The Court of Appeal has upheld a trial judge’s decision finding the City of Sudbury negligent for failure to properly maintain a roadway during inclement winter conditions. Belanger v. City of Sudbury involved a tragic accident in which a 20 year old woman was catastrophically injured when her vehicle crossed the center line and struck a bus head on in icy and snowy conditions. Damages were agreed at $12 million and 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 combination of applied salt with melting snow that falls on top referred to as a ‘brine sandwich’). The trial judge also accepted the expert evidence of the plaintiff that a failure to plow the ‘brine sandwich’ in a reasonable period will result in a refreeze. In that case, subsequent plowing activity will remove the surface snow but not the ice underneath. At trial the defendant did not lead expert evidence on this issue.
In Belanger, the City applied salt at 7:15 am on the morning of the accident but did not plow the roads until sometime between 10:15 and 11:15 as a result of machinery breakdown. Importantly the court found that the road was plowed within the hour prior to the accident which occurred at 11:15am. However, by that time 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.
There are a number of takeaways from this case. Firstly cities (and by extension maintenance contractors involved in snow clearing) are expected to respond to the potential of ice forming on roadways even while maintenance is underway. Secondly, 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 a City’s obligation to maintain the roadway in good repair.
Finally, it is apparent that the standard of care for cities in these circumstances is high. In this case the plaintiff’s expert conceded that even if everything had worked as it should 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. This suggests that those who are managing the maintenance crews during a weather event are expected to execute their function at a high level of competence in a challenging environment. At least in this case they were expected to adapt to changing circumstances and to utilize and re-direct resources as required rather than blindly following a system. There is reason to believe that this decision has equal application to maintenance contractors working in other contexts such as in commercial plazas.
See Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428 (CanLII)