05 Dec Municipal Liability for Motor Vehicle Accidents
Published in Canadian Defence Lawyers: Hearsay, December 2013
Daniel Dooley, Erin Durant, Andrew Emery
Whenever a motor vehicle accident occurs because of, or is blamed on, slippery conditions, the issue of road authority liability arises. If the plaintiff does not sue the road authority, defence counsel will need to consider the merits of a third party claim against a road authority for failing to properly maintain the roadway. The plaintiff’s contributory negligence will also be in issue. Major and secondary highways are exceptions, but the relevant road authority is often the municipality in which the accident occurred.
The municipality’s statutory duty is similar to that of other road authorities and is found in section 44 of the Municipal Act: to “keep a roadway in a reasonable state of repair so that the users of the roadway, . exercising ordinary care, may travel upon it safely.” As to what is a “reasonable state of repair,” defence counsel should consult the Ontario Traffic Manual and, when the damages appear to warrant the expense, engineering experts.
Be aware, as well, of the ten-day notice period described later in this article.
Section 44 of the Municipal Act: The Statutory Duties
Under section 44 of the Municipal Act:
(1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge, and
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
The Ordinary Driver
A municipality has a duty to “keep a roadway in a reasonable state of repair so that the users of the roadway, exercising ordinary care, may travel upon it safely is owed to the ordinary, rather
than the negligent, driver.”[1] An ordinary driver is one with average 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.”[2]
An ordinary driver is expected to adjust her or his driving to the nature of the roadway and the prevalent driving conditions.[3] Failure to do so is likely to be contributory fault. But an ordinary driver may sometimes fail to follow road signs without having been negligent, for example when special or increased warnings were required.[4]
Reasonable State of Repair
Whether or not a road is in a reasonable state of repair is not limited to its surface. Lack of signage, inadequate road markings, narrow roads, steep hills, dangerous intersections, road curvature, poor sightlines or other hazards that ought to have been foreseen as potentially taking a motorist by surprise may constitute an unreasonable state of repair.
However, the conditions and nature of the roadway must be assessed. A rural non-paved road with low traffic volume will not be held to the same “reasonable state of repair” as a paved road in a densely populated area.[5] Precautions will be different between a much-travelled main city street and a less-travelled, smaller, side street.[6]
The party asserting breach of the municipality’s statutory duty bears the onus of proving on a balance of probabilities that there was a condition of non-repair and that the non-repair caused the loss.[7]
Examples of Non-Repair
In Fordham v. Dutton–Dunwich (Municipality),[8] the plaintiff failed to notice an upcoming “offset intersection”. An off-set intersection is one where opposing approaches do not line up with one another meaning the road appears to shift to the left or right.[9] According to the plaintiff’s experts, an “offset intersection” occurs as a result of a gravel road having “meandered” to the left or right over time.[10] The plaintiff failed to navigate the intersection, crashed, and was injured.
The Court found that an approaching motorist could not have seen the upcoming road alignment in sufficient time to sufficiently and safely reduce speed. A warning or “reduce speed ahead” sign should have been posted. The municipality’s failure to post such a sign meant the road was in a state of non-repair and the municipality was held 50% liable.
The plaintiff was also found 50% liable for his actions that contributed to the action. He failed to stop at a stop sign at the intersection and was drinking a beer while driving at night along a road with which he was unfamiliar. The Court found that if the plaintiff had stopped at the stop sign there would not have been an accident. However, the Court nevertheless found, it was foreseeable that rural drivers would not always follow regulatory signs such as stop signs. Therefore, more particular warning signs should have been posted at the location to warn of the offset intersection.
In Deering v. Scugog,[11] a country road with a very steep hill was deemed to be in a state of non-repair after one vehicle ascending the hill swerved into the ditch out of fear of a head on collision with a vehicle descending the hill in the opposite direction. There were no centre markings, the posted speed limit should have been reduced in the area and the road should have been either closed or restricted to one direction at night.[12] Mr. Justice Howden imposed liability on the municipality despite evidence that the probability of two vehicles being on the hill at the same time was 0.9% and there had been few reported collisions at that location.[13] His Honour ruled that even one chance in a hundred is a real or substantial risk of harm.
The plaintiff was found 33% at fault because she was driving 10-15 km/hr over the posted speed limit at night on an unfamiliar road. The Ontario Court of Appeal agreed with the trial judge.
