|
5. minimum
maintenance standards for municipal highways – ontario good roads association
court initiative NORMES
D’ENTRETIEN MINIMAL DES ROUTES MUNICIPALES – INTERVENTION JUDICIAIRE DE L’ontario
good roads association |
Committee Recommendation
That Council approve funding for the
Ontario Good Roads Association’s participation as an intervener in the Court
challenge to the Minimum Maintenance Standards for Municipal Highways
Regulations in the amount of $15,000.00.
Recommandation DU Comité
Que le Conseil approuve le
financement, à hauteur de 15 000 $, de la participation de l’Ontario
Good Roads Association, à titre d’intervenante, à la contestation
judiciaire du Règlement sur les normes minimales d’entretien des routes
municipales.
Documentation
1. City Clerk and Solicitor’s report dated
16 August 2010 (ACS2010-CMR-LEG-0012).
Report
to/Rapport au:
Transportation Committee
Comité des transports
and Council / et au Counseil
16 August 2010 / le 16 août 2010
Submitted by/Soumis par : M. Rick O’Connor
City Clerk and Solicitor / Greffier et Chef du contentieux
Contact Person/Personne ressource : G. Cantello, Senior Legal Counsel,
Litigation and
Labour Relations /Gestionnaire litiges et Relations de travail
(613) 580-2424 x21933,
david.white@ottawa.ca
|
Ref N°: ACS2010-CMR-LEG-0012 |
That the Transportation Committee recommend Council approve funding for
the Ontario Good Roads Association’s participation as an intervener in the
Court challenge to the Minimum Maintenance Standards for Municipal Highways
Regulations in the amount of $15,000.00.
Que le Comité des transports recommande au
Conseil d’approuver le financement, à hauteur de 15 000 $, de la
participation de l’Ontario Good Roads Association, à titre
d’intervenante, à la contestation judiciaire du Règlement sur les normes
minimales d’entretien des routes municipales.
Silveira et al.v. York
(Region)
On December 12th, 2004, Amelia Silveira lost control of her vehicle on slippery winter roads and collided head-on with an oncoming motorist. Ms. Silveira (the “Plaintiff”) suffered severe injuries and issued a claim on June 8th, 2005, in which she alleged that the Regional Municipality of York (the “Municipal Defendant”) was negligent in its maintenance of the roadway. In response, the Municipal Defendant sought to rely on the provisions of the Minimum Maintenance Standards for Municipal Highways (the “Minimum Maintenance Standards” or the “Standards”), being Ontario Regulation 239/02 and Ontario Regulation 288/03, enacted under the Municipal Act, 2001 (the “Act”) as a defence to the allegation of negligence.
Briefly, Section 44 of the Municipal Act, 2001 requires all municipalities to maintain their highways in a state of repair that is reasonable under the circumstances, including the location and character of each road. The section further provides that, subject to the provisions of the Negligence Act, a municipality that defaults on its maintenance obligations will be liable for all damages caused by such a default. Three limits on the potential liability of municipalities are contained in Subsection 44(3) which states that a municipality will not be liable if it did not know and could not be expected to know of the state of repair of the road or took reasonable steps to prevent the default from arising. The final defence to liability set out in Subsection 44(3) is based on a municipality meeting the minimum standards of repair established under Subsection 44(4) of the Act.
Subsection 44(4) of the legislation grants authority to the Minister of Transportation to make regulations establishing minimum standards of repair for municipal highways, or any class of such highways. Furthermore, Subsection 44(5) allows the standards to be either general or specific in their application. In this regard, the Minister enacted the Minimum Maintenance Standards as O.Reg.239/02 and O.Reg.288/03.
On February 4th, 2010, the Plaintiff brought a motion to amend its Statement of Claim in order to plead that the Minimum Maintenance Standards are in fact ultra vires (outside or beyond the scope of) the enabling legislation. The Standards include time periods for removing snow and treating icy conditions on roadways and the Plaintiff argued, in part, that the Minister was empowered only to regulate when a roadway or class of roadway falls into disrepair and not the time periods for repairs.
The Municipal Defendant opposed this amendment to the Statement of Claim and raised a number of legal and procedural issues. On March 5th, 2010, the presiding judge determined that the Plaintiff would be required to bring an application challenging the validity of the Minimum Maintenance Standards, and that the application would name both the Regional Municipality of York and the Minister of Transportation as Respondents.
In addition, it was judicially recognized in the decision that a number of parties such as municipalities or associations of insurers and municipalities and other similar groups would have an interest in seeking intervenor status in the application proceeding.
