Law Times

PAGE 12 FOCUS OcTOber 4, 2010 • Law Times Municipalities seek reform of Negligence Act O BY ROBERT TODD Law Times ntario's municipalities, arguing that the princi- ple of joint and several liability makes them easy prey for litigants looking to recoup high damage awards, are calling on Queen's Park to reform the Negligence Act to protect them. Some municipalities have seen sharp insurance rate in- creases due to the legislation, says Collingwood, Ont., coun- cillor and Association of Mu- nicipalities of Ontario president Norman Sandberg. "We're appealing to the prov- ince to change the legislation, not so that municipalities are let off the hook but so municipali- ties are not seen as the insurers of last resort [or] the body with the deepest pockets and there- fore left to pay the balance of the claim," he says. Th e AMO has forwarded a When it comes to IP in Canada, We're Well Read Ridout & Maybee LLP: Editors of the Canadian Patent Reporter it all starts somewhere www.ridoutmaybee.com white paper on the issue to At- torney General Chris Bentley. It points out that the act states: "Where damages have been caused or contributed to by the fault or neglect of two or more persons . . . and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suf- fering the loss or damage. . . ." Th at provision may force a defendant deemed as little as one per cent at fault to pay an entire damage award when other defen- dants can't pay their share. "As 'deep pocket' defendants with seemingly limitless public resources at their disposal through the power of taxation, municipal- ities have often become the tar- gets of litigation when other de- fendants do not have the means to pay high damage awards," the AMO document states. Moreover, the one-per-cent rule often forces municipali- ties to make out-of-court settle- ments in order to steer clear of costly litigation. Claims against municipalities Ridout_LT_Feb9-16_09.indd 1 2/5/09 10:52:55 AM can arise in the context of mo- tor vehicle accidents, road safety, building inspections, and facility and event safety, according to the AMO. Th e association's white pa- per cites a 2007 case in which an unnamed eastern Ontario mu- nicipality was found 25-per-cent liable for an incident in which a drunk driver struck a boy. Th e case settled at $8.3 million in damages, but because the driver's insurance covered only $1 mil- lion, the municipality had to pay about $6.3 million. Liquor and Host Liability Law in Canada Liquor and host liability is an area that has undergone significant change and has quickly become the subject matter of countless claims and much litigation. This text addresses all aspects of liquor and host liability in Canada in the commercial, employment and social settings. Commercial liability topics include: • • • • ORDER your copy today Hardbound • Approx. 280 pp. December 2010 • Approx. $90 P/C 1001010000 ISBN 978-0-88804-515-7 This book also examines the unique legal standards applicable to social hosts, and the employer acting in a "host" context for employees where alcohol is served. conduct of entrants conduct of employees responsibility for the conduct of patrons potential liability arising from activities in, and condition of the commercial premises Honouring Bonnie Tough Continued from page 9 claimed damages due to taint- ed-blood transfusions. Th at matter went all the way to the Supreme Court of Canada, and Tough is now one of four lawyers appointed to supervise the settlement. Still, Tough has earned respect for much more than her court- room achievements. Th e Os- goode Hall Law School graduate returned to the faculty to teach insurance law for more than a decade. She has also served as a director of Th e Advocates' Soci- ety and remains a bencher of the Law Society of Upper Canada af- ter her 2007 election. Currently, she serves as vice chairwoman of the LSUC's professional regula- tion committee. "I think it's important to stay canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1004 www.lawtimesnews.com involved," she says. "It's impor- tant to get out and about and meet people who can both be a source of work for you by way of referral and also a source of edu- cation, knowledge, information." Tough was honoured at a din- ner last week hosted by the OBA at the Fairmont Royal York Hotel in Toronto. LT Ontario's approach contrasts with dozens of U.S. states that have introduced proportionate liability. Th e AMO calls the ap- proach here "archaic" and sug- gests that "the law has evolved over hundreds of years by de- fault as a result of the combined eff ect of technical and often primitive concepts of tort law." If the law doesn't change, citizens will be the ones to suf- fer as cities and towns have to cut public services to minimize liability and insurance costs, the paper suggests. Meanwhile, Sandberg says the stakes as a result of joint and sev- eral liability are even higher for smaller municipalities. "If a municipality is small and has an annual budget of $20 million or $25 million and then is made responsible for a $10-million claim, that's a huge and fi nancially devas- tating eff ect on that particular municipality," he says. "I'm not suggesting that a municipality like the City of Toronto is any better, but the larger one is, the greater the ability to absorb some of that additional cost." Cheryl Woodin, a partner at Borden Ladner Gervais LLP in Toronto who handles cases in- volving municipal liability, says she supports eff orts to reform the legislation. "I think all of us are uncom- fortable with the idea of a plain- tiff who is blameless not being able to recover," she says. "But we're equally uncomfortable with the idea of a municipality — tax- payers — funding that gap." At the same time, she says there are few cases in which municipalities have had to pay lopsided damages due to joint and several liability. Th at's be- cause the courts have generally conducted proper analyses on negligence before apportioning blame, according to Woodin. "For the most part, what you see is an analysis of municipal exposure on the law as we un- derstand it — very hearty de- bates about whether there's a duty, whether something is too remote, whether it's a policy function and therefore immune from liability," she says. "Th ere continues to be a very vigorous analysis of that from our courts, which is all we can ask for." Th e bottom line for the AMO, says Sandberg, is that the legislation must change to create more equitable payouts. "What we're trying to accom- plish and are speaking to the prov- ince about is having claims settled in the apportioned responsibility as determined by the courts," he says. "So if there's a $10-million settlement for an injury, and the municipality is found 10-per- cent liable, then it's a $1-million payment to the settlement." Municipalities hope to see re- forms to refl ect that principle by the end of the provincial Liberal government's current mandate. "It's an ongoing issue. Th e province has shown a willing- ness to discuss this with us," says Sandberg. LT Lorne P.S. Folick, Michael Libby and Paul Dawson

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