By: Shadi Katirai and Michael Connolly
Introduction
Section 44(1) of Ontario’s Municipal Act[1] imposes a duty on municipalities to keep highways and bridges in a state of reasonable repair, while section 44(2) notes that municipalities that fail to do so are liable under the Negligence Act[2] for damages that people sustain because of that failure. This legislation even outlines defences for municipalities in cases where road maintenance is at issue in s.44(3). However, it is largely silent on the role of the driver in such a scenario, and particularly the role of the driver in relation to that of the municipality.
Stamatopoulos v. Harris,[3] a 2022 decision of the Ontario Court of Appeal, elucidates this issue. The court found that it is not an error for a judge to measure the municipal standard for road repair from the perspective of a driver’s behaviour, if she does so after she first considers all other factors to determine whether the road would be hazardous for the ordinary reasonable driver. Once this is done, the driver’s conduct can be analyzed to determine whether they acted as an “ordinary reasonable driver” and accordingly, whether the road was in a state of non-repair.
The Facts
Mr. Stamatopoulos was a front seat passenger in a vehicle driven by Mr. Harris. After driving over a depression or dip in the roadway, Mr. Harris lost control of the vehicle. The vehicle rotated, left the roadway and travelled across the shoulder and into a ditch, where it hit a hydro pole. It then travelled a further distance and collided with a group of trees and an embankment on the passenger side. Mr. Stamatopoulos suffered life altering injuries.
Mr. Harris conceded that he was negligent and reached a settlement with Mr. Stamatopoulos. However, both Mr. Harris and Mr. Stamatopoulos claimed the allegedly unmaintained road was also a cause of the accident. The liability and damages of the Municipality of Durham were the sole issues on appeal.[4]
The Standard for Drivers
In Deering v. Scugog (Township),[5] Howden J. set out the standard for drivers in the context of alleged roadway-related motor vehicle accidents. He explained that “The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver,” which means “those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.”[6] He noted that the competing duty of road authorities to keep their roads in reasonable repair for ordinary, reasonable drivers does not extend “to include drivers who, for instance, do not pay attention, drive at excessive speeds, drive too close to the vehicle in front and who are otherwise negligent.”[7]
Test to Establish Negligence Against a Municipality
In Stamatopoulos, Simmons, Young, and Zarnett J.J. recalled the four-part test for establishing the statutory cause of action in negligence against a municipality as set out in Fordham v. Dutton-Dunwich (Municipality):[8]
- 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.
- Causation: The plaintiff must prove the “non-repair” caused the accident.
- 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) of Ontario’s Municipal Act applies.
- Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) of Ontario’s Municipal Act will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries.
The Trial Analysis
Despite Mr. Harris’s submission that several different aspects of the roadway indicated that it was in a state of non-repair, the trial judge disagreed on all points. She determined that the lack of a sign warning of the dip,[9] the location of the hydro guide pole, and the steep slide slope[10] did not amount to a state of non-repair. However, her most significant finding was that the dip itself also did not constitute a state of non-repair.[11] Taking into account all of the evidence, she found that the dip not pose an unreasonable risk to an ordinary reasonable driver.
Since the trial judge found that there were no problems with the roadway, it followed that it could not have legally caused the accident. Instead, the trial judge attributed the cause to Mr. Harris’s own behaviour. This included significant speeding, taking both hands off the wheel to open a pop bottle, placing only one hand back on the wheel when he began to traverse the dip in the road, and panicking and slamming the accelerator instead of the breaks when he felt the vehicle going over the dip.[12] The trial judge found that there was no negligence on the part of Durham whatsoever.[13]
The Court of Appeal Analysis
At the Court of Appeal, Mr. Stamatopoulos argued that the trial judge “conflated the question of the driver’s manner of driving with the question of whether the road was in a state of non-repair.” [14] The Court of Appeal disagreed, and noted that before looking at Mr. Harris’s driving, the trial judge considered all other factors, including the Fordham test, the length and depth of the dip, expert evidence, photographs, witness evidence, and evidence that driving over the dip at and over the speed limit was not normally hazardous. It was only after concluding that the road would not pose a hazard to the ordinary reasonable driver, that the trial judge then turned to Mr. Harris’s driving and determined that he was not driving as an ordinary reasonable driver. This was consistent with her finding on the state of the road. Had the trial judge found that Mr. Harris was an ordinary reasonable driver, and an accident had still occurred, then she would have had to reconsider whether the road posed a hazard to the ordinary reasonable driver.
Ultimately, the Court of Appeal found that there was no error in taking the manner of Mr. Harris’ driving into account when considering whether the road was in a state of non-repair. Read in context, it was only one factor considered. The appeal was dismissed.
Conclusion and Takeaways
Although this ruling may feel intuitive to seasoned litigators in the insurance sphere, it is a powerful one. In cases where the insured party is a municipality, this ruling can be mobilized to help the municipality’s case. It can be used by municipal insurers to focus in on the driver’s conduct as she approaches and drives on the allegedly hazardous road, to pin some, or all the liability on the defendant driver. On the other hand, in cases where the insured is the defendant driver, this case opens insurers to liability, as injured parties can more easily point to the conduct of the driver when there is an attempt to attribute fault to the state of the roadway.
[1] Municipal Act, 2001, S.O. 2001, c. 25
[2] Negligence Act, R.S.O. 1990, c. N.1
[3] Stamatopoulos v. Harris, 2022 ONCA 179
[4] Ibid at para 2.
[5] Deering v. Scugog (Township), 2010 ONSC 5502
[6] Ibid at para 154.
[7] Ibid at para 155.
[8] Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 at para 26.
[9] Stamatopoulos v. The Regional Municipality of Durham, 2019 ONSC 603 at para 510.
[10] Ibid at para 520-521.
[11] Ibid at paras 508, 615.
[12] Ibid at para 526.
[13] Ibid at para 615.
[14] Stamatopoulos v. Harris supra note 3 at para 4.
