Pitfalls, Potholes and Falling Concrete: Problems with the Minimum Maintenance Standards

With one of the coldest months on record finally behind us, Ontarians are getting a knack for braving subzero temperatures this winter. Unfortunately, Ontarians will continue to feel the chilling effect of the Minimum Maintenance Standards for Municipal Highways (“MMS”) long after the snow has gone.

Recent news about a large chunk of concrete allegedly falling from the Gardiner Expressway Bridge and smashing into the windshield of an unsuspecting motorist below is yet another reason why municipalities’ standards of care should be reviewed.

According to Section 44(3) of the Municipal Act, a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met”.

As a result, if a municipality is in compliance with those “minimum standards” set out in the MMS under the Municipal Act, the municipality may escape liability.

The MMS sets out standards regarding bridge deck spalling, potholes, ice, snow accumulation, routine patrolling, shoulder drop offs, and weather monitoring to name a few.

The maintenance standards in place are grossly inadequate as they allow for municipalities to avoid liability by simply meeting poor standards and inaccurately deeming roadways to be in “a state of repair”.

For example, with regards to potholes on a “class 2” paved roadway (which can include up to and greater than 15,000 motor vehicles per day), the MMS provides that if the pothole exceeds a surface area of 800 square centimeters and a depth of 8 centimeters, the municipality has 4 days to repair it. Otherwise, the roadway is deemed to be in a state of repair. A lot can happen in 4 days with potholes of that size or even smaller but the MMS doesn’t require anything more.

The same parameters would apply for bridge deck spalls, which are defined as “a cavity left by one or more fragments detaching from the paved surface of the roadway or shoulder of a bridge”.

When it comes to ice formation, the municipality will be required to treat the icy roadways after becoming aware of them within the times set out in the MMS Tables. Class 2 roadways permit the municipalities 4 hours before treating. However, according to the Section 5(4) of the MMS, “[f]or the purposes of this section, treating a roadway means applying material to the roadway, including but not limited to salt, sand or any combination of salt and sand.”  The amounts to be used, the frequency of application, and effectiveness of the material is not addressed.

These are but a few examples of how the drafters of the MMS favour reduced municipal exposure over public safety. Allowing municipalities to escape liability by meeting grossly inadequate minimum standards should not be the current approach. The validity of the MMS should be challenged and any minimum standards imposed should be justified on a scientific and engineering basis. Ontarians deserve nothing less.

 

This blog post was contributed by Lawson Hennick, associate lawyer with Yermus & Associates and the creator of Lawbubble.com

Lawson Hennick
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Lawson is the creator of LawBubble.com, an online blog exploring legal issues, trends, and developments.

He received his Bachelor of Science degree in Biology from York University, and then attended University of Ottawa’s Faculty of Law graduating with a Bachelor of Laws degree in 2009 before being called to the Ontario Bar in 2010.

Lawson articled with a boutique litigation firm where he gained experience in a variety of practice areas including representing Indian Residential School survivors to obtain compensation through the Independent Assessment Process for sexual and physical harms suffered.

Since his call to the bar, Lawson has devoted his legal practice exclusively to the area of personal injury law before joining Yermus & Associates where he regularly acts for clients on injury claims including motor vehicle accidents, slip and falls, product liability and dog bite cases. He regularly appears before the Superior Court of Justice and has also appeared before the Financial Services Commission of Ontario (FSCO).