The document summarizes a recent court decision regarding municipal liability for road maintenance. It discusses the proper legal analysis for such cases according to the leading Supreme Court precedent. Specifically, courts must determine whether the road posed an unreasonable risk to an ordinary driver exercising reasonable care - an objective standard. The document analyzes several recent lower court decisions, noting where they properly applied this standard and where they slipped into a subjective analysis or analyzed the case like a negligence claim rather than applying the statutory test for liability. It emphasizes the importance of following the four-step test from a recent Court of Appeal decision to promote consistent application of the law.

1. Keeping it Clear:
Recent developments in the law on municipal road maintenance
Authored by Jennifer Hunter & Stephen Ronan, Lerners LLP1
The Court of Appeal’s recent decision in Fordham2
is a concise articulation of the proper
analytical approach in actions involving allegations of non-repair of a roadway. The decision
addresses an error that has periodically occurred in the court’s analysis when determining
whether the roadway in question posed an unreasonable risk to the ordinary driver exercising
reasonable care. In accordance with the leading case from the Supreme Court of Canada, this
is intended to be an objective analysis.3
However, in recent years, liability has frequently been
determined on the basis of whether the road was safe for a driver such as the one involved in
the accident at issue, regardless of whether that driver was exercising reasonable care. The
result is a subjective analysis, which the Court of Appeal has confirmed is incorrect.
In addition to utilizing a subjective approach when assessing the safety of a roadway, analytical
errors have also been made when the court’s approach to liability takes the same shape as that
for a finding of negligence. Often it is seen that liability is decided on the basis of the following
questions: (1) what is the standard of care? (i.e.: what do engineering standards say about how
the roadway ought to have been maintained); (2) was that standard breached? (i.e.: did the
municipality meet that standard); and (3) did the breach cause the plaintiff’s injuries (i.e.: would
meeting the standard have prevented the accident). As explained below, the proper liability
analysis in municipal road cases is not the same as the analysis for a finding of negligence, but
courts seem unable to resist trying to fit such cases into the familiar negligence mold. In this
respect, Fordham is important because it provides a systematic approach which, if properly
followed, will result in a more consistent application of the proper test for non-repair.
The starting point for any analysis of whether a municipality is liable to an injured party for non-
repair of a roadway is s. 44 of the Municipal Act, 20014
. That section creates a statutory
obligation on a municipality to keep its roads “in a state of repair that is reasonable in the
circumstances, including the character and location of the roadway”. The statute requires the
plaintiff to establish non-repair and causation on a balance of probabilities. If the plaintiff
succeeds, the road authority is liable unless it establishes one of the statutory defences
1
Thank you also to articling student Patricia Snell for her assistance with the initial research.
2
Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 (CanLII)
3
Housen v. Nikolaisen, [2002] 2 SCR 235, 2002 SCC 33 (CanLII)
4
Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”)

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available to it. The Court of Appeal articulated a four-step test5
for analyzing a cause of action
under s. 44 of the Municipal Act:
1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality
failed to keep the road in question in a reasonable state of repair.
2. Causation: The plaintiff must prove the “non-repair” caused the accident.
3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of
liability against a municipality. The municipality then has the onus of establishing that at
least one of the three defences in s. 44(3) applies.
4. Contributory Negligence: A municipality that cannot establish any of the three defences
in s. 44(3) will be found liable. The municipality can, however, show that the plaintiff’s
driving caused or contributed to the plaintiff’s injuries.
Although Fordham concerns a signage issue, the general principles endorsed by the Court of
Appeal apply to all cases involving the maintenance of roadways. Whether the facts of the case
involve potholes, snow storms or ice, the court must always begin with an objective analysis of
whether an ordinary driver exercising reasonable care could have travelled the road safely. This
is very important because, for reasons that are not entirely clear, it seems to be very tempting
for judges to slip into a negligence analysis and start with a consideration of whether the
municipality’s maintenance practices were reasonable. With this in mind, this paper will review
the most recent decisions on road maintenance and will consider whether the “ordinary driver”
test has been properly applied. Other important developments arising from these cases will also
be highlighted.
McLeod v. General Motors of Canada Ltd.6
Although it pre-dates Fordham, this decision is a good example of the proper analysis to be
applied by courts when faced with a determination of whether a roadway is in a state of non-
repair. It is a particularly useful decision in dealing with allegations of non-repair on a rural
roadway involving a rural municipality.
5
It should be noted that before a finding of whether the road is in a state of reasonable repair, the court
must also determine the character and state of the road as a matter of fact. In Fordham, it is clear this
step is implicit in the Court of Appeal’s decision and the legal analysis cannot be commenced until
these findings of fact are made.
6
McLeod v. General Motors Canada Ltd et al., 2014 ONSC 134 (“McLeod”).

