NOTES

  1. R.S.C. 1985, c. C-44, as amended.
  2. Honourable W.Z. Estey, Q. C. Proportionate Liability and Canadian Auditors, Brief Prepared for the Legal Liability Task Force, Canadian Institute of Chartered Accountants, 23 January 1996.
  3. S.C. 1991, c. 46, as amended.
  4. S.C. 1991, c. 45, as amended.
  5. S.C. 1991, c. 47, as amended.
  6. Standing Senate Committee on Banking, Trade and Commerce, Corporate Governance, August 1996, p. 2.
  7. Standing Senate Committee on Banking, Trade and Commerce, Joint and Several Liability and Professional Defendants, ("Interim Report"), December 1996.
  8. Canadian Bar Association, Professional Liability, Submission to the Standing Senate Committee on Banking, Trade and Commerce, October 1996, p. 1-2.
  9. Interim Report (1996), p. 3-4.
  10. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability, A CICA Submission to the Standing Senate Committee on Banking, Trade and Commerce, 23 October 1997, p. 5. Financial Executives Institute Canada, Presentation to the Standing Senate Committee on Banking, Trade and Commerce, 6 November 1997, p. 3.
  11. Ibid. (October 1997), p, 12.
  12. Ibid.
  13. United Kingdom, Report by the Law Society’s Special Committee, Joint and Several Liability, July 1996, p. 2-3.
  14. Options Discussion Paper (October 1997), p. 15.
  15. Canadian Bar Association, Professional Liability, Submission in Response to Senate Committee on Banking, Trade and Commerce, Options Discussion Paper, November 1997, p. 4.
  16. Ibid., p. 5.
  17. John A Campion, Evidence Proportionate Liability -- Auditors, 28 October 1996, p. 50-51. The Campion document presents arguments for and against joint and several liability.
  18. Australia, Inquiry into the Law of Joint and Several Liability, Report of Stage Two, January 1995, p. 33.
  19. Ibid., p. 32.
  20. United Kingdom, Department of Trade and Industry, Feasibility Investigation of Joint and Several Liability, 1996, p. 16.
  21. Canadian Bar Association, Professional Liability (November 1997), p. 2-3.
  22. Ibid., p. 3-4.
  23. Standing Senate Committee on Banking, Trade and Commerce, Evidence, 6 November 1997, Issue 4:19.
  24. Hercules Managements Ltd. v. Ernst & Young, (1997), 146 D.L.R. (4th) (SCC).
  25. Ibid., p. 597.
  26. Ibid., p. 592.
  27. Ibid., p. 597.
  28. Ibid., p. 596.
  29. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability (October 1997), p. 25.
  30. Canadian Bar Association, Professional Liability (November 1997), p. 4.
  31. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability (October 1997), p. 11.
  32. Canadian Bar Association, Professional Liability (November 1997), p. 14.
  33. Australia, Inquiry into the Law of Joint and Several Liability (1995), p. 34.
  34. Ibid., p. 40.
  35. As of December 1996, Vermont, Utah, Wyoming and Illinois had totally abolished joint and several liability. The courts of Alabama, Indiana, Kansas and Oklahoma do not apply the doctrine. The American Tort Reform Association, Tort Reform Record, 31 December 1996.
  36. United Kingdom, Feasibility Investigation of Joint and Several Liability (1996), p. 24.
  37. Pub. L. No. 104-67, 109 Stat. (1995). The Act became law on December 22, 1995 when Congress overrode the President’s veto.
  38. Donald C. Langevoort, "The Reform of Joint and Several Liability under the Private Securities Litigation Reform Act of 1995: Proportionate Liability, Contribution Rights and Settlement Efforts," The Business Lawyer, Vol. 51, August 1996, No. 4, p. 1157-1175, at p. 1157.
  39. Ibid., p. 1172.
  40. European Commission, Final Report of a Study on the Role, Position and Liability of the Statutory Auditor within the European Union, 1996, p. XII.
  41. Law Reform Commission of British Columbia, Report on Shared Liability, August 1986; University of Alberta, Institute of Law Research and Reform, Contributory Negligence and Concurrent Wrongdoers, April 1979; Ontario Law Reform Commission, Report on Contribution among Wrongdoers and Contributory Negligence, 1988.
  42. In October 1996, the Final Report of the Ontario Securities Commission Task Force on Small Business Financing examined the issue of auditors’ liability in connection with the offering documents prepared using the Small Business Prospectus Form. It recommended that auditors be liable only for their proportionate share of damages awarded to a plaintiff in a statutory civil action for misrepresentation in an offering document prepared using the Small Business Prospectus Form. It also recommended that joint and several liability continue for defendants who intentionally make a misrepresentation or delay disclosure.

    43. In its March 1997 report Responsible Corporate Disclosure, the Toronto Stock Exchange Committee on Corporate Disclosure recommended that experts should be liable for misleading disclosure in connection with reports, opinions or statements attributed to them. But each defendant should be liable only for its proportionate share of the damages awarded to a plaintiff, unless the plaintiff established that the defendant had intentionally made the misrepresentation or caused the disclosure to be delayed. In such situations, joint and several liability would apply.

