Although it has been late in coming to Southern Ontario this year, winter weather is finally upon us.
As municipalities scramble to keep roads safe for winter driving conditions, they would do well to note the recent Ontario Court of Appeal decision of Giuliani v The Regional Municipality of Halton and the Town of Milton 2011 ONCA 812 [Giuliani].
Giuliani clarifies the circumstances under which municipalities may rely on the defences to liability set out in the Minimum Maintenance Standards for Municipal Highways (MMS) under the Municipal Act, 2001 when defending road authority cases.
With Giuliani, the Court of Appeal has adopted a strict construction of the MMS, and has narrowed the scope of defences available to municipalities under section 44(3)(c) of the Act.
The likely effect of the case will be to make it harder for municipalities to defend against road authority cases.
Background
On a snowy morning in April 2003, the plaintiff suffered catastrophic injuries when she lost control of her vehicle and collided with a vehicle in the oncoming lane.
She commenced an action claiming that the defendant road authorities had failed to keep the road in a condition that was reasonable in the circumstances.
The trial judge found that the defendants did not take reasonable steps to maintain the road by monitoring the weather or inspecting the roadway, and found them liable. He further concluded that the MMS under O. Reg. 239/02, did not apply and did not afford the defendants with a defence. He deemed the plaintiff 50% contributorily negligent for driving too fast and awarded her $375,000 in damages.
The defendants appealed, claiming that the trial judge had erred by finding that a defence under the MMS did not apply.
Section 44 of the Municipal Act, 2001
Section 44(1) of the Municipal Act, 2001 requires municipalities to maintain roadways in a reasonable state of repair. Section 44(2) creates legal liability where municipalities fail to meet the standard under subsection (1).
Section 44(3) sets out three defences to a municipality’s liability:
a. When the municipality did not know or could not 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, the minimum standards established under the regulations to the Act applied to the highway in question and to the alleged default and those standards have been met.
The subparagraphs under subsection 3 are disjunctive, and will be satisfied if any one of the three criteria is met.
A municipality is not liable for negligently failing to maintain a highway if it complied with the minimum standards that applied to its failure.
Minimum Maintenance Standards for Municipal Highways
The minimum standards referred to in section 44(3)(c) of the Act, are embodied in the MMS. Originally set out in O. Reg 239/02, the MMS were amended by O. Reg 23/10. In Giuliani, O. Reg. 239/02 applied.
Section 4 of the MMS sets out minimum standards for clearing accumulated snow after it reaches a specified depth. Section 4 establishes for different classes of roadway the depth at which the MMS are triggered, and time frames within which a municipality must a) deploy snow removal resources, and b) clear accumulated snow.
Section 5 of the MMS establishes similar standards for icy roadways regarding the deployment of municipal resources and the treatment of roadway surfaces.
The Appeal
The trial judge made finding with regards to both section 4 and 5 of the MMS; however, the appeal dealt specifically with the trial judge’s finding regarding section 5.
The Court of Appeal held that the standards under section 5 of the MMS are directed at situations when the roadway has become icy, not before, and that the requirement to deploy resources and treat the roadway is only triggered by the municipality’s knowledge that the roadway is icy, and not by knowledge that it may or will become icy.
In Giuliani, the trial judge did not find the defendants for failing to treat the roadway after becoming aware that it was icy. Rather, the trial judge’s finding of liability was directed at the failure of the defendants to take reasonable steps to avoid the formation of ice before it became icy by monitoring the weather and deploying resources much earlier so as to avoid the formation of ice. Accordingly, section 5 did not apply, and the requirement under section 44(3)(c) of the Act that the MMS apply to both the highway where the accident occurred and to the alleged default was not met, with the result that the defence under the MMS did not apply.
The appeal was dismissed.