3. - 3 -
The action involved a single-vehicle collision on a rural road in the Municipality of
Dutton/Dunwich. After coming to the crest of a hill, the plaintiff’s vehicle lost control, slid across
the entire width of the road and rolled into a ditch. The plaintiff alleged that the roadway was in a
state of non-repair due to the presence of loose gravel at the side of the roadway and a number
of potholes on the road itself. She further alleged that the failure on the part of the municipality
to keep the roadway free of these “dangers” caused the accident.
In arriving at his decision on the issue of non-repair, the trial judge reviewed the recent case law
on the standard to be applied in cases where non-repair of a roadway is alleged. He found that
the following principles are well established:
• The standard of care required of a municipality is to keep the road in “such a
reasonable state of repair that those requiring to use it may, exercising ordinary
care, travel upon it safely.”
• Municipalities must only provide for ordinary drivers who exercise ordinary care.
The ordinary driver is of average intelligence, pays attention, uses caution when
warranted, is expected to adjust their behaviour according to the nature of the
roadway and driving conditions. While “ordinary drivers” may make mistakes,
they do not include drivers who do not pay attention, drive at excessive speeds,
or who are otherwise negligent.
• The standard of care must reflect the particular characteristics of the road in
question. Considerations include the locality of the roadway, the situation and
character/composition of the road, its history, the frequency of use, the resources
available to the municipality and the requirements of the public. In particular, the
condition of repair of a rural road does not normally impose a high standard on
the municipality.
Applying these principles, the trial judge found that the subject roadway was in a state of repair.
Important in his analysis was the fact that the roadway was a rural, gravel road. The evidence
was that gravel along the edge of this road was common and that the potholes in question were
relatively modest. He concluded that neither was a hazard that posed an unreasonable risk of
harm to a driver exercising ordinary care.
As in many cases where non-repair is alleged, the plaintiff introduced a wide array of evidence
regarding the condition of the roadway in areas other than where the accident occurred and at

4. - 4 -
times prior to and after the date of loss. This included resident complaints and observations
from the plaintiff’s parents and residents who lived on the roadway. The trial judge found that
this evidence was “neither appropriate nor necessary” in determining whether the roadway was
in a state of non-repair. He further emphasized that, “the Municipality should not effectively be
held liable for a default or poor road condition at some earlier time, or at some other particular
location (albeit perhaps on the same road), that has no direct or demonstrated connection with
the particular accident giving rise to a claim.”7
The trial judge similarly discounted evidence regarding steps taken by the municipality to
address the condition of the roadway following the plaintiff’s collision. He agreed with the prior
decision in MacMaster v. York8
that “courts should not be unduly influenced by measures taken
by a municipality to change or improve a road, after an accident, as they are by no means
necessarily indicative of any admission that there was something wrong with the road before
such measures were undertaken.”9
Even if he had found that the roadway was in a state of non-repair, the judge also concluded
that the municipality had properly made out all of the defences available under s. 44(3) of the
Municipal Act. With respect to whether the municipality knew or ought to have known of the
state of repair of the highway, he found that s. 44(3)(a) requires knowledge of the specific
condition giving rise to the non-repair complained of. Consistent with his reasoning that
evidence about conditions in locations other than the location of the subject accident is not
relevant, he held that for the purpose of the defence, it is not sufficient for the plaintiffs to argue
that the municipality knew or ought to have known of the condition of the road generally.10
With regards to whether the municipality took reasonable steps to prevent the default from
arising, the judge noted that s. 44(3)(b) does not require a municipality to adhere to any
particular regime or standard for its road maintenance. It only requires proof that whatever
actions the municipality took were reasonable. He also noted that a situation of non-repair may
arise despite the municipality’s reasonable efforts.11
In deciding the issue in the case before
him, the judge again emphasized the importance of the fact that the subject roadway was a rural
road in a rural municipality. On this basis, he dismissed a suggestion that the road should have
been paved. He found that “[i]t cannot be sensible to hold that a large municipality, with limited
7
Ibid, para 57.
8
MacMaster v. York (Regional Municipality), 2000 CanLII 1130 (ON CA)
9
McLeod, Para 74.
10
Ibid, para 161.
11
Ibid, para 185.

