



COURT OF APPEAL FOR ONTARIO

CITATION: Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA
    891

DATE: 20141211

DOCKET: C56404

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

Andrew James Fordham

Plaintiff (Respondent)

and

The Corporation of the Municipality of
    Dutton-Dunwich

Defendant (Appellant)

T.R. Shillington and Jonathan de Vries, for the
    appellant

Jim Virtue and Jim Mays, for the respondent

Heard: April 30, 2014

On appeal from the judgment of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated November 27, 2012, reported at 2012
    ONSC 6739.

Laskin
    J.A.:

A.

Overview

[1]

This case is about whether a municipality met its statutory duty to keep
    one of its roads in a reasonable state of repair. By any measure, it is a sad
    case.

[2]

On a January night in 2007, 16-year-old Andrew Fordham drove from one
    friends house to another. He took a route through Dutton-Dunwich on rural
    roads that were unfamiliar to him. He came to an intersection with a stop sign.
    As he saw no approaching cars, he ignored the stop sign and drove through the
    intersection at or near the speed limit of 80 km per hour.

[3]

Unfortunately the road Fordham was driving on curved to his right just
    after the intersection. In trying to navigate the curve, he lost control of his
    car and crashed into a concrete bridge abutting the road. He suffered brain
    damage and has no memory of the crash.

[4]

Fordham sued the municipality of Dutton-Dunwich for non-repair of the
    road. He claimed Dutton-Dunwich had breached its statutory duty because it had failed
    to post a checkerboard sign warning of the change in the roads alignment.

[5]

The trial judge agreed. She held that [c]learly, it is a local practice
    in this rural area for drivers to go through stop signs if they consider it
    safe, and [o]rdinary rural drivers do not always stop at stop signs and the
    defendant knew that. In her opinion, the change in the roads alignment was a
    hidden hazard. Thus, she found that the circumstances of this intersection
    require more than a stop sign to give ordinary rural motorists reasonable
    notice of [a] potentially catastrophic hazard ahead. But the trial judge also
    found Fordham negligent because he had failed to stop at the stop sign. She
    concluded that both the plaintiffs failure to stop and the defendants failure
    to install a warning sign had caused the crash. She apportioned liability for
    Fordhams damages equally: 50 per cent to the plaintiff and 50 per cent to the
    defendant.

[6]

Dutton-Dunwich appeals. The principal question on the appeal is this: Did
    the trial judge misapply the test for assessing a municipalitys statutory duty
    of repair? I conclude she did, and therefore the judgment against the
    municipality cannot stand.

[7]

A municipalitys duty of repair is limited to ensuring that its roads
    can be driven safely by ordinary drivers exercising reasonable care. A
    municipality has no duty to keep its roads safe for those who drive
    negligently. Running a stop sign at 80 km per hour is negligent driving. The
    undisputed evidence is that the road Fordham was driving on posed no hazard to
    a driver who stopped at the stop sign, or even to one who slowed to 50 km per
    hour at the intersection.

[8]

The trial judges finding that [o]rdinary rural drivers do not always
    stop at stop signs has some modest support in the evidence, in that some rural
    drivers will not always come to a full stop at a stop sign. But there is no
    credible evidence that ordinary rural drivers go through stop signs at or near
    the speed limit. More important, the trial judges finding is legally irrelevant.
    There cannot be one standard of reasonable driving for rural drivers and
    another for city drivers. There is but one standard of reasonable driving. That
    standard requires drivers to obey traffic signs. Thus Dutton-Dunwich had no
    duty to install an additional sign on its road.

[9]

I would allow Dutton-Dunwichs appeal, set aside the judgment at trial
    and dismiss the action against it.

B.

Additional factual background

(a)

Andrew Fordham

[10]

The
    accident occurred on January 20, 2007. About three months before the accident, Fordham
    had obtained his G2 drivers licence.
[1]
However, he had driven more than most 16-year-olds. His father sponsored a car
    at the Delaware Speedway and Fordham had been racing cars at the track since
    the summer of 2005. The trial judge found that Andrew had more experience
    operating a motor vehicle than an average 16-year-old with a G2 licence.

(b)

The road alignment

[11]

The
    accident occurred in the municipality of Dutton-Dunwich on Willey Road just
    south of where it intersects with Erin Line. Dutton-Dunwich is located in Elgin
    County in southwestern Ontario. Willey Road is a gravel road in the rural part
    of the county and typically has little traffic.

