Sound Stage Entertainment Inc. v Burns, 2019 SKCA 18

Court of Appeal for Saskatchewan Docket: CACV3056 Citation: Sound Stage Entertainment Inc. v Burns, 2019 SKCA 18Date: 2019-02-12 Between:Sound Stage Entertainment Inc. and The Pump RoadhouseAppellants (Defendants)And Jordan Burns and Sarain Stoney Respondents (Plaintiffs)AndOmar Abdi Hakim Haji-HusseinRespondent (Third Party)Before: Richards C.J.S., Jackson, Ottenbreit, Caldwell and Whitmore JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice WhitmoreIn dissent: The Honourable Madam Justice JacksonOn Appeal From: 2017 SKQB 84, ReginaAppeal Heard: April 2, 2018Counsel: Michael Readshaw for the Appellants Robert MacKay and Breeanna Mussell for the Respondents Richards C.J.S. I. Introduction [1]

Section 3 of The Contributory Negligence Act, RSS 1978, c C-31 [Act], speaks to the apportionment of damages when thosedamages are caused by the “fault” of two or more persons. In Chernesky v Armadale Publishers Limited, (SK CA),[1974] 6 WWR 162 (Sask CA) [Chernesky], this Court held that s. 3 did not allow a defendant sued for libel to seek contribution orindemnity from a party said by the defendant to be jointly at fault for causing the loss claimed by the plaintiff.

The Court suggested theAct operated only with respect to negligence. [2] The appellants, Sound Stage Entertainment Inc. [Sound Stage] and The Pump Roadhouse [the Pump], were sued innegligence and sought to rely on the Act to commence third party claims for contribution or indemnity against an alleged intentionaltortfeasor. A Queen’s Bench Chambers judge saw Chernesky as being a controlling precedent and dismissed their applications. [3] Sound Stage and the Pump appeal.

They argue Chernesky does not apply to their situation because, although their proposedthird party claims are grounded on an intentional tort, they themselves were sued in negligence. Second, and alternatively, Sound Stageand the Pump contend Chernesky was wrongly decided and should be overturned. In their submission, the apportionment regimeestablished by s. 3 of the Act should be read as applying to all tortious conduct. [4] I would dismiss this appeal.

Sound Stage and the Pump are correct to the extent they say Chernesky involved different facts.However, a careful examination of the wording, object and legislative history of s. 3 of the Act reveals that it is concerned only withnegligence, not with tortious or at-fault acts more generally. It follows that s. 3 does not allow a defendant sued in negligence tocommence a third party proceeding for contribution or indemnity based on an alleged intentional tort. [5] As noted below, the wording of the Act is not a model of clarity and the corner of the law addressed by the Act is ripe forreview.

This is an area where legislative action would be helpful and appropriate. II. Background [6] Jordan Burns and Sarain Stoney were at a Regina nightclub on the evening of April 29, 2016. Both were shot and injured byOmar Abdi Hakim Haji-Hussein. [7] Mr. Haji-Hussein was arrested and charged with numerous criminal offences arising from the incident. The charges includedthe attempted murder of both Mr. Burns and Mr. Stoney. [8] In June of 2016, Mr. Burns and Mr.

Stoney each commenced an action against Sound Stage, the operator of the nightclub,and the Pump, a sole proprietorship involved in the ownership or operation of the nightclub. Their statements of claim mirrored eachother. They alleged Sound Stage and the Pump had been negligent because they had created a dangerous and hazardous environment byfailing to put in place adequate and appropriate security measures.

[9] Sound Stage and the Pump filed statements of defence in September of 2016. In relevant part, they each took the positionthat, if there had been a shooting, it was not because of their negligent acts. They denied owing a duty of care to Mr. Burns andMr. Stoney and asserted that, even if they did owe such a duty, it had been fulfilled. There was no allegation that either Mr. Burns orMr. Stoney had been contributorily negligent. [10] Sound Stage and the Pump then each brought an application to add Mr. Haji-Hussein as a third party defendant, relying onRule 3-31 of The Queen’s Bench Rules and the Act.

Their notices of third party claim alleged Mr. Haji-Hussein had entered the Pumpwithout their knowledge and with the specific intent to cause harm to Mr. Stoney at least. The notices further alleged that the shootingsof Mr. Burns and Mr. Stoney were intentional acts, such that Sound Stage and the Pump were entitled to contribution and indemnity inrelation to any losses suffered by Mr. Burns and Mr. Stoney. The notices did not allege negligence on the part of Mr. Haji-Hussein. [11] Mr. Burns and Mr. Stoney opposed the application to add Mr. Haji-Hussein as a third party. Mr.

Haji-Hussein did not appearand took no position on the application. III. The Contributory Negligence Act [12]

Section 3 of the Act lies at the heart of this appeal. However, and obviously, it must be read and understood in the context ofthe Act as a whole. The Act is reproduced in its entirety at Appendix A. For present purposes, it may be helpful to set out those parts ofthe Act most germane to the issues raised by this appeal: 2(1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damageor loss is in proportion to the degree in which each person was at fault, but if, having regard to all the circumstances of the case, it is notpossible to establish different degrees of fault, the liability shall be apportioned equally.

(2) Nothing in subsection (1) operates so as to render any person liable for any damage or loss to which his fault has not contributed. 3(1) Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which eachperson was at fault.

(2) Subject to

section 3.1, if two or more persons are found at fault, they shall be jointly and severally liable to the person sufferingdamage or loss, but as between themselves, in the absence of a contract, express or implied, they are liable to make contribution to andindemnify each other in the degree in which they are respectively found to have been at fault. … 10 A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect ofthe damage to any person suffering damage as a result of a tort by settling with the person suffering the damage, and thereaftercommencing or continuing action against the other tortfeasor, and in such event the tortfeasor who settled the damage shall satisfy thecourt that the amount of the settlement was reasonable, and if the court finds that the amount of the settlement was excessive it may fixthe amount at which the claim should have been settled. (Emphasis added) IV.

Chernesky [13] The underpinnings of Chernesky are simple enough. Alderman Chernesky opposed the establishment of an alcoholismrehabilitation centre, serving a largely First Nations clientele, in Saskatoon. Two law students wrote a letter to The Star-Phoenixnewspaper for the purpose of expressing their views on the matter. The newspaper added the title “Racist Attitude” when the letter waspublished and Alderman Chernesky took exception. He commenced a libel action against the publisher of The Star-Phoenix, ArmadalePublishers Limited, and its editor.

Armadale, relying on ss. 3 and 7 of the Act, then obtained ex parte leave to add the students as thirdparties. The students, in turn, sought to have the third party notice struck. They argued the Act did not apply to an action in libel and that,as a result, the common law governed, i.e., there was no right to contribution among joint tortfeasors and Armadale had no right to claimcontribution from them. [14] Justice Brownridge, writing for the Court, accepted the students’ argument.

He appears to have relied heavily on Hollebone vBarnard, (ON SC), [1954] 2 DLR 278, a decision of the Supreme Court of Ontario which, as explained below, hassubsequently been overtaken by later Ontario cases. The plaintiff, Mr. Hollebone, had been hit and injured by a golf ball struck by thedefendant. Mr. Hollebone sued in trespass to the person and a question arose as to whether fault could be apportioned on the basis that hehad been negligent.

Justice Wells, dealing with The Negligence Act, RSO 1950, c 252, s 4, found that the words “fault or negligence”used in the relevant apportionment provisions of that Act were synonymous and referred only to negligence. The result was that, althoughMr. Hollebone had been contributorily negligent to the extent of 50 percent, the defendant was liable for the full amount of the damagesassessed. [15] Justice Brownridge also referred to the use of the term “tortfeasor” in s. 10 of the Act. He concluded the difference interminology between “fault” and “tortfeasor” did not extend the reach of s. 3 of the Act.

He concluded his analysis by writing as followsat pages 167–168: In my view the tort referred to in our Act is the tort of negligence and the tortfeasor referred to is one who is, or may have been,negligent. There is nothing in the language of s. 10 to enlarge the category of tort beyond that of negligence, except the use of the words“tort” and “tort feasor”, but in the context in which they are used, I am satisfied that their meaning should be restricted to the tort ofnegligence.

