The Contributory Negligence Act of Saskatchewan only provides for apportioning damages among co-tort-feasors in instances of negligence, and does not enable negligent defendants to seek contribution and indemnity from defendants liable for intentional or other torts.
Sound Stage Entertainment Inc. v Burns, 2019 SKCA 18, per Richards, C.J.S.
FACTS + ISSUES
Two men were shot and injured at a Regina nightclub. The shooter was arrested and charged with a number of criminal offences. The victims commenced an action against the nightclub and its owner claiming that they had been negligent by creating a dangerous and hazardous environment by failing to have adequate security measures.
The appellants were sued in negligence, and tried to rely on the Contributory Negligence Act, RSS 1978, c C-31 [the “Act”], to commence a third party claim for contribution or indemnity against an alleged intentional tort-feasor. At trial, this application was refused as they tried to apportion negligence to the shooter, without alleging that he himself had been negligent.
The issue on appeal was whether the Act allowed for apportionment of damages for all tortious acts, or whether it was limited solely to incidences of negligence.
HELD: Appeal dismissed; trial decision upheld.
The Court held that the Contributory Negligence Act, allowed for the apportionment of liability among tort-feasors for negligence alone.
- The Court held that common law jurisprudence clearly established that apportionment of fault was intended for contributory negligence claims. Section 3 of the Act provided for apportionment of damages in circumstances where those damages were caused by negligent acts.
- The Court held that the ordinary meaning of the words in the Act are concerned with negligence, and negligence alone.
- The Court noted that an earlier case, Chernesky v Armadale Publishers Limited, 1974 CanLII 984, held that section 3 of the Act did not allow a defendant sued for libel to seek contribution or indemnity from a party jointly at fault. This section was only intended to apply to allegations of negligence. The appellant sought reconsideration of this decision as they claimed this section did not apply to the factual circumstance of an intentional tort-feasor.
- It was noted that a number of Uniform Law Conferences have provided a number of draft legislative suggestions, all of which clearly outlined that contribution or apportionment only applied in circumstances of negligence. The Uniform Law Conference, at times, even removed the word “fault” from the legislation in order to further clarify its scope.
- The Court held that the legislative history demonstrates the intent of the legislature to restrict contribution to allegations of contributory negligence alone. While Hansard was not always available, contemporaneous reporting on the bills and acts that would eventually be subsumed into the modern Act all focus on the apportionment of damages in instances of various negligent actors.
- The modern Act has not been changed in substance since 1944, and all superficial amendments were held not to change the basic intent of the legislature. In a cross jurisdictional analysis, it was noted that while some other provinces such as British Columbia and Ontario have included intentional torts or other torts into contributory assessments, they have done so on either significantly different legislative wording or on different questions of law.
- To summarize, the Chief Justice concluded by finding:
 As indicated, the best interpretation of s. 3 of the Act is that it applies only to negligence. I reach this conclusion because consideration of the facially broad wording of the section, with its reference to “fault”, is only part of the analysis demanded by the interpretational approach endorsed in Rizzo & Rizzo Shoes (Re). “Fault” must be read in its full statutory context and with reference to its legislative object and the relevant legislative history. When this is done, it becomes readily apparent that s. 3 does not apply to tortious or fault-based actions other than negligence.
 The relevant statutory context includes, perhaps most significantly, the long title of the Act. It specifies that the Act is concerned with negligence. As explained above, the object of s. 3 and its legislative history also indicate that it is aimed at negligence. The work of the Uniform Law Conference directly underpinning s. 3 makes this particularly clear. A focus on negligence to the expense of other sorts of fault was also evident in the Assembly when the Act was enacted. Some of the amendments made to the Act since 1944, and some of the ministerial comments made in connection with those amendments, might have muddied the waters somewhat. However, they have not done so to the extent of somehow justifying an interpretation of s. 3 that would expand its reach beyond what the Legislature originally intended.
