Previously published in The Lawyers Weekly, April 25, 2008
At long last, the personal injury bar has received a trial decision from the Ontario Superior Court of Justice interpreting and analyzing the minimum maintenance standards applicable in winter road maintenance cases.
Thornhill v. Shadid et al.  O.J. No. 372 involved a car accident on Green Lane in Newmarket, Ontario on Christmas Day, 2002. The plaintiff Nadine Thornhill's westbound Tercel was struck violently by the defendant Shadid's Jeep Cherokee, which had spun out of control suddenly from the eastbound side of Green Lane.
The accident occurred at 3:30 p.m. and the evidence demonstrated that a moderate snowfall had started in the Newmarket area at approximately 6:00 a.m.
Green Lane, the most heavily travelled road in its district of York Region, was covered with 2 to 3 inches of snow and slush at the time of the accident. Eyewitness and expert evidence proved that the road was slippery, which contributed to Shadid's loss of control immediately before the accident.
The Region of York argued that despite the road conditions at the time of the accident, which amounted to a state of non-repair, it met the obligations and timelines imposed by the minimum maintenance standards (MMS) enacted by O.Reg. 239/02 and therefore was entitled to a full defence to the claim.
Justice Howden found that York Region failed to prove on a balance of probabilities that it met the relevant minimum standards and that this failure contributed to the accident. Justice Howden divided liability equally between the Region of York and Shadid. He assessed the plaintiff's damages in the total amount of $1,875,300 plus pre-judgment interest.
The significance of the decision lies in Justice Howden's analysis and interpretation of the MMS. Prior to the release of his reasons for judgment, there had never been a trial level decision in Ontario dealing with the application and interpretation of the MMS, despite the fact that the enacting regulation came into force on Nov. 1, 2002.
While lawyers will argue about the impact of the decision on future plaintiffs and defendants in winter road maintenance cases, the decision provides helpful pronouncements for both.
Justice Howden provided a "harmonious interpretation" of ss. 4 and 5 of the MMS and read in the common law concept of constructive knowledge in order to trigger the municipality's obligations to clear snow and to remedy icy conditions.
For defendant road authorities, Justice Howden held that s. 284 of the Ontario Municipal Act (now s. 44 of the Municipal Act, 2001) and the MMS provide a code on the subject of the duty of care with respect to roadway maintenance. Decisions made under the Municipal Act have subsumed within that code the common law principles of duty of care, standard of care and causation in road repair cases. Justice Howden confirmed that if a municipality's road authority can demonstrate that it met the requirements of the MMS as he has interpreted them, a full defence will be made out. In finding the municipality 50 per cent liable, Justice Howden conducted a detailed analysis of the road maintenance records offered up by the municipality. In describing the records as "at best uncertain and unreliable" Justice Howden found that the municipality failed to salt or plow Green Lane for more than five hours prior to the accident despite the accumulation of snow to more than three times the depth allowed by the MMS.
He also found that despite the fact that Green Lane was the most heavily travelled road in its district, York Region had not provided any patrolling whatsoever from the commencement of the snowfall at 6:00 a.m. up to the time of the accident at 3:30 p.m. that afternoon.
Justice Howden was highly critical of the designated snow plow operator and the clear inaccuracies and inconsistencies in his maintenance records. He flatly rejected the times and locations set out in the plow operator's records and in fact "pushed back" the operator's reported times considerably.
He found that the operator's maintenance records were, in all probability, an after-the-fact reconstruction of his day.
Justice Howden dealt with preliminary challenges to the legality of the MMS. In rejecting the various arguments put forward by Thornhill and Shadid, Justice Howden found that the issue of legality of the MMS was not properly before him and instead should be dealt with in a proceeding where the issue is squarely before the court.
He felt it was an issue "which appears to merit close scrutiny" because he felt the MMS might "seriously dilute the content of the duty to keep highways in repair, to the prejudice of the public using those highways."
With Justice Howden's invitation ringing loudly in the ears of plaintiff and defence lawyers alike, it seems certain that we have not seen the last challenge to the legality of the MMS.
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