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Roadway Issues Beyond Surface Concerns: Infrastructure Elements Such As Signage and Lighting, among other things
Question: What does “highway” mean under Ontario’s Municipal Act, 2001 for municipal roadway liability?
Answer: In Ontario, Municipal Act, 2001 defines a “highway” broadly to include most public roads and related structures (not just major expressways), which can affect whether a municipality has duties around repair and maintenance. Alfred Legal Services provides Affordable Legal Help in Ontario to clarify how roadway elements like signage and lighting may be treated in liability claims, including guidance informed by Azzeh v. Legendre, 2017 ONCA 385.
Defining Roadways Per the Municipal Act, 2001
The interpretation of a roadway as a "highway" per the Municipal Act, 2001, S.O. 2001, Chapter 25, is crucial for understanding municipal liability concerns. Laypeople will often confuse the term "highway" as meaning a major expressway such as the 400 series highways throughout Ontario; however, the term "highway", when used in law, refers to almost all roads, streets, cul-de-sacs, etc. Furthermore, the legal definition of a roadway involves much more than just the driving surface and includes other infrastructure elements including signage, lighting, among other things. Municipal Act, 2001, explicitly defines a highway as:
Interpretation
1 (1) In this Act,
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"highway” means a common and public highway and includes any bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway;
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Furthermore, the definition of roadway involves much more than just consideration for the nature of the type of road whereas the roadway surface is just one aspect of the infrastructural elements that the law deems as consisting the overall roadway. Additional infrastructure elements include signs, lighting, etc. The interpretation of roadway as including infrastructural elements beyond just the roadway surface was addressed within Azzeh v. Legendre, 2017 ONCA 385, where it was said:
[55] I would respectfully disagree that Bayden's claim does not include maintenance or repair issues. In Ontario (Minister of Highways) v. Jennings, 1966 CanLII 11 (SCC), [1966] S.C.R. 532, [1966] S.C.J. No. 31, the Supreme Court held that a municipality's duty of repair includes erecting and maintaining proper signs. Bayden's statement of claim against the city includes claims of failure or neglect to have adequate signs and lighting at the intersection; failure to warn motorists of the lack of illumination; and a claim that the city "allowed the area to become an area of danger when they could have prevented same by the exercise of reasonable care and diligence, including modifications to the road and/or signs and/or lights". Just as the alleged failure to have proper signage is considered a repair issue, as it was in Jennings, so too it seems to me is a failure to have proper illumination. Thus, the claims against the city include claims for failing to keep the intersection in a reasonable state of repair.
Conclusion
In summary, interpreting a roadway as a "highway" under the Municipal Act, 2001, involves understanding the expanded responsibilities that municipalities hold, including maintenance of the signage and lighting that forms elements of the overall roadway infrastructure. Municipalities, in addition to duties to keep the roadway surface in a proper state of repair, are also required to maintain the other elemental aspects of the roadway including the signage and lighting, among other things.
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