When is a Municipality Liable in a Motor Vehicle Accident?

By Jennifer Singh

In Morris et al. v. Prince et al. [1] the plaintiff was involved in a pedestrian accident, wherein he was hit by the defendant, operating a pickup truck. The plaintiff commenced an action against the defendant driver as well as the City of London. One of the major issues to be determined, and what I will be specifically focusing on, is if the City of London breached its duty of care or failed to keep the subject intersection in a state of repair, and was therefore liable for the plaintiff’s damages.

Background

The plaintiff claimed damages resulting from injuries suffered when he was struck by a motor vehicle while crossing Fanshawe Park Road West at its intersection with Aldersbrook Gate in the City of London. The plaintiff was walking northbound along the pedestrian crosswalk on the west side of the intersection, and he was struck by a pickup truck driven by the defendant as he was turning left from Aldersbrook Gate onto Fanshawe Park Road. 

At the time of the accident the visual condition of the intersection was as follows: the sun had set, a light rain was falling, the truck’s driver-side window was tinted, and the pole supporting the traffic signal and two overhead lights on the centre median of the west pedestrian crosswalk was missing, as it had been knocked down a month prior (the traffic light was on a temporary structure).

The plaintiff claimed negligence against the driver of the defendant vehicle and the Corporation of the City of London. A third party claim had been commenced against Guild Electric Ltd.

Issues

The issues to be decided at trial were:

1. Did the City of London fail to maintain the intersection in a “state of repair” by virtue of failing to replace the missing lights, thereby breaching its duty of care owed to users of its roads?
2. If yes to issue 1, was the intersection deemed to be in a “state of repair” by virtue of the minimum maintenance standards provided for in regulations enacted under the Municipal Act, 2001?
3. If no to issue 2, did the state of non-repair of the intersection cause the plaintiff’s injuries?
4. Is Guild Electric liable for any portion of the damages for which the City is liable?
5. If the City and/or Guild are liable for the losses suffered by the plaintiff, what is the apportionment of liability?
6. Quantum of damages to which the plaintiffs are entitled arising from the injuries suffered by the plaintiff in the collision.

I will specifically be discussing the liability of the City of London as outlined in Issue #1 and #2.

Applicable Law

Section 44 of the Municipal Act, outlines the duty of care and remedy, if the duty of care is breached:

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.

(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.

(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 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.

(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.

(5) The minimum standards may be general or specific in their application.

The Court of the Appeal, in Fordham v. Dutton-Dunwich (Municipality) [2] laid out the four-step test for analysing a cause of action against a municipality for non-repair:

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 [another defendant]’s driving caused or contributed to the plaintiff’s injuries.

Issue #1:

The court noted that a municipality must keep its roads in a reasonable state so that users of the road may travel upon them safely, but a municipality is not an insurer of the safety of the users of its roads and cannot be held to a standard of perfection. What constitutes a reasonable state of repair depends on the various facts and is ultimately determined on a case-by-case basis.

The standard of care of a municipality must meet in fulfilling its duty of reasonable repair was laid out by the Court of Appeal in Fordham. Fordham outlines that a municipality’s standard of care is to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. This is not a measure of perfection.

However, the standard of care for road authorities rests on the notion of the ordinary motorist driving without negligence. An ordinary driver is expected to adjust his or her behaviour according to the nature of the roadway and the driving conditions.  If a driver does not adjust their driving accordingly, they cannot sustain an action for negligence against the municipality even where the conditions of a road present a hazard.

According to Fordham, the City of London owed a duty to the defendant driver (who was the only driver involved) to replace the missing lights within a reasonable time, provided that the defendant driver, at all material times, was an ordinary driver exercising reasonable care.

The question to be determined was whether the defendant driver paid attention to his surroundings and otherwise exercised reasonable in the circumstances, and therefore would be considered to be exercising reasonable care.

The defendant driver testified that as he was waiting for the traffic light to turn green, he was scanning the intersection for pedestrians, but he did not see the plaintiff. However, the defendant driver was convicted of making an unsafe left turn under the Highway Traffic Act, and he admitted his guilt and negligence for making the unsafe turn. As such, the court did not accept the defendant’s driver evidence that he scanned the intersection for pedestrians before making his left turn.

In the case of the subject intersection, at the time of the accident, it would have been obvious to an attentive driver that the lights on the median were missing, thereby creating a potential hazard for pedestrians using the crosswalk.  Furthermore, the defendant driver was apparently familiar with this intersection.

The defendant driver had a duty in the circumstances to adjust the manner in which he executed his left turn to account for the reduced visibility in the north section of the crosswalk. The court decided that the defendant driver ought to have reduced his speed and rolled down his (tinted) window in order to survey the crosswalk better before making his turn.

Given the conclusion that the defendant driver did not scan the crosswalk prior to commencing his turn, it was concluded that he was not an attentive driver, as such, he was a negligent driver. Therefore the municipality’s duty to the defendant driver would not be as high as laid out in Fordham. It followed that unless the lighting at the intersection equated to being in a “state of non-repair”, the City of London would not be responsible for the plaintiff’s losses.

The court noted that at the time of the accident, the crosswalk was lit by multiple sources of illumination (two overhead streetlights positioned one at each end of the crosswalk, the headlights of the stopped eastbound traffic, natural atmospheric light, the temporary traffic signal on the median and the headlights of defendant driver’s vehicle). Therefore, there was sufficient illumination from all other sources of light to have enabled an ordinary driver exercising reasonable care to detect the plaintiff while he was waiting to cross and then walking on the crosswalk.

As such, given the other sources of illumination, it was concluded that the intersection was in a reasonable state of repair.

Issue #2:

The court discussed Issue #2 in case it was determined that Issue #1 was wrongly decided. The available defences were discussed, particularly the defence of the minimum maintenance standards in the Municipal Act. Section 10 of the MMS deals with the minimum standard for streetlights (referred to as luminaires).

On December 21, 2015, s. 10(1) read as follows: For conventional illumination, if three or more consecutive luminaires on a highway are not functioning, the minimum standard is to repair the luminaires within the time set out in the Table to this section after becoming aware of the fact.

Pursuant to clause 10(5)(a) of the MMS (as it read in 2015, at the time of the accident), luminaires are deemed to be in a state of repair for the purpose of subsection (1), if the number of non-functioning consecutive luminaires does not exceed two.

Accordingly, it is a complete defence to the plaintiff’s claims if it is found that the number of non-functioning consecutive streetlights at the time of the collision was less than three.

There were only two non-functioning streetlights at the subject intersection at the time of the accident. There were other non-functioning streetlights on the street where the accident occurred, but they were not consecutive to the subject intersection. As there were no more than two consecutive streetlights on the subject road that were non-functioning, the missing streetlights were deemed to be in a state of repair. The City of London would be able to rely on the defence that they met the minimum maintenance standards at the time of the accident.

Takeaway

It is difficult to establish negligence as against a municipality given the Municipal Act and the case law, in the case of a motor vehicle accident. The standard of care a municipality must meet is to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. The key is that the drivers must be exercising reasonable care at the time of the accident, and whether that was the case is determined on a case-by-case basis.

[1] Morris v. Prince, 2023 ONSC 3922 (CanLII), <https://canlii.ca/t/jz36x>

[2] Ferguson v. The Corporation of the County of Brant, 2013 ONSC 435 (CanLII), <https://canlii.ca/t/fvqm3>