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Municipalities' concerns of 'liability chill' unfounded: Orlando

Ontario municipalities’ concerns around the ‘joint and several liability’ rule are overblown and leave innocent victims on the hook for compensation, Toronto critical injury lawyer Dale Orlando tells AdvocateDaily.com.

CTV News reports the province is taking a look at municipalities' concerns about the legal rule that they say causes "liability chill" and leads some to ban activities such as street hockey and tobogganing.

In a speech last month to the Rural Ontario Municipal Association, Premier Doug Ford said the government would launch consultations about "the joint and several liability" rule, the news outlet reports.

"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.

Orlando, partner with McLeish Orlando LLP, explains that the legal rule means that if two defendants are found responsible for a plaintiff’s damages, it doesn’t matter what the apportionment of fault is if one of the defendants is unable to pay.

“If someone is driving and gets hit by another driver with $1 million in auto insurance and the plaintiff is now quadriplegic with a $15 million suit, there is $14 million in judgment that they are not able to collect,” he says. “But let’s say the driver who hit the plaintiff lost control on an icy road, so the municipality is also a defendant in the suit.”

At the end of the trial, the driver was found 90 per cent responsible for driving too fast and the municipality 10 per cent because it should have been salting the road, and they are jointly liable to the plaintiff for the entire amount.

“If the defendant driver only has $1 million in insurance, the municipality would have to pay the remainder even though they're only technically responsible for 10 per cent,” Orlando says.

“Municipalities are trying to change those rules because they don't want to be responsible for anything other than their proportionate share,” he says. “My position is, who should bear that shortfall? Should the victim who has quadriplegia be the one who doesn't collect? Should it fall on the victim’s family?”

Orlando says if a judge has determined a victim’s actual losses amount to $15 million, most of that is tied up in the cost of future medical care costs.

"If a municipality has been found negligent and partly responsible, why should the plaintiff bear that loss?”

He says it would be a rare situation where a municipality has to pay a considerable judgment where they had minimal responsibility.

“Municipalities say they can't even allow tobogganing and road hockey anymore because of the rules of joint and several liability and I find that hard to believe. I can’t recall a single tobogganing or road hockey case where a municipality suddenly had to pay this huge judgment yet they were only one per cent to blame,” he says.

“That just does not happen,” Orlando adds.

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