Joint and several liability: who pays when one can't

In personal injury law, the bill doesn’t always get split evenly. Sometimes, one defendant ends up paying for everyone else, including the ones who couldn’t. That’s the reality of joint and several liability in Canada, and for personal injury lawyers, knowing how to use it is just half the battle.

What is joint and several liability?

Joint and several liability lets an injured plaintiff collect the full amount of their damages from any one of the defendants found at fault. This occurs regardless of how small that defendant’s share of the blame actually is.

The classic example is when a plaintiff wins a $1 million judgment against three defendants, one of whom is found only one percent at fault. Under the doctrine of joint and several liability, that one-percent defendant can still be on the hook for the entire $1 million. They can then pursue the others for their share, but that’s their problem, and not the plaintiff’s. This is where the doctrine earns its street name of the “one percent rule.”

Some provinces have codified this doctrine into hard statutes. In Ontario, the principle is set out in section 1 of the Negligence Act. It states that where two or more persons are at fault, they are jointly and severally liable to the person suffering loss or damage. However, as between the liable persons, each must contribute and indemnify each other in the degree in which they are respectively found to be at fault.

The law’s logic is straightforward. Between an injured victim and the wrongdoers who caused the harm, the wrongdoers should bear the risk of a co-defendant being uninsured, insolvent, or is impossible to find. This burden should be the victim’s.

Learn about the provincial laws and deadlines that lawyers and litigants should not miss when it comes to personal injuries proceedings. Check out our article on “Personal injuries proceedings act: Limits, notices, and traps” to find out more.

How does joint and several liability work in multi-defendant personal injury claims?

Multi-defendant personal injury cases are where this principle does its heaviest lifting. These cases usually happen in the following:

• a chain-reaction collision involving several motor vehicles
• a construction site accident involving multiple contractors
• a slip and fall involving both a tenant and a property owner

Once a court finds that two or more defendants caused an indivisible injury (harm that can’t be cleanly separated into what each defendant caused), all of them are jointly and severally liable for the whole loss.

In practice, the effect of joint and several liability are as follows:

• the plaintiff: can collect the entire judgment from whichever defendant has the money to pay
• the paying defendant: can then seek contribution from the others, proportionate to their assessed fault
• the defendant who cannot pay: if a co-defendant has gone bankrupt or can’t be found, the remaining defendant absorbs the shortfall

The contribution process happens entirely between defendants. As the Ontario Court of Appeal confirmed in Endean v. St. Joseph’s General Hospital, 2019 ONCA 181, that “the right of indemnity is not something which affects the plaintiff.”

The indivisible injury question

The question of whether joint and several liability applies often turns into whether an injury is divisible or indivisible.

In Bradley v. Groves, 2010 BCCA 361, a plaintiff suffered soft tissue injuries in two separate car accidents in 2006 and 2008. The trial judge found the injuries indivisible. The first defendant was held responsible for 100 percent of the damages, including harm from an accident she had nothing to do with. The Supreme Court of Canada denied leave to appeal.

This means that if the medical evidence supports indivisibility, all the contributing defendants are exposed for the full loss. As such, defence counsels should aggressively develop divisibility evidence wherever it exists.

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What is a Pierringer agreement and how does it let you settle with one defendant?

A Pierringer agreement solves a common multi-defendant problem: how do you settle with one defendant without releasing the rest?

Named after a 1963 Wisconsin decision and adopted widely across Canada, a Pierringer agreement is a private contract between the plaintiff and one or more defendants, but not all defendants. As the settling defendants pay and exit the litigation, the non-settling defendants remain, and are now responsible only for their own several share of the damages.

The Supreme Court sets out its mechanics in Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37. It was held that the agreement “allows one or more defendants in a multi-party proceeding to settle with the plaintiff and withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually caused.”

