Canada: Municipal Liability: What Is Reasonable?

Last Updated: October 12 2018
Article by Tom Macmillan

The City of Hamilton has been busy recently at the Ontario Court of Appeal, acting as appellant on two separate appeals relating to findings of liability for non-repair of intersections. The City was found partly at fault at the trial level in both actions, on similar facts.

Although the two appeals, Chiocchio v. Hamilton (City), 2018 ONCA 762, and Smith v. Safranyos, 2018 ONCA 760, deal with similar fact scenarios, they were heard by separate panels.

Given that the panels came to different conclusions on liability against the City on similar facts, one queries whether the results would have been different were the appeals argued together.

Read together, we are left with some guidance on how the Courts will address municipal liability in the context of allegations of non-repair. The distinction between the facts in this case, however, provide lower courts with little guidance on how to determine when a municipality has failed in its duty to ensure safe intersections.

Section 44 of the Municipal Act, S.O. 2001, c.25 imposes on a municipality the obligation to keep highways under its jurisdiction, a state of repair that is reasonable in the circumstances, including the character and location of the highway.

The Court of Appeal in Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, outlined that a municipality is required to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers, exercising reasonable care.

The court in Fordham stressed that ordinary drivers make mistakes, and are not perfect, and a municipality must take that into consideration in its obligation with respect to highways.

However, the court made it clear that a municipality's duties with respect to repair do not extent to remedying conditions that pose a risk of harm caused by negligent driving.

It is this last point that came to a head in both Chiocchio and Smith.

Chiocchio v. Hamilton (City) – Trial Decision

In Chiocchio, the plaintiff was a passenger in a motor vehicle which was travelling northbound when it was t-boned by the defendant Mr. Ellis. Mr. Ellis had been stopped at a stop sign at the intersection, and had accelerated into the intersection.

There was no stop sign facing the plaintiff's motor vehicle, and no dispute that Mr. Ellis was responsible for the accident. He conceded at trial that he did not see the plaintiff's vehicle.

At issue was the state of the intersection. The stop sign was located between 8.4 and 9.4 metres back from a faded stop line, which itself was located between 1.9 and 2.9 metres behind the entrance to the intersection. The stop line had last been painted about two years prior to the accident.

Furthermore, any driver stopped at the stop sign would have his view of southbound cross-traffic completely obscured by a house. The sightlines for southbound traffic were clear, once a driver reached the edge of the intersection.

The trial judge apportioned liability at 50% against both the municipality and Mr. Ellis.

The City of Hamilton appealed.

Smith v. Safranyos – Trial Decision

In Smith, the injured plaintiffs were passengers in a vehicle operated by the defendant Safranyos. Ms. Safranyos' vehicle was travelling westbound, intending to turn left onto a more major roadway.

As in the Chiocchio case, she stopped at the stop sign, and without stopping again proceeded to enter the intersection thinking it was clear of traffic. It was not, and her vehicle was t-boned by a vehicle operated by the defendant, Mr. McHugh.

In terms of the intersection, the stop sign facing Ms. Safranyos in Smith was located ten metres back of the intersection. There had been at one point a stop line, but it had been removed about three years prior to the date of the accident.

In addition, there was evidence that the rising elevation of the arterial road approaching the intersection from the south, combined with a guardrail along the side of that road, made for partially-obstructed visibility to vehicles in Ms. Safranyos' position.

As an added wrinkle, Mr. McHugh had consumed alcohol prior to operating his vehicle, and it was accepted by the trial judge that at the time of the impact he was travelling at least 15km/h over the speed limit.

The trial judge apportioned liability as follows:

Ms. Safranyos: 50%

Mr. McHugh: 25%

City of Hamilton: 25%

Both Mr. McHugh and the City of Hamilton appealed.

Appeal Decisions

Despite the similar facts in these cases, the two separate panels that heard these appeals came to different conclusions on liability with respect to the municipality.

In Chiocchio, the court granted the City's appeal, and dismissed the action as against it.

In Smith, the court rejected the City's appeal, leaving it with 25% of the liability for the accident for reason of non-repair of the intersection. The Court granted Mr. McHugh's appeal, dismissing the action against him.

