This past summer, the Ontario Court of Appeal released contradictory decisions in Smith v Safranyos 2018 ONCA 760 (“Safranyos”), and Chiocchio v Hamilton (City), 2018 ONCA 762 (“Chiocchio”). The cases address a municipality’s standard of care for keeping a road in a reasonable state of repair. They involve similar facts, similar arguments, but reach opposite conclusions. The decisions were released on the same day, but heard separately.
The decisions cannot be reconciled. Chiocchio is more in line with established case law and the standard of care. Safranyos is more problematic. Future cases will need to side one way, or the other.
1.0 The Standard of Care
The standard of care required of a municipality is to prevent or remedy conditions on its roads which create an unreasonable risk of harm for ordinary drivers, defined as drivers who use reasonable care, who are not perfect and who sometimes make mistakes.
The implication is that a municipality does not owe a duty of care to negligent drivers.
2.0 The Facts
In Safranyos and Chiocchio, the respective drivers stopped at a stop sign before an intersection, drove through the intersection, and collided with another car that had the right of way in the perpendicular lane. In both cases, the driver did not have a clear sightline of oncoming traffic when stopped at the stop sign, and neither stopped again before entering the intersection.
The issue was whether the City of Hamilton was negligent for not painting a faded stop line on the asphalt right before the intersection.
3.0 The Appeal Arguments
Hamilton made the same argument in both appeals. It lost in Safranyos and won in Chiocchio. Hamilton argued that the lack of a painted stop line did not create an unreasonable risk of harm because a reasonable driver is required by the Highway Traffic Act, whether or not there is a painted stop line, to stop before proceeding into the intersection to make sure he or she has a clear sightline in both directions.
4.0 The Appeal Decisions
In Safranyos, the court found the road circumstances, taken together—a blind-spot caused by a guardrail, a change in elevation, and the absence of a stop line at an intersection—posed an unreasonable hazard for ordinary drivers, and so found the road in a state of non-repair, which was sufficient to find Hamilton liable. The defendant’s negligent driving was not a factor in determining Hamilton’s liability.
In Chiocchio, however, the court reached the opposite conclusion, and determined Hamilton’s liability in light of the defendant’s negligent driving. The lack of a stop line was not an unreasonable risk to ordinary drivers because reasonable drivers are expected to stop and ensure they have a clear sightline in both directions before proceeding:
Ordinary reasonable drivers would not stop their cars in a location where their view of oncoming traffic from one direction would be completely obscured and then proceed into the intersection without stopping again. They would know to come closer to the intersection before stopping initially or before stopping again, in order to have a clear view of traffic from both directions. (para 19)
5.0 Reconciling the Contradictions
The easy way to reconcile the decisions is to say they are fact-specific analyses. But there is something deeper going on. Safranyos goes against the settled law that a municipality does not owe a duty of care to negligent drivers.
In Fordham v Dutton-Dunwich (Municipality), 2014 ONCA 891 (“Fordham”), the ONCA held that a finding of liability against a negligent driver cannot be reconciled with a finding of negligence against a municipality for non-repair because the municipality has no duty to take steps unnecessary for reasonable drivers.
In Safranyos, however, the ONCA held that a finding of negligence against a defendant driver involved in a motor vehicle accident did not matter to Hamilton’s non-repair liability. The driver’s negligence only mattered in apportioning liability. What mattered, with respect to Hamilton’s liability, was whether the purported non-repair was an unreasonable risk to ordinary drivers.
In Fordham, if the driver is negligent the municipality is not (cannot) be, because the municipality does not owe a duty to a negligent driver. In Safranyos, the driver’s negligence and the municipality’s negligence are two separate issues. The driver’s negligence does not matter in determining whether the municipality was also negligent, because what matters is whether the road was reasonably safe for an ordinary driver generally, regardless of the specific defendant’s negligence
This dictum misses the causation analysis. The road in question cannot just be in a state of non-repair generally for the municipality to be liable in a particular case. The non-repair must be a cause of the accident. Although the decision states that the non-repair must be a “but for” cause, it does not fully engage in that analysis. Take, for example, paragraph 44:
Given the trial judge’s conclusion that the conditions said to constitute non-repair posed an unreasonable risk to ordinary drivers, whether Ms. Safranyos met the standards of the ordinary driver using reasonable care was immaterial on the question of non-repair. She did not have to satisfy the standard of an ordinary driver using reasonable care for Hamilton to be liable so long as its non-repair was a “but for” cause of the accident, and posed an unreasonable safety risk to drivers who exercised reasonable care.
The court accepted the trial judge’s finding that non-repair was a “but for” cause of the accident because, despite Ms. Safranyos’s negligence in proceeding through the intersection without stopping, had there been a stop line she would have stopped. This analysis has troubling implications. It puts the onus on a municipality to keep drivers from being negligent rather than holding the negligent driver accountable for his or her actions.
Additionally, whether a municipality is liable for non-repair is, by definition, relative to whether the driver involved in the accident was driving reasonably. The two, as Fordham points out, are intertwined. They are not separate analyses, like Safranyos suggests.
No doubt, the courts will clear up this confusion in the years to come. Chiocchio keeps in the spirit of previous jurisprudence, like Fordham, and is a more correct application of the standard of care. Chiocchio keeps in mind that a municipality does not owe a duty of care to a negligent driver. Whether the courts will side with Safranyos or Chiocchio will make all the difference.