August 11, 2016

Municipalities have taken it on the chin for banning some very Canadian activities, from street hockey to tobogganing and snowmobiling. Local governments fear that even minor injuries on municipal property will result in crippling lawsuits against the public purse.

While critics may dismiss such fears, the truth it that municipalities cannot ignore the risk. Under a legal convention called “joint and several liability,” full damages can be recovered from a defendant who has minimal responsibility.  This means that if a drunk driver has no insurance, the lawyers can go after the municipality and argue that the road surface was partially responsible for the collision. If the local government is found to be even one percent responsible, it would have to pay the full tab for the drunk driver’s negligence.  

The impact on insurance premiums, which have been rising, is substantial. In 2011, Ontario municipalities spent more on insurance than on maintaining bridges and culverts, funding conservation authorities, and administering Ontario Works benefits.

“Municipalities simply cannot afford to be the insurer of last resort,” said Gary McNamara, President of the Association of Municipalities of Ontario (AMO). “Almost all other provinces have solutions in place to ensure municipalities are not used as deep pocket defendants in lawsuit, but rather are held accountable in proportion to their actions.”

Ontario municipalities have been fighting for years for changes that would introduce fair and reasonable limits on municipal liability, but the Ontario Government has failed to act. In 2014, the Ontario government was ready to create modest protections for taxpayers – until personal injury lawyers complained. Since then, the problem has only gotten worse.

Under public pressure, some municipalities have recently removed bans on street hockey, but the risk remains. As municipal leaders across the province gather this week for the annual AMO Conference, liability reforms remains a top priority.

“Changes to liability legislation would not cost the Province anything, but could lead to lower insurance premiums and allow more people to enjoy recreational activities like road hockey and tobogganing in their communities,” McNamara said.