While the Association of Municipalities of Ontario says it’s “unacceptable” that the Liberals have abandoned any changes to the province’s liability laws, the head of the Ontario Trial Lawyers Association says the government made the right call.
“We understand the pressure [municipalities] are under, but the harm that would be caused is much worse than the harm they’re facing. It would be catastrophic to people,” said Steve Rastin, the association’s president.
Rastin says it’s important to understand that joint-and-several liability has been part of the common-law legal system for centuries, and shouldn’t be discarded because Ontario’s municipalities fear growing insurance costs.
Joint-and-several liability can mean, in cases where a municipality is found partly at fault in a lawsuit (commonly over road conditions or building code violations) the town or county’s insurance can be made to pay out large damages. AMO had been lobbying for years to have the rule changed, preferring instead a system of “proportional liability,” where a municipality’s liability for damages would be tied to its responsibility. If a town were found to be 25 per cent responsible for a road accident, it could only be made to pay 25 per cent of the damages a victim was entitled to.
However, earlier this week AMO was told by the Liberal government that, notwithstanding earlier statements from previous attorney general John Gerretsen the government would not move forward with changes to joint-and-several liability. However, Premier Kathleen Wynne later told reporters “it’s not the end of the conversation.”
Rastin says municipalities are seeking to control their costs on the back of accident victims.
“It’s important to understand that municipalities are only liable after a judge has found them to be negligent,” Rastin says. “Joint and several has been a principle of law for hundreds of years … the people who are attempting to change the status quo here are the municipalities.”
In their submission to the Ministry of the Attorney General, the trial lawyers group noted the conclusion of the Ontario Law Reform Commission in 1988, which said “any unfairness to a defendant flowing from joint and several liability was outweighed by the unfairness to an innocent plaintiff.”
Rastin also points to the analysis done by the Law Commission of Ontario, which looked at joint and several liability in the context of the Ontario Business Corporations Act from 2009 to 2011, and recommended that no changes to joint-and-several liability be made1.
Absent joint-and-several liability, Rastin say victims would still need the kind of long-term medical care that’s responsible for the largest damage claims, but those costs would fall to the provincial taxpayer through the health and long-term care budgets.
AMO maintains that the cost of insuring small municipalities against damages has increased rapidly due in part to joint and several liability, a claim OTLA rejects. In their submission to the attorney general, OTLA asserted that no empirical evidence of increasing insurance costs exists that can be attributed solely to joint-and-several liability.