The Court of Appeal has just released its decision in Ouellette v. Town of Hearst and we attach a copy of the decision. This is an important case that interprets certain provisions of the former Municipal Act, limiting the right to sue municipalities for, among other things, failing to maintain a highway. That three month limitation period that appeared in the former Municipal Act (and in its successor, until the enactment of the Limitations Act, 2003) has been watered down somewhat as a result of this afternoon’s decision. Even though it is no longer in force, as of January 1, 2004, there are still many ongoing lawsuits stemming from accidents that occurred while the provision was in force.
In this case, the plaintiff Ouellette was a motorist who was injured when driving underneath a banner that had been suspended across a highway in the town of Hearst. The banner was attached to a utility pole. Exactly how the accident happened is unclear, but somehow (perhaps as a result of wind catching the banner), the top of the pole to which the banner was affixed snapped off and struck the plaintiff’s van. The plaintiff’s knee struck the steering column and was injured.
The action against the Town of Hearst was not commenced until twenty months after the accident. There was a three-month limitation period in s. 284(2) of the former Municipal Act. This limitation applied to actions against municipal corporations having jurisdiction over a highway or bridge, for failure to keep that highway or bridge in a state of repair that is reasonable in light of all the circumstances, including the character and location of the highway or bridge.
In this case, the trial judge had found that the three-month limitation period in s. 284(2) did not apply to these circumstances. The Court of Appeal agreed. It ruled that there had been no failure to maintain the highway; even if the municipality had performed daily inspections, it would have found no defect until the moment that the pole snapped, which was also the moment of injury.
Perhaps more importantly, from the perspective of other claims involving municipalities, the Court of Appeal noted that formerly, injured plaintiffs had had no right to sue municipalities except in very narrowly-defined circumstances. One of these was where there was found to have been a failure to maintain the highway. As a result, courts in the past had construed very broadly the obligation to maintain the highway (so that plaintiffs would have a right to sue). A concomitant result was, that the short limitation period in s. 284(2) also had been broad application.
Nowadays, municipalities can be sued for ordinary negligence; it is not necessary for plaintiffs to characterize their cases as a failure to maintain a highway. As a result, the C.A. has said that “There is no longer a need to stretch the wording of s. 284(1) to ground what are, in reality, proposed negligence actions against municipalities.”
(Of course, this difficulty has also now been obviated by the enactment of the Limitations Act, 2002, which has done away with the three-month limitation period for highway repair cases that had existed in the Municipal Act.)
The Court of Appeal dealt with one other important issue in Ouellette. The Town of Hearst had argued that even if the three-month limitation period in former s. 284(2) did not apply, then the plaintiff’s action was barred by s. 284(3) (now s. 44(8) of the Municipal Act, 2001). Section 284(3) provided that:
“No action shall be brought against a corporation for the recovery of damages caused by the presence or absence or insufficiency of any wall, fence, guard rail, railing or barrier, or caused by or on account of any construction, obstruction or erection or any situation, arrangement, or disposition of any earth, rock, tree or other material or object adjacent to or in, along or upon any highway or any part thereof not within the travelled portion of such highway.”
Hearst had argued that the breaking of a pole adjacent to the highway fell within this section and that suit against it was therefore precluded.
The Court of Appeal rejected this argument. It found that s.284(3) (now s. 44(8)) “seeks to protect municipalities from actions brought by drivers who go where they are not expected to go (off the highway); it does not protect them from injuries to persons in vehicles on the highway.”
So, the end result of the decision is that the municipalities are now somewhat more exposed to liability than many formerly believed to be the case.