Leo Fuhr - v. -, 2013 SKPC 6

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 006 Date: January 21, 2013 File: SC# 143 of 2011 Location: Yorkton _____________________________________________________________________________ Between: Leo Fuhr - and - R.M. of Churchbridge #211 Self For the Plaintiff Andrew Swenson For the Defendant _____________________________________________________________________________ JUDGMENT B.M. KLAUSE , J _____________________________________________________________________________ [ 1 ] The Plaintiff, a farmer and former Reeve, lives and farms in the R.M. of Churchbridge, Saskatchewan.

He is suing the Defendant for $8620.00 plus prejudgment interest and the costs of this action as a result of damage he suffered to his MacDon Hay Conditioner, an agricultural implement, while transporting it on the Defendant’s road between the SE-4-22-31-W1st and SE 9-22-31- W1st on August 5, 2011.

Evidence of the Plaintiff [ 2 ] Harold Wagner is the Councillor for Division 2 in the Rural Municipality of Churchbridge. It was his evidence that significant erosion occurred on a creek-crossing on the road in question in 2011. There had been an unusual amount of runoff in 2011 resulting in some washout on this particular stretch of road that was repaired by the employees of the Rural Municipality. It was a difficult year for this Rural Municipality, and others in the area, as there was significant, widespread damage.

Rural Municipalties have a limited financial ability to cope with the amount of damage sustained or as he stated it: “ our employees can only do so much.” [ 3 ] The Plaintiff called on August 25, 2011 to complain about the road and the lack of effort by the Rural Municipality to fix the damage. After the call, Mr. Wagner proceeded to flag the road but this road is mostly used by local farmers who would have been more aware of any problems occurring on it than a stranger. He flagged it as a public service.

In cross-examination, he agreed that the “hole” was located in the grassy portion of the ditch and “ for the wheel to be damaged it would have to leave the graveled portion of the road and be on the grassy portion.” [ 4 ] The Plaintiff testified that on the date in question he had been cutting hay with his son’s hay conditioner; between 10:00 and 11:00 p.m., he left for home with his tractor pulling the hay conditioner. He pulled onto the rural municipality road and very shortly thereafter the wheel of his hay conditioner sank into a very large hole.

He was able to extricate the machine, with difficulty, by lowering the cutting part of the machine and eventually tugging the wheel, still attached to the hay conditioner, out of the hole. [ 5 ] The hole was essentially part of a washed out culvert which had subsided over the course of the very wet year that this Rural Municipality and many others in Saskatchewan experienced in 2011. [ 6 ] In the photographs filed as Exhibits P1 to P13, it is clear that the culvert suffered some erosion from the dirt encasing the metal end portion of the culvert.

Over the summer, the grass in the ditch grew and to some extent covered the hole, making it difficult to see from the road. [ 7 ] It was the Plaintiff’s evidence that although he was able to extricate the equipment, he noticed some damage when he checked it the next morning. A subsequent check by his local equipment dealer revealed that the frame was bent and that it would cost approximately $8,600.00 to repair. He admitted that he is still able to use the equipment for its intended use but it cuts a smaller swath than it did prior to being bent .

He did not have it repaired before the trial, and indicated that ultimately the damage will affect the resale or trade-in value of the equipment. [ 8 ] He attributes the damage caused to his implement to the Rural Municipality inadequately maintaining its roads and ditches, and seeks redress. In cross-examination, he agreed that he has travelled that road for many years, that he knew where the culvert had washed out earlier that year, and that the Rural Municipality had fixed the problem in early 2011. He did not know that the Rural Municipality had not completely repaired the road.

He maintains that the damage to his equipment was caused when it collapsed into the hole and was not as a result of him pulling it out of the hole late at night. Evidence of the Defendants [ 9 ] The Defence called several witnesses, including the current Reeve, past and present Councillors and the people in charge of road maintenance for the Rural Municipality. [ 10 ] Neil Maher is the current Reeve of the Rural Municipality and has held that position for the past ten years. He described the road in question as a road allowance mostly used by one farmer who lives down the road.

