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Municipal - Road Repair Liability. Wasylyk v. Simcoe (County)
In Wasylyk v. Simcoe (County) (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal by a municipal defendant of a winter road accident lawsuit, including a basic issue of causation [at para 27]:[4] The respondent claimed that Simcoe was liable for her damages under s. 44 of the Municipal Act, 2001, S.O. c. 25 (the “Act”). She claimed that Simcoe had failed to keep the relevant portion of CR 88 in a reasonable state of repair by failing to take reasonable steps to remove the ice and snow that accumulated on the relevant part of that roadway during the late afternoon and evening of January 12, 2011. The respondent argued that the icy and snowy conditions on the road caused her to lose control of her vehicle and spin into the oncoming lane where she collided with the westbound vehicle driven by Ms. Wos.
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[10] The trial judge separately considered each of the three defences laid down in s. 44(3) of the Act. In respect of s. 44(3)(a), she found that Simcoe, through its employees, had actual knowledge of the hazardous conditions on CR 88 for several hours before the accident. The area had been experiencing severe winter weather for about two days. Simcoe knew that the relevant part of CR 88 was susceptible to dangerous winter driving conditions on account of the prevailing winds, the openness of the countryside, and the significant traffic volume on that roadway. CR 88 was one of the busiest roads in the county.
[11] Next, the trial judge rejected Simcoe’s arguments that it had taken reasonable steps to prevent the state of disrepair from arising (s. 44(3)(b)). On this issue, the trial judge concluded that Simcoe had “an effective system” for addressing problems associated with winter driving conditions. She was, however, satisfied that the employee responsible for maintaining CR 88 had not followed the procedures set down by Simcoe for maintaining the roadways. The relevant part of CR 88 had been left unattended and unserviced for large parts of the late afternoon and evening of January 12, 2011.
[12] The trial judge also concluded that the statutory defence in s. 44(3)(c) was not available. Simcoe could not establish that it had treated the hazardous conditions at the relevant part of CR 88 within three hours of learning of those conditions.
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[20] Simcoe does not suggest that the trial judge misstated the legal principle engaged when determining if a road is in a state of disrepair. As the trial judge observed, the respondent was required to establish that the relevant part of CR 88 presented hazardous conditions that posed an unreasonable risk of harm to ordinary, non-negligent users of the road in the prevailing circumstances: Lloyd v. Bush, 2017 ONCA 252, at para. 71.
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[27] The respondent had to establish that “but for” the “defects” in the repair of the road, in this case the icy and snowy conditions of the roadway, the respondent would not have lost control and collided with the vehicle driven by Ms. Wos. To meet that burden, the respondent was not obliged to point to the specific ice patch or accumulation of snow on the road that caused the respondent’s vehicle to lose control: Kamin v. Kawartha Dairy Ltd. (2006), 2006 CanLII 3259 (ON CA), 79 O.R. (3d) 284. The respondent was, however, required to prove that the hazardous conditions brought about by the ice and snow on the road caused the accident.
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[36] ... the respondent was obligated to prove that the icy and snowy conditions rendered the road in a state of disrepair for the purposes of the Act. It was not necessary in establishing that the road was in a state of disrepair to demonstrate how the road became icy: Giuliani v. Halton (Regional Municipality), 2011 ONCA 812, at para. 30. . Beardwood v. Hamilton (City)
In Beardwood v. Hamilton (City) (Ont CA, 2023) the Court of Appeal considered a municipal road repair liability case, illustrative of the type of nitty-gritty evidence typically involved with these [MA 43-44]:[1] On August 25, 2015, the appellant broke his left tibia 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 (the “City”).
[2] The trial judge accepted that a longitudinal discontinuity or lip in the pavement of White Church Road as it crossed Trinity Church Road at an irregular, almost parallel, angle caused the appellant to lose control of his motorcycle as he proceeded northbound after stopping at a stop sign on Trinity Church Road.
[3] The trial judge found that parts one and two of the Fordham[1] test were satisfied. That is, he 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 the appellant and that the accident was caused by the appellant’s motorcycle coming into contact with the lip.
[4] Nonetheless, the trial judge dismissed the appellant's action for damages against the City, holding that the City had established a defence to the appellant's claim under s. 44(3)(c) of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”)[2], 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 s. 44(4) of the Act have been met.
[5] The applicable Minimum Maintenance Standards (“MMS”)[3] established under s. 44(4) of the Act provided for a 5 cm height threshold necessary to trigger a repair obligation on the City. The only evidence concerning the height of the discontinuity came from an expert witness called by the appellant. The appellant's expert testified that, while he did not take measurements at the accident scene, photographs of the scene that were provided to him depicted heights of the discontinuity at different locations ranging from roughly 3.8 to 5 cm. However, he concluded, based on certain factors, that the heights displayed in the photographs could be inaccurate and therefore adjusted the range of heights at the various locations to being between 3.5 and 5.5 cm.
