Winter Road Maintenance, Provincial vs. Municipal Roadway: It Can Make All The Difference

If an injured person chooses to sue a road authority for negligence as a result of deficient winter weather maintenance, the liability picture changes substantially based on the type of roadway where the accident occurred.

If the accident occurred on a roadway controlled by a municipality, the test for liability is governed by section 44 of the Municipal Act, 2001, S.O. 2001, c. 25. If the accident occurred on a roadway controlled by the Province, the test for liability is governed by section 33 of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P. 50. While it is not intuitive to think that who controls the roadway where the accident occurred would have much of an impact on liability, this could not be more wrong. Unfortunately, it is much harder for a Plaintiff to establish liability on a municipality for deficient winter road maintenance than it is to establish liability on the Province.

The Test

The test applicable to establish liability for accidents on both municipal and provincial roadways is:

Do the road conditions give rise to an unreasonable risk of harm to users of the roadway? Has the authority failed to take reasonable steps to eliminate or reduce the danger within a reasonable time after it became or ought to have become aware of its existence?1 Assuming causation is proven, if the above test is met, then liability will attach to the Province for maintenance deficiencies on provincial roadways. However, for accidents that occur on municipal roadways, section 44 of the Municipal Act provides the municipality with three statutory defences that are not available to the Province, most important of which are the standards pursuant to the Minimum Maintenance Standards for Municipal Highways.

The Minimum Maintenance Standards (MSM) are a statutory defence against accusations of negligence for non-repair on the roads. The problem with the MSM is that the threshold it creates is quite low. For example, for a class 1 roadway, which includes the busiest roadways, the minimum frequency for patrolling the roadway is three times every seven days. Furthermore, the minimum response time for a municipality to treat a roadway once it has determined there is a substantial probability of ice formation is six hours on a class 1 roadway. Once ice actually forms, the municipality has three hours to treat the ice on a Class 1 roadway.

Cases

The threshold created by the MSM is significantly lower than what the Courts have deemed...