Mark v. Guelph and Wellington County
Written on August 28, 2012.
In Mark v Guelph and Wellington County 2012 ONSC 3510, the Honourable Justice Mossip held the defendant municipal road authority 100% liable for failing to maintain the highway in a reasonable state of repair, and awarded the Plaintiff damages of $1.9 million.The key facts which supported the finding of liability were:
• A sand/salt mixture used created a brine which later became diluted and refroze
• The plow/salter operator thereby “created dangerous situation” and also failed to treat the southbound lane immediately after treating the northbound lane.
• The records of the municipality were not helpful in determining where material was placed or at what rate.
•There was no written policy setting priority of roads for winter maintenance.
• There was a lack of supervision and direction of the nightshift operators.
Justice Mossip held that: “The municipality cannot be all places at all times. The municipality cannot guarantee an ice-free road in Ontario winters…” However, while recognizing this principle, Justice Mossip found that a defence under s.5 of the MMS could not be established (citing the CA decision in Giuliani) where the municipality itself created the icy roadway by its salting operations, and then failed to treat it properly thereafter. The trial Judge stated: “I find that Gordon Street was not “treated” in a reasonable manner, or in a manner which protected the public from harm. The operator created the icy road and then failed to treat that ice within a reasonable time. The MMS cannot be used to shield the municipality in such circumstances.”