Ontario consulting on municipalities' worries on 'liability chill'
TORONTO — Ontario is taking a look at municipalities' concerns about a legal rule that they say causes "liability chill'' and leads some to ban activities such as street hockey and tobogganing.
In a speech to the Rural Ontario Municipal Association, Premier Doug Ford said the province will launch consultations about "the joint and several liability'' rule, which says that if one party is found to have only some responsibility, they would still be liable for total damages if other liable parties were unable to pay.
"We have heard your concerns about increasing insurance costs and the impact that these costs can have on property taxes, on municipal taxpayers, and on the average Ontario resident,'' Ford said.
"We will look at the evidence and develop a solution that makes sense.''
Rural municipalities have long been calling for reforms, saying they fear the legal convention could mean they face steep costs from lawsuits for even minor injuries on public property, being forced to pay 100 per cent of the cost in an accident in which they were only found to bear minimal responsibility.
If a drunk driver has no insurance, lawyers could go after the municipality, arguing that the road surface was partially responsible for a collision, the Association of Municipalities of Ontario says.
In an interview with AdvocateDaily.com, Toronto insurance defence lawyer Heather Vaughan says she’s encouraged that the government is considering solutions based on evidence and not “lobbing by certain sectors.”
“This is not just an issue for municipalities. It's also an issue for insurers whose clients are named because they are known to be insured and many are presumed to have deep pockets,” says Vaughan, partner with Benson Percival Brown LLP.
“A municipality, after all, has a legal obligation to adhere to a reasonable standard of care in the exercise of its duties,” she says. “Is a blanket ban on tobogganing and street hockey really due to the joint and several liability provisions in the Negligence Act or is a complete ban just an easier risk management decision?”
Vaughan says the review “should be done in conjunction with the government’s review of the auto insurance regime so that there are no unintended consequences.”
She also says it’s important to remember that the accident victims are usually also Ontario residents and their injuries and needs have to be looked after.
``Victims of any type of accident obviously have to be fairly compensated, we get all that,'' said Gary McNamara, warden of Essex County and a past AMO president. ``They should be treated fairly and with respect. We get that, but it shouldn't be solely on the backs of municipal taxpayers. We can't be held accountable 100 per cent. It just doesn't make sense.''
It is costing municipalities across the province more than $300 million to insure their communities, McNamara said. In his community of Essex, insurance costs increased 41 per cent in one year as a result of one claim, he said.
Some communities have even taken to banning street hockey and tobogganing, and it's unfortunate, said McNamara.
``When an eight-year-old child has got a toboggan in tow and he goes up to that hill and then somebody, a bylaw enforcement officer, says, 'Sorry but you can't toboggan down this hill' — why? Because there's a massive lawsuit in Hamilton that's driven other municipalities to say, 'Can we take the risk?'' McNamara said.
Tobogganing was banned for years in Hamilton, where a man won a court settlement of nearly $1 million after his toboggan hit a snow-covered drainpipe and he injured his spine.
But Allen Wynperle, the president-elect of the Ontario Trial Lawyers Association, said there were no other defendants in the Hamilton case, so it was not a matter of joint and several liability. Municipalities appear to be concerned about liability overall, and while certainly a challenge, joint and several liability is a specific issue, he said.
``Very few cases have this problem where the municipalities end up paying more than their liability in the case, but they're usually very, very serious cases,'' Wynperle said.
``In a joint and several liability case, remember, the municipality has been found at fault for conduct or an omission and so a person already has an assessment of damages in that situation and the municipality has been found at least partly at fault.''
The trial lawyers hope Ontario holds compensating accident victims as the top priority, Wynperle said.
— with files from AdvocateDaily.com
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