So what are we to make of these differing rulings on the issue of non-repair? In particular, how are we to understand the standard of care of a municipality with respect to negligent drivers? The most dynamic component of this question comes from the interplay between two statues, the Municipal Act and the Highway Traffic Act, R.S.O. 1990, c. H8.

As noted above, the Municipal Act imposes on municipalities the obligation to keep highways in a state of repair, keeping in mind the reasonable driver, a prudent driver who nevertheless makes mistakes.

Added to the mix is the Highway Traffic Act, which dictates how motorists must behave on the roads, including at intersections where there are no stop lines.

Section 136(1) of the Highway Traffic Act outlines that, in the absence of a stop line, a driver must stop at the first painted marker of the pedestrian crossing at an intersection. In the absence of a pedestrian crossing, then a driver must stop at the edge of the intersection.

In addition, the courts have consistently held that a reasonable driver only proceeds through an intersection when she believes it is safe to do so, meaning that a reasonable driver puts herself in a position to adequately observe the intersection, even if that means stopping again further ahead than the stop line or stop sign at an intersection.

The City of Hamilton in both Chiocchio and Smith argued that the intersections at issue in these cases were not unsafe for the reasonable driver, because the reasonable driver would have stopped at the stop sign, and then stopped again before proceeding into the intersections.

Furthermore, the City argued that, by failing to do so, the defendants Mr. Ellis and Ms. Safranyos were not reasonable drivers, but negligent drivers. Implied in this latter argument is that their behaviour went beyond the accepted "mistakes" that reasonable drivers make, and that the City was not under an obligation to design and maintain intersections with such negligent behaviour in mind.

The Court of Appeal agreed with the City's arguments in Chiocchio, and rejected them in Smith.

The panel in Chiocchio found that the trial judge erred, in that he did not support his conclusion that the intersection at issue posed an unreasonable harm to ordinary reasonable drivers.

The Court of Appeal found that a reasonable driver would have stopped at the stop sign, and then stopped again at the edge of the intersection, before proceeding into the intersection.

The Court of Appeal indicated that the municipality was not under an obligation to contemplate the obviously negligent actions of a driver operated his vehicle in the manner of Mr. Ellis.

The panel in Smith, however, came to a different conclusion on the facts of that case. On appeal the court found that the trial judge did not err in concluding that the absence of a stop line amounted to non-repair as contemplated by the Municipal Act.

The trial judge in Smith had based her finding of liability against the City both on the absence of a stop line, and on the fact that there was partially obstructed visibility at the intersection.

The Court of Appeal was careful to point out that the trial judge did not ground her finding of liability against the City solely on this latter issue. To find otherwise would be to suggest that any intersection with partially obstructed visibility would, by its very existence, attract liability on a municipality.

Instead, the Court noted that it was within the right of the trial judge to find that the sightlines at the intersection contributed to the danger, already caused by the absence of the stop line.

The Court further noted that, even if the trial judge's findings on sightlines were in error, that error was not palpable, given the non-repair finding based on the missing stop line.


The result of these two rulings leaves us with little in the way of guidance in determining municipal liability for non-repair, in the context of intersection layout. In both cases, there were stop signs situated well back of the intersection.

Both cases featured limited sightlines for drivers stopped at the stop sign. In Chiocchio there was a faded stop line, and in Smith there was none. Moreover, each panel had similar accidents, suggesting that the alleged non-repair resulted in the same type of behaviour by confused motorists.

There is enough in the two judgments to suggest that the sightline issue in Smith was more pronounced, but even so, this is a relatively thin factual distinction, particularly when the court in Smith went out of its way to say that partially-obscured sightlines cannot, in themselves, ground a finding of liability against a municipality.

In short, these two cases leave future litigants with uncertainty on how the courts will treat cases of this nature in the future. One can perhaps sympathize with the City of Hamilton for feeling like it has been left with insufficient clarity, when faced with intersections like those in these two cases.

One questions whether a further panel will be convened to make sense of these two rulings, or whether we will be left to argue in the future whether an intersection is of the Chiocchio variety or the Smith variety.

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

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

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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