 I might also add that one other, and somewhat larger, consideration makes me hesitant about reading “fault” in s. 3 as reaching beyond negligence. It is this. If fault is construed in this broader way, what are its limits? Does it extend to all intentional torts, breaches of fiduciary obligations, some or all kinds of breach of contract, breaches of statutory duties, and so forth? All of these sorts of actions, after all, involve fault. Simply put, this is a classic slippery slope and, in the absence of some principled way of determining where to stop sliding, I believe the Court should be reluctant to step onto it.”
The Court concluded that as the third party tort-feasor committed an intentional tort, rather than the tort of negligence, he was not included in the scope of section 3 of the Act.
The Chief Justice concluded by providing a call to legislators to consider other forms of contribution to an apportionment analysis to more fairly apportion fault among multiple wrongdoers. This represents the non-interventionist court approach which is representative of the judgment as a whole.
The Court noted that Alberta courts have gone both ways regarding its statute with similar wording: the Contributory Negligence Act, R.S.A. 2000, c. C-27:
 Two Alberta statutes operate in this area: the Contributory Negligence Act, RSA 2000, c C-27 [Contributory Negligence Act (AB)], and the Tort-Feasors Act, RSA 2000, c T-5. The Contributory Negligence Act (AB) contains sections that track ss. 2, 3 and 7 of the [Saskatchewan] Act:
1(1) When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.
(2) Nothing in this section operates to render a person liable for damage or loss to which the person’s fault has not contributed.
2(1) When damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each person was at fault.
(2) When 2 or more persons are found at fault, they are jointly and severally liable to the person suffering the damage or loss, but as between themselves, in the absence of a contract express or implied, 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.
6 When it appears that a person not already party to an action is or may be wholly or partly responsible for the damages claimed, that person may be added as a party defendant on such terms as are considered just.
(Emphasis added by the Court)
 The meaning of “fault” in the Alberta legislation has not been settled. In order to give some flavour of the current state of play, it may be useful to briefly note some of the relevant cases. In Kelemen v El-Homeira, 1999 ABCA 315 (CanLII) at para 26, 250 AR 67, leave to appeal dismissed (2000), 271 AR 398 (note) (SCC), the Court stated: “Further, contributory negligence is not applicable in the deceit action”. There was no discussion of the apportionment legislation. See also: Village on the Park (Re), 2009 ABQB 497 (CanLII) at para 189,  12 WWR 509. In Lafrentz v M & L Leasing, 2000 ABQB 714 (CanLII),  1 WWR 629, Perras J. wrote that “[t]he Alberta Joint Tortfeasors Act and the Contributory Negligence Act have been held to relate only to negligence actions” (footnote omitted, at para 28). In Goertzen v Sandstra, 2005 ABQB 623 (CanLII), the Contributory Negligence Act (AB) was held not to be applicable to the apportionment of damages between the defendants and the future defendants “as it is concerned with the contributory negligence of a plaintiff, which is not the case here” (at para 83). The formula contained in the statute was used, anyway, on the basis that it was a just and equitable method of determining liability.
 On the other side of the coin, some Alberta cases have apportioned damages between defendants whose wrongs were intentional. For example, in Fletcher v Hand (1994), 1994 CanLII 8997 (AB QB), 156 AR 142 (QB), Mason J. relied on Anderson to find “fault” includes intentional and negligent wrongs, and apportioned liability between a defendant who was liable based on an intentional tort and defendants who were liable for negligence torts (negligent misrepresentation). See also: R v Rumsey (1984), 1984 CanLII 2942 (FC), 12 DLR (4th) 44 (WL) (Fed Ct (TD)) at para 15; Raywalt Construction Co. Ltd. v Bencic, 2005 ABQB 989 (CanLII) at para 366,  8 WWR 440; Sloan v Black Sea Homes Corporation, 2007 ABPC 231 (CanLII) at paras 21–22 (exception for fraud); Lepine v Sherwood Park Dodge Chrysler Jeep Ltd., 2018 ABPC 12 (CanLII) at paras 134–170 [Lepine]. In Freyberg v Fletcher Challenge Oil and Gas Inc., 2007 ABQB 353 (CanLII) at para 161,  10 WWR 133, Kent J. acknowledged that the statute applied where damage was caused negligently or intentionally because both involved some level of “fault” on behalf of the tortfeasor, but stated the same could not be said for strict liability offences.