In personal injury cases, municipalities often appear as defendants. Municipalities interact with so many people in so many areas of activity that it is inevitable that accidents and injuries will occur. In cases involving more serious injuries, municipalities are often included due to the operation of the principle of joint and several liability. Municipalities usually have liability insurance limits that are higher than those of most private citizens.
It is therefore imperative for lawyers practicing in the field to understand the principle areas of potential municipal liability and to understand both the limits of municipalities’ liability and the specialized statutory defenses available to municipalities.
Potential municipal liability can arise in many areas including but not limited to:
Winter road maintenance;
Road design and signage;
Summer road maintenance;
Sidewalk maintenance and repair;
Building inspection and Building Code enforcement;
Park and trail maintenance;
Zoning and planning approval;
Sewer and water main maintenance and inspection;
Transit system operation;
And much more.
To canvas all of these areas in one paper or one presentation would be too broad a task to tackle. Instead, the purpose of this paper is to canvas the most recent cases and legislative amendments involving road maintenance, sidewalks and maintenance of parks and trails.
Any lawyer acting in a case involving the state of repair of a roadway or sidewalk must read and understand section 44 of the Municipal Act, 2001, S.O. 2001, chapter 25 as amended. The section circumscribes the totality of a municipality’s obligations with respect to the state of repair of its roadways and sidewalks. The section also sets out the defences available to the municipality as well as applicable limitation periods which must be met. Counsel must be intimately familiar with the entirety of section 44.
Section 44(1) of the Municipal Act, 2001, as amended requires municipalities to keep their highways and bridges “in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.” Cases arising out of a municipality’s alleged failure to maintain a road in a reasonable state of repair fall into two principle categories: road maintenance and road design/signage.
FORDHAM VS. DUSTIN DUNWICH (MUNICIPALITY), 2014 ONCA 891
This is a road design/signage case in which the Court of Appeal reversed the trial judge’s finding of liability against the road authority.
This single car accident occurred when the plaintiff failed to stop or slow down for a stop sign at a rural intersection. He was unable to negotiate a small “S” curve in the roadway just beyond the stop sign, lost control of his vehicle and collided with a concrete bridge. There was evidence that the 16 year old plaintiff had consumed about two beers in the car while driving to the accident scene. The trial judge accepted evidence that in the geographic area of the accident, “ordinary rural drivers” did not stop at stop signs. The plaintiff argued that the configuration of the roadway beyond the stop sign, together with the lack of a sign warning of the approaching “S” curve constituted a state of non-repair for which the municipality was liable.
The court accepted expert evidence that if the plaintiff had stopped at the stop sign, he would have been able to safely recognize and negotiate the “S” curve.
The trial judge accepted that the standard for the “ordinary rural driver” in the area of the accident did not require stopping at all stop signs. The trial judge accepted that the plaintiff’s poor driving was a causal factor and that if he had stopped at the stop sign, the accident would not have happened. He also found that if there had been a warning sign in advance of the stop sign and “S” curve, the plaintiff likely would not have been injured, even if he had not stopped at the stop sign. Liability was split 50/50 between the plaintiff and the road authority.
Court of Appeal Decision
In reversing the trial decision and dismissing the action against the road authority, the court held that there is not one standard for city drivers and another standard for rural drivers. A municipality’s duty to maintain its roads in a state of repair only extends to making roads safe for ordinary drivers exercising reasonable care. A municipality’s duty does not extend to making its roads safe for negligent drivers. In confirming the longstanding legal test that, “a municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care”, the Court of Appeal stated clearly and succinctly that, “A municipality’s duty of reasonable repair does not extend to making its roads safer for negligent drivers.”
MCCLEOD V. GENERAL MOTORS OF CANADA LIMITED ET AL., 2014 ONSC 134
This is a road maintenance case involving a gravel road with potholes.
This case involved a single vehicle accident in which the 18 year old plaintiff lost control on a Class 4 rural gravel road. She alleges that as she came over a rise in the road, an oncoming vehicle caused her to swerve to her right, lose control and collide with a tree. She sustained serious injuries. The trial proceeded on the issue of liability alone.
Justice Leach’s trial decision is noteworthy for its careful review and analysis of each of sections 44(1), 44(2) and 44(3) of the Municipal Act, 2001. In acknowledging that the subject roadway did indeed have loose gravel as well as “surface imperfections” which in some cases were potholes and which other cases were mere “depressions”, Justice Leach held that the road was in a reasonable state of repair considering its “character and location” as set out in section 44(1). Despite the acknowledged presence of loose gravel on the roadway, the court noted, “To state the obvious, one should expect to find gravel on gravel roads.” He also found that the surface imperfections at the location of the accident were within the range of what one would expect on a low volume rural gravel road. Without yet having the benefit of the Court of Appeal’s decision in Fordham, Justice Leach properly held, “The ordinary driver, exercising ordinary care, does not include those who do not pay attention, drive at excessive speeds, or who are otherwise negligent.”
While the claim was dismissed on the basis that the plaintiff had failed to meet her onus to prove the existence of a state of non-repair, Justice Leach nevertheless analyzed the evidence in support of the statutory defenses set out in section 44(3) of the Municipal Act, 2001. Although he acknowledged that his analysis was “hypothetical” given his findings on the reasonable state of repair of the roadway, he nevertheless found that the defendant had met the onus of proving each of the three statutory defenses, including its reliance on the minimum maintenance standards applicable to road inspections and pothole maintenance.
