The Difficulties Of Relying On The Minimum Maintenance Standards

• Published date: 28 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Trials & Appeals & Compensation
• Law Firm: McCague Borlack LLP
• Author: Mr Van Krkachovski and Tess Doane

In 2020, the Ontario Superior Court of Justice released its decision following the third trial in Lloyd v Bush.¹ The case arose out of a motor vehicle accident that occurred in 2001 when Leslie Lloyd's small vehicle collided with a Freightliner propane tanker operated by David Bush. The collision occurred at Rankins Corners, an S-curve in the road near the town of Napanee, Ontario.

As a result of the accident, Ms. Lloyd sustained serious injuries. She sued not only the operator and owner of the propane tanker but also named the Corporation of the County of Lennox and Addington and the Corporation of the Town of Greater Napanee as defendants to her claim. At issue in the third trial was the question of liability: how much liability, if any, should be attributed to the municipal defendants for the poor road conditions? And would the municipalities' efforts to meet the minimum maintenance standards absolve them of liability?

Municipal Roadways must be kept in a Reasonable State of Repair

Section 44(1) of the Municipal Act states that "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 Further, section 44(3) of the Act creates a defence for municipalities; it states that the municipality will not be liable for failing to keep the roadway in a reasonable state of repair if any of the following three circumstances are proved:

1. it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
2. it took reasonable steps to prevent the default from arising or
3. 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.

Of particular significance for the municipal defendants to this action was the defence under 44(3)(c), as they tried to prove that they had met the minimum maintenance standards, negating their liability.

Download the Minimum Maintenance Standards Chart compliments of MB. The information in this chart has been reviewed at the time of this article's publication, and there have been no changes to the information since 2018.

Decision: Why the road was deemed to be in a state of non-repair, and why the minimum standards were not met.

Justice Mew found that the road conditions at the time of the accident were hazardous...