Deemed Common Sense….Or Not?
Those of us who defend municipalities in personal injury actions arising from allegedly insufficient road maintenance are intimately familiar with s.44 Municipal Act, 2001. This statutory provision imposes the duty on municipalities to keep their roads and sidewalks in a reasonably safe state of repair, and circumscribes liability when a municipal road authority is alleged to have breached this duty. To explain very briefly how this section works, the onus rests with the Plaintiff to establish that the road or sidewalk is in a “state of non-repair”. If the Plaintiff can establish this, the onus then moves to the Defendant municipality to make out one of three statutory defences, set out in ss.44(3(a) – (c) – either that the municipality did not know or could not reasonably have known about to condition of non-repair, that the municipality made reasonable efforts to prevent the condition of non-repair, or that the municipality complied with a regulation to the Municipal Act 2001 known as the “Minimum Maintenance Standards” or (for those of us who wish to avoid repeatedly typing the words “Minimum Maintenance Standards” in pretrial briefs, facta, mediation summaries or in this instance, articles dealing with municipal liability) the “MMS”.
The MMS is an extremely dense and technical regulation which sets out specific requirements for road maintenance such as when plowing and salting of snow and ice has to be commenced/completed, the circumstances under which missing road signs have to be replaced and potholes have to be filled in, when trip ledges on sidewalks have to be eliminated, and when broken streetlights have to be repaired. The MMS also contains “deeming” provisions such as how big a pot-hole has to be, how deep a snow accumulation has to be, how high a trip ledge has to be, and how many streetlights how to be out of order to be considered a state of non-repair that will give rise to potential liability on a municipal defendant’s part. While this all might sound very technical and specific, the rationale for the MMS is, in the author’s view, rooted in common sense. A road authority simply cannot be everywhere all the time, and cannot repair all defects on its roads the moment they arise. More, over, pedestrians, motorists and cyclists are not entitled to expect perfectly smooth, billiard table-like roads and sidewalks. The MMS, by deeming a roadway to be “in a state of repair” if, for example, it does not have any surface discrepancies more than 5cm high, or more than two adjacent street lamp lumieres out of order, reflect the idea municipalities are not insurers for people that use their roadways, and that road users are not entitled to expect a standard of perfection.
One would hope, then, that the Courts, when considering whether a particular alleged condition of non-repair does give rise to liability, in light of the MMS, take a similarly common-sense approach. Unfortunately, past cases have tended to interpret the MMS extremely restrictively, particularly in cases dealing with significant injuries. However, two very recent Ontario trial decisions have taken a refreshingly sensible approach in considering the existence of a condition of non-repair. Unfortunately, one of these two cases, Beardwood v. City of Hamilton (2022) ONSC 4030 (Canlii) was very recently argued before the Ontario Court of Appeal, which took a more restrictive and narrow approach to things. If the trial judge’s decision in the second case considered in this article, Morris v. Prince (2023) ONSC 3922 (Canlii) is appealed, it is the author’s hope that the Court of Appeal will keep in mind the common-sense rationale that underlies the MMS, and will uphold the trial judge’s decision.
Beardwood v. City of Hamilton
In this case, the Plaintiff, David Beardwood, was riding his motorcycle through a four-way intersection in Binbrook, just outside of Hamilton in August 2015. Apparently, the intersection had been re-paved, leaving a “lip” caused by the new layer of asphalt which ran across the intersection perpendicular to the street upon which the Plaintiff was riding. As the Plaintiff proceeded through the intersection, although he was only travelling at a speed of 10kph, he lost control of his motorcycle as he rode over this lip, fell and sustained a significant orthopaedic injury – a fracture to his left tibia which required the surgical insertion of hardware to unite.
At this point, it might be helpful to the reader to click on the link below from Google Maps and have a look at the street view of the intersection in question. The asphalt lip is clearly visible. This street view also illustrates that the two roads that make up this intersection meet one another at an acute angle, rather than a right angle.