… … in Saskatchewan, the common-law rule that there is no right to contribution or indemnity between joint tortfeasors still applies exceptin negligence where the rule has been changed by statute. [16] Chernesky has been the leading authority on the ambit of the Act since it was issued. That said, on one occasion, this Court didraise the question of whether it should be revisited. In Bouchard v Parkland School Division No. 63 Board of Education, 2004 SKCA113, 244 DLR (4th) 629, the Court observed as follows: [16] The Chambers judge answered both questions by relying on Chernesky v. Armadale Publishers Ltd.

On appeal, the Board challengesChernesky arguing it must either be distinguished or overruled. There are strong arguments to be made that Chernesky has beenovertaken by the development in the law. Similarly, there are compelling arguments that vicarious liability is a tort to which TheContributory Negligence Act applies. Answering these issues, however, will not resolve the primary issue, and would require this Courtto revisit, perhaps prematurely, previous jurisprudence of this Court.

Even if one assumes that resolution of both these issues wouldsupport the Board’s position, it leaves unanswered the fundamental issue: whether someone sued in vicarious liability can seekcontribution from someone in negligence when the primary tortfeasor cannot do so. Given this, it is necessary to answer the fundamentalquestion only. This issue requires consideration of the nature of vicarious liability. [17] Sound Stage and the Pump seize on these comments as being an indication that Chernesky should be overturned. V. The Chambers Decision [18] Before the Chambers judge, Mr. Burns and Mr.

Stoney argued that Chernesky provided a complete answer to the applicationsto add Mr. Haji-Hussein as a third party. This was because the proposed third party claims were based on Mr. Haji-Hussein havingcommitted an intentional tort rather than having committed the tort of negligence. The Chambers judge considered herself bound byChernesky and agreed. She dismissed the applications to add Mr. Haji-Hussein as a third party. VI.

Analysis [19] As indicated, this appeal requires the Court to interpret the Act, and particularly s. 3 of the Act, for the purpose of determiningwhether a defendant said to have been negligent may bring third party proceedings for contribution or indemnity against an individualwho is alleged to have committed an intentional tort.

This exercise in statutory construction calls for the employment of the approachformulated by the late Elmer Driedger and endorsed by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [20] In giving effect to this guidance in the context of the present appeal, it is appropriate to consider the wording of the Act, theobject and legislative history of the Act and, as well, the case law from other jurisdictions that has interpreted legislation similar to theAct. A. The wording of s. 3 and of the Act [21]

Section 3 provides for the apportionment of damages in circumstances where those damages were caused by the “fault” oftwo or more persons. For ease of reference, it is repeated below: 3(1) Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which eachperson was at fault.

(2) Subject to

section 3.1, if two or more persons are found at fault, they shall be jointly and severally liable to the person sufferingdamage or loss, but as between themselves, in the absence of a contract, express or implied, they are liable to make contribution to andindemnify each other in the degree in which they are respectively found to have been at fault. [22] On its face, and considered in isolation, the ordinary meaning of the word “fault” in s. 3 is self-evidently broader than“negligence”.

In addition to negligence, the notion of fault could also embrace intentional tortious wrongdoing such as battery, assault,defamation and fraud. Further, it is also broad enough to sweep in such things as vicarious liability, breach of contract, breach offiduciary obligation and breach of statutory duty. [23] There are, however, features of the Act other than “fault” that are relevant here. The first is its

short title. “The ContributoryNegligence Act” suggests, of course, that the Act is concerned only with contributory negligence. I do not place too much weight orsignificance on this. As explained below, displacement of the common law contributory negligence rule was the central rationale for theAct. But, the Act has always comprehended more than that.

Section 3 itself is concerned, at a minimum, with overcoming the commonlaw no-contribution-among-tortfeasors rule in circumstances where there is no contributory negligence. That said, the Act is certainly nottitled “The Torts Act” or “The Wrongdoers Act” or “The Persons at Fault Act”. This reality, at some level, cuts against the idea that s. 3applies to all torts or to all at-fault conduct. [24] The

long title of the Act is of more consequence than the

short title. This is because a

long title, as a matter of legislativeprocedure, is supposed to cover everything contained in a bill. See: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed(Markham, Ont: LexisNexis, 2014) at 441. The

long title reads as follows:

An Act to make Uniform the Law respecting Liability in Actions for Damages for Negligence where more than one Party is at Fault The ordinary meaning of these words is that the Act is concerned with negligence, full stop. [25] Sullivan on the Construction of Statutes, at page 446, notes there are many dicta suggesting titles should only be looked at ifthe statutory language being interpreted is ambiguous. However, I agree with the author that the better view is that titles may always beconsidered because they are part of the relevant legislative context. In any event, the word “fault” as found in s. 3 is ambiguous and thus,one way or the other, it is appropriate to consider the

long title in the effort to construe s. 3. As indicated, the

long title suggests any lackof clarity in the meaning of “fault” should be resolved by reading it as meaning “negligence”. [26] As for the wording of the remainder of the body of the Act, I note the perhaps curious fact that the word “negligence” isnowhere to be found. The Act uses terms like “degrees of fault” (s. 4), the “fault” of one party (ss. 5 and 6), a party “wholly or partlyresponsible for the damages claimed” (s. 7), and persons “jointly and severally liable” (s. 7.1). None of that sheds much light on themeaning or scope of s. 3. [27]

Section 10 does use the words “tort” and “tortfeasor”. As a result, it might be argued that this terminology suggests “fault” ins. 3 should either also be read as referring to torts generally or, indeed, that it should be read as referring to at-fault actions extendingbeyond the realm of tort. However, given the

long title of the Act and the otherwise consistent use of the word “fault” throughout the Act,it is difficult to see the language of s. 10 as somehow driving the overall meaning or scope of the Act. This is especially so because, andas explained below, s. 10 was added to the Act in 1957, well after the meaning of s. 3 had crystallized. [28] I conclude, therefore, that the wording of the Act, taken as a whole, suggests “fault” in s. 3 means negligence. B.

The object and legislative history of s. 3 [29] Having examined the wording of s. 3 and of the Act, I turn now to a consideration of legislative objects and legislative history.As will become apparent, they say a great deal about the meaning of s. 3. The journey begins with the common law, leads to the UniformLaw Conference and ends at the Legislature. 1. The common law [30] There can be no doubt about what was at the centre of the legislative concerns underpinning the original enactment of the Actand its equivalents across the country.

That legislation was first and foremost a response to the contributory negligence rule. Thiscommon law principle involves the idea that a plaintiff’s failure to take ordinary care is a complete defence to an action that he or shecommences in search of damages.

In reluctantly applying the principle in Grand Trunk Pacific Railway Company v Earl, (SCC), [1923] SCR 397, Anglin J. described it as follows at page 406: … [T]he present case illustrates the harshness of the rule by which, where there is common fault contributing to cause injury to aplaintiff, he is deprived of all redress and the defendant entirely relieved, although the culpability of the former may be comparativelyslight and that of the latter distinctly gross.

The doctrine of the civil law that in such circumstances the damages should be divided inproportion to the degree of culpability commends itself to my judgment as much more equitable. [31] That said, the contributory negligence rule is not the feature of the common law that underlies s. 3 of the Act. To understands. 3, it is necessary to appreciate the no-contribution-among-tortfeasors rule, a principle prohibiting defendant tortfeasors from seekingcontribution from each other in respect of losses committed jointly or severally. G.H.L.

Fridman, The Law of Torts in Canada, 3d ed(Toronto: Thomson Reuters, 2010), explains it as follows at page 864: A joint tortfeasor who was made liable in solidum for the loss suffered by the plaintiff, as a result of the conduct of that tortfeasor andanother or others who could have been sued by the plaintiff, was not given any right to claim any part of the damages paid to the plaintifffrom the other tortfeasor or tortfeasors. The rationale for this rule was never made clear.

In the originating decision, Merryweather v.Nixan, it was made to appear that the denial of any right to claim from other tortfeasors was based on the maxim ex turpi causa nonoritur actio. One who participated in an illegal act could not sue thereon even to recover all or part of what he had paid to an injuredparty. The rule was later extended to cover several, as well as joint tortfeasors. … (Footnotes omitted) I note, in passing, that the Supreme Court has cast some doubt on this rule.

