Canada: Substantive Changes To Ontario's Highway Minimum Maintenance Standards Now In Effect

As of May 3, 2018, substantive changes were made to the Minimum Maintenance Standards for Municipal Highways, O Reg 239/02 and the Minimum Maintenance Standards for Highways in the City of Toronto, O Reg 612/06. The most notable changes are:

  1. The introduction of winter maintenance standards for bicycle lanes;
  2. The introduction of winter maintenance standards, including patrol obligations, for sidewalks;
  3. The ability for municipalities to declare a "significant weather event" with implications for winter maintenance on roadways, bicycle lanes and sidewalks during the duration of the event; and
  4. Inspection standards for areas "adjacent to sidewalks."

Each of these changes are detailed below.

Bicycle Lanes

The Minimum Maintenance Standards ("MMS") now provide a definition for a bicycle lane which includes a portion of the roadway with marked or buffered lanes, whether for the exclusive or preferential use of cyclists.

The MMS now include specific sections outlining winter maintenance standards for snow accumulation in bicycle lanes. The table below compares the new snow accumulation depth standards for bicycle lanes as compared with the existing standards for roadways:

Class of Highway or
Adjacent Highway
Depth Time for bicycle lanes Time for roadways
1 2.5 cm 8 hours 4 hours
2 5 cm 12 hours 6 hours
3 8 cm 24 hours 12 hours
4 8 cm 24 hours 16 hours
5 10 cm 24 hours 24 hours

It is noteworthy that the snow accumulation standards for bicycle lanes is lower than for the adjacent roadways in which they are contained, with the implication that where maintenance is performed on the roadway and bicycle lane in unison, both standards should be satisfied.

Similar to the sections dealing with roadways, the MMS provide that where the depth of snow accumulation on a bicycle lane is less than or equal to the depth set out in the table, the bicycle lane is deemed to be in a state of repair in respect of snow accumulation.

While there is no separate section dealing with ice formation on bicycle lanes, the section which sets out the standards for ice formation on roadways does note in section 5(5) that "this section applies in respect of ice formation on bicycle lanes on a roadway, but does not apply to other types of bicycle facilities."

Sidewalk Winter Maintenance

For the first time, the MMS now contain specific sections dealing with sidewalk winter maintenance. Section 16.3 provides that snow accumulation on sidewalks shall be reduced to less than or equal to eight centimetres within 48 hours of the end of a snow event. The section further provides a standard of a minimum maintained width of one metre. This section appears to mirror the standards which many municipalities on their own initiative have had in place for some time. Notably, the section does not require clearing to bare pavement; rather, simply reducing the depth to less than or equal to eight centimetres.

Sidewalks are deemed to be in a state of repair with respect to snow accumulation (a) where snow depth is less than or equal to eight centimetres; and (b) during ongoing snow accumulation, even where it exceeds eight cm, until 48 hours after the snow accumulation ends.

Section 16.5 sets out standards with respect to ice formation on sidewalks. It requires that municipalities monitor weather in accordance with section 3.1, and to "treat the sidewalk if practicable to prevent ice formation or improve traction within 48 hours if the municipality determines that there is a substantial probability of ice forming on a sidewalk, starting from the time that the municipality determines the appropriate time to deploy resources for that purpose". This appears to be an effort to impose standards for sidewalk maintenance during ice formation events. Necessarily, this standard still leaves the municipality with considerable discretion in terms of the deployment of resources during such events.

Similar to the other "deeming" provisions found in the MMS, where ice forms on a sidewalk despite complying with the standard in subsection (1), the sidewalk is deemed to be in a state of repair in respect of ice until 48 hours after the municipality first becomes aware of the fact that the sidewalk is icy. Pursuant to subsection (3), an icy sidewalk is deemed to be in a state of repair for 48 hours after it has been treated.

The deeming provisions with respect to snow accumulation and ice ought to provide municipalities with more objective arguments in defending sidewalk slip-and-fall claims together with the gross negligence defence provided in section 44(9) of the Municipal Act, 2001 and section 42(5) of the City of Toronto Act, 2006.

