Carr v. Anderson, [2000] O.J. No. 2515 (Sup. Ct. of J.)

Carr is an example of a pedestrian-motor vehicle collision where the defendant driver hit the plaintiff pedestrian in attempting to escape from a dangerous situation created by the pedestrian.  Carr stands for the proposition that even in extreme circumstances the defendant driver owes the plaintiff pedestrian a duty to avoid a collision.

In Carr, the plaintiff was operating his vehicle directly in front of the defendant’s vehicle.  Suddenly, the plaintiff stopped his vehicle and got out.[1]  The plaintiff approached the defendant’s vehicle with a six-inch combat knife.  The plaintiff punctured the front left wheel of the defendant’s vehicle and proceeded (knife-in-hand) towards the defendant’s driver door. The defendant escaped the situation by sharply accelerating around the plaintiff’s parked vehicle and away from the plaintiff.   In the process of driving around the plaintiff’s vehicle, the defendant’s vehicle made contact with the plaintiff, causing a severe tibia-fibula fracture.

At paragraph 22, the court found that the defendant had not discharged the onus to prove that the plaintiff’s damages were sustained without any negligence on the defendant’s part.

The court accepted that the plaintiff’s conduct put the defendant in a justifiably perceived situation of emergency.   However, the court concluded that the defendant did not need to accelerate sharply from a stopped position and a lower rate of speed would have permitted the plaintiff to avoid contact.

The court found the defendant negligent and the plaintiff contributory negligent.   In accordance with Section 4 of the Negligence Act the court apportioned the liability 50/50.

[1] In court, the plaintiff claimed that he had been rear-ended by the defendant.  However, the judge did not accept this evidence.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Giuliani v. Halton (Municipality)

Giuliani v. Halton (Municipality), 2011 ONCA 812

The Ontario Court of Appeal recently affirmed the decision in Giuliani v. Halton (Municipality), upholding the decision of the trial judge that the municipality was liable for icy conditions on the highway in a motor vehicle collision on April 1, 2003.  The plaintiff’s injuries were described by the trial judge,

[5]               Ms. Giuliani’s injuries included bruising to the right forehead (consistent with a conclusion that she struck her head forcefully in the accident).   She sustained a number of intra-abdominal injuries requiring an urgent laparotomy.   She sustained multiple orthopaedic injuries, including a fracture to the left clavicle, fractures of the distal right femur, fractures of the right lateral tibial plateau of her right tibia.  In addition, she had a right supra-condylar femoral shaft fracture.  She sustained multiple left rib fractures requiring a left chest tube.  In addition, she sustained injuries to her spleen which was lacerated, and to her bowel.  Post-accident emergency surgery on April 1, 2003 led to the removal of her spleen and part of her bowel.  Dr. Chu, a physician involved in treating the plaintiff immediately after her accident, in his report dated April 16, 2003, described her injuries as extensive and life-threatening (see page 46 of Dr. Chaimowitz’ expert opinion).

[6]               Ms. Giuliani was discharged from Sunnybrook to West Park Hospital for convalescence and rehabilitation on April 25, 2003.  Ms. Giuliani remained in West Park until her discharge on June 3, 2003.

[7]               At the time of the accident, the plaintiff was 39 years of age and was employed at Canfin Mutual Group where she performed clerical/administrative functions processing mutual fund purchases.  Although Ms. Giuliani did return to work in June of 2006, for a time working both on a modified and full-time basis, at the time of trial she was not working and in receipt of accident benefits.

[8]               She continues to experience chronic pain, headaches, anxiety and concentration difficulties.  She has significant functional limitations and takes a variety of medications including Celexa for depression, Clonazepam for anxiety, and Ativan for panic attacks.

Municipal liability for highway maintenance is found in the Muncipal Act,


44.  (1)  The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge. 2001, c. 25, s. 44 (1).


(2)  A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default. 2001, c. 25, s. 44 (2).