LLOYD V. BUSH, 2015 ONSC 761
This is a road maintenance case involving a snow covered roadway.
This action involved a two vehicle collision on a snow covered roadway in January 2003. The vehicles collided as they traveled in opposite directions through an “S” curve. Snow had been falling since approximately midnight and continued to accumulate up to the time of the accident at approximately 10:35 a.m. The trial judge accepted evidence that the road authority had spread a 3:1 sand/salt mix over the roadway twice, in both directions, between 4:00 a.m. and the time of the accident. Although the road authority offered testimony that the road had been ploughed, there were no records or other credible evidence to support this allegation.
The trial judge found that the road was snow covered and slippery at the time of the accident. Although he accepted that winter maintenance vehicles had made two passes in each direction between 4:00 a.m. and the time of the accident, spreading the sand/salt mix, he found that the mixture and quantity of sand/salt was inadequate and ineffective whereas applications of straight salt (as was applied on the municipality’s urban roads) would have created a “brine” that would have caused bare patches on the road. He also found that there was no evidence of ploughing as of the time of the accident, given the complete lack of windrows of snow or other evidence of ploughing. Again, he found that if the municipality had spread adequate material and had indeed ploughed the roadway, there would have been bare patches and the accident could have been avoided.
He found that the municipality failed to prove that it undertook reasonable efforts to address the state of non-repair which existed at the time of the accident. It is worth noting that at the time of trial, more than 11 years after the accident, the City had no reliable records (and in most cases no records at all) of the winter inspection and maintenance activities at the time of the accident. The court was asked to rely almost entirely on the recollection of employees, which the court found largely unreliable or unsatisfactory.
It was also an important faction that the specific “S” curve at the location of the accident was known to the predecessor road authority as a “hot spot” which received special attention during winter maintenance. There was no evidence that this special attention or recognition was passed along to the successor road authority which was responsible for the roadway at the time of the accident. Liability was split between the municipality (60%) and the defendant truck driver (30%) and the plaintiff herself (10%). The decision is currently under appeal.
MINIMUM MAINTENANCE STANDARDS AMENDMENTS
As of January 25, 2013, the regulations to the Municipal Act, 2001 setting out the minimum maintenance standards (“MMS”) for municipal highways (O.Reg. 239/02 as amended by O.Reg. 47/13) set out revised standards, including for patrol frequency, weather monitoring, snow accumulation, ice formation on roadways and sidewalk trip ledges. To date, it does not appear that the new regulations have been tested in court; however, they purport to strengthen the defenses available to municipalities pursuant to section 44(3)(c) of the Municipal Act, 2001.
The amendments to the regulations also purport to address the shortcomings which were exposed by the Court of Appeal in the Giuliani v. Halton decision in 2011. All practitioners in winter road cases should review the amendments in detail and understand how they may or may not affect the case.
For ease of reference, the entire amended regulation is appended to this paper as Schedule A.
The amended regulation now addresses the issue of road patrols when winter weather conditions are anticipated. The standard provides that where there is a “substantial probability” of snow or ice forming on roadways, the municipality is required to patrol highways “at intervals deemed necessary by the municipality” to check for such winter road conditions.
It now provides that weather monitoring for conditions both current and forecast to occur in the next 24 hours must take place once every shift or three times per calendar day, whichever is more frequent. The intervals of the monitoring is to be determined by the municipality. This level of weather monitoring is to take place from October 1 to April 30 each year. For the balance of the year, the minimum standard for monitoring weather, both current and forecast to occur in the next 24 hours, is once per calendar day.
With respect to snow accumulation, there are a variety of changes. Most importantly (and certain to be tested in the appropriate case) is the new regulation at 4(2) which states:
“If the depth of snow accumulation on a roadway is less than or equal to the depth set out in the Table to this section, the roadway is deemed to be in a state of repair with respect to snow accumulation.”
This provision appears to be aimed at “plugging the hole” identified in Giuliani, namely the court’s finding that the MMS only applied once snow accumulations had reached the depths set out in the appropriate Table.
With respect to ice formation on roadways and icy roads, again there are a number of revisions and additions to the MMS. The new provisions are meant to address the previous shortcoming in the MMS as identified by Giuliani, namely the fact that the MMS did not address a municipality’s efforts to prevent the formation of ice in the appropriate circumstances. The revisions to section 5 of the MMS provide that once there is a “substantial probability” of ice forming on a roadway, a municipality is to treat the roadway within the required timeframe, starting from the time that the municipality determines it is appropriate to deploy resources for that purpose.
Importantly, the section further provides that if the municipality meets the minimum standard for attempting to prevent ice from forming, and despite such compliance, ice forms on a roadway, the roadway is still deemed to be in a state of repair until the earlier of the time that municipality becomes aware of the fact that the roadway is icy or the time set out in the appropriate Table expires.
The amended regulation now addresses the issue of sidewalk surface discontinuities or “trip ledges” as they are more commonly described. Section 16.1(2.1) provides that where a surface continuity on a sidewalk is less than or equal to 2 cm (0.79 inches) the sidewalk will be deemed to be in a state of repair. The standard of inspection requires municipalities to inspect sidewalks at least once per calendar year, with each inspection taking place not more than 16 months after the previous inspection. If the municipality meets the standard for frequency of inspection, the sidewalk will be deemed to be in a state of repair with respect to any trip ledges until the next inspection is to take place.
The changes add new and interesting complexity to the prosecution and defense of road and sidewalk maintenance cases. It remains to be seen how the court will interpret the many qualitative words and phrases in the new amendments.