Municipalities' deep pockets make them attractive defendants
By AdvocateDaily.com Staff
Strike, counsel to Will Davidson LLP, says a series of cuts to accident benefits, combined with the statutory minimum of just $200,000 insurance that drivers are required to carry in Ontario, means that it’s not unusual for plaintiffs to find the money for their recovery falls short of their needs, particularly in cases involving catastrophic injuries.
“When you’re dealing with a serious injury, you must always explore the potential liability of the municipality,” he says.
The concept of joint and several liability means that even if a municipality is found liable for a tiny percentage of the accident’s cause, they could be on the hook for the entire amount of damages, depending on the ability of other defendants to pay, says Strike.
“If someone comes over the centre line and hits someone, at first blush, you might think that they’re entirely responsible. And while they may be primarily at fault, you have to look at the surroundings of the accident to see if there were other issues at play.”
He has seen cases in which faulty streetlights, improper signage or obscured stop signs allowed liability for an accident to be shared with the local authority responsible for their upkeep.
Other typical claims during the winter involve allegations of improper sanding, salting or snow plowing, though Strike says they have become harder to prove in recent years due to dramatic improvements in the way cities manage such risks.
“Municipalities are much more sophisticated in this area, which is good news for everyone in terms of safety,” he says. “Their trucks all have GPS, so you can see exactly where they were, at what time, and what they were applying to the road surface. You’ll also see trucks out on the road in advance of freezing rain, applying pre-treatments.”
Strike says the high stakes at play mean these cases tend to be extremely hard-fought, often ending up at trial. He says municipalities will often rely on the inherent nature of a Canadian winter as part of their defence.
“They can’t be expected to guarantee perfect roads at all times,” he says. “The other main defence is of legislative authority. There’s only so much money in their budgets, and if they’ve turned their mind to maintenance, but can only afford four trucks instead of 10, it’s going to be hard to prove liability on the basis that they should have done more.”
Strike says plaintiffs must act quickly following an accident. He likes to have an expert inspect the site as soon as possible afterwards to identify potential issues with road markings, signage or other city-owned infrastructure.
“You want to get someone to the scene for an assessment straight away before things change,” he explains.
In addition, Strike says the sense of urgency is enhanced by some statutes that create short notice periods for municipal claims, such as s. 44 (10) of the Municipal Act, under which actions against a city for negligence are barred unless “within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail” to the clerk of the municipality.