As winter officially rolls in, and snow and ice accumulate on roadways and sidewalks, extra care is needed to ensure no injuries occur because of these potentially dangerous conditions.
The liability of municipalities, road authorities, and winter maintenance companies for icy roads and sidewalks during the winter months is an important and complex issue. Road authorities have a legal duty to maintain roads in a state of repair that is reasonable in the circumstances. For municipalities, these obligations are outlined in the Municipal Act, 2001, S.O. 2001, c. 25. For provincial highways, the obligations are set out in the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50. This includes taking reasonable steps to prevent ice-related hazards on roads, highways, sidewalks, and public spaces where people are expected to travel.
Liability isn't automatic. To establish negligence, a claimant must show that the municipality failed to meet the standard of care expected. This includes demonstrating that the municipality knew or ought to have known about the icy condition and failed to take reasonable steps to address it. Reasonable steps can vary based on the circumstances including the "character and location" of the road, in addition to various factors such as the weather forecasts, severity of the ice and snow, length of the winter event, and timing of precipitation. Standard measures include salting, sanding, and plowing, as well as timely inspection and monitoring of road conditions. There are technical requirements the road authorities and contractors must follow.
In Fordham v. Dutton Dunwich, (Municipality), 2014 ONCA 891, Laskin J.A. set out a four-step test to be applied when a claim is made against a municipality for non-repair. It can be summarized as follows:
- Non-Repair: The plaintiff must prove the existence of a condition of non-repair, that is, a hazardous condition that poses an unreasonable risk of harm to ordinary users of the road.
- Causation: The plaintiff must prove that the incident was caused by the dangerous condition of non-repair.
- 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 available defences under the legislation applies. These defences include proof that the municipality took reasonable steps to prevent the default from arising.
- 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 own driving caused or contributed to his or her injuries to reduce the municipality's liability.
If a municipality is found liable, it could be responsible for damages, including costs related to medical expenses, lost income, and compensation for serious injuries.
While Ontario road authorities have a duty to maintain safe roads, establishing liability can be complicated.
If you find yourself in the unfortunate situation of being injured as a result of a collision or slip and fall due to icy or snowy conditions, the following steps should be taken immediately:
- Take photos of the location of the incident;
- Preserve the evidence including the vehicles driven and information from witnesses;
- Seek medical attention;
- Contact a lawyer to put the road authority on notice of the accident and your injury.
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.
