legal resp. municip

8/3/2019 Legal Resp. Municip

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RESOURCES: LEGAL

RESPONSIBILITIES OF

MUNICIPALITIESLEGAL RESPONSIBILITIES OF MUNICIPALITIESby Geoffrey

Belch, Assistant City Solicitor, City of London

Presented at the November 26, 1996 Municipal Arborists and UrbanForesters (Maufs) Meeting, Centennial Park Chalet, City of Etobicoke

Introduction This presentation is intended to provide a primer in the

law relating to claims against municipalities arising from trees located

on municipal property. My viewpoint is that of a lawyer primarily

engaged in defence work. Over the past seven years, I have had one"client" - the City of London. That arrangement has hopefully not

affected my objectivity.

London is typical of many municipalities in Ontario in that it possesses

many large old trees. Those of you who have visited London may beaware that the City is also known as the "Forest City". City historians

tell us that the reason is not because London is a city with many trees

but rather because when it was originally settle at the forks of the

Thames, the Town was carved out of a large forest which then existed.

Today there are many large, old trees that line London's streets,particularly in the older areas of the City, and in the parks which can

be found along the north and south branches of the Thames River

systems, which meet at the heart of the City and flow westward.

It is my experience that, over the past seven years, only a few of the

legal actions commenced against the City of London relate to trees in

our City. My research in theses cases supports my conclusion that this

is also true for other municipalities. I leave it to each of you to draw

your own conclusions why this is the case. For my part I believe thatthe public is not as litigious as is often assumed. I also believe that our

urban forester and his crews have been doing a better job than somerealize.

The claims that I have seen can be organized into the followingclassification: - property damage and personal injury caused by trees

falling during severe storms - motor vehicle accidents occurring at

intersections where stop signs or sight lines are obscured by trees -

sewers and drains becoming blocked by tree roots


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Claims received by a municipality are often insurance company's

efforts to reclaim their loss.

First Principles Nearly every litigation case can be settled withoutproceeding to trial. The statistics tell us that more than 95% of the

cases commenced in most jurisdictions in Ontario do settle short of thetrial. In many cases a financial settlement is reached. The issue for the

defendant deciding to go to trial is whether or not to pay the price tagwhich the plaintiff has put on his or her lawsuit. In that sense deciding

to settle is no different from buying a car.

You may ask "What about setting a precedent, ie : pay now - pay

forever?" Most cases are settled out of court and with little mediacoverage so that the public does not become aware of the payouts and

is less likely to create a series of claims. It is the cases which go to

court which create precedents.

One of the greatest frustrations that litigation lawyers face in advisingthe clients is striking the fine line between telling the client what to do

(which is not our role) and explaining the options which the client

faces and the consequences associated with each option.

Every civil lawsuit passes through four stages:

1. DELIVERY OF PLEADINGS Statement of Claim -A writtendocument setting out compensation claimed, the facts of the case and

the legal theory on which the case is based. (The claim must be made

by an injured party within three months to six years depending on thetype of claim).

Statement of Defence -The theory of the defence, includes essential

facts of the case, from the defendant's perspective.

2. DISCOVERY Production of all relevant documents and oral

discovery of the parties

-all documents should be delivered whether they help or hurt the case;

the professional reputation of the municipality is at stake -at this time,

municipality must produce a representative familiar with relevant factsof the case -oral questioning of both sides takes place with a court

reporter present

3. PRE-TRIAL Lawyers meet with pre-trial judges who offers an

opinion as to the merits of the position taken by the parties

-the parties involved are the judge, the lawyer for the plaintiff and the


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lawyer for the defense

-the judge will give frank opinion of the issues which the parties should

consider in coming to a compromise (if no compromise, move to stage4)

4. TRIAL In which all evidence is received "viva voce" and under oath

-our system of justice is "adversarial". This means that each side or

"litigant" is responsible for bringing out the evidence most favourableto it's position.

-the judge's role is to weigh the evidence and apply certain legal

principles

-back in 1920, municipalities petitioned the province asking that juries

not try municipal court actions, suggesting that ratepayers would notmake good decisions. It has stood since then.

The discovery process can be the most important and may be the only

chance at defence for the municipality since most cases are settledbefore going to trial. Take advantage of any opportunity to attend a

discovery. This will expose you to the type of questioning that youmay face in a court situation.

