Immunities And Exploits: Considerations For Subrogation As Against Municipal Or Regional Governments

As a result of the special nature of local governments, including cities, towns, counties, regional municipalities, etc., they enjoy a special role in respect of litigation, and have a number of unique defences at their disposal which can often discourage or thwart subrogation efforts altogether. However, it is important to understand that such defences are not insurmountable, but only require special consideration in order to deal with.

More importantly, a detailed understanding of the available defences typically asserted by municipalities can actually make it more likely that actions can succeed as against them.

Nuisance under the Municipal Act

Pursuant to section 449 of the Municipal Act¹ (section 393 of the City of Toronto Act²), municipalities are immune to claims in nuisance arising from the escape of water or sewage from public water or sewage works. Under the common law of nuisance, the escape of a substance from one property, which travelled to another