No Municipal Liability
Not every motor vehicle accident with substandard signage necessarily results in municipal liability. The Court of Appeal in Morsi v. Fermar Paving Ltd did not find the municipality liable for a motor vehicle accident even though a warning sign did not accurately portray the hazard posed by a curve in the road.[14] The plaintiff was found 100% liable for far exceeding the speed limit (120 km/hr in a 60 km/hr zone). The Court found that if the plaintiff had exercised ordinary care such as “modestly” driving above the posted speed limit there would not have been an accident.
The Ontario Traffic Manual
The Ontario Traffic Manual (OTM) is frequently cited by judges. The OTM provides information and guidance for transportation practitioners and promotes uniformity in the design application and operation of traffic control devices and systems across Ontario. There must be sufficient reasons for a municipality to depart from the OTM.[15]
A failure to comply with the OTM often results in a municipality being found liable for failing to meet its standard of care. In Deering, sightlines on the hill were only 77 meters rather than the OTM-recommended 150 meters such that there should have been center lining on the approach to the hill (the absence of which was relevant to the imposition of liability in Deering).
The OTM requirement of a checkerboard sign for offset roads was not followed in Fordham, which omission in addition to the lack of a “reduce speed ahead” sign resulted in liability for the road authority.
Non-compliance with the OTM does not automatically result in municipal liability. Causation is always in issue. The non-compliance must have caused or contributed to the accident. Road signs in Morsi did not comply with the OTM. However, the plaintiff was found 100% liable because of excess speed. Speed, not the lack of signage, was found to have caused the accident.
Statutory Defenses
Section 44(8) of the Municipal Act prevents municipalities from being liable for the absence or insufficiency of any wall, fence, rail, or barrier along a highway. The legislation also bars actions based on construction, obstructions or erections adjacent to or on any “untraveled portion” of a highway.
A utility pole off a highway or a raised concrete median have been found to be “located on an untraveled portion” of a highway.[16] However, a stop sign (even if far from the road), a tree on a boulevard and a raised catch basin have all been found to be on part of the traveled road.[17]
Under 44(3a), a municipality will not be liable if it did not know or could not reasonably have been expected to know of the state of repair of the highway or bridge. In Deering, the municipality argued that nothing about the history of the road, its operation or its layout should have triggered a concern about its safety for reasonable users. The trial judge disagreed, finding that both the city of Oshawa and the township of Scugog knew or should have known of the dangerous condition of the hill. For example, Oshawa knew that “blind hills” posed a danger. The municipalities were further found liable as the respective road authorities had centre-lined other rural roads and the road in question had been opened without a safety assessment as required by the OTM.[18]
Section 44(3b) provides a defense if the municipality took reasonable steps to prevent the default in repair from happening. In Deering, the municipality argued that since there was a low collision rate and since the road was being re-surfaced, it was reasonable for the municipalities to deal with signage and pavement markings in due course. The Court disagreed, finding that Oshawa should not have opened a road without proper safety control devices and should have promptly obtained a safety assessment.[19]
Section 44(3c) permits a municipality to draft minimum standards legislation that, if met, will provide a full defense to the municipality. The Minimum Maintenance Standards in Ontario came into force November 1 2002. The Standards identified roadway defects and hazards such as icy surfaces, snow cover and potholes with respect to which there would be a timeframe in which to respond. For example, under section 5 the minimum time for treating an icy roadway after becoming aware that it is icy is between 3 and 16 hours depending on the class of highway. If a municipality treats the ice within that timeframe, it cannot be held liable for any motor vehicle accidents that occur due to the ice.
Courts have interpreted the legislation narrowly. The Ontario Court of Appeal ruled in Giuliani v. Halton that the legislated minimum standards were no protection from municipal liability where the minimum had not been reached. Section 4 of the minimum standards provides for cleaning snow on a Class 2 highway every six hours when the snow reaches 5 cm.[20] The municipality submitted that it had met that standard by not waiting for the minimum but, rather, clearing the roads even before 5 cm was reached. The Court disagreed, ruling that the legislation had no application because the snow never reached 5 cm.
The lesson (if there is one): don’t be proactive.
However, the Court then ruled that the municipality was also liable because it failed to prevent ice from forming on the roadway– i.e. the municipality failed to be proactive.[21] This ruling was made despite section 5 of the Standards because section 5 of the Standards only creates a time limit for a municipality to treat ice once it becomes aware that the roads are icy.
In Mark v Corporation (City of Guelph) , the municipality was found liable for helping to create icy roadways.[22] A salt/sand mixture was inappropriately used on the roads during cold and windy conditions. The Court ruled that even though the municipality had technically complied with section 5 of the minimum standards, it had created ice on the highways and failed to return in a reasonable time to address its own mistake. Therefore, the Standards were inapplicable and the municipality was liable for the accident.
