16 Nov One Percent Liability; One Hundred Percent Injustice
Proportionate Liability v. Joint & Several Liability Debate
The Advocates’ Society Fall Convention 2012
Nevis, West Indies
November 16, 2012
Our tort system is “grounded in the primal concept” that “liability is based on fault”. Joint and several liability is a glaring exception. It often results in liability for damage being borne by insured or “deep pocket” defendants out of all proportion to that defendant’s respective fault. This is unjust, whether the defendant’s disproportionate liability is pursuant to court order or a settlement based on avoiding the risk of such a court order.
This risk is borne particularly by municipalities that must, in turn, pass on huge damage awards to taxpayers and/or discontinue activities that contain an element of risk – playgrounds and athletic facilities, for example. As a result, we all lose.
The law must be changed. Justice demands it. Fairness demands it. The so-called “one percent rule” must be abolished and replaced by a system that is true to the fundamental notion of tort law: that liability for damages would be borne by those whose negligence caused the according to proportionate fault.
“Justice” as Fairness
In a system in which liability is based on fault, the extent of fault should govern the extent of liability. This notion “remains irresistible to reason with all intelligent notions of fairness”.
Negligent plaintiffs are not fully compensated even though the need is just as great as with similarly-injured, but non-negligent, plaintiffs. As a matter of public policy, a negligent plaintiff’s recovery is reduced by that plaintiff’s proportionate fault. The negligent plaintiff does not recover sufficient compensation to meet all his or her post-injury needs.
It cannot be asserted that a “wronged party should not be deprived of his right to redress” in the sense of “redress” as full compensation regardless of fault. Indeed, in some jurisdictions, including Ontario, “neither policy nor law called for fully compensating the negligent plaintiff”.
Similarly, the notion that a non-negligent injured person should be fully compensated regardless of proportionate fault among defendants is open to debate. The notion is not “sacrosanct” as has been argued.
The Social Cost of Joint and Several Liability
Joint and several liability makes municipalities and property tax-payers easy and attractive targets for litigation. They are often targeted deliberately as “insurers of last report”, such as when there is no other insurance or deep pockets available to compensate an injured plaintiff. Just a fraction of fault can force municipalities to pay huge monetary settlements or damage awards. As a result, since 2007, liability premiums for municipalities have increased by 22.2% and are among the fastest growing municipal costs. Two recent cases illustrate the broadening liability exposure risk for Canadian municipalities. In the first, the City of Windsor was named in a $13 million lawsuit because an impaired driver, with a suspended license, in a stolen car, hit a pedestrian on a residential street. The driver pled guilty to criminal negligence causing bodily harm, theft, and breach of probation. The City was named because it did not have sidewalks on both sides of the street. In the second case, the City of Toronto was found to be liable for failing to plow a City laneway near a subway station. The City was ordered to pay only $34,000 in damages to the plaintiff but the decision could compel the City to begin clearing its 250 kilometres of laneways (in addition to roads and sidewalks) at an annual additional cost of $21 million to taxpayers. Municipalities clearly face an extremely broad risk for liability exposure. Joint and several liability works, as in the first case above, to continuously broaden this exposure to the detriment of municipal services and taxpayers.
Lawyers who represent municipalities in personal injury litigation each have their own examples of the unfairness created by joint and several liability. Two such lawyers were quoted by Craig Harris in the Canadian Underwriter article titled “One for All… or the Deepest Pocket”. Murray Davidson, Q.C. of Paterson, MacDougall LLP in Toronto has over 35 years of experience representing municipalities and insurers. He was quoted as saying that “there [are] a number of cases in my cabinet that clearly demonstrate in a graphic way the unfair consequences that fall upon public bodies as a result of the rule [of joint and several liability].” Similarly, Jamie Halfnight of Poss & Halfnight in Toronto was quoted as saying that joint and several liability is “a huge issue in dealing with consideration of exposures. Many are the cases where the actual liability is little or non-existent but the risk is huge because of a lack of adequate insurance protecting those who will definitely be found liable. The consequences of the application of the ‘1 per cent’ rule are severe and cause insurers to pay more, sometimes far more, in settlement than is justified in a straight evaluation of their insured’s liability.”
