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 Monday 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.
"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."
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.
It is costing municipalities across the province more than $300 million to insure their communities, McNamara said. In his community, insurance costs increased 41 per cent in one year as a result of one claim, he said.
The Ontario Trial Lawyers Association has previously warned against municipalities seeking to create exceptions to joint and several liability, which the lawyers call a long-standing and sacrosanct principle.
"If these lobby groups realize their vision, Ontario would see a much different system, where plaintiffs would no longer be fully restored," the association writes on an undated page on its website.
"The lobby groups propose changes that would restrict innocent victims from recovering their losses when one or more wrongdoers is judgment proof or otherwise unable to pay his share. The changes proposed by the lobby groups are dramatic, jeopardize the rights of innocent victims, and require a serious debate and rebuttal."