Section 16.7 for the first time introduces standards for winter sidewalk patrols, which are to be conducted by the municipality where "the weather monitoring referred to in section 3.1 indicates that there is a substantial probability of snow accumulation on sidewalks in excess of eight cm, ice formation on sidewalks or icy sidewalks." The patrols are to be conducted on sidewalks that the municipality selects "as representative of its sidewalks at intervals deemed necessary by the municipality." Accordingly, there is no expectation that all sidewalks are to be patrolled; rather, this section appears to reflect the practice already in place in many municipalities to inspect "representative" sidewalks for winter maintenance conditions.

Significant Weather Event

The amendments include the introduction of the concept of a "significant weather event" which is defined as "an approaching or occurring weather hazard with the potential to pose a significant danger to users of the highways within a municipality." "Weather hazard" is also a defined term and means the "weather hazards determined by Environment Canada as meeting the criteria for the issuance of an alert under its Public Weather Alerting Program."

Under the new MMS, the declaration of a "significant weather event" has a uniform implication for the following sections of the MMS:

  • Snow accumulation on roadways (section 4.1)
  • Snow accumulation on bicycle lanes (section 4.3)
  • Icy roadways (section 5.1)
  • Snow accumulation on sidewalks (section 16.4)
  • Icy sidewalks (section 16.6)

In each case, during the course of a declared significant weather event, the standard for addressing winter maintenance is simply "to monitor the weather in accordance with section 3.1" and to deploy resources to address the issue "starting from the time that the municipality deems appropriate to do so." Once the significant weather event is declared to have been concluded, the municipality shall address the issue pursuant to the regular standards for maintenance.

Section 16.9 sets out how a municipality must notify the public of the start or end of a "significant weather event:"

  1. By posting a notice on the municipality's website.
  2. By making an announcement on a social media platform, such as Facebook or Twitter.
  3. By sending a press release or similar communication to internet, newspaper, radio or television media.
  4. By notification through the municipality's police service.
  5. By any other notification method required in a by-law of the municipality.

Encroachments

Section 16.2 sets out standards for encroachments on areas adjacent to sidewalks.

"Sidewalk" is now a defined term meaning "the part of the highway specifically set aside or commonly understood to be for pedestrian use, typically consisting of a paved surface but does not include crosswalks, medians, boulevards, shoulders or any part of the sidewalk where cleared snow has been deposited."

"Encroachment" is also a newly defined term meaning "anything that is placed, installed, constructed or planted within the highway that was not placed, installed, constructed or planted by the municipality" (emphasis added).

Section 16.2(1) provides that areas adjacent to sidewalks are to be inspected for encroachments once per calendar year, with each inspection taking place not more than 16 months from the previous inspection. The area is deemed to be in a state of repair in respect of any encroachment present "unless the encroachment is determined by the municipality to be highly unusual given its character and location or to constitute a significant hazard to pedestrians." Where an encroachment is "highly unusual given its character and location or constitutes a significant hazard to pedestrians," the standard is to address the encroachment within 28 days of making such a determination. Within that 28-day period the encroachment is deemed to be in a state of repair.

This section appears to be a recognition by the legislature that municipalities are often faced with items being installed or constructed in areas adjacent to pedestrian sidewalks without any notice being provided to the municipality.

Other Notable Changes

Other notable additions to the MMS include:

  • Section 2.1 reinforces the purpose of the MMS as providing statutory defences to a municipality as opposed to representing mandatory standards by which a municipality must meet.
  • Section 6(1.1) provides that the area and depth of a pothole may be determined by a municipal employee, agent or contractor by either performing an actual measurement or performing a visual estimate. This provision may have significant implications from an evidentiary standpoint, especially in circumstances where it is not practical to perform an actual measurement.
  • The definition of "surface discontinuity" in section 16.1 which deals with sidewalk surface discontinuities was amended to add "any vertical height difference between a utility appurtenance found on or within the sidewalk and the surface of the sidewalk." "Utility appurtenance" was added as a defined term which means "maintenance holes and hole covers, water shut-off covers and boxes, valves, fittings, vaults, braces, pipes, pedestals, and any other structures or items that form part of or are an accessory part of any utility."

Given that these changes to the MMS are substantive in nature, they will only apply to claims arising from incidents occurring on or after May 3, 2018.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions