DATE: 20010524
DOCKET: C30264
COURT OF APPEAL FOR ONTARIO
GOUDGE, BORINS AND SHARPE JJ.A.
B E T W E E N:
MARILYN MACMILLAN, RODERICK MACMILLAN, ALEXANDER MACMILLAN AND JOHN ALAN MACMILLAN, by their Litigation Guardian RODERICK MACMILLAN, GEOFFREY ANDERSON, SUSAN McLEOD, DAVID ANDERSON, LISA HOULE, CHRISTINE ANDERSON, SHIRLEY ANDERSON, and ALAN ANDERSON
Earl A. Cherniak, Q.C. and Sandra L.Coleman
for the Appellants
Appellants (Plaintiffs)
- and -
HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION AND COMMUNICATIONS FOR THE PROVINCE OF ONTARIO
Duncan Finlayson, Q.C.
for the Respondent
Respondent (Defendant)
HEARD: December 12, 2000
On appeal from the judgment of Justice W.A. Jenkins dated June 25, 1998.
GOUDGE J.A.:
[1] Shortly before 8:00 a.m. on October 12, 1988, Marilyn MacMillan was driving east on Highway 401 near Woodstock on her way from her home in London to her job in Waterloo. When she reached the bridge over Highway 2, her car skidded on black ice that had formed on the surface of the bridge, and she lost control. Her car rolled over several times, crossed the median and was hit by a westbound vehicle. Tragically, she suffered devastating head injuries.
[2] She sued the Province of Ontario, saying that the Ministry of Transportation and Communications (the “Ministry”) had failed in its legal obligation to keep the highway in repair.
[3] The trial judge found against her on this issue and dismissed her action. He properly went on to determine her damages, which he fixed at $3,865,644.90.
[4] Ms. MacMillan appeals on the issue of liability. The Ministry advances a contingent cross appeal as to a portion of the damage award.
[5] For the reasons that follow, I have concluded that the trial judge misapplied the law in assessing the respondent’s legal obligation to keep the highway in repair in the circumstances of this case. In my view, the law, correctly applied, requires that the appellant’s claim be allowed. Further, I have concluded that the cross-appeal must be dismissed.
The Facts
[6] On the morning of October 12, 1988 the weather was snowy in London, but as Ms. MacMillan approached Woodstock on Highway 401, the road was bare and dry. The trial judge found that at the time of the accident, approximately 7:55 a.m., the deck of the bridge over Highway 2 had ice on it which was difficult to see.
[7] As she reached the bridge, travelling at 105 to 110 kilometres per hour, Ms. MacMillan saw a gopher or ground hog at the side of the road and touched her brakes. Her car skidded out of control with the disastrous results that I have indicated.
[8] The formation of ice on the deck of a bridge where the surface of the road adjacent to the bridge remains free of ice because of the warmth provided by the subsoil is known as “preferential icing”. In the autumn of the year, as the temperature falls overnight, the bridge cools faster and to a lower temperature than the adjacent roadway because the bridge is completely exposed to the cool air surrounding it while the adjacent roadway is warmed by the residual summer heat in the earth beneath it.
[9] The Ministry has long been aware of the risk of preferential icing and the fact that it can create a dangerous situation which may not be apparent to motorists. As in this case, this risk is in part because the preferential ice can be difficult to see and because it is unanticipated since the adjacent roadway is bare and dry.
[10] The stretch of Highway 401 where the accident happened is heavily used. Average traffic flow over this bridge is approximately 30,000 vehicles per day. Included in this is a large volume of commuter traffic that begins to build early in the morning of each workday.
[11] The bridge in question is 40 metres long and asphalt covered. It is part of the 35 to 40 kilometre stretch of Highway 401 that is the responsibility of the Woodstock Patrol of the Ministry. This Patrol, known as Patrol 16, is one of the patrols within the London District of the Ministry. This stretch of Highway 401 makes up about 80 per cent of the roads for which the Woodstock Patrol is responsible. There are five bridges on this stretch.