[6] The trial judge found that whether using the unadjusted measurements of the discontinuity as depicted in the photographs relied on by the appellant's expert, or an average (4.5 cm) of the adjusted range of heights posited by the appellant’s expert, the heights were within the 5 cm threshold. He therefore concluded that the roadway where the accident happened was deemed to be in a state of repair and that the City was not responsible for the appellant's damages.
[7] The appellant disputes that the MMS apply to the pavement discontinuity that caused the accident. In the alternative he argues that the City failed to meet its onus of proving compliance with the MMS as required under s. 44(3)(c) of the Act.
[8] Assuming, without deciding, that the MMS apply to the pavement discontinuity, we conclude 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. In our view, the trial judge’s overall approach to determining the height of the pavement discontinuity was flawed.
[9] As we have said, the only evidence at trial of the height of the pavement discontinuity was provided by the appellant's expert. He examined various photographs taken at the accident scene which showed a straight edged ruler set up against uneven pavement at the scene. As indicated above, he estimated that the photographs he relied on for his opinion (the "ruler evidence")[4] revealed differences in elevation of roughly between 3.8 cm and 5 cm.
[10] However, because of possible inaccuracies in the photographic evidence due to factors such as camera angle and how the ruler was being held, the appellant's expert adjusted the range of elevation differences to being between 3.5 cm and 5.5 cm. While he offered some explanation for his adjustments, his calculations of the adjustments were essentially speculative. . Walma v. Georgian Bluffs (Township)
In Walma v. Georgian Bluffs (Township) (Ont CA, 2023) the Court of Appeal considered whether a private access road was legally a 'public road' such that the municipality was responsible for it's maintenance.
In these background quotes the reader can get a feel for Ontario 'road law':BACKGROUND
[6] In 1976, the respondent purchased lots 21 and 22 of Concession 3 (the “property”) in Keppel Township, which has since been amalgamated into the Township of Georgian Bluffs. The property is situated in a wetland known as the Long Swamp within the Sauble River watershed. It includes a 70-acre elevated area to the south, once used as a pasture, and a 110-acre downward slope on the north end on which there is timber.
[7] In 2016, the respondent contacted an arborist to carry out logging work on the property, but the arborist could not complete the work because the access road was submerged and rendered impassable as a result of flooding. The respondent sought to identify the owner of the access road, who was responsible for maintaining it, and who was responsible for the flooding. The Township advised him that the access road is an “unopened road allowance” the Township was not required to repair or maintain. Township counsel asserted that the Township had never undertaken any maintenance of these road allowances and had not modified or in any way altered the original drainage of the respondent’s or the adjacent properties. Counsel informed the respondent that the Township would not be taking any steps to render the road allowance usable. He did indicate, however, that the Township would be prepared to enter into a Limited Services Agreement with the respondent, which would permit him to make the necessary upgrades provided that he obtained approvals from the local conservation authority.
[8] The respondent sought a declaration that the access road is a “forced road”, that the Township has an obligation to maintain it, and that it had failed to do so, along with an order requiring the Township to restore the road to his property. In the alternative, he sought a declaration that the property has been constructively expropriated or has suffered injurious affection by the Township’s actions or omissions, entitling him to compensation.
[9] The Ministry was added as a party to the application on consent pursuant to the Township’s motion, though no relief was sought against the Ministry by either the Township or the respondent. The Township’s Notice of Motion stated that the Ministry should be added because its approval was required to connect the access road to Highway 6, and “an Order directing the Township to construct the alleged forced road would be ineffective if the [Ministry] refuses to permit the road to be connected to Highway 6”.
THE APPLICATION JUDGE’S DECISION
The access road is a public road
[10] The application judge concluded that the access road is a public road on two bases. First, he found that statute labour was used to establish and maintain the access road until the abolition of statute labour in the municipality in 1925. It was likely that the Township and its predecessor continued to maintain the access road until at least 2012, when the Ministry reconstructed the section of Highway 6 that intersected it. Second, he found that the access road was dedicated to public use and accepted as such by the municipality – the two elements of the common law “forced road” test. Public acceptance of the road could be inferred from public use for a substantial time, by the respondent and others in the area of Concession 3, tax assessors, and forestry workers.
