On December 21, 2011, the Ontario Court of Appeal dismissed the defendant municipalities' appeal of the trial decision in Giuliani v. Halton (Municipality). This is a significant case as it addresses the Minimum Maintenance Standards.
This action arose from a motor vehicle accident on April 1, 2003 in which the plaintiff lost control of her vehicle due to the accumulation of ice and snow in the roadway and struck another vehicle in the oncoming lane. The trial judge held that the defendant municipalities had been negligent in the maintenance of the roadway, and that the Minimum Maintenance Standards for Municipal Highways ("MMS") did not afford the municipalities with a defence. In addition, the trial judge allocated 50% contributory negligence to the plaintiff for driving too fast in the circumstances.
The only issue on appeal was whether the trial judge erred in determining that the MMS did not apply as a defence to the plaintiff's action. The plaintiff cross-appealed on the issue of contributory negligence, and the cross-appeal was also dismissed.
By way of background, section 44 of the Municipal Act, 2001 sets out a municipality's obligation to maintain roadways in a reasonable state of repair. It also creates legal liability for failing to maintain roadways. In addition, section 44 sets out 3 defences for a municipality. A municipality would not be responsible for failing to maintain the roadway:
- if it did not or could not have known that a roadway was in a state of disrepair;
- if it took reasonable steps to address the condition of disrepair;
- if it met the applicable MMS.
The MMS comprise a series of standards for various aspects of road maintenance, including patrolling, salting and clearing snow, which vary depending on the speed limit and traffic volume on a particular roadway. The MMS were initially enacted under O. Reg. 239/02 and later amended by O. Reg. 23/10. The initial version of the MMS was applicable in this case.
The accident in this case occurred at 7:00 a.m. on April 1, 2003 on a two lane, two way road, with a speed limit of 80 km/h. It was considered a Class 2 roadway under the MMS. Weather forecasts from the day before the accident indicated that there would be snowfall beginning from the early morning hours of April 1. Snow likely began to fall at about 4:00 a.m., and there was a total snow accumulation of approximately 2 cm. By the time the accident took place, the roadway was covered with snow and ice caused by traffic compacting the snow, and the road conditions presented a hazard to motorists. The municipality began salting the roadways at 7:15 a.m., approximately 15 minutes after the accident took place. The trial judge found that, had there been proper monitoring of weather and road conditions, salting would have been commenced much earlier, and icy conditions would have been prevented. Accordingly, the trial judge held that there was a failure to maintain the roadway in a reasonable state of repair in the circumstances, and "but for" this failure, the accident would not have occurred. The trial judge rejected the municipalities' argument that the MMS provided a defence to the action.
For the purposes of the appeal, the only issue was whether the MMS provided a defence to the action.
In dismissing the municipalities' appeal, the Court of Appeal clearly stated that the "purpose of minimum standards is to provide a municipality with a defence even if it would otherwise be liable under the provisions of section 44." Accordingly, even if a municipality did not maintain a roadway in a reasonable state of repair in the circumstances, and even if it knew or ought to have known of the disrepair and did not take steps to prevent the disrepair, a municipality would not be liable if it complied with the applicable MMS.
That said, not every circumstance is addressed by the MMS. In this case, the Court of Appeal agreed with the trial judge's finding that neither section 4 nor section 5 of the MMS were applicable in this case.
Section 4 of the MMS sets out standards for the clearing of accumulated snow as soon as practicable after becoming aware that the snow accumulation is greater than a certain depth, in this case, 5 cm for a Class 2. It also sets out a standard for clearing snow to a depth less than 5 cm within 6 hours after the snow accumulation has ended and after becoming aware that the snow accumulation exceeds 5 cm. The Court of Appeal stated that section 4 would only be triggered where the snow exceeded the depth specified in the MMS, in this case 5 cm. Here, where the total accumulation of snow was only 2 cm, section 4 was not triggered and had no application. The Court of Appeal noted that section 4 did not say that a municipality need not clear snow if the accumulation was less than 5 cm. Nor did section 4 provide a standard for snow clearing where there was less than a 5 cm accumulation of snow. Accordingly, it appears that a municipality will not be able to defend itself by arguing that the minimum standard relating to snow clearing has been met in cases where there has been snow accumulation which is less than the amount prescribed in the MMS.
The Court of Appeal also considered section 5 of the MMS. Section 5 sets out standards for deploying resources to treat icy roadways "as soon as practicable after becoming aware that the roadway is icy" and for treating an icy roadway within a prescribed amount of time after becoming aware that a roadway is icy, in this case, 4 hours for a Class 2 road. The Court of Appeal stated that section 5 would apply to situations where the roadway has already become icy, not before the roadway is icy. In this case, the municipalities' defaults involved inadequate weather monitoring and inadequate road patrolling which allowed ice to develop. Section 5 did not apply as a defence in this case because the municipalities' negligence arose from the failure to prevent ice from forming, not from the way the municipality dealt with an already icy roadway. This decision signals that courts will interpret the applicability of the MMS narrowly, according to their precise wording. The MMS will not apply in every circumstance relating to road maintenance. However, in cases where a municipality's conduct falls squarely within the parameters of the MMS, a municipality can rely upon its compliance with the MMS as a defence in circumstances where it would otherwise be negligent.About BLG
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