See: Bow Valley Husky (Bermuda) Ltd. v Saint JohnShipbuilding Ltd., (SCC), [1997] 3 SCR 1210; Blackwater v Plint, 2005 SCC 58 at para 68, [2005] 3 SCR 3. 2. The work of the Uniform Law Conference [32] The unhappy implications of the contributory negligence rule provoked a good deal of sustained work by the Conference ofCommissioners on Uniformity of Legislation in Canada [Uniform Law Conference].

I will summarize the highlights of that workbecause it directly underpins the Act, explains the origin of s. 3 and puts s. 3 in context. [33] In 1923, the Uniform Law Conference asked the Ontario commissioners to take on the task of preparing draft legislation“providing, in cases of contributory negligence, for division of damages in proportion to the degree of fault” (Proceedings of the SixthAnnual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (Montreal, 1923) at 17–18).[1]

[ 34 ] In 1924, a draft Uniform Contributory Negligence Act was prepared. The Conference of Commissioners revised and approved the draft ( Proceedings of the Seventh Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (Québec, 1924) at 10–11 and 34–36). There was no equivalent to present-day s. 3 in the draft. However, the text of ss. 2, 3 , and 5 were almost identical to ss. 2 , 4 , and 14 of the Act as it currently stands. The

long title of the 1924 Uniform Contributory Negligence Act was: “An Act to make Uniform the Law respecting the Liability of the Parties in an Action for Damages for Negligence where more than one party is in fault”. As is obvious, this is effectively the same

long title as the one found in the Act today. [ 35 ] A number of jurisdictions moved reasonably quickly to enact legislation similar to the 1924 Uniform Contributory Negligence Act . When the Act, in bill form, was introduced in the Ontario Legislative Assembly in 1929, there were many suggestions from the profession concerning the improvement of its wording and, notably, the “extension of its scope”. One of those suggestions was to provide for “apportionment of liability between wrong-doing defendants liable to an innocent plaintiff”.

In other words, the suggestion was to broaden the apportionment regime to include situations where there was no contributory negligence ( Proceedings of the Twelfth Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (Québec, 1929) at 21). [ 36 ] In 1930, the Legislature of Ontario enacted the original version of what is now s. 3 of the Act . It was included in The Negligence Act, 1930 , SO 1930, c 27 , as an apparent response to extend the Act as requested. The provision read as follows: 3.

In any action founded upon the fault or negligence 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 liable they shall be 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 shall be liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.

At this point on the timeline, given the origins of s. 3 , there might have been some room to read it as being concerned not just with negligence but with other kinds of fault as well. However, the subsequent work of the Uniform Law Conference makes it clear that s. 3 was aimed only at negligence. Let me explain. [ 37 ] In 1933, the Uniform Law Conference provided a draft statute to members of the profession for comment ( Proceedings of the Sixteenth Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (Ottawa, 1933) at 13 and 29).

The draft was extremely similar in substance to the 1924 Uniform Contributory Negligence Act but it also included, as s. 4, a provision that tracked s. 3 of the 1930 Ontario Act. The draft also referred varyingly to “fault or negligence”, “fault and negligence”, “fault” and “negligence”. The provision that parallels s. 3 of the Act provided as follows: 4.

Where damages have been contributed to or caused by the fault or negligence of two or more persons, the Court shall determine the degree in which each of said persons is at fault or negligent , and where two or more persons are found liable, they shall be jointly and severally liable to the persons suffering the loss or damage for such fault and negligence , but as between themselves in the absence of any contract express or implied, each shall be liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent . (Emphasis added) [ 38 ] Significantly, the draft did not use the word “fault” to describe something broader than negligence or in any apparent attempt to expand the overall reach of the project of the Uniform Law Conference beyond the field of negligence.

The draft defined “fault” as follows: 2. … “Fault” shall mean and include any act or omission capable of being negligence irrespective of whether or not in any particular case, the act or omission be the ultimate cause of the injuries or damages. (Emphasis added) This, obviously, is consequential as it sheds a good deal of light on the intended meaning of “fault” in s. 3 of the Act . [ 39 ] The Report of the Committee on Comparative Provincial Legislation and Law Reform, prepared for the Uniform Law Conference, summarized the comments received on the draft Act as follows (at 30): In this draft as well as in the Ontario Act and most of the previous drafts the words “fault or neglect” or “fault and negligence” were used.

The use of the word “fault” has been criticized and it is now the opinion of your Committee that this does not clarify and might cause some confusion. … All Acts in force and drafts under consideration have provided that the Court should apportion the damage in proportion to the degree of negligence. It is submitted that the duty of the Court is to apportion the damage in proportion to the extent to which the negligence of the respective parties contributed toward the damage.

After adopting this view the Committee made the necessary changes throughout the Act and at the same time changed the phrasing of sections 4 and 5 to make them uniform. These changes eliminated the necessity for

section 8. (Emphasis added) [ 40 ] The Committee then prepared a second draft that omitted “fault” and referred only to “negligence”. This change was made in an effort to eliminate the possible confusion that had been created by using both the terms “negligence” and “fault”. [ 41 ] In 1934, this second draft was reported on to the Uniform Law Conference by the Nova Scotia Commissioners. The Nova Scotia Commissioners described the purpose of the model legislation in the following terms ( Proceedings of the Seventeen Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (Montreal, 1934) at 53):

Purpose of the Act. – The model Contributory Negligence Act was intended to abate the rigour of the common law rule that where from the concurring negligence of two parties one party suffers all the injury he must bear the whole loss although the other party may have been equally or more negligent .

The remedy was thought to lie in the adoption of the principle of division of loss according to the respective degrees of culpability, already to be found in the Maritime Conventions Act, 1911, and in the law of Quebec, by legislation directing the tribunal to answer an additional question: “To what degree was each of the parties in fault ,” with the further direction that “liability to make good the damage” should be in proportion to the degree in which each was in fault , and in case no such degrees could be ascertained then that liability should be apportioned equally. (Italics in original, underlining added) [ 42 ] The Uniform Law Conference then revised the second draft and distributed the new draft to all members of the Conference.

This revised draft used “fault” instead of “negligence” (at 69–70). There is no discussion on record as to why this change was made. However, there was certainly no suggestion that the choice of wording was intended to expand the reach of the legislation beyond the field of negligence. Any such move would, of course, have been out of step with the preceding ten years of the Uniform Law Conference’s work. The

long title of the revised draft remained essentially as it had been in 1924: “An Act to make Uniform the Law respecting Liability in Actions for Damages for Negligence where more than one party is at fault”, the same

long title as the one found in the Act . [ 43 ] The 1934 revised draft was disapproved by the representatives of more than two provinces and was therefore put over to be further considered in 1935 (at 19).

In that year, the Uniform Law Conference revisited the 1934 revised draft and adopted it as the 1935 Uniform Contributory Negligence Act , with only one caveat not relevant here ( Proceedings of the Eighteenth Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (Winnipeg, 1935) at 15–16 and 31–32). [ 44 ] In the end, therefore, the work of the Uniform Law Conference rather strongly suggests that the word “fault”, at least as it is used in s. 3 of the Act , refers only to negligence. 3.

The 1944 proceedings in the Assembly [ 45 ] The Bill that became The Contributory Negligence Act, 1944 , SS 1944, c 23, was introduced by Attorney General J.W. Estey on March 15, 1944. It was tightly modelled on the 1935 Uniform Contributory Negligence Act . Notably, s. 3 of the Bill, the provision central to this appeal, was identical to s. 3 of the 1935 Uniform Contributory Negligence Act .

Sections 1, 2, 4, 7 and 10 of the Bill, respectively, were identical to ss. 1, 2, 4, 7 and 10 of the 1935 Uniform Act. [ 46 ] The Contributory Negligence Act, 1944 came into force on April 1, 1944 (Saskatchewan, Legislative Assembly, Journals of the Legislative Assembly , 9th Leg, 6th Sess, vol 42 (15 March and 1 April 1944)). It read as follows: 1. This Act may be cited as The Contributory Negligence Act, 1944. 2.

Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss shall be in proportion to the degree in which each person was at fault. Provided that:

a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally; and

b) nothing in this

section shall operate so as to render any person liable for any damage or loss to which his fault has not contributed. 3. Where damage or loss has been caused by the fault of two or more persons, the court shall determine the degree in which each was at fault, and where two or more persons are found at fault they shall be jointly and severally liable to the person suffering damage or loss, but as between themselves, in the absence of any contract express or implied, they shall be liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault. 4.

