CASUAL LEGAL: Accidents Happen – Mitigating and Managing Municipal Liability

Attention: AMSC Members – Please distribute to all appropriate personnel

Accidents Happen – Mitigating and Managing Municipal Liability

By Lauren Chalaturnyk

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

All municipalities are in the business of providing services to ratepayers. If someone is injured or property is damaged during the course of accessing those municipal services, a municipality may be found liable for the loss resulting from that injury or damage.  Municipal liability can arise in a variety of ways, but the most common is in situations where a municipality has acted negligently.

All municipalities owe a duty of care to people who use their services. If someone is injured during the course of accessing those services, and the municipality knew or could have reasonably foreseen that the conditions could lead to an injury, and the injury was a direct result of the municipality’s negligence, then a court may find the municipality acted negligently. Negligence claims have been brought against municipalities in relation to the following services: buses, roads, public parks, bike parks, sidewalks, pedways, recreation facilities and many others.

Recently, the City of Lethbridge decided to stop providing school bus services to its ratepayers. This decision was motivated by the City’s desire to reduce its risk of liability and the associated costs. The following is a high level review of other ways municipalities can mitigate and manage liability.

It is important to keep in mind that there are also a number of statutory provisions that protect municipalities from liability. Some are quite broad (see e.g. s. 529 of the MGA (good-faith decision-making)), and others are more specific (see e.g. s. 531 of the MGA (snow and ice on roads)).  Whether or not a particular statutory provision will apply is very fact (and claim) specific.

Municipalities can also choose not to provide certain services or shift responsibility for services to a different entity. In those scenarios, the municipality no longer owes a duty of care and, absent unique circumstances, will not be negligent if injury or damage occurs.

However, not providing a service or shifting it somewhere else is not always possible. In those cases, the municipality will want to consider how best to manage its risk. There are a number of ways this may be  accomplished, such as:

1. Ensuring proper training for staff who are operating or administering municipal services;
2. Having policies in place for the use and operation of municipal vehicles or equipment (however, in order to rely on a policy, a municipality must be able to prove that it complied with the policy);
3. Having policies in place and properly maintaining public spaces (i.e. clearing ice from sidewalks, providing adequate lighting in dark public spaces, removing hazards from roadways, etc.);
4. Having drug and alcohol policies in place for certain facilities;
5. Having suitable contractual provisions in place if facilities or public spaces are rented out; or
6. Where appropriate, having service users agree to a waiver of liability.

Because assessing liability is highly fact-specific, it is impossible to provide an exhaustive list of ways municipalities can mitigate risk. Depending on the situation or service at issue, a municipality may need to seek advice from risk management professionals, insurance providers, or a lawyer.