Road Design and Maintenance Actions
In tort law, there are few areas that are subject to as much judicial and legislative attention as liability of public authorities for the design and maintenance of roadways. This is a field of law that is very much driven by statute. The Municipal Act, 2001, SO 2001, c 25 and the Public Transportation and Highways Act, RSO 1990, c P.50 and regulations made under those Acts contain a number of provisions that potentially shield road authorities from liability for otherwise negligent actions or omissions. Those provisions are not infrequently varied, changed or repealed. Any change can lead to uncertainty and litigation.
Court reports frequently feature decisions with potentially significant effects on the field of road authority liability. This is not surprising as liability in these cases is often hotly contested and trials are by judge alone. The result is that not only are trials more common than in other tort cases, most trial decisions are reported.
In this paper, I will endevour to review some of the more significant road authority liability cases that have been decided in the last few years. Particular emphasis is given to cases decided at the appeal level. On review of recent jurisprudence there are a number of areas that have generated significant judicial consideration. The areas that I will address are as follows:
Minimum maintenance standards
- Use of roadways by pedestrians
- Standard of care when drivers are also negligent
Minimum Maintenance Standards
The Municipal Act, 2001, provides a defence to municipalities that comply with minimum maintenance standards set out in regulations under the Act. The statutory defence is contained in s. 44 (3) through (4):
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(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. 2001,
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
The standards themselves are set out in Minimum Maintenance Standards for Municipal Highways, O Reg. 239/02.
Giuliani v. Halton, 2011 ONCA 812
One of the most significant recent cases in the area of road design and maintenance is the Court of Appeal’s decision in Giuliani v. Halton. In that case the plaintiff lost control of her vehicle on a snow and ice covered road. She sued the road authorities alleging that they failed to keep the road in a condition that was reasonable in the circumstances. The plaintiff succeeded on liability at trial subject to a finding of 50% contributory negligence.
The facts of the case are important to understanding the result. Snow had been forecast in advance and had been falling since 4:00 a.m. The accident occurred at approximately 7:00 a.m. by which time two cm of snow had fallen. The Town did not begin snow removal until 7:15 a.m. The trial judge found that had the Town properly monitored the weather forecasts it would have applied salt at approximately 4:00 a.m. which would have prevented the accident.
The Minimum Maintenance Standards (“MMS”) applicable to the road on which the accident occurred called for the municipality to clear snow after it reached five cm in depth. The standard called for icy roads to be treated within four hours.
The only issue on appeal was whether theMinimum Maintenance Standards provided a defence. The Court of Appeal began its analysis by considering the purpose of the MMS. The court noted that the standards allow a municipality to escape liability for negligently failing to maintain a highway if it complied with the minimum standards that applied to its failure. However, the court went on to state that the MMS do not purport to cover all circumstances that may arise in the course of maintaining roadways.
The Court of Appeal addressed the two potentially relevant standards separately. The standards with respect to snow removal required action when snow exceeded five cm. In this case there were only two cm of snow when the accident occurred. The Court of Appeal upheld the trial judge’s conclusion that this standard did not apply where there was less then five cm of snow accumulation. As the standard does not address the requirement where there is less than that amount of snow it was held to have no application.
The other potentially applicable standard related to treating icy roads. The standard called for a response triggered by knowledge that the roadway is icy. The Court of Appeal held that the standard did not address the municipality’s response to conditions that had not yet become icy. The Town’s failure to monitor the weather and deploy resources to avoid ice formation was not covered by the standard.
Although the Court of Appeal interpreted the application of the MMS narrowly, it took care to note that a municipality is only required to take steps to keep a highway in a reasonable state of repair having regard to all of the circumstances. That standard, it was pointed out, is grounded in reasonableness. Leave to appeal to the Supreme Court of Canada was sought by the road authorities. The application for leave was dismissed.
Mark v. Guelph, 2012 ONSC 3516
One of the first cases to have considered the Court of Appeal’s decision in Giuliani v. Halton is Mark v. Guelph, a trial decision of Madam Justice Mossip.
The plaintiff was injured in a motor vehicle accident on what the trial judge described as treacherous roads. The roads had been closed the day before the accident.
The defendants raised a MMS defence relying on a standard that required icy roads to be treated as soon as practicable and within four hours of becoming aware of ice. They argued that the road had been treated with a salt and sand mixture prior to the accident and there was a plan to treat it again.
After reviewing the evidence the court concluded that the mixture that the defendants put on the road caused it to re-freeze causing accident. Mossip J. held that theMMS did not deal with a situation where a municipality caused a non-icy road to become icy and as such had no application. Furthermore, she found that the defendants failed to treat the ice properly or in a reasonable time.
