Municipalities Not Liable When Drivers are Reckless
July 31, 2013 | By: Roger G. Oatley
An article in the Lawyers Weekly early in 2011 discussed the case of Deering v. Scugog (Township),  O.J. No. 4229 (S.C.J.). In it, Justice Peter Howden confirmed that municipal road authorities have a duty to keep roads in a reasonable state of repair to protect “ordinary drivers” from an unreasonable risk of harm – and that the ordinary driver is not expected to be perfect.
Municipalities in Ontario must fulfill their duties under the Municipal Act, 2001. The standard of care for a municipal road authority involves an understanding of how a reasonable road user would have traveled the road in the circumstances. In Deering Justice Howden concluded that the reasonable user is not a perfect driver, but an ordinary and fallible one.
The Court of Appeal recently released a decision in Morsi v. Fermar Paving Limited et al.,  O.J. No. 3960 (C.A.). In Morsi the Court of Appeal revisited the definition of “ordinary driver”. Morsi was an appeal from a 2010 judgment of Superior Court Justice Bryan Shaughnessy.
The Morsi accident occurred on the sunny and clear afternoon of June 15, 2005 at a curvy section of Major Mackenzie Road in York Region. The area where the crash occurred was also a transition point between a paved section of roadway and a loose gravel section of the road. While driving Mr. Morsi was confronted with a number of signs, indicating that a curve lay ahead and that he should reduce his speed to 60 km/h. There were also construction signs and a sign indicating the pavement was about to end and a gravel portion was ahead. The speed limit in the area was 60 km/h with a speed advisory of 40 km/h. The engineering experts agreed that Mr. Morsi exited a curve at 90 km/h and accelerated over a short straightaway where he reached a speed of 120 km/h. He then hit the gravel section of the road, lost control, flew off the road, and hit a telephone pole. Morsi was killed in the crash.
His family sued the two defendants. The parties agreed that damages were $1,700,000. The action proceeded to trial on the question of liability. Justice Shaughnessy apportioned liability for the crash as follows: Morsi: 50%, Fermar Paving Limited: 25% and York Region: 25%.
On the appeal the defendants contended that the trial judge erred by finding any liability against them. Their position was that the sole cause of the accident was Morsi’s excessive speed on a curvy and well-signed road.
Court of Appeal Justice James MacPherson, writing for a unanimous panel, held that Morsi’s driving was not a driver making a mistake. He further held that Morsi was not driving with ‘ordinary care’ as defined by the Supreme Court of Canada in Housen v. Nikolaisen,  S.C.J. No. 31 (S.C.C.). MacPherson J.A. held that because the road could have been successfully negotiated at the posted speed or even a speed modestly above it no liability could be found on the municipality or Fermar Paving Ltd. Accordingly, the Court of Appeal allowed the appeal, set aside the judgment of the trial judge, dismissed the plaintiffs’ action against both defendants.
In Deering, a 19 year old driver was left a quadriplegic after she lost control of her vehicle and left the roadway. On August 10, 2004 Shannon Deering lost control of her vehicle while driving 10 km/h over the speed limit at night up a hill near Port Perry, Ontario. Justice Howden found that the limited sight distance, the lack of a centreline, an inappropriately high speed limit, narrow lane widths, narrow shoulders and the presence of a culvert close to the roadway all were factors that led to the collision. He held that Shannon Deering was 1/3 liable for driving over the speed limit. Justice Howden found the defendant municipalities were 2/3 responsible for the plaintiff’s losses.
The difference between Deering and Morsi is in the conduct of the driver before the loss of control. Ontario law provides that municipalities must design and maintain roads that are safe for ordinary drivers. The law also provides that an ordinary driver is not a perfect one, but instead is a driver who occasionally drives in a modestly negligent manner. However if a driver engages in driving of the type found in the Morsi case a municipality will escape liability. The decision in Morsi confirms that Ontario municipalities need not conform to a standard for their roads that ensures the safety of a reckless driver.