Mr. Beardwood, according to the portion of Krawchencko J.’s decision which assesses his damages, appears to have presented as a sympathetic and likeable Plaintiff. He is the father of a young son, and had for most of his career worked physical jobs where a compromised left leg would definitely have an effect on his ability to earn an income. Nonetheless, it appears that Mr. Beardwood, to his credit, returned to work and “powered through”, before mitigating his losses by retraining and changing careers to less physical work. This is the sort of case where one can easily see a trial judge working hard to find liability on the part of a defendant road authority in order to compensate a sympathetic Plaintiff with serious injuries.
The Plaintiff’s legal team retained an expert on road design named Gerry Forbes and provided Mr. Forbes with photographs of the asphalt “lip”. These photographs included measurements of the “lip” in several spots across the intersection. It appears that the highest part of the lip was close to the edge of the road, and the lowest part was close to the centre, where the Plaintiff likely would lost control of his motorcycle. It does not appear that Mr. Forbes actually attended the site to take any measurements of his own, possibly because by the time he was retained the “lip” had potentially changed height due to the passage of time.
Upon being cross-examined on the existing photographs of the asphalt lip, some of which apparently showed a tape measure adjacent to the lip, Mr. Forbes conceded that the measurements as shown in these photographs “could be a little off” due to the camera angle, whether whomever took the measurements was actually holding the ruler vertically (apparently a t-square or carpenter’s level was not used, which one would generally expect), and whether the “lip” was rounded off at the top. To account for this, Mr. Forbes rather arbitrarily “adjusted” the measurements shown in the pictures and “assumed” that the height of the lip varied between 3.5cm and 5.5cm.
Mr. Forbes also opined that the two roads meeting at an acute angle contributed to the accident, and that the asphalt was not laid as per the applicable Provincial guideline. Krawchencko J., discounted the failure to meet this guideline as a potential source of liability on the part of the City, on the basis that this is not a mandatory standard. The writer is of the view that it is implicit in Krawchencko J.’s reasoning in this regard that the Minimum Maintenance Standards established pursuant to s.44 Municipal Act, 2001, as a statutory regulation, “trump” this non-mandatory guideline. This sort of reasoning is a good thing for municipalities, as it seems to be a step away from the Courts’ tendency to water down the MMS, in accordance with the Ontario Court of Appeal’s decision in Halton Region v. Giuliani, on the basis that unless there is a specific default to which the MMS expressly applies, this regulation is not applicable.
I expect that it has occurred by now to a number of readers that that s.13(2.1) Minimum Maintenance Standards deems a road with a surface discrepancy of less than 5cm to be in a condition of good repair. If the road is deemed in a condition of repair by the MMS, then it follows from this that there is no breach of the City’s duty pursuant to s.44(1) and (2) Municipal Act, 2001, such that no liability would accrue. Accordingly, some parts of the lip struck by the Plaintiff’s motorcycle were higher than 5cm, and some were lower, pursuant to the Plaintiff’s expert’s conclusions. As a result, it was then necessary for Krawchenko J to turn his mind to whether the Plaintiff’s injuries were due to a condition of non-repair.
Again, Krawchencko J. approached this issue in a common-sense manner and, in accordance with the Court of Appeal’s decision in Kamin v. Kawartha Dairies, concluded that it would be too onerous on either party to pinpoint the precise location where his motorcycle hit the lip, with a view to determining the height of the lip at that location. Instead, what he did was take the “mean” height of the discrepancy – i.e. the midpoint between 3.5cm and 5.5cm, which is 4.5cm, and found as a fact that the lip that caused the Plaintiff’s motorcycle to lose control was 4.5cm high (i.e. less than the 5cm necessary to be considered a condition of non-repair pursuant to s.13 MMS).
However, what Krawchencko J. did next, having made this finding, is interesting. Firstly, he correctly identified that the City’s liability is circumscribed by ss.44(1), (2) and (3) Municipal Act, 2001, and that s. 13 MMS deemed a roadway in a state of repair if the surface height differential in question is less than 5cm and that as such, this particular roadway was in a state of repair. He also, again correctly, identified that the correct methodology for determining a Municipality’s liability under s.44 Municipal Act, 2001 is to apply the 4-part test articulated by the Court of Appeal in Fordham v. Dutton-Dunwich.
