ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-099036-00

DATE: 20140107

CORRIGENDA: 20140107

BETWEEN:

Amelia Silveira, Manuel Silveira, Diana Belvedere, Margaret Defazio and Daniel Silveira

Applicants

– and –

Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation and the Regional Municipality of York Region

Respondents

Timothy P. Boland, Darcy W. Romaine and Allan Rouben, Counsel for the Applicants

Lise G. Favreau and Kristin Smith, Counsel for Ontario (Transportation)
Christine Fotopoulos for York Region

– and –

Ontario Good Roads Association

J. Murray Davison, Q.C. and Charles Painter, Counsel for the Intervener

Intervener

HEARD: November 26, 2013 and December 6, 2013.

REVISED ruling on motion to strike

The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)

Boswell J.

I. INTRODUCTION

[1] Ontario drivers know something about winter driving. It can be treacherous. Ontario drivers depend on municipal and provincial authorities to keep roadways clear and safe. Since at least 1877 the Municipal Act has imposed upon municipalities the obligation to keep roadways, streets and bridges in proper repair. Presently, s. 44(1) of the Municipal Act, 2001, S.O. 2001, c. 25, compels municipalities to keep highways and bridges under their jurisdiction in a state of repair that is reasonable in the circumstances.

[2] Sometimes, indeed one might suggest regularly, motor vehicle accidents happen. Sometimes those accidents involve serious personal injuries and sometimes a municipality is sued for alleged failure to keep a roadway under its jurisdiction in a reasonable state of repair.

[3] In August 2002, the Ontario government adopted a regulation to establish minimum standards for municipalities to follow in relation to the maintenance of roadways under their jurisdiction.[^1] The regulations have the effect of providing a defence to a municipality to an allegation of negligent repair, where the minimum standards have been met.

[4] The applicants assert that the 2002 MMS are ultra vires their enabling legislation (the Municipal Act, 2001) and ask that sections 3, 4 and 5 of them be declared invalid and of no force and effect. The respondents, in a common voice, assert that the application is moot and ought to be struck out. The following reasons explain why I agree with the respondents.

[5] The respondents and the interveners additionally argued that, should the Court permit the application to continue, portions of the affidavits filed by the applicants should be struck out. Given my findings on the mootness issue, it is unnecessary for me to address the evidentiary issues.

II. THE EVOLUTION OF THE APPLICATION

[6] Amelia Silveira was injured in a motor vehicle accident on December 12, 2004 when she lost control of her vehicle on slippery winter roads in the City of Vaughan and collided head-on with an oncoming motorist. She and a number of her family members issued a claim on June 5, 2008 against the Regional Municipality of York (York Region), claiming negligent road maintenance.

[7] York Region served a defence on November 8, 2005 in which it relied on the 2002 MMS as a complete defence to the allegations of negligence. In response, the applicants (plaintiffs in the action against York Region) sought to amend their claim to plead that the 2002 MMS were ultra vires and should be struck down.

[8] The motion to amend the claim came before Lauwers J., as he then was, who determined that the plaintiffs’ claim was a tenable one in law, but that it would be preferable if it were determined in a proceeding other than the action between the plaintiffs and York Region. The principal driving factor behind the decision to separate the attack on the regulation from the tort claim was the fact that it was anticipated that additional parties would be interested in the regulatory challenge, including, of course, the Crown, but also possible other interveners.

[9] Justice Lauwers considered a number of possible forums in which to resolve the regulatory challenge. He expressed a desire to keep the regulatory proceeding separate, but more or less parallel to the tort action. His view was that the regulatory challenge should still be rooted in the factual matrix of the tort claim. He said, specifically, at para. 21 of his decision, reported at 2010 ONSC 969,

…The common law is rightly suspicious of abstract questions. The expression “pure law” is a an oxymoron since the law always needs a context within which it is to be considered. Experience in working with statutory provisions in the context of a real issue can reveal ambiguities that an abstract review would perhaps miss: See Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 690 per Laskin J.

[10] In the result, he ordered that the plaintiffs were to bring an application under Rule 14, challenging the validity of the 2002 MMS, naming both the Ministry of Transportation and York Region as respondents.

[11] The applicants subsequently commenced this application on April 16, 2010 to challenge the 2002 MMS. Thereafter, three significant events occurred which profoundly affect the application and this motion.

