Winter has officially ended, but the slalom
providing excellent winter maintenance, will
season has just begun for drivers.
no longer have a viable defence against
While ski racers vie for glory, for motorists,
spurious claims of liability. With no viable
victory is a jar-free trip.
defence, claims that might otherwise be
If you manage to arrive at your destination
thrown out will continue onto expensive
without suffering serious damage to your
trials and old claims could possibly be re-
vehicle or your ego, you expect to be
filed,” the OGRA warns.
rewarded with a medal, or at least a round of
The courts may once again start awarding
applause from your peers.
large settlements which will result in higher
Alas, the only prize here is the knowledge
insurance premiums for municipalities.
Shake, rattle, pay
that you have succeeded in swerving around
The legal battle is crowded and costly.
those yawning potholes, that are waiting to
The parties include the Ontario Ministry of
swallow your vehicle and inflict pain on
action against the government responsible
Transportation, OGRA, and insurance
Tiernay said in a letter circulated to municipal
your car and bank account.
for the road.
companies. The Ontario Trial Lawyers
councils, the Minimum Maintenance
But what are you going to do?
Good luck with suing any level of
Association also wants in, seeking intervenor
Standards (MMS) were created to help
It is spring, the time when the frost is
government.
status to support the application to have the
Ontario municipalities manage their risk
leaving, roads are heaving and crevices are
Most of the time, the government side
MMS declared null and void. A court hearing
from legal action stemming from personal
cleaving.
will use the old due diligence defence against
is scheduled to be held sometime in the
injury on municipal roads.
Drivers expect to face the seasonal
“spurious” legal action.
spring.
Claims are repeatedly brought against
challenges presented by canyons that
Sued municipalities argue, often
While we watch this case from afar, we
road authorities for personal injury and
suddenly appear in otherwise perfectly good
successfully, that they cannot be held legally
are reminded that a few bumps and rattles
property damage alleging inadequate
roads.
responsible if they exercised due diligence,
are minor, in the grand scheme of things.
maintenance of roads, signage or failing to
We must cope with cracked pavement
that everything was done to ensure that the
Sure, we all want perfect roads, all the
provide proper winter de-icing, sanding
and deal with washboard-like surfaces.
road was properly maintained. In essence,
time. The solution is obvious – invest more
and/or plowing.
(Never heard of a washboard, children? Ask
the onus is on the alleged victim to prove
in streets and roads, and asphalt. All we
The MMS have been used very
an older person).
that the road, not driver error, was the cause
have to do is pay higher taxes, which is, of
successfully in defending against these
Of course, the rural driving experience is
of the alleged problem.
course, another rite of spring.
claims. If the municipality can show that it
less predictable because road surfaces are
However, a court challenge in Ontario
was following the minimum level of
rarely uniform. In the span of a few
may ditch the conventional municipal
maintenance set out in the regulations,
kilometres, you can go from a provincial
defence.
plaintiffs are often discouraged from
highway to a county route to a municipal
Now, municipalities base their rebuttals
proceeding with their claims either by their
concession. You go from asphalt, to choppier
on Minimum Maintenance Standards. If they
lawyers or upon presentation of proof in
pavement, to “surface treatment,” which is a
meet MMS, all is tickety boo; do not sue.
discovery. “Further, upon making it to the
faux pavement, or to good old-fashioned
But the MMS shield is being contested in
courts, usually with a claim for catastrophic
gravel.
court after the Regional Municipality of York
injury, the courts have been looking for the
There is no way of hiding your rural roots
was sued following a 2004 fatal accident. A
compliance with MMS with regards to
in spring – the mud cakes on the car,
mother in the southern Ontario municipality
municipal liability,” writes Tiernay.
obliterating the road salt that has
blames slippery road conditions for the crash
An application has been filed with the
accumulated over the winter.
that claimed the life of her ten-year-old son.
Superior Court of Justice to have the
Potholes can take a heavy toll. Our struts,
Because the outcome of the case could
Minimum Maintenance Standards declared
shocks, springs, bearings, tires, teeth – they
have province-wide implications,
null and void.
can all take a beating.
municipalities have contributed to a
“The application to have an order
One of the reasons we pay taxes is that
provincial reserve to present their case.
declaring the MMS null and void, if
our governments spend huge sums on fixing,
Municipalities have been strongly
successful, will have huge implications for
Photo Richard Mahoney
building and maintaining roads.
supported the Ontario Good Roads
all Ontario municipalities. Municipalities,
An emerging hub cap on the side of a
However, from time to time, when a road
Association’s Minimum Maintenance
who are exercising due diligence and
battered road is another harbinger of the
or a street is really treacherous, an accident
Standards Litigation Fund.
maintaining their roads in good repair, or
season.
happens and the injured party takes legal
As association executive director J. W.
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