Canada: The Municipal Act: Minimum Maintenance Standards Revisited By The Ontario Court Of Appeal

On Monday, March 28, 2017, the Ontario Court of Appeal released their decision, Lloyd v. Bush, 2017 ONCA 252. This case was an appeal by the County of Lennox and Addington (the "County") and the Corporation of the Town of Greater Napanee ("the Town") from a trial level decision that found the respective municipalities liable for damages arising out of a motor vehicle accident.1

Facts

On the morning of January 3, 2003, Leslie Lloyd was returning home travelling east on an "S-curve" portion of the road known locally as "Rankins Corner". A commercial propane truck, operated by David Bush, was travelling west on County Road 9. Leslie had driven about one kilometre and partly through Rankins Corner when her vehicle collided with David Bush's propane truck in the middle of the road in the easterly part of the "S-curve".

At the time of the accident, County Road 9, including the centre and fog lines in Rankins Corner, was covered in snow. David Bush's left wheels were either on or slightly over the centre-line. Upon first seeing David Bush's truck, Leslie Lloyd attempted to either brake or steer to the right to keep her vehicle in the eastbound lane; however, she lost control and caused her vehicle to swerve.2 The accident left Leslie Lloyd severely injured and with permanent disabilities.3

Judicial History

The primary ground of appeal, in this case, was with respect to the trial judge's interpretation and application of the municipal defendants' duties under the Municipal Act, 2001, S.O. 2001, c. 25 ("Municipal Act") to clear roads of snow and ice during a snow event. The County was the owner of the road on which the accident occurred and the Town was responsible for its winter maintenance pursuant to a 1998 agreement.4

It is important to highlight the fact that this was the second trial of this matter. The first trial decision was appealed on the grounds that the trial judge showed a reasonable apprehension of bias against the plaintiffs, and as a result, a second trial was ordered. The most recent appeal was as a result of the second trial which found liability split between the municipal defendants at 60%, David Bush and his propane company at 30%, and Leslie Lloyd at 10%.5

On this appeal, the Court of Appeal ordered a third trial on the issue of liability. The Court of Appeal found that the trial judge did not include, as part of his reasons, sufficient findings, which would allow the Court of Appeal to substitute their decision for the trial judge's decision and resolve the claim. However, in deciding the case, the Court of Appeal provided comprehensive analysis, which will provide guidance in similar cases, involving winter maintenance and duties owed by municipal defendants under the Municipal Act.

Analysis: Strategies and Tactics

Liability under the S. 44 of the Municipal Act

Section 44 of the Municipal Act sets out the duty of a municipality with respect to road maintenance,6 and requires that a municipality keeps the road in a state of repair. In this case, the Ontario Court of Appeal reaffirmed the four-part test set out in Fordham v. Dutton Dunwich, (Municipality), 2014 ONCA 891 in determining if the road was in a state of non-repair.7 The test can be summarized as follows:

  1. Non-Repair: The plaintiff must prove the existence of a condition of non-repair, that is, a road-based hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road, with a view to the circumstances including the "character and location" of the road.
  2. Causation: The plaintiff must prove that the condition of non-repair caused the loss in question.
  3. Statutory Defences: If the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality. The municipality then bears the onus of proving that one of the three independently sufficient defences in s. 44(3) applies. These defences include proof that the municipality took reasonable steps to prevent the default from arising (s. 44(3)(b)).
  4. Contributory Negligence: If the municipality cannot establish any of the statutory defences, it will be found liable. The municipality can, however, still demonstrate that the plaintiff's driving caused or contributed to his or her injuries.8

As part of this analysis, courts in Ontario will consider the varying winter conditions that may exist as well as the associated cost of clearing the road of snow. Furthermore, in past cases, courts have emphasized that municipalities should not be treated as an insurer of the safety of all users of its roads by imposing overly onerous maintenance obligations. In other words, courts have held that proof of a state of non-repair is not in itself enough to establish liability. Rather, a municipality will only be held liable for failing to clear the road of snow or ice where it had "actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway".9

Context Matters In Determining if the Road is in a State of Non-Repair

When considering whether a road is in a state of non-repair, a court must analyze all of the surrounding circumstances. This is inherently a fact-driven exercise. In this case, Justice Rouleau provides the following guidance:

What is deemed to be a reasonable state of repair will depend on the facts of each case. According to the plain wording of s. 44(1), the circumstances that must be considered in determining the reasonably applicable standard of repair includes the character and location of the roadway.

The jurisprudence is clear that a lower standard will apply with respect to the state of repair on a low-traffic rural roadway than on higher-traffic thoroughfares and highways. The character and population of the area are to be considered as well as the amount of traffic using the road: see Ian Rogers, The Law of Canadian Municipal Corporations, loose-leaf (2016-Rel. 9), 2nd ed. (Toronto: Thomson Reuters Canada Ltd., 2009), at para. 235.32.

