Court of Appeal for Ontario
Date: March 28, 2017
Docket: C60080
Judges: Rouleau, van Rensburg and Miller JJ.A.
Between
Leslie Gail Lloyd and Jason Lloyd Plaintiffs/Respondents
and
David P. Bush, 818601 Ontario Inc. c.o.b. as MacDonald's Propane, The Corporation of the County of Lennox and Addington and The Corporation of the Town of Greater Napanee Defendants/Appellants
Counsel
David G. Boghosian and Luciana I. Amaral, for the appellants
R. Steven Baldwin, for the respondents
Heard: October 27, 2016
On Appeal
On appeal from the judgment of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated February 6, 2015, with reasons reported at 2015 ONSC 761 and from his judgment dated August 5, 2015, with reasons reported at 2015 ONSC 5340.
Rouleau J.A.:
[1] Introduction
[1] The appellants – The County of Lennox and Addington (the "County") and The Corporation of the Town of Greater Napanee ("Napanee" or the "Town") – appeal from the judgment finding them liable to the respondents for damages arising from a motor vehicle accident. The primary ground of appeal is that the trial judge erred in his finding of liability and, specifically, in his interpretation and application of the municipal defendants' duty under the Municipal Act, 2001, S.O. 2001, c. 25 to clear roads of snow and ice during a snow event. The County is the owner of the road on which the accident occurred and the Town was responsible for its winter maintenance pursuant to a 1998 agreement between the appellants.
[2] The trial judge's award of damages for attendant care costs and the costs of the action are also under appeal. In their written submissions the appellants also raise allegations of apparent bias on the part of the trial judge but this ground of appeal was not pressed in oral argument.
[3] This was the second trial of the matter. During the course of the first trial, the plaintiffs settled with the defendants David Bush and 818601 Ontario Inc. c.o.b. MacDonald's Propane and at the end of that trial, the claim against the municipal defendants was dismissed. On appeal from the first trial, this court ordered a new trial on the basis that the first trial judge demonstrated a reasonable apprehension of bias against the plaintiffs: Lloyd v. Bush, 2012 ONCA 349, 110 O.R. (3d) 781.
A. Facts
(1) The Accident
[4] On the morning of January 3, 2003, the respondents Leslie and Jason Lloyd were at the rural home of Jason's parents on County Road #9 ("CR9"), also known as River Road. They had spent the night there after returning from a ski vacation the previous day. The home received a telephone call from one of Jason's sisters who had fallen ill at work in nearby Napanee. Leslie volunteered to pick up her sister-in-law and promptly left the home in her 2001 Hyundai Elantra. She intended to proceed into Napanee, which was about 4 km east along CR9. Leslie was an experienced driver and was familiar with the road.
[5] Leslie had been driving for less than 30 seconds when she entered an "S-curve" portion of the road known locally as "Rankins Corners", which was located some 400 metres east of her in-laws' home on CR9. Entering Rankins Corners from the other direction was a commercial tank truck loaded with 20,000 pounds of propane driven by David Bush. He was in the process of making propane deliveries.
[6] At approximately 10:35 a.m., Leslie's vehicle collided with the propane truck in the eastern half of the S-curve. Leslie was severely injured and was left with permanent disabilities affecting her mobility, speech, dexterity, cognition and overall functioning. She has no recollection of the accident.
(a) Evidence About the Accident
[7] The only eyewitness at trial with any memory of the collision itself was Mr. Bush.
[8] Mr. Bush described the conditions as he drove toward Rankins Corners as consisting of heavy snowfall, with the road slippery and snow-covered at a depth of one to two inches. Though he could not see the centre line or fog lines, he attempted to stay in his lane by staying close to the guard rails to his right. He estimated that he was travelling at around 60-72 km/h, which was slower than the normal speed limit of 80 km/h but faster than the posted speed advisory for Rankins Corners of 60 km/h.
[9] Mr. Bush testified that he first saw Leslie's vehicle approaching as he proceeded into the east curve of Rankins Corners. He told the court that he saw Leslie's vehicle lose control and begin to slide sideways into his lane and down the road's slight incline toward his truck, at a 180° angle. Mr. Bush did not see the vehicle's angle correct itself from sideways to straight before impact. He testified that the front end of his truck struck the driver's side door of Leslie's vehicle. After the collision, his truck came to a stop in the south ditch.
[10] As I will explain below, although his testimony remained consistent, the expert evidence unanimously contradicted Mr. Bush's description of the moment of impact and his description was not accepted by the trial judge.
(b) Evidence About Road Conditions
[11] Mr. Bush testified that he saw no indication that CR9 had been plowed, sanded or salted and he found the road to be snow covered and slippery after he got out of his truck.