The four steps in the “Fordham analysis” are as follows:
- Non-repair: The Plaintiff must prove on the balance of probabilities that the road was not in a reasonable state of repair;
- Causation: The Plaintiffs must prove that the “non-repair” caused the accident;
- Statutory Defences: if (1) and (2) can be established, the onus shifts to the defendant municipality to establish that one of the three statutory defences under s.44(3) applies;
- Contributory negligence: if there is no applicable statutory defence under s.44(3), the court must at that point consider contributory negligence of the Plaintiff.
One would assume, having regard for His Honour’s reasoning up to this point, he would have then concluded that the Plaintiff does not get past step 1 of the Fordham test – i.e. that there is no condition of non-repair, given Krawchencko J.’s finding that the average height of the surface discrepancy is less than 5cm, and that would have been the end of the matter. However, instead, he concluded that there was a condition of non-repair, on the basis of the Plaintiff’s expert’s evidence, insofar as “the existence of a surface discontinuity at an irregularly angled intersection did create a risk of harm”. He went on to conclude that the Plaintiff’s motorcycle striking the discontinuity caused him to lose control and that this satisfied the element of causation in the second step of the Fordham analysis.
It was not until Krawchencko J. moved to the third step of the Fordham analysis, which is the consideration of statutory defences, that he cited the “deeming” provision in s.13(2.1) MMS, and concluded that a surface discrepancy with a mean height of 4.5 cm is deemed a state of reasonable repair, and that this provides the City with a complete defence under s.44(3)(c) (i.e. compliance with the applicable MMS). On this basis, he concluded that the City faced no liability and dismissed the claim against it. Although it could be stated that Krawchencko J. wrongly applied the Fordham test by not applying the deeming provisions of the MMS when considering the existence of a condition of non-repair in step 1, he ended up with the same result – a decision finding the Defendant municipality not liable – as he would have had he done so.
There is no specific MMS provision dealing with the angle at which two roads meet at an intersection. This could potentially have given Krawchencko J. a way to find liability on the part of the defendant Municipality, having regard for the narrow interpretation of the MMS favoured by the Ontario Court of Appeal in the Giuliani decision. It is interesting that His Honour did not mention Giuliani in his reasons, which could mean that neither counsel brought this case to his attention (although the writer would be surprised that this is the case given that every card-carrying OTLA member tends to trot out this case at the mere mention of MMS by the defence).
In the final analysis, although it could be potentially argued that this decision incorrectly applies Fordham by finding the existence of a condition of non-repair despite the deeming provisions of the MMS, there is a lot to for municipalities to like about this case, and a number of things that are potentially of assistance in the defence of municipal road claims, including:
- The fact that His Honour took a “common-sense” approach to the application of the MMS, rather than relying on the configuration of the intersection in order to discount the “deeming” provisions is of note. Had the lip not been there, the accident would not have happened regardless of the angle at which the two roads met. In the writer’s view, Krawchencko J. implicitly recognized that the existence of the “lip” materially contributed to the accident regardless of the way the intersection was laid out, and deemed it reasonable to consider the MMS on this basis;
- The manner in which His Honour dealt with the fact that it would be impossible to determine the exact height of the “lip” where the Plaintiff’s motorcycle contacted it is also indicative of a practical and common-sense approach to road authority liability. Every municipal defence lawyer, and every municipality has had to contend with cases where a surface discrepancy on a road or sidewalk is in some places less than 2cm (sidewalk) or 5cm (road) and in some places more. Krawchencko J.’s application of the Kawartha Dairies case is thoughtful, sensible and reasonable, and will serve as a good antidote to the Plaintiff argument that if a surface discrepancy exceeds the “deeming” provisions of the MMS at any point along its length, then there is a condition of non-repair;
- The fact that His Honour discounted the applicable but non-mandatory Provincial guidelines regarding the laying of asphalt in favour of the MMS. It is de rigeur for Plaintiff-oriented road safety experts to rely on potentially spurious “guidelines” as a way of potentially affixing municipal road authority defendants with liability. Again, this decision is a good antidote to this sort of approach.
