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ONCA confirms municipality’s evidentiary obligations to seek defence under MMS

The Ontario Court of Appeal recently released its decision in Beardwood et al. v The City of Hamilton, 2023 ONCA 436. In this decision, the ONCA considered the statutory defences available to defendant municipalities in cases of accidents occurring allegedly due to the state of the roadways.

Trial decision

In Beardwood¸ the plaintiff was involved in a single-vehicle motorcycle accident. The plaintiff was travelling at a low speed when he encountered a “bump” allegedly causing his front wheel to go into the air, and his subsequent fall from his motorcycle.

As noted in BLG’s prior publication about the trial decision, the Trial Judge found that the intersection was not in a reasonable state of repair as the discontinuity created a risk of harm to an ordinary reasonable driver.

However, the Trial Judge then went on to consider the defences available to the municipality under the Municipal Act (Act), and specifically whether any defences under the Minimum Maintenance Standards (the MMS) had been met. Section 16 of the MMS provides that if a surface discontinuity on a roadway is less than or equal to 5 cm, it is deemed to be in a state of repair. The Trial Judge accepted the evidence that the surface discontinuity was at most 4.5 cm and therefore, the area was deemed to be in a state of repair. The action was dismissed.

Court of Appeal decision

The plaintiffs appealed the trial decision to the ONCA. The plaintiff argued that the City failed to meet its onus of proving compliance with the MMS as required under s. 44(3)(c) of the Act.

The Court of Appeal noted that the only evidence concerning the height of the discontinuity came from an expert witness called by the plaintiff. During trial, the expert confirmed that he had not taken measurements of the accident scene and that he had assessed photographs of the scene taken by the City that were provided to him as depicting heights of the discontinuity ranging from roughly 3.5 and 5.5 cm. The Court of Appeal found that the expert’s assessments were speculative in nature.

The Trial Judge had reviewed the expert and photographic evidence, and ultimately accepted that the height of the discontinuity amounted to 4.5cm, the average of all numbers presented. The Court of Appeal concluded that the Trial Judge’s finding amounted to guesswork superimposed on the plaintiff’s expert's speculation. The Court of Appeal concluded that the Trial Judge had committed a palpable and overriding error in finding that the evidence established that the height of the discontinuity met the MMS standard.

The Court of Appeal found that though the plaintiff had introduced the photographic evidence through expert testimony, this did not relieve the City of its obligation to call evidence to establish the reliability and accuracy of the photographic evidence or some other accurate measure of the discontinuity. The City did not have any contemporaneous evidence of the height of the discontinuities despite being provided with adequate notice under the Act.

The Court of Appeal also went on to reverse the finding of 50 per cent contributory negligence, holding that the Trial Judge had committed a palpable and overriding error in failing to consider evidence regarding the conspicuousness of the discontinuity and plaintiff’s testimony regarding his perceptions of the discontinuity. The Court found the City 100 per cent responsible.


This case is a reminder for municipalities to conduct timely investigations, including measurements of the material area, upon receiving notice of a claim.

BLG has a robust municipal liability practice. For more information, please reach out to any of the key contacts listed below.

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