Craig Harris notes in the same article that it is not just municipalities that are treated unfairly by the rule of joint and several liability. He also sites builders, architects and insurers as being concerned that joint and several liability forces marginally liable defendants to settle for far more than their fair share. Many do not want to run the risk of defending a lawsuit if they know that a finding of minimal liability can lead to an award in which they are forced to pay 100% of the damages.
Joint and Several Liability
The Negligence Act, R.S.O. 1990, c. N. 1 and similar statutes were initially enacted to replace many of the harsh and archaic doctrines that had developed through the common law. The most problematic common law rule was that a plaintiff could not recover any damages if she were found liable for any portion of her injuries. The Negligence Act alleviated this injustice for plaintiffs. We suggest that these legislated amendments to the common law have moved the balance of fairness towards plaintiffs.
The Negligence Act and similar statutes in most Canadian provinces do not alter the common law of joint and several liability. A brief history of the doctrine explains how it evolved, became codified and how it can be overhauled.
English common law traditionally recognized only three situations where joint and several liability would be imposed. Each scenario involved joint tortfeasors: where the defendants knowingly acted in concert, where the defendants failed to perform a common duty owed to the plaintiff, and where a special relationship existed between the parties such that one was vicariously liable for the acts of the other (such as a master and servant relationship). Eventually, the common law expanded and accepted arguments by creative counsel that joint and several liability should also apply to concurrent tortfeasors. The touchstone of a concurrent tort, as opposed to a joint tort, is that the harm must be of an “indivisible nature” which is not practicable to apportion. Where there was any means of apportioning the damages, courts would not hold tortfeasors jointly and severally liable.  Where damages were indivisible, there was an absence of any logical basis for apportioning damages and joint and several liability was seen as justified under the common law.
The Negligence Act codified the common law of joint and several liability for concurrent torts. The Ontario Court of Appeal in Lawson v. Viersen, 2012 ONCA 25 recently discussed how concurrent tortfeasors are treated by the Negligence Act:
In summary, the Negligence Act makes concurrent tortfeasors, that is persons whose conduct causes a single loss to another, jointly and severally liable. It also provides for the right of concurrent tortfeasors to claim contribution and indemnity from another tortfeasor provided the tortfeasor from whom he or she seeks contribution is, or could be if sued, liable to the plaintiff. The statute is not concerned with the acts of several tortfeasors whose actions produce different damage to the same person. In those circumstances, several tortfeasors are liable only for the damage they respectively caused.
Joint and several liability creates injustice for defendants when one or more of the defendants found liable is uninsured and impecunious or otherwise unavailable to satisfy that defendant’s portion of the judgment. In such case, the solvent defendant(s) must pay the plaintiff’s damages regardless of that defendant’s percentage of fault. It is then up to that defendant to attempt to collect judgment from the impecunious defendant – usually a futile process.
The Supreme Court of Canada has made it clear that any reform to the joint and several liability regime in Ontario is for the legislature, not the courts. In Ingles v. Tutkaluk Construction Ltd.,  1 S.C.R. 298, the City of Toronto was found at trial to be 14 percent liable for the damages suffered by the plaintiff while a construction contractor was found 80 percent liable. The plaintiff himself was found to be 6 percent liable. The City of Toronto was negligent as it could not show that its building inspectors exercised the standard of care that would be expected of an ordinary, reasonable and prudent inspector in the same circumstances. Counsel for the City of Toronto argued that joint and several liability should not apply when the plaintiff was also partially at fault for the damages, relying on case law supporting that proposition out of British Columbia. The Supreme Court did not accept this argument in light of the language of the Ontario Negligence Act. Bastarache J. wrote for a unanimous court:
The Ontario legislation has been interpreted differently and joint and several judgments have been awarded to contributorily negligent plaintiffs. Similarly, in Bow Valley v. Saint John Shipbuilding, supra, this Court ruled that defendants would be jointly and severally liable for a negligent plaintiff’s damages in the context of the Canada Shipping Act, R.S.C., 1985, c. S-9. The purpose of a regime which imposes joint and several liability on multiple defendants is to ensure that plaintiffs receive actual compensation for their loss. Given the wording of the Ontario Negligence Act, I can see no reason to deny this benefit to a plaintiff who contributes to his or her loss. His or her responsibility for the loss is accounted for in the apportionment of fault. There is no reason to account for it again by denying him or her the benefit of a scheme of joint and several liability when the wording of the legislation does not intend it to be so.
