CITATION: Urso v. Greater Sudbury (City), 2017 ONSC 1746
DIVISIONAL COURT FILE NO.: 1019-15
DATE: 2017-03-23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Gerald Urso and Elise Urso
Plaintiffs/Respondents
– and –
City of Greater Sudbury
Defendant/Appellant
Gerald Urso and Elise Urso, acting in person
M. Leef, for the Appellant
HEARD: March 8, 2017
REASONS FOR JUDGMENT
A.D. KURKE, J.
Overview
[1] The appellant appeals against the Small Claims Court judgment of Deputy Judge Victor Vere of November 17, 2015, in which he found the appellant liable in negligence for damage caused to the respondents’ vehicle, and awarded damages of $3,026.48 as against the appellant.
[2] For the following reasons, the appeal is dismissed.
Facts
[3] This was a straightforward case. There were two witnesses called on the trial of this matter.
[4] Elise Urso (“Urso”) testified for the respondents and described the incident that damaged her Toyota vehicle. At about 11:30 a.m. on May 22, 2013, Urso was driving her vehicle in Sudbury. While making a slow turn at the intersection of Douglas and Regent Streets, her vehicle dropped into a hole in the street which was filled with water, effectively disguising its depth. Urso noted no flashing warning devices in place, or sandbags in the hole at that time. Her almost-new car suffered considerable damage to its undercarriage, as recorded in dealership repair invoices that were filed, totalling $3,026.48.
[5] Photographs of the damaged vehicle showed traces of orange colouring on the licence plate and the undercarriage. While Urso did not know the origin of the colour, she speculated that it could have come from paint on the road by which the city indicates impending roadwork, or was the colour of the car’s frame with its painted covering scraped off by the accident, or was caused by contamination by leaking oil.
[6] Between 6:00 p.m. and 7:00 p.m. that day, Urso and her husband returned to the scene where her husband took photos of the hole, which at that point had two sandbags in it. There was no broken flasher in the photos, or debris from broken flashers. Urso observed that the next morning there was a flashing warning light in the hole, and by the next evening the hole had been filled in.
[7] Paul Javor (“Javor”), a City employee, was the appellant’s sole witness. He described the appellant’s practice of putting “flashers”, also called “tiger tail” warning devices because they are painted orange and black, at places in the road that required repair, as a warning to motorists pending the filling of potholes. Through Javor, the appellant filed several “Crew Cards”, documentary business records generated by the appellant’s “trouble investigators”, whose job it is to address problems that cause concern on city streets:
a. Crew Card 1155801, from May 22, 2013, indicates that at time 0200, employee Richard Grotek noted “Douglas @ Regent → Asphalt cut around MH9-599 (Sanitary) is in bad shape & it has a deep pothole → put a flasher with a sand bag in the pothole → in bad shape for awhile → needs immediate attention”;
b. Crew Card 1155800, from May 22, 2013, indicates that at 8:45 p.m., city employees Mike Copeland (?) and Todd Feilding [sic] “replaced damaged flasher in patch marking large holes in patch surrounding [illegible] in the intersection of Douglas and Regent. * Patch needs gravel/cold mix asap”.
[8] Neither Grotek nor Copeland nor Fielding was called to testify at trial. Rather, the appellant simply relied on the Crew Cards as representative of the facts contained therein. The appellant produced no photographs of the damaged flasher or of any flasher, nor of any debris in the intersection, nor could Javor describe with any certainty what material the flasher at the intersection was made from. When the court asked appellant’s counsel about the absence of debris in the photographs, counsel replied that the photographs came only from the respondents, as “[t]he [appellant] didn’t go to the intersection and take its own photographs.” Rather, appellant’s practice is to document its work on Crew Cards, which recorded the 0200 attendance and the 8:45 p.m. attendance, and provided little other information.
[9] Javor testified that five complaints had been called in about the pothole at that intersection on May 21, 2013, and the pothole was repaired May 23, 2013. The hole was of sufficient concern that it was noted on the Crew Card from May 22, 2013, at 0200. Javor denied that the appellant used orange paint when it made cuts in roads or repaired potholes. There was no record of the appellant being contacted by anyone on May 22, 2013 to report a broken flasher at the location.
The trial judge’s reasons
[10] The deputy judge’s reasons were focused and succinct. He began by indicating that he had reviewed his trial notes, the pleadings, the exhibits, and the parties’ submissions, and had read the authorities to which he had been directed. He stated, “I do not intend to refer to all the evidence in these reasons, but deal with those aspects of the case most relevant to this trial.”
[11] The deputy judge summarized Urso’s evidence and found it “key” to her testimony that “there was no flashing warning device in place at this site”, although there was a flasher in place shortly afterwards. The deputy judge was plainly impressed by Urso’s testimony, finding the witness truthful, articulate, not prone to exaggeration, and that her evidence was forthright. He found no support for any of the appellant’s claims that Urso was herself negligent.
