Case Comment: Giuliani v. Halton Municipality
On December 21, 2011, the Ontario Court of Appeal released its decision in Giuliani v. The Regional Municipality of Halton. This decision provides a good overview of the general principles to be applied in cases of alleged non-repair of a roadway due to ice and snow, and is significant in that it reinforces the existence of a significant gap that exists with respect to a municipality’s reliance on the Minimum Maintenance Standards.
This matter arose from a motor vehicle accident that occurred on April 1, 2003 at approximately 7:00 a.m. on Derry Road in Milton, Ontario Derry Road was a two-lane, two-way roadway with a speed limit of 80 km/h. In the three hours prior to the accident approximately two centimetres of snow had fallen. Giuliani was travelling on Derry Road when she lost control of her vehicle on the icy roadway and travelled into the oncoming lane where a head-on collision occurred with another vehicle.
At trial, the Trial Judge made a number of findings of fact and, in particular:
- Weather forecasts had predicted that snow would fall in the area beginning in the early morning hours of April 1.
- Snow in fact began to fall at approximately 4:00 a.m. and approximately two centimetres of snow fell prior to the accident.
- By 7:00 a.m., Derry Road was covered with snow and ice. The icy conditions were caused by traffic compacting the snow and not by ice pellets falling on the road. The icy condition of the road surface presented a hazard to users of the road.
- The timing of the weather forecasts provided ample time for the municipality to schedule a crew to monitor the weather or road conditions, and to place a road maintenance crew on standby.
- Salting operations were not begun by the municipality until approximately 7:15 a.m., 15 minutes after the accident occurred.
- Had there been appropriate monitoring through the night, operators would have been called in between 3:30 and 4:00 a.m. and had salt been applied earlier, ice build up and the formation of icy conditions could have been prevented.
Ultimately, the Trial Judge concluded that the municipality did not keep Derry Road in a state of repair that was reasonable in the circumstances and but for this failure the accident and injuries would not have occurred. More significantly, the Trial Judge concluded that the defences provided to the municipality pursuant to the provincial Minimum Maintenance Standards for Highway Maintenance did not apply.
The sole issue on appeal was whether the Trial Judge erred in concluding that the Minimum Maintenance Standards for municipal highways did not afford the municipality a defence. In dismissing the appeal, Justice O’Connor Justices Laforme and Cunningham concurring) reviewed the statutory scheme pursuant to which a municipality is required to maintain highways under its jurisdiction.
The Minimum Maintenance Standards, which were first enacted in 2002, purported to provide to municipalities a full defence for any alleged default provided they met the Minimum Maintenance Standards. These standards require a municipality to clear accumulated snow after it reached a specified depth. The depth at which the requirement was triggered and the time within which the accumulated snow had to be cleared depended on the classification of the highway for Derry Road, which was a Class 2 highway, the municipality had six hours to clear accumulated snow after becoming aware that it exceeded five centimetres.
In relation to icy roadways, in relation to Derry Road, the municipality had four hours to treat an icy roadway after becoming aware that the road was icy.
In Giuliani, the municipality’s position was basically that it was fully in compliance with the Minimum Maintenance Standards in relation to both snow accumulation and icy roadways, and that the Minimum Maintenance Standards provided a full defence.
In dismissing the appeal, the Court of Appeal reaffirmed that the Minimum Maintenance Standards do not purport to cover all circumstances that may arise in the course of maintaining roadways. Moreover, it agreed with the Trial Judge’s interpretation with respect to the applicable provisions dealing with accumulation of snow and icy roadways that this provision is only intended to create a minimum standard for treating a highway “after becoming aware that the roadway is icy”. The specific minimum maintenance standard only addressed the requirement to deploy resources once the municipality had knowledge that a roadway was icy, not by knowledge that it may or would become icy.
In the Giuliani matter, the municipality’s default was in relation to its failure to take reasonable steps to avoid ice forming on the roadway. As noted by the Court of Appeal:
In the present case, the allegations of fault directed at the appellants do not include a failure to treat the icy roadway within four hours of becoming aware of the icy conditions, as required by s.5. The trial judge’s findings of default on the part of the municipality are directed at failures to take reasonable steps to avoid ice forming on Derry Road. The failures, as I mention above, included failures to monitor the weather and to have deployed resources much earlier than was done so as to avoid the formation of ice.
Except in rare circumstances, winter storm conditions are generally proceeded by weather forecasts predicting its arrival. In most every case where a winter storm is forecast, municipalities can reasonably anticipate that snow will accumulate and that ice might form whether from freezing rain or ice pellets or from snow falling, covering the road and being compacted by vehicles into hard packed snow and ice. In all such circumstances, municipalities can take appropriate preventative steps to prevent a poor road condition from developing and based on Giuliani v. Halton cannot wait until the appropriate accumulation has arisen before the time period within which they must act begins to run.
For the purposes of Plaintiff’s counsel, in every claim in relation to non-repair of roadway relating to ice and snow conditions, it will be critical to obtain the appropriate weather forecasting information to assess whether the poor road conditions could have been predicted and whether appropriate preventative steps could have been taken.
Marinus Lamers is a car accident lawyer in the London Ontario law firm of Lerners LLP.