[12] Several truck drivers, a registered nurse, Jason Lloyd and his father attended at the scene soon after the collision and testified with respect to the condition of the road. The general consensus was that there had been moderate snowfall that morning but it had stopped by the time they arrived. They found the road to be snow covered with an inch or two of accumulation. Most considered the road to be slippery and did not notice any salt or sand on the road.
[13] Evidence as to the condition of the road both before and after the accident was given by Brian Wayte. He was a neighbour of the Lloyds' who lived in the middle of the S-curve at Rankins Corners. He testified that he was returning home from Napanee and travelling west on CR9 mid-morning on the day of the accident. The trial judge accepted Mr. Wayte's testimony that, on that trip, he followed a plow that was plowing snow and depositing material onto CR9. Mr. Wayte told the court that in general the road was snow-covered but was bare in spots. At some point soon after he arrived home – the trial judge determined it was 15 to 20 minutes later – Mr. Wayte noticed from his driveway that an accident had occurred at Rankins Corners. He estimated that about an inch of snow had fallen between his return home and the time of the accident. He testified that it was snowing "very heavily" at the time of the accident and for a period of time afterwards but agreed that photographs of the scene appeared to show only minimal snow accumulation. Upon walking to the accident scene, he saw no sand or salt on the road but he did not find the road to be slippery.
[14] Two OPP officers arrived at the scene within minutes after the collision. One testified that the road was snow covered and slippery. He saw no indication of plowing, salt or sand on the road but acknowledged that the newly fallen snow may have concealed such material from view. He estimated the total snow accumulation to be an inch or two at most. He took 13 photographs of the scene, which were tendered as evidence at trial. Another OPP officer who arrived at the same time likewise had no recollection of observing salt or sand and had reported the condition of the road as "packed snow".
(c) The Municipal Defendants' Evidence of Winter Maintenance Activities
[15] The Town's night patrolman, Bill Docteur, relied in his testimony on a copy of his diary from January 3, 2003. It indicated that he called the Public Works Foreman, Ron Vankoughnet, at 3:35 a.m. to advise that winter maintenance operations were needed.
[16] Mr. Vankoughnet testified that, after receiving the call from Mr. Docteur, he called his plow operators out for 4:00 a.m. and all 13 operators reported on time. His notes indicated a temperature of -7°C at 4:30 a.m. and light snow all day with a little wind. He expected the plows to have spread a 3:1 sand/salt mixture on the road. He relied on his experienced plow operators to determine the appropriate plowing measures and the amount of material to deposit onto the road. Mr. Vankoughnet also told the court he heard Vern Amey, the Town's Roads Superintendent, call Doug Abrams over the radio that morning to plow and sand CR9.
[17] Vern Amey testified that the Town used a 3:1 sand/salt mixture on its rural roads, including CR9, due to the risk of refreeze arising from low traffic volumes (1,500 vehicles per day) combined with certain temperature and wind conditions and because that mixture had always worked in the past. He would have expected the assigned plow driver to have completed two return passes on CR9 before 10:00 a.m. that day. The policy the Town followed was to send plows out if there was snow accumulation between midnight and 4:00 a.m. and to continue plowing until the snow was cleared. Hills and corners were considered "hot spots". Mr. Amey also stated that he saw the road was snow-covered on his way to work at 6:00 a.m. and that he called Doug Abrams to plow and sand CR9 and Rankins Corners at that time. In his view, the Town far exceeded any minimum maintenance standards set by the province and received few complaints. Upon his arrival at the scene within 20 minutes of the accident, Mr. Amey recalled the road as being slippery and saw no signs of plowing, salt or sand. He acknowledged that he had failed in his duty to properly record the road conditions based on his first-hand experience on January 3, 2003.
[18] Plow operator Wayne Dixon testified that CR9 was his regular plow route at the time of the accident. This was consistent with the evidence of Mr. Amey and Mr. Vankoughnet. A photocopy of Mr. Dixon's diary was tendered as evidence and, though its content is unclear, it appears to indicate that he had sanded at 10:10 a.m. on the morning of the accident. Mr. Dixon testified that he made multiple passes over Rankins Corners that morning. He also testified that it was his practice to increase the amount of material being applied to the road when passing through Rankins Corners. It became clear, however, that he had no independent recollection of his activities that day and the trial judge declined to rely on his testimony.
