Law Times

Page 10 November 12, 2018 • Law Times www.lawtimesnews.com Confusion about municipal obligations emerges BY SHANNON KARI For Law Times T wo decisions of the Court of Appeal re- leased earlier this fall on the same day appear to be causing confusion about the extent of the legal obligations of municipalities to reduce the risk of automobile accidents at inter- sections. The rulings in Smith v. Saf- ranyos and Chiocchio v. Ham- ilton were argued separately, although both were released on Sept. 19. The city of Hamilton was one of the defendants in both cases, which stemmed from serious motor vehicle accidents at inter- sections and where assessing the liability of one of the drivers and the obligations of the municipal- ity for road repair were at issue. The Court of Appeal upheld the decision of the trial judge in Smith that the city was 25-per- cent liable for the damages caused. However, in Chiocchio, the decision of the trial judge that the municipality failed to keep the roadway in a reasonable state of repair was set aside and the ac- tion against it was dismissed. The Court of Appeal in its decision in Chiocchio stated that, in both cases, the three- judge panels concluded that municipalities can still be found liable for non-repair for failing to paint or maintain a stop line (near a stop sign), even if a driver is found to have breached a sec- tion of the Highway Traffic Act. "The decisions in these cases are otherwise dependent on the unique facts of each case and the findings in the courts below," stated justices Janet Simmons, Grant Huscroft and Bradley Miller. Advising municipalities on how to apply these rul- ings is challenging, says James Tausendfreund, co-counsel for the city of Hamilton in both proceedings. "It is confusing. We never ar- gued that a city cannot be found liable. We argued that you can- not use a negligent driver for the reasonable driver standard," says Tausendfreund, a lawyer at Zu- ber & Company LLP. The city of Hamilton in Smith and the plaintiffs in Chi- occhio have both indicated they intend to seek leave to appeal to the Supreme Court of Canada. George Wray, a partner at Borden Ladner Gervais LLP in Toronto, who frequently acts for municipalities, says he hopes that leave is granted by the Su- preme Court. "I don't think you can square the two decisions in terms of the legal analysis. If you have a situ- ation where drivers are clearly negligent, what does this mean for municipalities?" asks Wray. The rulings make it difficult to provide "practical guidance" for risk managers at municipali- ties, says Andy Jairam, a partner at Loopstra Nixon LLP, whose practice focuses on municipal liability and insurance defence. "They are difficult to recon- cile," he adds. The decision in Smith poten- tially "muddies the analysis" of the legal test set out by the Court of Appeal in 2014 in Fordham, says Jairam. The accident in Chiocchio occurred at a rural intersection when the driver of a sedan ac- celerated westbound from a stop sign and t-boned a minivan that was travelling northbound and not subject to a stop sign. The driver of the minivan was ren- dered a quadriplegic from his injuries. The lawyer for the sedan driver conceded that he was neg- ligent in entering the intersection when it was not safe to do so. The stop sign was about nine metres from a faded stop line, close to the intersection. The trial judge concluded that the city was 50-per-cent responsible for fail- ing to repaint the faded stop line. The Court of Appeal found that the trial judge erred in his analysis of the municipality's duty of repair and the ordinary reasonable driver standard. It noted that a section of the HTA requires drivers, even where there is no stop line, to stop the vehicle "immediately before en- tering the intersection." "Contrary to the reasoning of the trial judge, the obligation of reasonable drivers was not to determine whether they should stop 8 or 8.5 meters back from the intersection, so they would have an adequate sightline of northbound traffic," the panel wrote. "It was to stop at a point close enough to the intersection so they would at least have sight- lines in both directions. "Drivers who fail to comply with the rules of the road estab- lished under the HTA and who also act in a manner that is con- trary to common sense cannot meet the ordinary reasonable driver standard," the panel in Chiocchio added. FOCUS James Tausendfreund says advising munic- ipalities on how to apply a recent pair of Ontario Court of Appeal rulings is chal- lenging. See COA, page 13 Municipalities would be advised to ensure that stop lines are clearly painted at all intersections where sightlines are obscured, particularly when the stop sign is set back from the intersection. Claire Wilkinson Untitled-3 1 2018-07-17 3:00 PM © 2018 Thomson Reuters Canada Limited 00252HN-A93088-CM AVAILABLE RISK-FREE FOR 30 DAYS Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # L7798-8071-65203 $126 Softcover September 2017 approx. 600 pages 978-0-7798-8071-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Second and Expanded Edition Annotated Ontario Arbitration Legislation – Arbitration Act, 1991 and International Commercial Arbitration Act, 2017 Alexander M. 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