In 2020, the Ontario Superior Court of Justice released its decision following the third trial in Lloyd v Bush.1 The case arose out of a motor vehicle accident that occurred in 2001 when Leslie Lloyd's small vehicle collided with a Freightliner propane tanker operated by David Bush. The collision occurred at Rankins Corners, an S-curve in the road near the town of Napanee, Ontario.
As a result of the accident, Ms. Lloyd sustained serious injuries. She sued not only the operator and owner of the propane tanker but also named the Corporation of the County of Lennox and Addington and the Corporation of the Town of Greater Napanee as defendants to her claim. At issue in the third trial was the question of liability: how much liability, if any, should be attributed to the municipal defendants for the poor road conditions? And would the municipalities' efforts to meet the minimum maintenance standards absolve them of liability?
Municipal Roadways must be kept in a Reasonable State of Repair
Section 44(1) of the Municipal Act states that “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 Further, section 44(3) of the Act creates a defence for municipalities; it states that the municipality will not be liable for failing to keep the roadway in a reasonable state of repair if any of the following three circumstances are proved:
- it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
- it took reasonable steps to prevent the default from arising; or
- 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.
Of particular significance for the municipal defendants to this action was the defence under 44(3)(c), as they tried to prove that they had met the minimum maintenance standards, negating their liability.
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Decision: Why the road was deemed to be in a state of non-repair, and why the minimum standards were not met.
Justice Mew found that the road conditions at the time of the accident were hazardous and presented an unreasonable risk of harm to prudent road users. He cited the following facts in his reasons for finding that Rankins Corners was in a state of non-repair when the accident occurred:
- The accident occurred at a “hot spot” which was known to be hazardous in winter conditions.
- A specific concern about the condition of the road had been expressed by a Road Supervisor just 4.5 hours before the accident occurred. He felt that the road needed immediate attention.
- Despite the Road Supervisor's concern, it could not be said with confidence that the issue had been adequately responded to before the accident occurred.
- It was the evidence of some of the witnesses that shortly after the accident, conditions were slippery and there was no evidence of winter maintenance operations, including plowing, salting, or sanding.
- A witness testified that on his arrival at the scene less than 30 minutes after the accident he saw no evidence of salt, or sand application.
- The attending police officer saw no indication that the road had been plowed, sanded, or salted.
Despite several municipal witnesses' testimony that Rankins Corners was plowed, salted and sanded on the morning in question, Justice Mew concluded that the municipal defendants did not meet the burden of proving that the minimum maintenance standards had been met that day. Of particular detriment to the municipal defendants was the lack of adequate record-keeping by their employees to prove that the road was maintained as their witnesses testified.
The municipal defendants were ultimately attributed fifty percent liability for the accident for permitting the road to exist in a state of disrepair. However, even if they had proved they met the minimum maintenance standards, Ontario case law suggests that this will not absolve a municipal defendant of liability in every circumstance – despite what the Municipal Act suggests on its face.
Meeting the Minimum Maintenance Standards Not a Complete Defence
...this alone will not always absolve a municipality of liability. |
Even if the municipal defendants in Lloyd v. Bush had met the minimum maintenance standards, this alone will not always absolve a municipality of liability. In Giuliani v Halton (Regional Municipality)3 the Region of Halton successfully proved that it met the minimum maintenance standards for the Class 2 highway in question. The standards dictate that snow accumulation on a Class 2 roadway must not reach 5 centimeters. The roadway in question had only 2 centimeters of snow accumulated when the plaintiff was injured, and patrol frequency standards had also been met. Therefore, at first blush section 44(3)(c) applied to absolve the Region of Halton of liability.
However, the Ontario Superior Court and the Ontario Court of Appeal disagreed that section 44(3)(c) offered the defendants a complete defence. Justice Murray opined that despite meeting the minimum maintenance standards, the Region of Halton was still fifty percent liable for the plaintiff's injuries because it failed to salt the road in time to prevent icy conditions from developing, which resulted in a state of non-repair. Justice Murray highlighted that although there is no general duty for a municipality to salt or sand its roads (and therefore, failure to salt a roadway will not automatically amount to a breach of the minimum standards), if failing to apply salt results in a condition of non-repair, liability may still be attributed.
The Ontario Courts have made it clear that meeting the minimum maintenance standards is not an absolute defence. Municipalities should treat the minimum maintenance standards with caution, keep diligent records of road maintenance efforts, and keep in mind that meeting the minimum standards will not protect them in every situation, particularly in situations where ice accumulation occurs.
- Lloyd v. Bush, 2020 ONSC 842 (CanLII)
- Municipal Act, 2001, SO 2001, c 25
- Giuliani v Halton (Regional Municipality), 2010 ONSC 4630; Giuliani v Halton (Regional Municipality), 2011 ONCA 812.