[12] First, by the time the application was commenced a revised version of the 2002 MMS had come into effect, as O. Reg. 23/10. The applicants sought to challenge this 2010 iteration as well as the 2002 iteration of the MMS. The inclusion of the 2010 version of the MMS provoked the Ministry of Transportation into moving to strike all portions of the application that referred to O. Reg. 23/10. They were successful. Justice Lauwers, in a decision reported as 2011 ONSC 4272, ruled as follows, at para. 4:

The Crown also seeks an order striking any references to O. Reg. 23/10 from the Notice of Application. This second issue can be disposed of summarily. The trial of this tort action will be governed by the law in force at the date of the accident on December 12, 2004. Since O. Reg. 23/10 came into force in 2010, it clearly has no relevance or application to this action except possibly as an interpretive aid….I therefore require the reference to O. Reg. 23/10 to be deleted from the Notice of Application.

[13] Next, the Court of Appeal released a decision on December 21, 2011 in a case called Giuliani v. Halton (Regional Municipality) reported at 2011 ONCA 812. There, the plaintiff/respondent on appeal, had been seriously injured in a motor vehicle accident on April 1, 2003 when she lost control of her vehicle on Derry Road, which was covered with snow and ice at the time. She struck an oncoming vehicle. She sued the Region of Halton (“Halton”), who pleaded the 2002 MMS as a complete defence.

[14] The trial judge found that Halton had not kept Derry Road in a reasonable state of repair and that the 2002 MMS did not apply. The Court of Appeal agreed.

[15] Section 4 of the 2002 MMS required municipalities to clear accumulated snow after it reached a certain depth. The depth at which the requirement to clear was triggered – and the time in which clearing was thereafter to occur – depended on the classification of the roadway. Derry Road was a class two highway. Section 4 of the 2002 MMS provided that the obligation to clear snow from a class two roadway was triggered when an accumulated depth of 5 cm was reached. The municipality thereafter had a six hour window in which to clear the snow according to the standards.

[16] The trial judge reasoned, and the Court of Appeal agreed, that s. 4 of the 2002 MMS did not apply until the trigger depth had been reached. In the circumstances of the Giuliani case, only 2 cm of snow had accumulated so s. 4 did not apply. Moreover, s. 5 of the 2002 MMS, which created a minimum standard for treating roads after becoming aware that the roadway was icy, did not discharge the municipality’s obligation to take reasonable steps to avoid ice forming in the first place.

[17] The result of the decision in Giuliani was to severely limit the circumstances in which the 2002 MMS might apply, at least in terms of sections 3, 4 and 5 which deal with winter maintenance standards.

[18] Finally, the third significant event to impact on the application was the service by the applicants of their Factum on March 15, 2013. There, for the first time, the applicants indicated an election to restrict their regulatory challenge to sections 3, 4 and 5 (the winter maintenance provisions) of the 2002 MMS.

[19] As a result of the decision in Giuliani, combined with the applicants’ indication that they were intending to challenge only sections 3, 4 and 5 of the 2002 MMS, York Region advised the applicants’ counsel, by letter dated April 12, 2013, that it was withdrawing reliance on the 2002 MMS as a defence to the Silveira action.

III. THE ASSERTION OF MOOTNESS

[20] The applicability of the 2002 iteration of the MMS is no longer an issue in the action. The 2010 iteration has been struck from consideration in this application by virtue of the order of Lauwers J. dated July 8, 2011. The respondents assert, in the circumstances, that the application should no longer be heard because it is moot.

[21] The leading case on assessing mootness is Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342. In Borowski,the appellant sought to challenge the validity of s. 251 of the Criminal Code, which at that time related to abortion, on the ground that its provisions contravened the s. 7 Charter rights of the fetus. After he had been given leave to appeal to the Supreme Court, but before his appeal was heard, the Court struck down s. 251 in its entirety in R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30. The issue of mootness was squarely addressed by the Court.

[22] Justice Sopinka, for a unanimous Court, discussed the doctrine of mootness at para. 15, where he said:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. (emphasis mine).

[23] In the case of this application, events – as I have described them – have occurred such that no live controversy exists at present which affects the rights of the parties. The 2002 MMS are no longer in issue. York Region has abandoned any reliance upon them. The very foundation for which the application was commenced – in accordance with the order of Lauwers J. – has disappeared. As such, in accordance with the general practice, the Court will decline to hear the application unless there is a justification for the Court to exercise its discretion to depart from the normal practice.

