Fridays with Rogers Partners

At our weekly meeting, Eli Feldman discussed the recent decision of the Ontario Court of Appeal in Beardwood et al. v. The City of Hamilton, 2023 ONCA 436.

Introduction

In Beardwood et al. v. The City of Hamilton, 2023 ONCA 436 (“Beardwood”), the Ontario Court of Appeal (the “ONCA”) considered the statutory impact on a city’s duty to maintain its roads for the safety of motorists.

Background

On August 25, 2015, Mr. David Beardwood (“Mr. Beardwood” or the “Plaintiff”) broke his left tibia after he fell off his motorcycle while traveling at a low speed on a city street in Hamilton, Ontario. As Mr. Beardwood was driving, he hit a bump in the road, causing his motorcycle’s front wheel to go airborne. The Plaintiff then lost control of his motorcycle and fell to the ground.

Subsequently, Mr. Beardwood and his family members brought an action against the City of Hamilton (the “City”).

Superior Court of Justice

At first instance, Justice John Krawchenko found that the road was not in a state of reasonable repair at the time of Mr. Beardwood’s fall. In other words, the pothole (or, in legalese, the “pavement discontinuity”) created an unreasonable risk of harm to a reasonably prudent motorist. Justice Krawchenko further held that the non-repair caused the Plaintiff’s accident.

Despite these findings, Justice Krawchenko accepted that the City had a valid statutory defence pursuant to the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act, 2001”), because it fulfilled its requirement under the Minimum Maintenance Standards (the “MMS”).

Section 16 of the MMS provides that a surface discontinuity is deemed to be in a state of repair if it is less than or equal to 5 cm. Justice Krawchenko accepted expert evidence that the surface discontinuity was, at most, 4.5 cm, leading him to conclude that the road was in a reasonable state of repair pursuant to the MMS at the time of the Plaintiff’s accident.

Before dismissing Mr. Beardwood’s action, Justice Krawchenko noted that, had he found the City liable, he would have assessed the Plaintiff’s contributory negligence at 50% because Mr. Beardwood’s low rate of speed provided him “an opportunity to observe the roadway and to adjust his approach if it was required.”

The Plaintiff appealed to the Ontario Court of Appeal, arguing that the City failed to prove compliance with the MMS pursuant to s. 44(3)(c) of the Municipal Act, 2001.

Ontario Court of Appeal

The central issue before the ONCA was whether the trial judge committed a palpable and overriding error in finding that the evidence established that the height of the surface discontinuity complied with the MMS standards. The ONCA answered this question in the affirmative and allowed Mr. Beardwood’s appeal.

According to the court, Justice Krawchenko committed a palpable and overriding error by anchoring his decision around a speculative expert report. At trial, the only evidence concerning the height of the pavement discontinuity derived from an expert witness called by the Plaintiff, who acknowledged that he had not taken measurements of the accident scene. Instead, the expert stated that he merely assessed photographs of the scene taken by the City to formulate his opinion that the pavement discontinuity ranged between 3.5 and 5.5 cm. The trial judge, in turn, averaged the expert’s range to conclude that the pavement discontinuity was 4.5 cm.

The ONCA held that the trial judge’s finding amounted to unjustifiable “guesswork superimposed on the appellant’s expert’s speculation.” Although the Plaintiff had properly introduced the photographic evidence through expert testimony, the court held that the City still bore a responsibility to establish the reliability and accuracy of that evidence, or tender other evidence that accurately measured the height of the pavement discontinuity.

The court also overturned Justice Krawchenko’s apportionment of liability, holding the City 100% responsible for the Plaintiff’s injuries. In total, Mr. Beardwood was awarded approximately $434,000 in damages.

Conclusions

Beardwood serves a reminder for municipalities to maintain their roadways so that they are safe for all motorists, including motorcyclists.

This may be truer today than ever before. According to a recently published Statistics Canada summary (“Circumstances Surrounding Motorcycle Fatalities in Canada, 2016 to 2020”), the number of motorcycles registered for on-road use grew 2.7 percent nationwide between 2017 and 2020. And unsurprisingly, although motorcyclists represent just two percent of licensed drivers, they account for over 10 percent of all road user deaths.

Finally, this case makes clear that, regardless of the vehicle, municipalities are responsible for conducting prompt investigations, including measurements at sites of alleged losses, after receiving notice of a claim.

Liability lurks in tar.