Canada, it seems, is joining the United States in becoming a litigious society.
Mapleton council voted unanimously on July 12 to provide $1,000 to help the Ontario Good Roads Association fight a court battle to ensure minimum maintenance standards (MMS) remain recognized by the courts as a defence in lawsuits.
Frank Cowan Company, an insurer of numerous municipalities in Ontario, explained the MMS are being challenged in Superior Court this fall.
Cowan’s letter to council stated, “MMS were created to help municipalities defend legal actions alleging non repair of roads. These standards provide municipalities with not only a framework for road maintenance, but also a third defence under Section 44 of the Ontario Municipal Act.
“It states a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if … c) at the time the cause of action arose, minimum standards established under section (4) applied to the highway or bridge, and to the alleged default and those standards have been met.”
Cowan said the court application is seeking to remove that defence.
“If successful, not only will all motor vehicle accidents going forward be impacted, but also all open motor vehicle accidents within the dates of Nov. 1, 2002 to March 6, 2010.”
People seldom hear about lawsuits at the municipal level because council must deal with those behind closed doors, but they occur far more often than most people might think. Any losses or court awards would likely raise insurance premiums, and that affects taxpayers.
Further, municipalities are seen to be cash rich sources for litigation. There have been numerous instances where municipalities are found just one per cent at fault, but because the other people being sued have no money or enough insurance, the entire burden of an award can fall on the municipality.
Mapleton CAO Patty Sinnamon said it falls under the Joint and Several Liability Act.
In dealing with the Minimum Maintenance Standards, Executive Director of the Ontario Good Roads Association J.W. Tiernay, said in a letter to councils across Ontario, “unfortunately, claims are repeatedly brought against road authorities for personal injury and property damage alleging inadequate maintenance of roads, signage, or failing to provide property winter deicing, sanding, and (or) plowing.
“The MMS has been very successful in defending against these claim,” he continued. “If the municipality can show that they were following the minimum level of maintenance set out in the regulations, plaintiffs are often discouraged from proceeding with their claims either by their lawyers or upon presentation of proof in discovery.”
He added, “Further, upon making it to the courts, usually with a claim for catastrophic injury, the courts have been looking for the compliance with MMS with regards to the municipal liability.”
He said the victims of a recent winter accident have applied by the courts to have the MMS declared null and void, and Tiernay said, “if successful, will have huge implications for all Ontario municipalities. Municipalities who are exercising due diligence and maintaining their roads in good repair, or providing excellent winter maintenance, will no longer have a viable defence against spurious claims of liability.
He said, “With no viable defence, claims that might otherwise be thrown out will continue on to expensive trials and old claims could possibly be re-filed.”
Tiernay added, “The courts may once again start awarding large settlements which will result in higher insurance premiums of municipalities.”
That is why the Good Roads Association is filing to fight the application to have the MMS thrown out.
It asked that each municipality provide ten cents per person with a maximum contribution capped at $50,000, and the minimum set at $1,000. Any funds not used will be refunded on a per capita basis.
Public Works Manager Larry Lynch told council that Centre Wellington, Guelph-Eramosa, and Wellington North Townships had each already agreed to contribute to the fund.
Council agreed unanimously to provide $1,000. Councillor Jim Curry was absent.
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A News release on Monday indicated that support by Ontario municipalities for a legal defence fund has been very positive.
Over the last few weeks, numerous municipalities have come forward and contributed to the MMS litigation fund and more are expected as the request works through the normal council cycle.
OGRA’s President, J. Paul Johnson, is pleased with the support.
“We appreciate that municipal budgets are stretched and we are happy that municipalities are recognizing that a contribution now could save significant money in the future,” said Johnson.
