This action arose from an accident wherein the plaintiff fell off his motorcycle due to a longitudinal discontinuity or lip in the pavement of a municipal roadway. At trial, Justice Krawchenko found that the existence of the discontinuity at an irregularly angled intersection created a risk of harm to ordinary reasonable drivers such as the plaintiff, and that the accident was caused by the plaintiff’s motorcycle coming into contact with the lip. However, Justice Krawchenko further held that the City had a complete defence under s. 44(3)(c) of the Municipal Act as it complied with the Minimum Maintenance Standards (MMS) at the material time, and therefore dismissed the plaintiff’s claim as against the City.
On appeal, the plaintiff disputed that the MMS apply to the pavement discontinuity that caused the accident, and in the alternative argued that the City failed to meet its onus of proving compliance with the MMS. The Court of Appeal held that the trial judge made a palpable and overriding error in in holding that the evidence established that the height of the discontinuity met the MMS. The City failed to introduce evidence that the discontinuity complied with the MMS, and it was insufficient for the City to simply critique the evidence of the plaintiff and the plaintiff’s expert. The defences under s. 44 of the Municipal Act are positive defences that require a municipality to prove they have met a particular burden, rather than a reverse onus on a plaintiff. The Court of Appeal further held that the trial judge committed a palpable and overriding error in finding the plaintiff 50% responsible for the accident. The Court of Appeal held that the City was 100% liable for the accident as there was insufficient evidence to establish contributory negligence on the plaintiff’s part.
