A recent Ontario Court of Appeal decision has given clarity to the case law surrounding minimum maintenance standards that municipalities are liable for in the province, particularly smaller jurisdictions that don’t have the resources to maintain around-the-clock road clearing in inclement weather.
Some lawyers say that this is a welcome change after a lengthy period during which courts were too deferential to plaintiffs.
“It’s the first case that I know about in Ontario where the defence provided under s. 44(3) of the Municipal Act, dealing with minimum maintenance standards, has actually been accepted,” says James Bennett, senior litigation partner with Madorin Snyder LLP in Kitchener, Ont., who acted for the township of Wilmot in the case.
Bennett says that, in this case, the court embraced the three statutory defences provided to municipalities in road maintenance liability cases under s. 44, finding that: the municipality shouldn’t have known about the icy road because it was unanticipated freezing rain; that the municipality wasn’t negligent in that it had a reasonable system of winter maintenance and that, in assessing that factor, made a clear distinction between higher-tier and lower-tier municipalities; and that even if it was wrong about the first two defences, it still had eight hours to treat the road once it knew it was icy.
As a lower-tier municipality, Wilmot could not be expected to have around-the-clock employees and the same kind of equipment that larger municipalities have, but it does have an on-call system where someone patrols as needed and a call-out system for when weather events occur.
“That’s really about what’s different about this case than previous cases,” says Bennett. “They said that even if they should have patrolled or done things differently, they still had eight hours from when they knew to get out there and do something about the ice.”
Bennett said that, in earlier cases, courts have been reluctant to apply the minimum maintenance standards and have found reasons not to apply them.
“Even if the road is icy, you can’t be everywhere, every place at every time, but if you get there within [what] the standard is for a certain class of road, then you’ve met your obligation,” says Bennett.
“That’s why it’s a helpful case to assist municipalities to deal with their winter road maintenance issues.”
Bennett says that, in previous cases, the courts have said that they have applied the standards but have gone on to find liability.
“They cite those rules, but in many of those cases, they’ve also then imposed liabilities against municipalities, but in this particular case, they’ve applied a common sense and logical approach to the realities that we have winter in Canada and have snow on the roads,” says Bennett.
This interpretation of the decision is disputed by Allan Rouben, a sole practitioner in Toronto, who acted for the plaintiff in the case.
“It seems to me that they based their decision to dismiss the appeal on other grounds,” says Rouben.
“They did mention the minimum maintenance standards, but I don’t think it was really central to the whole case in my assessment of it.”
Rouben says the argument was that the complaints that the conduct of the municipality and that its employee hadn’t checked the weather forecast and hadn’t conducted an evening patrol were not covered by the minimum maintenance standards and, for that reason, argued that they weren’t really applicable to the case.
The Court of Appeal didn’t agree with that position.
“At the end of the day, it’s not that they didn’t agree with what I was saying, but they didn’t address it in that way,” says Rouben.
He adds that he feels the trial judge overemphasized the fact that Wilmot was a lower-tier municipality, given that all of the municipalities in the Waterloo region had all signed on to a region-wide agreement as to the standards that would be applied.
“In those circumstances, we didn’t think that the distinction between upper tier and lower tier was as significant,” says Rouben.
Christina Polano, partner with Thomas Gold Pettingill LLP in Toronto, says that the decision was the third Court of Appeal decision in 2017 dealing with municipal maintenance standards, the previous two being Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428 and Lloyd v. Bush, 2017 ONCA 252.
In Belanger, the court found that the municipality was liable for failing to maintain the roads in the proper state of repair, while in Lloyd, the court ordered a new trial after setting aside the issue of liability.
Polano noted that in House, the focus on the lower standards for rural areas, where a class-3 road was at issue, compared to the standard applied in Belanger, where it was a class-1 road and liability was found, was key.
“If you look at the sympathetic nature of the plaintiff in that Sudbury case, and you compare it to the facts in the House case, while the test is the guiding factor, it’s also important for people in this practice in this area to take into account the surrounding circumstances,” says Polano.
Polano says that courts have to take into consideration the resources available to smaller towns when it comes to their ability to maintain roads.
For Polano, whose defence practice might include municipalities as co-defendants or situations where they are third parties, she says the decisions offer a road map for when to take a hard line on liability.
“If you’re thinking about third-partying a municipality in an existing lawsuit on the basis that they failed to maintain the roadway, I would now certainly look at these two Court of Appeal decisions and think about the way in which this test has been applied and take into consideration the factors such as the nature of a rural roadway versus higher-traffic thoroughfares,” says Polano.