Court of Appeal for Ontario considers s.5 of the MMS – Giuliani Distinguished

Written on December 22, 2017.

In the recent case of House v. Baird, 2017 ONCA 885, the Court of Appeal for Ontario upheld the Trial Judge’s decision that the municipal defendant had successfully established a defence under s.5 of the Minimum Maintenance Standards, O.Reg 239/02. This is the first appellate consideration of the application of s.5 of the MMS as it existed prior to the 2013 amendments, since the previous decision by the Court of Appeal in Giuliani. While the facts and allegations of negligence against the municipality in Giuliani and House were quite different, the lack of willingness of the Court of Appeal in House to find a technical way to render s.5 inapplicable or otherwise ineffective, is a very encouraging legal development. Given the post-Giuliani amendments to the regulation, a more purposeful interpretation of the Regulation by the ONCA is a very welcome development. In addition, counsel who have publicly voiced their negative views upon the utility and effectiveness of the MMS in the post-Giuliani world, may need to reconsider their position.