In Context is an occasional NewmarketToday news feature providing background and further explanation and analysis on ongoing issues impacting residents.
The Town of Newmarket has faced some questions about how it handles liability claims after a man was left paying the bill after his vehicle was hit by a loose water main cover.
Shane Mark recounted how the water main cover was in the middle of Davis Drive and blew out his tire when he hit it, causing more than $2,000 in damages. The town initially indicated it could not be held responsible for any negligence, though the municipality has since said that it is working with the affected parties on the issue.
Phil Rock has worked as a civil servant for 31 years, as a firefighter for much of that time but joined the City of Markham roads department about six years ago. Now retired, he said that an issue like Mark experienced should get caught in road inspections.
“The township should be liable because it’s their asset,” he said. “Things do fail from time to time and it’s unavoidable. However, something like that, I don’t think that was a failure of the product, and if it was, the purpose of the inspection is to get ahead of those.”
Like other municipalities, the Town of Newmarket offers claim forms for cases of liability. The municipal website highlights four common types of claims: negligence, vehicle damage, flood or sewer backup, and fallen tree and branches.
“The Town of Newmarket has an obligation to maintain its infrastructure. In doing so, it must exercise a reasonable standard of care,” the municipality said on its website. “Like most Canadian municipalities, the Town of Newmarket only compensates when it is legally liable to do so. This approach helps to reduce the costs for the taxpaying public who ultimately bear the cost of these claims.”
The municipality said anyone claiming against the town should contact their insurance company first, and the insurance company can contact the town on a person’s behalf. In some cases, the town said you must issue notice within 10 business days of the incident.
“Fraudulent claims cost all taxpayers, and the Town will defend and prosecute all fraudulent claims to the full extent of the law.”
Mark said the town rebuffed him initially and it was an unfair situation. He said the town indicated it could not be a case of negligence.
“For your claim to be successful against the Town of Newmarket, you must prove that the Town of Newmarket was negligent in some way,” municipal claims and risk analyst Sharon Geniole wrote to Mark, in a letter he provided to NewmarketToday. “There would have been no prior knowledge or actions on behalf of the town to constitute negligence.”
But Rock said municipalities do have to maintain minimum maintenance standards. Road inspectors would need to report any hazard to vehicle navigation and mitigate serious ones.
“Every single deficiency under those minimum maintenance standards has to be reported,” he said, adding that having worked in a municipal water department, he if familiar with the type of cover that Mark hit. “My experience with the water department, those things don’t just randomly pop open.”
Potentially complicating the matter is jurisdiction. Davis Drive is a road operated by the Regional Municipality of York, but the cover was Town of Newmarket property.
The municipality could not immediately provide any data on how many liability claims it receives each year and how much it pays out of those, but said its insurer is compiling that data and trends to be released in a public report this fall. It also said it is working with York Region on Mark’s file.
Town council received a report about liability claims like this back in 2018.
That report highlights there were 74 claims in 2016, 73 in 2017 and 62 in 2018. The exact type of claims varied between liability, auto claims and property damage claims, along with no claims where there was no liability on the part of the town or the claim was otherwise withdrawn.
The category with the most claims in each of those years was water-related, with 17 in 2016, 34 in 2017 and 19 in 2018. The report said the spike in 2017 was caused by a significant weather event, but the report said all 23 claims received due to this were denied with no negligence found on the part of the town as systems were overwhelmed by the volume of water.
In 2018, the town faced another major weather event with an ice storm in April, with 12 property damage and five injury claims related to ice buildup on roads and sidewalks. The town denied automobile claims, according to the report, but the injury claims were being investigated by the insurer at the time of the report.
The report does not disclose how much the town paid out in those years.
Rock said municipalities have hired lawyers to litigate claims, but Mark's is not the case to do so in.
“I think they should just cough up the money. I see claims like this all the time,” Rock said.
