York (Regional Municipality) v. Sury, 2026 ONCJ 496

minicounsel

ONTARIO COURT OF JUSTICE

CITATION: York (Regional Municipality) v. Sury, 2026 ONCJ 496

DATE: 2026 08 19

COURT FILE No.: 4960-999-24-65250000-00

BETWEEN:

Rex (Region of York)

— AND —

Ernest SURY

Before Justice of the Peace J. Martin

Heard on April 20, 21, 23 and June 10, 29, 2026

Reasons for Judgment released on August 19, 2026

Esti Azizi..................................................................................... counsel for the prosecution

The defendant Ernest Sury...................................................................... on his own behalf

JUSTICE OF THE PEACE MARTIN:

[1] Ernest Sury is charged with careless driving causing death on August 20, 2024 in the Region of York. He has pled not guilty to that offence.

[2] Over the course of the five day trial, the prosecution called two civilian witnesses as well as four police witnesses. One civilian witness, Dr. Kimberly Hamilton, was qualified as an expert in the area of forensic pathology. Officer Andrew Seal of the York Regional Police was qualified as an expert in accident reconstruction. The defence called three witnesses, one of which, Kevin Raftery was qualified as an expert witness in accident reconstruction.

[3] Although many witnesses testified, I refer in these reasons only to the evidence that is germane to the issues to be decided. My discussion of the evidence is limited to that which is necessary to explain the findings and conclusions that follow.

[4] Mr. Sury did not testify on his own behalf, as was his right. However, through his cross-examination of witnesses and comments made during the course of the trial, he revealed the principal issues he took with the evidence. It is those issues, where relevant, that are addressed in the analysis that follows.

[5] Date, time, identity and jurisdiction are not in issue. The burden of proof is on the prosecution to prove all of the other elements of the offence beyond a reasonable doubt.

OVERVIEW

[6] On August 20, 2024, Nicholas D’Amato attended a rural property on 17th Sideroad in Schomberg to deliver equipment for landscaping work being performed at that location. Near the property, 17th Sideroad follows a gradual left-hand curve before continuing on a straight alignment to the east. Mr. D’Amato, who was operating a dump truck towing a long float trailer, parked on the straight portion of the roadway east of the property in order to make the delivery.[1]

[7] The evidence established that the shoulder on this portion of 17th Sideroad was very limited. Consequently, Mr. D’Amato’s dump truck and trailer were parked within a live traffic lane rather than entirely off the travelled portion of the roadway. At the time, no cones, warning signs, or other safety markers had been deployed to warn approaching drivers of the stopped vehicle.

[8] Damino Fanelli was working at the rural property that day in Schomberg and was onsite to receive the delivery of equipment from Mr. D’Amato.

[9] Shortly after 8:00 am, following completion of the delivery, Mr. D’Amato returned to the road where his dump truck had been parked, with Mr. Fanelli following several yards behind him.

[10] At this time, Mr. Sury was travelling eastbound on 17^th Sideroad in his black Dodge Ram motor vehicle. His motor vehicle struck the rear ramps of the float trailer before becoming airborne and tragically striking Mr. D’Amato as he walked back to the cab of his truck.

GENERAL PRINCIPLES

[11] Careless driving is a strict liability offence: R. v. Shergill [2016] O.J. No. 1503, leave to appeal refused 2016 ONCJ 163, [2016] O.J. No. 4294. There is no obligation on the Crown to establish a mens rea element on a careless driving prosecution. Establishing proof of the prohibited act is sufficient to ground a conviction unless the accused demonstrates that they took reasonable steps to avoid the event: R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 SCR 1299.

[12] Section 130(3) of the Highway Traffic Act states the following:

Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway or in a specified place without due care and attention or without reasonable consideration for other persons using the highway or specified place and who thereby causes bodily harm or death to any person.