[24] Whether the Court should exercise its discretion to hear an otherwise moot proceeding requires a consideration of several criteria, which were laid out by Sopinka J. at paras. 31 to 42 of Borowski, and which constitute the three basic rationalia for the enforcement of the mootness doctrine. The criteria to consider may be summarized as:

(a) Whether there is an adversarial relationship between the parties;

(b) Whether deciding the moot issue is an appropriate use of scarce judicial resources; and,

(c) Whether deciding the moot case exceeds the proper judicial function.

[25] In this instance, I choose not to exercise my discretion to hear the challenge to the winter maintenance provisions of the 2002 MMS. My decision is based largely on a consideration of the second of the criteria referenced above.

[26] My reasoning can be stated very succinctly. The challenge now before the Court, as defined in the application, and refined in the applicants’ Factum, is to sections 3, 4 and 5 of the 2002 MMS. Those sections no longer have application in this proceeding for the reasons stated above. Moreover, their applicability to any other proceeding is severely limited by virtue of the Court of Appeal’s decision in Giuliani. It is entirely unclear how many other cases may be unresolved where the 2002 MMS are engaged, but the cases in which sections 3, 4 or 5 would offer a viable defence will now be very limited indeed.

[27] Far more compelling, in terms of the issues raised in the application, would be the validity of the current iteration of the MMS. As I indicated, the 2002 MMS were amended in 2010 by O. Reg. 23/10. They were further amended in 2013 by O. Reg. 47/13. The new amendments include a deeming provision, which appears designed to close a gap in the regulation highlighted by the Giuliani decision. Section 4(2) of the MMS now provides as follows:

4(2) If the depth of snow accumulation on a roadway is less than or equal to the depth set out in the Table to this section, the roadway is deemed to be in a state of repair with respect to snow accumulation.

[28] A determination of the validity of sections 3, 4 and 5 of the 2002 MMS will, in my view, have little bearing on future cases. In the circumstances, the utilization of scarce judicial resources to determine what is now an academic issue is not justified.

IV. THE PUBLIC INTEREST STANDING ARGUMENT

[29] The applicants submitted that even if the 2002 MMS are no longer a live issue in the tort action, challenging the regulation is still a matter of public importance. They urged the Court to grant them public interest standing to continue the challenge.

[30] In Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 SCR 524, the Supreme Court considered the matter of public interest standing and in what circumstances it ought to be granted. Justice Cromwell, for a unanimous Court, outlined three factors that Courts should consider when exercising the discretion to grant public interest standing to a person or group. Those factors are:

(a) Whether the case raises a serious justiciable issue;

(b) Whether the party bringing the case has a real stake or a genuine interest in its outcome; and

(c) Whether the proposed suit is, in all the circumstances, a reasonable and effective means to bring the case to court. (para. 2).

[31] In my view, a challenge to the validity of minimum maintenance standards raises serious justiciable issues. The issues outlined in the applicant’s Factum are legitimate, compelling and certainly raise serious issues worthy of the Court’s consideration. But there is a problem with the application as presently constituted. As I have indicated, there is little pressing concern with the validity of the 2002 iteration of the MMS, given subsequent amendments to the regulation and the effect of the Giuliani decision.

[32] The applicants argue that a successful challenge to the 2002 MMS may provide guidance to the Court hearing a future application to challenge the 2013 iteration. That may well be true, but when judicial economy is considered, it makes little sense to continue with a challenge of the 2002 MMS as a means to ultimately challenge the 2013 amendments. I am not prepared to grant public interest standing to the applicants to challenge a regulation that now has very little application.

[33] Whether public interest standing might be granted to the applicants or anyone else to mount a challenge to the current MMS regulation, as amended, is a matter best left to another day. Any prospective challenger would do well, however, to consider the views expressed by Lauwers J. which I cited at para. 9 above.

V. CONCLUSION

[34] In the result, the application is dismissed on the grounds that it is moot. If the parties cannot agree on the costs of the application and the motions argued before me, they may make written submissions not to exceed 3 pages in length. Submissions should be made on a two week turnaround. The respondents and interveners are to serve and file their submissions by January 21, 2014 and the applicants by February 4, 2014. The respondents and interveners shall have until February 18, 2014 to file any reply submissions they may have. All submissions should be sent electronically to my assistant, Jennifer Beattie, at Jennifer.Beattie@ontario.ca.

Boswell J.

Released: January 7, 2014

CORRIGENDA

Page 1: Title of proceedings has been amended to correct the spelling of the name of counsel for the Intervener, which now reads “J. Murray Davison, Q.C.”

[^1]: The regulation is entitled, “Minimum Maintenance Standards for Municipal Roadways” and filed as regulation no. 239/02. I will refer to it as the “2002 MMS”.