Fordham v. Dutton-Dunwich (Municipality)

• Jurisdiction: Ontario
• Judge: Laskin, Rouleau and Lauwers, JJ.A.
• Date: 30 April 2014
• Citation: 2014 ONCA 891,(2014), 327 O.A.C. 302 (CA)
• Court: Court of Appeal (Ontario)

Fordham v. Dutton-Dunwich (2014), 327 O.A.C. 302 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.026

Andrew James Fordham (plaintiff/respondent) v. The Corporation of the Municipality of Dutton-Dunwich (defendant/appellant)

(C56404; 2014 ONCA 891)

Indexed As: Fordham v. Dutton-Dunwich (Municipality)

Ontario Court of Appeal

Laskin, Rouleau and Lauwers, JJ.A.

December 11, 2014.

Summary:

The plaintiff did not stop at a stop sign on a rural road, and drove through the intersection at 80 km per hour (the speed limit). The road curved to his right. He lost control and crashed, sustaining brain damage. He sued for non-repair of the road (Municipal Act, s. 44), claiming that the defendant had breached its statutory duty because it had failed to post a checkerboard sign warning of the change in the road's alignment.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 6739, concluded that both the plaintiff's failure to stop and the defendant's failure to install a warning sign had caused the crash. She apportioned liability for damages equally. The municipality appealed.

The Ontario Court of Appeal allowed the appeal. The trial judge misapplied the test for assessing a municipality's statutory duty of repair.

Motor Vehicles - Topic 2502

Regulation of vehicles and traffic - Signals and warnings - Sufficiency of - [See fourth Municipal Law - Topic 2985 ].

Municipal Law - Topic 1724

Liability of municipalities - Highways and streets - Maintenance of - General - [See third Municipal Law - Topic 2985 ].

Municipal Law - Topic 1731

Liability of municipalities - Highways and streets - Dangerous highway conditions - Warning of danger - [See third Municipal Law - Topic 2985 ].

Municipal Law - Topic 2985

Duties of municipalities - Particular duties - Maintenance of highways and streets - The plaintiff (Fordham) did not stop at a stop sign on a rural road (he saw no other cars), and drove through the intersection at 80 km per hour (the speed limit) - The road curved to his right - He lost control and crashed, sustaining brain damage - He sued the defendant municipality (Dutton-Dunwich) for non-repair of the road - At issue was whether the defendant had breached its statutory duty because it had failed to post a checkerboard sign warning of the change in the road's alignment - The trial judge held that both the plaintiff's failure to stop and the defendant's failure to install a warning sign had caused the crash - The municipality appealed - The Ontario Court of Appeal allowed the appeal - "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. The trial judge's finding that '[o]rdinary rural drivers do not always stop at stop signs' has some modest support in the evidence ... . But there is no credible evidence that ordinary rural drivers go through stop signs at or near the speed limit. More important, the trial judge's finding is legally irrelevant. There cannot be one standard of reasonable driving for 'rural drivers' and another for 'city drivers'. There is but one standard of reasonable driving. That standard requires drivers to obey traffic signs. Thus Dutton-Dunwich had no duty to install an additional sign on its road." - See paragraphs 7 to 9.

Municipal Law - Topic 2985

Duties of municipalities - Particular duties - Maintenance of highways and streets - The plaintiff sued under ss. 44(1) and (2) of the Municipal Act, which provided a cause of action against a municipality that failed to keep its highways and bridges in a reasonable state of repair - The Ontario Court of Appeal set out the four-step test established by case law for analyzing the statutory cause of action - See paragraph 26.

Municipal Law - Topic 2985

Duties of municipalities - Particular duties - Maintenance of highways and streets - The Ontario Court of Appeal stated that "a municipality has a duty to prevent or remedy conditions on its roads 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. ... But - and this is the important point for this appeal - a municipality's duty of reasonable repair does not extend to making its roads safer for negligent drivers. ... A municipality's duty of repair includes erecting and maintaining proper signs ... . And, where hazards are hidden or 'not readily apparent to users of the road' ... a municipality may have a duty to install warning signs. A municipality's duty to install signs, however, is simply an application of the general standard of care. Signs are required only if without them, an ordinary driver exercising reasonable care would be exposed to an unreasonable risk of harm. Thus, the mere presence of a hazard does not require a municipality to put up a warning sign; the hazard must be one that puts reasonable drivers at risk." - See paragraphs 27 to 31.

Municipal Law - Topic 2985

Duties of municipalities - Particular duties - Maintenance of highways and streets - The plaintiff sued under ss. 44(1) and (2) of the Municipal Act, which provided a cause of action against a municipality that failed to keep its highways and bridges in a reasonable state of repair - The Ontario Traffic Manual recommended a checkerboard warning sign for "a sharp change in road alignment" - The plaintiff contended that the offset at the intersection was a "sharp change" and required a warning sign - The Ontario Court of Appeal distinguished guidelines that said "must" from those that said "should" - "Did [the municipality] thus have a duty to put up a checkerboard warning sign? I do not think that it did. ... For checkerboard warning signs, the Manual uses the word 'should', not 'must'. Moreover ... the guidelines in a traffic manual are just that, guidelines. They do not establish a legally enforceable standard of care for civil liability. The overriding question is always: 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." - See paragraphs 51 to 53.

Torts - Topic 86

Negligence - Duty of care - Duty to warn - [See third Municipal Law - Topic 2985 ].

Torts - Topic 438

Negligence - Motor vehicle - Rules of the road - Intersections - Entering - Yield or stop sign - [See first Municipal Law - Topic 2985 ].

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See third Municipal Law - Topic 2985 ].

Torts - Topic 9156

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Highway authorities - [See third Municipal Law - Topic 2985 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, dist. [paras. 27, 38 et seq.].

Deering v. Scugog (Township) et al., [2010] O.T.C. Uned. 5502; 3 M.V.R.(6th) 33; 2010 ONSC 5502, affd. [2012] O.A.C. Uned. 325; 33 M.V.R.(6th) 1; 2012 ONCA 386, leave to appeal refused (2012), 447 N.R. 385 (S.C.C.), refd to. [para. 27].

Rider v. Rider, [1973] 1 Q.B. 505 (Eng. C.A.), refd to. [para. 29, footnote 6].

Ontario (Minister of Highways) v. Jennings, [1966] S.C.R. 532, refd to. [para. 31].

R. v. Jennings - see Ontario (Minister of Highways) v. Jennings.

The Queen v. Jennings - see Ontario (Minister of Highways) v. Jennings.

Greenhalgh et al. v. Douro-Dummer (Township) et al., [2009] O.T.C. Uned. U74 (Sup. Ct.), affd. [2012] O.A.C. Uned. 261; 2012 ONCA 299, refd to. [para. 31].

Chaschuk (Hurlbert) v. Lebel (1981), 12 M.V.R. 228 (Ont. C.A.), refd to. [para. 37].

Waldick v. Malcolm, [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 47].

Statutes Noticed:

Municipal Act, S.O. 2001, c. 25, sect. 44 [para. 25].

Counsel:

T.R. Shillington and Jonathan de Vries, for the appellant;

Jim Virtue and Jim Mays, for the respondent.

This appeal was heard on April 30, 2014, before Laskin, Rouleau and Lauwers, JJ.A., of the Ontario Court of Appeal. In reasons written by Laskin, J.A., the Court delivered the following judgment, released on December 11, 2014.