[12] In 1988, the Ministry operated on two seasonal schedules. The summer schedule ran from April 1 to early November. Employees worked only from 7:30 a.m. to 4:00 p.m. Monday to Friday unless asked to come in early or stay late. Patrol supervisors were not provided with weather forecasts although these were received by the London District Office five times a day. Indeed, William Eden, the Woodstock Patrol supervisor, testified that during the summer season they did not worry about weather forecasts or frost warnings. Rather, they relied on the Ontario Provincial Police to advise them of slippery conditions on the bridges. They would then respond by sending a truck to salt and sand the icy areas.
[13] By contrast, on the winter schedule, which ran from early November to March 31, there were employees on duty 24 hours a day, seven days a week. All Patrol supervisors received weather reports five times a day, as they were received by the London District Office. Patrols were carried out every shift with special attention paid to bridges because of their increased risk of icing.
[14] In the week prior to the accident the London/Woodstock/Waterloo Region of Southwestern Ontario experienced unseasonably cold weather. On four of the days the air temperature (the temperature of the air measured 1.5 metres above the ground), dropped below 0°C in some parts of the region. In addition, frost warnings were also issued.
[15] There was little dispute about the weather conditions on the morning of the accident. David Murdoch, the climatologist who gave expert evidence for the respondent, said that at 7:30 a.m. on October 12 the air temperature at Woodstock was -1°C and because there was very little cloud cover (thus permitting a more rapid night time escape of surface heat into the atmosphere) the grass minimum temperature (that is the temperature of the air at the tips of blades of grass cut to eight centimetres) was between -1 and -3°C. In addition, there had been 0.8 millimetres of precipitation since 3:30 p.m. on October 11.
[16] These weather conditions had been accurately forecast. For example, the weather forecast in the London Free Press on October 11 was as follows:
Cloudy skies, scattered showers and a chance of snowflurries north of London as forecast for today as a departing low pressure system sucks cold Arctic air through the great Lakes basin. A high of 8 and low of 0 are forecast, with northwest winds at 35-45 km/h. Probability of precipitation is 70 per cent.
[17] The last forecast by Environment Canada prior to the closing of the Woodstock Patrol at 4:00 p.m. on October 11 was issued at 3:30 p.m. on that day. The synopsis and local forecast were in the following terms:
SYNOPSIS
The coldest weather of the season is descending over Southern Ontario. Strong northwest winds brought fresh Arctic air into the south during the last 24 hours setting off flurries in some snowbelt areas near Georgian Bay and Lake Huron. Flurries will continue there tonight. A few flurries are possible anywhere across the south both tonight and Wednesday. Temperatures are running about 5 degrees below seasonal normals and widespread frost is again expected tonight. Most areas have had a killing frost but there are still some areas were [sic] frost was patchy namely regions bordering Lake Erie. A frost warning has been issued for those regions. Warm weather is forecast for the end of the week.
LONDON-MIDDLESEX-OXFORD
ELGIN
BRANTFORD-HALDIMAND-NORFOLK
Frost warning issued. Tonight variable cloudiness with scattered showers or flurries. Low near 1.
Wednesday variable cloudiness with scattered showers mixed with wet flurries in the morning. Continuing very cool with high near 7. Thursday mainly sunny. Morning low near zero. High near 22. Probability of precipitation in percent 60 tonight. 60 Wednesday. 20 Thursday.
[18] As a result of these weather conditions two other accidents had occurred earlier that morning in the Woodstock Patrol area, both caused by ice having formed on bridge decks. At about 6:40 a.m. there was a collision on a bridge on Highway 59, less than five kilometres from the site of the MacMillan accident. Then shortly after 7:30 a.m., a car driven by Cheryl Millson skidded out of control on ice on the same bridge where Ms. MacMillan had her accident some 25 minutes later.
