6.3 - Municipal Liability Flashcards
Explain how municipal liability flows from statue law
Definition - “feasance”
The performance of an act. A legal term for doing or accomplishing something
> the performance of an activity
example - someone performing their community service as per the directives provided by the courts
Definition - “misfeasance”
The improper performance of something that is legal to do
> carrying out a job or duty improperly without evil intention or breaking the law
example - municipality negligently installing storm sewers, which results in the backup of sewers into many homes
Definition - “nonfeasance”
The omission to perform duties which by law one is bound to do. The failure to perform an act required by law.
> failure to act or perform one’s duties as required by law
example - a city neglects to repair a damaged sidewalk they are aware of. Several people are injured while using this sidewalk. The city’s neglect in failing to act is an example of nonfeasance. *An exception to this example is that a city/municipality cannot be held liable for nonfeasance arising out of the maintenance of highways unless such liability is created by local statute or bylaw
Definition - “malfeasance”
An intentional act which itself is unlawful or wrongful, and is conducted by someone in an official capacity as an official duty, especially by officials or public employees
> when an official acts unlawfully with intent, while in an official capacity
example - city official hires a cousin for a job he is not qualified for and then the City official pays off the cousin to not release information from a damning report. The city official intentionally breaks many rules which can be considered as malfeasance
Categories of Negligence
-negligent acts are often categorized as one of the following:
> Misfeasance
> Nonfeasance
> Malfeasance
-each prov. and terr. has a municipal act or equivalent and other statutes that define the responsibility of cities and municipalities
-under appropriate municipal legislation related to the administration of cities and towns, the municipality or city has many duties and obligations that include responsibility for the state of the highways, sidewalks, week and insect control, and public utilities
-depending on the circumstances, persons working for the municipality may be held responsible for damages they cause
-statutes that regulate the specific behaviour of municipalities set out the requirements of notice of claims
-for example, in the case of non-repair (nonfeasance) of highways, written notice of the claim must generally be provided within 7,10 or 15 days to a municipality in an urban area
-the time period varies with the type of loss; claims resulting from work performed by the municipality on damaged sewers may have a 15-day time limit for reporting, if the municipality is not notified in the prescribed manner and within the time limit, all right of action is lost. Without immediate notification of the claim, the chance of a subrogation action on the part of the insurance company may be lost
-in ‘Norwell v. Toronto’, the court ruled that although the person had advised the municipality orally within the prescribed time, and had been told to do nothing until contacted by the municipality, the municipality was not prevented from using the limitation period as a defence
Municipalities in Quebec
-In Quebec, a municipality is liable like any individual in torts under CCQ Article 1457 and under statutes such as the ‘Cities and Towns Act’, the ‘Municipal Code’, and specific city charters
-the ‘Civil Code’ makes provision to recognize law as it applies to municipalities
> > Legal person established in the public interest are primarily governed by the special Acts by which they are constituted and by those which are applicable to them; legal persons established for a private interest are primarily governed by the Acts applicable to their particular type.
-in ‘Laurentide Motels Ltd. v. Beauport (City)’, the Supreme Court had to decide whether the delictual (extra-contractual) civil liability of municipalities in firefighting was governed by public or private law
-essentially, the city was liable for the additional damage caused by the fire, as it was due to its fault in maintaining its water and firefighting systems and to the fault of its employees in carrying out their duties
-the city was responsible for how its policies were implemented
-applying ‘Anns v. Merton London Borough Council’, and ‘Kamloops (City of) v. Nielsen’, the court held that a municipality could not be held responsible for its policy decisions
-however, when a municipality acted within the operational sphere of its discretionary powers (that is, executed its policy decision), it became subject to civil law standards of conduct
Municipalities and the Need for Loss Prevention
-in 2022, Ontario’s Ministry of the Attorney General established a “technical table” to review issues surrounding rising municipal insurance costs
-the Association of Municipalities in Ontario (AMO) had previously noted increases to insurance costs for many ON municipalities of more than 20% and for some, more than 50%
-it attributed the increases to a hard market, climate change, increased litigation - and a joint-and-several liability regime “that makes municipal government ‘the insurers of last resort’”
-in additional to joint and several reform, suggested changes include a provincial fund for catastrophic losses to individuals to limit municipal exposure to health costs; pooling of insurance among municipalities to lower costs; and full proportionate liability and a cap on economic loss rewards as in other jurisdictions
-the concern about municipal insurance costs also underscores the need for and the value of loss prevention to reduce claims and protect taxpayer dollars
-examples of loss prevention measures taken by municipalities include:
> hiring diligent contractors through a tendering process, and contractually shifting liability to contractors
> hiring inspectors to verify the adequacy of work performed by contractors
> having clear policies and procedures in place for municipal responsibilities, such as winter maintenance, and ensuring that policies and procedures are followed
> having risk management teams review and analyze loss data
Tenants Legal Liability
-the relationship between tenants and their landlords is set out in the lease agreement between them
-such agreements can be verbal, implied, or written in the common law prov. and terr., but a standard form is mandatory in Quebec for all residential leases
-lease mainly creates liabilities on the part of the tenant
-the chief area of concern is damage to the building, the lease agreement defines the responsibility of the tenant for any damage that occurs
-many leases require that the tenant carry out repairs or pay for damages unless the damages are caused by an exempted peril such as fire, lightning, or windstorm, or reasonable wear and tear
-it seems natural to assume that if the premises were damaged by fire of unknown origin, the tenant would not be obligated to carry out repairs, however, when tenants have caused the damage, the exception in the lease does not apply and the tenant will be held responsible for repairs
-for example, in ‘United Motors Service Inc. v. Hutson et al.’, the tenants maintained a garage and attempted to clean oily deposits from the floor using gas, and at the same time, additional cleaning substances were being heated by gas jets. Gas caught fire and caused serious damage, The tenants were liable for all damage except that caused by fire, but as they were negligent and the lease did not specifically relieve them from repairing damage when fire was caused by their negligence, the Supreme Court held that the tenants were responsible for the damage
-therefore, unless it is specifically stated in the lease that the tenant is exempt from responsibility for damage negligently caused, the tenant would be prudent to obtain liability insurance for protection
-leases tend to vary considerably
-many leases specifically require tenants to pay a part of the landlord’s fire insurance premium that is proportionate to the area leased
-tenants would then be considered as joint insureds under a building owner’s fire policy. This situation led to interesting court decisions about the subrogation rights between the 2
>if tenant pays portion of the premium, insurer does not have subrogation rights against the tenant, but also regarding a subcontractor who does not have an interest in the property damaged, will be liable for negligent acts even though the subcont. is insured under the property policy covering the project
-it is possible that even if the tenant does not pay the premium directly, it may be included in the amount of rent charged, so tenants can feel that they are paying twice for fire insurance protection and should not have to pay for tenants legal liability as well. The need for tenants legal liability can be avoided if the landlord’s fire insurer is willing to waive subrogation rights against the tenant
-even if the tenant is a joint insured, such a waiver is advisable
-an alternative method is for the landlord to waive the right to sue the tenant, provided that such waiver is allowed by the landlord’s fire ins. policy
-leases are included in the definition of ‘insured contract’ in the commercial general liability policy, and therefore, liability assumed under such a contract is automatically covered by most general liability policies
-it is, however, subject to the many exclusions of the policy
