The Saskatchewan Court of Appeal recently revisited the scope of section 3(2) in Sound Stage Entertainment Inc v Burns (2019 SKCA 18). In Sound Stage, the defendants were sued in negligence and sought to add a third party intentional tortfeasor.
Section 3 (2) of the CNA abolishes the common law no contribution among tortfeasors rule:
(Joint tortfeasors) ... are jointly and severally liable to the person suffering damage, but as between themselves they are liable to make contribution to and indemnify each other in the degree in which they are respectively found to have been at fault.
The majority held that "fault" in section 3 of the Act is limited to negligence after conducting an extensive review of the history of the section. Jackson JA dissented and suggested that "fault" in section 3 should be interpreted broadly to include intentional as well as negligent acts.
Courts in British Columbia, Ontario, and Nova Scotia have taken broader views of the scope of the contribution provisions in their respective statutes.
The Manitoba Law Commission expressed a preference for the “simple and inclusive” approach in the United Kingdom (discussed below) as compared to the approach taken in the Uniform Contributory Fault Act, and made the following recommendation: “Any person liable in respect of any damage suffered by another person should have a right to recover contribution from any person liable in respect of the same damage.”
Other international law reform bodies in the United Kingdom, Scotland, New Zealand, New South Wales, Victoria, and Hong Kong have similarly recommended that contribution should be available to any wrongdoer liable for the same damage to the plaintiff on any grounds.
The United Kingdom Law Commission recommended that rights of contribution should not be limited to claims arising out of tort and should be “widened to cover breaches of contract, breaches of trust and other breaches of duty as well.” The Commission was of the view that this recommendation would close the gap where there are no rights of contribution at common law” and give courts greater flexibility to prevent unjust results. The Commission’s recommendations were followed and implemented in the Civil Liability (Contribution) Act 1978, which provides, in part, as follows:
1(1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly within him or otherwise).
6(1) A person is liable in respect of any damage for the purposes of this act if the person who suffered it (or anyone representing his estate or dependants) is entitled to recover compensation from him in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of trust or otherwise)
The Ontario, Alberta, and Manitoba law reform agencies as well as other law reform agencies in the United Kingdom, Scotland, New Zealand, New South Wales, South Australia, and Hong Kong have all recommended that contractual provisions pertaining to contribution should supersede statutory contribution provisions.
Should Saskatchewan’s legislation provide for an expanded right of contribution among wrongdoers? If so, how broad should the expansion be?