Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (S.C.J.)
The facts of this case are unusual but Justice Lauwers’ analysis of various issues makes it worthwhile reading. The plaintiff and a friend went driving on back roads in the winter. They turned down a country road, apparently thinking that it went through to another concession road. The road actually was a dead end road and the plaintiffs entered into a private drive, where the car ultimately got lodged on a rock. The women exited their vehicle and spent several hours through the night in freezing temperatures, where they both suffered frostbite that lead to amputations. The plaintiffs sued the Township alleging that it breached a duty by failing to erect Dead End/No Exit and checkerboard signs.
Justice Lauwers’ dismissed the plaintiffs’ claim. He did not accept the plaintiffs’ submission that the Manual of Uniform Traffic Control Devices (“MUTCD”) reflected the applicable standard of care. He did accept that signage is an element of a Municipality’s duty to repair. Justice Lauwers was not prepared to find that the MUTCD standards should apply in the circumstances. He held:
I am not prepared to find that the MUTCD standard should apply as a matter of law in this specific circumstances of Rusaw Lane; given its low traffic load and the absence of hazardous conditions on or near the road; a judicial decision effectively imposing the MUTCD standard as the enforceable standard of care would amount to a form of judicial legislation with wider fiscal and other ramifications, since very few Ontario roads could escape if Rusaw Lane could not. (paragraph 68)
Although this is a rather lengthy decision, it is a worth while read as a primer on various issues, including similar fact evidence, novus actus interveniens, and the burden of proof. In addition, this decision should assist Municipalities in their defence of “failure to repair” cases.