It is an often repeated phrase by judges that “a municipality is not an insurer” against any form of mishap that can occur within its boundaries. What this means is that the municipality will not be held to a standard of perfection as it is not responsible for all harms suffered by travellers on its streets and pedestrians on its sidewalks. Rather, the municipality must keep its sidewalks and roads in a reasonable state so that the public may travel upon them safely. Of course, what constitutes a reasonable state of repair is entirely fact-driven and varies from case to case.
The recent decision of Stephen Hull v. The Corporation of the Town of Greater Napanee, 2014 ONSC 315, is an important reminder that the “non-insurer” principle extends beyond simply personal injury litigation.
Stephen Hull is the owner of one half of a 140 year old plus commercial/residential building in downtown Napanee. The other half of the building, containing a separate municipal address, is owned by an individual who is deceased. For the most part, the Hull side of the building has been maintained while his former neighbour allowed his property to deteriorate. This, in large part, explains why an executor has not stepped forward to administer the deceased’s side of the building and why a mortgagee chose to disclaim any interest in the building and walk away from his loan.
During his lifetime, Stephen Hull had no arrangement in place with his neighbour for ongoing maintenance of the building and, despite major signs of deterioration, neither had shown an inclination to tackle the problem.
In November 2012 a rear wall of the building on the deceased’s side collapsed. The collapse resulted in an Order of an Unsafe Building being issued under the Building Code Act and, following engineer analysis of the building, further Orders prohibiting use and occupancy of both municipal properties.
An appeal of the Orders was taken by Stephen Hull. He argued his side of the building was safe for occupancy and that the Town of Greater Napanee should be required to restore and rehabilitate the deceased’s side of the building to a degree necessary to permit safe occupancy and use of his property. In effect, Stephen Hull was asking the Court to make Napanee pay to correct the problem he and his neighbour could not solve or would not solve on their own. In reality, Stephen Hull was looking to the municipality to insure against the cost to restore the building to a safe condition and allow his continued occupancy.
Napanee took the position it was not required to affect repairs to the privately-owned building. Napanee Town Council’s position was that ongoing maintenance and repair of buildings within the municipality is the responsibility of their owners and that this responsibility included an obligation to ensure they remain in a safe condition. Where owners fail to meet their obligations and a building becomes unsafe, Napanee Town Council did not believe it a prudent use of limited taxpayer dollars to effect repairs to the privately owned structures.
Rightly so, Justice Rutherford accepted Napanee’s position, stating in a part as follows:
I appreciate that Napanee does have statutory authority to enter and make repairs to unsafe properties within its boundaries, and to lien and recover the costs of doing so against the property and its owners. ….However, Napanee’s political discretion as to the possible use of its various powers is not a matter for intervention by this Court in these proceedings.
While Stephen Hull looked to the municipality and its perceived deep pockets to alleviate the effects of the harms created, in part, by his deceased neighbour, his case is an important reminder that municipalities are not insurers against unfortunate circumstances that occur within their boundaries. Individuals must take responsibility for their actions (or in actions) and maintain their homes and buildings.
Municipal Law, Land Use Planning, Development and Environmental Law, Litigation, James L. McDonald