[12]

At
    the time of the accident, stop signs controlled northbound and southbound
    traffic on Willey Road at the intersection with Erin Line. The municipality had
    recently replaced yield signs with stop signs because it had received
    complaints that some drivers did not properly yield the right-of-way at
    intersections controlled by yield signs.

[13]

Willey
    Road has a small S curve beginning just north of the intersection with Erin Line
    and continuing through it. To the south of the intersection, the curve deviates
    about nine metres from a straight line. In the evidence, this deviation was
    characterized as an offset. Along the offset, a concrete bridge abuts the
    road. When the accident occurred, the intersection had no warning sign alerting
    drivers to the offset.

[14]

At
    Appendix A to these reasons, I have included a sketch depicting the alignment
    of Willey Road at the intersection with Erin Line.

(c)

The accident

[15]

The
    accident occurred sometime before 9:00 p.m. That evening, Fordham had planned
    to meet up with some friends and then stay overnight with one of his friends,
    Dustin Drouillard. He left his own home around 6:00 p.m. and first drove to the
    house of Cassandra Tomczyk in Dutton-Dunwich. He was driving his fathers 1999
    Pontiac Grand Am car. He stayed at Tomczyks house for about ten minutes. Then
    he and a friend left around 8:00 p.m. for Drouillards house. The distance
    between the two houses is about 30 km.

[16]

Fordham
    drove, and his friend sat in the front passenger seat. During the trip, Fordham
    drank about two beers. Later blood alcohol testing showed his readings were
    below the legal limit.
[2]
Fordham drove southbound on Willey Road, a road he had never driven on before. The
    weather that evening was clear. And as Fordham approached the Erin Line intersection,
    the stop sign was clearly visible. However, no cars were approaching the
    intersection from either direction, so Fordham drove straight through it
    without stopping. An accident reconstruction expert estimated he was driving at
    or near the speed limit of 80 km per hour.

[17]

Fordham
    apparently saw the offset too late to navigate it safely. He turned the car
    sharply to the right, lost control and crashed into the concrete bridge
    abutting the road.

[18]

At
    the beginning of the trial, Fordham admitted he was negligent. He agreed that
    if he had stopped at the intersection, the accident would not have happened.

(d)

The expert evidence

[19]

The
    plaintiff called two experts: James Hrycay, a road design and maintenance
    engineer, specializing in accident reconstruction; and Alison Smiley, a
    professor at the University of Toronto in the Department of Mechanical and
    Industrial Engineering, specializing in the relationship between highway safety
    and human factors, including reaction times
.
The trial judge
    accepted their evidence.
[3]
Both Hrycay and Smiley testified that the signage at the intersection was
    inadequate because it did not warn of the offset. But both admitted that their
    opinions assumed drivers would not obey the stop sign. Indeed Hrycay admitted
    that additional signage was not needed for drivers who stopped at the stop
    sign.

[20]

Smiley
    testified that drivers who approach the intersection at 80 km per hour and
    ignore the stop sign would not have enough time to perceive and react to the
    offset without a warning sign to alert them. But she acknowledged that drivers
    who stop for the stop sign would have more than enough time to perceive and
    react safely to the change in the alignment of the road. She also acknowledged
    that ignoring stop signs was not reasonable driving. She maintained, however,
    that we need to design for more than just the reasonable driver whos sober,
    wearing a seatbelt and obeying all the traffic laws.

[21]

Hrycay
    believed roads should be designed for the 95th percentile of drivers: [W]ithin
    five per cent of the very worst drivers out there. Like Smiley, Hrycay
    testified that drivers who stop at the stop sign would have no difficulty in
    perceiving and navigating the offset. He also testified that drivers who do not
    obey the stop sign but slow to 50 km per hour or less would still be able to
    perceive the offset in time to navigate it safely.

(e)

The Ontario Traffic
    Manual

[22]

The
    Ontario Traffic Manual (the Manual) was filed in evidence. The Manual
    includes guidelines for signage. In the warning signs section, it discusses the
    use of checkerboard signs.

[23]

Under
    the heading Purpose and Background, the Manual states:

The purpose of the CHECKERBOARD sign  is to warn vehicular
    traffic of the termination, or abrupt change in direction, of a segment of
    road.

