Barrister and Solicitor
Legal Writing and Research
Negligence - Contributory
Negligence - Municipalities - Road Maintenance
Negligence - Standard of Care - Statutory Duties
Fordham v. Dutton-Dunwich (Municipality) (Ont CA, 2014)
In this interesting case the Court of Appeal reversed a trial judgment holding a muncipality 50% liable for damages to a driver who ran a stop sign at high speed. The trial judge located negligence on the municipality for not posting a 'sharp turn ahead' warning sign ahead in an area where it was "a local practice in this rural area for drivers to go through stop signs" (!). The appeal court relieved the muncipality of any liability, stating:
 More precisely, this appeal turns on the standard of care a municipality must meet in fulfilling its duty of reasonable repair, and the application of that standard to the facts. A municipality’s standard of care has been thoroughly canvassed in two cases: the Supreme Court of Canada’s decision in Housen v. Nikolaisen, 2002 SCC 33 (CanLII),  2 S.C.R. 35, a case perhaps better known for its discussion of the standard of appellate review; and Howden J.’s decision in Deering v. Scugog (Township), 2010 ONSC 5502 (CanLII), 3 M.V.R. (6th) 33, which this court affirmed in a brief endorsement: 2012 ONCA 386 (CanLII), 33 M.V.R. (6th) 1, leave to appeal to S.C.C. refused,  S.C.C.A. No. 351.
 In brief, a municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. In other words, a municipality’s standard of care is measured by the “ordinary reasonable driver”. Ordinary reasonable drivers are not perfect drivers; they make mistakes. As Howden J. wrote in Deering, at para. 154:
In conclusion, I accept what have become the submissions of all counsel that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to the defences of no knowledge and reasonable steps to prevent and minimum standards compliance. The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes. But – and this is the important point for this appeal – a municipality’s duty of reasonable repair does not extend to making its roads safer for negligent drivers. In Deering, Howden J. made this point succinctly, at para. 142: “The standard of care of road authorities rests on the notion of the ordinary motorist driving without negligence”.
 And again, at para. 155:
It is not the law in Canada that the duty of road authorities goes beyond the duty to keep their roads in reasonable repair for the ordinary driver exercising reasonable care, to include drivers who, for instance, do not pay attention, drive at excessive speeds, drive too close to the vehicle in front and who are otherwise negligent. A municipality’s duty of repair includes erecting and maintaining proper signs: see The Queen v. Jennings, 1966 CanLII 11 (SCC),  S.C.R. 532. And, where hazards are hidden or “not readily apparent to users of the road”, a municipality may have a duty to install warning signs. A municipality’s duty to install signs, however, is simply an application of the general standard of care. Signs are required only if without them, an ordinary driver exercising reasonable care would be exposed to an unreasonable risk of harm. Thus, the mere presence of a hazard does not require a municipality to put up a warning sign; the hazard must be one that puts reasonable drivers at risk. See e.g. Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (ON SC),  O.J. No. 5438 (Sup. Ct. J.), at para. 17; aff’d 2012 ONCA 299 (CanLII).
 I conclude that the trial judge’s finding of a local practice of running stop signs, which Dutton-Dunwich knew about, was an unreasonable finding.
 Second, and more important, the law. Even if the evidence did support the trial judge’s finding of a local practice, this finding cannot be used to impose liability on Dutton-Dunwich for two reasons. First, the local practice the trial judge endorsed nonetheless amounts to negligent driving. As Iacobucci J. said in Waldick v. Malcolm, 1991 CanLII 71 (SCC),  2 S.C.R. 456, at p. 473: “[N]o amount of general community compliance will render negligent conduct ‘reasonable’”.
 Second, the trial judge in effect created two categories of drivers: ill-defined ordinary rural drivers who frequently run stop signs, and all other ordinary drivers who habitually obey stop signs. In the trial judge’s opinion, a municipality’s duty of repair extends to both categories of drivers. This is, as Dutton-Dunwich says in its factum, “an invitation to traffic chaos.” It is also not the law in this country.
 The Highway Traffic Act establishes a uniform set of rules of the road, which applies to all drivers, whether they drive on city roads or rural roads. It could hardly be otherwise. As I said earlier, a municipality’s duty to keep its roads, city or rural, in a reasonable state of repair extends only to making its roads safe for reasonable drivers, not negligent ones. If a road is safe for a reasonable driver – as was the Willey Road–Erin Line intersection – then a municipality has no duty to put up additional signs or take other precautions to prevent accidents that will occur only if a driver is negligent.
 If this is the law on a municipality’s standard of care, the trial judge’s reasons contain an irreconcilable conflict. The trial judge could impose liability for non-repair only by finding that in rural areas driving through stop signs was reasonable driving. Yet, when she came to apportion liability, she found that in running the stop sign, Fordham was negligent. These two findings cannot be reconciled. Running stop signs, even on rural roads, is negligent driving. A municipality has no duty to install warning signs that are unnecessary for reasonable drivers.