In the recent decision of Justice Mossip, Mark v. Corporation (City of Guelph), 2012 ONSC 3510 involving local counsel Gary Petker for the Plaintiff, Nathan Mark, and James Bennett for the Defendants: the City of Guelph and the County of Wellington, the Defendant municipalities were found to be 100% liable for the nearly $2,000,000.00 in damages arising out of a motor vehicle collision. The City of Guelph was found to be equally liable even though it contracted its responsibilities for the winter road maintenance to Wellington County.

The Plaintiff was travelling southbound on Gordon Street and Lewis Sutter was driving northbound. The Plaintiff’s vehicle crossed the centre line into the northbound lane and the two cars collided head-on.

The snow plough operator had passed through the area laying down some salt mixture 6 hours or so before the accident.

The action against Lewis was dismissed on consent.

The accident occurred within the municipal limits of the City of Guelph and, as such, it was the responsibility of Guelph to maintain the roads pursuant to the Municipal Act, 2001. The City of Guelph and the County of Wellington Road Departments had an understanding that Wellington County would maintain that part of Gordon Street located within Guelph. By that understanding, Wellington assumed the maintenance responsibilities for the accident location, although it was located within the boundaries of Guelph.

The Plaintiff suffered catastrophic injuries as a result of the crash.

Justice Mossip had to decide whether Guelph and Wellington are liable to pay the agreed damages and, if so, is the Plaintiff contributorily negligent.

Justice Mossip stated the tort law duty of care applies to government authorities in the same way as it does to individuals unless exempted by statute or situations involving policy decisions which would negate the duty of care. Section 44(1) of the Municipal Act (“Act”) provides that the municipality having jurisdiction over a highway shall keep it in a state of repair that is reasonable in the circumstances and the state of repair also applies to winter road maintenance of highways. Subject to the issue of contributorily negligence as set out in the Negligence Act, if a municipality defaults in its duty it is liable for all damages any person sustains because of the default.

Furthermore, if an employee of a municipality authorized to carry out its duty defaults, the municipality is liable for the default of that employee. The Act also provides for situations in which the city is not liable for failing to keep a highway in a reasonable state of repair and these situations are set out in subsections 44(3) a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

  1. it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
  2. it took reasonable steps to prevent the default from arising; or
  3. 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.

The Court had to consider whether the Minimum Maintenance Standards/Ont. Reg. 239/02 (“MMS”) provided a defence at all in this case.

Were the road conditions on Gordon Street on February 5, 2003 in a reasonable state of repair and, if not, did the state of non-repair cause the accident and any injuries to the Plaintiff? If those two questions were answered in the affirmative, Wellington must then show that it took reasonable steps within a reasonable time to reduce the risk to the public; however, not to a standard of perfection.

There was no legal dispute that Guelph and Wellington would be equally liable if the duty of care was not met, notwithstanding that Guelph delegated to Wellington the maintenance of Gordon Street where the accident occurred.

There was ample testimony as to the icy road conditions. The witnesses all testified that the roads were like an ice rink. One of the police officers recalled what stood out for him was the thickness of the ice and that there was a significant change in the condition of Gordon Street south of Clair Road and near the accident scene.

No charges were laid against either of the drivers because of the weather and road conditions.

A traffic sergeant with the City of Guelph recalled there was thick ice and the roads were “treacherous” at the collision scene.

Both sides of the dispute tendered experts on winter road maintenance and operations; some opined that Wellington met or exceeded the requirements of the MMS and others stated that the municipality did not.

Justice Mossip relied on Thornhill (Litigation Guardian of) v. Shadid [2008] O.J. No. 372 (S.C.J.) and stated the jurisprudence is that the duty of care resting on the province or its municipality towards its road system consists of protecting users of the highway from unreasonable risks of harm to them. The highway authority is not an insurer. The duty of care applies to operational decisions. The liability will result to where the highway authority has failed to take reasonable steps to eliminate or effectively reduce a condition of risk (a state of non-repair) within a reasonable time after it became aware or ought to have become aware of its existence.

Justice Mossip stated there is no general duty on that authority to salt or sand highways. In other words, the failure to sand or salt will not in itself be a sufficient ground for imposing liability; it is a question of fact in each case whether a condition of non repair exists and, if so, whether the highway authority’s response is reasonable, timely and reasonably executed.

The Judge in Thornhill stated that the Municipal Act has basically subsumed the common law tort principles of duty of care, standard of care and causation where a claim emanates from the condition of a highway or street in the municipal jurisdiction and control. It was further found the MMS are not an all-inclusive document and that they do not cover all situations.

Justice Mossip also cited the Ontario Court of Appeal in Guiliani v. Halton (Regional Municipality), [2011] O.J. No. 5845 (C.A.). In that case, the MMS did not even apply as the Court found they were intended to create a minimum standard for treating a highway after becoming aware that the road is icy. The MMS were directed at the situation when the roadway had already become icy, not before. The MMS does not address a municipality’s response to conditions that had not yet become icy.

In that decision, the municipality failed to take reasonable steps to avoid the ice forming in the first place and failed to monitor the weather and to have deployed resources much earlier than what is done to avoid the formation of ice.

Mossip J. found that the icy road was the sole cause of the motor vehicle accident and that Gordon Street was not treated in a reasonable manner or in a manner which protected the public from harm. The operator of the plough created the icy road by using some salt mixture which melted the ice/snow but was allowed to re-freeze due to the extreme cold and the passage of time, and then failed to treat that ice within a reasonable time. In these situations Justice Mossip found that the MMS cannot be used to shield the Defendants.

The plough driver was found to have fallen well below the standard of care in carrying out his duties as a snow plough operator and therefore the Defendants were liable for that default.

Mossip J. stated the MMS do not deal with a situation where the municipality has caused a non-icy road to become icy and then not treat that road properly. Therefore, Justice Mossip was satisfied that the MMS did not apply on the facts of the case and the Defendants were not protected by section 44(3) of the Municipal Act.

It is important to note that even though the MMS did not apply to the circumstances of the case, that did not leave those circumstances unregulated. Mossip J. found that a municipality must still take steps to keep the highway in a reasonable state of repair having regard to all the circumstances pursuant to section 44(1) of the Municipal Act.

In addition, Mossip J. found that even though the Plaintiff crossed the centre line prior to impact, he rebutted the presumption of his own negligence.

This case, and the others that preceded it, should serve as a stark reminder to all municipalities and their insurers that adherence to the MMS might not be enough in that the MMS may not even apply in certain circumstances and that a municipality cannot simply delegate its responsibilities to another municipality and shield itself from all liability.