Area councils help to finance defence for icy road lawsuit
News
Posted By THE SUN TIMES
Posted 1 month ago
A lawsuit over an automobile accident that occurred on an icy road in York Region in December 2004 has local municipalities reaching for their wallets.
Grey County and at least five area councils -- Grey Highlands, Southgate, Northern Bruce Peninsula, Arran-Elderslie and South Bruce Peninsula -- have agreed to help finance the Ontario Good Roads Association's defence against a challenge to the province's minimum maintenance standards, a series of regulations outlining levels of care expected from lower tier governments for such things as snowplowing and other safety measures for roads and bridges.
The association has asked its 432 member municipalities to kick in 10 cents per capita to help pay legal costs in the case.
The lawsuit, being heard in Ontario Superior Court of Justice, notes that on Dec. 12, 2004, "Amelia Silveira lost control of her vehicle on slippery winter roads and collided head-on with an oncoming motorist. Ms. Silveira suffered severe injuries and issued a claim on June 8, 2005 naming the Regional Municipality of York. She alleges that the Municipality was negligent in its maintenance of the roadway and has pleaded broad elements of the negligence."
In its statement of defence, filed Nov. 8, 2005, York Region "relied on the provisions of the minimum maintenance standards for municipal highways . . . as a defence to the allegation of negligence."
"The idea of the minimum maintenance standard was to try and put a frame around where a municipality's liability begins and ends when it comes to issues around transportation-related accidents, maintenance, et cetera," Joe Tiernay, the executive director of the Good Roads Association, said Monday.
A task force set up by the association, which included representatives from municipal public works departments and risk managers, insurers, adjusters, legal counsel representing insurers and municipalities, the Association of Municipalities of Ontario and the provincial transportation ministry recently "reviewed to impact of MMS on insurance claims over the past five years."
"Adjusters advised that claims were often stopped when a plaintiff's lawyer was advised that MMS had been met and there was documentation sufficient to use MMS as a defence," the Good Roads Association website says.
"Because the region is using the minimum maintenance standards as a defence, the plaintiff obviously came to the conclusion . . . that they will not be successful," Tiernay said. "So instead of rolling the dice on that, they've decided to attack the defence by suggesting the regulations themselves are ultra vires, or not in according with law."
"If they can get a judge to rule, to say the standards are not passed in accordance with any law that's allowable, they basically get the minimum maintenance standards thrown out and the region's defence along with it," he said.
"The reason they were put in place in the first place was because if someone has a traffic accident and there's serious injuries and they're faced with all kinds of costs that aren't covered by insurance, they look to someone to blame and typically it's the municipality when it's a winter-related road accident.
"When it gets before a judge, even if the municipality argues we did out best, we were trying to keep the roads clear and the person shouldn't have been out on them in the first place, the judge looks at the municipality with its insurer and its fairly sizable tax base and resources and looks at the poor person who might be sitting there in a wheelchair and sometimes sympathy gets into the mix and awards are made in favour of the plaintiff even though the municipality was doing due diligence."
A hearing on the legality of the minimum standards is to be held in Markham on Nov. 10, Tiernay said.
