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HomeNews & ArticlesRoad Warriors: Ministry of Transportation/Municipalities
General Interest


Road Warriors: Ministry of Transportation/Municipalities

January 1, 2013  |  By:  James L. Vigmond, Brian M. Cameron

The focus of this paper is to review liability of the Province of Ontario and municipalities in motor vehicle accident cases.

Liability of these defendants is not restricted to what one might think of road repair in its narrowest sense; that is pot holes. As will be illustrated later in this paper, innovative counsel have affixed these defendants with liability in a variety of circumstances which go beyond what one might reasonably have expected would be a part of the obligation to maintain highways.

The Obligation to Maintain Bridges and Highways
The relevant legislation dealing with liability of the Province and municipalities are the Public Transportation and Highway Improvement Act, R.S.O. 1990, Chap. P. 50 as amended and the Municipal Act, 1990 R.S.O. Chap. M.45 as amended.

In 1996, significant amendments to the Municipal Act were passed which bear directly on liability of municipalities. The amendments are described below.

The salient excerpts of the legislation are as follows:

Municipal Act Public Transportation and Highway Improvement Act
S. 284
(1) The council of the corporation that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in light of all the circumstances, including the character and location of the highway or bridge.(1.1) In case of default, the corporation, subject to the Negligence Act, is liable for all damages any person sustains because of the default.(1.2) The corporation is not liable under subsection (1) or (1.1) failing to keep a highway or bridge in a reasonable state of repair if it did not know and could not reasonably have been expected to know about the state of repair of the highway or bridge.(1.3) The corporation is not liable under subsection (1) or (1.1) for failing to keep a highway or bridge in a reasonable state of repair if it took reasonable steps to prevent the default from arising.(1.4) The corporation is not liable under subsection (1) or (1.1) for failing to keep a highway or bridge in a reasonable state of repair if, at the time the cause of action arises,(a) minimum standards established under subsection (1.5) apply,

  • (i) to the highway or bridge, and
  • (ii) to the alleged default; and

(b) those standards have been met.

(1.5) The Minister of Transportation may, by regulation, establish minimum standards of repair for,
(a) highways and roads;
(b) classes of highways and roads;
(c) bridges;
(d) classes of bridges.

(1.6) The minimum standards may be general or particular in their application.

(1.7) A regulation made under subsection (1.5) also applies to regional, district and metropolitan municipalities and the County of Oxford.

(1.8) A regulation made under subsection (1.5) may adopt by reference, in whole or in part, with such changes as the Minister of Transportation considers necessary, any code, standard or guideline, as it reads at the time the regulation is made or as amended from time to time, whether before or after the regulation is made.

S. 33(1)
The Kings Highway shall be maintained and kept in repair by the Ministry and any municipality in which any part of the King’s Highway is situate is relieved from any liability therefor, but this does not apply to any sidewalk or municipal undertaking or work constructed or in course of construction by a municipality or which a municipality may lawfully do or construct upon the highway and the municipality is liable for want of repair of the sidewalk, municipal undertaking or work, whether the want of repair is the result of non-feasance or misfeasance, in the same manner and to the same extent as in the case of any other like work constructed by the municipality for Section 33 (2): In case of default by the Ministry to keep the Kings Highway in repair, the Crown is liable for all damage sustained by any person by reason of the default, and the amount recoverable by a person by reason of the default may be agreed upon with the Minister before or after the commencement of an action for the recovery of damages.
Section 1: Section 1:
“Highway” includes a common public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, designed and intended for, or used by, the general public for the passage of vehicles; “Highway” includes a common and public highway, street, avenue, parkway, drive-way, square, place, bridge, viaduct, trestle or any other structure incidental thereto, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; (“voie publique”)
“Bridge” means a public bridge, and includes a bridge forming part of a highway or on, over or across which a highway passes; “Bridge” means a public bridge, and includes a bridge forming part of a highway or on, over, under or across which a highway passes;

For an excellent treatise of municipal liability, please see Thompson, Rogers on Municipality Liability, (1996) Canada Law Book. I have utilized this text unabashedly and extensively in this paper.

NOTICE AND LIMITATION ISSUES

Municipalities:
Notice in writing of the claim and of the injury complained of must be served by registered mail to the head or clerk of the corporation within seven days in the case of an urban municipality and ten days in the case of a county or township after the happening of the injury.

