Silveira v. Her Majesty the Queen

Plaintiff’s Counsel: Darcy Romaine | Timothy Boland | Alan Rouben
Defence Counsel: Her Majesty the Queen: Lise Favreau | Christin Smith
Ontario Good Roads Assn: Murray Davison Q.C.| Charles Painter
Regional Municipality of York: Christine Fotopoulos

The plaintiff, Ms. Silveira, was injured on December 12, 2004 when her vehicle lost traction on winter roads, crossed the centre line and collided head-on with another vehicle. All occupants of both vehicles were injured. A child died in the on-coming car. Ms. Silveira suffered a lower extremity fracture and brain injury. After reviewing the operational records and policies of York Region, my conclusion was that the patroller had erred in not calling out equipment in a timely fashion to treat the roads. York Region, however, relied for its defence upon O. Reg 239/02 the Minimum Maintenance Standards for Municipal Highways (MMS), which permitted snow to accumulate to 5 cm before necessitating re-medial action.

In response, we sought a declaration that the MMS were ultra vires its parent statute, the Municipal Act: Section 44 of the act imposes upon municipalities a duty of reasonableness in the maintenance of its roadways; while, in my view, the MMS created an unreasonable standard in allowing 5 cm of snow to accumulate before action was required, for example. This was a line of argument we had been developing since we were successful in Thornhill v. Shadid, the first trial decision on the MMS.

We moved to amend the Statement of Claim. York Region opposed, arguing first that our argument was untenable, and second that the Limitations Act precluded us from amending my claim. Lauwers J. (as he then was) heard the motion and found that the claim was legally tenable, that justice required that it be de-cided, and he found that the Limitations Act could not bar an argument challenging the validity of a statute. He then considered the two possible procedural routes the argument could take, trial or application. He opted for an application before a single superior court judge, under Rule 14, so to not encumber the trial. He also ordered all interested parties be invited to participate.

We drafted a Notice of Application, and served it on the interested parties: Her Majesty the Queen, who passed the regulation; The Ontario Good Roads Association, which represents all Ontario municipalities and essentially drafted of the regulation; and York Region.

Once HMQ became a respondent, it sought to argue the venue issue de novo, and moved for an order transferring the matter to the Divisional Court under sections 2(1), 6(1) and 8 of the Judicial Review Procedures Act. [2011] 4272. HMQ disputed the Court’s jurisdiction to use a Rule 14 application as a mechanism for implementing case management. Lauwers J. reaffirmed his earlier opinion. HMQ sought leave to appeal. We began collaborating with appellate counsel, Alan Rouben. We conducted legal research and wrote the initial drafts of the factums opposing leave to appeal before Eberhardt J. and drafts of the factum opposing the appeal, while Mr. Rouben refined the final versions and argued the motions. Matlow J., wrote the decision denying HMQ’s appeal on behalf of the Divisional Court, with Cunningham J. and Baltman J. concurring. The matter was to proceed in the Superior Court before a single judge.

We then reviewed all 7521 pages of documents related to the drafting of the MMS, which we had obtained through Freedom of Information as well as production requests. we then synthesized our research into a 30 page affidavit out-lining the developmental history of the science and practice of winter road maintenance and the manor in which the MMS was developed and departed from the historic and current MTO operational practices and policies. We also retained an engineer who specializes in road safety to review the practical consequences of a strict application of the MMS. We were selected by our team as the member best suited to cross-examine the op-position’s only witness, the president of the Ontario Good Roads Association, a municipal engineer who was a member of the panel responsible for drafting the MMS.

In drafting the factum on the ultimate issue pertaining to the vires of the regulation. In the process, we reviewed all winter maintenance jurisprudence for the last 100 years, since the Municipal Act imposed the statutory duty of care. Shortly before the hearing, York Region abandoned its reliance upon the MMS as a defence. While we tried to argue for public interest standing, Boswell J. decided against it because the Ontario Court of Appeal in Jiuliani v. Halton had significantly curtailed the 2002 MMS during the time this application was proceeding; and secondly because the government made emergency amendments to the MMS in response to Jiuliani. Accordingly, the scope of those affected by the impugned version of the MMS was limited, and could not justify the hearing.

In result, however, Ms. Silviera will proceed to trial, without the MMS as a defence at all.