Negligence Act ~ Procedural Matters

The Negligence Act also includes some procedural provisions, however, inherently, they may also be matters of substance.

Let’s look at the following sections:

Adding parties

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 the action in the manner prescribed by the rules of court for adding third parties.

Jury to determine degrees of negligence of parties

6. In any action tried with a jury, the degree of fault or negligence of the respective parties is a question of fact for the jury.

When plaintiff may be liable for costs

7.  Where the damages are occasioned by the fault or negligence of more than one party, the court has power to direct that the plaintiff shall bear some portion of the costs if the circumstances render this just.

First, it is possible to add parties to a lawsuit. This is the case even after the limitation period has expired. So, if A sues B, and fails to sue C who might also be responsible, B can add C as a third party to the lawsuit.

The Ontario Rules of Practice provide a period on one year to take third party proceedings. So, if an accident were to occur on 1 April 2010, then the limitation would expire for A to sue B and C on 1 April 2012, or two years after the accident. However. B has a period of one year to take third party proceedings against C. So, effectively, C can’t really breathe a sigh of relief until 1 April 2013.

The matter of apportionment is a fact to be determined by the jury in any case where a jury has been selected. The rules allow any party to a legal proceeding to elect a trial by jury.

There may be circumstances where the degree of fault that is to be apportioned to the plaintiff is significant, perhaps 85% to 95%, or circumstances where the plaintiff has added numerous parties all with dubious degrees of fault, and a significant remoteness from the case. In such instances, the court can assess some of the costs to the plaintiff.  

Brian Madigan LL.B., Broker

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