On February 5, 2009, the LCO Board of Governors approved a project on Joint and Several Liability under the Ontario Business Corporations Act.
The OBCA provides for joint and several liability for professionals, such as actuaries and lawyers, who make, for example, misrepresentations in filings under the Act. Joint and several liability means the professional could be liable for all damage resulting from misrepresentations, regardless of the degree of fault, if the other defendants are not available or able to satisfy the damages awarded.
The purpose of the LCO’s project is to consider whether the OBCA should be amended to bring in greater alignment with the Ontario Securities Act, federal legislation and trends in the United States, the United Kingdom and Australia to provide for proportionate liability, capped liability, a variant of these approaches or other approach to minimizing the impact of the joint and several liability principle.
The focus of this project is specifically with respect to possible changes to the OBCA. It is not about tort reform more broadly. Consideration of issues arising from the broader context may contribute to the LCO’s analysis about liability and the policy considerations that must be measured when thinking about reform in this context, however.
On October 28, 2010, the LCO, supported by the Hennick Centre for Business and Law, held a roundtable discussion to review the “joint and several” liability scheme for professionals under the OBCA. The Roundtable panelists and participants consisted of a range of professionals who represented the interests of various stakeholders, including corporate lawyers, accountants, litigators (plaintiff-side and defendant-side), retail and institutional investors and consultants. A shorter Consultation Paper had been prepared as background for the Roundtable.
Professor Poonam Puri of Osgoode Hall Law School, OHLS LCO Scholar in Residence is heading this project. Professor Puri is also co-Director of the Hennick Centre for Business and Law, a joint initiative of Osgoode and the Schulich School of Business.
Based on the LCO’s independent research, including the responses to the Consultation Paper, the LCO made recommendations for reform to the OBCA in the final report for the project.
Joint and Several Liability Publications