In any action the amount of damage or loss, the fault, if any, and the degrees of fault shall be questions of fact. 5. Where the trial is before a judge with a jury the judge shall not submit to the jury any question as to whether, notwithstanding the fault of one party, the other could have avoided the consequences thereof unless in his opinion there is evidence upon which the jury could reasonably find that the act or omission of the latter was clearly subsequent to and severable from the act or omission of the former so as not to be substantially contemporaneous with it. 6.

Where the trial is before a judge without a jury the judge shall not take into consideration any question as to whether, notwithstanding the fault of one party, the other could have avoided the consequences thereof unless he is satisfied by the evidence that the act or omission of the latter was clearly subsequent to and severable from the act or omission of the former so as not to be substantially contemporaneous therewith. 7.

When it appears that a person not a party to an action is or may be wholly or partly responsible for the damages claimed, he may be added as a party defendant or may be made a third party to the action, upon such terms as are deemed just. 8. Where no cause of action exists against the owner or driver of a motor vehicle by reason of subsection (2) of

section 140 of The Vehicles Act , no damages or contribution or indemnity shall be recoverable from any person for the portion of the damage or loss caused by the negligence of such owner or driver and the portion of the damage or loss so caused by the negligence of such owner or driver shall be determined although such owner or driver is not a party to the action.

9. In any action founded upon negligence and brought for damage or loss resulting from bodily injury to or the death of any marriedperson, where one of the persons found to be negligent is the spouse of such married person, no damages, contribution or indemnity shallbe recoverable for the portion of damage or loss caused by the negligence of such spouse, and the portion of the loss or damage socaused by the negligence of the spouse shall be determined although the spouse is not a party to the action. 10.

This Act shall be so interpreted and construed as to effect its general purpose of making uniform the law of those provinces whichenact it. 11. Nothing herein contained shall affect any action pending when this Act comes into force. (Emphasis added) [47]

Section 2 did away with the contributory negligence rule.

Section 3 displaced the no-contribution-among-tortfeasors rule and,as per the work of the Uniform Law Conference, was intended to allow for apportionment in situations where more than one person wasat fault for loss or damage regardless of whether the plaintiff was to some degree at fault. Given the connection between the Act and the1935 Uniform Contributory Negligence Act, there is no reason to believe the Legislature conceived of s. 3 as having a different orbroader purpose than did its equivalent in the 1935 Uniform Act.

In other words, there is nothing in the text of s. 3, or otherwise, tosuggest it was aimed at anything other than negligence. [48] This said, I acknowledge that ss. 8 and 9, since repealed, did use the term “negligence”, as opposed to “fault”. That differencein wording could be used to suggest “fault” described something broader than negligence. However, in my view, this would not be aproper assessment of the situation. [49] Neither s. 8 nor s. 9 formed part of the 1935 Uniform Contributory Negligence Act.

Instead, the origin of these two sectionsseems to be in The Negligence Amendment Act, 1935, SO 1935, c 46, which added Ontario’s equivalents of ss. 8 and 9 to the 1930Ontario Act, using the terms “fault or negligence”. [50] Let me deal with s. 8 first. The Law Reform Commission of Saskatchewan reviewed the historical origins of this provision inProposals Relating to Guest Passenger Legislation: Report to the Attorney General (Saskatoon: Law Reform Commission ofSaskatchewan, 1983).

For the purposes of this appeal, it is sufficient to note that English courts had taken inconsistent approaches to thestatus of guest passengers, with one decision holding the driver of a vehicle owed a duty of reasonable care to a guest passenger (Harris vPerry and Company, [1903] 2 KB 219 (CA)) and another suggesting a guest passenger could recover damages only if the driver wereguilty of gross negligence (Moffatt v Bateman (1869), LR 3 PC 115). The Canadian case law was similarly inconsistent with the resultbeing the determination of liability in this context was an open question.

Consequently, legislative assemblies began enacting guestpassenger legislation in the 1920s and 1930s. In Saskatchewan, The Vehicles Act, 1935, SS 1934-35, c 68, codified, in s. 140, that adriver was liable to a guest passenger only where there had been gross negligence or wilful and wanton misconduct on the part of thedriver.

Section 8 of the Act clarified that this principle applied to claims for damages or contribution or indemnity by a plaintiff ordefendant against the owner or driver, but that the portion of the damage of the driver must be determined so as to limit the plaintiff’srecovery against another defendant. [51] As for s. 9, its historical origins must also be kept in mind. When the Act came into force in 1944, s. 8(2) of The MarriedWomen’s Property Act, RSS 1930, c 190, provided that spouses could not claim against one another for damages in relation to any tort:

(2) Notwithstanding the provisions of this

section no action of tort shall be commenced between husband and wife except an action inrespect of rights in, to or out of real or personal property. [52] Following the enactment of Ontario’s above-referenced Negligence Act, 1930, questions arose as to the interplay between itand the Ontario equivalent of s. 8(2). They came to a head in Macklin v Young, (SCC), [1933] SCR 603 [Macklin].Section 9 was introduced in Ontario shortly after the Supreme Court’s decision. It altered the law as set out in Macklin by clarifying theinterplay between the Negligence Act, 1930 and Ontario’s version of s. 8(2).

It established that neither a plaintiff spouse nor a separatedefendant could recover from a negligent spouse, but that the negligent spouse’s actions were to be attributed to the plaintiff spousewhen it came to apportionment of damages.

Thus, through s. 9, “recovery against the spouse for bodily injury [was] prohibited, but not tothe disadvantage of the other tort-feasor” (Bourbeau v Szabo (1978), 1978 ALTASCAD 78 , 85 DLR (3d) 510 (WL) (Alta SC(AD)) at para 25). [53] This brief history reveals that both s. 8 and s. 9 came late to the Act in the sense that both were grafted onto it after the focusand purpose of the other provisions, including the predecessors of ss. 2 and 3 of the Act, had been set and established.

Moreover, boths. 8 and s. 9 were aimed at addressing very specific issues falling outside the reach of the original ambit of the Act. It follows that the useof the word “negligence” in those two sections appears to reveal nothing more than what might be called a lack of drafting elegance.

Itcannot, in my view, be taken as some sort of indication that the term “fault” in s. 3, a term otherwise clearly intended to refer only tonegligence, should somehow be understood to embrace all tortious actions or all at-fault acts more generally. [54] I will not examine the purpose or rationale for the other sections of the Act. Let me simply note that all of this has beenhelpfully explored by Professor John C. Kleefeld in “The Contributory Negligence Act at Seventy”, (2015) 78 Sask Law Rev 31 at 48–57. [55] The Legislative Assembly did not produce Hansard in 1944.

Instead, “[t]he best record from that time is the reporting ofjournalists, who attended the proceedings of the House and wrote about what had been debated on any given day” (Coward v KramerLtd., 2018 SKCA 63 at para 37, in reference to 1915). In this regard, a newspaper

article in the Regina Leader Post dated March 18,1944, reporting on the second reading of the Bill introduced by the Attorney General, read as follows: A new principle of contributory negligence will be introduced into Saskatchewan law if

an act to make uniform the law respectingliability in actions for damages for negligence where more than one party is at fault, is adopted by the provincial legislature. The bill wasgiven second reading by the legislature Friday.

The apportionment of damage or loss under the proposed legislation would be fixed by the court in proportion to the degree in which the plaintiffs and defendants had been at fault. The bill introduced a principle in Saskatchewan law that is now in effect in most of the other provinces in Canada, said Attorney-General J.W. Estey, when he moved the bill be given second reading. Saskatchewan law at present provides that, where a plaintiff suffered an injury because of negligence of another person he might obtain damages by legal action.

There is nothing in the proposed new legislation that would alter the provision in the statutes. But under existing legislation if a plaintiff who sued for damages was found to have sustained injuries or loss through contributory negligence on his own part he was barred from obtaining damages. The proposed new legislation would change that provision. The bill given second reading makes it possible for the courts to apportion the damages in accordance with the degree both parties had been at fault in contributing to the accident or mishap. W.G.

