Précis: A joint and several tortfeasor was held to be liable for 100% of the plaintiffs’ damages even though the other tortfeasors were protected by Workers’ compensation legislation and any claims for contribution and indemnity might also be barred by such legislation.
Facts: The plaintiffs were the estates of two crew members of a fishing vessel, the “Ryan’s Commander”, that capsized and was lost at sea on 19 September 2004. The plaintiffs commenced proceedings against the builder and designer of the vessel alleging negligence in the design and construction of the vessel and against Transport Canada alleging negligence in the inspection of the vessel. The builder and designer challenged the right of the plaintiffs to bring any proceedings against them on the grounds that the action was barred by the Workplace Health, Safety and Compensation Act (“WHSA”) of Newfoundland. On 2 August 2013 the Supreme Court of Canada ruled in favour of the builder and designer and held that the plaintiffs’ action as against them was in fact barred by the WHSA. As a consequence, the plaintiffs discontinued the action as against the builder and designer leaving only the Government of Canada as a defendant. Canada then brought this application on a point of law for a determination of whether its liability to the plaintiffs, if any, was joint and several. More specifically, Canada requested a holding that it could only be liable to the extent that it was actually at fault.
Decision: Application dismissed.
Held: It is not disputed that Canada is a concurrent tortfeasor and that concurrent tortfeasors are subject to joint and several liability. This means that a plaintiff may recover the full amount of damages from any one tortfeasor even though that tortfeasor may be only partially responsible for the damage. Section 3 of the Contributory Negligence Act of Newfoundland and s. 17 of the federal Marine Liability Act both impose joint and several liability when there is more than one tortfeasor and both permit tortfeasors to claim contribution and indemnity as amongst themselves. Canada submits that the discontinued defendants can never be liable to the plaintiffs because of the application of the WHSA and that it can make no claim for contribution and indemnity. Further, Canada says the “historic trade-off” imposed by the WHSA will be disrupted if joint and several liability is imposed because the plaintiffs will have double recovery. This court accepts that there is a possibility of double compensation and of circumventing the “historic trade-off”, however, as said by the Supreme Court of Canada in Parkland (County) No. 31 v Stetar,  2 SCR 884, 1974 CanLii 198, a plaintiff is entitled to recover the full amount of the damages against only one of several tortfeasors even if that tortfeasor has no right of contribution from the others. Clear statutory language would be required to render joint and several liability not applicable and such language is not present in the WHSA. This is in contrast to the workers’ compensation legislation in some of the other provinces which specifically address the issues presented here and provide that the remaining tortfeasor can be held liable only for that portion of the loss or damage caused by its own fault or negligence.