Roads and Highways Under the New Municipal Act
Although some may consider Municipal law to be as dry as last year's paint, some legal practitioners in Ontario have a style that can make life interesting, even Municipal law. W.D. (Rusty) Russell, of Orillia, Ontario, is one of those who experts who can state his position with a flair.
At a recent continued education program offered by the Law Society of Upper Canada, Rusty Russell delivered a paper in his usual flamboyant style. His message, however, is substantive, and not lost in its delivery.
Ontario's new Municipal Act became effective on January 1, 2003, and is the most significant change in Municipal law in 154 years. The first Municipal Act was passed in 1849, and over the years has been amended to increasingly allow more power to municipalities to cope with the changes in the times. The most recent amendment is the most dramatic.
The new Municipal Act creates ten specific broad powers called "spears of jurisdiction". Municipalities now have the power of a natural person, as opposed to a creature of statute restricted entirely by what it has granted. These powers are to be interpreted broadly to include, rather than exclude, municipal powers that existed prior to the new Act.
A dramatic change is noted in one of these "spears of jurisdiction" being that of roads and highways. If a municipality closes a road and sells that road, it was first obligated to offer the land adjacent land owners. For the first time since 1849, this is no longer a requirement. No longer will a municipality be saddled with permanent maintenance of a road unless the municipality specifically passes a by-law to that effect. This is another huge change in the law.
For many years, municipalities were very careful not to do any maintenance of any sort on roads which they had not assumed, since the arguments is then made that the acts of maintenance amount to assumption, and thereby requiring continued maintenance at the municipality's expense. Now, this must be done by specific by-law, taking the argument away that has been the source of so much litigation.
Under the previous Municipal Act, a municipality could only close a road for vehicular purposes, or pedestrian purposes, or both. There was no flexibility. Now, for the first time in 154 years, a municipality has the power to restrict or remove the public right of passage on a public highway, thus giving a municipality the power to designate recreational trails and the type of vehicles and equipment that can use it. It could also be used to restrict roads to minimum usage.
Municipalities now have the authority to re-name, close, or change private road entrances to highways, provided the municipality does not deprive motor vehicle access to or from private property.
Under a new Regulation authorised by the Municipal Act, minimum standards for road maintenance are established.
There are six classifications of highways which are determined by the average annual daily traffic and then related to a posted speed. Once the class is determined, then minimum standards for frequency of patrolling, clearing snow accumulation, treatment of icy roads, removal of debris, and care of pot holes, etc. is established. Municipalities therefore can reduce their exposure to liability by meeting these standards. This will not reduce the public's pressure for higher standards, but no doubt will become the answer to that pressure.
Finally, with all of these new powers comes certain responsibility of keeping the public notified. Public accountability is only satisfied by giving notice to the public of actions to be taken. The new Act contains some 79 sections requiring notice to be given to rate payers. It will take some time for the effects of this new legislation on all areas, not just roads, to be understood and appreciated. There will be a steep learning curve for everyone involved.
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