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. 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...

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