Charles A. Painter

Three municipal defendants brought a motion seeking to determine a question of law before trial and to strike the statement of claim without leave to amend for failure to disclose a reasonable cause of action.

During oral submissions the moving parties sought leave, without notice, to amend their defence to plead the Limitations Act.

The court granted leave to amend the pleadings and directed the applicants to file a more complete factum addressing the legal basis of their argument that no duty of care was owed to the plaintiff.

The motion itself was adjourned to permit further filings and responses.

The respondent was seriously injured in a motor vehicle accident after losing control of her vehicle on a snow and ice-covered municipal road.

The trial judge found the appellant municipalities liable for failing to maintain the road, apportioned liability 50/50 due to the respondent's contributory negligence, and rejected the municipalities' defence under the Minimum Maintenance Standards (MMS).

On appeal, the municipalities argued the MMS provided a complete defence.

The Court of Appeal dismissed the appeal, holding that the specific MMS provisions for snow accumulation and icy roadways did not apply to the municipalities' failure to monitor weather and deploy resources before the road became icy.

The respondent's cross-appeal on the 50/50 apportionment of liability was also dismissed.

The deceased driver was killed in a single-car accident after losing control of his vehicle at a transition point between freshly paved asphalt and a foam surface treatment.

The trial judge apportioned liability 50% to the driver, 25% to the paving contractor, and 25% to the municipality.

On appeal, the Court of Appeal reversed the trial judge's decision, finding that the sole cause of the accident was the driver's reckless driving at excessive speeds, which absolved the appellants of liability under both statutory and common law duties of care.

The appellant appealed the dismissal of its action by the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that the appellant did not have a valid notice of appeal as its attempt to appeal the Master's decision was five weeks out of time and no extension of time was sought or granted.

The action was properly dismissed.