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Court of Appeal Upholds Dismissal of Action Against Municipality Based on Defences Available Under Municipal Act

In the recent decision of House v. Bairdthe Ontario Court of Appeal upheld a trial judge’s decision to dismiss an action against a lower tier municipality based on the defences available under the Municipal Act, 2001.


This action arose out of a motor vehicle accident that occurred on a winter night in rural Ontario on February 25, 2009. The accident occurred on a road which had a long descent leading to a dip, then a crest, followed by a further descent.

The appellant was driving his friend’s vehicle when he suddenly lost control, causing it to move into oncoming traffic. As a result, another vehicle struck the vehicle driven by the appellant, killing one of the passengers inside.

The Court heard evidence from a weather specialist who indicated that the forecast that evening indicated a 40 per cent chance of rain and snow. Although there was no warning of freezing rain, it was nevertheless a possibility. There was a probability that the road at the scene of the accident had turned icy one hour prior. Witnesses indicated that it was raining at the time of the accident; however, there were differing accounts as to whether there was ice on the road at the time of the accident.

The vehicle the appellant was driving had tires that were worn out beyond acceptable limits and had reduced traction. The appellant and the other passengers in the vehicle also admitted to having smoked marijuana earlier that evening. Furthermore, the appellant may have been distracted at the time, as his girlfriend had told him that she was pregnant earlier that day and he had “flipped out” as a result.

On the evening of the accident, a municipal staff member was on call. He had not received weather charts that day. He recalled noticing brief snowfall after dinner at his home, but observed that the snow was melting on contact with the road. He did not consider this to be a situation that required his patrol nor did he believe that any winter maintenance contractors should be called out.

After being called by police to the accident scene, the staff member noticed that it was drizzling quite heavily and that the temperature had dropped. He found some slippery sections in and around the accident area and applied salt.

The relevant roadway was a Class 3 roadway pursuant to the Minimum Maintenance Standards (“MMS”) to the Municipal Act.

The expert called upon by the municipality opined that the staff member’s decision not to call out winter maintenance was consistent with the forecast and that the MMS imposed no requirement for winter patrolling. The MMS only requires that Class 3 roadways be treated as soon as practicable, and within 8 hours of the municipality becoming aware of icy conditions.

The trial judge found that the municipality had an adequate system of winter maintenance in place at the time and that unanticipated ice had formed on the roadway one hour before the accident occurred. Furthermore, as a lower-tier municipality, it was not obligated to adhere to the same standards a regional municipality or provincial ministry. Finally, the Court found that the evidence did not support a finding that the roadway was an area of concern and noted that the regional standards only required areas of concern to be regularly patrolled.

The judge found that the appellant and the friend whose vehicle he was driving were equally liable for the accident. The trial judge absolved the lower tier municipality and the driver of the vehicle struck by the appellant of any liability.

Court of Appeal Decision

The Court of Appeal upheld the trial judge’s decision and dismissed the appeal for the following reasons:

  1. Although the trial judge did not directly make a finding that the roadway was in a state of non-repair pursuant to the MMS, his findings that ice had formed at the accident location and that the roadway was slippery amounted to such a finding.
  2. After making this finding, the trial judge did not fail to put the onus on the municipality to prove one of the three defences under section 44(3) of the Municipal Act.
    1. The municipality provided evidence that it could not have known about the icy conditions, as ice was unanticipated by the forecast and the roadway was not an area of concern which required additional patrolling;
    2. The municipality also provided evidence that its system for winter maintenance was reasonable for a lower tier municipality and that the steps it took that night were in accordance with this system; and
    3. The MMS for a Class 3 roadway was that it should be treated within 8 hours after the municipality becoming aware of ice and the municipality met that standard.
  3. As a result of this evidence, the municipality met the standard and could rely on each of the three defences under the MMS.

  4. The trial judge did not err in finding that a patrol on the roadway was not required for the evening of the accident. Although the appellant put forth evidence at trial that the roadway was shady and had a downhill grade, there was no evidence that the municipality had previously found that it was an area of concern.
  5. The trial judge did not err in finding that the MMS was applicable in this case. Although the Court in Giuliani1 found that the municipality should have taken steps to avoid ice formation knowing that ice was going to form, in the current case, there was a finding that the ice formation was unanticipated and that the accident occurred before the municipality had learned about it.
  6. The trial judge did not err in finding that the municipality did not have a duty to ensure driver safety on roadways. As per Fordham2, municipalities are not to be considered insurers for the safety of users on roadways.
  7. Finally, regardless of whether or not the trial judge found that there had been ice on the roadway, the action did not fail because a condition of non-repair had not been proven, but rather because the municipality had met its onus to establish the defences under the MMS.

The Court of Appeal also refused to vary the trial judge’s apportionment of negligence, as there was ample evidence for him to find that the appellant was contributorily negligent for the accident.

1Giulianiv. Halton (Regional Municipality), 2011 ONCA 812. This case dealt with the issue of whether the municipality should have anticipated ice formation. The Court of Appeal upheld the trial judge’s findings that the municipality failed to monitor the weather and failed to deploy winter maintenance as early as needed in order to avoid the formation of ice.

2Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891