5. - 5 -
means, fails to take reasonable steps to prevent such problems unless and until it paves all
such roads within its jurisdiction”.
From an evidentiary perspective, the judge’s comments regarding documentation are also
helpful. While he states that more fulsome documentation of the municipality’s policies or
maintenance activities would have been helpful, this was not the purpose of the documentation
and there was no evidence that the municipality had failed to meet any mandated standard.
More importantly, there was nothing to suggest that a lack of documentation had been causative
of the accident.12
Finally, the decision is helpful in its interpretation of the Minimum Maintenance Standards.13
The
plaintiffs attempted to argue that s. 6 of the MMS, which deals with requirements for repair of
potholes once they are of a particular depth, did not apply because their allegation related to a
series of potholes being too close together, not a single one. They asserted that there was no
applicable standard for this issue which, if satisfied, would give rise to a defence under s. 44(3)
(c) of the Municipal Act. In advancing this argument the plaintiffs were attempting to invoke the
reasoning of the court in Giuliani v. Halton14
. The trial judge disagreed with this narrow
interpretation of the provision, finding that it would undermine and defeat its legislative purpose.
Instead, he found as a matter of statutory interpretation that where a regulation refers to the
singular it includes the plural and therefore s. 6 of the MMS does apply to a series of potholes.
Kelly v. Perth (County)15
This case is an example of a trial judge ultimately making the necessary findings with respect to
whether the municipality was liable, but not in the way described by the four-step test outlined in
Fordham. Specifically, while the judge began with a finding that the road was in a state of non-
repair based on the ordinary driver test, he went on to make findings with respect to standard of
care and the municipality’s maintenance procedures. As explained below, while such findings
are relevant to the ultimate conclusion on liability, they are more properly considered in the
context of the municipality’s statutory defences, i.e.: whether the municipality took reasonable
steps to prevent the condition of non-repair from arising.
This action also concerned a single-vehicle accident. Around 4:30 pm on the date of loss, the
plaintiff lost control of her vehicle in a snow drift, left the road and hit a tree. The evidence from
12
Ibid, para 180.
13
Minimum Maintenance Standards for Municipal Highways O. Reg. 239/02
14
Giuliani v. Halton (Municipality), 2011 ONCA 812 (CanLII)
15
Kelly v. Perth (County), 2014 ONSC 4151 (“Kelly”)

6. - 6 -
witnesses was that the snow drift was 100-200 feet long and 6-8 inches deep. The plaintiff
alleged that the failure of the County of Perth to properly maintain the roadway caused the
accident.
On the date of loss, the County’s road foreman called in the snow operators between 5:45 am
and 6:00 am because the forecasts were calling for severe weather. The roadway where the
accident occurred was plowed and salted between 6:15 am and 8:30 am. The plow operator
who was assigned to the route then patrolled it for two hours. He did not monitor the weather or
do any further work on the route for the rest of the day.
As noted above, the trial judge began his analysis by making a finding that the subject roadway
was in a state of non-repair, appropriately applying the “ordinary driver” standard. Important to
his decision was the evidence of other drivers who had difficulty driving through the snow drift
prior to the plaintiff’s collision. Other drivers testified that they had to slow down significantly in
order to navigate the drift and that their cars still lost traction in doing so. Based on this, the trial
judge found that the condition of the roadway presented a danger to ordinary drivers exercising
reasonable care.16
However, the judge then went on to consider the actions of the municipality under the auspices
of a standard of care analysis. He found that a County employee had failed to monitor the
weather, patrol and plow as needed as expected by his employer. Based on this failure, the
judge found that the County had failed to maintain the roadway in a reasonable state of repair.
Again, although important to the conclusion that the County was liable for the plaintiff’s injuries,
this is not the way the issue should be analyzed according to the four-step Fordham test. The
actions of the municipality, what it knew or ought to have known and whether the steps it took
were reasonable, are properly considered in the third step of the analysis where the municipality
bears the burden of proving its defences. Although not a standard of care analysis, industry
practices and expert opinion will certainly be relevant to determining whether the municipality
took reasonable steps to prevent the condition of non-repair from arising.
This distinction in the mode of analysis is important because a negligence analysis would
require the trier of fact to conclude, as the judge in this case did, that it was a failure on the part
of the municipality, or a breach of the standard of care, that caused the plaintiff’s accident. In
other words, the court feels the need to construe the evidence in order to find a direct causal
link between the municipality’s actions (or lack thereof) and the accident. Therefore, in Kelly, the
judge found that, had the plow operator performed his assigned duties and gone back out to
16
Ibid, para 71.