As noted above, for a road to be in a state of non-repair, it must present a hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road in the circumstances. As explained in Docherty (Litigation guardian of) v. Lauzon, 2010 ONSC 1006, [2010] O.J. No. 5017, "non-repair" is a relative concept and the condition of repair for a rural road does not impose a high standard on a municipality. Rural roadways are, "by their nature, susceptible to the development of adverse conditions. Therefore, drivers have to adjust to these conditions" (para. 206).10

...

Applying the above-noted factors, Justice Rouleau states the following:

Among those other findings made by the trial judge is that Rankins Corners was a "hot spot", meaning that the municipality recognized that it required special winter maintenance attention. Another is that, at the time of the accident, the road was very slippery.11

Therefore in considering if a road is in a state of non-repair, it is important to focus on such factors as the nature and characteristics of the road, the amount of traffic on the road, and the time of day of the accident. The analysis will necessarily shift depending on whether the road is rural in nature, if it's heavily travelled, or if it's a problematic stretch of road, and if the accident occurred at a busier time of the day. These factors help in determining the "actual or constructive knowledge" that the municipality may have had, and in turn, will assist in determining if the municipality's response was reasonable.

Minimum Maintenance Standards

In determining the proper reasonable response to a snow event, municipalities should not be limited in their response by the minimum maintenance standards. Municipalities should consider the circumstances and determine if the condition of the road poses an unreasonable risk of harm to reasonable drivers. As Justice Rouleau further explains:

The trial judge also rejected the suggestion that the municipality's duty was necessarily limited to the minimum standards imposed by the province. He found that the appellants reasonably followed a policy of sending out plows "if there was snow accumulation between midnight and 4:00 a.m. and to continue plowing until the snow was cleared."

I agree with the trial judge that mere compliance with minimum standards or guidelines is not, in itself, sufficient to avoid liability if there was an obvious deficiency or risk. The overriding question remains: in all of the circumstances, does the condition of the road pose an unreasonable risk of harm to reasonable drivers? See Fordham, at para. 53.12

Documentation is Key in Demonstrating Reasonableness of Response:

In this case, the Court of Appeal reiterated the principle that a municipality's response needs to be reasonable, not perfect. As Justice Rouleau states: "[g]iven unlimited resources, any town might be able to keep its roads centre-bare even in the middle of the worst snow storm. That, however, is not the standard to be met."13 However, in order to demonstrate this at trial, it is imperative that the municipalities furnish maintenance records with sufficient detail that can demonstrate that their response was reasonable. This did not occur in this case and the Court of Appeal made note of it:

A significant factor in assessing the reasonableness of the Town's response to the snow event is the frequency with which it plowed and applied material to Rankins Corners. At trial, this was a hotly disputed issue.14

...

[Trial Judge] found Wayne Dixon's evidence as to his plowing activities that day to be of no assistance because he kept no notes and had no independent memory of his activity on that day....

The trial judge also determined that little weight could be placed on Doug Abrams' evidence due to his lack of notes and the contradictions between his testimony and that of the other Town employees with respect to whether CR9 was his regular route and not Mr. Dixon's.

Though Vern Amey testified that he expected Mr. Dixon to have completed two return plow runs on CR9 that morning, the trial judge determined that he had no reliable evidence that this actually occurred. He found that "the only clear evidence on plow operations that morning" was that at or about 10:00 a.m. the witness Mr. Wayte followed a plow westerly on CR9.15

...

The Town led evidence suggested several applications of sand/salt mixture was applied to Rankins Corners but the trial judge was clearly reluctant to accept that evidence, as the Town's key witnesses had little or no independent recollection of their actions on the relevant day.16

Concluding Remarks

This case serves as a timely reminder to municipalities of the onus placed on them under the Municipal Act. In light of this appellate decision, municipalities may wish to consider reviewing current policies and procedures to ensure that they are able to properly respond to anticipated and unanticipated snow events. In doing so, municipalities may consider preparing policies that take into account the nature and characteristics of their roads, including identifying certain hot spots under their care and control, which may require special winter maintenance above and beyond the minimum maintenance standards. Moreover, municipalities should ensure that they have proper documentation and procedures in order to be able to demonstrate at trial the reasonableness of their response.

Footnotes

1Lloyd v. Bush, 2017 ONCA 252.

2 Lloyd v. Napanee (Town), 2015 ONSC 761at paras 169-179.

3 Lloyd, supra note 1 at paras 6-9.

4 Ibid at para 1.

5 Ibid at para 53.

6 44. (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

Liability

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

Defence

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.

7 Ibid at para 62.

8 Ibid at para 62.

9 Ibid at para 64.

10 Ibid at paras 69-71 [emphasis added]

11 Ibid at para 73 [emphasis added]

12 Ibid at paras 74-75 [emphasis added]

13 Ibid at para 81 [emphasis added]

14 Ibid at para 87.

15 Ibid at paras 35-37.

16 Ibid at para 88.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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