Barrie Personal Injury Lawyers Discuss: The ‘One Percent Rule': Joint & Several Liability in Tort Actions
The doctrine of joint and several liability, also known as the ‘One Percent Rule’, is a famous concept in tort liability and well-established in the jurisprudence. The concept conveys that when two or more parties are found to be jointly and severally liable for a tortious injury, each party is independently responsible for the full extent of the injuries stemming from the tortious act (Blackwater v. Plint, 2005 SCC 58 (CanLII)).
This principle is meant to enhance the plaintiff’s ability to recover damages for the full extent of their injuries, as he or she becomes entitled to collect the full value of a monetary award against a single party who may only be partially at-fault (Ryan Estate v. Canada (Attorney General), 2015 CanLII 35487).
For example, if a plaintiff obtains monetary judgement for $1,000,000 against a party that is 1% at-fault, all joint and several defendants become indivisibly liable for the whole injury; an outcome giving rise to the ‘1% Rule’ moniker. Therefore, the court will not apportion liability based on proportionate fault and the plaintiff can collect the full value of the judgment from any one defendant. Instead, it is the responsibility of the indemnified defendant to seek contribution from the other at-fault defendants and to apportion the loss fairly between themselves.
Availability of Joint and Several Liability
A finding of joint and several liability is not available irrespective of context and requires certain necessary conditions to arise. First, there must be two or more joint tortfeasors. Second, the injury must be indivisible, meaning that the court is unable to separate each tortfeasor’s individual effects to the indivisible injury. Essentially, all defendants must be found as negligent tortfeasors contributing to the same injury.
In addition, the common law recognized only two situations where joint and several liability would be imposed: (1) those of vicarious liability, including principal-agent or employer-employee relationships and (2) actions by concerted parties (Cook v. Lewis,  SCR 830 (CanLII)). In Cook, two hunters were negligently trespassing on the plaintiff’s property when the individual was shot. Although the Supreme Court of Canada was unable to determine who fired the bullet, they determined that the hunters were acting in negligent concerted action and were thus held jointly and severally liable.
Over time, the common law expanded to include concurrent tortfeasors within the doctrine of joint and several liability. When multiple people cause the same injury to another as a result of their separate tortious acts, this gives rise to several, concurrent tortfeasors, even where the injuries are successive. This situation arises in motor vehicle accidents, such as Rutter v Allen, 2012 BCSC 135, (CanLII). In that case, the plaintiff was hit by two separate defendants in an undetermined sequence. Despite the exact cause of the injuries being unknown, the court concluded that both of these impacts caused the plaintiff’s injuries and the negligent tortfeasors were held jointly and severally liable. Furthermore, in Saldana v Caruana, 2015 ONSC 4426 (CanLII), the court confirmed that so long as a defendant driver is “at least one percent liable”, then corresponding claims against the defendant’s insurer cannot be maintained.
While the joint and several liability doctrine has common law origins, it has since been codified in section 1 of the Negligence Act.
Extent of liability, remedy over
1. Where damages have been caused or contributed to by the fault or neglect 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 at fault or negligent, they are 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 is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent.
The provision also provides the right of indemnity or contribution; a purely statutory doctrine that did not exist at common law.
Furthermore, joint and several liability can also be specifically imposed by jurisdiction specific legislation, such as the Insurance Act. Section 267.7 of the act basically enumerates the joint and several liability doctrines within motor vehicle accidents, which ensures its applicability. It also includes the right of contribution within the provision.
While all partially at-fault defendants in a motor vehicle accident are independently liable to the plaintiff, there are ulterior measures available to ensure proportional indemnification between defendants. This is known as the doctrine of contribution or the right of indemnity. It allows an indemnified defendant to seek compensation from other liable parties, in order to re-compensate themselves by apportioning the payable damages in line with the proportionate fault of each defendant.
However, it is important to note that this process occurs independent of the main action and the onus does not fall on the winning plaintiff. As the Ontario Court of Appeal stated in the recent 2019 Endean v. St. Joseph’s General Hospital, 2019 ONCA 181 (CanLII) decision, “the right of indemnity is not something which affects the plaintiff” as the entire responsibility falls on the wrongdoer seeking restitution. If the paying defendant does not initiate the contribution process through a cross-claim, third party action, or separate action, then they cannot apportion damages. There is no onus on the plaintiff to add potentially at-fault parties or initiate the contribution proceeding. All the plaintiff is required to do is find at least one party at least one percent liable.
Therefore, a division of liability asks two questions with two corresponding onuses. First, the plaintiff must prove that a defendant is at least one percent liable, at which point all tortfeasors become independently liable for the full injury, subject to the finding of a joint and several relationship. Second, the onus shifts to all at-fault defendants, who gain the right of indemnity to apportion damages payable to the plaintiff between the parties. These proceedings, whether they be via cross-claim, third party action, or separate action, occur independently of the plaintiff.