Montani v. Matthews et al., (1996) 91 O.A.C. 161 (CA)

• Judge: Osborne, Abella and Moldaver, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 27, 1996
• Jurisdiction: Ontario
• Citations: (1996), 91 O.A.C. 161 (CA)

Montani v. Matthews (1996), 91 O.A.C. 161 (CA)

MLB headnote and full text

Ann Marie Montani (plaintiff) v. Victoria Matthews (defendant/respondent) and Her Majesty The Queen In Right of the Province of Ontario, Represented by the Minister of Transportation and Communications for the Province of Ontario (third party/appellant)

(C13256)

Indexed As: Montani v. Matthews et al.

Ontario Court of Appeal

Osborne, Abella and Moldaver, JJ.A.

June 4, 1996.

Summary:

In January 1985, Montani, a passenger in Matthews' car, was injured when Matthews lost control on Highway No. 8 across a bridge outside Kitchener, Ontario. The acci­dent was caused by Matthews' negligence and an accumula­tion of black ice on the bridge. Montani sued Matthews for negli­gence and the Province of Ontario for breaching its statutory obligation to keep the highway in repair.

The Ontario Court (General Division) held that the Province and Matthews were equally at fault. The Province appealed.

The Ontario Court of Appeal, Osborne, J.A., dissenting, dismissed the appeal.

Crown - Topic 1573

Torts by and against Crown - Negligence by Crown - Maintenance of highways - In January 1985, Montani, a passenger in Matthews' car, was injured when Mat­thews lost control on Highway No. 8 across a bridge outside Kitchener, Ontario - The driving conditions were wet and icy - Montani alleged that the accident was caused by, inter alia, an accumulation of black ice on the bridge - She successfully sued the Province for breaching its statu­tory obligation to keep the highway in repair - The Ontario Court of Appeal dismissed the Province's appeal stating that the trial judge properly concluded that the Province was required, and failed to take, remedial steps to prevent the build up of black ice on the bridge since it knew or ought to have known that such a build up was a virtual certainty in the existing weather conditions (i.e., that the bridge constituted a special and highly dangerous situation in these weather conditions) - See paragraphs 42 to 56.

Crown - Topic 1573

Torts by and against Crown - Negligence by Crown - Maintenance of highways - In January 1985, Montani, a passenger in Matthews' car, was injured when Mat­thews lost control on Highway No. 8 across a bridge outside Kitchener, Ontario - Montani alleged that the accident was caused by Matthews' negligence and an accumulation of black ice on the bridge - She sued Matthews for negligence and the Province for breaching its statutory obliga­tion to keep the highway in repair - The trial judge held Matthews and the Province equally at fault - The Province appealed - The Ontario Court of Appeal dismissed the appeal where the Province's failure to salt and sand the bridge between 8 a.m. and 11:30 a.m. on the morning of the accident amounted to a breach of its statutory duty to keep the highway in repair, "having regard to the trial judge's finding that the bridge constituted a high­ly-dangerous situation during this time frame" - See paragraphs 42 to 56.

Torts - Topic 9156

Duty of care - Claims against public officials or authorities - Highway author­ities - [See all Crown - Topic 1573 ].

Cases Noticed:

Kalogeropoulos and Millette v. Cote, Min­ister of Highways and the Ontario Pro­vincial Police Force, [1976] 1 S.C.R. 595; 3 N.R. 341, refd to. [para. 20].

R. v. Coté - see Kalogeropoulos and Mil­lette v. Cote, Minister of Highways and the Ontario Provincial Police Force.

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. 23].

Wright v. Wilson, [1970] 2 O.R. 391 (H.C.), refd to. [para. 25].

Edgeworth v. R., [1937] O.R. 721 (C.A.), refd to. [para. 32].

Landriault v. Pinard (1976), 1 C.C.L.T. 216 (Ont. C.A.), refd to. [para. 32].

McAlpine v. Mahovlich (1979), 9 C.C.L.T. 241 (Ont. C.A.), refd to. [para. 32].

Rydzik v. Edwards (1982), 38 O.R.(2d) 486 (H.C.), refd to. [para. 32].

Statutes Noticed:

Public Transportation and Highway Im­provement Act, R.S.O. 1990, c. P-50, sect. 33 [para. 16].

Counsel:

Peter F. Foulds, for the appellant/third party;

Hugh M. Pattison, for the respondent.

This appeal was heard on March 27, 1996, before Osborne, Abella and Moldaver, JJ.A., of the Ontario Court of Appeal. On June 4, 1996, the following decision was released and the following opinions were filed:

Osborne, J.A., dissenting - see para­graphs 1 to 33;

Moldaver, J.A. (Abella, J.A., concurring) - see paragraphs 34 to 56.