Municipal Road Maintenance during the COVID-19 Pandemic

Ontario Regulation 239/02, Minimum Maintenance Standards for Municipal Highways allows for a declaration of a “Significant Weather Event” but does not speak specifically to a “non-weather” event per-se, however for all municipalities in Ontario faced with the daunting task of maintaining essential services during an unprecedented pandemic, the following provision of the MMS may provide some assistance: _________________________________________________________________   Closure of a highway
16.8 (1) When a municipality closes a highway or part of a highway pursuant to its powers under the Act, the highway is deemed to be in a state of repair in respect of all conditions described in this Regulation from the time of the closure until the highway is re-opened by the municipality. O. Reg. 366/18, s. 15. (2) For the purposes of subsection (1), a highway or part of a highway is closed on the earlier of, (a) when a municipality passes a by-law to close the highway or part of the highway; and (b) when a municipality has taken such steps as it determines necessary to temporarily close the highway or part of a highway. O. Reg. 366/18, s. 15. __________________________________________________________________  
In the current situation, if road maintenance staff are ill, quarantined or otherwise unable to work due to the COVID-19 outbreak, and staffing levels are too low to meet MMS maintenance levels consistently or at all,  then an emergency bylaw or declaration in accordance with the foregoing provision temporarily closing all or part of certain roads and sidewalks to some or all traffic would  – on the clear wording of the regulation – “deem” them in repair for all MMS conditions, including snow and ice.
As a member of the Task Force that drafted this relatively new provision in the MMS, I can state without hesitancy that we envisioned situations where municipalities were unable to maintain parts of their road and sidewalk networks due to forces outside of their control, including not only budgetary limits but “acts of god” which the current COVID 19 crisis clearly is.
For those who are concerned about potential claims should states of disrepair arise due to low staffing levels, the foregoing is a potential solution, which may include time of day limits.closures; limiting traffic of all kinds except certain types of vehicles;setting temporary speed limit reductions;  etc. This could be part of declaring a local state of emergency under the Emergency Management Act, or by itself.
Charles Painter – Partner
Municipal Defence Group

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