Failure to give notice or to give sufficient notice is not a bar to an action in the case of death (at all). Failure to give notice or sufficient notice in the case of injury, except where the injury was caused by snow or ice upon a sidewalk, is not a bar to the action if the judge before whom the action is tried is of the opinion that the municipality was not prejudiced by the lack or insufficiency of notice and that to bar the action would be an injustice, even if reasonable excuse for the lack or insufficiency of notice is not established.

It is likely that the decision of Peixerio v. Haberman which applies the discovery rule to limitation periods will be useful in extending notice periods in the event that the plaintiff did not know and could not have known with reasonable diligence of the negligence of the municipality within the time period.

Courts have found that no prejudice was sustained in cases where verbal notification was given to the municipality, notice was given to an insurance adjuster acting on behalf of the municipality, constructive notice was received or the municipality learned of the problem by other means shortly after the accident. Prejudice has been found where a crucial item of evidence was no longer available or the municipality was deprived of an opportunity to inspect the condition of the sidewalk or roadway in which the accident occurred and of an early opportunity to find witnesses.

An action has to be started three months from the time when the damages were sustained.

The Province:
Notice in writing of the claim and of the injury complained of must be served upon the defendant by registered letter to the Minister of Transportation within ten days after the happening of the injury. However, the failure to give notice or to give sufficient notice is not a bar to the action if the judge trying the action is of the opinion that there is a reasonable excuse for the insufficiency or lack of notice and that the Crown is not prejudiced in its defence by the failure to receive notice. Note that the province appears to occupy a better position than municipalities in that plaintiffs must establish reasonable excuse.

As with municipalities, an action has to be started three months from the time the damages were sustained.

TITLE OF PROCEEDING
The municipality will be named by its proper corporate status (eg. The Corporation of the City of Barrie). The Municipal Act requires each municipality to be incorporated. A telephone call to the Town Clerk will be the easiest way to determine the proper name of the municipality.

In an action against the Province, the defendant is described as “Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario”.

In the event one is uncertain as to the identity of the road authority, it is suggested that all potential road authorities be named as defendants and let the defendants sort out the issue of jurisdiction.

JUDGE ALONE
Regrettably, actions against the municipality8 and the Province9 have to be tried without a jury.

LEGAL BASIS
There are several relatively recent Supreme Court of Canada decisions that outline the nature of the Provincial and municipal duties and responsibilities as road authorities.

The steps to be taken in an analysis of determining the potential liability of a defendant is to examine the governing legislation as a preliminary matter. Caselaw establishes that one must take the following steps, referred to as the categorization of statutes test, and the 2-part Anns test.:

1. The Categorization of Statutes Test:
Examine the governing legislation by which the decision making is governed to determine into which of the two following categories it falls:

Power

    (a) Is it a statute conferring powers to interfere with the rights of individuals, in which case an action in respect of damage caused by the exercise of such power would generally not lie, except in the case where the local authority has done what the legislature authorized but done it negligently; and

Duty

    (b) Is it a statute conferring powers but leaving the scale on which they are to be exercised to the discretion of the local authority. Here there will be an option to the local authority of whether or not to do anything authorized but, if it elects to do it and does it negligently, then the policy decision having been made, there is a duty at the operational level to use due care in giving effect to it.

2. The 2-Part Anns Test

  1. (a) Determine if the defendant owes the plaintiff a prime facie duty of care. In this case, a duty of care arises if there is a sufficiently close relationship between the parties (the local authority and the person who has suffered the damage) so that in reasonable contemplation of the authority, carelessness on its part might cause damage to that person. (This is the foreseeability of risk and special relationship of proximity test)
  2. (b) If a duty of care is established, one must determine whether the imposition of this duty is excluded by statute or because the decision is one of policy.

DECISION-MAKING – IS IT POLICY OR OPERATIONAL?
The key classification is with respect to decision-making. Decisions are classified as either (a) policy or (b) operational. Implementation activities are always operational.

There is no duty of care owed in respect of a policy decision unless it is not made bona fides or it is so irrational that it was not a reasonable exercise of ministerial discretion. It is very difficult to establish either of these exceptions to the rule. Conversely, when a decision moves into the operational sphere, that is to say the practical execution of its policy decision which may involve either operational decisions or implementation of a policy, private law duties apply and the municipality or province will be liable for its negligence. In this respect, the road authority will be exposed to the same liability as others for the failure to discharge the duty to take care to avoid injury to your neighbours. Generally speaking, the implementation of policy is clearly an operational matter.

