Municipalities must keep their roads safe. This duty is imposed by Ontario’s Municipal Act, which requires that roads be kept in a state of repair that is “reasonable in the circumstances”.[1] Last year the courts gave us three reminders about how broadly this duty applies:
1. Keeping a road in “repair” includes clearing winter hazards
In Lloyd v. Bush, a municipality was held liable for a car accident because it delayed in clearing snow and ice after a winter snowstorm. The overnight storm had covered the municipality’s roads in snow. Snowplows set to work in the early morning but had not salted, sanded or plowed a known accident “hot spot” when two cars collided there, seriously injuring one of the drivers.
The court cautioned that drivers cannot expect municipalities to keep roads free and clear of snow and ice at all times. Failing to salt or sand roads is not always negligent. However, because the municipality knew that the storm made it particularly hazardous at the site of the accident and failed to respond in a timely manner, it had breached its duty. The court held the municipality 50% liable for the driver’s injuries.
2. The duty is owed to all “ordinary drivers”
Municipalities must be vigilant against hazards to any ordinary, reasonably careful driver – not just drivers of four-wheeled vehicles. This is one lesson from Miles v. Corporation of the County of Elgin et al, a case concerning a personal injury claim by a motorcyclist. The motorcyclist had lost control when road crews directed her to drive onto a freshly resurfaced lane. The resurfacing had created a height difference between the lanes, and her front tire was unable to mount the lip of the new lane, causing her to fall and suffer serious injuries.
The court found that although the lip was harmless to cars or trucks, it was dangerous to motorcyclists. The duty to keep the road in a reasonable state of repair required the municipality to at least place signs warning about the hazard. Having failed to do so, the municipality was held 50% responsible for the motorcyclist’s injuries.
3. The duty applies beyond drivers
Where a municipality breaches the duty, it may be liable to “any person” who is injured as a result.[2] On this basis courts have compensated pedestrians injured while walking on unsafe roads. But does “any person” include homeowners whose foundations have cracked because of traffic on municipal roads? According to the Court of Appeal in Beniuk v. Leamington (Municipality): Maybe.
Homeowners in Leamington suspected that vibrations from truck traffic on a gravel road had cracked their foundations. Their engineers found some evidence supporting this. They sued the municipality for damages resulting from its alleged breach of this duty. The municipality argued that even if the cracking were caused by traffic – which it denied – the duty to repair roads is only owed to people using a road – not people owning property beside it. The Superior Court accepted this argument and would have dismissed the claim on this basis, but the Court of Appeal was not so sure. It noted that the broad language of “any person” supported the homeowners’ position, but that there were earlier court decisions supporting the municipality’s. Given this, the Court declined to decide the issue, concluding that it should only be decided after a full trial.
Until the courts resolve this issue, municipalities would be wise to consider off-road impacts when considering if repairs are necessary.
If you have any questions about your obligations under the Act, our Municipal Team would be pleased to assist you.
[1] Section 44(1) of the Municipal Act, 2001, S.O. 2001, c. 25
[2] Section 44(2) of the Municipal Act.