- His Honour’s assessment of contributory negligence (which is moot in light of the dismissal of the claim) is also of note. He found that the Plaintiff was 50% at fault because he was driving slowly, on a quiet road, and should have noticed the lip.
When the author originally read this case, he was optimistic that this was the start of a new trend towards a common-sense approach to road authority liability. However, this case was unfortunately overturned by the Ontario Court of Appeal, upon appeal by Mr. Beardwood ((2023) ONSC 436) in June of this year.
In considering the case, the Court of Appeal noted that the “only” evidence as to the height of the asphalt lip, which was the key factor in determining the City of Hamilton’s liability, came from the photographs in Mr. Forbes’ report on liability, which Krawchenko J. had chosen to adjust to account for any inaccuracies in the measurements depicted therein. The Court of Appeal decided that by doing so and concluding that this deemed the road to be in a state of repair, Krawchenko J committed a “palpable and overriding error” insofar as his adjustments to the measurements, and then taking the average of these measurements as the height of the lip was “entirely speculative” and “amounted to guesswork”. Instead, the Court of Appeal concluded that the onus was on the City to call evidence of its own as to what the actual height of the lip was, and that it was less than 5cm. the Court of Appeal concluded that By failing to do this, the City failed to meet the onus of establishing the existence of a statutory defence pursuant to s.44(3)(c).
The Court of Appeal appears, then, to have made the same error as Krawchenko J. in considering the deeming provisions of the MMS as a statutory defence under the third step of the Fordham test, rather than in the first step, which is to consider whether a condition of non-repair exists at all. The practical result of this is that the Court of Appeal has reversed the onus with respect to proving the existence of a condition of non-repair in the first place, by essentially making it the Defendant’s job to establish at first instance that there is no condition of non-repair. It is submitted that by providing unreliable measurements through Mr. Forbes, which may or may not show a lip of more than 5cm, the Plaintiff did not, in this case, discharge his burden of proof that the lip upon which he lost control is high enough to be considered a condition of non-repair. The Court of Appeal had a valuable opportunity to clarify how the “deeming” provisions of the MMS ought to be used, but instead appear to have muddled things even more, and in doing so, have lost sight of the forest for the trees, by completely overlooking the rationale of the MMS to ensure that road authorities are not held to an unreasonably high standard in maintaining their roadways and sidewalks.
However, all is not lost, having regard for the decision of a recent trial in London, Ontario which was decided after the Court of Appeal’s decision in Beardwood.
Morris v. Prince
The trial of this case took place entirely over Zoom tent on various dates throughout 2022 before Mitchell J. in London, Ontario. The case arises from an extremely serious auto vs. pedestrian collision, with all parties represented by competent and experienced trial counsel. Mr. Morris, the Plaintiff, was crossing Aldersbrook Gate in London, at its intersection with Fanshawe Park Road, on December 21, 2015 (the winter solstice and the shortest day of the year) at approximately 5:30 pm, on the west side of Fanshawe Park Road. It was raining and Mr. Morris was wearing dark clothes and white running shoes.