[24]

Under
    the heading Guidelines for Use, the Manual states:

The CHECKERBOARD sign (one direction) and the CHECKERBOARD sign
    (both directions) should be used only for a sharp change in road alignment.

C.

Analysis

(a)

Statutory cause of action

[25]

Fordham
    sued under s. 44 of the
Municipal Act, 2001
,
[4]
which provides a cause of action against a municipality that fails to keep its
    highways (including roads) and bridges in a reasonable state of repair. The
    cause of action is in subsections (1) and (2); defences for the municipality
    are in subsection (3):

44. (1) The municipality that has jurisdiction
    over a highway or bridge shall keep it in a state of repair that is reasonable
    in the circumstances, including the character and location of the highway or
    bridge.

(2) A
    municipality that defaults in complying with subsection (1) is, subject to the
Negligence
    Act
, liable for all damages any person sustains because of the default.

(3) Despite
    subsection (2), a municipality is not liable for failing to keep a highway or
    bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have
    been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the
    default from arising; or

(c) at the time the cause of action arose, minimum
    standards established under subsection (4) applied to the highway or bridge and
    to the alleged default and those standards have been met.



[26]

Case
    law has established a four-step test for analyzing this statutory cause of
    action against a municipality.
[5]

1.

Non-repair
: The plaintiff must prove on a
    balance of probabilities that the municipality failed to keep the road in
    question in a reasonable state of repair.

2.

Causation
: The plaintiff must prove the
    non-repair caused the accident.

3.

Statutory Defences
: Proof of non-repair
    and causation establish a
prima facie
case of liability against a
    municipality. The municipality then has the onus of establishing that at least
    one of the three defences in s. 44(3) applies.

4.

Contributory Negligence
: A municipality
    that cannot establish any of the three defences in s. 44(3) will be found
    liable. The municipality can, however, show the plaintiffs driving caused or
    contributed to the plaintiffs injuries.

This appeal turns on the first step: was Willey Road in
    a state of non-repair because Dutton-Dunwich failed to put up a sign warning of
    the offset?

(b)

The municipalitys
    standard of care and the reasonable driver

[27]

More
    precisely, this appeal turns on the standard of care a municipality must meet
    in fulfilling its duty of reasonable repair, and the application of that
    standard to the facts. A municipalitys standard of care has been thoroughly
    canvassed in two cases: the Supreme Court of Canadas decision in
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 35, a case perhaps better known
    for its discussion of the standard of appellate review; and Howden J.s
    decision in
Deering v. Scugog (Township)
, 2010 ONSC 5502, 3 M.V.R.
    (6th) 33, which this court affirmed in a brief endorsement: 2012 ONCA 386, 33
    M.V.R. (6th) 1, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 351.

[28]

In
    brief, a municipality has a duty to prevent or remedy conditions on its roads
    that create an unreasonable risk of harm for ordinary drivers exercising
    reasonable care. In other words, a municipalitys standard of care is measured
    by the ordinary reasonable driver. Ordinary reasonable drivers are not
    perfect drivers; they make mistakes. As Howden J. wrote in
Deering
,
at para. 154:

In conclusion, I accept what have become the submissions of all
    counsel that road authorities have a duty to ordinary motorists to keep their
    roads in reasonable repair, including the type and location of the road. The
    standard of care uses as the measure of reasonable conduct the ordinary
    reasonable driver and the duty to repair arises wherever an unreasonable risk
    of harm exists on the roadway for which obvious cues on or near the road are
    not present and no warning is provided, subject to the defences of no knowledge
    and reasonable steps to prevent and minimum standards compliance. The ordinary
    motorist includes those of average range of driving ability  not simply the
    perfect, the prescient, or the especially perceptive driver, or one with
    exceptionally fast reflexes, but the ordinary driver who is of average intelligence,
    pays attention, uses caution when conditions warrant, but is human and
    sometimes makes mistakes.

[29]

But
     and this is the important point for this appeal  a municipalitys duty of reasonable
    repair does not extend to making its roads safer for negligent drivers.
[6]
In
Deering
, Howden J. made this point succinctly, at para. 142: The
    standard of care of road authorities rests on the notion of the ordinary
    motorist driving without negligence.

[30]

And
    again, at para. 155:

It is not the law in Canada that the duty of road authorities
    goes beyond the duty to keep their roads in reasonable repair for the ordinary
    driver exercising reasonable care, to include drivers who, for instance, do not
    pay attention, drive at excessive speeds, drive too close to the vehicle in
    front and who are otherwise negligent.