In the result, the court found the defendants to be solely liable for the accident. There was no finding of contributory negligence.
Maintenance of Laneways
Guy v. Toronto, 2011 ONCA 689
Guy v. Toronto is a Court of Appeal decision which upheld a trial decision involving the standard of care required of a municipality with respect to removing ice and snow from a laneway.
This case arose out of a slip and fall accident on a municipal laneway between two public roads. At trial, the City argued that the laneway was safe for use by commercial traffic, its intended use.
The trial judge found that the laneway was frequented by pedestrians and that the City knew or ought to have been aware of that fact. Given that use, the court found that the laneway could be considered a shared roadway and a sidewalk. In the circumstances, pedestrians could expect the same standard of care as would apply on a sidewalk. The trial judge found that the City’s monitoring and maintenance of the laneway for pedestrian use was grossly negligent such that the City was found liable for the accident.
The City appealed unsuccessfully first to the Divisional Court and then to the Court of Appeal. The Court of Appeal rejected the City’s argument that the trial judge effectively declared the laneway to be a sidewalk. The Court of Appeal noted that the Municipal Act required a municipality to keep a road “in a state of repair that is reasonable in light of all the circumstances including the character and location” of the roadway. It was open to the court to find that the laneway, although designated as a commercial roadway, was used both as a vehicle roadway and a pedestrian passage way with the City’s knowledge.
The Court of Appeal did not decide whether the standard of gross negligence, applicable only to sidewalks, was called for but noted that the approach taken by the trial judge favoured the City. The City’s appeal was dismissed.
Standard of Care
In the last two years the Ontario Court of Appeal has heard appeals in no less than four cases where arguments were raised as to the standard of care expected of road authorities in circumstances involving allegations that the sole cause of the accident was the negligence of vehicle operators. Put another way, the issue is how far road authorities have to go in maintaining their roads. Is it enough that a road is safe for a driver acting reasonably? Do road authorities have to plan for drivers that speed or otherwise act unreasonably? While this discussion focuses on the legal standard of care, factual issues of causation and apportionment of liability inevitable also arise.
Repic v. Hamilton, 2011 ONCA 443
The Court of Appeal dismissed an appeal by the City in Repic v. City of Hamilton. The case involved an accident in which a 14 year old boy on a bicycle was struck by a car in an unmarked crossing on an exit ramp to the Lincoln Alexander Parkway.
At trial the City argued that the decision to use a particular interchange design was a policy decision as was the decision not to apply traffic control devices to the ramp. The City argued the decisions were immune to suit. Walters J. rejected that argument, holding as follows:
On the totality of evidence before me, I find that the choice of the Parclo A4 interchange design at this location was a policy decision. However, the actual construction of the interchange, any modifications to the design, decisions regarding markage, signage, traffic control devices, or any other such controls, are operation or implementation decisions and are subject to scrutiny by the court.
She then proceeded with an analysis of the applicable standard of care. Madam Justice Walters succinctly summarized the law with respect to the standard of care as follows:
A municipality has an obligation to maintain its roadways in a reasonable state of repair for those users who exercise ordinary care for their safety. What standard of care applies to any given situation and whether that standard has been breached is largely a question of fact.
In Housen v. Nikolaisen, [2002] S.C.J. No. 31, the Supreme Court of Canada, at paragraph 38, reaffirmed the appropriate standard of care placed on a municipality as set out in Partridge v. Rural Municipality of Langenburg, [1929] 3 W.W.R. 555 (Sask. C.A.):
The extent of the statutory obligation placed upon municipal corporations to keep in repair the highways under their jurisdiction, has been variously stated in numerous reported cases. There is, however, a general rule which may be gathered from the decisions, and that is, that the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety. What is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances; “repair” is a relative term, and hence the facts in one case afford no fixed rule by which to determine another case where the facts are different.
A municipality is not held to a standard of perfection, but one of reasonableness.
In Ryan v. Victoria (City), [1999] S.C.J. No. 7, the Supreme Court of Canada set out the test to be considered in determining if the defendant municipality has met the standard of care expected of it:
To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of the harm and burden or costs which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice and statutory or regulatory standards.
Walters J. held that the City had breached the standard of care by not modifying the interchange to take into account the presence of a bike path crossing the exit ramp and by not employing warning signs at the crossing. She concluded that had warning signs been employed the collision would have been avoided. In the result liability was apportioned 45% against the plaintiff, 40% against the defendant driver and 15% against the road authority.
The City appealed, alleging that the trial judge erred in her analysis of the breach of the standard of care and causation. In a brief decision, the Court of Appeal held the trial judge applied the correct test as to the standard of care and that her conclusion that the City fell below that standard was reasonably supported by the evidence. Similarly, the Court of Appeal upheld the trial judge’s causation analysis.