The pivotal issue in a claim against a road authority is the classification of the activity of the public authority as a policy decision or as an operational activity.

A review of caselaw does not lead to a clear boundary between policy and operation. Paul Perrel, in a review of recent caselaw states:

“Whatever the criteria used, the cases show that characterizing the public authority’s activity is problematic and often unpredictable. In the Just case, of the 11 judges who gave judgments, 6 concluded the province’s actions were operational and five that the actions were a policy decision”.

There are, however, certain indicia which the courts point to as tending to establish either a policy or operation. Clearly it is the nature of the decision that governs the determination of the classification and not the level of the person making it. In one of the leading cases, Just v. The Queen in Right of British Columbia (supra), the Supreme Court of Canada commented that:

“In determining what constitutes such a policy decision, it should be born in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions”. (supra, at p. 708 D.L.R.)

Clearly, the tenor of the decisions is to find as matters of policy, those types of decisions where budgetary and fiscal constraints were a significant determining factor in the exercise of discretion. For example, determining the manner of inspection of roadways and frequency of inspection on the basis of the annual budget of the municipality are properly matters of policy.

A useful summary of salient facts in the characterization issue are provided by Lambert, J.A., in Brown v. The Queen in Right of British Columbia (supra) where he stated:

“In relation to the considerations that serve to distinguish a policy decision from the operational decision, I continue to think that the four considerations referred to by Madam Justice McLachlin, as the trial judge in Just, are helpful and are unaffected by the decision of the Supreme Court of Canada in that case.

Those four considerations are, first, a policy decision as opposed to an operational decision involves planning. Second, a policy decision as opposed to an operational decision involves allocating resources balancing factors such as efficiency or thrift. The third criterion is that the greater the discretion conferred on the decision-making body the more likely the result of the decision is to be a matter of policy rather than operational. Fourth, where there are standards against which the conduct can be evaluated a decision may move into the operational area and out of the policy area.

In addition to those analytical considerations, none of which, of course, is determinative, I also consider that the distinction between nonfeasance and misfeasance remains a useful analytical tool in this area. The decision not to build a needed lighthouse is likely to be policy. Building a lighthouse with a defective beacon is likely to be operational.

In Brown v. The Queen in Right of British Columbia (supra), Mr. Justice Cory in reviewing previous Supreme Court decisions summarized some of the relevant factors used to clarify the decision. Mr. Justice Cory, speaking for the majority stated at page 15:

“True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and pre-determining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints. The operational area is concerned with the practical implementation of the formulated policy; it mainly covers the performance or carrying out of a policy. Operational decisions will usually be made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness”.

In Brown v. The Queen in Right of British Columbia, the plaintiff was injured when his truck slid on black ice on a provincial road. Three other accidents had occurred the same day on the same stretch of highway. Although the event occurred in November, the summer maintenance routine was still in force as a cost-saving measure and fewer personnel were working fewer hours on maintenance projects than in winter.

The plaintiff contended that the decision of the department to maintain a summer schedule was an operational decision. However, the Supreme Court disagreed, stating at page 16:

“Whether the winter or summer schedule was to be followed involved a consideration of matters of finance and personnel. Clearly, the decision required the department to discuss and negotiate the dates for the commencement of the summer and winter schedules with its unions. This was a policy decision involving classic policy considerations of financial resources, personnel and, as well, significant negotiations with government unions. It was truly a governmental decision involving social, political and economic factors”.

The Court did go on to say that the manner in which sanding was carried out was operational in nature. The plaintiff claimed and the Supreme Court found that the department was negligent in failing to have home telephone numbers of employees who were to be called out in the event of emergencies. However, although there was a finding that this was operational in nature, the action was dismissed as this “undoubted” negligence did not affect the result in the case.

Finally, in Brown v. The Queen in Right of British Columbia, the plaintiff alleged that the municipality was negligent in the length of time that it took to respond to the request for sanding. The Supreme Court found that the plaintiff had not established on a balance of probabilities that the department’s negligence was responsible for the unexplained delay in responding to the request for sanding. It is suggested that it is unfair to place the evidentiary burden on a plaintiff to establish a reason for such a delay when the facts would appear to be within the exclusive knowledge of the defendant. Under such circumstances, the maximum res ipsa loquitor ought to be available to the plaintiff to presume negligence.

