Where do we stand after the recent legal opinion obtained by the Town (Opinion #2, sequentially, by two lawyers in municipal law. The specialization here is important; I wouldn’t consult a cardiologist for a problem with my eyes!)? This opinion argues for a position of zero liability of the municipality (and of the councillors) while, contradictorily, the Town: a) accepts liability in its other public spaces (River Park, Dreamland Park, etc.), and b) forces residents to use more dangerous accesses to the lake (the Federal Wharf, for example). It should not be forgotten, such a desire for zero liability comes at a cost, the as yet unrevealed high cost of the Town running our public beach this year.
The Town’s administration has shown itself unwilling to share with its taxpayers and residents the amount of our money it might possibly have to spend this summer. But, and this is perhaps less well known, there was already an Opinion #1, in 2016, by a Full Professor of Law, specialized in civil non-contractual liability. This is precisely the area of law that applies in this case: this is the ophthalmologist I would consult if I had a problem with my eyes!
This opinion, communicated to the Town Manager in 2016, with Michael Page copied in the response to it by the Town Manager, seems NOT to have been presented to our sitting councillors (or, at the very least, not to certain of them). This opinion concluded, after citing jurisprudence and doctrine in this specific field of law, that the gate should be left unlocked, for to lock it would be to create greater liability of the Town. This clearly pertinent opinion seems to have been simply ignored, or gone unread (other than by the Town Manager), or have been forgotten – and yet it is far more credible, legally, than Opinion #1.
And then there’s an informal opinion, Opinion #3. It states, among other things, that Opinion #2 (upon which the Town, our Councillors, and the Town Administration seem to be relying), in speaking of the liability of the town, presupposes the Town should act in a way that would be even more ‘prudent’ than that which the lawmakers themselves require.
The lawmakers stipulated that fences should be placed around pools, but have not required them to prevent access to public or private beaches, thereby accepting the geographical realities of living on a lake, a river, or an ocean. And yet Council would have us believe that there is a danger inherent to living on a lake that is greater than the danger we experience in our everyday lives. We must be protected from the dangerous water! For our own good, but especially for the good of the Council and of the Town Administration, who might be sued. But then, the path to my house might be slippery after a rainfall and someone might fall – so should I fence it off and lock the gate to prevent access? There is a question here of the price to be paid for the refusal, in the instance of the beach, to accept even the possibility of liability and of the corresponding cost, also in terms of municipal liability, of knowingly pushing people towards more dangerous solutions.
In the end, a legal opinion is just that – an opinion! However, Council should be given all available information, all the opinions that have been asked for or obtained. Council should distinguish between abstract principles that apply to all of us in our daily lives and reasoning based on the particular facts of this situation, common sense, and sound jurisprudence and reasoning.
- Paul St-Pierre
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