Casual Legal: Duty to keep roads in good condition

By Shauna Finlay
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

The Alberta Court of Appeal recently decided a case involving the requirement municipalities have to keep roads in a reasonable state of repair. The principal issues in the appeal were whether any other provisions of the Municipal Government Act ("MGA") insulated it from liability. Ultimately, the Court found that none of the liability protections in the MGA applied and found the municipality bore some liability.

The case involved a motor vehicle accident caused in part by the condition of a median on a busy roadway. Grit and sand had built up against the meridian, reducing its effective height. As a result, when a truck lost control on the roadway and hit the meridian, it was launched up and over the meridian into oncoming traffic where it collided with another vehicle, resulting in a fatality and serious injuries.

The principal take-aways for municipalities from this appeal are:

• Statutory immunity for damage caused by a system of maintenance, or the manner in which maintenance is performed, or the frequency, infrequency or absence of maintenance protects municipalities from liability for the municipality's discretionary planning or design choices in relation to inspection and maintenance.  
• Once a road falls into disrepair, the municipality will be liable for any damage caused by its failure to perform its duty if it knows or should have known about the state of disrepair (for reasons other than its system of maintenance), unless it can demonstrate it took reasonable steps to prevent or rectify the problem.  
• The statutory immunity for damage caused by the presence, absence or type of any wall, fence, guardrail, railing, curb, pavement markings, traffic control device, illumination device or barrier adjacent to or in, along or on a road is not a blanket protection from liability associated with any of the foregoing infrastructure. If the decision is made to place such features, they must not be permitted to exist in a state that gives rise to a hazard.
• The statutory immunity for damage caused by any construction, obstruction, erection or any situation, arrangement or disposition of any earth, rock, tree or other materials or thing [in a place] that is not on the travelled portion of the road encompasses only those portions of a road intended by a municipality for ordinary use by traffic or commonly used by the public for that purpose. Further, it applies to things intentionally placed, not the build-up of dirt and gravel as occurred in the circumstances before the Court of Appeal. 
• If a municipality has internal maintenance and design standards, they should be followed. 

So while statutory immunities provide protection to municipalities, if a municipality is aware of a hazard associated with a roadway, municipalities are expected to take, and document, reasonable steps to address the hazard in compliance with the municipality's internal policies.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.