Law Times

Law Times • January 10, 2011 An online resource 1.800.263.3269 Focus On INSURANCE LAW Municipalities testing new road standards Insurance coverage affected as province changes maintenance rules BY JUDY VAN RHIJN For Law Times A s the snowy season continues, municipal lawyers will likely be redesigning their maintenance regimes to take into account changes to the minimum main- tenance standards for municipal highways introduced last year. Now that municipalities are deemed to have "construc- tive knowledge" of the state of slushy roads, sidewalks, and the extent of snow accumu- lation, the vigilance of their maintenance departments will be key to ensuring that slip- pery conditions don't make for insurance headaches. Since 2002, those rules have been the regulatory embodi- ment of the minimum stan- dards of repair for highways and roads established by s. 284(1.5) of the Municipal Act. Th ey've been relevant to mu- nicipal insurance arrangements not only because they aff ect li- ability but also because some policies may contain exclusions if they're not met. Previously, a road author- ity's duty of care was triggered on notice or constructive notice of a condition of non-repair, in- cluding a situation at a specifi c place or one that extended across a wide area such as during an ice or snow storm. One of the criticisms of the standards was that the patrolling requirements were inadequate to respond to winter road conditions. By way of example, Jennifer Stirton of McCall Dawson Osterberg Handler LLP in London, Ont., explains that before the amend- ments, the standard patrolling requirement for a class 1 high- way was three times every seven days. "If there is a winter storm and we are sitting in two feet of snow, three times in a seven-day period wouldn't be suffi cient," she says. Stirton points out that while the standards were introduced to limit liability for municipali- ties, they have yet to amount to a complete defence. "Th e leg- islation provides for an objec- tive standard of care. Prior to this, courts were fi nding a way around the [standards]." As of Feb. 18, 2010, the re- vamped standards provide that a municipality is deemed to be aware of a fact if the circum- stances are such that it reasonably ought to have knowledge of it. Th e standards also now state that during the winter mainte- nance season, municipalities must conduct the routine patrols that were previously required but must also moni- tor routes that are represen- tative of their highways, as necessary, for snow and ice conditions. As neither "repre- sentative" nor "as necessary" are defi ned terms, Stirton ex- pects to see claims challeng- ing municipal decisions in that regard. Despite the risk, municipalities and their law- yers appear to be pleased with the change as it gives more certainty. "Now the munici- pality can identify their rep- resentative highways and say, 'We've inspected them three times in 24 hours,'" Stirton says. "Th ey have then satisfi ed the [minimum standards] as well as the objective standard of care." Charles Painter of Pater- son MacDougall LLP in To- ronto is looking forward to ap- plying the new standards. "It's the fi rst full winter season that they've been on board," he says. "From my perspective, they are something very helpful, guiding a municipality's understanding the [standards] ignored the common law which implied constructive knowledge on municipalities or road authorities if a reasonable road authority should have known. Th ose magic words didn't seem to appear." Brown believes the chang- 'This is far below what municipalities actually do,' says Craig Brown of the new standards. of what's required. Th ey are a direct response to some of the criticisms in the case law." Craig Brown, a partner at Th omson Rogers in Toronto, agrees. "It solves the problem that Justice [Peter] Howden had in Th ornhill v. Shadid. Howden commented that es will help plaintiff s deal with what he considers to be unfair and unrealistically le- nient standards. "Th e defen- dants had been arguing that they couldn't be found to have known before the time imposed in the standard for patrolling a particular cate- gory of road. Say it patrolled a class 2 road on a Saturday, which requires checking two times every seven days, and the hazardous condition was created on a Sunday. It said the court couldn't fi nd it should've known until Tues- day. But with constructive knowledge, if you're looking out your front window and it's obvious that the weather is creating hazardous conditions, you can't look to the minimum patrolling standards." On the municipal defence side, the rules also help by spe- cifi cally allowing the use of technology for monitoring pur- poses. "Th is refl ects the capabil- ity to monitor with technology, including devices embedded in the pavement that read humidi- ty and road temperature to help predict when ice will form," Painter says. Th ere are also trucks that can record where they went through GPS tech- nology, electronically monitor the roads they drive over, and measure how much sand and salt they put out. But Stirton says the electronic monitoring option is limited by cost. "It's a fairly capital-intensive thing to switch over to. Municipali- ties have to balance the cost of technology against the cost of litigation." Among the plaintiff s' bar, there's still signifi cant dissat- isfaction that the minimum standards exist at all. "Th is is far below what municipalities actually do," says Brown. "If they look at this and say, 'Th is is all we have to do,' we'll all be driving on roads that are more hazardous at the most hazard- ous time of the year." LT PAGE 9 ACCIDENT BENEFITS IN ONTARIO The Honourable James M. Flaherty and Catherine H. Zingg INVALUABLE INSIGHT AND CLARIFICATION ON ACCIDENT BENEFIT CLAIMS, PRIORITY DISPUTES AND LOSS TRANSFER CLAIMS Accident Benefits in Ontario provides in-depth guidance to the Statutory Accident Benefits Schedule in Ontario with summaries and analysis of case law with respect to arbitration decisions from the Financial Services Commission of Ontario (F.S.C.O.), relevant judicial decisions and private arbitration decisions. Case digests are available online with links to full-text decisions. 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