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14
• May 2 , 2014
Focus
THE LAWYERS WEEKLY
PERSONAL INJURY
Limiting municipal liability hurts the innocent
It’s incumbent on government to initiate
a real dialogue with all interested parties
if it is serious about revising a policy, but in this
case a serious policy review is occurring with
the only stakeholder that stands to benefit — the
municipalities. Roger Oatley
n an important story that has
Ithreaten
the potential to severely
access to fair compensa-
tion for catastrophically injured
accident victims in the province,
the Association of Municipalities
of Ontario (AMO) is asking the
Ontario Government to limit their
liability in motor vehicle accident
claims against municipalities.
To address the issue, the attorney general’s office is weighing
one-sided changes to the longstanding principle of joint and
several liability.
Under the present tort system
in Ontario, if someone sues and
obtains a judgment against two
people, both parties are fully
liable to see that the judgment is
paid. So, if a court finds a municipality five per cent liable and the
driver who hit the plaintiff 95 per
cent liable, the municipality pays
all the judgment after the driver’s
policy limits are exhausted. The
municipality can go after the
driver to recover what it has paid
over their five per cent share.
Municipalities have lobbied the
government for years to eliminate the principle so they can save
some money on their annual
insurance premiums.
At the very least, the AG’s office
may be looking at the issue from a
narrow and one-sided perspective.
Roger Oatley
Oatley Vigmond
lolon / iStockphoto.com
It’s incumbent on government to
initiate a real dialogue with all
interested parties if it is serious
about revising a policy, but in this
case a serious policy review is
occurring with the only stakeholder that stands to benefit — the
municipalities. Given that discus-
Malach + Fidler LLP
Mediation & Arbitration Services
A Fair Settlement
Is No Accident
Jon Fidler, C.Med.
John Soule
Stephen Malach, Q.C.
Ivan Luxenberg
439 University Avenue
Suite 1401
Toronto, Ontario
M5G 1Y8
30 Wertheim Court
Unit 6
Richmond Hill, Ontario
L4B 1B9
(416) 598-1667
(416) 598-5222 (fax)
(905) 889-1667
(905) 889-1139 (fax)
e-mail: mediation@malach-fidler.com
www.malach-fidler.com
A Division of Malach Fidler Sugar + Luxenberg LLP
sions with the AMO have been
ongoing for two years, it seems
surprising that the legal profession was given only weeks to
respond to two proposals for changes to joint and several liability
before it introduced its legislation.
Furthermore, the Ontario
Safety League (OSL), which has
been a leader in road safety for
100 years, was not approached
despite their close relationship
with Ontario’s Ministry of Transportation. The OSL has said the
proposed changes will have a
“direct negative impact on road
safety by limiting accountability.”
Without the risk of liability,
municipalities will have less
incentive
to
keep
roads
safe — even though keeping a
road safe usually costs no more
than erecting a sign.
My firm’s Jan. 28 submission
argued that the AMO’s position
would result in substantial injustice for the following reasons:
n
It would benefit wrongdoers and
deprive innocent accident victims;
n
It would shift the burden of
inadequate insurance from
wrongdoers to catastrophically
injured accident victims;
n
It would discriminate against
the most seriously injured;
n
It would result in vulnerable
people being forced to live without care and rehabilitation;
n
It would unduly complicate
litigation and threaten access to
justice, and;
n
It would reduce the deterrent
that civil litigation provides to
encourage municipalities to keep
their roads reasonably safe.
Municipalities are already
adequately protected from liability. In 2011 the Law Commission
of Ontario determined that the
law already provided multiple
layers of protection to corporate
auditors to ensure that they are
not unfairly saddled with liability. The accounting profession
has asked for the same relief.
The principle of joint and several liability ensures that all
wrongdoers are liable to compensate their victims. The AMO
seeks to limit the amounts
wrongdoers are obliged to pay to
the most seriously injured accident victims — people with spinal
cord and severe brain injuries.
In Deering v. Scugog (Township)
[2010] O.J. No. 4229, two young
sisters (aged 19 and 16) suffered
serious spinal cord injuries in a
motor vehicle crash. The older sister (Shannon) was driving. Her
younger sister (Erica) was a passenger. Shannon had liability
insurance with limits of $1 million. The judge found that the road
where they lost control was hazardous to drivers exercising ordinary care because of the absence of
a centre line and a speed limit that
was too high for such a hilly, rural
road. The court found that the
municipalities knew, or should
have known, about the dangerous
condition of the roadway.
Erica Deering was an innocent
passenger. She suffered one of the
worst injuries imaginable and is
now in a wheelchair and requires
24-hour attendant care. The
value of her future care costs
alone was calculated at over $14
million. Under our system of
joint and several liability, Erica is
entitled to recover the full extent
of her damages from any defendant found to be at fault.
The AMO is proposing a system
in which Erica would recover
only a fraction of her damages,
despite a finding of liability on
the municipality. She would not
be able to pay for the future care
she needs to live with dignity. The
municipal defendant would only
pay for a fraction of the damage it
had caused.
This is not consistent with the
basic rule of tort law that innocent
accident victims be fully compensated for their losses. If the AMO
gets its way, someone like Erica
would live in poverty and at the
public’s expense so that a negligent municipality could continue
ignoring its substandard roads
and maintenance practices. That
just can’t be fair.
Roger Oatley is a founding partner of
Oatley Vigmond and one of the
country’s leading personal injury
lawyers. He was lead counsel on
Deering v. Scugog and acted for
Shannon Deering.