It was his assertion that the Rural Municipality is responsible to maintain only the traveled portion of the road and that it was in good repair. This incident occurred off the traveled portion. It was the Rural Municipality’s intent to completely fix all the culverts eventually, but they had been overwhelmed by the sheer volume of damage to their road systems in 2011. The only complaint they received was from the Plaintiff. Mr. Maher examined the site of the incident and was unable to observe any damage to the surrounding dirt or grass to confirm or dispute the Plaintiff’s version of events.

[ 11 ] Neil Sveinbjornson is a grader operator employed by the Defendant. He graded this area of the road on July 14, 2011 and identified no problem areas. He had been aware that the road was in poor shape in April of 2011 when it had partially washed out. He was present at the scene in April when the barricades went up to indicate a problem with the road . The Plaintff was also there that day and was advised not to cross the road with the damaged culvert but the Plaintiff did so anyhow.

In cross -examination, he agreed that he had only fixed the top of the road at the time and did not fix the slope leading to the culvert. [ 12 ] The third witness for the Defence was Perry Kohanski who has been a grader operator for 26 years and is very familiar with this road. He had attended the scene in the spring and had used material from the shoulder to stop the water from flowing over the culvert in an effort to prevent a complete washout. With fuel running low, he had to return to the shop that date.

When he left, the top of the road was in good shape; he further testified that he would have maintained that road during the summer of 2011 and did not notice any damage on the driving portion of the road. In cross- examination he explained it was his priority to repair all major grid roads and major arterial roads with less focus on smaller access roads. [ 13 ] The fourth witness for the Defence was Mark Yanke, the foreman for the Rural Municipality who testified that the Rural Municipality is responsible for maintaining 400 miles of roads of which 300 are all-season roads.

The year 2011 was particularly difficult due to the spring run off and the high levels of water. The Rural Municipality had to priorize its resources in order to save the main roads and thus, were not particularly concerned about checking all of the culverts in the Rural Municipality. [ 14 ] The fifth witness for the defendant was David Zerr who has been the Councillor for Division 1 for the past 12 years. He was aware of the Plaintiff’s claim and had been asked by the Rural Municipality to check out the situation.

He explained that when a claim is made, the Rural Municipality contacts its insurers who typically ask the Rural Municipality to check on the claim. Mr. Zerr attended the site and could find no evidence of disturbance or other obvious signs of what had occurred and was unable to understand how the incident could have happened. In his opinion, the travelled portion of the road was intact although the shoulder of the road had partially fallen away creating a change in the downslope of the culvert shoulder.

He did not flag the area as he felt there was no need to do so and further opined that the Rural Municipality had so much work to do in that area that they were unable to get to all of it. [ 15 ] The last witness for the defendant was John Pollick who had spent 16 years as a Councillor. He inspected the hay conditioner after being told of the claim; he was unable to confirm any damage.

He indicated in his evidence that there was some material missing at the end of the culvert but nothing missing from the travelled portion of the road; he saw no tracks in the ditch to confirm the Plaintiff’s account of what had actually occurred. Position of the Plaintiff [ 16 ] The Plaintiff insists that the area where he damaged his hay conditioner is part of the road and that the definition of ‘road’ in the Municipalities Act should be interpreted to include the shoulder of the road.

If the Court accepts that definition, it is his position that the Rural Municipality is liable for the damage caused to his hay conditioner because they either should have flagged the hazard or repaired it before the date of the alleged incident. Position of the Defendant [ 17 ] The Defendant relies heavily on the

definitions contained in The Municipalities Act , RSS

Chapter M-36 .1 It may be useful for the purposes of this judgement to quote from the relevant sections: s.2(qq) “roadway” means the part of a public highway designed or intended for use by vehicles, and includes the roadbed structure involving any side slope or ditch bottom but does not include a designated trail within the meaning of The Snowmobile Act or any other trail or path for which a permit is required. s. 343(1) A municipality shall keep every street, road or other public place that is subject to the direction, control and management of the municipality, including public works in , on or above the street, road or public place put there by the municipality or by any other person with the permission of the municipality, in a reasonable state of repair, having regard to:

(

a) the character of the street, road, public place or public work; and (

b) the area of the municipality in which it is located.

