The city failed to prove that it kept its road in a reasonable state of repair
The Ontario Court of Appeal held the City of Hamilton liable for a motorcycle accident due to its failure to prove that it kept its road in a reasonable state of repair.
In Beardwood v. Hamilton (City), 2023 ONCA 436, David Beardwood broke his left leg when he fell off his motorcycle while proceeding northbound on Trinity Church Road through its intersection with White Church Road in the City of Hamilton. Beardwood sued the City for damages.
A Superior Court of Justice judge ruled that a longitudinal discontinuity or lip in the pavement caused Beardwood to lose control of his motorcycle. Applying the test established in jurisprudence, the judge found that the existence of a pavement discontinuity or lip at an irregularly angled intersection created a risk of harm to ordinary reasonable drivers such as Beardwood and that the accident was due to Beardwood's motorcycle coming into contact with the lip.
Nonetheless, the judge dismissed Beardwood's action for damages, finding that the City had established a defence to the claim under the Municipal Act, which provides that a municipality is not liable for failing to keep a highway in a reasonable state of repair if minimum standards established under the act have been met. The applicable Minimum Maintenance Standards (MMS) provided for a 5 cm height threshold necessary to trigger a repair obligation on the City.
Beardwood's expert witness presented the only evidence concerning the height of the discontinuity. The expert testified that, while he did not take measurements at the accident scene, photographs of the scene depicted heights of the discontinuity at different locations ranging from roughly 3.8 to 5 cm. However, the witness acknowledged that the measurements displayed in the photographs could be inaccurate. The judge deemed the roadway where the accident occurred to be in a state of repair and that the City was not responsible for the damages.
Beardwood challenged the judge's decision before the Ontario Court of Appeal, which ultimately ruled that the trial judge committed a palpable and overriding error in holding that the evidence established that the height of the discontinuity met the MMS standard. The court found that the trial judge's overall approach to determining the height of the pavement discontinuity was flawed.
The court pointed out that Beardwood's expert provided the only evidence at the trial of the height of the pavement discontinuity. Due to possible inaccuracies in the photographic evidence, the expert adjusted the range of elevation differences to be between 3.5 cm and 5.5 cm. The court concluded that the expert's calculations were "essentially speculative."
Furthermore, the court found that the judge's approach of assessing the height of the discontinuity by using the average of the expert's range was an error because it amounted to guesswork superimposed on the expert's speculation.
The court also found that the fact that Beardwood introduced the photographic evidence through his expert did not relieve the City of its obligation to prove that the height of the discontinuity was less than the standard for repair. The court stressed that it was the burden of the City to establish the reliability and accuracy of the photographic evidence or some other accurate measure of the range in heights of the pavement discrepancy, but the City failed to do so.
Accordingly, the court concluded that the City of Hamilton failed to meet its onus of proving it was entitled to the statutory defence of minimum maintenance repair under the Municipal Act. Furthermore, the court ruled that the judge committed a palpable and overriding error in holding that Beardwood was 50 percent responsible for causing the accident. The court said that if any fault could be attributed to Beardwood for the accident, the percentage is "negligible."
The court ultimately attributed 100 percent of the fault to the City of Hamilton and granted Beardwood's appeal.