Baker (Lib., Moose Jaw) before second reading was given the bill asked if the legislation would introduce the principle where one employee on a railway whose actions might have been a contributory factor in an accident could be sued by a fellow employee who sustained injuries because of the accident. The attorney-general replied such details could be considered when the bill was under discussion in committee. (Emphasis added) [ 56 ] A March 18, 1944,

article in the Moose Jaw Times-Herald similarly underlined that the Bill was concerned with negligence and was “to make uniform the law respecting damages for negligence where more than one party is at fault”. It stated the proposed change in the principle of the law would “provide[] for apportionment of damages, or loss can be fixed by the courts in proportion to the degree in which plaintiffs and defendants are at fault”. [ 57 ] Accordingly, it can be seen that, insofar as such things can be divined, the concern of the Legislature in enacting s. 3 was the law of negligence.

There is nothing in the journey of the Act through the Assembly to suggest s. 3 was somehow aimed at torts other than negligence or at at-fault conduct more generally. 4. Subsequent amendments to the Act [ 58 ]

Section 3 of the Act has not been changed in substance since 1944. The original text was broken into two separate subsections in The Contributory Negligence Act , RSS 1965, c 91 , but its wording was not altered. This is not to say, however, that the Legislature has always had a rock steady sense of the scope of s. 3 or of the Act more generally. [ 59 ] In 2004, s. 3 was made subject to a new s. 3.1.

Section 3.1 provides for the apportionment of uncollectible damages or losses. See: The Contributory Negligence Amendment Act, 2004 , SS 2004, c 37 . The Honourable Frank Quennell, the Attorney General, explained the purpose of s. 3.1 in the Assembly and, in so doing, perhaps commented indirectly on his sense of the purpose of s. 3 . He did this in terms that seem to suggest s. 3.1 was intended to apply to the realm of tort generally, rather than to negligence claims in particular.

He stated as follows (Saskatchewan, Legislative Assembly, Debates and Proceedings , 25th Leg, 1st Sess (17 May 2004) at 1142–1143): The principle of joint and several liability provides the defendant who is found liable in an action and tort or negligence [ sic ] may be required to pay the entire amount awarded against all defendants, regardless of the degree of responsibility of the particular defendant. Where there are two or more defendants and one of them is unable to pay its share of the judgment, the other defendants are required to pay their own share plus that of the defendant who is unable to pay.

The rationale for joint and several liability is to ensure that plaintiffs are able to recover their full damages, notwithstanding the fact that one of the defendants cannot satisfy his or her share of the judgment. … Under these amendments, the inability of a defendant to pay its share of a judgment will be borne on a pro rata basis by all remaining defendants according to the degree of fault attributed to them by the court. … Plaintiffs who have contributed to their own loss will be required to share also on a pro rata basis in the effect [ sic ] of any shortfall caused by a defendant who cannot pay its share of the damages. [ 60 ] Other substantive aspects of the Act have also been amended from time to time since 1944 in ways that reveal something of a lack of coherence in legislative intention or understanding with respect to the overall scope and purpose of the Act .

This ambiguity is perhaps of no great consequence in understanding s. 3 but it does underline the need for legislative action in this area. Therefore, in the interest of completeness, I note the more important amendments below: (

a) In 1949, a

section was added to provide for proportionate liability for the costs of parties to an action. See: An Act to amend The Contributory Negligence Act, 1944 , SS 1949, c 32 , s 1. This is now s. 12 of the Act . The amendment appears to have involved nothing more than a reflection of the concerns underpinning the Act , as enacted in 1944, in the matter of costs. (

b) In 1957, as noted above, a

section was added to allow a tortfeasor who settled with a person suffering damage as a result of a tort to recover contribution or indemnity from any other tortfeasor who would have been liable for the damage if the tortfeasor had been sued. See: An Act to amend The Contributory Negligence Act , SS 1957, c 30 , s 1. This is now s. 10 of the Act .

When introducing the amendment in the Legislative Assembly, the Attorney General, The Honourable Robert Walker, referred to s. 3 of the Act , and the proposed amendment, in terms suggesting that both applied to tort law generally, as opposed to the law of negligence in particular. He said this (Saskatchewan, Legislative Assembly, Debates and Proceedings , 13th Leg, 1st Sess (22 February 1957) at 35): Mr. Speaker, there is a new principle in this Bill by reason of

Section 3 of the Act where two tortfeasors have been sued jointly for a tort and the Court finds that both are at fault it may attribute the damages, or award the damages against the two tortfeasors in proportion to

the amount which the Court feels they are at fault. This amendment provides that such an adjudication can be made by the Court even where one of the joint tort feasors has settled the claim and has not been assisted by the other joint tort feasor; so the first one may sue the second for a determination of the fair division of responsibility for the tort.

This will have the effect of making it possible for insurance companies, for example, to settle claims brought by other persons, by persons who are injured, and then if the other person at fault is not prepared to make a reasonable contribution to share the damages, the damages can be determined by an action in the Court. As it is now the only way the Court could possible [ sic ] adjudicate the responsibility between the two tort feasors is where one of them has been sued.

We want to eliminate the necessity for suit in cases where a reasonable settlement is offered and this will eliminate the need for insurance companies waiting to be sued in order to have the liability of the other tort feasor determined. (

c) In 1985, ss. 8 and 9 of the Act (dealing, as explained earlier, with contribution when the plaintiff was a passenger in a vehicle and with contribution when the plaintiff was a spouse) were both repealed. See: The Statute Law (Guest Passengers) Amendment Act, 1985 , SS 1984-85-86, c 54 , s 2; The Equality of Status of Married Persons Consequential Amendment Act , SS 1984-85-86, c 47 , s 3. In explaining the rationale for the repeals, the Attorney General, The Honourable Gary Lane, appeared to describe both s. 8 and s. 9 as being concerned with negligence, not with tort liability more generally.

He said this (Saskatchewan, Legislative Assembly, Debates and Proceedings , 20th Leg, 4th Sess (11 April 1985) at 839–842): For too long, an anomaly in our law has placed severe limits on the ability of injured guest passengers to sue drivers who, through negligence, cause an accident resulting in injury. Guest passengers have been required to prove not only negligence on the part of the driver in order to be successful in an action, they must establish wilful and wanton misconduct on the part of the driver. …

Section 9 of The Contributory Negligence Act dealt with a situation where more than one driver was negligent. If a guest passenger could not bring an action against a negligent driver because that driver’s actions were less than wilful and wanton misconduct, the portion of damage caused by that driver would be calculated, and the other negligent driver would only be liable for that percentage of the damage which he created. The

section deals with certain concepts of joint and several liability, and can now be repealed. … The consequential Bill deals with a number of other issues. The Contributory Negligence Act currently provides that if a spouse is contributorily negligent the court shall apportion the loss, but no damages shall be recoverable for the portion of damage caused by the negligent spouse. This provision has been consistent with the bar to suing a spouse, but is being repealed so that spouses are treated the same as all others. (

d) In 1992, s. 7.1 of the Act was enacted to abolish the common law judgment-and-release-bar rules. See: The Contributory Negligence Amendment Act, 1992 , SS 1992, c 24 . The Honourable Dwayne Lingenfelter explained the purpose of the amendment to the Legislative Assembly. He did so in generalized language and made no reference to negligence (Saskatchewan, Legislative Assembly, Debates and Proceedings , 20th Leg, 4th Sess (27 May 1992) at 679–680): … This amendment overrides an old common law rule called the merger rule.

A common law judgment against, or a settlement with, one of several persons responsible for the same loss or damage was a bar to action against the other. This applied even if the judgment against the first person could not be enforced. This Bill provides that where two or more persons are responsible for the same laws or damage, the person who suffered the loss or damage may deal with them separately.

A judgment against one or a settlement with one does not preclude an action against the others. [ 61 ] Thus, in considering the changes to the Act made since 1944, it is apparent there were some turns in the road that might tend to raise questions about the scope of the Act and perhaps even about the scope of s. 3 . However, there is nothing in any of these amendments that actually displaces the Legislature’s rather clear original intention to make s. 3 applicable only to negligence. C. Case law from other jurisdictions [ 62 ] Each province has apportionment legislation of some kind.

