Attack on the MMS Dismissed – A Victory for all Municipalities in Ontario

By reasons for decision dated January 7th, 2014, the Honourable Mr. Justice Boswell of the Ontario Superior Court of Justice at Newmarket, dismissed the Application by the Plaintiffs, Amelia Silveira et. al., seeking to have the original version of sections 3, 4 and 5 of O. Reg 239/02 – Minimum Maintenance Standards for Municipal Highways, (the “MMS”) struck out on grounds that they were “ultra-vires” the power of the Minister of Transportation to enact. The Application had been proceeding for several years as a Rule 14 application to a single Judge of the Ontario Superior Court of Justice, rather than an application for judicial review to the Divisional Court for Ontario, because the Applicants are also Plaintiffs in a related tort action against the Region of York, in respect of a motor-vehicle accident that occurred on December 12, 2004 allegedly due to an icy/snow covered road, in which the Region had pleaded a defence under the winter maintenance sections of the MMS. On motion brought by the three Respondents to the Application, namely, the Province of Ontario, The Region of York, and Ontario Good Roads Association, the Court dismissed the Silveira’s Application attacking the validity of the MMS, finding that the issue had become moot as between the parties to the ongoing related tort action, and there was no overriding public interest which would support continuing the attack on the original MMS despite the mootness. The Court’s conclusions were based on the following facts: (1.) These sections of the original MMS were effectively neutralized and rendered ineffective by the decision of the Court of Appeal in the Giuliani v. Region of Halton et. al. (2. ) The MMS have been twice amended since the accident giving rise to the Silveira tort claim, most significantly in 2013, where deeming provisions were added to effectively fill the gaps which the Court of Appeal in Giuliani used in rendering its decision in that matter. (3.) In March 2013, the Applicants restricted their attack to just sections 3, 4 and 5 of the MMS, following which the Region of York, in light of that and the effect of Giuliani upon those sections, abandoned its defences under the MMS in the underlying tort action. In light of the foregoing, the Court found that the matter was moot, the very foundation for the attack upon the MMS by the Silveria plaintiffs no longer existed, and there was no longer any reason for them to be concerned about the MMS providing a defence in their ongoing civil action against the Region of York. The Honourable Justice Boswell found that it would not be a worthwhile use of scarce judicial resources to permit the attack to proceed further under these circumstances. Counsel for the Applicants unsuccessfully sought to keep the attack going, on the grounds that even if the issue was now “moot” as between the Applicants and the Region in the underlying tort action, the Court should grant the Applicants “public interest standing” so that they could continue to challenge these sections of the original MMS, and seek to have them struck down. The Court accepted that a challenge to the validity of the MMS raises serious issues, however it would be better if a challenge to the current version of the MMS was brought within the context of a current “factual matrix” as opposed to attacking an old, amended regulation, with little (if any) relevance to current cases. Conclusion/Comments It would appear, subject to any appeal that might be brought by the Applicants, that the attack upon the original MMS is over.  There is little doubt however, and it is virtually certain, that there will be attempt by the Plaintiff’s bar to attack the current version of the MMS and have them struck out, along the same lines as was attempted in the Silveira matter. The battle lines are drawn. The fight is not over, and will not end, so long as there are Plaintiff’s counsel who seek to bring cases against municipalities in respect of alleged negligent road repair. The success achieved by the Respondents in this matter was due in no small part to the courageous actions of the members, executive and board of Ontario Good Roads Association, who rallied together and raised the necessary legal funds to effectively intervene in the matter, and have their voices heard. In addition, no small credit is due to the Minister of Transportation and the Crown Law Office – Civil, whose legal counsel did a fantastic job in arguing the motions to strike out the Application. Finally, credit must also be given to the Region of York and its insurer, the Ontario Municipal Insurance Exchange, for staying in the fight throughout.

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