Application of the Minimum Maintenance Standards to Winter Road Maintenance
In a recent judgment from Justice Mossip of the Ontario Superior Court of Justice, the Ontario Minimum Maintenance Standards (“MMS”) were found inapplicable in favour of a common law reasonableness standard of care for road maintenance. At issue was a winter motor vehicle accident on an icy road in Guelph. This decision is the newest in a growing line of cases that find the MMS more limited in scope than municipalities have argued.
The full decision is available here.
Early on the snowy morning of February 5, 2003 the Plaintiff was driving southbound on Gordon Street in Guelph. Losing control of his vehicle, he veered across the yellow line into a second car. The suit alleged that it was the municipality’s negligence that allowed snow and ice to build up on the road and thus cause the accident. The municipality had treated the roadway that morning, at 12:30 a.m., with a mixture of half sand and half salt. The northbound lanes of the roadway had been spot treated with a sand and salt mixture at 6:15 a.m., prior to the accident. There were no reports of icy conditions at the location prior to the accident.
In support of his claim, the Plaintiff called several lay and expert witnesses. The lay witnesses testified to the icy conditions. These included police officers and paramedics who attended the scene, and two firefighters who testified that the southbound road was so slippery their truck was unable to stop and skidded past the accident. The experts noted that the mixture spread over the road that morning, half sand and half salt, was not appropriate for the cold, windy conditions. Furthermore, they said the ice was likely created by the salt as it melted the ground snow only to attract blowing snow and create “brine” that froze into ice.
The defence witnesses testified about the municipality’s snow clearing practices, and with respect to the appropriateness of the half-andhalf mixture, defence experts testified that though brine could form, proper re-application would ensure this did not happen. The plough driver in charge of Gordon Street testified he did not re-apply the mixture to the southbound lane in the six hours prior to the accident.
The Legal Analysis
The Court found that icy roads were the sole cause of the accident, and there was no contributory negligence on the part of the plaintiff. Therefore, this case turned on the question of the appropriate standard of care for the municipality’s treatment of winter conditions.
The Court held that the standard to be met was as prescribed by s. 44(1) of the Municipal Act, 2001 which states roads are to be kept in “a state of repair that is reasonable in the circumstances.” Therefore, according to the Court, the only question to be determined was whether the roadway was in a reasonable state of repair at the time of the accident.
The municipality argued that compliance with the MMS “shielded” the municipality from liability. In response to that position, the Court cited the Ontario Court of Appeal’s decision in Giuliani v. Halton (Regional Municipality), 2011 ONCA 812 for the proposition that the MMS can only provide a defence to a municipality if they apply to the situation in question. Otherwise, a common law standard of reasonableness would apply instead.
The Court then examined the MMS and noted that, while s. 5 contained standards for “treating icy roadways”, they did not apply to a situation where “the municipality has caused a non-icy road to become icy […] and not treated that road properly.”1 This, he found, was exactly what had happened in the case at bar – the plough operator’s failure to use a proper mixture of sand and salt allowed the snow to melt and refreeze into ice. That error was then compounded by the operator’s failure to re-treat the roads after the ice had initially formed, allowing the refreeze to worsen and persist through the time of the accident. The Court emphasized the importance of this second failure, noting the single act of improperly treating the road would not necessarily constitute negligence by itself. It was the failure to return in a timely manner, an act even the defence experts deemed necessary, that brought the driver and the municipality below the reasonableness standard.
The Court found the municipality liable for the entirety of the Plaintiff’s injuries.
Conclusions & Future Implications
The added level of comfort initially thought to be provided to a municipality by following the MMS now seems less certain. This decision seems to further limit the MMS beyond that which has resulted from other recent Court decisions considering the MMS, including Guiliani.
In this action, the failure to re-apply sand and salt after six hours was found unreasonable despite compliance with the MMS. Whether other conduct might be found unreasonable in the future is unknown. This uncertainty will very likely continue to grow, as Courts continue to find ways to limit the application of the MMS in favour of awarding damages to drivers encountering winter conditions on our roadways.