Express_2011_04_01

Winterhasofficiallyended,buttheslalom

providingexcellentwintermaintenance,will

season has just begun for drivers.

no longer have a viable defence against

Whileskiracersvieforglory,formotorists,

spurious claims of liability. With no viable

victory is a jar-free trip.

defence, claims that might otherwise be

Ifyoumanagetoarriveatyourdestination

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.

rewardedwithamedal,oratleastaroundof

Thecourtsmayonceagainstartawarding

applause from your peers.

large settlementswhichwill result in higher

Alas,theonlyprizehereistheknowledge

insurance premiums for municipalities.

Shake, rattle, pay

thatyouhavesucceededinswervingaround

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

Tiernaysaidinalettercirculatedtomunicipal

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

Associationalsowantsin,seekingintervenor

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

MMSdeclarednullandvoid.Acourthearing

from legal action stemming from personal

cleaving.

willusetheoldduediligencedefenceagainst

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

suddenlyappearinotherwiseperfectlygood

successfully,thattheycannotbeheldlegally

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.

(Neverheardofawashboard,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).

thattheroad,notdrivererror,wasthecause

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.Yougofromasphalt,tochoppier

onMinimumMaintenanceStandards.Ifthey

lawyers or upon presentation of proof in

pavement,to“surfacetreatment,”whichisa

meet MMS, all is tickety boo; do not sue.

discovery. “Further, upon making it to the

faux pavement, or to good old-fashioned

But theMMS shield is being contested in

courts, usually with a claim for catastrophic

gravel.

courtaftertheRegionalMunicipalityofYork

injury, the courts have been looking for the

Thereisnowayofhidingyourruralroots

was sued following a 2004 fatal accident. A

compliance with MMS with regards to

in spring – the mud cakes on the car,

motherinthesouthernOntariomunicipality

municipal liability,” writes Tiernay.

obliterating the road salt that has

blamesslipperyroadconditionsforthecrash

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

Potholescantakeaheavytoll.Ourstruts,

Because the outcome of the case could

MinimumMaintenance 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

ourgovernmentsspendhugesumsonfixing,

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,fromtimetotime,whenaroad

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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