[31]

A
    municipalitys duty of repair includes erecting and maintaining proper signs: see
The Queen v. Jennings
, [1966] S.C.R. 532. And, where hazards are
    hidden or not readily apparent to users of the road,
[7]
a municipality may have a duty to install warning signs. A municipalitys duty
    to install signs, however, is simply an application of the general standard of
    care. Signs are required only if without them, an ordinary driver exercising
    reasonable care would be exposed to an unreasonable risk of harm. Thus, the
    mere presence of a hazard does not require a municipality to put up a warning
    sign; the hazard must be one that puts reasonable drivers at risk. See e.g.
Greenhalgh
    v. Douro-Dummer (Township)
, [2009] O.J. No. 5438 (Sup. Ct. J.), at para.
    17; affd 2012 ONCA 299.

(c)

Positions of the
    parties

[32]

On
    the question whether Dutton-Dunwich met its duty of repair, the municipality
    makes two related submissions. First, the trial judge failed to apply the
    reasonable driver standard to assess whether Dutton-Dunwich met its duty. And,
    second, she instead created a new standard of the ordinary rural motorist who
    disregards stop signs  a standard Dutton-Dunwich contends neither the law nor
    the evidence in this case supports.

[33]

In
    response, Fordham submits that the trial judges decision should be upheld:
    first because Dutton-Dunwichs failure to put up a sign warning of the offset
    was contrary to the Manuals guidelines; and second because Dutton-Dunwich knew
    rural drivers routinely go through stop signs. The decision to apportion
    liability equally was the trial judges to make, and no basis has been shown to
    interfere with her decision.

[34]

For
    reasons I discuss, I agree with Dutton-Dunwichs submissions. And I do not
    accept that either the Manual or the municipalitys knowledge that rural
    drivers do not stop at stop signs supports the trial judges decision to impose
    liability on the municipality.

(d)

Discussion

(i)

The
    trial judge did not apply the reasonable driver standard

[35]

The
    trial judge correctly stated the municipalitys duty of repair and the standard
    of care. But then she misapplied the standard. She held that the municipality should
    have put up a sign warning of the hidden and unknown change in the road
    alignment  that the offset was a hidden hazard calling for a warning sign
    for drivers to slow down.

[36]

The
    trial judges holding was an error because the offset posed no hazard, no risk
    at all to the reasonable driver  the ordinary driver exercising reasonable
    care. It posed a hazard only to drivers such as Fordham who ignored the stop
    sign. Drivers who run a stop sign at 80 km per hour are not driving reasonably;
    they are driving negligently. The following two decisive facts were
    uncontested:

·

On the night of the accident, the stop sign was clearly visible
    from hundreds of metres away.

·

A driver who stopped at the stop sign  even indeed one who
    slowed to 50 km per hour  would have adequate time to perceive the offset and
    navigate it safely.

The trial judges finding of liability would be
    supportable only if the offset posed a hazard to the reasonable driver. But
    that was not the evidence.

[37]

The
    expert opinions of Hrycay and Smiley that Dutton-Dunwich should have installed
    a warning sign assumed that the municipality ought to maintain its roads for
    more than just the reasonable driver. That assumption is not the law of
    Canada. Municipalities owe no duty to warn of hazards that present an
    unreasonable risk of harm only to drivers who do not drive with reasonable
    care. And no one can seriously question that drivers who ignore important
    traffic signals, such as stop signs, are not driving with reasonable care. Our
Highway
    Traffic Act
[8]
requires all drivers to obey posted road signs and come to a complete stop at a
    stop sign. In
Chaschuk (Hurlbert) v. Lebel
(1981)
, 12 M.V.R. 228 (Ont. C.A.), at p. 232, this court
    held that to miss, even momentarily, a visible traffic signal is negligent.

[38]

The
    present case may be contrasted with
Housen
. In
Housen
, the
    majority of the Supreme Court affirmed the trial judges ruling that a
    municipality had breached its duty of repair because it had not put up a sign
    to warn drivers to reduce their speed as they approached a sharp curve in the
    road. The severity of the curve was not readily apparent and thus was a hidden
    hazard, even for reasonable drivers who would have continued driving at the
    speed limit, unaware that they had to slow down. In the case before us, the
    municipality did put up a sign, not merely to slow down, but to stop
    altogether.

