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Fridays with Rogers Partners

At our weekly meeting, Pip Swartz discussed the recent decision of the Ontario Court of Appeal in Stamatopoulos v. Harris, 2022 ONCA 179.


Stamatopoulos v. Harris is a case about municipal negligence. In 2004, a motor vehicle drove over a road depression, spun, and collided with a pole. The plaintiff, who was a passenger in this vehicle, sued the driver and the Regional Municipality of Durham (“Durham”). The plaintiff claimed that Durham was negligent for failing to repair the depression in the road (the “Durham road”), and that Durham’s negligence contributed to the accident. The driver conceded liability and settled with the plaintiff[1]. Durham denied liability, so the issue of Durham’s negligence was decided in court.

The trial judge found that Durham was not negligent, and dismissed the plaintiff’s claim as against it. The plaintiff appealed, and the appellate court upheld the trial judge’s decision.

Lower Court Decision

To determine whether Durham was negligent, the trial judge applied the four part test for municipal negligence from Fordham[2].  The four parts of the test concern: 1) the state of the road; 2) causation; 3) statutory defences; and 4) contributory negligence.

The first part of the test asks whether the municipality’s road was in a reasonable state of repair. If the answer is yes, the municipality was not negligent. If the answer is no, the test continues. The driver’s conduct is not considered in the first part of the test.

The trial judge found that Durham was not negligent because the road was in a reasonable state of repair. To determine the latter, the judge asked whether the Durham road was safe for an ordinary driver, and found that it was. After reaching this conclusion[3], the trial judge analyzed the driver’s conduct. The trial judge found that the driver’s conduct—speeding[4] and temporarily removing their hands from the steering wheel — was unreasonable.

Appellate Decision

On appeal, the plaintiff argued that the trial judge had improperly conflated two issues: the driver’s conduct and Durham’s negligence. The Court of Appeal disagreed. They found that the trial judge had analyzed the driver’s conduct after having already found that Durham was not negligent.   

The Court of Appeal suggested that the trial judge analyzed the driver’s conduct to confirm the judge’s prior finding that the road was not in a state of disrepair. The Court of Appeal suggested that if the trial judge had found that the driver’s conduct was reasonable, the trial judge would have re-examined their finding about the state of the road[5].


The trial judge’s analysis of the driver’s conduct provided a “check and balance” on the finding about the state of the road, and consequently, on Durham’s negligence. Had the trial judge reached a different conclusion about the driver’s reasonableness, they may have been prompted to re-evaluate their finding of Durham’s liability.

[1] The plaintiff entered into a Mary Carter agreement with the driver. In a Mary Carter agreement, the settling co-defendant (in this case, the driver) admits fault in exchange for a share of any future damages the plaintiff recovers from the other co-defendant (s) (in this case, Durham). Despite the driver being listed as a defendant in this case, his interests are aligned with those of the plaintiff. A Mary Carter agreement is beneficial for both parties — it guarantees some recovery for the plaintiff, and limits the co-defendant’s financial exposure.

[2] Fordham v Dutton–Dunwich (Municipality), 2014 ONCA 891, 327 O.A.C. 302

[3] That the road would not pose a risk to a reasonable driver.

[4] The driver was driving 100km/hour in a 90km/hour zone.

[5] If a collision had occurred despite a driver acting reasonably, this could suggest that the road was in a state of disrepair.