Beware of the Surface – Statutory Defences Available for Municipalities

By Elizabeth Branopolski

In the recent decision of the Ontario Superior Court of Justice, Hamilton-Dawkins v. Town of Ajax, 2024 ONSC 2152, the Court considered whether the Town of Ajax was able to rely on the statutory defences available under s. 44 of the Municipal Act to avoid liability.

Background

The plaintiff, Dorothy Hamilton-Dawkins, brought an action to recover damages she sustained due to a trip and fall that occurred on a residential sidewalk located in the Town of Ajax on May 9, 2011. The plaintiff tripped on an area of the sidewalk that she alleged had a surface discontinuity. A complaint and notice of the fall were registered with the Town a few days after the incident. The plaintiff noticed repairs had been made to the sidewalk within a week of the incident.

The parties acknowledged that the sidewalk surface discontinuity constituted a state of non-repair within the meaning of s.44(1) of the Municipal Act. Despite acknowledging the condition of the sidewalk, the Town argued it lacked reasonable knowledge of the discontinuity relying on the defence as set out in s. 44(3) of the Municipality Act. 

Relevant Legislation Provisions

The court considered the statutory and regulatory provisions of s.44 of the Municipal Act and s.16.1 of the Minimum Maintenance Standards for Municipal Highways in its decision:  

s. 44 of the Municipal Act provides that:

Maintenance

44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.  2001, c. 25, s. 44 (1).

Liability

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.  2001, c. 25, s. 44 (2).

Defence

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a)  it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b)  it took reasonable steps to prevent the default from arising; or

(c)  at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.  2001, c. 25, s. 44 (3).

Section 16.1 of the Minimum Maintenance Standards for Municipal Highways provides that:

16.1 (1) The minimum standard for the frequency of inspecting sidewalks to check for surface discontinuity is once per year. O. Reg. 23/10, s. 10.

(2) If a surface discontinuity on a sidewalk exceeds two centimetres, the minimum standard is to treat the surface discontinuity within 14 days after becoming aware of the fact. O. Reg. 23/10, s. 10.

(3) For the purpose of subsection (2), treating a surface discontinuity on a sidewalk means taking reasonable measures to protect users of the sidewalk from the discontinuity, including making permanent or temporary repairs, alerting users’ attention to the discontinuity or preventing access to the area of discontinuity. O. Reg. 23/10, s. 10.

(4) In this section, “surface discontinuity” means a vertical discontinuity creating a step formation at joints or cracks in the surface of the sidewalk. O. Reg. 23/10, s. 10.

Analysis of the Court

In establishing the extent of the Town’s liability, the Court relied on the four-step test outlining the statutory cause of action as against a municipality, as established in Fordham v. Dutton Dunwich,  2014 ONCA 891. The four-part test includes:

1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.
2. Causation: The plaintiff must prove the “non-repair” caused the accident.
3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
4. Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries.

The Court confirmed the plaintiff was able to prove the first two steps of the test, non-repair, and causation. The onus fell on the Town to establish, on the balance of probabilities, one of the statutory defences outlined in s.44(3) could be applied for their defence.

Under s. 44 (3) of the Municipality Act, municipalities can rely on one of three defences against liability. The defences include a) the reasonable knowledge defence, b) the reasonable steps defence, and c) the minimal standards defence.

The Town relied on the defence of s.44(3)(a) of the “reasonable knowledge defence”. The Town argued there was no evidence of direct knowledge of the surface discontinuity on the part of the Town, nor was there any evidence that the Town could have known about the discontinuity.

The Court determined that because of the Town’s lack of specific knowledge about the surface discontinuity prior to the incident, it could not be held liable. The Court acknowledged there was no evidentiary basis that supported that the Town knew or could have reasonably known the state of repair of the sidewalk before May 9, 2011.

Despite taking an issue with the Town’s written policy training, and failure to record the sidewalk’s condition before the incident, the Court maintained there was no evidence of negligence or failure to follow regulations. A representative for the Town had testified that the sidewalk was inspected a year prior to the incident and only showed a minor crack but no significant discontinuity.

As outlined in s. 16.1 of the Minimum Maintenance Standards for Municipal Highways, the town has one year to inspect the sidewalks. There was no evidence of any complaints to the sidewalk prior to May 2011 that would have compelled the Town to repair the area prior to the one-year inspection mark. It was determined the Town adhered to the requirements as outlined in the Municipality Act.  

The Court concluded that the Town was able to establish the statutory defence per s.43(a) of the Municipality Act.

Takeaways

This decision continues to emphasize the importance of the statutory defences that are available to municipalities against liability for road maintenance.

This decision reflected on the standard of the protocols of inspection that are in place by municipalities. The plaintiff criticized the Town’s overall inspection process including the written policy, training, and failure to properly record inspections. Despite acknowledging some concern over the protocols in place, the Court indicated that it is not its place to determine whether there could be a better process or policy to report or inspect for sidewalk deficiencies than what was implemented by the Town.

As this decision demonstrates, as long as a municipality’s system of inspection complies with the requirements set out in the Municipality Act and adheres to the applicable regulations, the Court will consider the system of inspection as sufficient.