OGRA’s Initiative
In response to the judicial ruling in this instance, the Ontario Good Roads Association (“OGRA”) has taken the initiative to solicit support from the municipalities of Ontario to contribute to a legal fund that would allow the OGRA to intervene in defence of the Minimum Maintenance Standards. Briefly, the OGRA was established in 1894 and presently represents 433 municipalities, including the City of Ottawa, as well as 24 First Nations across the Province of Ontario. Recognized as a leader in practical training and development to help design, build and maintain municipal infrastructure assets, the OGRA mandate also “identifies advocacy as one of the five business objectives that will be pursued on behalf of the membership”. More specifically, the mandate provides that, “OGRA shall advocate the collective interests of municipal transportation and works departments through policy analysis, assessment of legislation and consultation with partners and stakeholders.” By way of example, the OGRA worked with Ministry of Transportation staff throughout 2009 on preparing and amending the Municipal Maintenance Standards Regulation (being Ontario Regulation 23/10).
On April 20th, 2010, the OGRA issued a letter to all municipal council’s indicating that it was “filing notice with the court that we wish to oppose the [Plaintiffs] application on behalf of our municipal members”: attached as Document 1. In addition, the OGRA has established a “Litigation Fund” in order to “defend this application and any subsequent appeals which potentially could go as high as the Supreme Court of Canada.”
More specifically OGRA is seeking support for its legal intervention based on a ten cent ($0.10) per resident basis up to a maximum of $50,000.00. On July 19th, 2010, the OGRA posted an update online entitled, “Minimum Maintenance Standards (MMS) Litigation Fund Well Accepted by Ontario Municipalities”: attached as Document 2. In this correspondence, the OGRA’s Executive Director Joe Tiernay stated that, “Any funds not used will be refunded back to contributing municipalities on a pro-rated basis.”To date, the largest donations have been $10,000.00 from the City of Windsor and the Municipality of Chatham-Kent, $12,500.00 from Lambton County and $13,200.00 from the City of St. Catharines. As of August 16th, 2010, the Ontario Good Roads Association had raised over $200,000.00 from more than 61 municipalities and only 7 municipalities had declined the request for a contribution.
In light of this information, as well as the analysis below, it is recommended that the City of Ottawa donate $15,000.00 to the OGRA Litigation Fund.
Minimum Maintenance Standards
and Ottawa
Broadly speaking, the Minimum Maintenance Standards for Municipal Highways set out the levels that Ontario municipalities are expected to meet in carrying out roadway maintenance activities. The standards both guide councils in apportioning their road maintenance resources and allow municipalities to defend themselves from damage claims that arise as a result of incidents that take place on their roadways and sidewalks.
The Minimum Maintenance Standards provide tables which, firstly, allow municipalities to classify their roadways into one of six categories and then, secondly, provide the municipalities with the levels of maintenance required for each of the respective categories.
In recognition of the reliance placed on the Standards by municipalities, the OGRA is hoping to ensure that the interests of all Ontario municipalities are represented and protected as the application is considered by the Courts. The OGRA assisted with the development of the Standards and the Plaintiff has possibly contributed to the OGRA’s status as an appropriate intervenor by serving the OGRA with the application documents.
The Minimum Maintenance Standards are a valuable tool used by the City of Ottawa in apportioning its maintenance resources, as well as an important aid in determining the validity of claims that allege negligence related to the maintenance of City roads and sidewalks. The theory of liability advanced in the vast majority of the claims received by the City that seek damages arising from the use of City roadways and sidewalks is based on negligent maintenance. Accordingly, the Minimum Maintenance Standards provide the City with a defence to a significant number of claims. In addition to that benefit, they also provide important guidance to the City with respect to its maintenance obligations for its constantly expanding roadway system.
The City road system includes the rural areas and provides for maintenance standards in those areas as well as the urban parts of the City.
No public consultation was undertaken for this report as it was a response to a request for funding. However, in June 2010, the Frank Cowan Company issued, “A Call to Action – The Challenge to the Minimum Maintenance Standards” in its News and Views communiqué: attached as Document 3. In this correspondence, it is suggested that should the Plaintiffs succeed, “This will serve to increase the number of judgements against municipalities and adversely impact the cost of claims and therefore the cost of insurance.” In light of these conclusions, the “Frank Cowan Company supports the OGRA initiative and urges all municipal members to do the same.”
This report is City-wide and therefore there are no comments from Ward Councillors. However, Councillor Steve Desroches is the City’s representative on the OGRA Board of Directors and he has expressed support for this initiative.
A successful legal intervention by the Ontario Good Roads Association in the Court challenge will be of benefit to the City of Ottawa from both a legal and risk management perspective.
Not applicable.
No technical implications associated with this report.
On an annual basis, the City of Ottawa pays $ 5600.00 to be a member of OGRA. Funds are available in the Roads & Traffic Branch of Public Works with approval of the recommendation contained in this report.
Document 1: Letter from the Ontario Good Roads Association (posted April 2010)
Document 2: Letter from the Ontario Good Roads Association (posted July 19th, 2010)
Document 3: Letter from Frank Cowan Company. (June 2010)
“A Call to Action – The Challenge to the Minimum Maintenance Standards”
Should Council approve this report, staff will ensure that the $15,000.00 donation is issued to the Minimum Maintenance Standards Litigation Fund of the Ontario Good Roads Association and keep Council apprised as this case progresses through the courts.