The 10-Day Notice Period
For an action to be commenced against a municipality for damages, the municipality must be placed on notice of the claim and of the injury complained of within 10 days of the injury.[23] The notice requirement is intended to permit the municipality to investigate the place and circumstances of the accident.[24] For this reason, section 44(12) provides that a failure to give notice is no bar to the action if there is a reasonable excuse for not providing notice and the municipality is not prejudiced in its defense.
Ontario Courts are naturally reluctant to dismiss claims for mere non-compliance with the notice requirement. In Crinson v. Toronto (City), the plaintiff waited six months before placing the municipality on notice.[25] The trial judge ruled that six months was unreasonable. The Ontario Court of Appeal disagreed, finding that even though a plaintiff was not incapacitated due to injury it was reasonable not to provide notice because the plaintiff was feeling anxious, confused, depressed and worried about losing his job. Furthermore, the plaintiff had no knowledge of the notice requirement and the municipality was not prejudiced since it had other sources of information about the circumstances of the accident.[26]
On the other hand, in Argue v. Tay (Township), the plaintiff waited two years before putting the municipality on notice.[27] The plaintiff argued that the township knew about the accident and had a reasonable opportunity to investigate. The Court rejected the argument, concluding that only written notice provides full assurance that a municipality is aware of an accident. The Court also accepted the municipality’s position that it was unable to investigate, and was therefore prejudiced.
Although section 44(12) has often been interpreted in favour of plaintiffs who have failed to give timely notice, adjusters and defence counsel considering a third party claim against a municipality should provide notice as soon as possible so that the municipality may investigate and is not prejudiced. A Third Party Claim need not subsequently be issued if investigation and/or an engineers report suggests that a claim for contribution or indemnity is unlikely to succeed.
[1]Housen v. Nikolaisen (2002), 10 CCLT (3d) 157, 211 DLR (4th) 577 (SCC)) at para. 47.
[2]Deering v. Scugog (Township), 2010 ONSC 5502, 77 CCLT (3d) 167 (OSCJ) at para 154.
[3]Ferguson v. Brant (County), 2013 CarswellOnt 426 (OSCJ) at para 17.
[4]Fafard v City of Quebec, (1917), 55 SCR 615 (SCC).
[5]MacMaster (Litigation Guardian Of) v. York (Regional Municipality), [1997] OJ No 3928 (Ont Gen Div).
[6]Fafard v. City of Quebec (1917), 55 SCR 615 (SCC).
[7] Shillingtons LLP, Municipal Liability- Winter Road Maintenance, located at <http://www.shillingtons.ca/pdfs/
Shillingtons%20LLP%20Municipal%20Liability%20%20Winter%20Road%20Maintenance%20Seminar%20Paper.pdf>
[8] (2012), CarswellOnt 15042, 222 ACWS (3d) 800 (OSCJ); 2012 ONCA 386; Leave for appeal to SCC dismissed.
[9] As opposed to a skewed intersection which occurs when two roads meet at a non-perpendicular angle.
[10] Para 37
[11]Deering, supra note 2.
[12]Ibid, at para 263.
[13]Ibid, at Para 264.
[14] 2011 ONCA 577
[15]Deering, supra note 2, at para 243.
[16]MacDonald v. Lefebvre, [1962] OR 495 (OCA); Ouellette v. Hearst (Town), 2004 CarswellOnt 1064 (OCA).
[17]Ficht v. St. Catharines (City), [1978] OJ No 3680 (Ont Co Ct); Wood (Litigation Guardian of) v. Meaford (Town), [2001] OJ No 518 (OSCJ); Yovanovich v. Windsor (City), [2007] OJ No 2134 (OSCJ); Summary of caselaw located in McHardy (Litigation Guardian of) v. Ball, 2012 CarswellOnt 2146 (OSCJ).
[18]Deering, supra note 9, at para 278.
[19]Ibid, at para 278.
[20] 2011 ONCA 812, 210 ACWS (3d) 537.
[21] Para 31 & 32.
[22] 2012 ONSC 3510 (OSCJ).
[23] Section 44(10) of the Municipal Act, supra.
[24]Grant v. Kingston (City), 2012 ONSC 6332, 223 ACWS (3d) 609 (OSCJ) at para 51.
[25] 2010 CarswellOnt 299; 2010 ONCA 44 (OCA).
[26]Delahaye v. Toronto (City), 2011 CarswellOnt 9248 (OSCJ).
[27] 2012 CarswellOnt 9814 (OSCJ).