The Act also provides a number of defences to liability stemming from maintenance,


(3)  Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
[emphasis added]

The city attempted to rely on the Minimum Maintenance Standards (MMS) mentioned above as the basis for their defence. These exceptions to liability under the Act allow for a muncipality to provide a defence if it does not maintain a highway in a reasonable state of repair, even where it knows or ought to have known that of the faulty state.  However, the MMS are not intended or recognized as an all-inclusive document (Thornhill v. Shadid).  The MMS can be found under O. Reg. 239/02 Minimum Maintenance Standards for Municipal Highwaysand were described by the trial judge in this case as follows,

[165]      Section 5 of the MMS deals with icy roadways.  It requires municipalities to deploy resources to treat icy roadways as soon as practicable after becoming aware that the roadway is icy and to treat the icy roadway within the time set out in the table after becoming aware that the roadway is icy.  For a class 2 road, while resources must be deployed as soon as practicable after becoming aware that the roadway is icy, the time period for treating a roadway after becoming aware that the roadway is icy is 4 hours.  I conclude that this section of the MMS does not apply.  This was not a case of ice forming by freezing rain or as a result of ice pellets.  Neither was it a situation where the Town was notified of a dangerous patch of ice on the road.  This is a case of snow falling and covering the road which was then compacted by vehicular traffic into hard packed snow and ice or icy conditions at various places.  The remediation, salting of the roads, was intended to prevent the compacting of snow and the creation of ice and slippery conditions.  It makes no common sense to interpret this section of the MMS as being applicable in the circumstances of this case.  If it were otherwise, municipalities could avoid any of their obligations to clear the roads of snow by waiting until the snow becomes compacted and turns into ice and then claiming that a new time limit is triggered from the time when the municipality becomes aware that the roadway is icy.
[emphasis added]

However, the trial judge erroneously referred to the current MMS regulations, O.Reg. 23/10, prompting the Court of Appeal to state,

[16]         In his reasons, the trial judge incorrectly referred to the 2010 Regulation.  However, the differences between the 2002 and the 2010 standards as they relate to the circumstances of this case are not material, nor did they play a role in the trial judge’s reasons.

The relevant part of the MMS at issue in the appeal was s. 5,

Icy roadways

    5.  (1)  The minimum standard for treating icy roadways is,

    (a)   to deploy resources to treat an icy roadway as soon as practicable after becoming aware that the roadway is icy; and

    (b)   to treat the icy roadway within the time set out in the Table to this section after becoming aware that the roadway is icy.

    (2)  This section only applies to a municipality during the season when the municipality performs winter highway maintenance.

Derry Road, where the accident occured, was classified as a class 2 highway, allowing for 4 hours for icy roadways.  This section is only invoked though by the knowledge that a highway is already in an icy state,

[31]         Section 5 of the MMS was directed at the situation when the roadway had become icy, not before.  The standard’s requirement to deploy resources and treat was triggered by knowledge that the roadway is icy – present tense – not by knowledge that it may or will become icy.  The standard did not address a municipality’s response to conditions that had not yet become icy. The standard provided for a timeline for treatment of the icy condition depending on the class of highway.

[32]         In the present case, the allegations of fault directed at the appellants do not include a failure to treat the icy roadway within four hours of becoming aware of the icy conditions, as required by s. 5.  The trial judge’s findings of default on the part of the municipality are directed at failures to take reasonable steps to avoid ice forming on Derry Road.  The failures, as I mention above, included failures to monitor the weather and to have deployed resources much earlier than was done so as to avoid the formation of ice.

[33]         Thus, in my view, the trial judge was correct in finding that s. 5 of the MMS did apply to the failures or defaults that underlay his finding of liability.  I agree with the trial judge that s. 5 did not provide a defence to the appellants.  This conclusion is supported by the language of the section and by common sense.  As the trial judge said, at para. 165:

If it were otherwise, municipalities could avoid any of their obligations to clear the roads of snow by waiting until the snow becomes compacted and turns into ice and then claiming that a new time limit is triggered from the time when the municipality becomes aware that the roadway is icy.

The court interpreted  s. 44(3)(c) as applying to the failure to monitor the weather and deploy resources to prevent the road from becoming icy.  The default here was not that they failed to treat the roadd after becoming aware that it was icy.

The MMS does not establish any minimum standard for accumulation of less than 5 centimetres of snow on class 2 highways or treating a highway before ice is formed.  The Minister of Transportation could have created standards in the MMS regulations to address this situation if they had chosen to do so.  No defence from the MMS was available to the city in these circumstances.

Omar Ha-Redeye is the Principal of Fleet Street Law, a full-service law chambers in Toronto.