workmen's
compensation legislation. It took from the
courts and boards of arbitration practical-
ly all the litigation arising from injuries
to workmen. With it went the common law
doctrine of contributory negligence, the
fellow-servant rule, and assumption of risk.
In its place was an administrative tribunal
placed beyond the courts, awarding com-
pensation regardless of fault. Judges, law-
yers and witnesses were no longer neces-
sary. Even the right of appeal was taken
away. (From the very beginning, the On-
tario Workmen's Compensation Board was
*of the firm of Haines, Thomson, Rogers,. Ben-
son, Howie & Freeman; associate professor of trial
procedure at University of Toronto School of Law.

popular with the vast majority of work-
men and employers. Today it provides
compensation, medical and hospital bene-
fits equal to anything available privately,
and its rehabilitation centers are models
copied throughout the world.)
The success of the Workmen's Compen-
sation Act and the removal from the courts
of such a large body of litigation were two
of the dominant factors in bringing to the
attention of the legislators and the bar
that the law of torts needed a substantial
overhaul in Ontario if it were going to con-
tinue to serve the public needs. Conse-
quently, the first comparative negligence
law was enacted in Ontario in 1924 and,
with appropriate amendments, has worked
most successfully. It achieves the following
results:
1. An injured plaintiff whose fault
has contributed to his loss, finds his re-
covery reduced by the degree of his
fault.
2. Where there are concurrent wrongs
on the part of two or more defendants,
each remains liable to the plaintiff, but
between themselves are entitled to con-
tribution in the degree to which the neg-
ligence of the other contributed to the
loss.
3. Where the plaintiff sues only one
of two or more concurrent tort feasors,
the defendant can add the other tort
feasor as a party defendant, if the plain-
tiff does not object, or, as a third party,
if the plaintiff objects. In any event,
all tort feasors can be brought before
the court. In this respect, there is a
further option. Any tort feasor can set-
tle with an injured person and there-
after proceed against another tort feasor
for contribution. This may be done at
any time before or after the injured per-
son sues. The only limitation is that the
person making the settlement must:
(a) Admit that he was a tort feasor,
and
(b) He must satisfy the court that
the amount of the settlement
was reasonable.

April, 1956

Page 201

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