BC Supreme Court – No "Joint and Several Liability" For Stanley Cup Rioters
Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing if an individual causing property damage in a riot can be ‘jointly and severally’ liable for damage caused by others in the riot.
In this week’s case (ICBC v. Stanley Cup Rioters) British Columbia’s government monopoly auto insurer, ICBC paid out numerous claims after vehicles were damaged and destroyed in the 2011 Stanley Cup Riot in downtown Vancouver.
ICBC sued numerous individuals. As with any lawsuit, collecting damages is a concern and some of the Defendants had deeper pockets than others. ICBC argued that Defendants should be jointly and severally liable (a legal principle that allows a Plaintiff to collect all the damages from one of many responsible parties, typically the one with the deepest pockets, and leaving it to that Defendant to chase down and collect the fair share from other liable parties.).
Mr. Justice Myers rejected this argument finding that the Defendants were individually responsible for the damages they caused but the principles of joint and several liability were not triggered in this riot. In reaching this conclusion the Court reasoned as follows:
[31] In its notice of civil claim, ICBC pleaded:
499. Each and all of the Defendants, named and unnamed, having participated in the Riot, are joint tortfeasors, along with others who participated in the Riot, and who joined in a common unlawful purpose of rioting contrary to criminal and common law, and thereby caused or contributed to the losses of the Plaintiff, and are liable to the Plaintiff for any or all of the damages caused by the Plaintiff herein.
The proposition is that the unlawful riot was a common design. Every one who participated in it is a joint tortfeasor and therefore liable for all the damage done in the riot.
[32] It is to be borne in mind that this was not a planned or deliberate riot. There was no ringleader; it was not instigated by a person or group of people. It was spontaneous. Under these circumstances, it appears to me ICBC’s proposition is too broad.
[33] First, it is too broad on a geographical level: every one participating in the riot on Seymour Street would be jointly liable for damage done by participants on Howe Street.
[34] Second, it is too broad from a conduct point of view. For example, someone who has refused to leave the riot in order to take photographs would be equally liable for the destruction of a vehicle by someone else even if they never encouraged that destruction, much less laid hands on the vehicle.
[35] Third, it is too broad because it does not recognise that the assistance rendered to the principal tortfeasor must be substantial.
[36] Fourth, it begs the difficult factual distinction between whether there was one riot or several. (Although the riot has been referred to in the singular, and I will continue to use the term, it is imprecise for the purposes of determining joint liability for a tort.)
[44] As I stated, this was not a directed or coordinated riot. Nor did it involve gangs spontaneously coalescing and then moving from location to location in unison. As I set out above, I do not accept that participation in the riot, in itself, establishes joint and several liability for torts committed during the riot. As noted by Lords Neuberger and Sumption in Sea Shepherd, joint tortious liability must be kept within reasonable bounds. The analysis must be more fine-tuned than looking at the riot as a whole. For most of the defendants, the question that must be asked is whether they acted in concert with the common end of destroying a vehicle and whether the destruction occurred as a result (above, para. 27).
[45] Another way of expressing the question is to ask whether a defendant was part of the group that destroyed the vehicle and was his participation more than trivial. That has to be examined vehicle by vehicle, defendant by defendant. A defendant may be liable for damage to more than one vehicle if he took part in damaging those vehicles; that does not make him liable for all of the vehicles.
[46] Several people spontaneously arriving at a vehicle and some of them cheering when another damages the vehicle does not amount to a common design. There is no case where the law has gone that far. Cheering or observing is not sufficient participation upon which to found joint liability.
[47] People “piling on” a vehicle in order to damage or destroy it may be joint tortfeasors if it is apparent they acted together pursuant to a common design to do the damage. In a riot context, I do not think it necessary that the plan be explicitly laid in advance between them. They may also be concurrent tortfeasors if the damage they caused is impossible to apportion. In that case, each is liable for the full amount of the loss. They may also both be liable as principal tortfeasors (per Lord Toulson at para. 19 ofSea Shepherd).
[48] There are several instances where a defendant did something to a vehicle that did not harm it (for example, attempting to remove a gas tank cover) and the vehicle was destroyed at a later point, there being no evidence as to the link between the defendant’s initial action and the ultimate destruction. In that case, I do not think there can be any liability. That can be viewed as an instance where, to use Lord Neuberger’s framework (above, para. 25), no assistance was provided to the tortfeasors who are primarily liable; i.e., those who caused the damage. It can also be viewed as the defendant having only a similarity in design but being an independent actor not causing damage per Scrutton L.J. in The Koursk (above para. 27).