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In answer to David Cheifetz's suggestion, that the courts should recognize a common law contribution right for the benefit of meritorious claimants who fall through gaps in the statutory scheme: I agree! However this would still leave us with a mish-mash of overlapping common law and statutory recovery regimes and for this reason I think that a still better idea would be statutory reform, as I argue in Chap 4 of my book, esp at 4.64-4.69. My objection to Moore-Bick J's analysis in Niru is not that I oppose the courts working to fill in the gaps of the statutory scheme by recognizing a direct common law contribution right, but that in one breath M-B refuses to do this, and then in the next he recognizes a common law subrogation right which amounts to exactly the same thing, except in a more complicated way. Subrogation entails fictionally reviving someone else's rights and giving them to the claimant instead of just giving the claimant a right of his own. Why should C be entitled to this complicated subrogation remedy? Because D has been unjustly enriched at his expense. Why not give him a direct right then? A job for Occam's razor, indeed.

Charles

Colleagues:

The twists & turns, the past few years, in England's contribution jurisprudence as judges struggle with the scope of the 1978 Civil Liability (Contribution) Act have made for interesting reading. And probably larger fees for solicitors and barristers.

Charles Mitchell, in his last message, mentions the seeming incongruity of allowing what amounts to a common law claim for contribution where the statutory claim must fail because the statute does not apply. I agree with the view that the ultimate rationale for contribution is in UE; however, I don't see the incongruity where the significant reason why the contribution claim failed is merely that the categorisation of the concurrent wrongdoers' liability to the injured person puts the situation outside of the limited ambit of the contribution legislation. Any other approach, I feel, is another reminder of Maitland's now almost 1 century old reminder that while the forms of action have been abolished they still rule from their graves.

The logical and better solution, I feel - Occam's Razor - is to create an analogous common law contribution right among concurrent wrongdoers applicable to cases where the legislation does not apply, but generally tracking the sensible portions of the jurisprudence on the statutory right.

I recommend Weinrib, Contribution in a Contractual Setting (1976) 54 Can Bar Rev 338 for an excellent and succinct explanation of why this is the better approach.

That is what is occurring in Ontario. Although the jurisprudence is still in its infancy, Ontario judges have been able to avoid dodges like equitable subrogation to allow contribution between multiple concurrent wrongdoers whose wrongs have caused the same DAMAGES to the injured person, in cases where the Ontario contribution statute - which is limited to claims for contribution between concurrent tortfeasors - does not apply, by creating an analogous common law contribution right. And then importing the principles from the statutory contribution right into the common law right. The rationale is, of course, that the common law is creation of the judges, there is no statutory impediment, and that the legislation may be looked at as indication of how the common law should develop.

As to the statutory right, while the Ontario legislation is limited to claims for contribution between tortfeasors, Ontario judges, fortunately, been able to duck - actually, I think it's generally overlooked - the distinction between DAMAGE and DAMAGES, which seems to bedevil the English jurisprudence, because the Ontario statute, unlike England's form (current and past), provides that contribution applies where the DAMAGES have been caused by the fault or negligence of two or more tortfeasors.

David Cheifetz
Toronto, Canada