Morsi v. Fermar Paving, 2011 ONCA 577
The issue of the how far a road authority has to go in designing and maintaining its roads in the context of negligent driving was before the Court of Appeal in Repic v. Hamilton. However, the issue became the central issue inMorsi v. Fermar Paving.
In that case, the plaintiff turned off Highway 27 onto Major Mackenzie Drive. The highway swept in a long curve to the left before another long curve to the right. At the time of the accident the road had just been resurfaced. There were both permanent and construction signs in place. The marked speed limit was 60 kph with a 40 kph advisory limit. The trial judge accepted expert evidence that the plaintiff had exited the left turn at 90 kph, accelerated hard to 117 to 120 kpm and lost control of his vehicle before the right turn. At trial both the road authority and the contractor involved in the road resurfacing were found to be liable for the plaintiff’s damages.
The defendants appealed. On appeal, the Court of Appeal confirmed the standard of care applicable to the road authority, as formulated in Houssen. The Court emphasized that the standard of care requires only that the road be kept in such a state of repair that a person “exercising ordinary care” may travel upon it with safety. The Court of Appeal noted that the trial judge had found that if the plaintiff had driven at or even modestly above the speed limit then the accident would not have occurred. The Court characterized the plaintiff’s driving as reckless and found that in the circumstances the road authority had met the standard of care. For similar reasons, the Court also allowed the appeal of the contractor.
Deering v. Scugog, 2012 ONCA 386
In Deering v. Scugog, 2012 ONCA 386 the Court of Appeal was again called upon to decide a case in which a road authority raised negligent driving as an issue in the context of the applicable standard of care.
Deering was an action by a 19 year old plaintiff who claimed that she was momentarily blinding by oncoming headlights at the crest of an unlit, hilly rural road. The plaintiff lost control of her vehicle resulting in a single vehicle accident. The plaintiff argued that the road geometry was such that there was an unusual and dangerous deflection of light that caused drivers cresting the hill to believe oncoming traffic was in their lane. The plaintiff alleged breach of the standard of care on the part of the road authority in that the road was unlit, the speed limit was unposted and excessive, there was no centre line and the road was excessively narrow.
The defendant argued at trial that Houssenrequired the court to objectively look at only the road section in question and ask “Could an ordinary driver, exercising reasonable care, use that section of road in safety?”
The trial judge, Mr. Justice Howden, addressed the issue of the standard of care on the road authority as follows:
In conclusion, I accept what have become the submissions of all counsel that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to the defences of no knowledge and reasonable steps to prevent and minimum standards compliance. The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.
It is not the law in Canada that the duty of road authorities goes beyond the duty to keep their roads in reasonable repair for the ordinary driver exercising reasonable care, to include drivers who, for instance, do not pay attention, drive at excessive speeds, drive too close to the vehicle in front and who are otherwise negligent.
The trial judge had found the road authority liable and apportioned 1/3 of the liability against the driver and 2/3 against the road authority. In upholding the finding of liability the Court of Appeal noted that the trial judge had found that “even a prudent driver” would have had limited time to react to the situation in which the plaintiff found herself.
Greenhalgh v. Douro-Dummer, 2012 ONCA 299
In Greenhalgh v. Douro-Dummer, the Court of Appeal again dealt with an argument that the standard of care expected of a road authority was limited in the face of a plaintiff’s negligence. This case involved an 18 year old plaintiff who went on a “back road tour” in -20 degree weather. She and a friend drove down a dead end public road before driving down a lane off that road and getting stuck on a hydro right of way. The plaintiff abandoned her car and eventually suffered severe injuries due to frostbite.
The plaintiff argued that if the public lane had been marked with no exit and checkerboard road ending signs then she would not have been injured. The trial judge heard extensive expert evidence before finding that signs were not required in the circumstances. The judge also found that the plaintiff would have paid no heed to the signs in any event.
The plaintiff appealed the dismissal of the action arguing that the trial judge erred by concluding that the township’s failure to post signs did not breach the standard of care. She also argued that it was an error to conclude that the failure to post signs did not cause her injuries. The Court of Appeal dismissed the appeal, relying predominately on the trial judge’s finding that there were no conditions upon or adjacent to the highway that were potentially dangerous to the road user that required an advanced warning.
Conclusions
The Legislature has shown a willingness to enact legislation that provides road authorities with defences that, on a broad interpretation, may shield them from liability even in cases of clear negligence. The courts have however proven resistant to interpret statutory defences in that manner absent completely clear wording.
The jurisprudence demonstrates that the courts continue to struggle with striking an appropriate balance between shielding public road authorities from excessive claims costs and allowing compensation for victims of negligence.