The Supreme Court of Canada decided a case similar to Brown on the same day – Swinamer v. The Attorney of Nova Scotia (supra). In this case, the court found that the provincial duty to maintain highways extended to taking reasonable steps to prevent accidents from hazardous trees falling on the highway.

The province had received complaints about dead trees along the sides of the roads in its county. Thinking that they could pose a hazard to the traveling public and without having the funds in his maintenance budget to remove them, the divisional engineer assigned a foreman and survey technician to survey the roads in the district to assess the extent of the problem. The foreman was not a trained forrester, although he did have some knowledge of forests, and could identify a dead tree. The foreman and his assistant counted over 200 dead trees and marked them with survey stakes, plotting their location in a log book and submitted their report to the divisional engineer.

One of the trees they did not mark was a dead tree that could not be detected as being dead or dangerous by a lay person. The tree ultimately fell across the plaintiff’s truck, rendering the plaintiff a paraplegic.

The court reviewed whether or not the department’s decision to conduct a survey with the object of ascertaining whether the trees were dead was a policy decision or an operational decision.
The court concluded that it was a policy decision. The court considered as relevant to the engineer’s determination to conduct a survey in the manner in which he did, factors such as past practice, budget, cost, the possibility of closing the road, and the nature of the inspection team. The court found it “significant” that the engineer testified that if he had decided to use the money from his general budget to cut the identified trees, he would have had to make cuts in other maintenance activities which could equally adversely affect the security of users of the highway. The fact that budgetary considerations and allocation of funds were involved were “classic” examples of a policy decision. As there was no suggestion that this was not a bona fide decision or that it was so irrational as to constitute an improper exercise of governmental discretion, the decision, being one of policy could not be impugned.

Further, there was no negligence in the operational aspect of the Department of Transportation in carrying out the survey.

The Court in passing noted that the common law duty of maintaining the highway would require the department to remove trees which constituted an apparent danger to travellers of the road. The fact that the tree was not obviously dangerous meant that there was no negligence in not knowing that it posed a hazard to users of the highway.

In Swanson Estate v. Canada, Mr. Justice Linden, J.A., utilized a “governance” v. “supplying service” classification system where he found Transport Canada liable for damages arising from an aircraft crash because of its failure to enforce safety regulations against a carrier known to operate contrary to regulations.

The following have been held to constitute policy decisions:

1. Inspection:

  • Whether or not to inspect highways and surrounding lands;
  • Whether or not to maintain roadsides and municipal lands;
  • Whether or not to enforce by-laws on a complaint-driven rather than inspection system;
  • Determining the frequency of inspection of roads and bridges;
  • Determining the frequency of inspection of road signs.
  • The general program for inspection of roads;
  • The decision to inspect for the limited purpose of identifying dead trees in order to apply for funds to remove them;
  • The decision of whether or not to have a system of inspection.

To be kept in mind is the admonition of Mr. Justice Cory that although there is no duty to have a policy to inspect, the municipality or province must specifically consider whether or not to inspect. Once such a policy has been established, the policy itself is reviewable for bona fides. In addition, its implementation is subject to the duty of care.

2. Maintenance:

  • The system or routine of plowing or sanding highways;
  • Snow and ice removal on streets and sidewalks;
  • Deciding what type of median barrier to install on highways;
  • Continuing a summer highway maintenance schedule in November;
  • Whether or not to maintain parks;
  • The decisions to allocate money to daily road maintenance and to employ a private contractor for that purpose;
  • Whether to exercise a power – deciding whether or not to exercise a statutory power through for instance the passage of a by-law;
  • Whether and to what extent to force a by-law.

3. Miscellaneous:

  • Whether or not to establish a fire department;
  • The location of fire hydrants;
  • Deciding how many fire fighters to hire and whether or not to maintain the
  • Whether or not to install a guardrail and if so choosing the criteria for determining the areas of installation;

The following have been held to be operational in nature and are either decisions that are operational or implementation activities:

1. Operational Decisions

  • Determining the frequency and manner of highway inspections:
  • Failure to maintain traffic signs and signals;
  • Failure to provide adequate safeguards while repairs are being performed (such as warning signs, barricades, flagmen).