[12] Although the appellant’s theory was that Urso had struck the “tiger tail” warning device with her car, the deputy judge “found no reason to disbelieve her testimony” that there was no tiger tail at the site at the time of the accident. There were no city reports of debris of a tiger tail, and nothing in the repair reports concerning the Urso car that supported such a claim. The deputy judge pointed to Urso’s testimony that the appellant used orange paint to mark roadwork as a possible explanation for the orange marking on the Urso car, and noted no evidence of black paint from the tiger tail on the Urso vehicle. He concluded, “the orange on the Urso vehicle is not proof of Mrs. Urso striking a tiger tail flasher.”
[13] Based on authority provided at trial, the deputy judge considered the appellant’s duty to “provide extra cautionary measures only where the conditions of the road and the surrounding circumstances do not signal to the driver the possibility that a hazard is present.” He found the pothole to represent a hazard, and Urso to have been a “reasonable driver who exercised the appropriate standard of car required of her.”
[14] The deputy judge considered the many reports about a significant pothole at this site the day prior to the accident, and that prior repairs had been made at the same location. While it “was given in evidence that a tiger tail had been placed at this site to warn motorists of the hazard”, Urso was adamant that that there was none there at the time of her accident. The deputy judge held, “I found no evidence to contradict her testimony.” Rather, the appellant “did place a tiger tail flasher unit at the site apparently after the Urso incident.”
[15] Plainly, the deputy judge was satisfied that there was a duty to warn, and that the appellant had failed in that duty. $3,026.48 in damages was ordered against the appellant.
Grounds of appeal
[16] The appellant submits that the deputy judge erred:
a. In fact:
i. by not finding that a tiger tail warning device had been erected at the intersection in question prior to the incident;
ii. by finding that there were no reports of debris at the intersection; and
iii. by finding that the orange on the respondents’ vehicle was consistent with the orange colour left on city streets when work or cuts were to be made.
b. In law:
i. by finding that the appellant was negligent; and
ii. by providing reasons that were insufficient or unresponsive to the live issues of the case.
[17] I would not give effect to any of these grounds of appeal.
Standard of review
[18] With respect to a trial judge’s findings of fact, an appellate court should not interfere absent a finding of “palpable and overriding error”. Such an error is one that is “plainly seen” and “determinative with respect to [the] factual issue”. Given a trial judge’s privileged position to observe the witnesses and evidence first-hand, “the expertise and insight of the trial judge in this area should be respected”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 6, 10, 18; Tosti v. Society of the Madonna, 2011 ONSC 339, 275 O.A.C. 108, at para. 22.
[19] With respect to errors of law, the standard of review is correctness, and an appellate court may substitute its view for that of the trial judge: Housen, at paras. 8-9.
Law and analysis
Alleged factual errors
[20] I see no palpable or overriding error in the deputy judge’s factual analysis. Rather, the appellant’s decision to defend the case by business records instead of by witnesses and visual evidence dictated the result of a contest in which the respondents produced viva voce testimony and photographs for the trial judge’s consideration.
[21] The deputy judge explained why he accepted the evidence of Urso concerning the accident, and the absence of a flashing warning device at the scene. In contrast to that viva voce testimony, he had the business records filed by the appellant. The appellant sought to persuade the trial judge that Urso must have struck a tiger tail flasher, based on city records about placement of flashers, and based on orange marks on her licence plate and undercarriage.
[22] With respect, though the Ontario Evidence Act, R.S.O. 1990, c. E.23, s. 35(2), permits the admission into evidence of business records, it does not require a judge to attach to those records the interpretation or weight most favourable to the party presenting them. The Crew Cards document some information, but many questions remained unanswered, such as the following:
a. When was the flasher put into the pothole originally? At 0200 on the date of the Urso accident, or at some later time? Before or after the Urso incident?
b. Was Grotek indicating that he installed a flasher at the time of his observation, or was he merely noting that someone else should install one, or that he would do so later?
c. Did someone else remove the flasher before the Urso incident?
d. What was the damage to the flasher observed at 8:45 that evening? Was it consistent with being struck by Urso’s car?
e. Was paint lost from the flasher that found its way onto Urso’s car?
[23] In the absence of fuller evidence from actual witnesses, the deputy judge was entitled, on the sworn evidence of Urso, to find that there was no flasher at the scene when Urso drove into the hole.