I do not propose to lay out a comprehensive coast-to-coast review on this front. But, the case law from British Columbia, Alberta, Ontario, Nova Scotia, and Newfoundland and Labrador does shed light on the

interpretation of s. 3 and I feel obliged to summarize it. That said, I respectfully find these authorities to be of limited assistance because they do not explore the highly relevant deep legislative history of s. 3 and its equivalents. Further, at least in the case of Ontario, the relevant statutory language is quite different than what is found in s. 3 . 1. British Columbia [ 63 ] In British Columbia, the statutory equivalent of the Act is the Negligence Act , RSBC 1996, c 333 [ Negligence Act (BC) ]. Its key provisions are as follows: 1

(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault,

the liability must be apportioned equally.

(3) Nothing in this

section operates to make a person liable for damage or loss to which the person’s fault has not contributed. … 4

(1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person wasat fault.

(2) Except as provided in

section 5 if 2 or more persons are found at fault (

a) they are jointly and severally liable to the person suffering the damage or loss, and (

b) as between themselves, in the absence of a contract express or implied, they are liable to contribute to and indemnify each other in thedegree to which they are respectively found to have been at fault. [64] The British Columbia Court of Appeal has held that “fault” in the Negligence Act (BC) reaches beyond negligence andincludes intentional torts.

In Hongkong Bank of Can. v Touche Ross & Co. (1989), (BC CA), 36 BCLR (2d) 381 (CA), Lambert J.A. found it was unnecessary to decide the meaning of “fault”, but was hesitant to strictly confine it tonegligence: [21] It is unnecessary for me to discuss the meaning of “fault” in the Negligence Act any further because there is no error in principle inthe reasons of the trial judge as to the meaning or application of the word or concept of “fault” in this case.

But I would be disinclined togive “fault” a meaning that would prevent the orderly development of the contribution rules in cases where contribution should beachieved, as a matter of justice, either with or without the Negligence Act. [65] Brown v Cole (1995), (BC CA), [1996] 2 WWR 567 (BCCA), confirmed Lambert J.A.’s approach. Thedefendants had sought contribution against the plaintiff’s claim in damages for slander. The third party relied on Chernesky to argue thatthe Negligence Act (BC) did not apply to intentional torts and that “fault” and “negligence” were synonymous.

Justice Hollinrake, writingthe majority opinion, rejected the Chernesky

interpretation in favour of a broader view: 19 On the first question, I have already referred to Cherneskey v. Armadale Publications Ltd., and the fact that the Saskatchewan Courtof Appeal has held that the word “fault” in its contributory negligence legislation relates to negligence only and not to intentional torts. 20 In this jurisdiction the opposite view as to the breadth of the word “fault” in the Negligence Act is found in Anderson v. Stevens(1981), (BC SC), 29 BCLR 355 [[1981] 5 WWR 550] (SC).

In that case Macfarlane J. (now J.A.) held that “fault” ins. 4 of the British Columbia Negligence Act included intentional torts. In Anderson the claim was in fraud. Macfarlane J., after anextensive review of the case law, concluded that the word “fault” should be accorded its ordinary meaning rather than treating it assynonymous with negligence. With respect to the contrary view held by the Saskatchewan Court of Appeal, I am of the opinion that theword “fault” in the British Columbia Negligence Act goes beyond negligence and includes intentional torts.

See also Anderson v Stevens (1981), (BC SC), 125 DLR (3d) 736 (BCSC) [Anderson]. [66] Significantly, none of the British Columbia decisions include an examination of the legislative history of the Negligence Act(BC). Rather, they focus on the facial meaning of the word “fault”. In my very respectful view, this significantly limits thepersuasiveness of the British Columbia precedents. 2. Alberta [67] Two Alberta statutes operate in this area: the Contributory Negligence Act, RSA 2000, c C-27 [Contributory Negligence Act(AB)], and the Tort-Feasors Act, RSA 2000, c T-5.

The Contributory Negligence Act (AB) contains sections that track ss. 2, 3 and 7 ofthe Act: 1(1) When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or lossis in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possibleto establish different degrees of fault, the liability shall be apportioned equally.

(2) Nothing in this

section operates to render a person liable for damage or loss to which the person’s fault has not contributed. 2(1) When damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each personwas at fault.

(2) When 2 or more persons are found at fault, they are jointly and severally liable to the person suffering the damage or loss, but asbetween themselves, in the absence of a contract express or implied, they are liable to make contribution to and indemnify each other inthe degree in which they are respectively found to have been at fault. … 6 When it appears that a person not already party to an action is or may be wholly or partly responsible for the damages claimed, thatperson may be added as a party defendant on such terms as are considered just.

(Emphasis added) [68] The meaning of “fault” in the Alberta legislation has not been settled. In order to give some flavour of the current state ofplay, it may be useful to very briefly note just some of the relevant cases. In Kelemen v El-Homeira, 1999 ABCA 315 at para 26, 250 AR67, leave to appeal dismissed (2000), 271 AR 398 (note) (SCC), the Court stated: “Further, contributory negligence is not applicable inthe deceit action”. There was no discussion of the apportionment legislation. See also: Village on the Park (Re), 2009 ABQB 497 atpara 189, [2009] 12 WWR 509.

In Lafrentz v M & L Leasing, 2000 ABQB 714, [2001] 1 WWR 629, Perras J. wrote that “[t]he AlbertaJoint Tortfeasors Act and the Contributory Negligence Act have been held to relate only to negligence actions” (footnote omitted, atpara 28). In Goertzen v Sandstra, 2005 ABQB 623, the Contributory Negligence Act (AB) was held not to be applicable to theapportionment of damages between the defendants and the future defendants “as it is concerned with the contributory negligence of aplaintiff, which is not the case here” (at para 83).

The formula contained in the statute was used, anyway, on the basis that it was a justand equitable method of determining liability. [69] On the other side of the coin, some Alberta cases have apportioned damages between defendants whose wrongs wereintentional. For example, in Fletcher v Hand (1994), (AB KB), 156 AR 142 (QB), Mason J. relied on Anderson tofind “fault” includes intentional and negligent wrongs, and apportioned liability between a defendant who was liable based on anintentional tort and defendants who were liable for negligence torts (negligent misrepresentation).

See also: R v Rumsey (1984), (FC), 12 DLR (4th) 44 (WL) (Fed Ct (TD)) at para 15; Raywalt Construction Co. Ltd. v Bencic, 2005 ABQB 989 atpara 366, [2006] 8 WWR 440; Sloan v Black Sea Homes Corporation, 2007 ABPC 231 at paras 21–22 (exception for fraud); Lepine vSherwood Park Dodge Chrysler Jeep Ltd., 2018 ABPC 12 at paras 134–170 [Lepine].

In Freyberg v Fletcher Challenge Oil and GasInc., 2007 ABQB 353 at para 161, [2007] 10 WWR 133, Kent J. acknowledged that the statute applied where damage was causednegligently or intentionally because both involved some level of “fault” on behalf of the tortfeasor, but stated the same could not be saidfor strict liability offences. 3. Ontario [70] In Ontario, the Negligence Act, RSO 1990, c N.1 [Negligence Act (ON)], provides as follows: 1.

Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degreein 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 andseverally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of anycontract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectivelyfound to be at fault or negligent. 2.

A tortfeasor may recover contribution or indemnity from any other tortfeasor who is, or would if sued have been, liable in respect ofthe damage to any person suffering damage as a result of a tort by settling with the person suffering such damage, and thereaftercommencing or continuing action against such other tortfeasor, in which event the tortfeasor settling the damage shall satisfy the courtthat the amount of the settlement was reasonable, and in the event that the court finds the amount of the settlement was excessive it mayfix the amount at which the claim should have been settled. 3.

In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of theplaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence foundagainst the parties respectively. ... 5.

Wherever it appears that a person not already a party to an action is or may be wholly or partly responsible for the damages claimed,such person may be added as a party defendant to the action upon such terms as are considered just or may be made a third party to theaction in the manner prescribed by the rules of court for adding third parties. (Emphasis added) [71] In more recent years, the Ontario courts have departed from the Hollebone v Barnard approach relied on by this Court inChernesky. Instead, they have taken a relatively broad view of the scope of the Negligence Act (ON).