[13] A plain reading of Section 130 of the Highway Traffic Act makes clear that there are two ways that a driver can drive carelessly. First, by failing to drive with due care and attention. Second, by failing to give reasonable consideration for others using the highway: R. v. Kanagaratnam, 2025 ONCJ 290[2]

[14] The fact of an accident is rarely sufficient on its own to establish the actus reus. However, a finding of guilt will result where the prosecution has proven beyond a reasonable doubt that the voluntary acts of the accused were such that but for carelessness the collision would not likely have occurred.[3]

[15] In Shergill, supra, the POA Appeal Court confirmed that the gravamen of the offence is inadvertent negligence. If the conduct of the defendant falls below the standard expected of a reasonable prudent driver in the circumstances, then it is negligent and deserving of punishment under the careless driving provisions. If it does not fall below the standard expected of a reasonable person, then it is not negligence and does not amount to a lack of due care and attention[4]

THE ISSUES:

[16] There are several issues that need to be addressed.

(1) Is the court satisfied beyond a reasonable doubt that the motor vehicle collision caused Mr. D’Amato’s death, or does the evidence leave a reasonable doubt that his death resulted from some other cause?

(2) Has the Crown proven beyond a reasonable doubt that the defendant was driving carelessly pursuant to section 130(3) of the Highway Traffic Act?

ISSUE: WAS MR. D’AMATO’S DEATH CAUSED BY THE MOTOR VEHICLE COLLISION?

[17] Damino Fanelli testified that as he walked to Mr. D’Amato’s dump truck to assist with the clean up of the flatbed, he witnessed the motor vehicle collision from his vantage point on the road.[5] He stated that he witnessed the motor vehicle strike the ramps of the float trailer before becoming airborne and eventually striking Mr. D’Amato as he walked towards the cab of his truck.

[18] Mr. Fanelli immediately ran to the aid of Mr. D’Amato who was lying face down on the asphalt in a pool of blood.

[19] Mr. Fanelli’s recollection of events was corroborated by officer Andrew Seal, an accident reconstructionist with the York Regional Police.[6] Through investigation, officer Seal concluded that the right passenger side tires of the Dodge Ram drove up the left side of the float trailer ramp. With the passenger side of the Dodge elevated, it continued forward and struck Mr. D’Amato who was standing near the rear driver side tires of the dump truck. This impact caused Mr. D’Amato to be thrown approximately 26.5 m forward.

[20] Sandra Winston-Burr resides at a property northeast of the home Mr. D’Amato was delivering equipment to on August 20^th.[7] The rear of Mr. D’Amato’s trailer was parked directly south of her driveway.[8] She stated that she heard someone scream “Nick”, followed by a loud bang. She immediately ran to the scene, briefly speaking with Mr. Sury before attempting to render aid to Mr. D’Amato.

[21] Dr. Kimberly Hamilton is a pathologist who testified as an expert in forensic pathology. She performed the autopsy on Mr. D’Amato following the collision and determined that the cause of death was the result of multiple blunt force trauma.[9]

[22] Dr. Hamilton testified that, upon conducting the autopsy, she observed that Mr. D'Amato's heart and liver were somewhat enlarged for a person of his age and weight. She further identified natural disease processes, including hypertensive and atherosclerotic heart disease. Toxicological analysis detected the presence of acetaminophen and a prescription painkiller in Mr. D'Amato's system

[23] Dr. Hamilton opined that Mr. D'Amato was alive at the time of impact. In support of that opinion, she testified that had Mr. D'Amato died from heart disease before the collision, the injuries he sustained would not have demonstrated evidence of hemorrhaging.

[24] Dr. Hamilton testified that Mr. D'Amato sustained extensive injuries as a result of the collision.[10] In her opinion, those injuries were fatal. She concluded that Mr. D'Amato would have died from the injuries he sustained regardless of the condition of his heart and liver before the collision

[25] No evidence was called by Mr. Sury to dispute the testimony of the three witnesses; however each were questioned regarding observations and comments.

