October 13, 2011
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Ontario municipalities and cities would be well served to recall the chorus of "Signs", the 1971 hit for Canada's own Five Man Electrical Band. It will be particularly relevant when it comes to the design or modification of an Ontario highway, following a recent decision of the Ontario Court of Appeal.

The case involved a fourteen-year-old cyclist named Daniel Repic, who was struck by a motor vehicle while riding his bicycle across an on-ramp leading to the (at that time) newly built Lincoln Alexander Parkway. Mr. Repic settled his action against the vehicle's driver, but continued with a negligence action against the City of Hamilton for having failed in its duty to maintain the Parkway in a fit and proper repair, contrary to the Municipal Act 20011.

It is well established that a municipality has an obligation to keep highways in a reasonable state of repair. The Municipal Act 2001 provides that the municipality with jurisdiction over a highway or bridge must keep it in a condition that is reasonable in the circumstances, including the character and location. It further provides that if a municipality does not comply with the Act, then liability for damages sustained by any person will be determined in accordance with Ontario's Negligence Act.

In finding the City of Hamilton partially liable for Mr. Repic's injuries, the trial judge took issue with the City's choice to direct pedestrian and bicycle traffic across the on-ramp, without taking any steps to mitigate the inherent conflict that would arise between motorists and other road users. The multi-use path crossing the ramp had changed the characteristics of the intersection, and as a result triggered a need for an assessment by the City of Hamilton of the conflicts created by this intersecting design.

Expert evidence presented at trial demonstrated that the City of Hamilton should have anticipated that vulnerable road users, including young people such as Mr. Repic, would be using the on-ramp. It was up to the City to assess each location, taking into account the safety of all road users. The City should do whatever possible to prevent any conflict between non-motorists and motorists. Specifically, the court found that the failure of the City of Hamilton to mark the crossing, alert motorists of the crossing, alert cyclists that the bike path was ending or to consider any modifications testified to by the experts at the trial, left the intersection in a state of disrepair for which the City of Hamilton was partially liable.

The prudent course of action for a municipality to take when either implementing a new highway or modifying an existing one, is to consider the needs and safety of both current and possible future users. A number of key points can be drawn from this case, including that where a municipality opens a new roadway that it: (a) conduct a reasonable inspection, (b) consider how such facility is being used by the public, and (c) assess any conflicts or safety issues that need to be addressed. Naturally, hand in hand with any inspection process is the requirement for a rigorous note and record taking practice, to ensure that the observations and amendments made by municipal staff are appropriately recorded and remedied, and that they can be presented as evidence should the municipality be required to defend itself.

In this instance, an appropriate sign may not only have prevented an accident, but could have also saved the municipality from a damaging legal battle. As the song goes, "Can't you read the signs?"

 

1Now Municipal Act 2011, s. 44(1) (s.284(1) of the Municipal Act 1990, as it then was).

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.