Ontario Superior Court of Justice Trials

An Overview of the Negligence Act

The Negligence Act, R.S.O. 1990, c. N.1 codifies the law as it relates to who is responsible in negligence cases.

For example, in a case where the plaintiff sues 2 defendants, the Court in granting judgment could find that one of the defendants is 25% responsible and the other defendant is 75% responsible. Or as another example the Court could find each of the plaintiff and 2 defendants 1/3rd responsible. It is also possible for the defendants to bring other people into the case and have them found wholly or partially responsible.

Section 1 of the Act means that if 2 defendants are 25% and 75% responsible, they are still “jointly and severally liable” to the plaintiff. In other words, the plaintiff can collect 100% of the judgment from either of the defendants. This can be important to the plaintiff where, for example, the 75% responsible defendant is broke but the 25% responsible defendant has wealth (assets or an insurance policy). The plaintiff can collect from anyone and if they collect 100% of the judgment from the 25% responsible defendant, that defendant in turn will try to collect 75% of the judgment from the 75% responsible defendant by way of “contribution and indemnity”.

Section 2 of the Act permits any responsible / liable party (tortfeasor) to recover “contribution or indemnity” from any other tortfeasor. New parties can be added (section 5). This can lead to counterclaims against new parties and third party claims (claims by the defendant against a third party), fourth party claims and so on. Somewhat of a web of pleadings can result.

The plaintiff can be found to be “contributorily negligent” if they are partly at fault for their own injuries or losses (section 3).

If it’s not possible to say who is mostly at fault than parties are deemed to be equally at fault (section 4). For example, if a plaintiff sues 2 defendants and the Court finds the defendants at fault but cannot figure out who is more at fault, then they are each 50% responsible (and still jointly and severally liable under section 1).

In a Jury trial, the Jury (not the Judge) decides who is responsible and what their degree of responsibility is (section 6). If the issue of multiple tortfeasors arises at a Jury trial, the Judge will charge the Jury (explaining the law in the Negligence Act) and the Jury questions put to the Jurors will ask the Jurors who is responsible and they will mark down the percentage of responsibility for each tortfeasor.

When defendants (including defendants to a counterclaim, third party claim or other claim) receive a statement of claim alleging negligence, they should consider whether the plaintiff, any co-defendant or anyone else (such as third parties) are liable. Their pleading can state that they “plead and rely on the Negligence Act, R.S.O. 1990, c. N.1, as amended”.

For more information on pleadings, please see our articles on How to Draft a Claim and How to Draft a Defence.

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