Mediating a Road Authority Claim on Behalf of a Municipality

Mediation is an increasingly common form of dispute resolution and one which provides many benefits to any party who would otherwise engage in litigation. However, there are several benefits and concerns which are unique to municipalities named as defendants in motor vehicle accident claims. Municipalities are limited to judge only trials, they often have significantly higher insurance limits than their co-defendants, and they are often resistant to settling a claim early on a purely economic basis. These are all considerations that counsel for a municipality must consider when advising a client.

The Risks of Litigating a Claim

Section 1 of the Negligence Act requires that where two defendants have contributed in any way to a plaintiff's damages "they are jointly and severally liable" and that in the absence of any contract saying otherwise, each of them is liable to contribute to or indemnify the other. Therefore if a municipality has even one percent of the liability for the plaintiff's damages, it is potentially liable for a disproportionate amount if the other defendants cannot pay their share. Although the municipality may have the least liability for the plaintiff's injuries, as the party who often has the largest insurance limits and financial resources, this presents a real challenge for assessing a municipality's exposure. If the other parties have limited insurance coverage, the municipality could be responsible for the remaining amount of the award above and beyond its actual liability as found.

In this context, a settlement with its certainty is a very attractive option to municipalities. The municipality will only be responsible for the share of the liability and settlement amount which it has agreed to pay. The plaintiff cannot come after the municipality to pay the amounts that are unpaid by another party.

Furthermore, even if the municipality has met its statutory obligations, it may still be found liable for a plaintiff's injuries. Courts have been inclined to circumvent the statutory minimum maintenance standards1 and require that municipalities not just react within the required timeframes, but actually take proactive steps before a deficiency arises. For example in Giuliani v. Region of Halton,2 Justice Murray for the Ontario Superior Court found that although the municipality had met the minimum standards, this was not a defence to the claim. Justice Murray found that more was required and that the municipality should have monitored the weather conditions so that they could apply salt or sand in a prompt and reasonable manner.3

Furthermore, where a municipality is named as a defendant, the trial must be a judge alone trial. This presents an additional...