Mr. Prince was making a left turn off Fanshawe Park onto westbound Aldersbrook Gate. He lived nearby and was familiar with the intersection. He was driving a GMC pickup so presumably his headlights would be quite high off the ground. In his examination in chief, he have evidence that before starting his left turn, he checked to see that no-one was crossing Aldersbrook gate, and looked to the south-east corner of the intersection to check for pedestrians while stopped in the left turn lane, but did not see anyone. He commenced his left turn, and apparently went wide into the curb lane rather than the centre lane of Aldersbrook Gate. As his car went through its turn such that Mr. Prince was looking out of his windshield down Aldersbrook Gate, he saw Mr. Morris in front of his truck. Unfortunately, by then it was too late for Mr. Prince to stop, and he struck Mr. Morris, inflicting a traumatic brain injury and multiple skull fractures. Mr. Prince had an after-market tint on the side windows of his pickup which appears to have made it harder to see out of them, and likely contributed to him not seeing Mr. Morris until the last moment. Indeed, it seems that Mr. Prince only saw the Plaintiff when his vehicle got far enough through its turn that Mr. Prince was looking at the crosswalk through his windshield rather than his tinted side window. As a result of this accident, Mr. Prince was charged, and pled guilty under s.142 HTA. This creates a presumption at law that he is civilly liable for the accident. Even if he had not been convicted, it would be presumed that Mr. Prince was at fault for the accident, given that he was a driver and Mr. Morris was a pedestrian.
At the crosswalk on which Mr. Morris was crossing, there was a centre lane median which ordinarily had a traffic light and a light standard with two overhead lights. However, a few weeks prior to this collision, the light standard had been knocked down by a previous accident, and had not yet been replaced. Below, again, is a link to a view of the intersection on Google Street. As of the date the Google Street View photograph was taken, the light standard had been replaced.
The Plaintiff commenced suit against Mr. Prince, who quite appropriately admitted 1% fault, and the City of London. The theory of liability against the City was, broadly speaking, that “more light was better” and that the failure to replace this light standard meant that the intersection was in a state of non-repair, such that the City was in breach of its duty of care pursuant to s.44(1) Municipal Act. Mr. Prince adopted this same position, as a means of diverting liability to the City of London.
The City’s position was that the intersection was in a state of repair at common law and was deemed as such by s.10(1) MMS, which states that when less than three lights being missing or non-operational, a roadway is deemed to be in a state of repair. The City also argued that even if the missing light standard constituted a state of non-repair, any lack of lighting was not the cause of the accident , and that instead, the cause of the accident was solely Mr. Prince’s inattentiveness and the illegal tint on the side windows of his truck.
All parties hired forensic engineers to provide opinions on the cause of the accident. All four forensic engineers appear to have given human factors opinions dealing with perception/reaction time having regard for the lighting conditions at the accident scene, which is arguably outside their area of expertise. Mitchell J did not appear to have any trouble with this, although a close read of the reasons for judgement suggest that the various expert opinions do not seem to have played a big part in Mitchell J.’s conclusions.
Upon embarking on an analysis of the City of London’s liability, Mitchell J. used the same four-step analysis from Fordham as Krawchenko J. in the Beardwood case. However, in considering the first step of this test – that is, whether a state of non-repair existed at the accident scene, rather than simply starting with s.10(1) MMS, Mitchell J. appears to have considered, in addition to the level of lighting at the intersection, a number of extrinsic factors such as the Plaintiff’s movements, his clothing, Mr. Prince’s movements, the weather and the window tint on the Prince pickup. Mitchell J then goes on to speak about road authorities not being insurers and not being held to a standard of perfection, and moreover only owing a duty of care to “reasonable” drivers but not negligent drivers, and concludes that this is indeed the law (the Ontario Court of Appeal had appeared to have moved away from this proposition in another case involving the City of Hamilton several years ago, such that this in itself is a positive change as far as municipalities are concerned). Mitchell J also cited with approval Howden J.’s assertion in the Scugog v. Deering case that road authorities’ duty of care is NOT to make roads safe for negligent drivers. Finally, Mitchell J observed that it ought to have been obvious to Mr. Prince, as someone who travelled through this intersection regularly, that he should have known about the decreased lighting conditions and should have adjusted his driving accordingly. It was found as a fact that, despite Mr. Prince’s testimony to the contrary, he did not check the south-east corner of the intersection for pedestrians before starting his left turn, and that to do so was more than inadvertence or error – it was outright negligence, such that no duty of care is owed to him by the municipality. While Mitchell J. agreed with Plaintiff’s counsel that “more light would have been better”, it is noted that this is not the test for liability – the test is whether there is a state of non-repair, and concluded that as there was sufficient illumination for a reasonable driver to have seen the Plaintiff, then the intersection was in a state of repair and that as such, the City of London was not liable.