[19] The precise time at which the ice formed on this bridge was the subject of some considerable controversy at the trial. The trial judge fixed the time at approximately 7:30 a.m. on October 12 based on the time of the Millson accident and the evidence of two OPP officers which he took to be that there was no ice on the surface of the bridge when they each traversed it shortly before 7:00 a.m. In this court, the appellant attacks this finding as unreasonable. For the reasons that follow, I agree and would set this finding of fact aside as unsupported by the evidence and exercise this court’s jurisdiction to substitute its own finding of fact on the point. See Equitable Waste Management of Canada v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321 (C.A.).
[20] The evidence of the two OPP officers was not that there was no ice on the surface of the bridge, but rather that they did not notice any. Neither, however, tested the deck for preferential ice by applying their brakes, the inspection technique required to verify its presence. The fact that the two officers failed to notice ice at 7:00 a.m. and that the deck of the bridge was icy at 7:30 a.m. at the time of the Millson accident does not establish an adequate basis to conclude that the ice formed only at that point in time.
[21] There was unchallenged evidence that the temperature of the surface of bridges is likely to be significantly colder than grass temperatures which in turn are likely to be below the air temperature. These temperatures were all falling in the Woodstock area over the night of October 11-12, but very gradually. Even on the respondent’s evidence the temperature of the bridge deck would have likely been below -1 to -3°C by 7:30 a.m. on October 12. In addition, there had been some limited precipitation since the previous day. In these circumstances, it is more probable that the preferential ice formed on the deck of the bridge in the very early morning of October 12 rather than just immediately before the Millson accident at 7:30 a.m.
[22] Patrol 17 is the Nilestown Patrol, immediately to the west of the Woodstock Patrol. At 3:30 a.m. on October 12 the Patrol 17 supervisor was called into work because of poor road conditions. By 4:30 a.m. he had crews out ploughing, sanding and salting on the stretch of Highway 401 for which Patrol 17 is responsible, which includes 25 or 26 bridges. This information was not communicated to the Woodstock Patrol because there appeared to be no snow or ice on the road to the east of Nilestown. However, Mr. Eden candidly testified that this information was something he would want to know because when winter conditions such as these exist in Patrol 17 chances are it may also be a problem for Patrol 16.
[23] Mr. Eden also gave evidence that if he had understood that there was a risk of a bridge deck in his patrol area freezing at night due to dropping temperatures and precipitation he would have ensured that an inspection was carried out.
[24] Richard Hofstetter, the maintenance supervisor for highways in the London District of the Ministry, confirmed this to be the Ministry’s approach – that if there was reason to suspect the potential formation of a dangerous road condition like preferential icing on bridge decks, the Ministry had the obligation to inspect regardless of whether it was summer or winter. Each Patrol supervisor was assigned the responsibility of anticipating from the weather forecasts the risk of ice forming on the bridge decks in his area. Mr. Hofstetter also made clear that in approximately 20 minutes, two employees could inspect all five bridge decks on Highway 401 for which the Woodstock Patrol was responsible, and if preferential ice were found, salt and sand from the inspecting pick-up truck could immediately be spread on it.
The reasons of the trial judge
[25] The trial judge correctly made clear that the assessment of the respondent’s liability must be made in the context of the statutory duty prescribed by s. 33(1) of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50 (the “Act”) and the jurisprudence that has grown up around it. The relevant part of that subsection is as follows:
The King’s Highway shall be maintained and kept in repair by the Ministry and any municipality in which any part of the King’s Highway is situate is relieved from liability therefor …
[26] In addressing the question of liability, the trial judge made no suggestion that the respondent raised any policy-based defence to the claim against it. Nor was any such argument made in this court. Equally, there was no argument that the appellant was contributorily negligent. The findings that she was driving at a speed that was not excessive and that the ice on the bridge was difficult to see would countermand any such suggestion.
[27] At the commencement of his reasons for judgment the trial judge set out his task in the following terms:
The issues are whether there was as a “special and highly dangerous” condition on the overpass where the accident occurred on the morning of October 12, 1988 and whether the defendant knew or ought to have known about that condition.
