The underlying premise of this paper is that over the past 20-30 years Ontario courts have, on a number of occasions, both at the trial level and on appeal, failed to properly apply the traditional test for non-repair set out in the leading decisions of the Supreme Court of Canada. Whether this has been done intentionally by the trier of fact to achieve a result they felt was fair, because the law was not properly presented to them or because they misunderstood the test, the result of this trend is that Ontario municipalities and their insurers are losing confidence in the ability of the judicial system to provide justice in accordance with what they understand the law to be. What the end result of this trend will be is not yet clear, however, it is fair to say that if it continues without judicial or legislative correction municipalities will likely find themselves unable to obtain insurance for road non-repair claims at anything other than extremely high premiums and multi-million dollar deductibles.
The intention of this paper is not to dwell on what motivates judges to do what they do in specific tragic cases. There is no doubt that being a judge is tough and that one of the more difficult things a judge has to do is listen to a seriously injured individual and then determine that either they alone are responsible for their loss or that others are responsible for their injuries knowing that it is unlikely those parties will have sufficient insurance or assets to compensate the injured party. As defence counsel there is very little we can do to assist a judge in properly ignoring that emotional issue. What counsel can do, however, is provide him or her with the proper legal framework and case law so that, if they follow the steps the test for liability calls for, no liability will be found except where the facts actually justify it. This paper is intended to assist counsel in that process.
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