Law Times

Page 10 January 8, 2018 • Law Times www.lawtimesnews.com Ruling a welcome change for some Municipal maintenance standards clarified BY DALE SMITH For Law Times A recent Ontario Court of Appeal decision has given clarity to the case law surrounding mini- mum maintenance standards that municipalities are liable for in the province, particularly smaller jurisdictions that don't have the resources to maintain around-the-clock road clearing in inclement weather. Some lawyers say that this is a welcome change after a lengthy period during which courts were too deferential to plaintiffs. In House v. Baird, 2017 ONCA 885, the Court of Appeal upheld the trial judge's ruling that the Township of Wilmot had an adequate system for call- out for winter maintenance of its roads and that, as a lower-tier rural municipality, it was not obligated to adhere to the same standards as a regional munici- pality or a provincial ministry. "It's the first case that I know about in Ontario where the de- fence provided under s. 44(3) of the Municipal Act, dealing with minimum maintenance stan- dards, has actually been accept- ed," says James Bennett, senior litigation partner with Madorin Snyder LLP in Kitchener, Ont., who acted for the township of Wilmot in the case. Bennett says that, in this case, the court embraced the three statutory defences pro- vided to municipalities in road maintenance liability cases un- der s. 44, finding that: the mu- nicipality shouldn't have known about the icy road because it was unanticipated freezing rain; that the municipality wasn't negli- gent in that it had a reasonable system of winter maintenance and that, in assessing that fac- tor, made a clear distinction be- tween higher-tier and lower-tier municipalities; and that even if it was wrong about the first two defences, it still had eight hours to treat the road once it knew it was icy. As a lower-tier municipality, Wilmot could not be expected to have around-the-clock em- ployees and the same kind of equipment that larger munici- palities have, but it does have an on-call system where someone patrols as needed and a call-out system for when weather events occur. "That's really about what's different about this case than previous cases," says Bennett. "They said that even if they should have patrolled or done things differently, they still had eight hours from when they knew to get out there and do something about the ice." Bennett said that, in earlier cases, courts have been reluctant to apply the minimum mainte- nance standards and have found reasons not to apply them. "Even if the road is icy, you can't be everywhere, every place at every time, but if you get there within [what] the standard is for a certain class of road, then you've met your obligation," says Bennett. "That's why it's a helpful case to assist municipalities to deal with their winter road mainte- nance issues." Bennett says that, in previous cases, the courts have said that they have applied the standards but have gone on to find liabil- ity. "They cite those rules, but in many of those cases, they've also then imposed liabilities against municipalities, but in this par- ticular case, they've applied a common sense and logical ap- proach to the realities that we have winter in Canada and have snow on the roads," says Ben- nett. This interpretation of the decision is disputed by Al- lan Rouben, a sole practitioner in Toronto, who acted for the plaintiff in the case. "It seems to me that they based their decision to dismiss the appeal on other grounds," says Rouben. "They did mention the mini- mum maintenance standards, but I don't think it was really central to the whole case in my assessment of it." Rouben says the argument was that the complaints that the conduct of the municipality and that its employee hadn't checked the weather forecast and hadn't conducted an evening patrol were not covered by the mini- mum maintenance standards and, for that reason, argued that they weren't really applicable to the case. The Court of Appeal didn't agree with that position. FOCUS James Bennett says a ruling in a recent case will assist municipalities with deter- mining their responsibilities around winter road maintenance. See Lower, page 13 CanadianLawyerMag.com Fresh Canadian legal news and analysis available on any device. Get More Online What do your clients need? The means to move on. Guaranteed. ™ Baxter Structures customizes personal injury settlements into tax-free annuities that can help your clients be secure for life. » Pre- and post- settlement consultation and support » Caring professionalism for over 30 years » No fee to you or your clients Need more information? Contact us at 1 800 387 1686 or baxterstructures.com Kyla A. Baxter, CSSC PRESIDENT, BAXTER STRUCTURES Untitled-5 1 2017-11-20 9:03 AM

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