Auditor General Exposes Winter Maintenance of Provincial Roads as Inadequate

Since 2002, Tim Boland and Darcy Romaine have been challenging the reduced winter maintenance standards in place on municipal roads. In 2013, nearly all municipalities across Ontario contributed $400,000 to fight our attempt to have the regulations made safer.

On April, 29, 2015 the Auditor General of Ontario, released a special report on the state of winter maintenance practices on provincial roads. The report was scathing, and revealed that Ontario saved millions of dollars but jeopardized the lives of the motoring public with reduced services that compromised public safety.

Advocate Daily interviewed Tim Boland for his response to the Auditor General’s report. A scathing report by Ontario’s auditor general claiming cost-cutting measures by the Ministry of Transportation allowed winter road maintenance standards to deteriorate and put motorists at risk shines a necessary light on safety concerns that have plagued the province’s roadways for years, says Aurora personal-injury lawyer Tim Boland.

Having represented clients against both municipalities and the Province of Ontario on the issue of winter road maintenance, Boland says Auditor General Bonnie Lysyk’s report is a welcome addition to the conversation on safety and liability. “It’s extremely important because the safety of everyone on the roadways is at risk,” says Boland, a founding partner with BolandHowe LLP. “It’s an issue we’ve been hammering on for years. There have been several decisions attacking the standards but now we have a much bigger drum to beat with the auditor general basically saying what we’ve felt for some time.” The auditor points to a significant change that took place in 2009 – when the province moved to save money by contracting out winter road maintenance – as having a major impact on services. The change saw the province move to “performance-based” contracts for winter highway maintenance work, which gave contractors full autonomy in determining how they would get the work done, says the report.

The province primarily chose contractors on the basis of the lowest price bid despite many of the companies not having access to sufficient equipment to do the work, the report found. In 2009/10, for example, the most travelled highways in the province were cleared to achieve bare pavement, on average, in 2.1 hours after the end of a storm; in 2013/14, this increased to 4.7 hours. Further, six of 20 contract areas didn’t meet the province’s standard of clearing within eight hours 90 per cent of the time, says the report. “The bottom line is that the Ministry has been successful in reducing and containing escalating winter maintenance costs, but this has been achieved at the expense of a reduction in the timeliness of ensuring Ontario highways are safe for motorists in the winter,” the report states.

The auditor found that private sector contractors used less equipment, salt, sand and anti-icing liquid, and patrolled roads less often, than in previous years. “The Ministry denied a number of requests where staff had warned that reduced plowing would ‘directly lead to increased hazardous winter driving conditions,’ and even one request where its own study of ramps on a specific highway recommended more frequent plowing and salting,” says the report. “This inconsistent approval process resulted in highway maintenance service levels varying between regions. Drivers travelling from one region to another may have had to cope with unexpected conditions as a result.” According to Lysyk’s report, the transportation ministry spent $171 million on winter highway maintenance in 2013-14, compared to $202 million in 2008-09.

For Boland, the report confirms that the concerns he and his colleague Darcy Romaine have had for years are not unfounded. “We now have an internal government report which shows that the practices aimed at saving money have put all Ontarians at risk,” he says. While the report deals with provincial highways only and does not address standards for municipal roadways, Boland says the two are connected – and he believes municipal drivers are at an even greater risk compared to those using provincial roads. “The report is focused on the province, but a lot of the same problems exist in terms of timing of inspections and volumes of salt being used, for example,” he says. “The bottom line is the province handles provincial highways, but it also creates the legislation and policy involved with the standards at the municipal level.” Boland and Romaine’s efforts have focused on proving the minimum maintenance standards (MMS) – developed to provide municipalities with a defence against liability from actions arising with regard to levels of care on roads and bridges – are insufficient. In Thornhill v. Shadid, 2008 CanLII 3404 (ON SC), Boland and Romaine represented a nurse who was injured in a winter crash on Christmas Day 2002, and claimed damages against the other driver and York Region.

The municipality relied on the MMS as a defence, while the plaintiffs attacked the legality of the standards. While the judge felt that all stakeholders should be involved in such a dispute, he said the argument merited close scrutiny as the standards “may seriously dilute the content of the duty to keep highways in repair, to the prejudice of the public using those highways.” The case sparked change for the MMS, says Boland, with the government amending the standards in 2010 to include a winter patrol section, as well as introduce a constructive knowledge provision to the definition section of the regulation. Thornhill also laid the groundwork for another notable case, Silveira v. Ontario (Transportation), 2014 ONSC 65 (CanLII). In Silveira, Boland and Romaine set out to ensure that all necessary stakeholders would be at the table to properly address a dispute over the legality of the MMS. They represented a woman who was injured in a motor vehicle accident when she lost control of her vehicle on slippery winter roads and collided head-on with another motorist. She issued a claim against York Region claiming negligent road maintenance.

York Region’s defence relied on the MMS, and the plaintiffs followed up by pleading that the standards were ultra vires and should be struck down. In addition to the action, the plaintiffs commenced a companion application challenging the validity of the MMS, naming both the Ministry of Transportation and York Region as respondents. Just before the application was heard, York Region withdrew its reliance on the standards as a defence in the Silveira action, leading to the application being dismissed on the grounds that it was moot.

But Boland and Romaine used the case as a jumping off point in an attempt to challenge the provincial government’s regulations by arguing that they violated the Municipal Act. While Boland welcomes the auditor general’s report, he says the spotlight needs to focus on municipal roads next. “The report is very significant if it will help the ministry return to its former practices,” says Boland. “However, I am steadfast in my belief that drivers on municipal winter roads are exposed to an even greater risk of injury, and that reform is needed in that area.”

NOTE: The article has also been featured at www.advocatedaily.com