(1.1) For the purposes of this section, a street, road, or other public place is to be considered in a reasonable state of repair if those whouse the street, road or other public place can, exercising ordinary care, do so with safety. s. 345 A municipality is not liable for damage caused: (

a) by the presence, absence or type of any wall, fence, guardrail, railing, curb, pavement markings, traffic control device or barrier; or (

b) by or on account of any construction, obstruction or erection or any situation, arrangement or disposition of any earth, rock, tree orother material or thing adjacent to or in, along or on a street or road t hat is not on the traveled portion of the street or road. [18] The Defendant asserts that there is no definition of “traveled portion” in the definition

section of the Act and “traveledportion” of the road as contained in s. 345(

b) is a much more specific descriptor as it is combined with all the limitations contained inthat section. It would therefore follow that s. 345(

b) provides the RM or panel with complete immunity in the circumstances of this case.Their argument is that the “travelled portion “ of the road has to be limited to the “gravelled portion of the road” and not the adjacentditch where one would not expect to “travel” and submit that this is the commonly understood meaning. In support, they provide the caseof McDonald v. Lefebvre, (1962) (ON CA), 32 D.L.R.(2d) 696( Ont.

C.A.). at p. 701 per Laidlaw, J.A.: In my opinion “traveled portion” of a highway does not include a portion “which may be used by traffic.” Again I point out that the word“traveled” is used and not the word “travelable.” To extend the meaning and definition of the words “traveled portion” to include theportion “which may be used by traffic” would place too wide and too great a responsibility upon a municipality or other authorityresponsible in law for the proper condition thereof.

A municipality or other authority is not required in law to provide a portion of ahighway for travel wide enough for two trucks to pass one another and in my opinion the liability to the user of a highway for thepurpose of travel is limited to that portion that has been provided and is intended for ordinary and normal use for that purpose or whichhas in fact been commonly and habitually used by the public for that purpose.

The Defendant urges this Court to adopt the reasoning of the Ontario Court of Appeal. [19] In support of this argument the Defendant points to the provisions of the Traffic Safety Act and in particular s. 209(1) whichoutlines where designated flares may be placed: S. 209(4) for the purpose of clause (3)(b), designated flares must be used if; (

a) a vehicle intrudes on the traveled portion of the highway; S. 217(2) No driver shall pass by driving off the pavement or traveled portion of the highway.

[20] In further support they rely upon Guse v. Thunder Bay (1998) 47 M.P.L.R.(2d) 98 , a case where a jogger sued themunicipality for injuries which she sustained when her leg caught the corner of a culvert which was partially masked by uncut grass. The Court held that the place where the injury occurred, ie the culvert, and the area immediately in front of the culvert, was within theroad allowance but within the untraveled portion of the roadway (emphasis mine).

The Court found that this area was not intended forcommon or ordinary use of the public for travel purposes and denied her claim for damages. [21] The Ontario statute was strikingly similar to s.345 of the Municipalities Act, supra. Section 284(3) of the Municpal Act,R.S.O 1990 c.

M.45 provides as follows: No action shall be brought against a corporation for the recovery of damages caused by the presence or absence or insufficiency of anywall, fence, guard rail, railing or barrier, or caused by or on account of any construction, obstruction or erection or any situation,arrangement or disposition of any earth, rock, tree or other material or object adjacent to or in, along or upon, any highway or any partthereof not within the traveled portion of such highway. [22] At para. 10 of that judgement the Court stated as follows: . . . the intent of s. 284(3) is to exclude municipalities from liabilities arising from defects existing beyond the part of the highwaycommonly used by the public.

