A Winter Storm is Brewing

Published on September 18, 2017

A recent decision which our car accident lawyers wanted to share is - Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428 – demonstrates the relatively high maintenance standards expected of a City during winter months.  In the case, the Court of Appeal upheld a trial judge’s decision finding that the City of Sudbury was negligent for failing to properly maintain a roadway during inclement winter conditions. Cities (and by extension winter maintenance contractors) are expected to respond to the potential of ice forming on roadways even while regular maintenance is underway. In other words, even in the face of a roadway being cleared just prior to an accident, a City may be found to have breached the standard of care in discharging its obligation to keep a roadway in good repair.

The plaintiff was a 20 year old female who was catastrophically injured when her vehicle crossed the center line and struck a bus head-on in icy and snowy conditions. It was found that the City applied salt at 7:15am on the morning of the accident but did not plow the roads until sometime between 10:15am and 11:15am as a result of machinery breakdown. Damages for the injured plaintiff were agreed at $12 million and therefore the only issue at trial was liability.

The City agreed that the road was in a state of “non-repair” at the time of the accident as a result of snow and ice accumulation but relied on the statutory defences in section 284(1.2) and 284 (1.3) of the Municipal Act. Section 284 (1.2) provides a defence if the City could not have known about the state of non-repair at the time of the accident and 284 (1.3) can be successfully invoked if the City can establish that it took reasonable steps to prevent the state of non-repair.

The trial judge made certain factual findings about the City’s maintenance standards such as the requirement for salting or sanding at least every two hours during the course of a storm followed by plowing in order to remove the snow and salt brine. The trial judge also accepted the expert evidence of the plaintiff that a failure to plow the brine in a reasonable period will result in a re-freeze. In that case, subsequent plowing activity will remove the surface snow but not the ice underneath.

The Court found that the road was plowed within the hour prior to the accident which occurred at 11:15am. However, by that time it was found that the salt had been overwhelmed by the snowfall and the plow likely only removed the surface layer of snow on top of the ice. The expert evidence of the plaintiff, accepted by the trial judge, was that the salting and plowing protocol should have occurred continuously and consistently during the duration of the snowfall.

The plaintiff’s expert conceded that even if everything had occurred as it should have, it would have been challenging for the City to maintain the road in a way that prevented a re-freeze given the nature of the storm. The City was faced with equipment failures that were in part responsible for the delay in salting and plowing the road that were perhaps beyond their control. However, the Court found that sub-contractors were working in the area and could have been re-directed by the City to undertake some of the salting and plowing that may have prevented ice from forming and other equipment may have been available for the City to utilize. The City was expected to adapt to changing circumstances and to utilize and re-direct resources as required rather than robotically following a set system without due regard for what is actually happening.