[39]

The
    distinction between the two cases is obvious. In
Housen
, without a
    warning sign, the curve in the road posed an unreasonable risk of harm to
    ordinary drivers exercising reasonable care. In the present case, with a stop
    sign in place, the offset was not a hidden hazard; it posed no risk of harm
    to reasonable drivers. Because it did not do so, the trial judge was wrong to
    find that Dutton-Dunwich had a duty to put up an additional warning sign.

[40]

Perhaps,
    however, to avoid this inevitable conclusion, the trial judge created a new
    category of driver: the ordinary rural driver who does not always stop at stop
    signs.

(ii)

Ordinary
    rural drivers do not always stop at stop signs

[41]

The
    trial judge found that [c]learly, it is a local practice in this rural area
    for drivers to go through stop signs if they consider it safe. Later in her
    reasons, she repeated this finding: Ordinary rural drivers do not always stop
    at stop signs and the defendant knew that. Relying on this finding, the trial
    judge concluded that the circumstances of this intersection require more than
    a stop sign to give ordinary rural motorists reasonable notice of [a]
    potentially catastrophic hazard ahead.

[42]

The
    trial judges new and general category of driver  the ordinary rural driver
    who does not always stop at stop signs  was not supported by the evidence at
    trial, and is not supportable in law.

[43]

First,
    the evidence. In finding a local practice in this rural area for drivers to
    go through stop signs and the municipalitys knowledge that they did, the trial
    judge appeared to rely on the following evidence:

·

Two of Fordhams teenaged friends testified that they and other
    drivers would go through stop signs if no one was around.

·

Dutton-Dunwichs road engineer, Michael Hull, agreed that in
    rural areas drivers do not always obey stop signs or yield signs.

·

Smiley testified that in rural areas, drivers often run through
    stop signs if they can see no other cars are approaching.

[44]

At
    best, the evidence suggests that some drivers in rural areas disobey stop
    signs. Some may not come to a full stop; some may come to a rolling stop,
    while driving at a slow rate of speed; and perhaps some may, as the trial judge
    effectively found, go through the intersection at or near the speed limit,
    without slowing down at all. This generic evidence, however, does not support
    the trial judges finding of a local practice  a practice in Dutton-Dunwich 
    for ordinary rural drivers to go through stop signs, or her finding that the
    municipality knew about this practice.

[45]

Moreover,
    liability for non-repair must be based on the condition of the road in
    question. Apart from the evidence of one of Fordhams teenaged friends, no
    evidence was led at trial to suggest that drivers ran the stop sign at the
    Willey RoadErin Line intersection or that they did so at a high rate of speed,
    or that accidents had occurred at that intersection, or even that the
    municipality itself had experienced problems with drivers running stop signs. Indeed,
    evidence of that kind could hardly have been available because most of
    Dutton-Dunwichs intersections  including the Willey RoadErin Line
    intersection  were controlled by yield signs until a month or two before the
    accident, when they were replaced by stop signs.

[46]

I
    conclude that the trial judges finding of a local practice of running stop
    signs, which Dutton-Dunwich knew about, was an unreasonable finding.

[47]

Second,
    and more important, the law. Even if the evidence did support the trial judges
    finding of a local practice, this finding cannot be used to impose liability on
    Dutton-Dunwich for two reasons. First, the local practice the trial judge endorsed
    nonetheless amounts to negligent driving. As Iacobucci J. said in
Waldick
    v. Malcolm
, [1991] 2 S.C.R. 456, at p. 473: [N]o amount of general
    community compliance will render negligent conduct reasonable.

[48]

Second,
    the trial judge in effect created two categories of drivers: ill-defined ordinary
    rural drivers who frequently run stop signs, and all other ordinary drivers who
    habitually obey stop signs. In the trial judges opinion, a municipalitys duty
    of repair extends to both categories of drivers. This is, as Dutton-Dunwich
    says in its factum, an invitation to traffic chaos. It is also not the law in
    this country.

[49]

The
Highway Traffic Act
establishes a uniform set of rules of the road,
    which applies to all drivers, whether they drive on city roads or rural roads. It
    could hardly be otherwise. As I said earlier, a municipalitys duty to keep its
    roads, city or rural, in a reasonable state of repair extends only to making
    its roads safe for reasonable drivers, not negligent ones. If a road is safe
    for a reasonable driver  as was the Willey RoadErin Line intersection  then
    a municipality has no duty to put up additional signs or take other precautions
    to prevent accidents that will occur only if a driver is negligent.