In Bell Canada v COPE (Sarnia)Ltd., [1980] OJ No 69 (QL) (SC (H Ct J)) [Bell Canada (Trial)], Linden J. found that “fault” and “negligence” were distinct and that“fault” was much broader than simply negligence. On appeal ((1981), (ON CA), 119 DLR (3d) 254 (Ont CA) [BellCanada (Appeal)]), Linden J.’s reasoning was affirmed at page 255: Linden J. said the Act was applicable and he apportioned the degree of fault. The appellant argues, relying on the judgment of Wells J.,as he then was, in Hollebone v.

Barnard, (ON SC), [1954] O.R. 236, [1954] 2 D.L.R. 278, that Linden J. was in error.He points out that Wells J. said the Act has been confined solely to cases of negligence and that fault as used in s. 4 of the Negligence Actwas synonymous with negligence. This case was not simply a case of negligence, but, as far as the defendant is concerned, of both trespass and negligence. As Linden J.said in his judgment [11 C.C.L.T. 170 at p. 180]: Fault and negligence, as these words are used in the statute, are not the same thing. Fault certainly includes negligence, but it is muchbroader than that.

Fault incorporates all intentional wrongdoing, as well as other types of substandard conduct. In this case, bothintentional and negligent wrongdoing were satisfactorily proved.

We agree with his conclusion [at p. 183] that the Act applies: Thus, I find this is a proper case for the application of s. 4 of the Negligence Act of Ontario, since the action, though it was both fortrespass and negligence, was founded on the “fault or negligence” of the defendant and the evidence discloses that “the fault ornegligence of the plaintiff contributed to the damages”.

Section 4 referred to in Bell Canada (Appeal) is now s. 3 in the Negligence Act (ON). Subsequent cases have applied the Bell Canada(Appeal)

interpretation to find that “fault” in the Negligence Act (ON) includes intentional wrongdoing. See, for example: Rabideau vMaddocks (1992), (ON SC), 12 OR (3d) 83 (Ct J (Gen Div)); Harland v Fancsali (1993), (ONSC), 102 DLR (4th) 577 (Ont Ct J (Gen Div)) at 592; Alpha Tire Corp. v South China Industries (Canada) Inc., [2000] OJ No 212 (QL)(Sup Ct

J) at paras 29–30; Pet Valu Inc. v Thomas, (Ont Sup Ct

J) at para 18; Tschekalin v Sault Ste. Marie PoliceServices Board, (Ont Sup Ct

J) at para 105; J.K. v Ontario, 2017 ONCA 902 at para 31, 22 CPC (8th) 306; CanadianTransit Company v City of Windsor, 2018 ONSC 3812 at para 77, 77 MPLR (5th) 303. [72] It must be noted, however, that the language of the Negligence Act (ON) is significantly different than the wording of the Act.More particularly, notwithstanding the common origin of the two statutes, the presence of the words “fault or neglect” make it easier tointerpret the Negligence Act (ON) as applying beyond the realm of negligence than is the case with the Act.

Accordingly, the Ontariojurisprudence is not particularly helpful in divining the meaning of the Act. 4. Nova Scotia [73] The Contributory Negligence Act, RSNS 1989, c 95, ss 3 and 4 [Contributory Negligence Act (NS)], contain provisionsidentical to ss. 2 and 3(1) of the Act. Nova Scotia also has the Tortfeasors Act, RSNS 1989, c 471, which was first enacted in 1945(Tortfeasors Act, SNS 1945, c 19). [74] The Supreme Court’s decision in Smith v McInnis, (SCC), [1978] 2 SCR 1357 [Smith], is rooted in NovaScotia litigation.

Justice Pigeon, dissenting, considered the apportionment legislation enacted in different jurisdictions across Canada andconcluded that “fault” was used to describe “what may occasion a division of liability”(at 1379). In his view, the use of the term “fault”was “evidence of the origin of the rule and of the intention to adopt the civil law principle with respect to the division of liability inproportion to the respective degrees of fault in all cases” (emphasis added, at 1380).

Therefore, according to Pigeon J., “fault” was notlimited to tortfeasors only, and could apply to contracts. [75] Since Smith, the Court of Appeal for Nova Scotia has found that “fault” in the Contributory Negligence Act (NS) “is broadenough to include both tort and contract”: A.C.A. Cooperative Assn. Ltd. v Associated Freezers of Canada Inc. (1992), (NS CA), 93 DLR (4th) 559 (NSSC (AD)) at 585 per Freeman J.A.

See also: MacDonald v Wedderburn (1999), (NSSC), 175 NSR (2d) 89 (SC); Sydney Cooperative Society Ltd. v Coopers & Lybrand, 2003 NSSC 35 at para 163, 213 NSR (2d) 115; A.J.Hustins Enterprises Ltd. v Byrne Architects Inc., (NSSC) at paras 151–161, aff’d 2003 NSCA 21, 23 CLR (3d) 217.Further, Nova Scotia courts have defined “fault” to mean “fault in the civil law sense” (Finance America Realty Ltd. v Speed (1979), (NS CA), 38 NSR (2d) 374 (SC (AD)) at 393). The Contributory Negligence Act (NS) has been applied where the tortwas assault and battery (Merrick v Guilbeault, 2009 NSSC 60, 276 NSR (2d) 68). 5.

Newfoundland and Labrador [76] The Contributory Negligence Act, RSNL 1990, c C-33 [Contributory Negligence Act (Nfld)], contains language correspondingto ss. 2, 3 and 7 of the Act: 2.

(1) Where by the fault of 2 or more persons damage or loss is caused to 1 or more of them, the liability to make good the damage orloss shall be in proportion to the degree in which each person was at fault.

(2) Notwithstanding subsection (1) (

a) where, having regard to the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall beapportioned equally; and (

b) nothing in this

section shall operate so as to make a person liable for damage or loss to which his or her fault has not contributed. 3. Where damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each was atfault, and where 2 or more persons are found at fault they shall be jointly and individually liable to the person suffering damage or loss,but as between themselves, in the absence of a contract express or implied, they shall be liable to make contribution to and indemnifyeach other in the degree in which they are respectively found to have been at fault. … 7.

Where it appears that a person not a party to an action is or may be wholly or partly responsible for the damages claimed, that personmay be added as a party defendant or may be made a 3rd party to the action, upon the terms that are considered just. [77] The scope of the application of the Contributory Negligence Act (Nfld) is unsettled.

Brushett v Cowan (1987), (NL SC), 40 DLR (4th) 488 (Nfld SC (TD)), rev’d in part on other grounds (1990), (NL CA), 69 DLR (4th) 743(Nfld SC (AD)) (note that upheld attribution of degrees of fault), applied the Act to apportion damages in a battery and negligence action.The trial judge was persuaded by reasoning in Yule v Parmley, (BC CA), [1945] 2 DLR 316 (BCCA), appeal allowedin part on other grounds, Parmley v Parmley, (SCC), [1945] SCR 635, and in Bell Canada (Trial), that “fault” is broaderthan negligence.

In Anderson v Canada (Attorney General), 2015 NLTD(G) 167 at para 64, 374 Nfld & PEIR 89, Stack J. suggested thatthe argument that apportionment applies to certain other torts, apart from negligence, was “compelling”. In contrast, in Collavino Inc. v

Newfoundland (1985), 56 Nfld & PEIR 265 (Nfld SC (TD)) [Collavino Inc.], Goodridge J. relied on Hollebone v Barnard to conclude“fault” and “negligence” are synonymous. The case law is also conflicting on the question of whether the Contributory Negligence Act(Nfld) applies in the realm of contracts. See: Collavino Inc.; Memorial University of Newfoundland v Lundrigan Group Ltd. (1985), 57Nfld & PEIR 85 (WL) (Nfld SC (TD)) at para 29; Wells Construction Ltd. v Thomas Fuller Construction Co. (1958) (1985), (NL SC), 61 Nfld & PEIR 91 (WL) (Nfld SC (TD)) at para 342. D. A recap [78] As indicated, the best

interpretation of s. 3 of the Act is that it applies only to negligence. I reach this conclusion becauseconsideration of the facially broad wording of the section, with its reference to “fault”, is only part of the analysis demanded by theinterpretational approach endorsed in Rizzo & Rizzo Shoes (Re). “Fault” must be read in its full statutory context and with reference to itslegislative object and the relevant legislative history. When this is done, it becomes readily apparent that s. 3 does not apply to tortious orfault-based actions other than negligence. [79] The relevant statutory context includes, perhaps most significantly, the

long title of the Act. It specifies that the Act isconcerned with negligence. As explained above, the object of s. 3 and its legislative history also indicate that it is aimed at negligence.The work of the Uniform Law Conference directly underpinning s. 3 makes this particularly clear. A focus on negligence to the expenseof other sorts of fault was also evident in the Assembly when the Act was enacted. Some of the amendments made to the Act since 1944,and some of the ministerial comments made in connection with those amendments, might have muddied the waters somewhat. However,they have not done so to the extent of somehow justifying an

interpretation of s. 3 that would expand its reach beyond what theLegislature originally intended. [80] I might also add that one other, and somewhat larger, consideration makes me hesitant about reading “fault” in s. 3 as reachingbeyond negligence. It is this. If fault is construed in this broader way, what are its limits? Does it extend to all intentional torts, breachesof fiduciary obligations, some or all kinds of breach of contract, breaches of statutory duties, and so forth? All of these sorts of actions,after all, involve fault.