Mitchell J., notwithstanding this conclusion, continued through the 4-step Fordham analysis, presumably to avoid this decision being overturned if the Ontario Court of Appeal were to disagree with his analysis up to this point. In doing so, Mitchell J. did exactly what Krawchenko did in Beardwood, and considered the “deeming” provisions of the MMS under step 3 of the Fordham test, which involves consideration of whether, in the event a condition of non-repair was present, and the Plaintiff’s damages were caused by this condition of non-repair, the defendant municipality can avail itself of any of the statutory defences in s.44(3) Municipal Act. In doing so, Mitchell J. concluded that as s.10(2) MMS deems two adjacent non-operating lumieres to be constitute a condition of non-repair, that the City had a statutory defence even if it was found that a condition of non-repair existed. This strikes the author as circular logic as s.10(2) MMS deems there as being no condition of non-repair in the first place.
Indeed, Mitchell J has fallen into the same trap as Krawchenko in Beardwood by not considering the “deeming” provisions of the MMS in the first step of the Fordham test. If the roadway is deemed in a state of repair by s.10(2) MMS, then the City does not owe a duty of care to the Plaintiff, and the Plaintiff’s claim fails without the need for any consideration of causation and statutory defences. Accordingly, it can be said that Mitchell J., like Krawchenko J. in Beardwood, came to the right conclusion, but by way of a flawed methodology.
This notwithstanding, Morris v. Prince is a good case for municipalities. In older cases, such as Giuliani v. Halton, the tendency has been for courts to interpret the MMS extremely narrowly and not given effect to the common-sense rationale that underlies them. Were a trial judge to interpret the MMS narrowly in this case, they might conclude that while s.10(2) MMS dealt with non-operational lumieres, there is no provision of the MMS that deals with light standards that are completely missing, such that the City had no statutory defence under s.44(3).
Mitchell J completes the analysis of liability by considering causation, despite having largely gone through this analysis already when considering non-repair at common law. In this regard, it is concluded that regardless of whether there was a condition of non-repair or not, the cause of the accident was not the lack of lighting and was instead Mr. Prince’s inattentiveness in not properly checking to see whether he could turn safely before starting his turn. Mitchell J. also concluded that Mr. Prince’s headlights ought to have provided sufficient illumination to make up for any lack of illumination from street lights such that reduced lighting as a result of the missing light standard did not cause this accident.
In conclusion, Mitchell J found Mr. Prince 100% at fault for the Plaintiff’s damages, with no liability at all on the part of the City. Mitchell J. goes on to assess the Plaintiff’s damages, net of collateral benefits, over $2,000,000 and as such likely in excess of Mr. Prince’s auto insurance liability limits. Due to the principles of joint and several liability, had Mitchell J. found the City even as little as 1% responsible for the Plaintiff’s injuries, the Plaintiff would have been able to recover any damages in excess of Mr. Prince’s auto policy limits from the City. By finding no liability on the part of the City, Mitchell J has placed interpreting the Municipal Act and its regulations in a common-sense and purposive manner above fully indemnifying a very seriously injured Plaintiff, and ensuring that Mr. Prince is not exposed to personal liability. Anyone who defends municipalities in tort cases knows that this is all too often not the outcome, and that the temptation must exist for even the most rigorously principled judges to find a small apportionment of liability on the part of a municipality rather than leaving a deserving plaintiff undercompensated.
This case, like the trial decision in Beardwood, suggests a refreshing trend towards courts using a more common-sense approach towards municipal liability. It is hoped that this trend continues, and that the Court of Appeal’s decision in Beardwood is an outlier. The fact that Morris v. Prince was decided after the Court of Appeal decided Beardwood can give the province’s municipalities some cause for optimism in this regard.
