Gendron v. Doug C. Thompson Ltd. (Thompson Fuels), 2019 ONCA 293

The plaintiff suffered damages as a result of an oil spill and sued multiple parties including the relevant oil technician and the oil tank manufacturer. Before trial, the plaintiff and the oil tank manufacturer entered into a Pierringer agreement. The trial judge apportioned liability: 40% to the defendant oil technician and 60% to the plaintiff. The question arose whether the defendant oil technician was entitled to set off amounts received by the plaintiff from the settled defendant beginning at 40% of the total damage (its portion of liability), or only after 100% (the total damages). The trial judge held that the principle against double recovery is based on the total damages caused without reference to the plaintiff’s contributory negligence. As a result, the defendant oil technician was only entitled to set off for its portion of liability if the amount it proportionally owed (40% of the total damages award) plus the amount paid by the settling defendant exceeded the total damages award. The Court of Appeal upheld the trial judge’s holding and reasoning.