Canada: Filling In The Gaps: Amendments To The Minimum Maintenance Standards For Municipal Highways

On January 25, 2013, the Minister of Transportation signed a regulation amending the Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02 ("MMS"), under the Municipal Act, 2001, S.O. 2001, c. 25 ("Municipal Act"). The MMS were last amended in 2010. Pursuant to s. 44(2) of the Municipal Act, a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if, at the time the cause of action arose, minimum standards applied to the highway and the alleged default and the municipality met those standards. Highlights of the most recent amendments to the MMS include:

PATROLLING (S. 3):

• The minimum standard for patrolling representative highways is changed from "during the season when a municipality performs winter highway maintenance" to when the municipality determines through weather monitoring that there is a "substantial probability of snow accumulation on roadways, ice formation on roadways or icy roadways." The term "substantial probability" is defined as a "significant likelihood considerably in excess of 51 per cent."

WEATHER MONITORING (S. 3.1):

• A new minimum standard is added which requires a municipality to monitor current weather as well as weather forecasted to occur in the next 24 hours: once a shift or 3 times a day from October 1 to April 30; and once a day from May 1 to September 30.

SNOW ACCUMULATION (S. 4):

• The use of the term "clear" (which may be presumed to mean ploughing alone) in the prior minimum standards for responding to snow accumulation is replaced with the term "address." Enumerated forms of "addressing snow accumulation" include, but are not limited to, ploughing, salting and sanding.
• A new section is added which provides that if the "depth of snow accumulation is less than or equal to" the depth stipulated in the applicable table, then "the roadway is deemed to be in a state of repair with respect to snow accumulation."
• The former limitation on the application of the minimum standard to the "season when the municipality performs winter highway maintenance" is revoked.
• A new section is added which provides that the depth of snow accumulation may be determined by a municipal employee, agent or contractor through actual measurement, monitoring the weather or performing a visual estimate.

ICE FORMATION ON ROADWAYS AND ICY ROADWAYS (S. 5):

• A new minimum standard is added with respect to the prevention of ice formation on roadways. The minimum standard requires:

• A new section is added which provides that where a municipality has met the MMS relating to ice prevention, the roadway is "deemed to be in a state of repair" until the earlier of: when the municipality becomes aware that the road is icy; and the expiry of the allowable time for preventative treatment.
• A new section is added which provides that roadways are deemed to be in a "state of repair" until the allowable time for treating an icy roadway has expired.
• The former limitation on the application of the minimum standard to the "season when the municipality performs winter highway maintenance" is revoked.

LUMINAIRES, SIGNS AND TRAFFIC CONTROL SYSTEMS (S. 10, 11, 12, 13):

" The frequency of minimum inspection of luminaires, signs (both under s. 11 and 12), and traffic control systems is changed from "once per year" to "once per calendar year" but not more than 16 months from the previous inspection.

SIDEWALK SURFACE DISCONTINUITIES (S. 16.1):

• The frequency of minimum inspection of sidewalks to check for surface discontinuity is changed from "once per year" to "once per calendar year" but not more than 16 months from the previous inspection.
• New sections are added which deem a sidewalk to be in a state of repair: 1) where the surface discontinuity is "less than or equal to two centimetres"; and, 2) between inspection dates where the sidewalk has been inspected for discontinuity in accordance with the MMS and the municipality does not acquire actual knowledge of a discontinuity in excess of two centimeters.
• The minimum standard for treating a discontinuity of greater than two centimeters is clarified to be within 14 days of the municipality acquiring "actual knowledge" of the discontinuity.

The new amendments were prompted by the Ontario Court of Appeal decision in Giuliani v. Halton (Municipality), [2011] ONCA 812 ("Giuliani"). Giuliani involved a motor vehicle accident which was allegedly caused by snow and ice on the roadway. The Trial Judge found that the municipality had failed to keep the roadway in a reasonable state of repair and that the MMS did not provide a defence in the circumstances. The appeal focused on the Trial Judge's interpretation of s. 5 of the MMS relating to the treatment of icy roadways. The Court of Appeal found that the MMS did not purport to cover every circumstance that might arise in the course of maintaining roadways and, in particular, that s. 5 of the MMS did not address standards for avoiding or preventing ice formation. The Court held that the prevention of ice formation was the context for the Trial Judge's finding of default on the part of the municipality and, accordingly, agreed that s. 5 of the MMS did not provide the municipality with a defence. Furthermore, the Court did not accept the municipality's argument that the Trial Judge's interpretation of the MMS left an unacceptable gap in the regulation and that the Court should interpret the regulation to fill the gap.

The recent amendments to the MMS fill in the gaps which were primarily at issue in Giuliani by providing minimum standards for both preventing ice formation and weather monitoring. The amendments also clarify and fill other potential gaps in the minimum standards relating to roadway patrolling and responding to snow accumulation and ice formation. In doing so, the amendments certainly expand the circumstances where a municipality may be able to rely on the MMS as a defence pursuant to s. 44(2) of the Municipal Act. However, in light of the Court of Appeal's decision in Giuliani, it is expected that the application of the MMS will continue to be tested for circumstances which might arguably fall outside the scope of the regulation.

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