[24] Business records may be entered into evidence at Common Law or pursuant to the Evidence Act, and can be prima facie proof of the facts contained therein. However, the records themselves may be unclear or unreliable, or rendered nugatory by other evidence in the case: see, for example, R. v. Smith, 2011 ABCA 136, 510 A.R. 37, at para. 35. Indeed, the potential to challenge the facts contained in records or call live evidence as a supplement to records whose facts are contested or uncertain permits a corrective or a more accurate assignment of weight to them: see R. v. Monkhouse, 1987 ABCA 227, 83 A.R. 62; R. v. Laverty, [1979] O.J. No. 442 (C.A.), at para. 13.
[25] It is clear that the deputy judge accepted Urso’s testimony, and found little assistance in the Crew Cards. The deputy judge went on to note the absence of any evidence supportive of the appellant’s assertion that Urso had struck the flasher. The deputy judge was entitled, on the evidence of Urso, to find that the appellant used orange paint to mark intended roadwork. However, that finding by the deputy judge, based on a guess by Urso, is of little moment. Orange markings on a vehicle do not require a finding that Urso struck a flasher; without more, such as scientific paint comparisons, or at least a photograph of a flasher put into evidence by the appellant to allow comparison of the orange hues on the flasher and on the Urso vehicle undercarriage, the appellant’s claim is nothing more than speculation, and rightly discarded by the deputy judge.
[26] The acceptance of Urso’s testimony about the absence of a flasher was within the discretion of the deputy judge. The 0200 Crew Card, without more, given so many areas of indeterminacy in it, offered little of substance to contradict the viva voce testimony of Urso, whose evidence was made more reliable by being under oath and tested by cross-examination.[^1]
[27] Likewise, the deputy judge did not err in noting the absence of flasher debris at the scene. “Debris” was distinct from the damaged flasher that was later found by city staff at the location, which was acknowledged by the deputy judge as a flasher placed at the scene after the fact. There was evidence that no “debris” was visible in the Urso photographs of the scene, and it was not the appellant’s practice to conduct its own scene autopsy – it had no photographs of its own to offer. Debris at the scene would have offered some additional evidence that Urso could have run over the flasher, and thereby could have helped establish that a flasher was already in place at the time of the accident.
Negligence
[28] As to negligence, the prior repairs, the repeated calls the day before the incident about the hazard represented by the pothole, and its recognition as a hazard by city employees on the Crew Cards, required the appellant to warn motorists about the danger. The facts of the case satisfy the requirement in Housen, at para. 117, which states that “[a] municipality is expected to provide extra cautionary measures only where the conditions of the road and the surrounding circumstances do not signal to the driver the possibility that a hazard is present”: see also Cantlon v. Timmins (City), [2006] O.J. No. 1918 (Sup. Ct.), at paras. 113-119. In this case, the deputy judge correctly held that the appellant had a duty to warn motorists about this deep hole, which he found constituted a hazard. He also found Urso to be a “reasonable driver who exercised the appropriate standard of care required of her”.
[29] The deputy judge found that there was no warning flasher at the time of the Urso incident, and that finding was open to him on the evidence in the case. It is clear from the deputy judge’s reasons that his finding of negligence hinged on the presence or absence of a warning flasher, and this reasoning is correct.
Sufficiency of Reasons
[30] The appellant complains that the trial judge did not sufficiently explain his reasons for not accepting the evidence of the Crew Cards as conclusive that Urso had damaged her car when she struck the tiger tail warning signal.
[31] A trial judge’s reasons must be adequate to justify and explain the result in the case, to tell the losing party why he or she lost, to provide for informed consideration of the grounds of appeal, and to satisfy the public that justice has been done: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 98. However, what is required is a functional approach, involving responsiveness to key issues and arguments. A failure by the trial judge to express himself well or clearly or as comprehensively as a party might wish is not sufficient to justify appellate intervention: F.H., at paras. 99-100.
[32] The circumstances of the proceeding, the evidence, and submissions can all play a significant part in the determination of the sufficiency of reasons. While it may sometimes be essential for a trial judge to explain in reasons why he or she accepted the evidence of one witness and rejected that of another, in other circumstances the explanation may be gleaned from the entirety of the record, or the clear acceptance of some evidence instead of contrary evidence in the case. In other words, the explanation for a trial judge’s preference of some evidence over other evidence may become clear from the course of proceedings, or from decisions on key evidence that imply findings about other evidence: R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. v. Campbell, 2017 ONCA 209, at paras. 15-17.
[33] It is important in this context to consider some of the deputy judge’s interactions with witness Javor and appellant’s counsel during the course of the trial.
[34] On occasions in the transcript of proceedings at trial, the deputy judge expressed concern in contrasting the respondents’ evidence with that offered by the appellant:
a. In questioning witness Paul Javor (from Proceedings at Trial, October 28, 2015, pp. 45-46):
THE COURT: I have one question for you.
Answer: Certainly
THE COURT: You heard the testimony of Ms. Urso, and she speaks nothing
of a flasher at that site at the time of her incident.
