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...