2. Implementation Activities

  • The manner and quality of the inspection process itself as opposed to the decision whether or not to have a system of inspections;
  • The manner and extent of maintenance activities such as the sanding of a highway, the installation of guardrails, including the decision whether to go beyond the minimum standards regarding location and performance of a survey of roadside trees to identify those that are dead and should be removed;
  • The replacement of highway median barriers with those of a larger size within a reasonable period of time;
  • The need to insist upon reasonable standards in a contract with a private contractor employed to perform road maintenance and to take reasonable steps to ensure compliance with those contractual obligations.Consider some of the following and whether they may fall within operational or implementation activities:
    1. The failure to post appropriate warning signs in a school district;
    2. The failure to place a crossing signal in a school district;
    3. The failure to follow the Ministry’s own guidelines (e.g.. the Manual of Uniform Traffic devices);
    4. The failure to ensure that bridges are salted or sanded before roadways;
    5. The failure to consider whether salt or sand should be applied or what percentage of each should be applied;
    6. The failure to carefully monitor weather activities in the event that a radio, TV or other electronic device is available in the operations office;
    7. The failure to salt/sand high traffic areas in priority to less busy streets.
      In Just, Cory, J. also discussed the issue of standard of care – that is, separate and apart from establishing the existence of a duty of care Cory, J., said that it was appropriate to take into account budgetary constraints and the availability of personnel and equipment to the public authority as it relates to assessing the standard of care.

NON-REPAIR
As has been noted, Section 33(1) of the Public Transportation and Highway Improvement Act and Section 284(1) to (1.8) of the Municipal Act create statutory obligations on the public authorities to maintain highways.

It will come as no surprise that the standard by which the state of repair and the concomitant obligation to repair the roadway is to be adjudged is that of the objective reasonableness. Thus, it was said in Foley v. 15 that the municipality must keep their roadways “in such a reasonable state of repair that those requiring to use the road may, using ordinary care, pass to and froe upon it in safety” that the municipality must keep their roadways “in such a reasonable state of repair that those requiring to use the road may, using ordinary care, pass to and froe upon it in safety” that the municipality must keep their roadways “in such a reasonable state of repair that those requiring to use the road may, using ordinary care, pass to and froe upon it in safety” that the municipality must keep their roadways “in such a reasonable state of repair that those requiring to use the road may, using ordinary care, pass to and froe upon it in safety.

It has more than once been noted that “a municipal corporation is not an insurer of travellers using its streets, its duty is to use reasonable care to keep its streets in a reasonably safe condition for ordinary travel by persons exercising ordinary care for their own safety”.
The statutory duty to maintain roads creates a positive duty which is the source of the duty to inspect, for the purpose of seeking out and remedying conditions of non-repair. This is course is subject to the bona fide policy which the public authority may take not to inspect providing they have considered whether or not to inspect.

The municipality must actively take steps to prevent disrepair from arising. See for example Berezowski v. Edmonton (City).

It is a question of fact whether or not a condition of non-repair exists in each case depending upon all the surrounding circumstances.

In an often quoted portion of his reasons for judgment, Mr. Justice Southy in Gould v. Perth (County) described the duty imposed upon the Ministry in respect of its highways in these terms:

“Liability will only result where the situation gives rise to an unreasonable risk of harm to users of the highway, and the authority has failed to take reasonable steps to eliminate or reduce the danger within a reasonable time after it became aware, or ought to have become aware of it its existence”.

The case was followed by Mr. Justice McLean in Whittle v. Ontario In that case, the Ministry was found liable for failing to take steps to repair a bridge. The Ministry knew that concrete was falling from a bridge and estimated statistically that there would be at least twenty collisions a year with the bridge. Notwithstanding that knowledge, they failed to give warnings to users of the highway and they allowed this dangerous situation to continue. The court had “no hesitation” in finding the province liable.

There is authority that obliges a municipality to upgrade the roads as part of their maintenance obligations to keep up with changing conditions. In addition, it has been said that additional construction should be kept reasonably close to current standards and there should be compliance with current standards in regard to matters such as placement of signs where that can be readily accomplished.

The 1996 amendments to the Municipal Act appear to have codified case law in that municipalities are not liable for non-repair of a bridge or highway if it could not reasonably have been expected to know and did not know of its state of repair and it took reasonable steps to prevent the default from arising.

The amendments also allow for the Minister of Transportation to establish by regulation, minimum standards of repair of roads and bridges. Municipalities are not liable for failing to keep a road or bridge in a reasonable state of repair if the Minister has established minimum standards and those standards have been met. The province has enacted Ontario Regulation 104/97 which deals with standards for bridges only. A copy of the regulation is included as Schedule A. The province, by this regulation obliges those involved in the design, evaluation, construction, inspection or rehabilitation to conform to standards set by the Ministry of Transportation in the Ontario Highway Bridge Design Code and in various other of the Ministry’s publications. The regulation contains the important provision that “Every bridge shall be kept safe and in good repair”.