[26] During cross-examination, Mr. Fanelli was questioned about an alleged statement he was said to have made to Mr. Sury following the collision, namely that Mr. D'Amato "should not have been here because he almost got crushed by a tailgate." Mr. Fanelli denied making the statement

[27] During cross-examination, Ms. Winston-Burr was asked about an alleged conversation with Mr. Sury shortly after the collision. Specifically, she was asked whether she had told Mr. Sury that Mr. D'Amato had pins in his body. Ms. Winston-Burr denied having made any such statement and testified that she did not observe any pins while assisting Mr. D'Amato at the scene.

[28] Dr. Hamilton testified that the autopsy disclosed no evidence of any pre-existing injury. She explained that any prior injury capable of contributing to or causing death would have been identified during the examination. She further testified that she observed no surgical pins or other signs of prior surgery.

[29] Mr. Sury suggested through cross-examination that Mr. D'Amato's death may have been attributable to a pre-existing injury or medical condition unrelated to the collision. Those suggestions find no support in the evidence. The witnesses who were questioned on the issue rejected the factual basis underlying those propositions, including Ms. Winston-Burr, a witness called by the defence. In addition, Dr. Hamilton's uncontradicted expert evidence was that the autopsy disclosed no prior injuries, no surgical pins, and no evidence of any pre-existing condition capable of causing death. She further testified that any such injury or condition would have been identified during the examination. On the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. D'Amato died as a result of the injuries sustained in the collision. I reject the suggestion that his death was caused or materially contributed to by any unrelated pre-existing injury or medical condition.

ISSUE: DOES MR. SURY’S DRIVING AMOUNT TO CARELESS DRIVING?

[30] On the morning of August 20^th, 2024, the weather was clear, sunny and the roads were dry. At the time of the motor vehicle collision, 17^th Sideroad had a posted speed limit of 60 km/hr in each direction.

[31] Officer Anthony Pileggi conducted a post-collision mechanical examination of the Dodge Ram on August 28, 2024.[11] His examination revealed that all manufacturer recalls had been completed and remedied to the manufacturer's satisfaction. He found the vehicle's braking system to be functioning properly and determined that the tires were in satisfactory condition overall. His evidence was unchallenged. I accept his findings and am satisfied that the collision was not caused by any mechanical defect or failure of the Dodge Ram.

[32] Following the offloading of the final piece of equipment, Mr. Fanelli testified that he returned to the roadway with the intention of assisting Mr. D'Amato in cleaning the trailer. He observed a white SUV travelling eastbound approach the obstruction, slow its speed, and safely navigate around the dump truck and trailer after being waved through by Mr. D'Amato.[12] Shortly thereafter, he observed Mr. Sury’s black Dodge approach from the same direction. Based on his observations, Mr. Fanelli believed the Dodge was travelling noticeably faster than other vehicles encountering the same roadway conditions and was not reducing its speed sufficiently to avoid a collision.[13]

[33] Officer Seal's analysis of the Dodge's airbag control module provided objective evidence consistent with Mr. Fanelli's observations. The module recorded vehicle data for the five seconds preceding the vehicle coming to rest after the collision. That data demonstrated that the Dodge was accelerating as it approached the trailer, increasing in speed from 63 km/h to 71 km/h.[14] Officer Seal testified that impact occurred at -0.8 seconds on the recorded timeline and that the vehicle came to rest at 0.0 seconds. He also found no steering input suggestive of any evasive action having been taken by Mr. Sury before the collision.

[34] Mr. Raftery's evidence also supported the conclusion that Mr. Sury's vehicle had reached a speed of 71 km/h prior to the collision. However, his analysis proceeded on the premise that impact with the trailer occurred at 0.0 seconds. Based on that premise, he concluded that Mr. Sury had applied the brakes before striking the trailer. In cross-examination, Mr. Raftery acknowledged that the impact actually occurred at -0.8 seconds on the event timeline. He conceded that this would require his calculations to be shifted by 0.8 seconds and that his conclusion regarding pre-impact braking was therefore dependent upon an incorrect assumption.

