Express_2011_04_01

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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