The following have been found to constitute conditions of non-repair where liability has been found:

  • Sewer grade, manhole cover, and railway track projecting above the road surface;
  • Gravel debris spilling onto a roadway from a construction area;
  • Mound of earth or sand and gravel left on the roadway;
  • Stake driven into highway to mark road repairs;
  • Slippery S curve;
  • A hole in the road;
  • Undulating road service with pot holes;
  • A drop of three inches from pavement to shoulder;
  • Obliterated double white lines;
  • Ridges of gravel in the road;
  • Icy, slippery condition of a road with a slope;

In the following cases liability was not imposed:

  • Plainly loose gravel;
  • Small stones on a gravel road;
  • A ridge of gravel and dirt left by a grader;
  • Sand spilled from sand bags used to stabilize traffic stachions;
  • A hole in the road unknown to the municipality;
  • Ruts and depressions in the highway;
  • Icy ruts in the road;
  • A rough patch of ice in the highway;
  • A parked vehicle blocking the view of traffic.21

PRIOR ACCIDENTS AND AFTER THE FACT REPAIRS
The fact that there had been no prior accidents or complaints has been considered in a number of decisions as relevant evidence that no condition of non-repair existed. It is acknowledged that it is not conclusive on the point. Conversely, Madame Justice Eberhard in Brown v. Gravenhurst (Town)22 found that knowledge by the municipality of prior accidents was relevant.

In Brown v. Gravenhurst (Town), Madame Justice Eberhard found the occurrence of numerous accidents at the Dinsmore’s Curve and also at the other end of the S curve similar and relevant. Evidence of the numerous other accidents fell into the category of similar fact evidence. Notwithstanding that the prior accidents did not all occur at the same curve or even at the same point in the subject curve, the accidents were similar in that the learned trial judge found that the accidents occurred not as a result of the curve in the road but as a result of the road’s surface.

Moreover, the learned trial judge found that there were complaints which constituted actual notice to the district over several years prior to the accident and that the complaints protocol “was a haphazard, ineffective illusion”. The complaints were often not brought to the attention of the roads department and if they were the response was so compartmentalized as to ensure that information gathered would never be assessed cumulatively to determine whether there was a concern for safety.

Further, Her Honour admitted evidence of after the fact repair. While agreeing that in paving the road in question (which was the after the fact repair), there was no acknowledgment of fault, it was considered relevant in that after the new pavement had been installed, there were no subsequent accidents.

“The lack of subsequent accidents cannot be explained as a sudden universal improvement in driving standards, nor have other circumstances of the roadway changed. The new pavement appears to demonstrate that in an appropriate surface, this road can be driven in safety. That provides some evidence of what was unsafe about the roadway previously”.

SALTING AND SANDING
Liability in salting and sanding cases falls to be decided upon the statutory obligation to keep highways in a state of good repair.

Several recent decisions have imposed liability against the province for deficient salting and sanding activities.

The leading authority is that of Millette v. Cote(also cited as Ontario v. Cote).

In Millette, Mr. Justice Dickson noted the following:

“Imposition of some measure of liability upon the Minister of Highways does not import recognition of any general duty to salt or sand highways, failure in the discharge of which would expose the Minister to civil claims. Recovery against the Minister in this case rests upon narrower ground, characterized by Aylesworth J. A. in the Court of Appeal as:

… a highly special dangerous situation at a certain location in the highway which otherwise, to persons reasonably using the same, was quite passable and useable for traffic”.

In McAlpine v. Mahovlich, the Court of Appeal reaffirmed a principle that had been formulated years earlier, that a highway may be found to be in a state of non-repair when a condition existed that could be remedied by applying sand or salt. The Court as well reaffirmed that it was a question of fact in each case whether a condition of non-repair existed. The Court stressed that in order for there to be a condition of non-repair, “a highly special, dangerous situation [must be found to exist] at a certain location of the highway which otherwise two persons reasonably using the same would be quite passable and useable for traffic”.

In Gould v. County of Perth (supra), Mr. Justice Southy in referring to earlier decisions including Ontario v. Cote (supra), noted that it was not intended that there could never be a duty to apply salt or sand on a substantial stretch of highways. This was in reference to earlier quotes which stated that there was no general duty to salt or sand highways. The Court went on to note that “liability will only result where the situation gives rise to an unreasonable risk of harm to users of the highway, and the authority has failed to take reasonable steps to eliminate or reduce the danger within a reasonable time after it became aware, or ought to have become aware of its existence”. The appeal was dismissed by the Court of Appeal.