  43. Canadian Bar Association, Professional Liability (November 1997), p. 8.
  44. Ibid., p. 10.
  45. Ibid., p. 13.
  46. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability (October 1997), p. 22.
  47. Canadian Bar Association, Professional Liability (November 1997), p. 12.
  48. Ibid., p. 15.
  49. Ibid.
  50. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability (October 1997), p. 6.
  51. Standing Senate Committee on Banking, Trade and Commerce, Evidence, 6 November 1997, Issue 4:21.
  52. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability (October 1997), p. 18-19.
  53. Ibid., p. 20.
  54. Ibid., p. 21-22.
  55. Certified General Accountants – Canada, Letter to Senator Michael Kirby, Chairman, Standing Senate Committee on Banking, Trade and Commerce, 19 November 1997.
  56. Ibid., p. 2-3.
  57. Ibid., p. 2.
  58. Investment Dealers Association of Canada, Letter to Senator Michael Kirby, Chairman, Standing Senate Committee on Banking, Trade and Commerce, 10 October 1997, p. 2.
  59. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability (October 1997), p. 6.
  60. Ibid., p. 7.
  61. Hercules Managements Ltd. v. Ernst & Young (1997), 146 D.L.R. (4th), p. 594.
  62. Standing Senate Committee on Banking, Trade and Commerce, Proceedings, Fact-Finding Meeting on Joint and Several Liability, 22 November 1996, Issue 24B:14.
  63. Campion, Evidence Proportionate Liability – Auditors (1996), p. 10. Canadian Bar Association, Professional Liability (November 1997), p. 6.
  64. Australia, Inquiry into the Law of Joint and Several Liability (1995), p. 33.
  65. Campion, Evidence Proportionate Liability -- Auditors, 28 October 1996, p. 5.
  66. Standing Senate Committee on Banking, Trade and Commerce, Evidence, 6 November 1997, p. 20.
  67. United Kingdom, Feasibility Investigation of Joint and Several Liability (1996), p. 34-35.
  68. Canadian Bar Association, Professional Liability (November 1997), p. 6.
  69. Ibid., p. 7.
  70. Standing Senate Committee on Banking, Trade and Commerce, Proceedings, Fact-Finding Meeting on Joint and Several Liability, 21 November 1996, Issue 24A: 5 as quoted in the Options Discussion Paper (October 1997) p. 63.
  71. United Kingdom, Department of Trade and Industry, Limited Liability Partnership, A Consultation Paper, February 1997, p. 7.
  72. Canadian Bar Association, Professional Liability (1996), p. 4-5. This quotation is also found on pages 62-63 of the Options Discussion Paper (October 1997).
  73. Standing Senate Committee on Banking, Trade and Commerce, Evidence, 23 October 1997, Issue 1:29.
  74. Ibid., p. 2-3.
  75. Ibid., p. 2.
  76. Investment Dealers Association of Canada, Letter to Senator Michael Kirby, Chairman, Standing Senate Committee on Banking, Trade and Commerce, 10 October 1997, p. 2.
  77. Canadian Institute of Chartered Accountants, Proposal for Reform: Modified Proportionate Liability (October 1997), p. 6.
  78. Ibid., p. 7.
  79. Hercules Managements Ltd. v. Ernst & Young (1997), 146 D.L.R. (4th), p. 594.
  80. Standing Senate Committee on Banking, Trade and Commerce, Proceedings, Fact-Finding Meeting on Joint and Several Liability, 22 November 1996, Issue 24B:14.
  81. Campion, Evidence Proportionate Liability – Auditors (1996), p. 10. Canadian Bar Association, Professional Liability (November 1997), p. 6.
  82. Australia, Inquiry into the Law of Joint and Several Liability (1995), p. 33.
  83. Campion, Evidence Proportionate Liability -- Auditors, 28 October 1996, p. 5.
  84. Standing Senate Committee on Banking, Trade and Commerce, Evidence, 6 November 1997, p. 20.
  85. United Kingdom, Feasibility Investigation of Joint and Several Liability (1996), p. 34-35.
  86. Canadian Bar Association, Professional Liability (November 1997), p. 6.
  87. Ibid., p. 7.
  88. Standing Senate Committee on Banking, Trade and Commerce, Proceedings, Fact-Finding Meeting on Joint and Several Liability, 21 November 1996, Issue 24A: 5 as quoted in the Options Discussion Paper (October 1997) p. 63.
  89. United Kingdom, Department of Trade and Industry, Limited Liability Partnership, A Consultation Paper, February 1997, p. 7.
  90. Canadian Bar Association, Professional Liability (1996), p. 4-5. This quotation is also found on pages 62-63 of the Options Discussion Paper (October 1997).
  91. Standing Senate Committee on Banking, Trade and Commerce, Evidence, 23 October 1997, Issue 1:29.

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