Priorities—MMS and Roadway Liability

Municipalities are often on the hook for extravagant financial payouts through lawsuits and settlements spurred by those who are injured on their roads – even if they bare very little responsibility for the incident. This is possible by a component of tort law in Ontario known as Joint and Several Liability (JSL) which allows for any party who is found to be “jointly” responsible for the incident to be on the hook for paying out sums disproportionate to their level of fault if others also found to be partly responsible cannot pay their share of what the victim is owed. JSL unfairly burdens Ontario municipalities, who are seen as deep-pocketed defendants in lawsuits. As a result, municipal insurance premiums continue to skyrocket. This diverts municipal funds from other essential municipal services and programs, and forces councils to raise property taxes.

This is not an issue that is easily solved. Numerous attempts have been made; the most recent commitment came in early 2019. Those injured must be adequately cared for, but municipalities cannot continue to bare the brunt of these payouts.

The principles contained in JSL have long been established as tenets of Canadian law.  Good Roads therefore believes that there is room to reform JSL while still maintaining it. Building on the efforts of other reform initiatives in Canada, any reform should incorporate the following principles:

  • proportionate liability where a plaintiff is contributorily negligent;
  • proportionate liability where a defendant is a “peripheral wrongdoer” – a defendant whose fault is limited and secondary when compared to that of other defendants; and
  • the proportionate reallocation of the uncollected share of a damages award attributed to an insolvent defendant.

A reform predicated on these principles will ensure that the benefits of JSL are retained. It will also align such a reform with the other significant precedents where joint and several liability was amended.

Good Roads encourages councils across the province to write to the Attorney General and the Minister of Municipal Affairs asking them to continue the reform process begun in early 2019 and deliver actionable results.