[28] The trial judge found that the bridge in the case did not have the same propensity to ice up as the bridge in the case of Montani v. Matthews (1996), 1996 CanLII 1387 (ON CA), 29 O.R. (3d) 257 (C.A.) because it was not as long and because it was not built over water. He also found that there was no evidence that it iced up more often than other bridges on Highway 401. He found that the bridge was not a special and highly dangerous situation which required an added measure of attention on the part of the defendant. He went on to reach his ultimate conclusion that the Ministry was not in breach of its statutory duty by finding that prior to the appellant’s accident, the respondent did not have actual knowledge of the icy deck on the bridge nor was there any basis for concluding that the respondent ought to have known about it. He concluded that the respondent neither knew of, nor could reasonably have foreseen, the existence of the preferential ice. Given the absence of actual or constructive knowledge, there was no obligation on the respondent to take any remedial steps and hence no breach of its obligation to keep the highway in repair. He ended his reasons on liability as follows at para. 160:
As a result, the defendant and its employees did not know of the ice on the Highway 401 overpass prior to the accident and they could not reasonably have foreseen that preferential icing would occur. I therefore find that the defendant was not in breach of its duty to keep the highway in repair and it is not liable for the injuries and damages suffered by the plaintiff in the accident of October 12, 1988.
Analysis
[29] The approach used by the trial judge required the appellant to show that the Ministry either actually knew of the presence of the preferential ice on the bridge, or ought to have known that it would be there. In essence, knowledge or constructive knowledge of the actual existence of preferential icing by the Ministry was treated as a precondition for the Ministry’s liability. Without this, the trial judge found that the Ministry had no duty to take remedial action and was not in breach of its statutory duty of repair.
[30] In my view, the trial judge erred in law by proceeding in this way. The duty of repair imposed on the Ministry by the Act is a duty of care. The assessment that is required is not focused on the actual existence of preferential icing. Rather, it must focus on whether the situation gave rise to an unreasonable risk of harm to users of the highway. If so, the question is whether the Ministry took reasonable remedial action once it knew or ought to have known of that situation. See Gould v. Perth (County) (1983), 1983 CanLII 1754 (ON SC), 42 O.R. (2d) 548 (H.C.), aff’d (1984), 1984 CanLII 2060 (ON CA), 48 O.R. (2d) 120 (C.A.).
[31] In other words, the Act and the governing jurisprudence that has developed surrounding it requires an examination of whether in all the circumstances the bridge presented a risk of serious and imminent harm to motorists such that it constituted a special and highly dangerous situation which the respondent knew or ought to have known required special attention.
[32] The case of Millette v. Coté, 1974 CanLII 31 (SCC), [1976] 1 S.C.R. 595 established that a special and highly dangerous situation is required to trigger the Ministry’s obligation to take remedial action pursuant to its statutory duty of care to maintain the highway and keep it in repair.
[33] The judgment of Dickson J. (in essence the majority judgment) acknowledges that there is no general duty on the Ministry to salt or sand highways. Rather the focus must be on whether there exists a special and highly dangerous situation at a certain location on the highway which otherwise to persons reasonably using it was quite passable and usable for traffic. With this concept of a special and highly dangerous situation, the duty on the Ministry to take remedial steps in the discharge of its statutory obligation is kept within reasonably bounds.
[34] In Montani v. Matthews, supra, this court further refined the approach required by s. 33(1) of the Act. That case, like this one, involved a car skidding out of control after encountering black ice on a bridge. The Ministry had applied salt and sand to the bridge at 8:00 a.m. on the day of the accident but not thereafter. While the bridge was ice free at 11:00 a.m., the black ice had formed by 11:30 a.m. when the accident occurred.
[35] Moldaver J.A., writing for the majority, upheld the finding of the trial judge that having regard to the particular conditions that morning the bridge, which had proved extremely hazardous in the past due to its propensity to ice over, presented a special and highly dangerous situation obliging the Ministry to act.
