LIABILITIES OF MUNICIPALITY - Negligence - Types - Property maintenance and operation - Highways

Appeal by the defendant Regional Municipality of Sudbury (Region) from the finding of liability in an action for personal injuries suffered by the respondent in a motor vehicle accident. The respondent lost control of her vehicle, crossed over the centre lane and collided head-on with a northbound school bus. As a result of the accident, she suffered catastrophic personal injuries. The accident took place on a busy regional road. It was a very cold day and the road was snow covered and slippery. The Region had called out salt spreaders early in the morning to deal with the light snow that had been forecasted, and when the forecast changed to indicate greater accumulations of snow, plow operators were called out to assist in snow removal. The salt spreader did not return to the area during its usual two-hour return period due to equipment failure. The trial judge found the Region 100 per cent liable for the damages claimed. He accepted the respondents’ expert opinion that a refreeze occurred after the salt was applied, such that by the time the area was plowed some three hours later, snow had bonded to the asphalt, making it difficult for the plow to remove. He concluded that the road remained snow covered and slippery, which amounted to a state of non-repair. The trial judge found that the Region failed to meet its maintenance quality standards when road was left without maintenance activity for over three hours and that the lack of maintenance activity resulted in snow-packed and slippery road conditions. He further concluded that the appellant’s employees should have known that those conditions could result. In his “reasonable steps” analysis, the trial judge concluded that the Region failed to assign a spare spreader salt the road in a timely fashion, or to require that another spreader operator drop salt when he passed through the area of the accident approximately one hour prior to the accident. He concluded that either action would have alleviated the treacherous condition of the road when the accident occurred and it was likely that the accident would not have occurred at all. He also found that the appellant had not established that the respondent’s operation of the motor vehicle was negligent. On appeal, the Region did not contest the trial judge’s finding that a refreeze of the road had occurred at the time of the accident. Instead, it relied on the statutory defences to negligence set out in ss. 284(1.2) and 284(1.3) of the Municipal Act to avoid liability for the damages claimed. At the time of the accident, those sections provided that a municipality was 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 know about the state of repair of the highway or bridge; or 2) if it took reasonable steps to prevent the default from arising. It argued that it had established both defences at trial and that the judge erred in finding otherwise. It also argued that the judge erred in not finding the respondent contributorily negligent.

HELD: Appeal dismissed. The trial judge’s findings regarding the Region’s road maintenance activities were amply supported by the evidence. For a period of three hours, the Region failed to carry out any maintenance works on the road notwithstanding that snow continued to fall and it remained windy and bitterly cold. While plowing did occur prior to the accident, the plowing was ineffective because of the refreeze. The concept of a refreeze was well known in the winter maintenance industry and would have been known to the appellant. The fact that the Region’s employees had never experienced a refreeze did not mean that they were unaware of the risk. The fact of non-compliance with the Region’s applicable winter road standards and procedures was a relevant and necessary consideration. The trial judge considered the maintenance works performed by the appellant and appreciated that the operative standard under s. 284(1.3) of the Municipal Act was reasonableness, not perfection. His conclusion that the steps taken by the Region were not reasonable was supported by the evidence. As the respondent crossed the centre line in the course of a loss of control of her vehicle, the presumption of negligence did not apply. There was no evidence of any act or omission attributable to the respondent that caused her vehicle to cross the centre line. Nor was there any evidence that she engaged in a deliberate maneuver that could be construed as unusual or dangerous, or that she was inattentive or distracted.

Belanger v. Sudbury (Regional Municipality), [2017] O.J. No. 2705, Ontario Court of Appeal, G.R. Strathy C.J.O., E.A. Cronk and S.E. Pepall JJ.A., May 26, 2017. Digest No. TLD-July102017002