[35] On the totality of the evidence, I am satisfied that Mr. Sury was travelling at approximately 71 km/h immediately before the collision. I accept Officer Seal's evidence, which was grounded in the objective electronic data recorded by the Dodge's airbag control module, that the vehicle accelerated from 63 km/h to 71 km/h as it approached the trailer. Although Mr. Raftery's opinion regarding pre-impact braking was based on an incorrect assumption as to the timing of the collision, his evidence nevertheless supported the conclusion that the vehicle attained a speed of approximately 71 km/h prior to impact. This evidence, together with Mr. Fanelli's observations, satisfies me that Mr. Sury was travelling at a speed greater than the posted speed limit.

[36] Mr. Fanelli, Officer Joshua Huynh, and Ms. Winston-Burr each testified that the sun was bright and relatively low in the sky on the morning of the collision. Ms. Winston-Burr described the sun as "blinding." Mr. Fanelli similarly observed that the sun was bright, although he testified that its position did not affect his ability to see the trailer. Officer Huynh arrived at the scene approximately twelve minutes after the collision.[15] He testified that, despite the brightness of the sun, his ability to see the roadway was not impaired and that he did not find it necessary to wear sunglasses or lower his visor.

[37] Both Officer Seal and Mr. Raftery addressed the potential impact of sunlight on a motorist's ability to perceive hazards on the roadway in their respective reconstruction reports. As part of his investigation, Officer Seal drove the eastbound route on the day following the collision at approximately the same time that Mr. Sury had travelled the route the previous day.[16] The video recorded during that drive illustrates the varying light conditions along the roadway, including alternating areas of sunlight and shadow created by roadside trees. It also depicts a significant shadow across the roadway in the vicinity of where Mr. D'Amato's truck was parked. Officer Seal further noted that the Mr. Sury’s sun visor had been lowered at the time of the incident.[17]

[38] Upon considering these observations, Officer Seal concluded that sunlight was not a significant contributing factor to the collision. In his opinion, the sun was positioned sufficiently high in the sky, the downward grade and curvature of the roadway increased the angle of sight lines available to Mr. Sury, and the lowered sun visor would have further reduced any effects of sun glare.

[39] Mr. Raftery concluded that sunlight was a significant contributing factor to the collision.[18] Based on his analysis, he opined that Mr. Sury was travelling directly into the morning sun and would have been exposed to substantial sun glare. He further concluded that the sun's relatively low position in the sky created pronounced shadows along the roadway. In particular, he identified a shadow cast by a tree located south of the roadway that enveloped the dump truck and float trailer in a darker area, thereby reducing their conspicuity to approaching motorists. In Mr. Raftery's opinion, the combined effect of direct sun glare and the contrast between bright sunlight and deep shadow would have impaired a driver's ability to detect the parked vehicles, with the glare remaining significant for several seconds.

[40] Having considered the lay and expert evidence, I am satisfied that sunlight was a factor on the morning of the collision, although the evidence differs as to the extent of its impact. The observations of Mr. Fanelli, Ms. Winston-Burr, and Officer Huynh establish that the sun was bright and relatively low in the sky. The reconstruction evidence further confirms that motorists travelling eastbound encountered alternating areas of bright sunlight and shadow along the roadway. While Officer Seal concluded that sunlight was not a significant contributing factor, Mr. Raftery reached the opposite conclusion, finding that the combination of direct sun glare and shadow substantially reduced the visibility of the parked dump truck and trailer. In my view, the evidence supports the conclusion that Mr. Sury was affected by sunlight to some degree as he approached the collision scene.

[41] Even accepting Mr. Raftery's opinion at its highest, however, Mr. Sury’s obligation to operate his vehicle safely remained unchanged. Mr. Raftery concluded that Mr. Sury would have been exposed to substantial sun glare for several seconds immediately before the collision. If that opinion is accepted, then Mr. Sury was aware, or ought to have been aware, that his ability to perceive hazards ahead was significantly compromised. In such circumstances, a reasonably prudent driver would be expected to respond by reducing speed and exercising heightened caution. Instead, the evidence establishes that Mr. Sury continued to travel in excess of the posted speed limit. Further, the fact that Mr. Sury had lowered his sun visor demonstrates that he recognized the presence of sunlight and was actively attempting to mitigate its effects. Despite this awareness, he did not adjust his speed to account for the reduced visibility conditions. Whether sunlight was a minor factor, as suggested by Officer Seal, or a significant factor, as concluded by Mr. Raftery, it does not excuse Mr. Sury’s failure to modify his driving in response to a known visibility hazard.

