New Liskeard lawyer Owen Smith doesn’t like the state of winter road conditions in the North on Highways 17 and 11. But instead of complaining, he has given notice that the Ministry of Transportation may be held liable in future lawsuits.
“I have been here since the early 1970s and I am used to a lot more severe weather that we have seen this winter or the past 10 years, for that matter,” he said. “The highways hardly ever got closed, when the MTO (Ministry of Transportation of Ontario) looked after them.
“They were better maintained and safer, and fewer accidents, so that got me looking into it a little bit to see why this is happening.”
Smith believes the maintenance standards have been lowered, and that there are fewer plows and sanders and less application of sand and salt.
“We have a considerable body of evidence from existing contractors and former ministry employees as well as forensic engineers to attest to the result of ‘lowering the bar’ from your ministry’s former standards of care,”
Smith wrote to the ministry in early February. In addition to leading his legal firm – Smith McBride Ducharme – Smith is founder of Strategic Risk Control, a risk consultancy firm.
“I consult some fairly large companies on how to control their potential lawsuits, as a risk consultant. We are used to saying what is right and wrong and what kind of standards you should be following,” he said. “And I am not coming at this like an ordinary lawyer. I am also looking at what they should be doing. So from a proactive standpoint, as a risk consultant, I would say ‘hey guys, there is a problem here and take a look at why this is happening.’”
Gordan Rennie, communications co-ordinator with the ministry’s northeastern region, said in an email that standards have not changed.
“Ontario has some of the highest road maintenance standards in North America; we are a road safety leader.
Bare pavement, partially bare pavement, or snow packed condition, depending on the class of highway, must be achieved within a certain amount of time after the end of a winter event,” he wrote.
Contractors must meet several operational requirements such as plowing highways when there is an accumulation of two centimetres or more of snow or slush, and equipment for spreading salt or sand must be deployed within 30 minutes of the start of a storm.
Road closures, which are ordered by the Ontario Provincial Police, appear to be on the rise, Smith said. He informed the ministry “evidence is available from supervisory members of the OPP who will indicate a new necessity to effect road closures due to the fact that the declining measures necessary to provide safe access” make it impossible for police to patrol the roads in adverse weather conditions.
“Anecdotally I talked to a lot of people about road closures. This highway (11) is a lifeline. I talked to police, and they said they have to close the highway because it is unsafe. That is not the way to do things. A plow, some salt and sand would do it,” Smith said.
The ministry said the provincial winter maintenance standard defines the length of time after the end of a storm that the highway surface must be bare, partially bare or snow packed. The standard varies according to the class of highway.
All highways in Ontario have been divided into five classes based on the winter traffic volumes. Traffic counts are conducted every two years and the class is updated when necessary.
Two-lane sections of Highway 11 and Highway 17 are Class 2. The maintenance classification determines the plow circuit time and the bare pavement standard.
The circuit time is the length of time it takes for a plow or spreader to travel through the full route servicing the main lanes.
A Class 2 highway has a circuit time of 2.2 hours. The classification also determines the bare pavement standards, which for Class 2, is within 16 hours after a storm ends.
Smith has been told that travellers, including truckers, have sometimes been bypassing Highway 11 between North Bay and New Liskeard by opting to take Highway 101 in Quebec and crossing into Ontario on Highway 65.
“I did this myself this winter while driving back home. The road in Ontario was wet, icy and dangerous, and on the Quebec road, I encountered seven provincial sanders and plows to Notre Dame du Nord (Que.). The highway was bare and damp and the weather can’t be that different,” he said.
Since news has spread of his intention to hold the ministry liable, he has been receiving calls and emails from many people using the highway.
He doesn’t expect any lawsuits soon, since the preparations involved would be exhaustive.
“We shouldn’t have to put up with this,” he said. “Court is the world’s most powerful microscope, because there are no holds barred and they can’t hide.”
