The Summer is over, the kids are back at school and the days are getting colder again. Northern Ontario has seen its first cold nights already. We are moving back to winter temperatures, snow,ice and salt on the roads. This is the time that larger wildlife like deer and moose venture onto the roads to lick salt off the asphalt. It is also the time that vehicles collide with wildlife on the public roads.
In Newfoundland,a class-action lawsuit for people injured in moose-vehicle collisions that was filed against the provincial government has been dismissed by a judge with the Supreme Court of Newfoundland and Labrador. The CBC reported that Judge Robert Stack rendered the decision on Friday morning. The Court heard of 660 moose-vehicle accidents or close calls recorded annually on provincial roadways in recent years. The provincial government was found not liable for moose-vehicle collisions as the Court found no evidence to prove that moose population management or moose-vehicle collision risk mitigation were irrational or done in bad faith. The lawyer, Mr. Ches Crosbie, acting for the class has indicated that he will appeal the decision. Mr. Crosbie and his clients should be commended for making an effort to put pressure on the government to make public safety changes. This claim has raised awareness and forced the government to act.
In Ontario, the matter may have been argued differently. Both the municipal legislation, Municipal Act, section 44(8), and the legislation dealing with public transportation and highways, Public Transportation and Highway Improvement Act, section 33(3), carve out statutory immunity for municipalities and government provided that the injuries were alleged to have been caused by the absence or insufficiency of wall, fencing, guide rail, railing or barrier adjacent to a road or highway.
That being said, this statutory defence seems to have weakened recently. In Grosbeck v. Abram (2014 ONSC 1674 (CanLII)), the Ontario Superior Court of Justice dismissed a municipality’s attempt to strike a plaintiff’s claim based on this statutory defence under section 44(8). The court looked at prior case law on this defence and ultimately held that road design standards for areas adjacent to the road have been developed in the interest of public safety. It was considered not unreasonably foreseeable that drivers would make contact with objects, in this case “an embankment”, in a clear zone of the roadway if they left the travelled portion of the highway. The court held that a “factual matrix” was necessary for a determination regarding the reasonable foreseeability that the public would go into the embankment/ditch located within the clear zone of the highway. Wildlife in the clear zone of a highway might be a foreseeable danger. Ontarians quite reasonably expect their government to take steps to prevent these types of collisions from occurring.
Either way, the best advice for drivers remains the same: drive with caution, look out for wildlife, and reduce your speed.
This blog post was contributed by Roelf Swart, OTLA Blog Committee member and lawyer practicing with Elkin Injury Law in St. Catharines, Ontario.