[36] Moldaver J.A. made it clear that it was not necessary for the black ice to have actually formed for a special and highly dangerous situation to arise requiring remedial action by the Ministry. Given all the circumstances, the bridge posed a serious hazard that morning before the ice formed. This was something the Ministry knew or should have known. He found that this constituted a special and highly dangerous situation obliging the Ministry to undertake an intervening sanding and salt of the bridge between 8:00 a.m. and 11:30 a.m. if it was to fulfil its statutory duty to keep the highway in repair.
[37] At pp. 271-272, Moldaver J.A. said this:
The trial judge applied existing law to the facts in this case and found that the Ministry was required to take remedial steps since it knew or ought to have known of a special and highly dangerous situation at a certain location on the highway that created a risk of serious and imminent harm to motorists. It was a virtual certainty that black ice would form on this bridge. Having made this finding, the trial judge was entitled to conclude that the bridge constituted a special and highly dangerous situation.
In my opinion, as a matter of law, there is no need to insist on the actual formation of black ice as a condition precedent to a finding of non-repair.
[38] While on the facts of that case it was a virtual certainty that black ice would form on this bridge, the critical assessment triggering the Ministry’s remedial obligation was that in all the circumstances the bridge presented a risk of serious and imminent harm to motorists and that the Ministry knew or should have known of it. As Moldaver J.A. said at p. 267:
In accordance with the existing jurisprudence, the Ministry is required to take remedial steps when it knows or ought to know of a special and highly dangerous situation at a certain location on the highway that creates a risk of serious and imminent harm to motorists.
[39] Following Montani this court dealt with another similar case in Bisoukis v. Brampton (City) (1999), 1999 CanLII 3825 (ON CA), 46 O.R. (3d) 417 (C.A.) (leave to appeal to the Supreme Court of Canada dismissed August 17, 2000).
[40] In that case Ms. Bisoukis was injured when she lost control of her car on black ice on McVean Road, a road which the City of Brampton had a statutory duty to keep in repair. The black ice had formed when a culvert in a drainage ditch beside the road froze, causing the water in the ditch to back up and spread across the road where it froze. There was no suggestion that the municipality knew of or should have known of the existence of this black ice before the accident occurred.
[41] Nonetheless, Borins J.A. writing for the court found that in all the circumstances, including the thaw/freeze weather conditions that existed at the time and the past tendency in such conditions for culverts along that stretch of McVean Road to freeze and cause black ice, a special and highly dangerous situation existed which the municipality knew or ought to have known of that required its special attention. The potential for freezing created a risk of serious and imminent harm to motorists using McVean Road. It called for the municipality to engage in a timely inspection of the road and its failure to do so constituted a breach of a its statutory duty to keep the road in repair.
[42] As in Montani the existence of the black ice was not a precondition for the finding that there was a special and highly dangerous situation requiring a remedial response. Rather, Borins J.A. focused on whether in all the circumstances at that location on the road there was a situation that the municipality knew of or ought to have known of which created a risk of serious and imminent harm to motorists. If so, the statutory duty of repair required a reasonable remedial response.
[43] Thus the assessment of the respondent’s liability turns on whether, in all the circumstances, the situation at the relevant location on the highway gave rise to an unreasonable risk of harm to users of the highway, whether the Ministry knew of or ought reasonably to have known of the situation and whether it took reasonable remedial steps in response. In the language used by this court in Montani, did the Ministry know, or ought it to have known, of a special and highly dangerous situation at the bridge that created a risk of serious and imminent harm to motorists and, if so, did it respond reasonably.
[44] In my view, the trial judge erred in law by failing to proceed on this basis, but rather hinging his determination of the Ministry’s liability on whether it knew or ought to have known of the actual existence of the preferential ice on the bridge prior to the accident.
