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$12M award upheld against Ontario municipality for weather-related car crash

Canadian Press THE CANADIAN PRESS

TORONTO — A judge made no errors in ruling that a young woman's devastating car crash occurred only because a municipality negligently failed to ensure the road was snow-free, Ontario's top court ruled on Friday.

In upholding a $12-million award, the Court of Appeal found no reason to interfere with an earlier decision that Sudbury was liable for Lisa Marie Belanger's catastrophic injuries.

The case arose during a bitterly cold winter storm in November 2000. Belanger, then 20, was driving her red 1990 Mazda over an icy bridge on a busy two-lane road just northwest of the city. In a matter of seconds, the car began fishtailing, hit the side of the road, crossed the centre line and smashed into an oncoming school bus.

Belanger and her family sued the city and regional municipality for negligence. They argued local authorities had failed to keep the road in a reasonable state of repair.

Evidence at trial was that maintenance crews had salted the road more than three hours before the crash, but the salt had become ineffective because of falling snow.

In November 2015, Superior Court Justice Robbie Gordon found the region 100 per cent liable for Belanger's injuries after deciding the crash had occurred only because the road was snow-covered and slippery due to improper maintenance.

``The (region) failed to meet its maintenance-quality standards when the road, in a winter storm event, was left without maintenance activity for over three hours,'' Gordon ruled. ``That lack of maintenance activity resulted in snow-packed and slippery road conditions. That those conditions could result ought to have been known by the (region's) employees.''

Sudbury appealed on the basis that it had taken reasonable steps to keep the road safe, and could not have known it wasn't. The region also argued Gordon was wrong to find Belanger bore no responsibility at all for what happened to her.

In dismissing the challenge, the Appeal Court leaned on Gordon's finding that the region had violated its own winter road-maintenance standards, which called for plowing or salting at least every two hours during a storm. However, evidence was that more than three hours elapsed because of several equipment failures and, in fact, the bridge was only re-salted after the crash.

In an interview with AdvocateDaily.com, Toronto personal injury lawyer David Derfel says the municipality failed to abide by its own standards “when it suited its purposes.”

“What I find interesting when I read the decision is that the court makes it very clear that municipalities cannot operate by a double standard,” says Derfel, principal of Derfel Injury Lawyers. “The maintenance standards can't be used as a shield when followed, and ignored when it's not convenient to abide by them.”

Derfel says many municipalities developed their maintenance standards “before the precipitous impact of global warming.” He suspects many will have to review their standards and adjust them to account for potentially more snow and greater freeze-thaw cycles.  

“These climatic changes will result in a greater burden regarding winter maintenance,” says Derfel.

“Municipalities must take climate change into consideration or claims like this will become more frequent,” he says.

``It is not the function of this court to re-try the case or, absent reversible error, to second-guess the trial judge's factual findings,'' the Appeal Court said. ``The important point is whether the trial judge considered, as he was obliged to do, the reasonableness of the maintenance works in fact carried out.''

The higher court noted that the municipality's liability did not rest simply on the fact that the road was in poor condition, but on its failure to address the serious hazard that developed. As the trial judge found, the court said, the region failed to respond to the risk in a reasonable fashion under all the circumstances.

The Appeal Court also found no reason to interfere with Gordon's ruling that Belanger had only lost control of her car because of the poor road conditions and therefore bore no liability in the crash.

``There was no evidence at trial of any action or omission attributable to Ms. Belanger that caused her car to cross the centre line of the highway,'' the Appeal Court said. ``There was also no evidence that Ms. Belanger was inattentive to, or distracted from, her driving, or that the condition of her car contributed in any way to the accident.''

— With files from AdvocateDaily.com

© 2017 The Canadian Press

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