The recent decision of the Court of Appeal in Fordham v. The Municipality of
Dutton-Dunwich provides some useful guidance on the
duty of a municipality to maintain its roads, and particularly
signage, for the safety of its citizens. The case is also
interesting for its discussion on the differences, if any, in urban
and rural settings.
In January 2007, a 16-year-old drove his car from one
friend's house to another. He took a route through the
Municipality of Dutton-Dunwich on rural roads that were unfamiliar
to him. He came to an intersection with a stop sign. As
he saw no approaching cars, he ignored the stop sign and drove
through the intersection at about 80 km per hour.
Unfortunately for him, the road curved to his right just after the
intersection. In trying to navigate the curve, he lost
control of his car and crashed into a concrete bridge abutting the
road. He suffered brain damage.
He sued the Municipality claiming that it breached its duty to
keep the road in good repair by failing to post a checkerboard sign
warning of the change in the road's alignment.
At trial, the young man was successful. The trial judge
indicated that it was clearly a local practice in the rural area
for drivers to go through stop signs if they considered it
safe. As a result, the change in the road's alignment was
a hidden hazard and the Municipality should have provided more than
a stop sign to give ordinary rural motorists reasonable notice of
the hazard ahead. However, the judge also found the young man
contributorily negligent because he had failed to stop at the stop
sign. As a result, the trial judge apportioned liability for
the damages equally between the young man and the Municipality.
The Municipality then appealed.
The Court of Appeal found in favour of the Municipality.
As far as it was concerned, a municipality has no duty to keep
roads safe for those who drive negligently. Running a stop
sign at 80 km per hour is negligent driving. The turn in the
road would have represented no hazard to a driver stopping at the
stop sign or even one slowing down to perhaps 50 km per hour at the
In the court's view, the finding of the trial judge that in
rural areas, drivers go through stop signs at or near the speed
limit is legally irrelevant. There is only one standard of
reasonable driving and not a separate standard for rural as opposed
to city drivers. That standard requires drivers to obey
traffic signs. As a result, the Municipality had no duty to
install an additional sign on the road.
As an interesting side note, the court went on to explore the
cause of action that an individual might have for damages against a
municipality failing to keep a road in a reasonable state of
repair. As the court pointed out, merely proving that a road
was not kept in good repair is not sufficient to justify a damage
award. In fact, there is a four-step test involved under the
Firstly, the plaintiff has to prove that the Municipality failed
to keep the road in a reasonable state of repair.
Secondly, the plaintiff has to prove that the non-repair caused
Thirdly, the Municipality then has three available defences to
The Municipality could not
reasonably have been expected to know about the state of repair of
The Municipality took reasonable
steps to prevent the problem from arising; or
At the time of the incident,
minimum standards established elsewhere in the legislation applied
and had been met.
Finally, even if it fails on any of the first three tests, the
Municipality can show that the plaintiff's driving caused or
contributed to the plaintiff's injuries.
In this case, the real question was as to whether or not the
road had been kept in a reasonable state of repair given the
absence of a checkerboard sign. As the court pointed out, 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. Ordinary reasonable drivers are
not perfect. They make mistakes. However, they are not
negligent. The duty of reasonable repair does not extend to
making roads safe for negligent drivers. In terms of signage,
they are required only if without them, an ordinary driver driving
without negligence would be exposed to an unreasonable risk of
harm. Therefore, the mere presence of a hazard does not
require that a sign be put up. The hazard must be one that
puts reasonable drivers at risk. In this case, as the young
man had not been reasonable in his operation of his vehicle, the
road was considered safe without a checkerboard sign.
The story of this young man is sad, which is an observation also
made by the Court of Appeal. However, that fact alone will
not result in liability.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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