On Tuesday morning at 9 a.m., partner Jennifer E. Bezaire was a guest on the Lynn Martin show on a.m. 800. Bezaire was on to discuss why municipalities are concerned about joint and several liability and to explain this legal concept and the obligations it imposes on municipalities and property owners.
Premier Doug Ford recently announced Ontario is going to look into these concerns – rural municipalities fear that they could face expensive lawsuits even for minor injuries on public property under the legal convention of joint and several liability. These concerns have even led some municipalities to ban activities like street hockey and tobogganing.
Legal Obligation of Municipalities
Bezaire said municipalities are concerned about insurance rates going up if they face lawsuits for injuries on their property.
However, she said the larger issue is that municipalities are legally obligated to ensure that anyone who enters their property is reasonably safe. If they take steps to ensure outdoor activities like skating are reasonably safe, there should not be an issue. The problem is that a number of municipalities have not taken steps to try to keep people reasonably safe and because of that have had to pay out on insurance claims, Bezaire said.
Bezaire also explained what it means to be reasonably safe. Property owners do not have a "standard of perfection," but they have to take reasonable measures to try to ensure reasonable safety. For example, when there is snow, they need to ensure they are not ignoring the condition. They may need to shovel snow and put salt down on the ground. It can be tough to hold a municipality liable for an injury if it has a reasonable system of maintenance and inspection, she said.
Bezaire was asked if it makes sense for municipalities to ban activities. She said that is probably a "dramatic reaction" to the liability concerns when all they need to do is put reasonable systems in place to help protect the public from the potential for injury.
Joint and Several Liability
Bezaire also explained the legal concept of joint and several liability. This concept means that if you are injured because of the negligence of two or more people, each party is responsible for your losses.
The municipalities are arguing that this concept is not fair. (This argument is one that is being pushed by the insurance companies.) The argument they use is if a municipality is only one percent liable, they should not have to pay for all of the accident victims' damages.
The reality is "these arguments are incredibly misleading," Bezaire said. She also said there are no cases she is aware of in Ontario where a municipality has ever been found only one percent liable for an accident and held to pay all of the victim's losses.
This is sort of a campaign that is coming from the insurers to try to scare the government and public into taking away the joint and several concept, Bezaire said. However, this legal concept is there to protect the accident victim, so they will receive full compensation for the full measure of their losses.