Unfortunately, thousands of people suffer accident injuries in Ontario every year. Sometimes, municipalities can be held liable for damages, for example, where they have jurisdiction over a highway, bridge or sidewalk but fail to keep it in a reasonable state of repair. It is useful to keep this in mind if you have been injured in a motor vehicle or slip and fall accident.

We have reported on municipal liability and the defence of minimum maintenance standards previously. After a brief recap, this article looks at a recent decision of the Superior Court of Justice in which the judge found that the road was not in a reasonable state of repair, but the municipality was spared from liability because of the statutory defence of compliance with minimum maintenance standards.

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. 

To successfully bring a claim against a municipality, the plaintiff needs to prove:

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

If the plaintiff succeeds, the municipality can:

  • seek to rely on one of the statutory defences set out in the legislation; or
  • in order to reduce but not eliminate the damages payable, seek to establish contributory negligence by showing that the plaintiff’s conduct caused or contributed to their injuries.

What is the statutory defence of complying with minimum maintenance standards?

The municipality can escape liability if it establishes one of the statutory defences. This article focuses on the defence of compliance with any minimum standards established by the Minister of Transportation.

The Minimum Maintenance Standards for Municipal Highways Regulation 2002 (Minimum Maintenance Standards) sets out the minimum standards of repair for highways under municipal jurisdiction. 

If minimum standards apply to the highway and the alleged default, and the municipality has met them, it will not be liable for the injury caused.

Plaintiff was injured in a motorcycle accident after encountering bump

In David Beardwood v The City of Hamilton, the plaintiff fractured his left tibia in a single-vehicle motorcycle accident. He required two surgeries and follow-up rehabilitation.

The plaintiff left a stopped position and approached an intersection when his front wheel went up in the air after he hit a bump. He scooted across the roadway to the other side of the intersection, where he fell off his motorcycle.

The plaintiff brought a claim against the City of Hamilton. He argued that the bump constituted a failure by the City to keep the road in a reasonable state of repair.

Court agrees, finding that the road was not in a reasonable state of repair

Justice Krawchenko listened to expert evidence from an engineer retained by the plaintiff. Based on measurements taken with a straight-edged ruler provided by the plaintiff in photographs which showed a vertical discontinuity of between 3.8 and 5 cm, the expert assessed the height of the vertical discontinuity of the bump at between 3.5 and 5.5 cm. The expert opined that the discontinuity and the angle of the intersection were the contributing factors to the loss of control and subsequent fall. 

His Honour explained that it was not necessary for the plaintiff to pinpoint the exact location where he came into contact with the discontinuity, which spanned the entire intersection. Taking into account the expert evidence, his Honour found that the existence of a discontinuity at an irregularly angled intersection created a risk of harm to ordinary reasonable drivers. Therefore,  the road was not in a reasonable state of repair.

Action dismissed because City complied with the minimum maintenance standards

The City relied on the Minimum Maintenance Standards for the height of roadway “surface discontinuities”. According to the regulation, the roadway is deemed to be in a state of repair if the height is less than or equal to the height set out on a table, which is 5 cm. The Minimum Maintenance Standards applied to the subject roadway.

Justice Krawchenko noted that the exact point of initial contact with the surface discontinuity in the road was unknown. As a result, his Honour decided that it would be unfair to choose both the low and high ends of the measurement determined by the plaintiff’s expert. His Honour noted that the average of 4.5 cm, as well as the unadjusted heights shown in the plaintiff’s photographs, were less than or equal to the standard.

On this basis, the height of the bump was within the stated threshold of the Minimum Maintenance Standards. The City had therefore established a statutory defence, and the plaintiff’s action was dismissed. 

Contact Tierney Stauffer LLP for Advice following a Motor Vehicle Accident

If you have been injured in an accident involving a vehicle, one of your first priorities should be to consult with a personal injury lawyer in order to fully understand your rights and ensure they are protected. At Tierney Stauffer LLP, we can help you make decisions about what to do following your motor vehicle accident and develop a strategy to seek compensation.The experienced personal injury lawyers at Tierney Stauffer LLP can help you determine whether someone else may be at fault for your accident and whether you have a claim. We can help you to seek compensation and streamline the process to ensure your legal rights are protected. We recognize that no two accidents or accident victims are the same, which is why we give each claim the personalized attention needed to bring about the best possible resolution. Contact us at 1-888-799-8057 or reach out online to set up a consultation today.


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