There are four legal principles which recur constantly in the reported

cases dealing with municipal liability arising from trees. These

principles are as follows:

COMMON LAW PRINCIPLE OF NEGLIGENCE

COMMON LAW PRINCIPLE OF NUISANCE

SECTION 284 OF THE MUNICIPAL ACT

SECTION 3 OF THE OCCUPIERS' LIABILITY ACT

NEGLIGENCE Negligence is the "failure to exercise that care which

the circumstances demand". That sounds too simple so first year lawstudents are taught to break this definition into four constituentelements:

-circumstances giving rise to a duty to take care owing to the

complainant -failure to attain the standard of care prescribed in law for

the fulfilment of that duty -actual damage suffered by thecomplainant -a reasonable close causal connection between the


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conduct and the resulting injury

Negligence depends on the facts of each particular case. It can be

omitting to do something which ought to be done. It can be doingsomething which ought to be done differently or not at all.

The first element, the duty principle, is often imposed by statute. As itrelates to trees there are two statues, which do this precisely (

Municipal Act and Occupier's Liability Act ).

"DUTY" covers those responsibilities that are under the auspices of

the municipality. The judge will weigh the failure of the municipality to

exercise care.

In my experience the second element is the key liability issue in mostlawsuits. The issue becomes what degree of care should be expected

from the defendant in the particular circumstances of the case. Thedegree of care expected is "reasonable care". Ail the context of

municipalities, this means that municipal employees must "exercisereasonable care to avoid acts or omissions which can be reasonably

foreseen to be likely to cause injury to persons or property".

Reasonable foresight is based on :

-facts known to the municipal employees -facts which the municipal

employees had a reasonable opportunity to learn.

The judge will be considering whether others would have done

anything differently.

The degree of care may vary according to the risk to be encountered.It may vary with the magnitude of prospective injury. In the specificcase of forestry operation, which qualify as "dangerous operations",there is undoubtedly a duty to take special precautions when the

actual operation of felling and removing trees is being completed.

NUISANCE Nuisance is a legal term which has a somewhat differentmeaning than that found in the dictionary. In law, a nuisance occurs

when a defendant "substantially interferes with his neighbour's

reasonable use and enjoyment of his land."

When this occurs the neighbour is said to have a "Cause of Action" in

nuisance. The old english principle that every landowner is "lord of hiscastle" has always been subject to the necessary restraint that the

same landowner must not interfere with his neighbour's legitimate

enjoyment of his own property. If a municipality's actions (or failure to

take reasonable action) interferes with a neighbour's enjoyment of his


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property then the municipality may be liable in nuisance. In this case it

is immaterial that:

-the municipality is making a reasonable use of its property -the worksare carried on for public benefit -the municipality was "there first" (ie.

the plaintiff came to the nuisance) -the plaintiff put up with thenuisance without objecting for many years.

Tree litter such as leaves, twigs and fruit are "nuisances" tohomeowners but has not reached status of "legal nuisances" as far as I

am aware.

SECTION 284 OF THE MUNICIPAL ACT Section 284 of the

Municipal Act provides that : "Every highway and every bridge shall bekept in repair by the municipality having jurisdiction over it and in case

of default the municipality is liable for all damages sustained by any

person by reason of such default".

The purpose of this section is to require municipalities to take care oftheir roads to ensure that the public can pass with safety over public

roads. The standard does vary with each situation. A municipality must

therefore be prepared to alter the standards for their roads to meet

changed conditions. However, associated with this are other ruleswhich related to such things as road signs which are part of theHighway Traffic Act . for example :

-O.Reg.618/77 provides at Section 12(1) that the left edge of a stop

sign shall not be more than 2 metres from the roadway.

-Section 33 provides that a sign prescribed by the regulations shall beso placed as to be visible at all times for a distance of at least 60

metres to traffic approaching the sign.

SECTION 3 OF THE OCCUPIERS' LIABILITY ACT Section 3 of the

Occupiers' Liability Act provides that: "An occupier of premises owes aduty to take such care as in all the circumstances of the case is

reasonable to see that persons entering on the premises, and the

property brought on the premises by those persons are reasonable

safe while on the premises."

This section applies to all municipal operations other than public roadsand highways. It therefore applies to parkland and public buildings.

The provision was introduced in 1980. Its purpose is to reform the

common law on occupiers' liability. It now imposes an affirmative duty

upon occupiers to take reasonable care for the safety of people who


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are permitted on the premises.

NO MATTER WHAT : Duty vs. Budget - Liability is still evident

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