How Doug Ford could bring street hockey back to small-town Ontario

ANALYSIS: If your town won’t let you toboggan or climb trees, there’s a good chance that joint and several liability is to blame — and the premier is just the latest politician promising to reform it, writes John Michael McGrath
By John Michael McGrath - Published on January 29, 2019
children playing hockey
Many Ontario cities have restricted activities such as tobogganing and street hockey because of the risk of litigation in the case of injury. (iStock.ca/FatCamera)

Comments

X

Premier Doug Ford is the latest politician to promise small Ontario cities and towns that he’s going to reform a section of provincial law that municipalities say is costing them an arm and a leg — and forcing them to become the worst kind of fun-police in the process.

Speaking at the annual conference of the Rural Ontario Municipalities Association, Ford told the mayors, reeves, and councillors who had gathered at Toronto’s Sheraton Centre hotel that the Progressive Conservatives at Queen’s Park would be taking a look at reforming “joint and several liability.”

“We have heard your concerns about increasing insurance costs and the impact that these costs can have on property taxes, on municipal taxpayers, and on the average Ontario resident,” he said Monday. “We heard your concerns about the liability chill, preventing everyday activities in your municipalities, like as simple as tobogganing or street hockey,”

Part of the common-law tradition that Canada inherited from the United Kingdom, joint and several liability is spelled out in Ontario’s Negligence Act: if a victim successfully sues multiple parties because they’ve been harmed, the damages awarded by the court can be recovered from all parties, regardless of their individual level of responsibility. Rooted in the idea that victims should be compensated for the harm they’ve incurred, this prevents the process from being bogged down by arguments over the precise level of responsibility that should be assigned to each party.

But from the perspective of municipal governments, this aspect of the law can lead to profoundly unfair results. Private parties can be forced to pay only so much, but governments are effectively bottomless wells for court-ordered damages. In a personal-injury case where awards can amount to several million dollars but the private individuals held to be at fault have limited ability to pay, a municipality can end up being required to shell out large sums — even in cases where it bears limited responsibility.

The arcane details of Ontario liability law have real-world effects outside the courtroom. The premier, for example, mentioned tobogganing and street hockey — both activities that many cities have restricted because of the risk of litigation in the case of injury. The village of Cayuga, 35 kilometres due south of Hamilton, was sued (unsuccessfully) after a teenager fell from a tree: the Ontario Court of Appeals later declared, in 2015, that “any danger posed by this tree was an obvious one. If you chose to climb it you could fall and be injured. There is no duty to warn of such an obvious and self-evident danger.” (It is, incidentally, illegal to climb a tree in Toronto’s parks.)

What’s not clear is what, precisely, the Tories will do to address this situation. Their Liberal predecessors looked at the issue of joint and several liability a number of times and opted not to change anything. It’s a complex issue: the Law Commission of Ontario, an arm’s-length body that advises the provincial government on potential legal reforms, looked at joint and several liability with respect to business corporations and ended up recommending no changes to Ontario law, having concluded that current law provides defendants with sufficient protection.

The Law Commission’s 2011 report, however, did identify models likely to be considered by a government bent on reform. Broadly speaking, the government can either cap damages or define what proportion of damages a party can be made responsible for. The province, for example, could say that no court can award damages in excess of a set amount, or it could say that responsible parties could be made to pay damages only in proportion to their responsibility — meaning that if a municipality were found to be 25 per cent responsible for damages, it would pay 25 per cent of the total amount awarded. The law could also be further tailored using thresholds: if a court determined that a municipality had been less than 25 per cent responsible, say, it wouldn’t have to pay anything at all.

The Liberals, though also promised to reform to joint and several liability, only to back off in the face of opposition from the legal community. The Ontario Trial Lawyers Association has been one of the most consistent defenders of joint and several liability, insisting that the principles behind it — that victims get paid only when someone is found negligent and that those responsible should pay damages even if doing so comes at a high cost — are still sound.

Any move to change joint and several liability will likely spark a noisy and contentious political battle. But Ford says that such change is needed — and the Tories may well be more concerned a about accommodating the needs of smaller municipalities than the Liberals were, so this may prove to be a battle they’re willing to fight.

Author