[19] Contrary to the evidence of the other Town employees, plow operator Doug Abrams insisted at trial that CR9 was in fact his regular route that morning and not Mr. Dixon's. He kept no notes or diary. He testified that he recalled plowing Rankins Corners twice on the morning of January 3, 2003, and that he applied sand both ways to the area rather than just on passing one way because it was one of the "bad spots". Passing through at around 6:00 a.m., he noticed no signs of prior winter maintenance activity, which he attributed to the ongoing snowfall.
[20] Evidence was read in at trial from the examination for discovery of Stephen Roberts, the County's Technical Co-ordinator of Roads and Bridges in 2003. He stated that road maintenance responsibility transferred to the Town from the County in 1998 and that Rankins Corners was not identified as an area of any special concern at that time. He further stated that, prior to 1998, CR9 was one of several "higher priority roads" in terms of the County's winter maintenance needs.
(d) The Expert Evidence
[21] The plaintiffs' accident reconstruction expert Thomas Prescott testified that, assuming Mr. Bush's observations of the collision were true, the accident was most likely caused by Leslie having made a sudden slight braking and/or steering manoeuver that caused her vehicle to slide. He opined that such a motion could have been made as a reaction to seeing the propane truck approaching and Leslie's being uncertain of whether it was fully within its own lane. In Mr. Prescott's view, this was an "offset head-on" collision wherein the vehicles collided more or less head-on, at an angle of less than 10°, and two thirds to three quarters of Leslie's vehicle struck the left front half of the propane truck.
[22] The defendants' accident reconstruction expert and expert on winter road maintenance practices and procedures, Timothy Leggett, did not believe that Leslie's vehicle sliding was the cause of the collision. He agreed with Mr. Prescott that it was an "offset frontal collision" at little to no angle. For him, the fact that the vehicles met "absolutely co-linear" meant that the Leslie's vehicle was likely not sliding sideways as Mr. Bush had purportedly observed because it would not have had time to straighten itself. Mr. Leggett offered no alternative theory as to what caused the collision.
[23] Mr. Leggett also opined that the Town's purported plowing activities that day, which are summarized above, were "impressive" since a rural "Class 4" road such as CR9 would typically be plowed only once per day. He believed that the presence of an overnight patrolman exceeded normal maintenance practice standards on a road of that nature. He was sceptical that the application of salt would have achieved bare or centre-bare road conditions in the circumstances, though he agreed that if straight salt had been applied at 130 kg/km then the likelihood of centre-bare conditions would have been higher. Further, he told the court that sand is "more readily available" and "much cheaper" than salt and that the application of a sand/salt mixture on such a road was "the norm" at the time in many Ontario municipalities, with sand being used about ten times more than salt.
[24] Daniel Doner was called by the plaintiffs to give expert opinion evidence on municipal winter road maintenance practices and procedures as of 2003. In Mr. Doner's view, the appropriate winter maintenance response to conditions that morning on Rankins Corners would have been to apply straight rock salt, which would have created a brine solution and led to bare or centre-bare conditions. Mr. Doner considered the Town's purported multiple passes over Rankins Corners to be inconsistent with the photographic evidence.
[25] In cross-examination, Mr. Doner acknowledged his awareness of recent studies indicating that sand/salt mixture can be as effective as straight salt for improving traction and that this is a legitimate and appropriate practice adopted by many municipalities. He further acknowledged that, at the time his report was prepared, he lacked knowledge of other factors that would affect salt's effectiveness and the possibility of achieving centre-bare conditions that morning, such as the amount of traffic, snow accumulation and sunlight.
[26] At another point during his cross-examination, Mr. Doner was asked about the cost of salt per ton in 2003. Counsel for the plaintiffs objected on the basis that the municipal defendants did not raise financial considerations as an issue in their pleadings or expert reports. In the Town's submission, the financial impact of winter maintenance practices and the resources available to the Town were an inherent aspect of the test for liability and such facts did not have to be specifically pleaded in its statement of defence. Further, the statement of claim did not contain a specific plea that the municipal defendants' negligence consisted of the failure to apply straight salt; the failure to use straight salt only became an issue when it was raised by the plaintiffs' experts. The trial judge disallowed the question and made it clear that, because it was not raised in Mr. Doner's examination in chief and was not pleaded in the statement of defence or raised in the defendants' expert reports, the issue of the financial impact of applying straight salt to the roadways could not be touched upon.
[27] The plaintiffs also called a professional engineer, David Bender, to give opinion evidence on winter maintenance treatment of roads by municipalities. He testified that the MTO's M700-C guideline recommended the application of salt given the conditions at the time. He shared Mr. Doner's view that, had there been multiple passes over Rankins Corners as the Town purported, this should have led to bare or centre-bare conditions and one would have expected to have seen evidence of this in the photographs. Centre-bare conditions would have afforded improved traction and visibility and rendered that morning's collision unlikely. Like Mr. Doner, Mr. Bender acknowledged in cross-examination that spreading a sand/salt mixture after plowing is an appropriate practice used by many municipalities. He also acknowledged that factors other than temperature may impact salt's effectiveness, such as sunlight and traffic volumes, and that he was not aware of the exact conditions on the road at the time.
