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Focus: Appeal court puts end to different rules for rural, urban drivers

|Written By Judy van Rhijn

The Ontario Court of Appeal has stepped in to stop the creation of subcategories of drivers in considering the duty of care owed by municipalities on their roads.

‘It is reasonable for a municipality to expect that drivers will comply with the Highway Traffic Act when it maintains its roads,’ says Kirk Boggs.

The need for the determination arose in Fordham v. Dutton-Dunwich (Municipality), a case that had made allowances for the habits of rural drivers. With the appeal allowed on Dec. 11, 2014, it stopped a trend one lawyer says would have led to a forest of signs at every intersection.

Superior Court Justice Johanne Morissette shocked the municipal law community in a trial decision when she held the Dutton-Dunwich municipality 50-per-cent liable for injuries suffered by a plaintiff who had failed to stop at a clearly visible stop sign and then crashed into a concrete bridge when the road curved immediately after the intersection. Morissette found the defendant knew it was a local practice in that area for drivers to go through stop signs if they consider it safe. Her judgment was that “the circumstances of this intersection require more than a stop sign to give ordinary ‘rural’ motorists reasonable notice of a potentially catastrophic hazard ahead.”

Kirk Boggs of Lerners LLP notes the decision stunned municipalities and those who work in the area. “It elevated the duty of care well beyond what was expected. It essentially made municipalities insurers for drivers on their roads,” he says.

The decision reinforced the concerns of many municipal lawyers over where the law was going in this area. “Some trial decisions expected the highest standard of care from municipalities with respect to road maintenance but the lowest expectations for drivers with respect to reasonable driving,” says Boggs.

“This trial decision really went to the top and set a new high-water mark in favour of plaintiffs.”

Charles Painter of Paterson MacDougall LLP saw similarities between this case and Morsi v. Fermar Paving Ltd. In that case, there was a sign said to be improperly located, implying that the driver might have obeyed it if it had been in a different place. “What I found, just like in the Morsi decision, was that you had a trial judge who seemed to be searching for a way to find liability against the municipality so she wouldn’t have to send the plaintiff away with nothing, which would have been the result if she had strictly applied the test of a reasonable and ordinary driver who needs to exercise care for his or her own safety. Justice Morissette attempted to expand the scope of the duty of care beyond what the Supreme Court has said is the outer limit.”

The trial decision created a responsibility for municipalities to anticipate that a driver might make a conscious decision to ignore the stop sign. “The judge attempted to modify the duty of care to create a new class of rural driver,” says Painter.

“That vastly increased the responsibility of municipalities. Stop signs wouldn’t have to be taken notice of. Municipalities would be left trying to parse out which sign a driver would pay attention to. It’s cherry-picking.”

Boggs says one problem that has been arising in the case law has been a focus on the individual driver involved in the accident. In England, that extends to case law that extends the duty of care to making roads safe for negligent drivers. “They have to be anticipating unreasonable behaviour. They must build, design, and maintain the road with those types of drivers in mind.”

The trend has also been evident in Ontario. “When evaluating the duty of care, trial judges have been asking: ‘How could this have been prevented or what could the municipality have done to prevent it?’” says Boggs.

“That is a subjective test. What the Court of Appeal makes very clear is that it is an objective test based on whether an ordinary driver exercising reasonable care could have travelled through that section of roadway safely. Applying that test, no ordinary driver exercising reasonable care could come up to a stop sign that is easily visible and drive through it at 80 km/h.”

In fact, the Court of Appeal stated: “A municipality’s duty of repair is limited to ensuring that its roads can be driven safely by ordinary drivers exercising reasonable care. A municipality has no duty to keep its roads safe for those who drive negligently.”

Painter isn’t aware of any municipalities that changed their practices as a result of the initial decision. “My advice would have been to sit tight. Don’t panic. Wait until a high court has a chance to be reminded of the law of Canada because the test is countrywide, not just Ontario-wide. Had the Court of Appeal upheld the decision, then we would have seen a change in municipal practice. There would be forests of signs at every intersection. It would be absurd . . . bizarre.”

Painter also feels the matter would have found its way to the Supreme Court.

“If you start creating subsets and subclasses, that’s the start of the slippery slope,” he says. “There is one Highway Traffic Act. There’s not a special section for rural motorists or a special section for urban motorists. It creates too many conflicts and invites too much unpredictability.”

Boggs agrees. “Trial judges have been suggesting that local driving custom needs to be taken into account, which is very problematic. The Court of Appeal recognized that this is a recipe for chaos on the roads. It is simply not acceptable either to the driving public or the law for different driver behaviour to be expected in different parts of the province. It is reasonable for a municipality to expect that drivers will comply with the Highway Traffic Act when it maintains its roads. This goes hand in glove with the duty of care owed to a reasonable driver, not a negligent driver.”

The other important part of the judgment is a four-step procedure that trial judges are to follow in determining liability. “We have been given a road map for how to go about analyzing these cases,” says Boggs.

“That will be a very helpful guideline for trial judges going forward. It is a very welcome development for municipalities.”

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