Simply put, this is a classic slippery slope and, in the absence of some principled way of determining where tostop sliding, I believe the Court should be reluctant to step onto it. VII. Conclusion [81] I agree with Sound Stage and the Pump that this case does not raise precisely the same issue as the one considered inChernesky. They have been sued in negligence; Armadale, the defendant in Chernesky, was sued for libel.

Nonetheless, as in Chernesky,the root question here is whether s. 3 of the Act displaces the no-contribution-among-tortfeasors rule only in respect of negligence orwhether it displaces it more broadly. [82] As explained above, I conclude the word “fault” in s. 3 refers only to negligence. As a consequence, Sound Stage and thePump cannot rely on s. 3 to launch a third party claim founded on trespass, an intentional tort. [83] It follows that this appeal must be dismissed. Messrs. Burns and Stoney are entitled to costs in the usual way. [84] Let me end with three additional points.

First, Sound Stage and the Pump based their appeals solely on the

interpretation ofthe Act and arguments about its scope. They did not contend the common law or the no-contribution-among-tortfeasors rule, inparticular, should be revised or revisited. That question is, therefore, beyond the scope of this appeal. [85] Second, I would not want this decision to be taken as somehow authoritatively holding that every

section of the Act appliesonly to negligence. At this stage of its life, the Act as a whole is something of a patchwork. The wording, object and legislative history ofeach of its provisions must be individually examined in order to determine its proper reach. [86] My third point is that the law concerning the apportionment of loss among wrongdoers is an area where legislativeintervention would be appropriate. As Professor Kleefeld has observed in “The Contributory Negligence Act at Seventy”, “the Act, whilehaving done yeoman service over the last seventy years, is suffering from infirmities” (at 111).

The advisability of legislative action isreflected in the work of the Uniform Law Conference, culminating in the 1985 Uniform Contributory Fault Act (Proceedings of theSixty-Sixth Annual Meeting of the Uniform Law Conference of Canada (Calgary, 1984) at 32 and 98–102). Law reform commissionshave also called for reform.

For example, see: Institute for Law Research and Reform of Alberta, Concurrent Contributory Negligenceand Wrongdoers: Report No. 31 (Edmonton: University of Alberta, 1979); Ontario Law Reform Commission, Report on ContributionAmong Wrongdoers and Contributory Negligence (1988); Manitoba Law Reform Commission, Contributory Fault: The Tortfeasors andContributory Negligence Act (Report #128, September 2013). [87] Both litigants and the larger community would profit from the kind of policy-driven analysis that the legislative processwould bring to a consideration of the numerous issues at play both with respect to the reach of the Act and with respect to broaderquestions about how to appropriately apportion fault among multiple wrongdoers. “Richards C.J.S.” Richards C.J.S.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Whitmore J.A.” Whitmore J.A.

Jackson J.A. (in dissent) [88] I agree with my colleagues that the issue in this appeal is one of statutory

interpretation. But, with respect, I take a differentview as to how that exercise should be approached and I arrive at a different result. [89] This appeal concerns whether The Contributory Negligence Act, RSS 1978, c C-31 [Act], permits apportionment betweenparties who are at fault in negligence only or whether the Act extends to intentional tortfeasors. In the specific facts of this appeal, theissue is whether the Act permits apportionment between an allegedly negligent tortfeasor and a person who caused the plaintiffs’ harmand who was allegedly trespassing on the defendants’ property.

In my view, speaking to the circumstances of this case, the Act allows, atleast, a defendant who is sued in negligence to be able to join an intentional tortfeasor and trespasser. [90] Every statutory

interpretation exercise must be purposive: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1SCR 27 at para

Section 10 of The

Interpretation Act, 1995, SS 1995, c I-11.2, is the legislative statement of that principle: Enactments remedial 10 Every enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and

interpretationthat best ensure the attainment of its objects. [91] Applying s. 10 of The

Interpretation Act, the question in this appeal is what is the fair, large and liberal construction andinterpretation that best ensures the attainment of the objects of the Act, having regard for the whole of the Act, including its titles? Toanswer that question, it is important to consider the nature of the legislation, which concerns the reform of tort law, and the decisions thathave considered contributory negligence legislation, not just from this province, but from other jurisdictions in Canada. [92] The

long title (An Act to make Uniform the Law respecting Liability in Actions for Damages for Negligence where more thanone Party is at Fault) and the

short title of the Act (The Contributory Negligence Act) are the sole indicators of legislative intentrestricting the Act’s application to negligent tortfeasors. A

long title can be used as an interpretive aid: see Ruth Sullivan, Sullivan on theConstruction of Statutes, 6th ed (Markham, Ont: LexisNexis, 2014) at 441 to 447, but there is no immutable rule. [93] As Ms. Sullivan points out, the impact of a

long title “in a given case depends on whether other evidence of legislative intentpoints in the same or a different direction” (at 445). She refers favourably to two decisions where less weight was attached to the longtitle when to do otherwise would lead to a result that was unreasonable or unfair: Schiell and Hunt v Morrison (SKCA), [1930] 4 DLR 664 (Sask CA); and Temelini v Ontario Provincial Police (Commissioner) (1999), (ON CA), 174DLR (4th) 418 (Ont CA). [94] To restrict an enactment to what is addressed solely by its

long title would hamper the courts from reading the enactment as awhole in order to discover the intent of the Legislature. In every case where the Legislature has used a restrictive

long title, the legislationmust still be construed. [95] Apart from the long and

short titles, the Act refers generally to tortfeasors and not just to those who are negligent. Aside fromthe use of the word negligence in its titles, the operative provisions of the Act speak of the following: (

a) fault; (

b) apportionment of damages and liability amongst tortfeasors; and (

c) adding parties who may be wholly or partially responsible for the loss or damage claimed. [96] Fault does not connote negligence only: National Trust v Watt (1989), (AB KB), 103 AR 20 (QB) atpara 16; Gilsenan v Gunning (1982), (ON SC), 137 DLR (3d) 252 (Ont H Ct

J) at para 21; and UnitedServices Funds (Trustees of) v Richardson Greenshields of Canada Ltd. (1988), (BC SC), 48 DLR (4th) 98 (BCSC) at para 53. Fault has been interpreted to extend, at least, to “intentional torts”, trespass and nuisance, but it also is a term thatcontains its own internal limitations: Carl B. Potter Ltd. v Mercantile Bank of Canada, (SCC), [1980] 2 SCR 343 at352. [97] When this Act has been amended, the amendments, and the remarks made by the members of the Legislature at the time,could be interpreted in two ways. One

interpretation points to a restrictive view; but the other points to a broader view of contributionamong tortfeasors than that contemplated by the Act’s titles and one that is more consistent with general tort law principles. Indeed,when the Act was originally enacted, the only references to negligence in the Act were contained in s. 8 and s. 9, both of which sectionshave now been repealed. [98] This Act is based on the 1935 Uniform Contributory Negligence Act (Proceedings of the Eighteenth Annual Meeting of theConference of Commissioners on Uniformity of Legislation in Canada (Winnipeg, 1935) at 15–16, 31–32).

Legislation based on therecommendations of a body such as the Uniform Law Conference is unique to a federal state. Hence, Acts based on the Uniform LawConference’s recommendations frequently contain the following provision: Construction of Act 14 This Act shall be so interpreted and construed as to effect its genera

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