[50]

If
    this is the law on a municipalitys standard of care, the trial judges reasons
    contain an irreconcilable conflict. The trial judge could impose liability for
    non-repair only by finding that in rural areas driving through stop signs was
    reasonable driving. Yet, when she came to apportion liability, she found that
    in running the stop sign, Fordham was negligent. These two findings cannot be
    reconciled. Running stop signs, even on rural roads, is negligent driving. A
    municipality has no duty to install warning signs that are unnecessary for
    reasonable drivers.

(iii)

The Ontario Traffic Manual

[51]

As
    I have said, the Manual recommends a checkerboard warning sign for a sharp
    change in road alignment. The plaintiff contends that the offset at the Willey
    RoadErin Line intersection was a sharp change and required a warning sign. Hrycay
    testified that the offset was a substantial change in alignment, and Smiley
    testified that the road turn[ed] sharply. As the trial judge accepted their
    evidence, she found, implicitly if not expressly, a sharp change in the
    alignment of Willey Road.

[52]

Did
    Dutton-Dunwich thus have a duty to put up a checkerboard warning sign? I do not
    think that it did. In
Deering
,
at para. 243, Howden J. suggested that a court ought to have good reason for
    departing from the Manual. However, he distinguished guidelines that say must
    from those that say should:

But in my view, where a road manual is one respected within the
    road engineering community as the [Ontario Traffic Manual] is, and the
    guideline in question uses the word must, the court should approach it in the
    sense that there should be some compelling reason not to follow it in the
    circumstances and context within which the transportation engineer is working. This
    approach would provide some distinction from a guideline reading should.

[53]

For
    checkerboard warning signs, the Manual uses the word should, not must. Moreover
    as Lauwers J. said in
Greenhalgh
,
at paras. 66-68, the guidelines in a traffic manual are just that, guidelines. They
    do not establish a legally enforceable standard of care for civil liability. The
    overriding question is always: Does the condition of the road pose an
    unreasonable risk of harm to reasonable drivers? In this case, the answer to this
    question is no. Thus, I would not give effect to the plaintiffs contention on
    the Manual.

D.

Conclusion

[54]

I
    would allow Dutton-Dunwichs appeal, set aside the judgment at trial and
    dismiss the plaintiffs action. Dutton-Dunwich is entitled to its costs on this
    appeal in the agreed amount of $35,000, inclusive of disbursements and
    applicable taxes.

Released: December 11, 2014 (J.L.)

John Laskin J.A.

I agree. Paul Rouleau J.A.

I agree. P. Lauwers J.A.









[1]
Ontario has a graduated licensing system. To get a G2 licence, a driver has to
    finish two learning levels.



[2]
Although his blood alcohol readings were below the legal limit for fully
    licenced drivers, G2 licence holders must have a blood alcohol concentration of
    zero when driving.



[3]
The defendant also called an expert who specialized in road design, traffic
    control and signage, but the trial judge rejected his evidence.



[4]
S.O. 2001, c. 25



[5]
I have taken the test from Dutton-Dunwichs factum, where it is accurately
    summarized. See e.g.
Morsi v. Fermar Paving Ltd.
, 2011 ONCA 577, 86 M.P.L.R. (4th) 30, leave to
    appeal to S.C.C. refused, [2011] S.C.C.A. No. 487; and
Deering
    v. Scugog

(Township)
,
    2010 ONSC 5502, 3 M.V.R. (6th) 33, affd 2012 ONCA 386, 33 M.V.R. (6th) 1,
    leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 351.



[6]
In
Rider v. Rider

(1972)
,
    [1973] Q.B. 505 (C.A.), the English Court of Appeal suggested that a
    municipalitys duty of repair extended to drivers whose conduct fell below the
    standard of reasonable care. In
Deering
, however, Howden J. accurately
    stated, at para. 140: The notion from
Rider
that the standard for
    road authorities is to be measured by drivers whose conduct falls below the
    standard of reasonable or ordinary care is not the law in Canada.



[7]

Housen
, at para. 42.



[8]
R.S.O. 1990, c. H.8, ss. 136(1), 182(2).