[11] Roads assumed by a municipality may be closed only by the adoption of a by-law to this effect. Neither the Township of Georgian Bluffs nor its predecessor, Keppel Township, adopted such a by-law in relation to the access road. Consequently, the application judge found that the access road is a public road that the Township had a legal obligation to maintain. The application judge ordered the Township to restore the access road to the condition it was in prior to the 2012-13 reconstruction of Highway 6. Here, the Court of Appeal supports the lower court's conclusion that the road was in law a 'public highway':THE TOWNSHIP’S APPEAL
[18] The Township argues that the application judge misunderstood the common law test for dedication and acceptance of a private road as a public highway. The Township emphasizes that an intention to dedicate a road as a public road ought not be too readily inferred from use and that the evidence relied on by the application judge was consistent with private rather than public use. As for acceptance, the Township argues that an intention to assume the road cannot be inferred from any maintenance the Township may have performed over time, suggesting that such work could be ascribed to courtesy rather than an assumption of responsibility.
[19] We do not accept these arguments. They are, in essence, an invitation to remake findings made by the application judge and there is no basis for this court to do so.
[20] The application judge found the access road to be a public road based not only on findings of dedication and acceptance – the test at common law – but also on findings that the Township constructed the access road and once maintained it. This second set of findings was based on a line of legislation beginning with The Highway Act, S.U.C. 1810 (50 Geo. III), c. 1, s. 12, through s. 261 of the Municipal Act, R.S.O. 1990, c. M.45. In short, that legislation rendered roads on which statute labour had been usually performed public highways. Although that legislation was repealed in 2003, pursuant to s. 26 of the Municipal Act, 2001, S.O. 2001, c. 25, all roads in existence as of December 31, 2002 are public highways unless they have been closed.
[21] The Township argues that the records do not clearly and unequivocally establish that the access road was built or maintained using statute labour. It acknowledges that the records show that statute labour was used but submits that they are not specific to the road in question. But that factual determination was the application judge’s to make. He documented evidence from the time statute labour was used in Keppel Township, including by-laws authorizing work to be performed in the area of the access road and records of payments to previous owners of the property and neighbouring properties. Further, the application judge was entitled to draw an adverse inference that records not produced by the Township would not support its position and would support the respondent’s. The Township asserts that it exercised appropriate due diligence in searching for the records, emphasizing the difficulties in locating old records in all of the circumstances. Again, we decline the invitation to revisit the application judge’s findings. . Beniuk v. Leamington (Municipality)
In Beniuk v. Leamington (Municipality) (Ont CA, 2020) the Court of Appeal considered the statutory duty of care that applied when suing a municipality over road maintenance:[87] Section 44 of the Municipal Act provides for a statutory duty of a municipality with respect to road maintenance. Subsections 44(1) and 44(2) provide a cause of action against the municipality, while subsection 44(3) sets out three defences:44 (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.
(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.
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them. [Emphasis added.] [88] The appellants rely on the plain wording of s. 44(2) to argue that the statutory duty under s. 44 is owed to them as adjoining landowners. Subsection 44(2) contemplates that “any person” who sustains damage because of a municipality’s failure to comply with subsection (1) can bring an action. The motion judge did not engage with the plain wording of s. 44(2) and instead relied on this court’s decision in Fordham to conclude that “the statutory duty of care set out in s. 44(1)…is not directed to injuries suffered by adjoining landowners”: para. 32. According to the motion judge, “[t]he jurisprudence and duty of care has been established with respect to the travelling public and as measured against the ‘ordinary reasonable driver’”: para. 32.
[89] The motion judge’s reliance on Fordham was misplaced. Fordham involved a claim by a young man who was seriously injured while driving at night on a road that was alleged to have been unsafe. The concept of the “ordinary reasonable driver” was a statement of the standard of care owed to the plaintiff, who was alleged to have been driving in a dangerous manner. It was not a determination of whether the s. 44 duty was owed to persons other than the user of the road. In allowing the appeal, Laskin J.A. described the standard of care as requiring a municipality “to keep its roads, city or rural, … safe for reasonable drivers, not negligent ones”: Fordham, at para. 49.
[90] This formulation of the standard of care can be traced back to the Supreme Court of Canada’s decision in Housen (better known for its discussion of appellate review). In Housen, the court adopted the following statement of a municipality’s standard of care for road maintenance from Partridge v. Rural Municipality of Langenburg, 1929 CanLII 220 (SK CA), [1929] 3 W.W.R. 555 (Sask. C.A.), per Martin J.A., at pp. 558-59:The extent of the statutory obligation placed upon municipal corporations to keep in repair the highways under their jurisdiction, has been variously stated in numerous reported cases. There is, however, a general rule which may be gathered from the decisions, and that is, that the road must be kept in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it with safety. [91] The standard of care from Partridge, adopted in Housen and followed in Fordham, appears, on its face, to subsume the duty of care question. However, it is trite that the standard of care and duty of care are conceptually distinct and should not be conflated. To specify that the standard of care must be measured against the behaviour of a certain class of persons, as this court did in Fordham, is not the same as saying that the duty of care is only owed to that class of persons. Moreover, the facts of Fordham turned on the standard of care. Duty of care was not at issue in the case, nor was it an issue in Housen.
