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Joint and several liability can take fun out of tobogganing

Feb 15, 2024 | By: Mark Cripps, Manager, Communications, IBC
Joint and several liability can take fun out of tobogganing

Winters and tobogganing. It’s a Canadian tradition that dates back hundreds of years.

The word “toboggan” is from the Mi'kmaq word “tobakun,” which means sled. The Inuit made toboggans out of whale bone and used them to transport people and belongings across the snowy tundra.

But as a sport, tobogganing likely originated on the slopes of Mount Royal in Montreal.

In recent years, a lot has changed with this beloved winter pastime. Many municipalities have banned tobogganing on certain hills in their community. For example, Toronto recently prohibited tobogganing on dozens of hills, saying that hazards obstructed the slopes. The city later reversed this decision after installing new signs advising about potential risks associated with the activity.

What’s at the root of all this fuss about tobogganing?

Some jurisdictions, including Ontario, operate under a joint and several liability (JSL) framework. JSL is a legal principle that refers to the ability for a wronged party to sue any or all defendants in an action and collect the total damages awarded from any or all defendants. For example, if a judge rules that a number of people (or entities like a business or municipality) are jointly and severally liable for injuries suffered by a plaintiff, any one of those may be pursued for payment of the full amount of the judgment.

Given the apportionment of damages in joint and several liability cases, and the high probability of municipalities facing claims, this has created pressure on premiums to cover costs associated with these claims.

For example, according to CTV News Kitchener, a recent lawsuit filed in Ontario is seeking $1.7 million after a man was killed in an alleged impaired driving incident. The lawsuit alleges the local municipality and local conservation authority failed to post adequate signage with respect to alcohol and cannabis consumption. The drivers of both vehicles involved in the crash are also named in the suit. None of the allegations have been proven in court.

The perception of deep-pocketed municipalities ultimately impacts finances and, as a result, taxpayers. The Association of Municipalities of Ontario has noted that the cost of municipal insurance has been rising at a disproportionate rate compared to other municipal expenditures, and released a report in 2023 titled The Future of Municipal Liability and Risk Management. The rising severity of liability exposure, not just on toboggan hills but on municipal roads and in municipal-run facilities, may influence decisions to eliminate some services and events in an attempt to manage and limit potential liability exposures and lower insurance costs.

As a result of the uncertain liability claims environment, many municipal insurance providers have been forced to increase premiums or have exited the market altogether.

Insurance Bureau of Canada (IBC) has encouraged the Ontario government to introduce JSL reforms that distribute damages based on full proportionate liability. This model would help protect a defendant who contributed only marginally to the loss from being responsible for a significantly disproportionate amount, while a defendant with increased fault would bear increased responsibility for covering the share of non-contributing defendants. This balanced, reasonable approach could assist in mitigating the insurance market capacity and affordability challenges related to the municipal and hospitality sectors in particular, while protecting the injured claimant’s right to sue for damages.

The majority of municipalities are extremely diligent in managing risk in their community, including on tobogganing hills. Hurting yourself while tobogganing isn’t a ticket to a liability lawsuit. There must be a separate issue with the location that creates a reasonably foreseeable risk of danger or injury for liability to be imposed.

When a municipality decides to ban tobogganing on a specific hill, it’s likely they did an assessment of that location and found there was something that increases the risk of getting seriously injured, e.g., trees on the tobogganing hill.

About This Author

Mark Cripps has a Bachelor’s Degree in Journalism, and spent 25-years of his career as a journalist and editor working across Ontario. He also worked for 8 years as a Press Secretary and Director of Communications for the Ontario Ministry of Municipal Affairs and Housing and Agriculture, Food and Rural Affairs. He has been with IBC since 2019, and manages communications for Western and Pacific Regions, as well as the commercial insurance file.