It protects a municipality from liability for injuries arising from conditions of non-repair in locationswhere the public would not be expected to go. [23] Lastly the Defendant relies upon s. 343(1) of the Act which states as follows: s. 343(1) a municipality shall keep every street, road, or other public place that is subject to the direction, control and management of themunicipality, including all public works in, on or above the street, road or public place put there by the municipality or by any otherperson with the permission of the municipality, in a reasonable state of repair, having regard to: (

a) the character of the Street, road, public place or public work; and (

b) the area of the municipality in which it is located.

(1.1) For the purposes of this section, a street, road or other public place is to be considered in a reasonable state of repair if those whouse the street, road or other public can, exercising ordinary care, do so with safety. . .

(6) A municipality is not liable pursuant to this section: . . . (

c) if the municipality proves that it took reasonable steps to prevent the disrepair from arising. [24] In further support of this argument they urge the court to consider Martel Express Inc, vs. Government of Saskatchewan(1970) (SK CA), 75 W.W.R. 477(Sask. C.A.) in which the Court was asked to consider what amounted to a reasonablestate of repair and also Burton vs. Fertile Valley(RM), 2004 SKPC 4, a decision of Judge Jackson in which he also found that the duty ofthe Rural Municipality to keep the road in a reasonable state of repair had been met.

Judgment [ 25 ] In my view, this mishap did occur as described by the Plaintiff late at night when he was returning to his residence after a day of cutting hay. He pulled onto the road when it was dark or near dark and proceeded to drive his machine home. Unfortunately, he pulled off the “traveled” portion of the road which by any common sense definition of the word must be the gravelled portion; that is, the part of the road normally traveled upon by members of the public. I find myself in complete agreement with the Court of Appeal of Ontario in McDonald v. Lefebvre , supra .

Members of the public, farm or otherwise, do not normally travel in the grassy ditch immediately adjacent to the traveled i.e. graveled portion of the road. It is difficult to see in what circumstances that the Rural Municipality could be held liable for the state of its ditches, which normally are not regularly maintained or graded and are not planned or intended for travel by the public. [ 26 ] Further, if I am incorrect in that finding, it is difficult for me to conclude, based on the evidence presented before me, that the damage was caused simply by the machine dropping into the hole.

The evidence disclosed that the Plaintiff did not wait until daylight to remove the hay conditioner from the hole but instead chose to extricate it at night, by lowering the table of the hay conditioner and using the hydraulics to lift or drag the implement out of the trap into which it had fallen. It is equally probable that the damage was caused by the extrication of the implement at night, and without assessing the entire situation properly.

The Plaintiff no doubt felt that he had no other option but to remove the implement from the road, thereby alleviating a hazard to other potential users. [ 27 ] Furthermore in my opinion, s. 343 provides the Rural Municipality with a complete defence in the circumstances in which it found itself in 2011. This was an unusually wet year and the Rural Municipality was barely keeping up with its repairs and maintenance. In my opinion, given the circumstances of that particular year and given the amount of resources at its disposal, the Rural Municipality did maintain this road in a reasonable state of repair.

In coming to this conclusion, I note the character of the road i.e. a subsidiary road in a sparsely populated area mostly used by local farmers, and the reasonable steps that the Rural Municipality had taken earlier in the year to stop the flood damage and potential washout of that particular culvert. [ 28 ] Furthermore, the Plaintiff had an exquisite and personal knowledge of that particular culvert and that particular road as he had happened across it when it was being repaired in the spring. He saw the damage and problem created, as well as the solution that the Rural Municipality had provided.

He should have known and ought to have known that later in the summer when he was taking his equipment home by the same road, that there was a potential problem at that culvert and should have exercised greater care in transporting his equipment home, especially at night. [ 29 ] Furthermore, the Plaintiff has not established his actual monetary loss. He has an estimate of repairs but has not yet effected the repair. It is impossible for me to conclude that the damage complained of is due exclusively to his machine falling into this hole in the ditch.

The machine apparently is still able to be used in most respects for the purpose for which it was purchased. [ 30 ] In all of the circumstances of this case, I therefore find that Plaintiff has not established his case on a balance of probabilities and I dismiss his action. There is no order as to costs. __________________________ B.M. Klause, J