Liability of the road authority has arguably been widened by the decision of the Ontario Court of Appeal in Montani v. Matthews (supra).

In Montani v. Matthews, the Court of Appeal held that knowledge by the road authority that a particular bridge which had a tendency to ice up, (which fact must have been known to the Ministry) constituted a special and highly dangerous situation which created a risk of serious and imminent harm to motorists. As a result, the failure to take reasonable steps to eliminate or reduce the danger imposed liability on the province.

Of particular importance to Mr. Justice Moldaver, speaking for the majority, were the following facts:

  1. The large number of accidents that had occurred over many years on this bridge due to icy conditions;
  2. The propensity for ice to form on the bridge before forming on the adjacent roadways;
  3. The overall length of the bridge, which made it particularly susceptible to icing over;
  4. The existing atmosphere and weather conditions on the morning in question which were especially conducive to the formation of black ice;
  5. The fact that the bridge was wet for at least 2 1/2 hours to the time of the accident;
  6. The firm and definitive instructions the Ministry gave its sanders to watch for moisture on bridges, especially if the temperature neared the freezing mark, and its instructions to spread sand and salt under these conditions”(at page 267).

Mr. Justice Osborne in dissent concluded that the majority view expressed by Mr. Justice Moldaver “expands the liability for non-repair … in a manner that is inconsistent with the authorities …” Specifically, Mr. Justice Osborne found that the obligation to maintain a bridge in repair was to be judged by the response of the Ministry to black ice having formed. Mr. Justice Moldaver felt that one might consider the knowledge the Ministry had that the bridge had a propensity to ice up as being relevant and as importing responsibility. Thus, it is not simply after the fact repair but rather anticipating the condition that formed the basis of liability.

An appeal to the Supreme Court of Canada was dismissed without reasons on February 27, 1997.

It is suggested that Montani v. Matthews (supra) is a case of great significance. One would expect with the improvement in communications with the advent of electronic communication in the Ministry’s salt and sand camps that the foresight of Ministries to predict and properly respond to anticipated conditions will be a focal point of considerable litigation in future.

In Peddle v. Ontario (supra) the Ministry was found liable for failing to keep a proper lookout during a visual examination to determine that the bridge was icy and for failure thereafter to salt the bridge, deck and its approaches. In addition, the Ministry was negligent in failing to observe a vehicle which had left the roadway by reason of hitting the ice and entered a ditch which by implication at least, the court felt would have alerted the Ministry to the icy conditions of the roadway.

In Roberts v. Morana (supra), the plaintiff was seriously injured when involved in a motor vehicle accident on a provincial highway. The patrolman for the district at the time of the accident testified that it was his usual practice on arrival to phone Pearson Airport for a forecast, to review the diary notes of the patrolman who was on duty earlier and to look at the records showing salt application made during the previous shift.

In addition, there was a sophisticated computerized weather information service known as R.W.I.S. which was installed at the patrol headquarters. That system provided updated weather forecasts and used a television monitor which showed road and weather conditions in southern Ontario.

Mr. Justice O’Brien concluded that the patrolman either obtained the available weather information (presumably from Pearson Airport and R.W.I.S.) or “should have done so” during the period that the patrolman was at the patrol headquarters before starting his patrol outdoors.

In cross-examination, the patrolman testified that he was “skeptical” of weather forecasts and the size of a forecast storm and it made no difference to how he would treat it. The evidence indicated that the severe and widespread freezing ice storm had been accurately forecast and there were a number of weather warnings specifically related to it.

Notwithstanding the advance weather forecasts, the court concluded that the icy road conditions were allowed to exist for at least 1 1/2 hours prior to the accident. The court found that there was in existence a “special and highly dangerous situation creating a serious risk of harm to motorists” within the test referred to earlier by reason of the following three facts:

  1. Icy road conditions were allowed to exist for at least 1 1/2 hours prior to the accident;
  2. There was a freezing ice storm;
  3. The storm was accurately predicted.

Further, the defence in Roberts v. Morana argued that the decision to limit the use of salt with respect to frequency and quantity necessary to remove ice was a classic policy decision relating to environmental concerns and financial resources and as such was a policy decision not subject to review.

