Canada: Ontario Court Of Appeal Considers Whether A Municipality May Owe Duty Of Care In Relation To Its Enforcement Of Taxi Licensing Bylaws

In Vlanich v. Typhair, the Ontario Court of Appeal was again asked to examine the circumstances under which a public authority might owe a private law duty of care to individual members of the public. Specifically, the Court considered whether a municipality could be liable to individuals in negligence as a result of the enforcement, or lack thereof, of insurance requirements in its taxi licencing bylaws.

Background Facts

A multi-car motor vehicle accident occurred in the Township of North-Grenville, Ontario. One of the vehicles involved was a taxi cab which, at the time of collision, had third party liability coverage of only $200,000. Accordingly, the plaintiffs sought to recover for their injuries from their own insurer which provided standard uninsured and underinsured coverage through an OPCF 44R Family Protection Coverage endorsement. The plaintiffs' insurer commenced a third-party claim against the Township on the basis that it failed to enforce its taxi licensing bylaw which required taxis to have at least $1,000,000.00 in coverage.

When the taxi company initially applied and obtained its license to operate, it supplied the Township with documentary proof that it carried the required level of insurance. However, during a subsequent renewal process, the taxi company provided the Township with a "pink slip" showing only that insurance was in place and not disclosing that its limits had been reduced to $200,000. The renewal application did include a signed declaration that there had been no significant changes which would affect the company's ability to hold a licence. This declaration was inaccurate. In any event, the renewal application was not reviewed by the Township's bylaw enforcement office as a result of limited resources.

Summary Trial Decision

The third-party claim was adjudicated by way of a modified summary trial. The Trial Judge concluded that the Township owed a duty of care to its residents as it had enacted the bylaw "to benefit and protect those residents sharing the road with taxicabs". In his view, the creation of the bylaw evidenced a sufficiently close and direct relationship between the Township and its residents. However, the Trial Judge ultimately found that the Township did not fall below the standard of care in relying on the pink slip and signed declaration that there had been no significant changes impacting the taxi company's viability to hold a licence.

Court of Appeal Decision

On appeal, the Ontario Court of Appeal applied the two-part Anns/Cooper test and reversed the Trial Judge's decision on the existence of a duty of care. The Court found that the circumstances did not give rise to a private law duty of care owed by the Township to the plaintiffs.

The Court of Appeal distinguished the Township's enforcement of the insurance requirement in the taxi licencing bylaw from the circumstances considered in negligent building inspection cases where a duty of care has been imposed. The Court noted that "proximity between a public authority and an individual member of the public may arise in circumstances in which the public authority assumes responsibility for ensuring compliance with a standard that is intended to avoid or to reduce a risk of physical damage or harm". In the building inspection context, the public authority is directly implicated in the risk of physical damage or harm because it has invited the individual to rely on an inspection and, in so doing, assumed responsibility for avoiding the risk. In contrast, it was not alleged by the plaintiffs' insurer that the enforcement of the insurance requirement in the taxi licencing bylaw would have prevented the plaintiffs' injuries. The insurance bylaw was not a "safety bylaw" as it did not set a standard which would have afforded the Township an opportunity to prevent the harm that occurred.

The plaintiffs made the same claim as their insurer but also argued that the Township's failure to suspend the taxi company's licence caused them harm because the company would not have been operating on the day of the accident without it. Although this argument was not before the Trial Judge, the Court of Appeal found that this did not support the alleged duty of care as the concept of proximity requires "a much more immediate and direct nexus between the plaintiff and the defendant." The Court of Appeal emphasized that the general public duty owed by a public authority to ensure compliance with a regulatory scheme is not equivalent to a private law duty of care. "Something more" is required to create the close and direct relationship capable of giving rise to a duty between a public authority and an individual member of the public who may interact with a licensee.

The Court of Appeal also determined that there were residual policy considerations which would negate the imposition of a duty of care. In this respect, the Court of Appeal relied on the fact that the plaintiffs already had access to a remedy through their OPCF 44R coverage. The Court determined that it would not be sound policy to provide the insurer with a remedy to recoup the loss it previously agreed to cover. The Court also noted that the imposition of a duty of care in the circumstances would place too significant a burden on small municipalities with limited resources.

As the Court of Appeal determined there was no private law duty of care owed, an analysis of the standard of care was not warranted. Nonetheless, the Court of Appeal agreed with the Trial Judge's view that the Township did not fall below the applicable standard of care.

Vlanich v. Typhair is an affirmation of the application of the Anns/Cooper test in analyzing whether public authorities may owe a private law duty of care to individual members of the public in addition to a general duty to the public at large. Most significantly, the Court of Appeal reminds us that "something more" in the way of an immediate and direct nexus between the plaintiff and defendant is required.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions