The City of Hamilton has been busy recently at the Ontario Court of Appeal, acting as appellant on two separate appeals relating to findings of liability for non-repair of intersections. The City was found partly at fault at the trial level in both actions, on similar facts.
Given that the panels came to different conclusions on liability against the City on similar facts, one queries whether the results would have been different were the appeals argued together.
Read together, we are left with some guidance on how the Courts will address municipal liability in the context of allegations of non-repair. The distinction between the facts in this case, however, provide lower courts with little guidance on how to determine when a municipality has failed in its duty to ensure safe intersections.
Section 44 of the Municipal Act, S.O. 2001, c.25 imposes on a municipality the obligation to keep highways under its jurisdiction,
...in a state of repair that is reasonable in the circumstances, including the character and location of the highway.
The Court of Appeal in Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, outlined that a municipality is required to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers, exercising reasonable care.
The court in Fordham stressed that ordinary drivers make mistakes, and are not perfect, and a municipality must take that into consideration in its obligation with respect to highways.
However, the court made it clear that a municipality's duties with respect to repair do not extent to remedying conditions that pose a risk of harm caused by negligent driving.
It is this last point that came to a head in both Chiocchio and Smith.
Chiocchio v. Hamilton (City) – Trial Decision
In Chiocchio, the plaintiff was a passenger in a motor vehicle which was travelling northbound when it was t-boned by the defendant Mr. Ellis. Mr. Ellis had been stopped at a stop sign at the intersection, and had accelerated into the intersection.
There was no stop sign facing the plaintiff's motor vehicle, and no dispute that Mr. Ellis was responsible for the accident. He conceded at trial that he did not see the plaintiff's vehicle.
At issue was the state of the intersection. The stop sign was located between 8.4 and 9.4 metres back from a faded stop line, which itself was located between 1.9 and 2.9 metres behind the entrance to the intersection. The stop line had last been painted about two years prior to the accident.
Furthermore, any driver stopped at the stop sign would have his view of southbound cross-traffic completely obscured by a house. The sightlines for southbound traffic were clear, once a driver reached the edge of the intersection.
The trial judge apportioned liability at 50% against both the municipality and Mr. Ellis.
The City of Hamilton appealed.
Smith v. Safranyos – Trial Decision
In Smith, the injured plaintiffs were passengers in a vehicle operated by the defendant Safranyos. Ms. Safranyos' vehicle was travelling westbound, intending to turn left onto a more major roadway.
As in the Chiocchio case, she stopped at the stop sign, and without stopping again proceeded to enter the intersection thinking it was clear of traffic. It was not, and her vehicle was t-boned by a vehicle operated by the defendant, Mr. McHugh.
In terms of the intersection, the stop sign facing Ms. Safranyos in Smith was located ten metres back of the intersection. There had been at one point a stop line, but it had been removed about three years prior to the date of the accident.
In addition, there was evidence that the rising elevation of the arterial road approaching the intersection from the south, combined with a guardrail along the side of that road, made for partially-obstructed visibility to vehicles in Ms. Safranyos' position.
As an added wrinkle, Mr. McHugh had consumed alcohol prior to operating his vehicle, and it was accepted by the trial judge that at the time of the impact he was travelling at least 15km/h over the speed limit.
The trial judge apportioned liability as follows:
Ms. Safranyos: 50%
Mr. McHugh: 25%
City of Hamilton: 25%
Both Mr. McHugh and the City of Hamilton appealed.
Despite the similar facts in these cases, the two separate panels that heard these appeals came to different conclusions on liability with respect to the municipality.
In Chiocchio, the court granted the City's appeal, and dismissed the action as against it.
In Smith, the court rejected the City's appeal, leaving it with 25% of the liability for the accident for reason of non-repair of the intersection. The Court granted Mr. McHugh's appeal, dismissing the action against him.
So what are we to make of these differing rulings on the issue of non-repair? In particular, how are we to understand the standard of care of a municipality with respect to negligent drivers? The most dynamic component of this question comes from the interplay between two statues, the Municipal Act and the Highway Traffic Act, R.S.O. 1990, c. H8.
As noted above, the Municipal Act imposes on municipalities the obligation to keep highways in a state of repair, keeping in mind the reasonable driver, a prudent driver who nevertheless makes mistakes.
Added to the mix is the Highway Traffic Act, which dictates how motorists must behave on the roads, including at intersections where there are no stop lines.
Section 136(1) of the Highway Traffic Act outlines that, in the absence of a stop line, a driver must stop at the first painted marker of the pedestrian crossing at an intersection. In the absence of a pedestrian crossing, then a driver must stop at the edge of the intersection.
In addition, the courts have consistently held that a reasonable driver only proceeds through an intersection when she believes it is safe to do so, meaning that a reasonable driver puts herself in a position to adequately observe the intersection, even if that means stopping again further ahead than the stop line or stop sign at an intersection.
The City of Hamilton in both Chiocchio and Smith argued that the intersections at issue in these cases were not unsafe for the reasonable driver, because the reasonable driver would have stopped at the stop sign, and then stopped again before proceeding into the intersections.
Furthermore, the City argued that, by failing to do so, the defendants Mr. Ellis and Ms. Safranyos were not reasonable drivers, but negligent drivers. Implied in this latter argument is that their behaviour went beyond the accepted "mistakes" that reasonable drivers make, and that the City was not under an obligation to design and maintain intersections with such negligent behaviour in mind.
The Court of Appeal agreed with the City's arguments in Chiocchio, and rejected them in Smith.
The panel in Chiocchio found that the trial judge erred, in that he did not support his conclusion that the intersection at issue posed an unreasonable harm to ordinary reasonable drivers.
The Court of Appeal found that a reasonable driver would have stopped at the stop sign, and then stopped again at the edge of the intersection, before proceeding into the intersection.
The Court of Appeal indicated that the municipality was not under an obligation to contemplate the obviously negligent actions of a driver operated his vehicle in the manner of Mr. Ellis.
The panel in Smith, however, came to a different conclusion on the facts of that case. On appeal the court found that the trial judge did not err in concluding that the absence of a stop line amounted to non-repair as contemplated by the Municipal Act.
The trial judge in Smith had based her finding of liability against the City both on the absence of a stop line, and on the fact that there was partially obstructed visibility at the intersection.
The Court of Appeal was careful to point out that the trial judge did not ground her finding of liability against the City solely on this latter issue. To find otherwise would be to suggest that any intersection with partially obstructed visibility would, by its very existence, attract liability on a municipality.
Instead, the Court noted that it was within the right of the trial judge to find that the sightlines at the intersection contributed to the danger, already caused by the absence of the stop line.
The Court further noted that, even if the trial judge's findings on sightlines were in error, that error was not palpable, given the non-repair finding based on the missing stop line.
The result of these two rulings leaves us with little in the way of guidance in determining municipal liability for non-repair, in the context of intersection layout. In both cases, there were stop signs situated well back of the intersection.
Both cases featured limited sightlines for drivers stopped at the stop sign. In Chiocchio there was a faded stop line, and in Smith there was none. Moreover, each panel had similar accidents, suggesting that the alleged non-repair resulted in the same type of behaviour by confused motorists.
There is enough in the two judgments to suggest that the sightline issue in Smith was more pronounced, but even so, this is a relatively thin factual distinction, particularly when the court in Smith went out of its way to say that partially-obscured sightlines cannot, in themselves, ground a finding of liability against a municipality.
In short, these two cases leave future litigants with uncertainty on how the courts will treat cases of this nature in the future. One can perhaps sympathize with the City of Hamilton for feeling like it has been left with insufficient clarity, when faced with intersections like those in these two cases.
One questions whether a further panel will be convened to make sense of these two rulings, or whether we will be left to argue in the future whether an intersection is of the Chiocchio variety or the Smith variety.
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