OGRA Pushes for Joint and Several Liability Reform
Written on August 20, 2014.
UPDATE: Ontario Attorney General Madeleine Meilleur announced at the 2014 AMO Conference that the government will not be moving forward with any reforms to joint and several liability. Read more here.
In the Summer 2014 issue of Milestones, the Ontario Good Roads Association (OGRA) outlines proposed solutions to the issue of joint and several liability for municipalities, put forward by the Ministry of the Attorney General prior to the recent provincial election.
Three proposals were advanced, namely:
The Saskatchewan Model: “where there is a shortfall due to one defendant being insolvent and the plaintiff’s own negligence contributed to the harm, the shortfall is to be divided among the remaining defendants and the plaintiff in proportion to their fault.”
The Multiplier Model: “where there is a shortfall due to one defendant being insolvent, the municipality would never be liable for more than two times its proportion of damages, even if this means that a plaintiff does not fully recover.” This model would be limited to road authority cases.
The Combined Model: In cases where both the Saskatchewan and Multiplier models apply, the Saskatchewan model would be applied first. The Multiplier model would apply “if needed to ensure that the municipality would not be liable for more than two times its proportion of damages.”
Clarity is required under the Combined Model, in respect of whether the Multiplier Model would be applied regardless of the Plaintiff being partly at fault (i.e. regardless of whether at step 1 the Saskatchewan model was engaged). If not, then the proposals completely fail to address the most significant source of unfairness in the system affecting municipalities, namely the case of an “innocent passenger” who suffers a catastrophic injury, and the negligent driver of the vehicle only has $1 million or less in liability insurance, leaving the deep-pocketed municipality on the hook for all other damages due to the 1% rule. Without some sort of reasonable cap on this type of claim, municipalities will continue to be the victim of huge damage payouts where their fault, if any, is quite minimal.
Separate and apart from the foregoing, another concern is whether Courts would simply artificially increase their % of fault findings against municipalities to a minimum of 50%, so as to “ensure” 100% plaintiff recovery even under the Multiplier Model. Given that there has been no change to the current joint and several liability regime in several decades, at least municipalities would stand a fighting chance at the Court of Appeal if such a situation arose, a chance which currently, they do not even have. As the old saying goes, “something is better than nothing”.
The issue of tort reform of joint and several liability for municipalities in the context of road maintenance cases was intended to be resolved no later than June 2014, but was put on the back burner due to the provincial elections. Now, OGRA plans to put the spotlight back on joint and several liability: “As the OGRA ramps up its advocacy efforts in the coming months, we will once again be engaging our members and provincial officials to push for these long needed reforms.”