Any change to the joint and several liability regime, therefore, must be made by the legislature.
An Unfair and “Archaic” Doctrine 
As noted, joint and several liability is not a creature of statute. It has long existed under the common law and is just as archaic and unjust as the common law of contributory negligence that was altered by the Negligence Act and similar statutes. Legislative amendments have been made to address unfairness in favour of plaintiffs, but the common law unfairness and statutory unfairness that joint and several liability creates for defendants remains.
The potential for injustice is clear from the following hypothetical scenario involving a common automobile accident. Two vehicles were involved. The plaintiff’s vehicle was stopped at a stop sign before the driver proceeded through an intersection without seeing the defendant’s vehicle approach at an excessive speed. A collision resulted and the plaintiff was seriously injured. The defendant driver was uninsured. The plaintiff sued the defendant. The plaintiff also sued the municipality for allegedly not having proper lighting at the intersection. The jury found the plaintiff 50% liable for failing to see the defendant’s approaching vehicle. The defendant driver was found 45% liable for speeding and failing to avoid the accident. The municipality was therefore only 5% liable for inadequate lighting. The plaintiff was awarded $1 million in damages. After reduction on account of the plaintiff’s contributory negligence, the defendant driver would be responsible for $225,000 in damages based on proportionate fault. The municipality would be liable for only $25,000. However, the effect of joint and several liability should the defendant driver be uninsured and impecunious would be to oblige the municipality to pay $250,000 – ten times the amount warranted by the municipality’s proportionate fault.
This is an injustice. A defendant that is only 5% liable should not have to pay 50% of the damages simply because a co-defendant who is 45% responsible for the accident is not able to satisfy that defendant’s portion of the judgment.
A number of cases demonstrate the harshness of joint and several liability:
There were a series of flooded condominium buildings in one British Columbia municipality. The project developer, designer, contractor and municipality were all found to be at fault (with the municipality being the least liable). $3 million was awarded. The municipality ended up paying 100% of the damages.
An 11 year old boy roller-skated through an intersection and failed to stop. Thieves had previously removed the stop sign. The boy was struck and killed by a drunk driver. The city was found 25% negligent for the sign not being in place and for not trimming bushes near the intersection. Damages were settled before trial for $8.3 million. The city paid a total of $6.3 million.
A single vehicle accident occurred on an Ontario township road that was under construction. The driver was impaired at the time of the accident and speeding when the pavement turned to gravel. The driver lost control and was killed. His passenger suffered a catastrophic brain injury. Neither were wearing a seatbelt. The Township was sued for not having adequate construction signage. The claim reportedly settled for over $9 million, of which $6.72 million was covered by the Township’s insurer out of concerns of being found jointly and severally liable at trial.
At an amusement park a woman was injured while driving in bumper cars when her fiancé’s car violently struck her. The jury found the plaintiff to be 14% liable, the fiancé 85% liable and the amusement park owner 1% liable. The amusement park ended up being on the hook for 86% of the damages.
