"contribution or indemnity" vs "contribution and indemnity" crossclaim

[hairpins]

Hello all, I am studying for the Ontario bar exam. The materials state that "where the crossclaim only contains a claim for contribution or indemnity under the Negligence Act... the defendant by crossclaim does not need to deliver a defence to crossclaim." I am neurodivergent and get really caught up on small details so, in a practice question I did, it asked about "claims for contribution and indemnity." I got this question wrong because I noted the "and" which I felt would be different from if it stated "or." What I am confused by is whether the "or" is an 'and/or' or strictly 'or'. For additional context, the rule states, "This exception covers a situation where the crossclaiming party only seeks a claim for contribution or indemnity, the defendant to the crossclaim has already delivered a statement of defence in the main action and that there are no different facts or issues in defending that crossclaim that require specific pleadings so as to not take the crossclaiming defendant by surprise." (emphasis added). 

 

[loonie]

Maybe I am not fully understanding your question, but I believe the terms contribution and indemnity here are pretty much interchangeable. I would not try too hard to distinguish them and, instead, think of questions that refer to these terms as the same where a co-defendant in the main action is simply crossclaiming another co-defendant for contribution. But, if you're asking whether it should be read as "and/or" or strictly "or", then the answer to that would be "and/or" due to the nature of the terms. 

If you are concerned about this for future questions as well, then remember that the term "or" must, logically, mean "and/or".

Therefore, for r 28.05(2) to apply here, there has to be: (i) either a claim for contribution "and/or" indemnity under the NA by a co-defendant making the crossclaim and (ii) the defendant by crossclaim has already delivered a defence in the main action setting forth all the facts on which they intend to rely on in defence of the cross-claim. If both of these factors are satisfied, then the exception kicks in and the defendant by crossclaim does not need to deliver a defence to the crossclaim itself. 

Edited May 1, 2024 by loonie

[hairpins]

20 minutes ago, loonie said:

Maybe I am not fully understanding your question, but I believe the terms contribution and indemnity here are pretty much interchangeable. I would not try too hard to distinguish them and, instead, think of questions that refer to these terms as the same where a co-defendant in the main action is simply crossclaiming another co-defendant for contribution. But, if you're asking whether it should be read as "and/or" or strictly "or", then the answer to that would be "and/or" due to the nature of the terms. 

If you are concerned about this for future questions as well, then remember that the term "or" must, logically, mean "and/or".

Therefore, for r 28.05(2) to apply here, there has to be: (i) either a claim for contribution "and/or" indemnity under the NA by a co-defendant making the crossclaim and (ii) the defendant by crossclaim has already delivered a defence in the main action setting forth all the facts on which they intend to rely on in defence of the cross-claim. If both of these factors are satisfied, then the exception kicks in and the defendant by crossclaim does not need to deliver a defence to the crossclaim itself. 

Okay this is quite helpful, I think it's just not obvious to me when something is logically or not logically 'and/or' within civil law because I have no practical experience to draw from. I was getting caught up because these are distinct claims on paper so, to me, claiming both would make the crossclaim more complex (even if only marginally) and thus might require a defence if the purpose of not requiring a defence here is because the crossclaim is simple. I think I also don't totally understand why a defence is not required here, and the materials do not explain the why so I might do some more research into this if I find that this question appears frequently in other practice exams. Thank you so much for your help!!

Edited May 1, 2024 by Ribbons

[chaboywb]

@loonie's explanation looks right to me.

But I just want to chime in that, as much as possible, you should try not to overthink your answers on the Ontario bar exam. The most obvious answer is almost always the correct one (ie. if "consult your client for instructions" is an answer, it's probably right). You seem to have interpreted this as a trick question but trick questions (at least when I wrote it) are extremely uncommon. 

Edit: To be clear, I know this is easier said than done. But seriously, this is an exam where going with your gut will take you far.

Edited May 1, 2024 by chaboywb

[loonie]

16 minutes ago, Ribbons said:

Okay this is quite helpful, I think it's just not obvious to me when something is logically or not logically 'and/or' within civil law because I have no practical experience to draw from. I was getting caught up because these are distinct claims on paper so, to me, claiming both would make the crossclaim more complex (even if only marginally) and thus might require a defence if the purpose of not requiring a defence here is because the crossclaim is simple. I think I also don't totally understand why a defence is not required here, and the materials do not explain the why so I might do some more research into this if I find that this question appears frequently in other practice exams. Thank you so much for your help!!

No problem! With regards to you not fully understanding why a defence is not required in these scenarios, it is because it would have already been established in the statement of defence to the main action by the defendant by crossclaim. So, instead of making the co-defendant basically re-write their statement of defence to the main action, the court allows the co-defendant to rely on the facts of their original SoD for efficiency sake. 

And, yeah, I will echo what @chaboywb said: don't psyche yourself out and think too hard about whether the exam questions are designed to trick you. Unlike the LSAT, this will almost always not be the case for the bar exam. That's why I offered practical advice in my first post to pretty much treat the terms contribution and indemnity as synonymous because, more likely than not, questions on this topic will just be asking you to find the rule/principle for when/why/what is a cross-claim and basically just think of it as situations where there is multiple defendants and one of those defendants is claiming independent relief from another defendant. The materials also mention third-party claims, which is basically the same concept just that the party the defendant is seeking relief from is not a co-defendant, but someone not a party to the main action. 

Best of luck with your prep! These materials stink to read through lol. 

Edited May 1, 2024 by loonie

[hairpins]

19 minutes ago, chaboywb said:

@loonie's explanation looks right to me.

But I just want to chime in that, as much as possible, you should try not to overthink your answers on the Ontario bar exam. The most obvious answer is almost always the correct one (ie. if "consult your client for instructions" is an answer, it's probably right). You seem to have interpreted this as a trick question but trick questions (at least when I wrote it) are extremely uncommon. 

Edit: To be clear, I know this is easier said than done. But seriously, this is an exam where going with your gut will take you far.

Ooo, okay, this is very comforting to know. I feel like my law school MC questions were either written as trick questions or mistakes so I have been trained to really pay attention to those details. 

5 minutes ago, loonie said:

No problem! With regards to you not fully understanding why a defence is not required in these scenarios, it is because it would have already been established in the statement of defence to the main action by the defendant by crossclaim. So, instead of making the co-defendant basically re-write their statement of defence to the main action, the court allows the co-defendant to rely on the facts of their original SoD for efficiency sake. 

And, yeah, I will echo what @chaboywb said: don't psyche yourself out and think too hard about whether the exam questions are designed to trick you. Unlike the LSAT, this will almost always not be the case for the bar exam. That's why I offered practical advice in my first post to pretty much treat the terms contribution and indemnity as synonymous because, more likely than not, questions on this topic will just be asking you to find the rule/principle for when/why/what is a cross-claim and basically just think of it as situations where there is multiple defendants and one of those defendants is claiming independent relief from another defendant. The materials also mention third-party claims, which is basically the same concept just that the party the defendant is seeking relief from is not a co-defendant, but someone not a party to the main action. 

Best of luck with your prep! These materials stink to read through lol. 

OH, okay yes this makes sense!! And glad you echo the same advice. I am so used to trickiness in law school it is a bit hard to turn that part of my brain off, but I will do my best to do so. 

And shoutout to that last bit lol the materials are so long and, I am noticing, a bit repetitive. Thankfully, I have great technology that makes reading more fun (aka Speechify), but it is still an immense amount of work. 

 

Thank you both for your help!!!