Fallen tree lawsuit claims $1.3 million from City

A lawsuit filed by the parents, Mr. and Mrs. Richard Rossy, claims Gabriel, their 27-year-old son, lost his life because of the City's negligence.

A report last week on LCN, a Quebec cable news network, said the family claims that the accident could have been avoided if Westmount had been maintaining the tree properly.

According to LCN, a forestry engineer attesting on behalf of the complainants maintains he was not surprised the tree fell, since more than 80 per cent of its trunk was rotten.

Julius Grey, the lawyer representing the couple, said in an interview that the case also involves the province of Quebec's no-fault insurance plan.

"The issue is whether it's a car accident or not," he said. "Whether that type of thing is to be considered an accident under the no-fault rule or not.

"It's a very important, very fine piece of jurisprudence. I certainly wouldn't argue it in front of the media. But that's what's going to have to be decided.

"This is an important point of law to me," he added. "The facts are of no importance. The issue is whether this is a car accident or not, and from my point of view it's a pure issue of law.

"There's no question of responsibility … Nobody contests the facts. The question is whether this falls under the no-fault."

When the City has issues in litigation, it usually does not comment on them. As a result, Mayor Karin Marks was careful in expressing her concern. "It was a very sad situation and they're doing what they think they ought to do," she said. "But we don't comment on situations in litigation."

With no-fault insurance, insureds are indemnified by their own insurer regardless of fault in accidents. No-fault plans administered by states, territories or provinces allow for recovery of direct damages but impose limitations on the right of the insured to sue.

Under no-fault insurance plans in provinces and territories across Canada, Quebec and Saskatchewan are the only jurisdictions with "pure" no-fault, which never allow claimants to sue for pain, suffering or economic loss.

While supporters of no-fault insurance point out that it lowers premium costs by avoiding litigation over the cause of accidents and provides quick payment for injuries at the same time, critics note that it does not punish negligence or recklessness through litigation because cases don't often end up on trial.