In New York City a woman was walking her infant across the street in a stroller accompanied by her toddler daughter. The group stepped in front of a tractor-trailer that was stopped at a red light. The red light then changed to green and the truck driver negligently drove into the group, killing the infant and severely injuring the mother and toddler. The jury found the truck driver 40% liable, the manufacturer, in bankruptcy, was 59% liable (for not having proper mirrors on the truck) and the City of New York was only 1% liable for their traffic lights not allowing enough time for pedestrians to cross the street. The jury was reported subsequently to have been surprised to hear that the City of New York paid nearly the entire award as both the motorist and the factory had minimal insurance.
How many similar cases settle before trial because municipal and other authorities and self-insured defendants justifiably fear such results?
Proportionate Liability as Fairness
Proportionate liability seeks to restore the balance of fairness between plaintiffs and defendants in litigation. Proportionate liability regimes have been adopted in the vast majority of American states and elsewhere in the common law world. As of 2011, various forms of proportionate liability regimes have been enacted in all of the Great Lake states plus 38 other American states. Proportionate liability also exists in British Columbia in cases where the plaintiff is found to be contributorily negligent.
There are many different types of proportionate liability. Under a true proportionate liability regime, each co-defendant’s liability is limited to the loss or damage for which he or she is found to be proportionally liable. In the hypothetical car accident case previously described under a proportionate liability regime the municipality would only pay $25,000 or their proportionate share of the damages. There are, however, a number of modified forms of proportionate liability.
Three systems are particularly easy to implement and understand. In the first system, joint and several liability remains where a plaintiff is blameless for the loss, but would be abolished in favour of proportionate liability where the plaintiff contributed to his or her own loss. In the second system, proportionate liability exists where there is a peripheral wrongdoer which would allow a defendant to be proportionately liable if his or her share of the fault is below a certain percentage (like the municipality in the above example). Finally, in the third system, the plaintiff and a solvent defendant split the risk when a defendant is insolvent or otherwise unavailable for judgment. In effect, the solvent defendant covers half of the insolvent’s defendant’s damages with the plaintiff being unable to recover the rest. Any of these mechanisms would create a system substantially more fair than currently exists in Ontario.
American judges who have embraced proportionate liability have been influenced by the writing of philosopher John Rawls and his theory of justice. The guiding principle from Rawls is that “In exchange for the opportunity of some undertaking, we each promise all others that we will be liable for the damage which our own negligence in the undertaking has caused.” Based on Rawls theory, requiring a defendant to be responsible for more than his or her fair share of damages would constitute injustice. This principle has readily been accepted in many American judgements and should act as a guide while discussing Canadian reforms.
Modifying Joint and Several Liability is Good Public Policy
Reform of joint and several liability has been considered recently. The issue is simply one of public policy as to allocation of risk. As noted, it is not that certain interests are “sacrosanct”.
The Law Commission of Ontario recognized that the matter is purely one of public policy in terms of what schemes are best suited to the distribution of the risk of loss. The Final Report of the Law Commission of Ontario on “Joint and Several Liability under the Ontario Business Corporations Act” (February 2011) confirmed that the difference between joint and several liability on the one hand, and proportionate liability on the other, concerns the allocation of risk. The former, the Law Commission noted, puts the risk of insolvent or unavailable co-defendants on other co-defendants, while the latter transfers the risk to the plaintiff.
We submit that the emphasis on compensating plaintiffs has caused the balance of justice to shift too far away from defendants such that there is now substantive unfairness and, hence, injustice. Supporters of joint and several liability may argue that insurance companies and municipalities have unlimited resources to supplement any shortfall that is owed to the plaintiff. Unfortunately, as we have seen this is simply not true.
The issue is not simply one of satisfying damages awards out of proportion to fault. Insurance costs are having a serious impact on municipalities and other public bodies. A September 2002 study indicated that a level of government is sued in 40% of all Canadian lawsuits. This has resulted in a substantial increase in insurance premiums. In fact, one county in south-western Ontario faced a 41% increase in insurance premiums in one year- enough to trigger a one percent property tax increase in the municipality. Municipal liability insurance costs in Ontario exceed the annual province wide municipal spending on many essential services, such as maintaining bridges and culverts and administering and providing Ontario Works employment assistance benefits. Rising insurance costs are also disproportionately affecting smaller municipalities. A recent survey of municipalities determined that the per-capital insurance costs for communities with populations fewer than 10,000 is $37.56, while the cost in communities with populations over 75,000 is $7.71.
