Injury Lawyers Since 1984
Ontario jeopardized the lives of winter motorists, but saved millions, by contracting out highway snow clearing, not insisting on proven methodologies, and poorly overseeing the service, Auditor General Bonnie Lysyk says in a revealing new report released May 29, 2015.
The report states that there was an increase in the number of deaths on Ontario highways in 2013 where snow, slush or ice was a factor. The Auditor General’s report says “… the safety of the public and of providers of emergency services were put at risk because contractors did not plow or salt at all, did so far too infrequently, or drove equipment too quickly for the plowing and salting to be effective.” In 2013/2014, for example, there were 1,100 instances where contractors did not meet multiple outcome targets.
But why were the contractors doing so poorly? The Auditor General faults the Ministry of Transportation’s move in 2009 to implement “performance-based contracting” which gives contractors full autonomy in determining how they would meet the Ministry’s winter highway maintenance outcome standards. By so doing, the proven historical practices were dropped from the contracts. The Auditor General also found that “the overriding criterion used by the Ministry to award contracts was the lowest bid, [so] there was an obvious incentive for contractors to minimize their equipment and use of winter treatment materials.” By example, in one contract area the amount of anti-icing liquid decreased from 3,200,000 litres in a winter to 9,500 litres, and contractors took more than twice as long after a storm to restore bare pavements (4.7h) than prior to 2009 (2.1h). In fact, seventy five percent of the winning proposals sampled did not obtain full points in the area of winter highway maintenance, such as the contractor’s ability to meet required circuit times with the proposed level of equipment. The Ministry advised the Attorney General it “believed that fines collected would be sufficient to cover the actual loss or damage that the Ministry could accrue as a result of failure to provide the service.”
The Auditor General’s report focuses exclusively on provincial roads. However, there is an equal or greater problem with municipal roads, which has not been examined by the Auditor General. Like provincial roads, between 1996 and 2002 the MTO oversaw a transition from process-based practices to “performance-based contracting.” It also oversaw the drafting of a regulation that set outcome targets much lower than the historical standards, and provides immunity from lawsuits to municipalities who comply with the low expectation. The regulation is called the Minimum Maintenance Standards for Municipal Highways (MMS).
The MMS was introduced in 2002, but it has undergone several iterations following successful lawsuits that highlighted its gross inadequacies. The first was brought by BolandHowe in Thornhill v. Shadid, in which Howden J. criticized the winter patrolling requirements and questioned the regulation’s legitimacy. The second was Giuliani v. Halton in which the Court of Appeal strictly interpreted the MMS and recognized that under the MMS, “a municipality is not liable for negligently failing to maintain a highway if it complied with the minimum standards that applied to its failure.” The third, Silveira v. Regional Municipality of York and HMQ, was also brought by BolandHowe and counsel on Giuliani. That was an application to strike the regulation as ultra vires, for prescribing a standard of care that is less than reasonable. The Ministry, York Region, and the Ontario Good Roads Association avoided the challenge days before it was argued, when York Region withdrew its reliance on the MMS in the underlying action.
The Minister of Transportation, Steven Del Duca, has said in response, “I am committed to getting it right so that Ontarians can drive on our highways with the confidence they deserve.” Hopefully, he will review municipal roads too.