[28] A forensic meteorologist, Dr. James Young, gave evidence with respect to the weather conditions on January 3, 2003. He estimated that over the period from midnight until the time of the accident at 10:35 a.m. between 2.5 and 2.7 cm of snow had accumulated on the road's surface, and that about 0.5 cm fell between 10:00 a.m. and 11:00 a.m. He opined that if the Town's purported maintenance activities had taken place there would have been more visible presence of sand.
[29] A second weather expert, Bryan Smith, gave substantially similar evidence. On the basis of the weather experts' testimony and that of the many eyewitnesses, the trial judge determined that the air temperature rose from -8°C at midnight to -5°C at 10:30 a.m. and that the road temperature was in the range of -5°C to -1°C at 10:30 a.m.
(2) The Respondents' Damages
[30] The trial judge heard from numerous witnesses with respect to the damages Leslie suffered as a result of the collision. One such witness was a medical doctor specializing in rehabilitation who testified as to the permanence of Leslie's injuries, her functional disabilities and their long-term implications, and her past and ongoing treatment needs.
[31] A number of family members and Leslie herself also testified to the effect of the accident on her personality, lifestyle and social life.
[32] The court also heard testimony from future care consultants for both the plaintiffs and the defendants as to Leslie's ongoing need for speech language therapy, her need for a cellular telephone, and evidence on home renovation costs. There was also evidence from economic consultants retained by both parties with respect to loss of income.
B. The Decision Below
[33] The trial judge acknowledged that the appellants' liability, if any, was to be determined in accordance with s. 44 of the Municipal Act, 2001. In accordance with the relevant jurisprudence, he was to determine whether a condition of "non-repair" existed. This was a question of fact assessed from the standpoint of a reasonable and prudent driver in the circumstances. If the plaintiffs demonstrated that a condition of non-repair existed, the trial judge was to determine whether the condition of non-repair caused or contributed to the accident and, if so, the onus then shifted to the municipality to show that it undertook reasonable efforts to maintain CR9 that morning.
(1) The Trial Judge's Summary of the Evidence
[34] The trial judge then summarized the maintenance activities the Town had performed on January 3, 2003.
[35] He found Wayne Dixon's evidence as to his plowing activities that day to be of no assistance because he kept no notes and had no independent memory of his activity on that day. The judge, however, makes no mention of Exhibit 45 which appears to be a photocopied page from a note or diary attributed to Mr. Dixon, which states among other things: "approximate time sand 10:10 a.m." The failure to make a specific reference to it may be due to the trial judge having concluded that, based on Mr. Dixon's testimony, the document was of little value.
[36] The trial judge also determined that little weight could be placed on Doug Abrams' evidence due to his lack of notes and the contradictions between his testimony and that of the other Town employees with respect to whether CR9 was his regular route and not Mr. Dixon's.
[37] Though Vern Amey testified that he expected Mr. Dixon to have completed two return plow runs on CR9 that morning, the trial judge determined that he had no reliable evidence that this actually occurred. He found that the "only clear evidence on plow operations that morning" was that at or about 10:00 a.m. the witness Mr. Wayte followed a plow westerly on CR9.
[38] The trial judge then summarized his findings with respect to the condition of CR9 that morning. He found that light snow started to fall after midnight until about 10:30 a.m. at about 0.5 cm/hour. The air temperature was as low as -8°C during the night and rose to about -5°C by the time of the accident. In various portions of his reasons, he describes the total snow accumulation as being in the range of 3 – 5 cm (para. 141), in the range of 2.5 – 5 cm (para. 53) and in the range of 2 – 5 cm (para. 146).
[39] The trial judge then referred to the evidence indicating that there were no obvious signs of recent plowing, salting and/or sanding activity, and that several witnesses considered the road to be slippery. He did not, however, explain how this evidence is to be reconciled with his finding that a truck had plowed and deposited material onto CR9 at or about 10:00 a.m.
[40] The trial judge noted that Rankins Corners had a posted speed advisory of 60 km/h due to its alignment as an "S-Curve". He also referenced the evidence of Stephen Roberts, who testified that, before it turned responsibility for winter maintenance over to the Town, when the County was responsible for winter maintenance it viewed curves such as this one as a "hot spot" requiring special winter maintenance practices. The trial judge then noted that, although the Town held meetings each fall regarding "hot spots", there was no evidence to indicate whether Rankins Corners was included for such special attention by the Town or, if so, what that might have entailed.