[42] Mr. Raftery also prepared a memorandum addressing the applicability of Ontario Traffic Manual (OTM) Book 7 to the circumstances of this case.[19] In that memorandum, he opined that the absence of traffic control measures contributed to the collision because approaching motorists, including Mr. Sury, were not provided with advance warning of the hazard ahead. He further expressed the view that the guidance contained in OTM Book 7 was applicable to the work being performed at the scene on the day of the collision.

[43] During cross-examination, the Crown challenged this opinion, noting that OTM Book 7 is intended to provide guidance and recommended practices rather than legally binding standards. While I accept Mr. Raftery's expertise in the field of collision reconstruction, I note that he was not qualified as an expert in the development, interpretation, or application of Ministry of Transportation policies and standards. Accordingly, I treat his observations regarding OTM Book 7 as informative context rather than expert opinion evidence on the requirements imposed by that manual.

[44] During Mr. Fanell’s cross examination, he was challenged regarding applicable safety measures required that day for the delivery. He testified that because the work being completed was a delivery, OTM Book 7 suggestions were not required.

[45] Defence witness Darren Kowal, a Ministry of Labour investigator, attended the scene as part of his investigation into the circumstances surrounding the collision. One aspect of his investigation involved determining whether traffic protection measures were required pursuant to s. 67 of Ontario Regulation 213/91 made under the Occupational Health and Safety Act. Following his investigation, Mr. Kowal concluded that the activity being undertaken, namely the delivery of materials, did not constitute roadwork and therefore did not engage the requirements of s. 67 of the Regulation. As he found no contravention of the legislation, no charges were laid.

[46] Having considered the evidence of Mr. Raftery, Mr. Fanelli, and Mr. Kowal, I am not satisfied that there was any legal requirement for the placement of traffic control devices, warning signs, or other safety markers at the location on the day of the collision. The evidence establishes that the activity being undertaken was the delivery of materials rather than roadwork, and the applicable legislative and regulatory provisions were found not to require such measures in the circumstances. That said, the absence of a legal obligation does not preclude the conclusion that additional warning devices may have represented a prudent safety precaution. Common sense suggests that advance warning signage or markers could have enhanced the visibility of the parked vehicles and alerted approaching motorists to the hazard ahead. However, the issue before the court is not whether additional precautions might have been beneficial, but whether their absence rendered the hazard unavoidable.

[47] Exhibits 3(a), 3(b), and 3(c) are surveillance videos tendered by the Crown. The videos were captured by a camera mounted on the residential property where Mr. Fanelli was performing landscaping work and to which Mr. D'Amato had delivered materials that morning. The camera faces north toward 17th Sideroad and records traffic travelling along the roadway. Of particular relevance, the videos depict eastbound traffic proceeding from left to right as vehicles emerge from the curve in the roadway and continue toward the location where the dump truck and float trailer were parked.

[48] At approximately 8:11:50 a.m., a red sedan is seen exiting the curve and continuing eastbound. At 8:16:49 a.m., the white SUV described by Mr. Fanelli appears in the video travelling in the same direction. Seven seconds later, at 8:16:56 a.m., Mr. Sury’s Dodge pickup truck enters the frame travelling eastbound.

[49] The videos are significant because they capture multiple motorists traversing the same stretch of roadway under substantially similar lighting conditions immediately before the collision. Between the passage of the red sedan at 8:11:50 a.m. and Mr. Sury’s vehicle at 8:16:56 a.m., eight eastbound vehicles successfully negotiated the curve and continued past the location of the parked dump truck and trailer without incident. This evidence demonstrates that, notwithstanding the presence of sunlight, shadows, and the absence of additional traffic control measures, the roadway hazard was observable and capable of being safely navigated by approaching motorists.