[92] There is old authority on the issue of who is owed the municipality’s duty of road maintenance. In Dick v. Vaughan (Township) (1917), 1917 CanLII 534 (ON CA), 39 O.L.R. 187 (C.A.), this court considered a predecessor provision, which was substantially similar to s. 44 of the 2001 Municipal Act. The respondent had claimed damages for the economic loss caused when he had to use an alternate route for his business because a bridge was not strong enough to support the weight of his traction engine and threshing machine. The court stated that the statutory duty of care was owed to the “travelling public and to no one else” (at p. 191) and that it only applies to “what may be in a general way described as accident cases” (at pp. 197-198). The court did, however, recognize that in previous cases like Strang v. Township of Arran (1913), 28 O.L.R. 106 (C.A.) and Cummings v. Dundas (Town) (1907), 13 O.L.R. 384 (Div. Ct.), leave to appeal refused: 1907 CarswellOnt 627 (C.A.), adjoining landowners were owed the duty to keep roads in a reasonable state of repair when access to their property was at issue. In other words, these were cases where liability under the statutory provision was found to extend to persons beyond the users of the road. Ultimately, in Dick, the court allowed the appeal and dismissed the claim on the basis that the loss complained of was not “damages” sustained by the respondent by reason of the “default” of the appellants, within the meaning of the enactment, and that, if it were, the damages were too remote: p. 197.
[93] Dick was cited as authority that the statutory duty was owed only to users of the roadway in McPhee v. Plympton (Township) (1987), 1987 CanLII 4223 (ON SC), 61 O.R. (2d) 508 (Dist. Ct.), where the court dismissed a claim for damage to an adjoining property resulting from drainage of surface water from a roadway. By contrast, in Schraeder v. Township of Gratton, 1945 CanLII 81 (ON SC), [1945] O.R. 657 (H.C.), where the claim was by a landowner for the failure to complete a road constituted by dedication and acceptance, Dick was expressly not followed in favour of the Strang line of cases.
[94] In Ouellette v. Hearst (Town) (2004), 2004 CanLII 36122 (ON CA), 70 O.R. (3d) 204 (C.A.), this court considered a case where a utility pole fell and struck a vehicle on a roadway. The municipality argued that the negligence claim was really a claim under former s. 284(1) of the Municipal Act to keep the highway in a reasonable state of repair, and subject to a three-month limitation period that had expired. The court noted that the label attached to the cause of action by the plaintiff was not determinative, and that the court would have to determine whether the negligence in question was in fact a breach of a duty imposed by the Municipal Act: Ouellette, at para. 22. After noting that the jurisprudence respecting the scope of a duty of a municipal corporation to keep its highways in repair is extensive and that the scope of the duty has been defined in broad terms (paras. 25 and 26), the court concluded that the specific factual circumstances did not fit within the ambit of non-repair of a highway (at para. 27). Moreover, the court noted at paras. 29 and 30:Most of the cited cases are fairly old. They were decided at a time when there was little scope in the common law for actions against municipalities for keeping their highways in a reasonable state of repair. Accordingly, courts tended to interpret the duty in s. 284(1) in a broad fashion. As explained by Carthy J.A. in [Mero v. Waterloo (Regional Municipality) (1992), 70 O.R. (3d) 102 (C.A.)] at p. 106:What we see historically is that the law in Ontario has developed on the assumption that there is no common law liability upon a municipality respecting maintenance of highways except for nuisance and, as the natural evolution of what might have been termed a very restrictive statutory cause of action in s. 284(1) has progressed, the courts have been increasingly liberal in the interpretation of what constitutes non-repair of a highway. There is no longer a need to stretch the wording of s. 284(1) to ground what are, in reality, proposed negligence actions against municipalities. That is because in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, 64 D.L.R. (4th) 689, the Supreme Court of Canada held that the traditional tort law duty of care could apply to a government agency respecting the maintenance of highways where there was no express statutory duty imposed. In the wake of Just, s. 284(1) need not be interpreted to cover a situation that amounts to an extension of the statutory duty to repair; rather, an action against a municipality in this context can proceed as a negligence action, as pleaded in this case... . Stamatopoulos v. Harris
In Stamatopoulos v. Harris (Ont CA, 2022) the Court of Appeal set out the test for road repair negligence against a municipality:[6] There is no dispute that the applicable four-part test for establishing the statutory cause of action in negligence against a municipality was set out by this court in Fordham at para. 26:1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.
2. Causation: The plaintiff must prove the “non-repair” caused the accident.
3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
4. Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries.
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