Minimum Maintenance Standards not defence for all roadway circumstances.

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The Minimum Maintenance Standards does not provide a municipality with a defence for snow and ice removal in all circumstances. Each case is fact specific and Minimum Maintenance Standards may not apply. The underlying test is reasonableness in fulfilling its obligations under the Municipal Act.
 

A recent Ontario court of appeal decision considered the Minimum Maintenance Standards for Municipal Highways regulations developed by the Ontario government. In this case the weather forecasts clearly indicated that snow would be falling in the day ahead. Approximately 2cm of snow fell starting at 4:00am prior to the accident. The accident occurred at 7:00am. The road was covered with snow and ice. The road was a hazard to users. The icy conditions were caused by the compacting of snow by traffic, not due to ice pellets falling on the road.   The municipality began salting operations at 7:15am. The trial judge determined that it was apparent to any reasonable person monitoring the roads that salting operations should have started significantly earlier. Proper monitoring of the weather forecasts would have resulted in an appropriate operational response. Salt applied at the beginning of the storm would have prevented the build-up and formation of icy conditions. The trial judge concluded that the municipality did not keep the road in a state of repair that was reasonable in the circumstances and “but for” this failure on the part of the municipality, the accident and injuries to the accident victim would not have occurred. The trial judge also determined that the defences provided under the provincial Minimum Maintenance Standards for Highway Maintenance did not apply to the circumstances of this case. 
The affect of the Minimum Maintenance Standards is that where a municipality complies with the minimum standards the it will not be found liable even though it did not maintain the highway in a state of repair that is reasonable in the circumstances, knew or ought to reasonably have known of the faulty state of repair and did not take steps to prevent the default. The municipality is not liable for negligently failing to maintain the highway if it complied with the minimum standards that applied to its failure.   The Minimum Maintenance Standards does not attempt to cover all circumstances that may arise in the course of maintaining roadways.   In this case the highway was a class 2 road. The Minimum Maintenance Standards for clearing snow accumulation did not apply to this case as less than 5 centimeters of snow accumulated. There was no minimum standard for clearing accumulated snow on a class 2 highway when the accumulated snow was less than 5 centimeters. 
The Court of Appeal held that although the Minimum Maintenance Standards did not apply to this case does not leave this fact situation unregulated. A municipality must take steps to keep the highway in a reasonable state of repair having regard to all the circumstances pursuant to s.44 (1) of the Municipal Act. The determination of compliance depends on the facts but the standard is grounded in reasonableness. The municipality is required to take reasonable steps and will only be found liable if its conduct is found to fall below the reasonableness standard.   The appeal court further held that the Minimum Maintenance Standards did not establish a minimum standard to address the accumulation of less than 5 centimeters of snow on a class 2 highway and it did not establish a minimum standard for the maintenance of a highway before ice is formed and becomes an icy roadway.
The trial judge had apportioned liability 50/50 between the municipality and the injured party. The court of appeal noted that the question of degree of fault is difficult. One could say that the accident would not have occurred but for the municipalities failure, it could also be said that it would not have occurred had the motor vehicle driver exercised due care. In this case, the driver had some warning as to the condition of the road and the circumstances that led the driver to lose control. The court of appeal supported the trial judge’s apportionment of liability.