Municipal Liability for Auto Accident

By Ankita Abraham, Student-at-Law

The court’s decision in Lloyd v. Bush, 2020 ONSC 842 dealt with the issue of liability in a collision involving the plaintiff and a defendant truck driver. It was alleged that the municipal defendants, County of Lennox and Addington and the Town of Greater Napanee, were liable for the subject roadway being in the state of non-repair due to snow.

Section 44 of the Municipal Act, 2001 sets out the duty of a municipality with respect to road maintenance. Justice Mew, relying on a Court of Appeal decision, summarizes the four-part test, which ought to be applied when a claim is made against a municipality for non-repair, as follows:

1. Non-repair: the plaintiff must prove the existence of a condition of non-repair, that is, a road-based hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road, with a view to the circumstances including the “character and location” of the road.
2. Causation: the plaintiff must prove that the condition of non-repair caused the loss in question.
3. Statutory Defences: if the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality. The municipality then bears the onus of proving that one of the three independently sufficient defences in s. 44(3) of the Municipal Act applies. These defences include proof that he municipality took reasonable steps to prevent the default from arising (s. 44(3)(b)).
4. Contributory Negligence: if the municipality cannot establish any of the statutory defences, it will be found liable. The municipality can, however, still demonstrate that the plaintiff’s driving caused or contributed to his or her injuries.

Justice Mew, further notes that Canadian courts, when considering these steps, have to take into account the difficult winter conditions that exist and the costs of clearing the roads of snow.

In addition, proof of a state of non-repair is not in itself enough to establish liability. Instead, a municipality will only be liable for failing to salt and/or sand and clear the road of snow where it had actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway, and where the municipality unreasonably neglected that risk.

After reviewing the evidence, Justice Mew held that, on a balance of probabilities, at the time of the accident, the road in question was in a state of non-repair. In particular, the following facts were relevant:

1. The accident occurred at a “hot spot,” which was known to be hazardous in winter conditions.
2. The Road Supervisor just four and a half hours prior to the accident had a specific concern about the condition of the road, where he felt the roads required immediate attention.
3. Despite these concerns, there was no evidence to suggest it was adequately responded to before the accident occurred.
4. There was some evidence that the conditions were slippery and no evidence of winter maintenance operations.
5. Both a witness and a police officer testified that on their arrival at the scene, approximately less than 30 minutes after the accident, they saw no evidence or indication of salt or sand application.

Justice Mew also found that the plaintiff established the second part of the test that the state of non-repair caused or contributed to the accident.

Further, the court held that due to the Town’s unfortunate lack of records or other reliable evidence that the work it claims was done was actually undertaken, they were unable to meet its burden of proving that it took reasonable steps to correct the state of non-repair.

Lastly, after reviewing each party’s speed and driving conditions, Justice Mew apportioned 50% liability to the County and the Town, 33% liability to the defendant truck driver, and 17% contributory negligence on the plaintiff.