Law Times

PAGE 10 Municipalities await new rules on snow removal Proposal for updated standards comes as lawyers warn of avalanche of lawsuits FOCUS T BY JUDY VAN RHIJN For Law Times he Supreme Court's re- sion in Giuliani v. Halton (Mu- nicipality) has leſt municipalities vulnerable to additional claims and strips them of the certain- ty provided by the minimum maintenance standards. As a result, speedy legislative jection of an attempt to appeal the Ontario Court of Appeal deci- changes appear to be the only alternative to an ongoing and highly proactive road maintenance. Murray Davison, partner at Paterson MacDougall LLP in Toronto, represented the Town of Milton in Giuliani. He suggests the facts were significant. "It started to snow at 4 a.m. The total snowfall by the time of the accident at 7 a.m. was only 2-1/2 centimeters. The traffic squashed approach to a senior the snow and turned it into ice." Section 4 of the regulations is the provision dealing with snow accumulation. It prescribes that the snow has to reach a depth of five centimetres before local authorities have to deploy snow- clearing equipment. "In this case, it never got close," says Davison. applicable. You then move to s. 5, which gives you four hours to clear the ice. The council arrived at 7:15 a.m., within that time frame. This is the first time the Court "In my opinion, s. 4 was not " of Appeal has considered these sections that are the key provisions dealing with winter conditions, an issue that' of liability for municipalities. "It seemed to us it was a pretty clear case under the minimum mainte- nance standards," says Davison The court found that s. 4 sim- ply didn't apply and that there's no minimum standard saying s the biggest source The municipalities couldn't go to the min- istry without first seeking leave to appeal, says Murray Davison. what was necessary before the snow reached the prescribed depth. The court then essen- tially ignored the function of the minimum threshold of five centimetres. "Call me stupid, but when it says no action is required until the snow reaches five centime- tres, that is the minimum," says Davison. The Court went on to say that s. 5 applies only aſter the municipality becomes aware that ice exists, meaning there' minimum standard for what hap- pens before then. Davison, who participated s also no in the formulation of the mini- mum maintenance standards from the start, says the decisions baffled him. "The purpose of the minimum standards was to pro- vide defences. That is squarely the way they were worded so as to address the catastrophic judi- cial decisions that were whack- ing the municipalities leſt and right. The intent from the begin- ning was that if the [standard] applies and the standard is met, they are not liable. The transla- tion of these decisions is that both sections are gutted. The court also found there's " ings, lawyers for the municipali- ties faced a couple of questions. They knew an appeal to the Su- preme Court wouldn't succeed. "The main thing you have to show is national importance and Ontario is the only province with minimum maintenance stan- dards," says Davison. "The fallback was to go back to no minimum standard regard- ing weather monitoring. Even though the accident happened on April 1 and the winter pro- gram had ended on March 31, the court still found the munici- palities were liable for not reading the weather forecast. Confronted with these find- OctOber 15, 2012 • Law times the ministry, but we couldn't do that without at least attempting to appeal to the Supreme Court." The municipalities duly went through the motions but were, as expected, unsuccessful in their ap- plication for leave. The ball then passed over to the Ontario Good Roads Association, which struck a committee to draſt revised regulations with involve- ment from the municipalities, the province, and the legal com- munity. The association' approved the proposed amend- ments at the end of September. They're now in the hands of the minister of transportation, who has made a commitment to pro- mulgate new regulations "before the snow flies." Brian Anderson, manager of s board member and technical services at the association, believes the gov- ernment can amend the regula- tions to address the problems. "The courts found that s. 4 didn't apply even though the municipal- ity went out early and applied salt to melt the snow accumulation because the section referred to plowing rather than melting. amended to provide that the mu- nicipality can choose the method and materials by which snow ac- cumulation can be removed. But the section, he adds, "can be " Sure, we could tell you that our client was awarded the largest personal injury judgment in Canadian history and that all our principal partners are past-presidents of the Ontario Trial Lawyers Association. We could also mention that our firm was voted top five in its field in Canada and that we have a five out of five preeminent peer review rating from Martindale-Hubbell. All those achievements and honours don't just happen. They're the result of the way we work and the way we care for our clients. Don't take our word for it... ask around. When you know someone with a personal injury case, call the lawyers that lawyers recommend most. Ask about our competitive referral fees. sible to add a requirement for weather monitoring with a set season from Oct. 1 to April 30. "We cannot make it prescriptive as to how they do that as access to weather-monitoring programs is not provided uniformly across the province. We can define the weather to be monitored in terms of air temperature, wind, and an- ticipated precipitation." This will give municipalities the Anderson says it's also pos- " information required to under- take prevention measures when there' ice formation, which means a sig- nificant likelihood well in excess of 51 per cent. "That is something completely new stemming from Giuliani, s a substantial probability of A Noticeable Difference ™ TORONTO I BARRIE I HAMILTON I 1-888-909-2904 I www.mcleishorlando.com Untitled-2 1 www.lawtimesnews.com 12-10-09 12:27 PM there is a duty of care to prevent ice formation. You can't sit around and wait if the snow is being com- pacted. The minute there' "It makes a clear statement that " says Davison. flake, you've got to be out there with patrollers." s a snow- LT

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