7. - 7 -
patrol and carry out maintenance on the subject roadway, the snow drift would have been
removed and salt would have been applied. These kinds of findings of fact, about what would
have happened, are often very difficult to prove and tenuous at best, which leads to dissatisfying
reasons for judgment. On the other hand, on an analysis that follows the four-step test, a judge
would consider whether the specific condition of non-repair identified, in this case the
accumulated snow on the roadway, caused the plaintiff’s accident. Only then, once the plaintiff
has established causation, should the analysis move to the municipality’s actions, including
whether it should have been expected to know about the situation of non-repair and whether the
steps it took to prevent the non-repair from arising were reasonable in the circumstances before
the court.
On the issue of the defences, since the actions of the municipality were dealt with as part of the
analysis of whether the roadway was maintained in a reasonable state of repair, all of the
defences available under s. 44(3) of the Municipal Act were rejected in “short order”. The judge
held that the defence under s. 44(3)(a) was not available because the evidence was that the
County had all of the necessary personnel and equipment to be able to become aware of the
condition of the roadway prior to the collision. It had an operator assigned to the route that
included the subject roadway who failed to attend as expected. Similarly, a defence under s.
44(3)(b) was not available because the County clearly failed to take the reasonable step of
ensuring that the plow operator continued to monitor, patrol and maintain his route throughout
the day. Even though the winter maintenance season was over, the evidence was that the
County’s ability to respond had not changed by the date of loss. Finally, the County did not seek
to avail itself of the defence under s. 44(3)(c) because the accident occurred a few days after
the end of their winter maintenance season and, therefore, the Minimum Maintenance
Standards did not apply.
The County attempted to argue that the fact other drivers were able to successfully navigate the
snow drift suggested contributory negligence on the part of the plaintiff. The trial judge
dismissed this argument, finding that this fact alone did not mean that the plaintiff was negligent.
He concluded that the plaintiff was not driving too fast for the conditions.
Lloyd v. Napanee17
This case represents a departure from the “ordinary driver” standard endorsed in Fordham.
While the trial judge correctly noted in his decision that this is the standard, he did not apply it in
his analysis.
17
Lloyd v. Napanee (Town), 2015 ONSC 761 (“Lloyd”).

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The action concerned a motor vehicle accident that occurred after the plaintiff lost control of her
vehicle while travelling through an s-curve on a snow packed road, crossed the centre line, and
collided with a propane truck. Before and at the time of the accident, the Town of Napanee was
experiencing a winter storm. The evidence was that, at the time of the accident, the roadway
was slippery and snow-covered, with no evidence of recent salt or sand. The roadway had a
history of being a “hot spot”.
The Town started winter maintenance at 4:00 am on the date of loss. One of the plow operators
testified that he plowed, salted and sanded the roadway a total of seven times on the morning of
the accident. The operator did not have any records to help refresh his memory, relying entirely
on a sworn statement he made in 2006, approximately three years after the accident. The judge
found that it was “unsafe” to accept the evidence and did not do so. He did accept, however,
that the Town had plowed the roadway and applied a 3:1 mixture of salt and sand both ways on
two occasions between 4:00 am and the time of the accident at 10:35 am.
The trial judge found that these steps were not adequate to address the weather and road
conditions at the material time. Primarily, he took issue with the fact that straight salt was not
used through the accident location. He accepted the evidence of two experts that this would
have created brine, which would have allowed snow and ice to be removed with a plow,
resulting in centre-bare conditions, making the centre line more visible to cars and providing
greater traction to vehicles. Ultimately, because this was not done, he found that the roadway
was in a state of disrepair.
Missing from the analysis is the consideration of whether the roadway was safe for an ordinary
driver exercising reasonable care, which is surprising since the decision references the standard
and cites McLeod v. General Motors of Canada Ltd. Although the judge refers to the roadway as
“dangerous” and “hazardous” throughout his decision, he never actually addresses the central
question as to what a careful and prudent driver would have done in the circumstances. He did
not consider whether the winter weather conditions at the time required increased caution or
reduced speeds. Instead, the judge first considered and determined what the Town ought to
have done according to expert opinion and the prevailing standards, and then determined
whether the failure to take those steps caused the plaintiff’s accident. By failing to consider what
the ordinary driver would do, in essence, a general negligence analysis was applied.
Of course, it is difficult to determine whether the outcome would have been different if the
analysis had included consideration of the ordinary driver. From the decision, the only evidence

