Frank et al. v. Central Elgin (Municipality) et al., 2010 ONCA 574

• Judge: Laskin, Feldman and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 15, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONCA 574;(2010), 268 O.A.C. 85 (CA)

Frank v. Central Elgin (2010), 268 O.A.C. 85 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. SE.023

Natalie Frank, by her litigation guardian, Christine Harris, Renee Martin, Rolston Holmes, Christine Harris and Simone Frank, by her litigation guardian, Christine Harris (plaintiffs/appellants/respondents by way of cross-appeal) v. The Corporation of the Municipality of Central Elgin, and The Corporation of The County of Elgin (defendants/respondent/appellant by way of cross-appeal)

(C50059; 2010 ONCA 574)

Indexed As: Frank et al. v. Central Elgin (Municipality) et al.

Ontario Court of Appeal

Laskin, Feldman and Gillese, JJ.A.

September 8, 2010.

Summary:

On a December morning, Frank was driving to work. She hit an icy patch on Highbury Avenue in the municipality of Central Elgin, lost control of her car and collided with an oncoming  truck. She suffered a serious head injury. She sued Central Elgin for negligence for failing to maintain the road in a reasonable state of repair.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. 132, dismissed the action. He found that Central Elgin had adequately salted the road shortly before the accident, but that light blowing snow had delayed the salt's effectiveness. He concluded that Central Elgin had met the applicable standard of care because it had done all that could reasonably be required of it. Frank appealed. Her overall position was that the trial judge erred in finding that Central Elgin had met the standard of care.

The Ontario Court of Appeal dismissed the appeal. The trial judge's findings of fact and his conclusion that Central Elgin met the standard of care required of it were well supported in the record. Appellate intervention was not justified.

Highways - Topic 3148

Maintenance of highways - Duties of authorities - Re ice and snow - [See Municipal Law - Topic 1730 , Municipal Law - Topic 1801.1 and first Municipal Law - Topic 1805 ].

Municipal Law - Topic 1730

Liability of municipalities - Highways and streets - Dangerous highway conditions - Ice and snow - The Ontario Court of Appeal discussed the test for determining when a municipality had a duty to repair winter road conditions - "Gradually ... courts began to recognize that a municipality may also have a duty to repair widespread or general ice and snow conditions within its jurisdiction. The general negligence standard applies. A municipality's duty of repair arises not just in a 'highly special dangerous situation at a certain location in the highway' but in any situation where road conditions create an unreasonable risk of harm to users of the highway. The former is simply a subset of the latter" - See paragraphs 8 to 10.

Municipal Law - Topic 1801.1

Liability of municipalities - Negligence - Duty of care - In 2001, the municipality's duty of repair and the standard of care required of it were codified in s. 284(1) of the Ontario Municipal Act - The Ontario Court of Appeal stated that "[j]udicial interpretation of s. 284 ... has held that the Act does not impose on a municipality a duty to repair every adverse road condition. In the winter, for example, a municipality's failure to salt or sand its roads does not automatically expose it to civil liability ... Courts have recognized that although motorists ought to be kept reasonably safe during winter driving conditions, municipalities ought not to be turned into insurers of the safety of the driving public by imposing overly onerous maintenance obligations" - See paragraph 7.

Municipal Law - Topic 1805

Liability of municipalities - Negligence - Standard of care - Maintenance of streets and highways - At the heart of this appeal was the reasonableness of the municipality's response to the icy conditions on the road the morning the accident occurred - The Ontario Court of Appeal stated that "[w]here winter road conditions give rise to an unreasonable risk of harm, a municipality must show that it took reasonable steps to eliminate or reduce the danger within a reasonable time after it became aware of the danger. Consistent with the statute [the Municipal Act], the standard is reasonableness, not perfection. If a municipality fails to meet this reasonableness standard, then it may be held liable for breach of its duty of repair. Of course, the reasonableness of a municipality's response to potentially dangerous road conditions must be measured against the nature of the risk" - See paragraphs 12 and 13.

