Case: Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891

Keywords: Torts; Negligence; Municipal Duty to Repair Roads; Reasonable Driving Standard.

Synopsis: In 2007 while driving at night, the Respondent Plaintiff Mr. Fordham took a route through the country using rural roads on the way to visit a friend. As he came to an intersection (noticing there were no cars) he drove through and ignored the stop sign, going approximately 80 km per hour (the speed limit). Just after the intersection the road curved to the right. Mr. Fordham lost control, crashed into a bridge, suffered brain damage, and has no memory of the incident. He sued the municipality of Dutton-Dunwich for non-repair of the roadway, alleging breach of statutory duty to post a checkerboard sign warning of the road alignment. At trial, the judge found ordinary rural drivers do not always stop at intersections and in this particular rural area it was local practice for drivers to go through stop signs if they felt it was safe (at para. 5). The trial judge held the change of the road alignment after the stop was a hidden hazard. Liability was apportioned to Mr. Fordham and the municipality at 50% each. The municipality appealed to the Court of Appeal arguing the trial judge misapplied the test for assessing a municipality’s statutory duty of repair. Appeal allowed. Trial judge overturned, action against Dutton-Dunwich dismissed.

Importance: The Court of Appeal noted section 44 of the Municipal Act, 2001 provides a cause of action against a municipality that fails to keep its highways and bridges in a reasonable state of repair (at para. 25). Case law has established a four-step test to guide findings of liability: 1) Non-repair (did municipality fail to keep road in a reasonable state of repair?; 2) Causation (did “non-repair” cause accident?); 3) Statutory Defences (has municipality established a defence under s. 44(3) of the Act?); and 4) Contributory Negligence (did plaintiff’s driving cause or contribute to injuries?). In this case the appeal turned on whether the road was or was not “in a state of non-repair because Dutton-Dunwich failed to put up a sign warning of the offset” (at para. 28). The Court of Appeal noted municipalities have a duty to prevent or remedy road conditions that create an unreasonable risk of harm for ordinary drivers exercising reasonable care – “In other words, a municipality’s standard of care is measured by the ‘ordinary reasonable driver.’ Ordinary reasonable drivers are not perfect drivers; they make mistakes” (at para. 28); Deering v. Scugog, 2010 ONSC 5502, at para. 154; affirmed 2012 ONCA 386. The municipal duty of reasonable repair does not however extend to making roads safer for negligent drivers (at para. 29). The duty extends to erecting and maintaining signs, and warnings, where hidden hazards exist that are not readily apparent to road users (at para. 31); R v. Jennings, [1966] S.C.R. 532; Housen v. Nikolaisen, 2002 SCC 33, at para. 42. The trial judge erred when she held Dutton-Dunwich should have posted a sign to warn of the change in the road alignment (at para. 35). The Court of Appeal held the road “offset posed no hazard, no risk at all to the reasonable driver – the ordinary driver exercising reasonable care” (at para. 36). The Court of Appeal noted:

“A municipality’s duty of repair is limited to ensuring that its roads can be driven safely by ordinary drivers exercising reasonable care. A municipality has no duty to keep its roads safe for those who drive negligently. Running a stop sign at 80 km per hour is negligent driving. The undisputed evidence is that the road Fordham was driving on posed no hazard to a driver who stopped at the stop sign, or even to one who slowed to 50 km per hour at the intersection…Does the condition of the road pose an unreasonable risk of harm to reasonable drivers? In this case, the answer to this question is no.” (at paras. 7 and 53).

Counsel for Appellant: Terry Shillington & Jonathan de Vries (Shillingtons LLP, London)

Counsel for Respondent: Jim Virtue & Jim Mays (Siskinds LLP, London)

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