9. - 9 -
of other drivers having difficulty driving on the date of loss was provided by an officer who was
driving “faster than he normally would have” and someone who arrived at the scene and saw
vehicles lose traction and fishtail after he got out of his car and waved at them. Unlike Kelly v.
Perth (County), there does not appear to have been any evidence of cautious drivers (or drivers
exercising reasonable care) having difficulty navigating the roadway.
It is also clear that neither the plaintiff or the defendant driver were operating their vehicles in a
way that was indicative of how an ordinary driver would proceed given that they were both found
partially liable for the accident. The judge found that the defendant driver was going too fast for
conditions. He also found that there was no evidence to rebut the presumption that the plaintiff
was negligent by reason of the fact that her vehicle crossed the centre line into oncoming traffic.
Interestingly, this decision is a result of a re-trial. When it was first decided, the trial judge
explicitly applied the “ordinary driver” standard when assessing whether the roadway was in a
state of non-repair. He found that a cautious and prudent driver could have travelled through the
curve safely at the time of the accident based on admissions made by the plaintiff’s expert.18
House et al v. Baird et al19
This case is the first decision on road maintenance to cite Fordham. Despite this, the trial judge
did not strictly apply the “ordinary driver” test or the four-step Fordham analysis. However, as
discussed below, this did not affect the outcome because of the judge’s conclusions on matters
relevant to the statutory defences.
In this case, the plaintiff lost control of his vehicle while travelling down a hill, slid into the
opposite lane, and collided with another vehicle. Based on the evidence provided by lay
witnesses and an expert, the trial judge determined that unanticipated ice had formed on the
roadway in the area of the accident less than an hour before it occurred. The roadway was
found to be slippery in spots.
The plaintiff attempted to argue the case on a common law “negligence” standard of care,
stating that the Township knew or ought to have known that the accident location was
dangerous and that there was a risk of ice forming. The trial judge disagreed, finding that the
Township’s duty was limited to maintaining its roads in a condition that was safe for ordinary
drivers exercising reasonable care. He cited Fordham and the four-step test endorsed in it.
18
Lloyd v. Bush, 2012 ONCA 349. A new trial was ordered on other grounds.
19
House et al v. Baird et al, 2015 ONSC 198 (“House”).

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Despite this, there is no specific finding as to whether the roadway was in a state of non-repair
or apparent application of the “ordinary driver” test. Instead, the analysis went straight to a
consideration of the Municipal Act defences. The judge found that the Township was not liable
because it (1) had an adequate system of maintenance for its roads and (2) even if the
Township had conducted a patrol, it was unlikely the conditions on the subject roadway would
have been detected in the hour between when the ice formed and when the accident occurred.20
Both of these findings support the conclusion that the Township had taken reasonable steps to
prevent the default from arising.
In this case the finding of non-repair appears to be implicit in the judge’s reasoning and is likely
based on the finding that the roadway was icy in spots at the time of the accident. In many
cases of winter maintenance this type of inference is compelling but it should be avoided
because it misses an essential piece of the analysis. As often stated, the ordinary driver
exercising reasonable care adjusts his or her behaviour according to conditions. If an ordinary
driver would have slowed down and, as a result, would have been able to travel the road safely,
the road is not in a state of non-repair, even if it is icy, and the municipality is not required to rely
on the statutory defences. Again, the order of analysis is important because the burden of
proving non-repair rests with the plaintiff and the burden of proving the defences is on the
municipality. By not explicitly considering the state of repair, the court is not holding the plaintiff
to his obligation to meet the burden of proof.
Conclusion
The decision in Fordham is a positive one for defendant municipalities because it provides
important structure to the analysis required to determine liability under s. 44 of the Municipal
Act, no matter whether the allegations are focused on issues of design, signage, maintenance
and repair, or winter maintenance. However, close scrutiny of the recent decisions in municipal
liability cases demonstrates that application of the Fordham analysis continues to be
inconsistent. As such, counsel must be vigilant in emphasizing to the courts the importance of a
disciplined approach to analyzing whether a breach of the statutory duty of care has occurred.
This is particularly so when many prior cases involving road maintenance issues and some of
the very recent decisions continue to demonstrate the looming temptation to lapse into a
negligence analysis, thus defeating the purpose and legislative intent behind creating a statutory
scheme.
20
Ibid, para 60.