Claiming Contributory Negligence

To make a claim in contributory negligence as a defence, or otherwise, make sure to claim the Negligence Act, 1930, S.O., c.27.

There is no common law legal principle of contributory negligence; its roots are found in section 1 of the Act.

Section 1 of the Act creates a cause of action, in statute, for contribution and indemnity. But, there are limitations to contribution and indemnity: contribution rights may only arise where a defendant is required to pay more than its proportionate share of a plaintiff’s damages (Taylor v. Canada (Minister of Health), [2009] O.J. No. 2490, 95 O.R. (3d) 561 (Ont.Ca). This judge in this case also ruled that, a defendant in a negligence action cannot maintain a third party claim for contribution and indemnity against alleged tortfeasors, if the plaintiff has limited their claims to the damages attributable to the defendant’s degree of fault (Morden & Perell, 4th Ed).

If a plaintiff has limited its claim to losses attributable only to certain defendants, those defendants cannot maintain claims for contribution against other potential tortfeasors. Allianz Global Risks US Insurance Co. v. Nalco Chemical Co., [2014] O.J. No. 3399, 2014 ONSC 4302