Appeal decision confirms test for non-repair of city roads

A recent Ontario Court of Appeal decision confirming that the test for non-repair of a municipal road is an objective one is a “welcome breath of fresh air to municipalities,” Toronto insurance defence lawyer Jennifer Hunter writes in Lawyers Weekly.

In the trial decision of Fordham v. Dutton-Dunwich [2012] O.J. No. 5614, the municipality was found 50 per cent at fault for a single motor vehicle accident involving a driver who was consuming alcohol while driving and intentionally ran a stop sign at 80 km/h before missing a slight curve in the road and striking an abutment, writes Hunter.

The trial judge reasoned that “ordinary rural drivers do not always stop at stop signs,” and since the municipality knew or ought to have known of this behaviour it should have taken further steps to mark the change in alignment of the road, says the article.

The appeal decision set aside the trial judgment, confirming a municipality’s duty of care with respect to maintenance of roads does not extend to negligent drivers, and the test for non-repair is whether the road “can be driven safely by ordinary drivers exercising reasonable care,” says the article.

The court also stated the municipality’s duty of care does not extend to warning drivers of hazards that do not present an unreasonable risk of harm to drivers exercising reasonable care, writes Hunter, partner with Lerners LLP.

As part of its analysis, the court adopted a four-step test for analyzing a cause of action under s. 44 of the Municipal Act. The test touches on the assessment of non-repair, causation, statutory defences and contributory negligence, writes Hunter, who did not act in the case.

“A clear test will help counsel and judges analyze the evidence and the law and hopefully lead to decisions that are more consistent with the statute and leading authorities,” she says.

“It is hoped that the analysis contained in the Fordham decision will be followed in other cases, thereby restoring confidence on the part of municipalities and their insurers that the liability of road authorities will be assessed in a manner consistent with leading jurisprudence and statutory authority,” writes Hunter.

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