Answer: Correct.
THE COURT: And then she indicated in her testimony that later when they
re-attended at a later time, she didn’t know when, that there’s a flasher there.
Answer: Yes.
THE COURT: So somebody acted after the fact?
Answer: That’s correct.
THE COURT: It would appear that way, wouldn’t it?
Answer: Well it would – I mean, from what we have prior to the incident,
we did put a flasher. Whether that flasher was still there before – when
the incident occurred, I guess, is unknown. But at some point, we…
THE COURT: Well, it might be unknown to some extent, but the plaintiff
In this action indicated that there was none there – and the photographs
don’t show any there, and they don’t show any broken damage.
Answer: Correct.
THE COURT: Broken or damaged flasher. You saw the photographs?
Answer: Yes.
b. Discussion with appellant’s counsel during his submissions (from Proceedings at Trial, October 28, 2015, pp. 54-55)
MR. LEEF: …I think that places us into the realm of duty to warn… . The crew cards document that workers attended at the intersection at 2:00 a.m. and set up the flasher with sandbags; the flasher, which the evidence is, was painted orange and black. And then, that the city had to re-attend at 8:30 p.m. to replace a damaged flasher.
THE COURT: That causes me some problems in the evidence.
MR. LEEF: Okay.
THE COURT: We’ve seen the photographs; we’ve heard the testimony of the party who was present when the photographs were taken. We know the dates, we know the approximate time; where is the flasher that was damaged? What do I do with that evidence?
MR. LEEF: Well, Your Honour, with respect these are photographs that were provided by the plaintiff. The defendant didn’t go to the intersection and take its own photographs. What the defendant did do is record that they went to the intersection later that day and there was a damaged flasher there. There is no record of the city placing a flasher there other than at 2:00 a.m.
THE COURT: Do we know that those records are – well, they reflect what may have been done, or what is purported to have been done. As to times, are they accurate, always? Covers the spectrum of the shift?
MR. LEEF: Right.
THE COURT: A shift is 8 hours, 12 hours?
MR. LEEF: Okay, if I can just grab one of the crew cards then. At the absolute latest, Mr. Grotek would have started his shift at 2:00 a.m.
THE COURT: Yes.
MR. LEEF: The time he arrived at Douglas.
THE COURT: Yes.
MR. LEEF: Even if it was an 8-hour shift, he would have been done at 10. So it would have been there by 10:00 a.m. at the latest, even if he was off in his estimate by 4 hours. The plaintiff came along between eleven-thirty and noon.
THE COURT: And what do we know about the flasher between the latest possible moment of that shift and the time that the plaintiff arrives with her vehicle? Are you suggesting – are you making any comment regarding the credibility of the witness; the plaintiff?
MR. LEEF: I think that the documents speak for themselves; I think they show the city attending at 2:00 a.m. placing a flasher and coming back at 8:30 p.m. to a damaged flasher. I think the photographs show mysterious orange paint on the undercarriage of the vehicle in the areas of the vehicle that’s damaged, and a speck of orange paint on the licence plate right above the crease. I think it assumes, with respect, that something that was orange was hit. …
THE COURT: Is there anything in the reports prepared by Laking that would indicate that the vehicle struck something? Did you see anything in those reports?
MR. LEEF: I think those reports would reflect what the plaintiff told Laking. I don’t think that made any of their own findings.
[35] These passages must have made it clear to the appellant where the deputy judge’s concerns lay with respect to the appellant’s evidence. The deputy judge repeatedly expressed his concern that the testimony of Urso, and photographic and documentary exhibits were being countered only with business records that were not self-explanatory, that were open to interpretation or significant doubt, and that were not supported by photographic or other evidence in the case. Given Urso’s clear testimony, it was open to the deputy judge to find that the appellant placed no warning flasher until after the accident.
[36] In such circumstances, the deputy judge’s reasons, in the context of the entire trial record, were plainly responsive to the needs of so straightforward a case, and were adequate for the purposes defined in the law.
Conclusion
[37] The appeal is dismissed.
[38] The parties may provide to the court written submissions as to costs of no more than two pages within thirty days.
The Honourable Mr. Justice A.D. Kurke
Released: March 23, 2017
CITATION: Urso v. Greater Sudbury (City), 2017 ONSC 1746
DIVISIONAL COURT FILE NO.: 1019-15
DATE: 2017-03-23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Gerald Urso and Elise Urso
Plaintiffs/Respondents
– and –
City of Greater Sudbury
Defendant/Appellant
REASONS FOR JUDGMENT
A.D. Kurke, J.
Released: March 23, 2017
[^1]: see the comments of Lamer C.J.C. on the importance of these factors in the principled approach to the admissibility of out-of-court utterances for substantive purposes in R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, at paras. 86-104.