Municipal fear of joint and several liability, and the increased legal fees caused by it, results in municipalities being less willing to offer certain services in the community for fear of legal risk. The following examples are provided by the Association of Municipalities of Ontario:
Parks and Play Structures: Due to the overall rising costs involved with replacing old playground equipment in public parks with modified equipment with “soft landing grounds”, playgrounds for children are being removed and not rebuilt (or are being rebuilt in fewer locations).
Skateboard Parks and Public Beaches: At least one large city has deliberately decided not to provide any supervision at skateboard parks because of the increased responsibility associated with the duty of care. The same can be said with other large cities and the supervision of public beaches. Instead of providing valuable services in these areas, the risk assessment provided to these cities (probably by counsel) has recommended that it is safer for them to allow the public to “use at their own risk”.
Street Festivals and Community Hall Rentals: Some municipalities have stopped issuing road permits for street festivals due to concern over liability. Others have prohibited community halls from being rented for “higher risk” events, such as wedding receptions and “stag and doe” functions.
The removal of public play structures is particularly troubling in an era of rising childhood obesity rates and rising health care costs associated with inactivity.
There are other public policy issues to consider. First, there are significant safeguards in place to protect plaintiffs in modern society that were not in existence at the time the common law of joint and several liability was developed. Accident benefits schemes, employer benefit plans, private disability plans, home and title insurance, workers compensation schemes, universal health care and other mechanisms are available to assist plaintiffs who may be unable to recover from an impecunious defendant. Second, our tort regime has begun to adapt many aspects of the American tort system, including an increase in the number and size of class actions, as well as the proliferation of contingency fee retainers. Given that American legislatures have determined reform was required, it is time for us to take a look at their reforms. Both of these views appear to be supported by former British Columbia Attorney General Geoff Plant who stated that “The changing economic and legal landscape requires a rethinking of the fairness of the law of joint and several liability.” We agree.
What About the Injured Plaintiff?
Plaintiff’s counsel and the Ontario Trial Lawyers Association have been particularly vocal in the debates to date that a modification to the joint and several liability regime would be unfair to injured plaintiffs. There are several responses to this argument.
First, in scenarios where the plaintiff is also found at fault for his or her damages, the plaintiff should also bear a proportionate share of the risk when one of the defendants is impecunious. There is no logical reason for this risk to only fall on the defendants with assets in this scenario.
Second, under the current tort regime in Ontario, we do not have a system in which plaintiffs are compensated at all costs. There are scenarios in which the Ontario legislature has already decided that fully compensating plaintiffs for their injuries is not always the pre-eminent policy concern. The most obvious example is the existence of statutory deductibles for motor vehicle accidents (which exist even if the plaintiff is not contributorily negligent). If it were good public policy to compensate victims at all costs, regardless of their fault, there would be no deduction for contributory negligence. Given that there is clearly an injustice paid to defendants in many tort scenarios, especially involving marginally negligent “deep pocket” defendants, it is time to consider further limits on plaintiff compensation.
Third, in torts involving economic loss, rather than personal injury damages, there is an even less compelling argument that plaintiff’s should not bear the risk. The Senate Committee on Banking, Trade and Commerce has found that plaintiff claims for purely financial loss do require the same level of protection as personal injury claims. In cases involving financial loss, the Committee recommended that joint and several liability not be maintained in relation to claims for purely economic losses arising by negligence in providing information under various federal insurance and business statutes.