Municipal Law - Topic 1805

Liability of municipalities - Negligence - Standard of care - Maintenance of streets and highways - The plaintiff hit an icy patch on a municipal highway, lost control of her car and collided with an oncoming truck - She suffered a serious head injury - She unsuccessfully sued the municipality for negligence for failing to maintain the road in a reasonable state of repair - On appeal, the plaintiff submitted that the trial judge had applied the standard of care incorrectly - She argued that the trial judge's finding that the southbound lane of the highway was adequately salted the morning of the accident was an unreasonable one - The Ontario Court of Appeal stated that the plaintiff's argument ran up against the trial judge's key findings of fact; namely, that the operator of the municipality's salt truck had salted the southbound lane and applied the correct amount of salt - Those findings were made on largely uncontradicted evidence, and on the trial judge's assessment of the credibility of the witnesses - There was no basis in the record to revisit those findings, and therefore no basis to set aside the trial judge's decision on the basis that his holding was unreasonable - See paragraphs 35 and 36.

Municipal Law - Topic 1805

Liability of municipalities - Negligence - Standard of care - Maintenance of streets and highways - At about 5:22 a.m. on a December morning, the municipality's operations superintendent observed light snow on Highbury Avenue - At 5:30 a.m., he called out the salt trucks and ordered that Highbury Avenue be salted first (a high priority road) - By 7:00 a.m., the operator had salted both lanes; he applied the salt at the mandated rate and he planned to come back to check on the road's condition after he had salted the other roads - The plaintiff hit an icy patch about 7:50 a.m., lost control of her car and collided with an oncoming truck - She suffered a serious head injury - The trial judge found that the municipality did all that could reasonably be required of it - The Ontario Court of Appeal stated that deference to the trial judge's finding was justified both because of the steps taken and because of the contrast between what the municipality (Central Elgin) did and what the municipal or provincial authority did (or did not do) in four cases where the respective authority was found liable - "Unfortunately, the accident intervened because the light blowing snow delayed the salt's effectiveness. A municipality, however, cannot be expected to deal with every contingency" - See paragraphs 37 to 51.

Torts - Topic 9155

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Municipal authorities - [See Municipal Law - Topic 1730 , Municipal Law - Topic 1801.1 and third Municipal Law - Topic 1805 ].

Cases Noticed:

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, consd. [para. 7].

R. v. Côté - see Kalogeropoulos and Millette v. Côté et al.

Kalogeropoulos and Millette v. Côté et al., [1976] 1 S.C.R. 595; 3 N.R. 341, consd. [para. 8].

Simms v. Metropolitan Toronto (Municipality) (1978), 28 O.R.(2d) 606 (C.A.), consd. [para. 9].

Gould v. Perth (County) (1983), 42 O.R.(2d) 548 (H.C.), affd. (1984), 5 O.A.C. 279; 48 O.R.(2d) 120 (C.A.), refd to. [para. 10].

Thornhill v. Shadid et al., [2008] O.T.C. Uned. 347; 289 D.L.R.(4th) 396 (Sup. Ct.), refd to. [para. 10].

Roberts v. Morana - see C.R. et al. v. Morana et al.

C.R. et al. v. Morana et al. (1997), 38 O.T.C. 171; 34 O.R.(3d) 647 (Gen. Div.), affd. (2000), 135 O.A.C. 123; 49 O.R.(3d) 157 (C.A.), refd to. [para. 10].

Montani v. Matthews et al. (1996), 91 O.A.C. 161; 29 O.R.(3d) 257 (C.A.), leave to appeal refused (1997), 211 N.R. 152; 99 O.A.C. 240 (S.C.C.), consd. [para. 38].

Bisoukis v. Brampton (City) (1999), 127 O.A.C. 107; 46 O.R.(3d) 417 (C.A.), leave to appeal refused (2000), 261 N.R. 200; 141 O.A.C. 200 (S.C.C.), consd. [para. 38].

Ontario (Minister of Transportation and Communications) v. MacMillan (2001), 24 M.V.R.(4th) 15 (Ont. C.A.), leave to appeal refused (2002), 292 N.R. 194; 163 O.A.C. 399 (S.C.C.), consd. [para. 38].

Statutes Noticed:

Municipal Act, R.S.O. 1990, c. M-45, sect. 284(1), sect. 284(1.1), sect. 284(1.3) [para. 6].

Counsel:

Vicki J. Edgar and Lucy Lee, for the appellants/respondents by way of cross-appeal;

Terry R. Shillington and Jonathan de Vries, for the respondent/appellant by way of cross-appeal.

This appeal and cross-appeal were heard on January 15, 2010, by Laskin, Feldman and Gillese, JJ.A., of the Ontario Court of Appeal. In reasons for judgment written by Laskin, J.A., the Court released the following judgment, dated September 8, 2010.