[45] Had the trial judge proceeded as the Act and the surrounding jurisprudence requires, in my opinion he would undoubtedly have found the respondent liable for breach of its statutory duty to keep the highway in repair.
[46] There is no doubt that the respondent has long been aware of the phenomenon of preferential icing on bridge decks and the fact that it can create a dangerous condition which may not be apparent to motorists. Moreover, the Ministry knew that the problem is most pronounced at night when the temperature drops to zero degrees or less.
[47] In the week prior to the accident the Woodstock area had experienced unseasonably cold weather. The weather forecasts for the evening of October 11-12 were consistent with this. Frost warnings, air temperatures at or very near 0°C and some precipitation held all the ingredients for preferential icing, particularly given that the temperature of bridge decks is likely to be significantly below the air temperature. Indeed, the respondent’s expert climatologist testified that the Ministry could have concluded from the forecasts that the bridges in the Woodstock area would be subjected to cold temperatures and radiant cooling during the early morning hours of October 12 and as a result there was a risk of preferential icing. In addition, Mr. Eden acknowledged that because of the winter conditions existing in the Patrol immediately to the west which he was not told about, chances were there might also be a weather problem for the Woodstock Patrol.
[48] Thus, given the circumstances affecting the bridge in the early morning of October 12, even if the Ministry did not know of or have constructive knowledge of the actual formation of the preferential ice on the bridge, it ought reasonably to have known of the real risk of this happening.
[49] Moreover, there can be no doubt that the risk of preferential icing constitutes a risk of serious and imminent harm to motorists. The traffic volume over the bridge increases significantly early in the morning as commuters head to work. Preferential ice is both hard to see and unexpected because the adjacent highway is ice free. All this is a lethal set of conditions for drivers.
[50] In summary, it is clear that the Ministry ought to have known of a special and highly dangerous situation at the bridge in the early morning of October 12, 1988 that created a risk of serious and imminent harm to motorists. Its statutory duty of repair therefore required it to undertake a reasonable remedial response.
[51] In the circumstances, that response would have been an early morning inspection. Two employees called in an hour before their regular start time on October 12 could have inspected all five bridges on Highway 401 before 7:00 a.m. and applied salt and sand if necessary. Even if the inspection had been commenced at 7:30 a.m. when the regular shift began it would have been completed before the appellant arrived at the bridge.
[52] The reasonableness of this response to the risk of preferential icing seems obvious. It is an expeditious and effective way to deal with this special and highly dangerous situation. Indeed, Mr. Hofstetter, the Ministry supervisor for the London District acknowledged that where there was a risk of preferential icing the Ministry had the obligation to inspect even if it was still on the summer schedule. Had such an inspection been conducted in the early morning of October12, 1988 I am satisfied that the bridge over Highway 2 would have been salted and sanded prior to the accident and the appellant would not have skidded out of control.
[53] I therefore conclude that the respondent was in breach of its statutory duty of repair and that this caused the appellant’s injuries. Hence, I would allow the appeal on the issue of liability.
[54] The respondent’s only complaint about the damage assessment made by the trial judge is that raised in the cross-appeal. The respondent contests the payments made by OHIP totalling $702,545.67 to medical institutions in Texas where the appellant was treated.
[55] In my view, the challenge to these payments must fail. There was ample evidence to support the finding of the trial judge that, as required by the governing Regulation, the Texas facilities were approved by the General Manager of OHIP for the purpose of providing rehabilitation services of the kind given to the appellant and that these services were reasonable in this case.
[56] In the result, I would allow the appeal with costs, set aside the judgment below and enter judgment for the appellant in the amount assessed by the trial judge together with pre-judgment interest and costs of the trial on a party and party basis. If there is any reason for a different disposition of trial costs this court can be spoken to. Finally, I would dismiss the cross-appeal with costs.
Released: May 24, 2001 “STG”
“S.T. Goudge J.A.”
“I agree S. Borins J.A.”
“I agree Robert J. Sharpe J.A.”