Law Times

Law Times • January 12, 2015 Page 9 www.lawtimesnews.com Municipal victory Appeal court puts end to different rules for rural, urban drivers By JuDy vAN rhiJN For Law Times he Ontario Court of Appeal has stepped in to stop the creation of sub- categories of drivers in considering the duty of care owed by municipalities on their roads. The need for the determina- tion arose in Fordham v. Dutton- Dunwich (Municipality), a case that had made allowances for the habits of rural drivers. With the appeal allowed on Dec. 11, 2014, it stopped a trend one lawyer says would have led to a forest of signs at every intersection. Superior Court Justice Jo- hanne Morissette shocked the municipal law community in a trial decision when she held the Dutton-Dunwich municipality 50-per-cent liable for injuries suf- fered by a plaintiff who had failed to stop at a clearly visible stop sign and then crashed into a concrete bridge when the road curved im- mediately after the intersection. Morissette found the defendant knew it was a local practice in that area for drivers to go through stop signs if they consider it safe. Her judgment was that "the cir- cumstances of this intersection require more than a stop sign to give ordinary 'rural' motorists reasonable notice of a potentially catastrophic hazard ahead." Kirk Boggs of Lerners LLP notes the decision stunned mu- nicipalities and those who work in the area. "It elevated the duty of care well beyond what was ex- pected. It essentially made mu- nicipalities insurers for drivers on their roads," he says. The decision reinforced the concerns of many municipal law- yers over where the law was going in this area. "Some trial decisions expected the highest standard of care from municipalities with respect to road maintenance but the lowest expectations for drivers with respect to reasonable driv- ing," says Boggs. "This trial decision really went to the top and set a new high-wa- ter mark in favour of plaintiffs." Charles Painter of Paterson MacDougall LLP saw similarities between this case and Morsi v. Fer- mar Paving Ltd. In that case, there was a sign said to be improperly located, implying that the driver might have obeyed it if it had been in a different place. "What I found, just like in the Morsi decision, was that you had a trial judge who see- med to be searching for a way to find liability against the munici- pality so she wouldn't have to send the plaintiff away with nothing, which would have been the result if she had strictly applied the test of a reasonable and ordinary dri- ver who needs to exercise care for his or her own safety. Justice Mo- rissette attempted to expand the scope of the duty of care beyond what the Supreme Court has said is the outer limit." The trial decision created a responsibility for municipalities to anticipate that a driver might make a conscious decision to ig- nore the stop sign. "The judge attempted to modify the duty of care to create a new class of rural driver," says Painter. "That vastly increased the re- sponsibility of municipalities. Stop signs wouldn't have to be tak- en notice of. Municipalities would be left trying to parse out which sign a driver would pay attention to. It's cherry-picking." Boggs says one problem that has been arising in the case law has been a focus on the indi- vidual driver involved in the ac- cident. In England, that extends to case law that extends the duty of care to making roads safe for negligent drivers. "They have to be anticipating unreasonable be- haviour. They must build, design, and maintain the road with those types of drivers in mind." The trend has also been evident in Ontario. "When evalu- ating the duty of care, trial judges have been asking: 'How could this have been prevented or what could the municipality have done to prevent it?'" says Boggs. "That is a subjective test. What the Court of Appeal makes very clear is that it is an objective test based on whether an ordinary driver exercising reasonable care could have travelled through that section of roadway safely. Apply- ing that test, no ordinary driver exercising reasonable care could come up to a stop sign that is eas- ily visible and drive through it at 80 km/h." In fact, the Court of Appeal stated: "A municipality's duty of repair is limited to ensuring that its roads can be driven safely by ordinary drivers exercising rea- sonable care. A municipality has no duty to keep its roads safe for those who drive negligently." Painter isn't aware of any mu- nicipalities that changed their practices as a result of the initial decision. "My advice would have been to sit tight. Don't panic. Wait until a high court has a chance to be reminded of the law of Canada because the test is countrywide, not just Ontario-wide. Had the Court of Appeal upheld the de- cision, then we would have seen a change in municipal practice. There would be forests of signs at every intersection. It would be ab- surd . . . bizarre." Painter also feels the matter would have found its way to the Supreme Court. "If you start creating subsets and subclasses, that's the start of the slippery slope," he says. "There is one Highway Traffic Act. There's not a special section for rural motorists or a special sec- tion for urban motorists. It creates too many conf licts and invites too much unpredictability." Boggs agrees. "Trial judges have been suggesting that local driving custom needs to be taken into account, which is very prob- lematic. The Court of Appeal recognized that this is a recipe for FOCUS CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com The reason why we are Canada's largest and most comprehensive structured settlement firm has everything to do with our passion for service and performance — without exaggeration, we make life easier for you. Almost as fast as McKellar. Light travels at a speed of approximately 186,282.397 miles per second. Untitled-5 1 2015-01-06 2:04 PM T 'It is reasonable for a municipality to expect that drivers will comply with the Highway Traffic Act when it maintains its roads,' says Kirk Boggs. See Municipal, page 12

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