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Court of Appeal Affirms Minimum Maintenance Standards Defence in Winter Highway Maintenance Case

The Court of Appeal has recently released an important decision which could have wide-ranging implications for municipalities and those involved in winter highway maintenance cases.  Madorin, Snyder LLP was successful both at the original trial and on the Appeal in defending the Municipality.

 

The Court of Appeal has affirmed the trial decision of Justice James Kent which, among other things, found no liability on the part of the municipal road authority, The Corporation of the Township of Wilmot (the "Township"), as a result of a motor vehicle accident which involved a fatality and serious injuries.  This decision is a significant one, as the Court of Appeal used the Minimum Maintenance Standards as partial justification for a finding of no liability as against the municipal road authority.  Similarly, the Court of Appeal affirmed that the resources available to a municipal road authority are properly considered in the analysis of the potential liability of the road authority.  As such, this important decision has the potential to play a significant role in the future disputes involving lower-tier, rural municipalities which have met their Minimum Maintenance Standards obligations yet are faced with lawsuits alleging the failure under Section 44 of the Municipal Act, 2001.

 

The facts of the case are summarized briefly as follows: 

 

On February 25, 2009, four young men drove west along Huron Road from Kitchener, Ontario.  The driver of the vehicle was Tyler House.  The owner of the vehicle was Donald Baird, who was also a backseat passenger in the vehicle.  There were two other passengers in the vehicle.  Just west of the intersection with Pine Hills Road, at 9:00 p.m., House lost control of the vehicle, which drifted into the opposite lane and into the path of Robert Scott Murray.  Despite his fast reaction, Murray was unable to stop and a collision ensued.  One of the occupants of the House vehicle was killed and both Baird and House were seriously injured.  House (by his Litigation Guardian) and several Family Law Act Plaintiffs sued Donald Baird, Robert Scott Murray, and the Township. 

 

The action as against the Township was dismissed following a lengthy trial.  The Court of Appeal affirmed the dismissal as against the Township.  Wilmot Township is a small rural lower tier Municipality with a population of 13,000.  All of its road are below a Class 3 and the Township is responsible for the maintenance of approximately 250 two-lane kilometres of highways.  The Roads Department has a Foreman/Supervisor and seven full-time employees who operate seven plows and salters during the winter months.  Although those Operators work regularly-scheduled shifts, they can be called in at other times, if necessary.  At all times, there is someone on call.  The on-call operator monitors the weather from home after hours.  This on-call individual could organize a winter maintenance crew, if necessary.   Similarly, the on-call operator regularly monitors weather forecasts and will call-out winter operators as necessary. 

 

On the day of the accident, the on-call Operator noted that there was a brief snowfall around dinnertime but that snow was melting on contact which left the surface slightly wet but the Operator did not consider this to be a situation which required patrol or maintenance.  At the scene of the accident, however, it would appear that the weather conditions were such that some ice and/or slush may have formed.  Therefore, one of the key issues in respect of the Township, was whether it met its obligations under Section 44 of the Municipal Act, 2001, which incorporates by reference the Minimum Maintenance Standards. 

 

At trial, the Township called expert Brian Malone who indicated that having an on-call Operator after hours was a common practice, especially for lower-tier rural municipalities.  The on-call Operator's decision to take no action was consistent with his observations and the forecast.  Similarly, Mr. Malone indicated that the Minimum Maintenance Standards imposed no requirement for winter patrolling but, for Class 3 roads, required icy roadways to be treated "as soon as practicable" and within eight hours after the Township began aware of the icy state. 

 

The trial Judge and the Court of Appeal agreed with Mr. Malone, who opined that the municipal road authority did not have a duty of "ensuring driver safety" which, while a commendable aspiration, is not a legal obligation.  The trial Judge concluded and the Court of Appeal affirmed that Wilmot had in place an adequate system of winter road maintenance vis-à-vis the Minimum Maintenance Standards.

 

As a lower-tier rural municipality, the Township was not obligated to adhere to the same standards as a Regional Municipality or the Province.   Similarly, a municipal road authority's duty of repair is limited to maintaining its road to enable ordinary drivers exercising reasonable care to use the roads safely. 

 

The trial Judge found that the highway was in a state of non-repair and, as such, an analysis as to whether the municipal road authority established any of the statutory defences under subsection 44(3) of the Municipal Act, 2001 had been made out was necessary.  The trial Judge found that the Municipality had met all three of the statutory defences.  Importantly, however, the trial Judge found that the Minimum Maintenance Standards for a Class 3 highway only required that a municipality treat an icy highway within 8 hours of becoming aware that the highway was icy, which the Township had done.  The trial Judge, for this and other reasons, found that the municipal road authority was not liable for the accident.  This decision was affirmed by the Court of Appeal. 

 

The result in this Court of Appeal decision is an important one because of the emphasis placed on both  the Minimum Maintenance Standards and the fact that the Township was a lower-tier rural municipality and thus had a subjectedly lower maintenance requirement.  This decision represents one of the first analyses by the Court of Appeal which emphasizes these particular factors.  As such, this decision may well represent the beginning of an evolution of municipal liability law, such that Courts will consider not only compliance with the Minimum Maintenance Standards but will also consider the size and resources available to a road authority discharging its maintenance obligations.  It will be interesting to watch and see how this law continues to develop. 

 

James Bennett, a Senior Partner and Litigator at the firm of Madorin, Snyder LLP argued this decision successfully at both trial and at the Court of Appeal.  Mr. Bennett and the entire litigation department have considerable experience in both municipal defence matters and all manners of litigious dispute.

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