Trial Summary: Thornhill v. Shadid et al.
This 15-day trial, before Howden J. was the first case to succeed against a municipality that relied upon O. Reg 239/02 as a defence, The Minimum Maintenance Standards for Municipal Highways (“MMS”).
On December 25, 2002, at 3:35 pm, Nadine Thornhill was driving along a snow-covered road called Green Lane, when an on-coming driver, who was driving below the speed limit, lost control of his Jeep, crossed the centerline, and collided head-on with Ms. Thornhill. Her orthopedic injuries were serious. We assessed her damages as being in excess of the on-coming driver’s $1M policy limits. We determined that York Region had jurisdiction for Green Lane, put it on notice pursuant to the Municipal Act and commenced proceedings.
We conducted discoveries of both the on-coming driver as well as the operations manager for York Region. The Region took the position that it had met the standard of care prescribed by the regulations. The MMS required the region to patrol three times in seven days: York Region had patrolled twice on the day of the crash, 3:15 am and 6:30 am. Regarding snow clearing, the MMS stipulated that road authorities need only plough snow after becoming aware that snow exceeds 2.5cm in depth. York Region had dispatched its units at the commencement of the storm and the records of its plough operator demonstrated that it had treated Green Lane between 9:57 am and 11 am, and again between 11 am and 12:03. York Region argued that it had treated Green Lane 3.5 – 4 h prior to the collision. It argued that the snow had not yet risen to 2.5 cm on Green Lane, and even if it had, York Region did not have knowledge of the snow having exceeded the threshold. Finally, York Region argued that the MMS allowed 4 hours to clear the snow once the trigger depth is reached.
The defendant’s made a combined offer to settle of $475,000 + costs. We advised Ms. Thornhill to reject the offer and she agreed with our advice. We made a counter offer of $1.5M + costs and we proceeded to trial.
We attacked the liability piece on two fronts. One attack was on the ploughman’s records themselves. We re-constructed every move that all ploughs in York Region made on the date of loss. We determined that there were several occasions where the plough either appeared in two locations at the same time, or would have had to travel at impossible speeds to get from point-A to point-B. We obtained the police reports for every accident in York Region. We cross-referenced these collisions with the plough records. We called as a witness one officer who had investigated an unrelated collision that occurred on the plough operator’s route. The plough records indicated the plough had totally cleared the intersection of snow, but the officer’s notes indicated the opposite. We cross-examined the operations manager and the ploughman on their records and record keeping policies. Howden J. concluded the plough operator’s records were slip-shod, and misleading. He rejected the accuracy of the records, leaving York Region unable to establish that it had ever ploughed Green Lane.
Our second attack was on the MMS regulation itself. We successfully argued that the patrol requirement of 3 times in 7 days did not speak to winter storm events, and hence there was a gap in the regulatory defence which should be filled by the common law. It was not enough that a patroller had made observations of the road at 6 am, when a storm was occurring throughout the day. We also argued that it was unacceptable for the MMS to have eliminated a municipality’s obligation to plough in situations where it “ought to know” that the snow had reached the trigger depth. Howden J. agreed. He held that,
[York Region’s] argument does not counter the problem caused by the combined failure in the MMS to provide a patrol standard appropriate to storm conditions, and then dispensing with the duty to take reasonable steps to be aware of, and thus to remedy, a resulting state of non-repair. …  In my view, given the incomplete state of the MMS as they pertain to winter storm conditions, section 4(1)(a) must be read as providing for the continuous deployment of resources to clear the snow during a storm, clearance to occur as soon as practicable after becoming aware, or after it should reasonably have become aware, of snow accumulation exceeding the Table depth.  WE conclude that York has failed to show that it cleared the snow/slush accumulation on Green Lane as soon as practicable. In fact, it has failed to prove that Green Lane had been cleared of snow since the commencement of the storm at 6:00 a.m.  … It was the omission of both adequate patrolling and non-compliance by Mr. Cutajar with York’s plans for snow clearance that the deployment failed to meet section 4(1)(a) of the MMS.
The court found York Region, 50% at fault for Ms. Thornhill’s injuries and Mr. Shadid 50% at fault. We lead evidence from numerous doctors and other experts to prove Ms. Thornhill’s damages, which Howden J. found to be $1,875,300.00.
As a further result of the Thornhill decision, the Government of Ontario amended the MMS in 2010, to specifically include a winter patrol section, as well as to introduce a constructive knowledge provision to the definition section of the regulation.