Canada: Should You Use A Pierringer Agreement?

Last Updated: May 11 2017
Article by Julia Vizzaccaro

Most Read Contributor in Canada, October 2018

The Pierringer or proportionate share agreement1 continues to be recognized by the courts as a valuable tool for encouraging settlement in multi-party litigation. Fundamentally, a Pierringer agreement is a private contract between a plaintiff and one or more (but not all) of the defendants in an action. The agreement is designed to allow the defendants that are party to the Pierringer agreement (the "Settling Defendants") to settle the plaintiff's claims against them and withdraw from the litigation.

The use of Pierringer agreements in the context of contaminated sites litigation has received limited commentary. However, given that contaminated sites cases often involve multiple defendants, the use of a Pierringer agreement is worth considering. For a defendant in particular, a Pierringer agreement can allow for a quick resolution of the action and avoid the obstacles typically encountered in attempting to reach a global resolution. For example, where it appears there is some liability on the facts, a Pierringer agreement can fix your client's exposure to liability at an early stage in the litigation, thereby avoiding the uncertainty and cost of proceeding to trial.

The following provides a brief refresher on the top four things to remember about Pierringer agreements:

  1. Disclosure of the Agreement: Although usually the subject of settlement privilege, settling parties are obliged to disclose the existence of a settlement agreement where the agreement changes the adversarial orientation of the lawsuit or the court needs knowledge of the settlement in order to maintain the fairness and integrity of its process.2 A Pierringer agreement falls within this exception to settlement privilege. Consequently, at a minimum, the existence of a Pierringer agreement must be disclosed to the court and any non-settling parties.3 However, the settlement amount may be kept confidential until the end of trial unless there is a competing public interest that outweighs the public interest in encouraging settlement.4 Disclosure of the settlement amount at the end of trial is required in order to prevent the plaintiff from receiving double recovery.
  2. Several Liability for the Non-Settling Defendants: In the Pierringer agreement, the plaintiff agrees to limit their claims against the non-settling defendant to several (as opposed to joint and several) liability. Put another way, as a result of the Pierringer agreement, the non-settling defendants would only be held accountable for their own share of liability at trial.5
  3. Amendment of the Claim or Indemnification of the Settling Defendants Against Cross-Claims: Because the plaintiff agrees to pursue the non-settling defendants only for their several liability, the Settling Defendants typically need not be concerned about a claim for contribution and indemnity from the non-settling defendants.6 In practice, this is accomplished by incorporating terms into the Pierringer agreement that the plaintiff must: (i) amend its claim to clearly and unambiguously limit the relief sought against the non-settling defendant to the non-settling defendant's proportionate degree of fault and/or (ii) indemnify the Settling Defendants against any claims for contribution and indemnity by the non-settling defendants.
  4. The Settling Defendants No Longer Participate in the Action: Following the Pierringer agreement, the Settling Defendants have very little reason to continue to participate in the action.7 The lack of participation by the Settling Defendants may result in a procedural disadvantage for the non-settling defendants. To minimize this, protections for non-settling defendants can be incorporated into the agreement itself or imposed by way of a court order. For example, in Sable Offshore Energy Inc. v. Ameron International Corp., the Supreme Court of Canada highlighted that "the court order approving the settlement required that the plaintiffs get production of all relevant evidence from the settling defendants and make this evidence available to the non-settling defendants on discovery."8

As mentioned above, in the context of contaminated sites claims, where a number of parties have been sued, a Pierringer agreement can be an effective tool to extract your client from the litigation early on. However, before negotiating a Pierringer agreement, you should consider both its benefits and pitfalls. A few of these have been identified from the perspective of both the plaintiff and a defendant:

Plaintiff's Perspective

  • Benefit: The plaintiff is able to achieve monies upfront without incurring the cost of proving its claim at trial or bearing the risk of exposure to an adverse costs award. Further, obtaining funds from the Settling Defendants may help the plaintiff "finance" its lawsuit against the non-settling defendants.
  • Pitfall: By entering into a Pierringer agreement, the plaintiff agrees to seek only several liability among the non-settling defendants. Accordingly, it will be important to assess whether there is an ability to delineate the liability attributable to the Settling Defendants and non-settling defendants. In contaminated sites cases, this can often be a challenge in the early stages of the litigation. If it is difficult to delineate the proportion of liability as between the defendants, then it may be more advantageous to maintain all parties in the action or seek a global resolution.