The only evidence called with respect to policy issues was the evidence of the head of maintenance operations for the Ministry of Transportation. The witness testified that there were policy considerations relating to environmental concerns about potential wasted effort and cost in unnecessary salt application and also complaints concerning pollution and damage to vegetation.

The court without giving reasons concluded that the evidence did not involve the classic policy considerations relating to financial, social or political factors or constraints and rejected the “policy” defence argument. Whereas the province would before have escaped liability for not purchasing expensive computerized weather forecasting equipment on the basis of the policy argument, it appears now open to negligence claims in not using it properly.

SUMMARY
Cases against the province and municipal road authorities are risky. The policy defence, if successful, provides an absolute defence. However, the cases of Just and Montani appear to widen the scope of liability. A critical analysis of one’s chances of success must be undertaken during the various stages of the litigation to ensure the action is capable of success.
Samples of Statements of Claim in road repair against the province and a municipality are attached are Schedules B, C and D.

Footnotes

  • Municipal Act, R.S.O. 1990, Chap. M-45, Section 284(5)
  • Municipal Act, R.S.O. 1990, Chap. M-45, Section 284(6)
  • Peixerio v. Haberman [1997] S.C.J. No. 31
  • See the cases cited in T.R.O.M.L., supra, at para. 11,240
  • Municipal Act, R.S.O. 1990, Chap. M-45, Section 284(2)
  • Public Transportation and Highway Improvement Act, R.S.O. 1990, Chap. P. 50, Section 33(4)
  • Public Transportation and Highway Improvement Act, R.S.O. 1990, Chap. P. 50, Section 33(7)
  • Courts of Justice Act, R.S.O. 1990, C. 43 as amended, Section 108(2)12
  • Public Transportation and Highway Improvement Act, R.S.O. 1990, Chap. P.50, Section 33(9)
  • Kamloops (City) v. Nelson (1984) D.L.R. (4th) 641 (S.C.C.) Just v. The Queen in Right of British Columbia (1989) 64 D.L.R. (4th) 689 (S.C.C.)
    Swinamer v. The Attorney General of Nova Scotia (1994) 112 D.L.R. (4th) 18 (S.C.C.)
    Brown v. The Queen in Right of British Columbia (1994) 112 D.L.R. (4th) 1 (S.C.C.)
  • Anns v. Merton [1978] A.C. 728 (H.L.)
  • Negligence Claims Against Public Authorities (1994) 16 Adv. Q. 57
  • Brown v. The Queen in Right of British Columbia, 10 C.C.L.T. (2d) 188 (B.C.C.A.) at pg. 196
  • Swanson Estate v. Canada (1991) 80 D.L.R. (4th) 741 (F.C.A.)
  • Foley v. East Flamboro (Township) (1898) 29 O.R. 139 (Div. Ct.)
  • Fafard v. Quebec (City) (1917) 39 D.L.R. 717 (S.C.C.)
  • Berezowski v. Edmonton (City) [1996] 6 W.W.R. 660 (Alta. Ca.)
  • Gould v. Perth (County) (1983) 42 O.R. (2d) 548 (H.C.)
  • Whittle v. Ontario (1995) 24 O.R. (3d) 394
  • See cases cited in T.R.O.M.L., supra, at para. 2,520
  • See cases cited in T.R.O.M.L., supra, at para. 2,720 and 2,740
  • Brown v. Gravenhurst (Town) (1995) 26 M.P.L.R. (2d) 102 (Ontario Court (General Division))
  • Montani v. Matthews (1996) 29 O.R. (3d) 257 (C.A.)
    Peddle v. Ontario (1997) unreported (Ont. Ct. (Gen. Div.))
    Roberts v. Morana (1997) unreported (Ont. Ct. (Gen. Div.))
  • Millette v. Cote (also cited as Ontario v. Cote) [1976] 1 S.C.R. 595
  • McAlpine v. Mahovlich (1979) 9 C.C.L.T. 241 (Ont.C.A.)

About the Authors

James L. Vigmond

Jim Vigmond was called to the Bar in 1983, and is a graduate of the University of Western Ontario and Queen’s University Law School. At Oatley Vigmond, Jim leads a team of lawyers and support staff...

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Brian M. Cameron

Brian Cameron completed his LLB at Western University and was called to the bar in 2001. He joined Oatley Vigmond in 1999 and became a partner in 2008. Brian represents people who have sustained...

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