Unfortunately, thousands of people are injured in Ontario in car and truck accidents every year. Sometimes, injuries can be caused by the negligent driving of others. Other times, municipalities are liable for damages, for example where they have jurisdiction over a highway or bridge but fail to keep it in a reasonable state of repair.

This article looks at what constitutes a reasonable state of repair. We also look at a recent case of the Court of Appeal for Ontario in which an injured passenger claimed that a dip in the road constituted a failure to keep it in a reasonable state of repair.

Municipalities are required to maintain highways and bridges

Under the Municipal Act 2001, the municipality that has jurisdiction over a highway or bridge is required to keep it in a state of repair that is reasonable in the circumstances. 

A municipality that fails to do so is, subject to the Negligence Act, liable to pay damages sustained because of this failure. This does not apply in certain circumstances, for example, if the municipality could not reasonably have been expected to have known about the highway’s state of repair, it took reasonable steps to prevent the default from arising, or it complied with any minimum standards established by the Minister of Transportation.

What does a plaintiff need to prove?

In order to successfully bring a claim against a municipality, the plaintiff must prove that:

  • the municipality failed to keep the road in question in a reasonable state of repair; and
  • the state of non-repair caused the accident.

If the plaintiff succeeds, the municipality can:

  • seek to rely on a defence set out in the legislation, for example, that it took reasonable steps to prevent the default from arising; or
  • in order to reduce but not eliminate the damages payable, show that the plaintiff’s driving caused or contributed to their injuries.

What does a reasonable state of repair mean?

Whether a road is in a reasonable state of repair is tied to the risk of harm to ordinary drivers. A municipality has a duty to prevent or remedy road conditions that create an unreasonable risk of harm for ordinary drivers, exercising reasonable care. The municipality’s standard of care is measured by the “ordinary reasonable driver”.

In other words, a municipality does not need to make its roads safer for negligent drivers, such as those that do not pay attention, drive at excessive speeds or drive too close to the vehicle in front. However, ordinary reasonable drivers are not perfect and can make mistakes.

Passenger suffers severe injuries in a car accident

In Stamatopoulos v Harris, the plaintiff suffered life-altering injuries in a motor vehicle accident. He was in the front passenger seat when the driver, Mr. Harris, lost control of the vehicle while driving over a dip in the roadway.

The plaintiff brought a claim against the driver and the Regional Municipality of Durham. The driver conceded that he was negligent and reached a settlement with the plaintiff. However, the plaintiff and driver also alleged that the road where the accident occurred was in a state of non-repair, due to the dip in the road, which was also a cause of the accident. 

Trial judge determines road was in a reasonable state of repair,  driver was not a reasonable ordinary driver

Justice Copeland of the Superior Court of Justice of Ontario considered a range of factors in determining whether the dip in the road constituted a state of non-repair. Her Honour looked at measurements of the dip including expert evidence, photos of the dip, evidence of witnesses about driving over the dip (including police drive-throughs), the absence of an accident history at the location and Mr. Harris’ manner of driving. The driver was speeding, distracted by having just opened a pop bottle and had only just placed one hand back on the wheel. 

Her Honour found, after considering these factors, that the depression in the road constituted a long, gentle dip that did not pose a problem for drivers at reasonable speeds. The plaintiff appealed this finding. 

Court of Appeal dismisses the plaintiff’s claim against the municipality

Justices of Appeal Simmons, Harvison Young and Zarnett dismissed the plaintiff’s appeal and upheld the decision that the road was not in a state of non-repair. 

Their Honours disagreed with the plaintiff’s argument that the judge conflated the driver’s negligence with the finding that the road was not in a state of non-repair. The judge looked at a range of other factors before turning to the driver’s negligence, concluding that he was not an ordinary reasonable driver. 

Their Honours held that the trial judge did not reason that, because he was driving in a manner that was not that of an ordinary reasonable driver, the road was not in a state of non-repair. Considering the manner of his driving was relevant because if he were driving in an ordinary reasonable manner and an accident had still occurred, the judge would have had to reconsider whether the road posed a hazard to the ordinary reasonable driver. 

The Court of Appeal found that there was no basis for interfering with the judge’s finding that the road was in a reasonable state of repair, so dismissed the plaintiff’s negligence claim against the municipality. 

If you are injured in an accident, it is critical to receive prompt legal advice to ensure that you identify all potential defendants and receive what you are entitled to. At Tierney Stauffer LLP, we understand that car and motor vehicle accidents are extremely stressful, especially when they result in injury. Our personal injury lawyers help you to seek compensation and streamline the process to ensure your legal rights are protected. Contact us at 1-888-799-8057 or reach out online to set up a consultation today.


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