Fourth, if the overriding public policy is to compensate the plaintiff at all costs, and one is already willing to place the risk on the defendant to accomplish this without regard as to their percentage of liability, then perhaps it is time to disregard fault entirely. A no-fault, government funded compensation scheme for tort victims where the burden is shared by all of the tax payers, and not just those with assets and/or adequate insurance, would certainly be a fairer way to accomplish this objective.
Joint and Several Liability is an archaic creature of the common law that has been codified in the Negligence Act in Ontario and elsewhere. The doctrine was developed at a time when the social safety net and private disability insurance options did not exist. Overwhelmingly the injustice noted in the case law and the weight of public policy favours a change to shift the balance of fairness back towards the middle between plaintiffs and defendants.
If our sole concern is fully compensating injured persons, regardless of proportionate fault, we ought to adopt a “no-fault” system. This would ensure that all injured persons, even those whose negligence contributed to their damages, are fully compensated for their post-incident needs.
Indeed, instead of continuing to deny justice to defendants, why not undertake what one American judge described as “a full evaluation” of “society’s compensation to accident victims through our tort system in comparison to all other means used by society to compensate victims” including the liability insurance system, disability benefits, employer benefits, medical insurance, workers’ compensation insurance against uninsured defendants and the welfare system?
 American Motorcycle Ass’n v. Superior Court, 20 Cal. 3d 578, 146 Cal. Rptr. 182 (1978) at age 609 (Clark J., Dissenting)[“American Motorcycle”].
 Ibid. at pg. 608 (Clark J., Dissenting).
 Ibid., at pg. 612 (Clark J. dissenting).
 See, e.g., Andrew Murray, “Joint and Several Liability: Putting Innocent Victims First” The Law Times (October 17, 2010)[Murray, “Putting Innocent Victims First”].
 Matthew Wilson, “New Directions for Liability Reform in Ontario” 40 Public Sector Digest (Winter 2011) at p. 42 [Wilson, “New Directions for Liability Reform”]; a full review of liability doctrines in American States as of July 2009 can be found in the Commercial Transportation Litigation Committee Report, “Comparative/Contributory Negligence and Joint and Several Liability”: A State by State Summary” (July 2009) at p. 40.
 Ibid., Wilson, “New Directions for Liability Reform”, at p. 41.
 The name of this case is unknown to the authors. It is referenced by Wilson, “New Directions in Liability Reform”, Ibid. at p. 41.
 Ibid.at p. 41; Guy v. Toronto (City), 2011 ONCA 689.
 Craig Harris, “One for All…. Or the “Deepest Pocket”?” Canadian Underwriter (Sept. 2002), online: <http://canadianunderwriter.ca/news/one-for-all–or-the-deepest-pocket/1000116959/> (date accessed: October 18, 2012)[Harris, “The Deepest Pocket”].
 Association of Municipalities of Ontario, “The Case for Joint and Several Liability Reform in Ontario” (April 1, 2010) at p. 22 [AMO, “The Case for Joint and Several Liability Reform”]; Stephen R. Moore, “Limitations and Joint and Several Liability”, Blainey McMurtry (June 23, 2006) at p. 12. The Negligence Act did alter the common law which prohibited contribution and indemnity between co-defendants and allowed defendants to pursue such claims, however it did not address the scenario of the impecunious or unavailable defendant.
 Gary B. Brewer, “Comment: Where is the Principle of Fairness in Joint and Several Liability- Missouri Stops Short of a Comprehensive Comparative Fault System?” (1985) 50 Mo. L. Rev. 601, at p. 603, footnote 6 [Brewer, “Where is the Principle of Fairness?”].
 Ontario Bar Association, “Joint and Several Liability Consultation” (July 28, 2010), at p. 2; The Advocates’ Society Response to the Law Commission of Ontario Consultation Paper on Joint and Several Liability under the Ontario Business Corporations Act, at p. 12.
 Lawson v. Viersen, 2012 ONCA 25, at para. 35.
 Ingles v. Tutkaluk Construction Ltd.,  1 S.C.R. 298, at para. 56.
 Ibid. at paras. 40 and 47.
