A municipality will only be liable for failing to salt and clear road of snow where it had actual or constructive knowledge that road conditions create unreasonable risk of harm to users of a highway, and where the municipality unreasonably neglected that risk. Furthermore, in determining the proper reasonable response, municipalities should not be limited in their response by the minimum maintenance standards. Municipalities should consider the circumstances and determine if the condition of the road poses an unreasonable risk of harm to reasonable drivers. Whether municipality’s actions are reasonable or not depends in part on resources that were available to the municipality.
Released March 28, 2017 | Full decision [CanLII]
On January 3, 2003, the respondent, Leslie Lloyd, was driving and entered an “S-curve” portion of Country Road #9 on the way to Napanee, known as “Rankins Corners”. Entering Rankins Corners from the other direction was a commercial tank propane truck driven by David Bush. Leslie’s vehicle collided with the propane truck. Leslie was severely and permanently injured.
The appellants, the County of Lennox and Addington (the “County”) and The Corporation of the Town of Greater Napanee (the “Town”) appeal the judgment finding them liable to the respondents for damages arising from the accident. The County is the owner of Country Road #9 and the Town was responsible for its winter maintenance. The primary ground of appeal is that the trial judge erred in his finding of liability and, specifically, in his interpretation and application of the municipal defendants’ duty under the Municipal Act, 2001. Allegations of apparent bias on the part of the trial judge were also under appeal.
The appeal was allowed in part.
The Court of Appeal found that the trial judge did err in his analysis and application of the test for determining the Town’s liability pursuant to s. 44 of the Municipal Act, 2001. Section 44 of the Municipal Act, 2001 sets out the duty of a municipality with respect to road maintenance. In Fordham v. Dutton Dunwich, (Municipality), 2014 ONCA 891, [2014] 327 O.A.C. 302, Laskin J.A. set out the four-step test to be applied when a claim is made against a municipality for non-repair:
- Non-Repair: The plaintiff must prove the existence of a condition of non-repair, that is, a road-based hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road, with a view to the circumstances including the “character and location” of the road.
- Causation: The plaintiff must prove that the condition of non-repair caused the loss in question.
- Statutory Defences: If the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality. The municipality then bears the onus of proving that one of the three independently sufficient defences in s. 44(3) applies. These defences include proof that the municipality took reasonable steps to prevent the default from arising (s. 44(3)(b)).
- Contributory Negligence: If the municipality cannot establish any of the statutory defences, it will be found liable. The municipality can, however, still demonstrate that the plaintiff’s driving caused or contributed to his or her injuries.
In considering these steps, Canadian courts have taken into account the difficult winter conditions that exist and the cost of clearing the roads of snow. The courts have emphasized that a municipality is not to be treated as an insurer of the safety of the users of its roads by imposing overly onerous maintenance obligations. Courts found that the driving public cannot expect municipalities to keep the roads free and clear of snow and ice at all times during the winter. Proof of a state of non-repair is not in itself enough to establish liability. Rather, a municipality will only be liable for failing to salt and/or sand and clear the road of snow where it had actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway, and where the municipality unreasonably neglected that risk.
The Court of Appeal found that the Municipal Act, 2001 does not create a regime of absolute liability. The steps to be taken by a municipality need only be within the range of what is reasonable in the circumstances. When considering whether a road is in a state of non-repair, a court must analyze all of the surrounding circumstances, for instance:
- What is deemed to be a reasonable state of repair will depend on the facts of each case.
- A lower standard will apply with respect to the state of repair on a low-traffic rural roadway than on higher-traffic thoroughfares and highways.The character and population of the area are to be considered as well as the amount of traffic using the road. Rural roadways are by their nature, susceptible to the development of adverse conditions; therefore, drivers have to adjust to these conditions.
- For a road to be in a state of non-repair, it must present a hazard that poses anunreasonable risk of harm to ordinary, non-negligent users of the road in the circumstances.
The Court of Appeal found that the trial judge’s focus ought to have been on the evidence related to the Town’s response to the snow event. A significant factor in assessing the reasonableness of the Town’s response to the snow event is the frequency with which it plowed and applied material to Rankins Corners. The trial judge found that the application of a sand/salt mixture was not an adequate response to the state of non-repair that existed at Rankins Corners that day.
The Court of Appeal indicated that there are several problems with the trial judge’s finding that straight salt ought necessarily to have been applied. Firstly, in an action against a municipality for non-repair of a road, the resources of the municipality and the cost of the proposed measures can be relevant considerations. Whether a municipality’s actions are reasonable or not depends in part on the resources that were available to the municipality. The trial judge’s failure to admit evidence of the financial impact of applying straight salt therefore constitutes reversible error, when viewed in combination with his conclusion that applying straight salt to “one or more” of the Town’s “hot spots” such as Rankins Corners would not have imposed any meaningful financial burden on the Town.
In determining the proper reasonable response to a snow event, municipalities should not be limited in their response by the minimum maintenance standards. Municipalities should consider the circumstances and determine if the condition of the road poses an unreasonable risk of harm to reasonable drivers. The trial judge also rejected the suggestion that the municipality’s duty was necessarily limited to the minimum standards imposed by the province. The Court of Appeal agreed with the trial judge that mere compliance with minimum standards or guidelines is not, in itself, sufficient to avoid liability if there was an obvious deficiency or risk. The overriding question remains: in all of the circumstances, does the condition of the road pose an unreasonable risk of harm to reasonable drivers?
The Court of Appeal held that it is unable to make or substitute findings necessary to resolve the claim, both as to the applicable standard of repair for CR9 in light of all the circumstances and the reasonableness of the Town’s response to the state of non-repair, if indeed such a state of non-repair existed at the time. A third trial was ordered on the issue of liability.
The Court of Appeal further found that there was no reasonable apprehension of bias. The test for reasonable apprehension of bias was summarized by the Supreme Court of Canada in Yukon Francophone School Board, Education Area No. 23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282: What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly? Judges are afforded a strong presumption of impartiality that is not easily displaced. However, as the court noted in Yukon, the presumption of a trial judge’s impartiality can be rebutted by the trial judge’s conduct, particularly by the manner and frequency of his or her interventions.
A review of the trial transcript in this case confirms that the trial judge’s interventions were, on occasion, unduly aggressive and disrupted the flow of the appellants’ cross-examination of the respondents’ witnesses. The trial judge’s choice of words when dealing with the appellants’ counsel was in some cases unnecessarily harsh and he appears to have subjected factual challenges made by the appellants to greater scrutiny than those advanced by the respondents. This is certainly unfortunate; however, the interventions and comments do not, taken alone or together with the other concerns raised by the appellants, displace the presumption of impartiality.
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