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After extensive analysis, the LCO is not satisfied that substituting another regime of liability for that of joint and several liability under the OBCA is warranted. Furthermore, there already exist mechanisms, such as contractual caps and self-insurance, and potential mechanisms such as contractual caps relevant to shareholder claims, financial statement insurance and catastrophic bond securitization that can address at least some of the concerns raised about the application of joint and several liability to professional advisors.

The LCO recommends that the principle of joint and several liability continue to operate for OBCA corporations.

The LCO reaches this conclusion on the basis that (i) the common law tests for professional negligence sufficiently address concerns about excessive or unfair liability; (ii) the available evidence on the specific deleterious effects of joint and several liability on insurance premiums, insurance coverage, pricing of audit services, and entry into the professions does not justify a change; and (iii) trends in other jurisdictions toward proportionate liability, particularly the United States, do not provide a sufficient grounding for reform, particularly in light of the more litigious environment in the United States.