 Ibid. at para. 58.
 Ibid., (citations omitted).
 AMO, “The Case for Joint and Several Liability Reform” supra note 12, at p. 3.
 Ibid., at p. 23, citing Strata Plan NW 3341 v. Canlan Ice Sports Corp.,  B.C.J. No. 1723 (S.C.J.).
 Ibid., at p. 11.
 Walt Disney Co. v. Wood, 489 So. 2d61 (Fla. 4th Dist. Appl 1986) aff’d (515 So. 2d 198 (Fla Sup. Ct. 1987) and commentary in Joan T. Schmit, et. al., “An Analysis of Litigation Claiming Joint and Several Liability” (1991) 58 J. Risk Ins. 397. For a very similar case see Fernanders v. Marks Construction of S. Carolina Inc., 499 S.E.2d 509 (S.C. Ct. App. 1998) and commentary in Gail A. Forman, “Comparative Negligence and Joint and Several Liability” (1999) 1 J. Legal Advoc. & Prac. 199.
 Russell F. Moran, “Open Those Deep Pockets- The Joint and Several Liability Doctrine and How it Surprises Juries”, online: <http://Ezinearticles.com/?expert=Russel_F_Moran>(date accessed: October 18, 2012).
 AMO, “The Case for Joint and Several Liability Reform”, supra note 12.
 Matthew Wilson, “New Directions for Liability Reform”, supra note 5 at p. 42; a full review of liability doctrines in American States as of Jul 2009 can be found in the Commercial Transportation Litigation Committee Report “Comparative/Contributory Negligence and Joint and Several Liability”: A State by State Summary” (July 2009).
 Report of the Standing Senate Committee on Banking, Trade and Commerce, “Joint and Several Liability and Professional Defendants” (March 1998).
 Law Commission of Ontario, “Joint and Several Liability Consultation Paper” (April 2010), at pp. 2-3.
 Brewer, “Where is the Principle of Fairness in Joint and Several Liability?”, supra note 13, at p. 621.
 Ibid., at p. 612.
 Ibid., at footnote 62.
 A good summary of this history is provided in Law Commission of Ontario, Joint and Several Liability Under the Ontario Business Corporations Act- Final Report (February 2011), at p. 15 [LCO, “Joint and Several Liability Under the OBCA”]. This summary includes references to: Alberta Law Reform Commission, Contributory Negligence and Concurrent Wrongdoers, 1979; Uniform Law Conference of Canada, Consolidation of Uniform Acts, 1985; British Columbia Law Reform Commission, Report on Shared Liability, 1988; Ontario Ministry of Financial Institutions, Final Report of the Ontario Task Force on Insurance, 1986; Ontario Law Reform Commission, Report on Contribution Among Wrongdoers, 1988; Law Reform Commission of Saskatchewan, The Insolidum Doctrine and Several Liability and Professional Defendants, 1998.
 LCO, “Joint and Several Liability Under the OBCA”, Ibid., at p. 19.
 Ibid., at p. 5. See also, Brewer, “Where is the Principle of Fairness in Joint and Several Liability?”, supra note 13, at p. 620.
 See discussion at page 3 above under the heading “The Social Cost of Joint and Several Liability”.
 Harris, “The Deepest Pocket”, supra note 9.
 Wilson, “New Directions for Liability Reform”, supra note 5, at p. 42.
 AMO, “The Case for Joint and Several Liability Reform”, supra note 12, at p. 6-7.
 Ibid., at p. 3.
 Harris, “The Deepest Pocket”, supra note 9.
 Murray, “Putting Innocent Victims First”, supra note 4.
 Brewer, “Where is the Principle of Fairness in Joint and Several Liability”, supra note 13.
 Report of the Standing Senate Committee on Banking, Trade and Commerce, “Joint and Several Liability and Professional Defendants” (March 1998).
 American Motorcycle, supra note 1, at pgs. 612-613 (Clark J., Dissenting).