What a valid Pierringer agreement includes

Also known as proportionate share settlement agreement, the case of Amoco Canada Petroleum Co. v. Propak Systems Ltd., 2001 ABCA 110, gave the typical elements of a Pierringer agreement:

• a payment from the settling defendants in full satisfaction of the plaintiff’s claims against them
• a promise by the plaintiff to discontinue proceedings against those defendants
• formal amendments to the pleadings removing the settling defendants
• a plaintiff covenant not to pursue the non-settling defendants for the settling defendants’ assessed share of fault

That last element is structural, since it removes any reason for non-settling defendants to seek contribution from the settling parties, allowing those parties to exit cleanly.

Disclosure and burden of proof

The dollar amounts paid under a Pierringer agreement are protected by settlement privilege and need not be disclosed to non-settling defendants, per Sable.

The existence of the agreement, however, must be disclosed where it changes the adversarial dynamics of the litigation. For instance, Ontario’s Rules of Civil Procedure now introduced a new Form 49E for partial settlement disclosure, with consequences for non-compliance.

Once the settlement is in place, the burden of proving the settling defendants’ negligence shifts to the non-settling defendant. The Nova Scotia Court of Appeal confirmed this in MacNeil v. Kajetanowicz, 2019 NSCA 35, where a trial judge had incorrectly placed that burden on the plaintiff, and a new trial was ordered.

How do courts calculate a non-settling defendant’s exposure after a partial settlement?

After a Pierringer agreement is executed, trial proceeds against the remaining defendants. The court still apportions fault among all parties (whether settling and non-settling), but the non-settling defendant’s financial exposure is limited to their assessed several shares.

The calculation works like this:

• the court determines total damages
• fault is allocated among all parties, including the settling defendants
• the non-settling defendant pays their several share only
• the amount already paid by the settling defendant is deducted from the total verdict

This deduction rule comes from Laudon v. Roberts, 2009 ONCA 383. In this case, it was confirmed that a plaintiff cannot recover the same damages twice, since double recovery is prohibited, save for some narrow exceptions.

What happens to the joint and several liability when a co-defendant is insolvent?

When a co-defendant can’t pay in cases of joint and several liability, the shortfall doesn’t disappear. In most Canadian provinces, it lands on the remaining solvent defendants.

Consider a $6 million claim where a municipality is found 25 percent liable; theoretically, that would be $1.5 million. If the primary defendant’s insurer can only cover $1 million, the municipality’s exposure climbs to $5 million, because it is the only solvent party standing.

How provinces handle the insolvency gap

Where the insolvent co-defendant’s share ends up depends on jurisdiction:

• Ontario, Alberta, Manitoba, New Brunswick, PEI, and Newfoundland and Labrador: remaining defendants absorb the insolvent share; the plaintiff is fully compensated
• British Columbia and Nova Scotia: where the plaintiff is contributorily negligent, liability becomes several only; the plaintiff bears the shortfall
• Saskatchewan: the uncollectable share is divided proportionately among all at-fault parties, including the plaintiff

Courts back Pierringer even when co-defendants are insolvent

In Cadieux v. Cadieux, 2025 ONCA 405, the City of Ottawa entered a Pierringer agreement in a catastrophic injury claim. Since the City is the deep-pocket, self-insured defendant, the non-settling defendants argued they were prejudiced by being left to face excess damages beyond their coverage limits.

The Court of Appeal dismissed the objection. Speculative future prejudice does not outweigh the policy of encouraging settlements. The court described this as “cascading settlements,” where one deal often triggers others, and courts should facilitate that process, not obstruct it.

Joint and several liability: knowing who will pay when one cannot

Joint and several liability is a question in every multi-defendant personal injury file. The one-percent rule, the Pierringer structure, the post-settlement exposure calculation, and the insolvency gap all interact in ways that determine whether a plaintiff walks away whole or short. For personal injury lawyers, the answer to “who pays when one can’t” is rarely simple, but with the right tools in hand, it is always answerable.

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