Defendant's Perspective

  • Benefit: If you are able to identify your contribution to the plaintiff's loss and are willing to acknowledge some liability, a Pierringer agreement allows you to negotiate a fixed cap or limit on the particular liability to the plaintiff. In doing so, you can avoid the significant expense of proceeding to trial and avoid the risk that the trier of fact may attribute greater liability to you over other defendants. Further, the risk of being subject to a costs award in favour of the plaintiff is removed.
  • Pitfall: The Pierringer agreement will not prevent a non-settling defendant from pursuing an independent claim against a Settling Defendant to indemnify the non-settling defendant for its several liability. For example, in Laidler v. Public Guardian & Trustee,9 an action was brought for damages arising from the purchase of allegedly contaminated land. The action was brought against the vendors of the property, the real estate agents involved in the transaction, and their brokerages. The real estate agents and their brokerages entered into a Pierringer agreement with the plaintiffs. One of the non-settling defendants refused to abandon their crossclaim against one of the settling defendants (the vendor's former agent and listing broker). The crossclaim was based on negligence and breach of contract. While the Court acknowledged that the vendors would not be able to maintain crossclaims against the settling defendants based on contributory negligence only, it found it would be open to the trial judge to find that the vendors were entitled to indemnification for all or part of the damages they may be called upon to pay to the plaintiffs.10 As a result, the Court declined to strike the crossclaim.

Similarly, in Amello v. Bluewave Energy Limited Partnership,11 the Amellos suffered an oil spill in the basement of their home. The oil seeped into their home from a tank maintained by the defendant, Bluewave Energy Limited Partnership ("Bluewave"). The oil that seeped into the basement was transported by another defendant, Daniel Charles Transport Ltd. The defendants asserted crossclaims against each other in the action. A Pierringer agreement was entered into between the plaintiff and Daniel Charles Transport Ltd. A motion was subsequently brought by Daniel Charles Transport Ltd. for judgment dismissing Bluewave's crossclaim on the basis of the Pierringer agreement. However, the Court refused to dismiss the crossclaim as it was premised on Daniel Charles Transport Ltd. being liable to indemnify Bluewave for Bluewave's several liability under a services agreement.12

In sum, a Pierringer agreement can be a useful tool in a litigator's tool box to achieve a partial resolution of an action. However, great care should be taken to ensure that it is the right tool for the job.


1.Pierringer agreements, also known as "proportionate share agreements" or "bar orders," are named after the American decision of Pierringer v. Hoger, 124 NW 2d 106 (Wis SC 1963).

2.Moore v. Bertuzzi, 2012 ONSC 3248 at para 99 (Ont Sup Ct J).


4.Sable Offshore Energy Inc. v. Ameron International Corp, 2013 SCC 37 (SCC).

5.Ibid at para 23.

6.This is because the segregation of liability effectively eliminates the basis of claims for contribution and indemnity as between the Settling Defendants and the non-settling defendants. However, as discussed further below, the Pierringer agreement will not prevent a non-settling defendant from pursuing an independent claim against a Settling Defendant to indemnify the non-settling defendant for its several liability.

7.Moore v. Bertuzzi, 2012 ONSC 3248 at para 85.

8.Sable Offshore Energy Inc. v. Ameron International Corp, 2013 SCC 37 at para 24 (SCC).

9.Laidler v. Public Guardian & Trustee, 2015 ONSC 943 (Ont Sup Ct J).

10.Ibid at para 11.

11.Amello v. Bluewave Energy Limited Partnership, 2014 ONSC 4040 (Ont Sup Ct J).

12.Ibid at paras 95-96.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Alexander Holburn Beaudin + Lang LLP
Alexander Holburn Beaudin + Lang LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Alexander Holburn Beaudin + Lang LLP
Alexander Holburn Beaudin + Lang LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions