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One More Load: March-April 2015

Landmark judgement could have legal repercussions for municipal road maintenance

Landmark judgement could have legal repercussions for municipal road maintenance

The court decision opens the door for anyone with damage from road salt to sue the municipality.

You have no doubt by now heard of the latest inane decision handed down by the Superior Court. The County of Lambton was found to be negligent by the Superior Court for allegedly allowing road salt to negatively affect crops from an abutting farm owner. This claim went back to 1998 and only now was the decision rendered.

From the Ontario Superior Court of Justice Reasons for Judgement statement presented by Justice Carey on Jan. 16, 2015:

[25] I have concluded on all of the evidence that the pattern of salt dispersal on the Steadman farm is consistent with the plaintiff’s engineering opinion that the higher levels of salt contamination are found closest to the road. The only reasonable, logical inference is that the salt is coming from spray and off the road itself.

[26] I have been persuaded by the plaintiffs on the balance of probabilities that the dispersion of road salt by the defendant along a portion of their property that bordered with Nauvoo Road was the cause of damage from about 1999 to the present, to their land and to their soya and wheat crops.

What’s a municipality to do? If they don’t put salt on the roads they will find themselves in court defending claims that the roads were not kept in “good repair” as required by the Municipal Act. Yet now if they put salt on the roads, anyone can claim that the municipality has caused them injury, a classic “Catch 22” scenario.

And I’m not just talking about farmers. This decision opens it up to anyone who feels that the municipality has damaged their grass, shrubs and/or ornamentals trees by the use of salt. Could this also be an annual claim? Will that same Lambton County farmer file suit every year looking for a municipal payout? The ramifications of this decision to Ontario municipalities and the Ministry of Transportation are staggering.

OGRA is not sitting back and waiting. The board approved a three-prong plan of action to try and deal with this situation. OGRA will be presenting a draft piece of legislation to amend the Municipal Act to protect municipalities from future claims of this nature. We are also in discussion with Lambton County’s insurer to see if there is an opportunity to appeal the ruling. (As of the writing of this column, no decision has been made.) And finally, because this ruling impacts the Ministry of Transportation, OGRA will be meeting MTO officials to discuss the issue and see if there is an option for a joint response.

The Province of Ontario has the safest roads in North America partly because municipalities and MTO have become experts in managing winter events while being sensitive to the environment. If they are going to be able to continue to keep motorists safe at a reasonable cost, the use of chlorides is absolutely necessary. Municipalities cannot be expected to effectively deal with snow and ice if they are constantly looking over their shoulder for the next litigant. It’s time we put this matter to bed once and for all and change the legislation to give municipalities the protection they need to do their job.