CONCLUSION

[50] Having considered the evidence as a whole, I am satisfied beyond a reasonable doubt that Mr. Sury’s manner of driving constituted a marked departure from the standard of care that a reasonably prudent driver would have exercised in the circumstances. I am further satisfied beyond a reasonable doubt that the collision resulting from that driving caused the death of Mr. D'Amato. The evidence does not give rise to a reasonable doubt that his death resulted from any other cause. Accordingly, the Crown has proven each essential element of the offence of careless driving causing death. My reasons for reaching these conclusions are set out below.

[51] The evidence of Mr. Fanelli, Officer Seal, and Dr. Hamilton establishes a direct causal connection between Mr. Sury’s vehicle striking the trailer, the subsequent impact with Mr. D'Amato, and the fatal injuries that he sustained. Although suggestions were put to various witnesses that pre-existing medical conditions or prior injuries may have contributed to his death, no evidence was called to support those propositions. Dr. Hamilton's expert evidence was clear that Mr. D'Amato was alive at the time of impact and that the multiple blunt force injuries he sustained were independently fatal. I therefore find that the only reasonable conclusion available on the evidence is that Mr. D'Amato died as a result of the injuries caused by the collision.

[52] I also find that Mr. Sury failed to operate his vehicle with the degree of care, attention, and caution that a reasonably prudent driver would have exercised in the same circumstances. The evidence establishes that he approached the obstruction at a speed exceeding the posted speed limit and continued accelerating as he neared the parked dump truck and trailer. Whether the effects of sunlight are viewed as minimal, as suggested by Officer Seal, or significant, as concluded by Mr. Raftery, the circumstances plainly called for increased caution. Instead, Mr. Sury failed to sufficiently reduce his speed, failed to maintain a proper lookout, and failed to react appropriately to conditions that were readily apparent on the roadway ahead.

[53] In reaching this conclusion, I attach considerable weight to the surveillance video evidence. In the minutes immediately preceding the collision, numerous eastbound motorists encountered the same stretch of roadway, the same curve, the same parked dump truck and trailer, and substantially the same lighting conditions. Each was able to perceive the hazard and navigate it without incident. In particular, the white SUV observed by Mr. Fanelli slowed its speed and safely proceeded past the obstruction moments before Mr. Sury arrived. There is no evidence that the roadway conditions or the position of the sun changed in any meaningful way between the passage of those vehicles and the arrival of Mr. Sury. The fact that multiple motorists successfully negotiated the hazard under substantially identical conditions strongly supports the conclusion that the obstruction was visible and avoidable to a driver exercising reasonable care.

[54] I accept that sunlight and shadow were present and may have affected visibility to some extent. I also accept that additional warning devices or traffic control measures may have provided an added measure of safety. However, the evidence satisfies me that neither factor rendered the hazard unavoidable. Mr. Sury was operating a motor vehicle in circumstances that required heightened vigilance. Had he reduced his speed and maintained a proper lookout, as the other motorists did, the collision would likely have been avoided. His failure to do so constituted careless driving and directly resulted in the fatal injuries sustained by Mr. D'Amato.

[55] For these reasons, I find Mr. Sury guilty of careless driving causing death.

Released: August 19, 2026

Signed: Justice of the Peace J. Martin

1See Exhibit 1: Aerial view of 17^th Sideroad

2R. v. Kanagaratnam, supra, at para 46

3R. v. Kanagaratnam, supra, at para 47. Citing R. v. Beauchamp, 1952 CanLII 60 (ON CA), [1953] O.R. 422 (C.A.); R. v. McIver, 1965 CanLII 26 (ON CA), [1965] 4 C.C.C. 182 (Ont. C.A.), aff’d 1966 CanLII 6 (SCC), [1966] S.C.R. 254 (S.C.C.).

York (Regional Municipality) v. Sury, 2026 ONCJ 496

Case Summary

York (Regional Municipality) v. Sury, 2026 ONCJ 496

Case Summary