what is municipal liability?

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BEN AZIMI /
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what is municipal liability?

Acquire knowledge of the civil action against a government and/or its agents for accidents that occur on municipal property

General background

Municipal liability is civil liability in situations where the actions of a municipal corporation, a municipal body or agent causes someone to sustain an injury. Examples include: accidents in a recreational facility run by a municipality; slip and fall accidents on municipal venues; and MVAs involving municipal vehicles such as police cars, postal trucks and public transit vehicles.

Sometimes, in lawsuits alleging municipal liability, the issue might arise as to whether it is the government or some other entity that is responsible for the accident or for compensation – such as a third party contractor, private property owner or insurance company.

Municipalities are under a statutory duty of care to maintain roads in a reasonable state of repair. An action against a municipality for breaching its duty of care is analyzed as follows:

Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.
Causation: The plaintiff must prove that the non-repair caused the accident.
Statutory defences: Proof of non-repair and causation establish a prima facie case of liability against a municipality. The municipality then has an onus of establishing one of the following defences:

it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
it took reasonable steps to prevent the default from arising; or
at the time the cause of action arose, minimum standards established by the Ministry of Transportation applied to the highway or bridge and to the alleged default and those standards have been met.
Contributory negligence: If a municipality cannot establish any of the three statutory defences, it can show that the plaintiff’s driving caused or contributed to the plaintiff’s injuries.

• Immunity

The Municipal Act, 2001 sets out a limitation to municipal liability for negligence.

The Act provides an exemption

- to “a municipality or local board … a member of a municipal council or a local board … or … an officer, employee or agent of a municipality or local board”,

- for “negligence in connection with the exercise or non-exercise of a discretionary power or the performance or non-performance of a discretionary function, if the action or inaction results from a policy decision of a municipality or local board made in a good faith exercise of the discretion”.

• Slip and fall accidents

The Act provides that “Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk”.

The concept of gross negligence has been described in many ways. One of them is that, whereas negligence involves a person failing to act with the care a reasonable person would take, gross negligence involves a person failing to act with the care a careless person would take. One way in which a municipality would be grossly negligent would be if it knew of a heightened chance of harm (e.g. posed by a snow storm) and did not have policy in place to address the potential for harm (e.g. by not having a snow removal policy).

In Vargas v. Hamilton, the plaintiff sued the municipality and adjoining landowner for her slip and fall at 7 a.m. on a day after a night of freezing rain. The court dismissed her claim because the municipality had a bylaw requiring that landowners on a street clear their sidewalk of snow and ice within 24 hours of a winter storm event – which was reasonable – and the adjoining landowner cleared the sidewalk of snow and ice about 7-8 a.m. that day – which was also reasonable.

• Notice period

The plaintiff is generally required to give notice to the municipality before bringing a civil suit.

The Act provides that no civil suit may be commenced unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to,

• the clerk of the municipality; or

• if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.

Failure to give notice is not a bar to the action in the case of the death of the injured person as a result of the injury.

Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.

• Limitation period

A civil action can be commenced up to two (2) years from the date the claim was discovered. A claim is “discovered” on the earlier of (a) or (b):

• the day on which the person with the claim first knew,

that the injury, loss or damage had occurred,
that the injury, loss or damage was caused by or contributed to by an act or omission,
that the act of omission was that of the person against whom the claim is made, and
that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

• the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters.

• Nuisance

Generally, a nuisance is a tort that involves someone interfering with someone else’s use or enjoyment of land. A nuisance is generally not actionable unless the interference is unreasonable and the plaintiff suffered some damage.

The defendant may plead the defence of statutory authority. However, this defence is narrow in that it requires not only that the activity was authorized by statute but also that the nuisance was the inevitable result or consequence of exercising that authority: “The defendant must negative that there are alternative methods of carrying out the work. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. The standard is a higher one”.

• The Act also provides an exemption

- to “a municipality or local board … a member of a municipal council or a local board … or … an officer, employee or agent of a municipality or local board”,

- for “nuisance, in connection with the escape of water or sewage from sewage works or water works …”.

In Beniuk v. Leamington (Municipality), the plaintiffs claimed that vibrations from truck traffic on an adjacent road caused damage to their rural property. The court dismissed their claim of nuisance because it found them to have discovered their claim in 2009 when they commissioned an expert report, and they brought their claim in 2018, and so were outside the two-year limitation period. The court also dismissed their claim that the municipality breached its duty of care to keep roadways safe. This is because it is well-established in the case law that the s. 44 statutory duty of care is only directed to road users, not adjoining landowners.