(2) The Trial Judge's Analysis of Whether a Condition of Non-Repair Existed
[41] The trial judge then addressed whether Rankins Corners was in a state of non-repair. That section of his analysis begins with the following:
Based on the evidence of Vern Amey and Ron Vankoughnet, I find that the Town plowed and applied a 3:1 mixture of sand/salt to Cty Rd 9 both ways on two separate occasions between 4:00 a.m. and the time of the accident.
He then stated that he accepted Mr. Wayte's evidence of a plow passing westerly on CR9 at around 10:00 a.m.
[42] However, the trial judge then expressed the view that the evidence that the plow passed twice in both directions and applying a sand/salt mixture was "difficult to reconcile" with the absence of visual evidence of windrows, the modest or marginal amount of sand noted by the witnesses, and the apparent absence of evidence that salt had created a brine solution or bare spots on Rankins Corners.
[43] The trial judge noted that Napanee used a 3:1 mixture of sand and salt for its county roads including CR9. He then stated that "the reason Napanee advanced for this decision is that county roads are not all paved and that a sand/salt mixture is far more appropriate and effective for non-paved roads".
[44] Next, the trial judge observed that, because Rankins Corners was a "hot spot", "certain additional or other measures of winter maintenance were or could have been applied" by the Town to address the special needs of that portion of the road. He determined that the circumstances, namely light snow and temperatures between -8°C and -5°C, were ideal for the application of straight salt and that this would have created centre-bare conditions resulting in better visibility and traction for passing vehicles.
[45] The trial judge found that, at the time of the accident, Rankins Corners was snow covered and slippery and that the line markings on the road were not visible. He concluded this section of his reasons with a reference to the case of Giuliani v. Halton, 2010 ONSC 4630, affirmed 2011 ONCA 812, 346 D.L.R. (4th) 120, and a finding that, as in Giuliani, "snow accumulation in the range of 2 – 5 cm in Rankins Corners presented a hazard to the users of the road and as such, Rankins Corners fell into a state of disrepair that morning."
[46] Although there is no express finding to this effect, it appears that the trial judge considered that Rankins Corners was in a state of non-repair because it was not centre-bare during this snow event.
[47] The trial judge found that the Town failed to show that it undertook reasonable efforts to address a condition of non-repair, and this despite the fact that the maintenance exceeded what was required under by-law 2649/97 for the County. As explained by the trial judge, the by-law set a "far more relaxed standard" for winter maintenance than the Town in fact followed. The Town's policy was to "continue plowing until the snow was cleared."
[48] The trial judge further found that special maintenance procedures had not been applied to Rankins Corners and that the plowing activity that was carried out was inadequate for that location. What was required was the application of straight salt in addition to a greater than normal application of sand/salt mixture, and this, he found, "would likely not have been a meaningful financial burden for the Town or an altering change to its established winter maintenance operation."
(3) The Trial Judge's Causation Analysis
[49] The trial judge then went on to consider whether the condition of non-repair caused or contributed to Leslie's injuries and damages. He determined that, on the evidence, her car was one-half to two-thirds over the centre line at the time of impact and that the left wheels of Mr. Bush's truck were either on or partially over the centre line.
[50] The trial judge found that Leslie's position on the road was caused by a sudden loss of control, created by a steering movement made in reaction to her seeing the propane truck and her being unable to tell where it was in relation to the centre line due to the light colour of the truck and the visual absence of the centre and fog lines. The snow packed state of the road was such that a marginal adjustment of steering would likely have been enough to cause her vehicle to start sliding. He reiterated that, as noted above, the collision would likely have been avoided if the Town had applied special maintenance procedures to create centre-bare conditions in Rankins Corners. For this reason, he found that "the Town caused at least in part the collision of the Plaintiffs' vehicle with the Bush truck."
[51] He concluded this section of his analysis by finding that the plaintiffs had established that the condition of non-repair of CR9 caused or contributed to Leslie's injuries and to the respondents' damages.
(4) Contributory Negligence
[52] The trial judge found that Mr. Bush was partially liable for the accident as he ought to have slowed down to be sure that he was on the proper side of the road. His position on or across the centre line formed a visual obstacle that caused Leslie to react by braking or turning the steering wheel, which in turn caused Leslie's vehicle to slide into the propane truck.
[53] The trial judge then found that, because Leslie lost control of her vehicle and crossed the centre line, she would also share in the apportionment of fault. He concluded that liability should be shared at 60% for the municipal defendants, 30% for the Mr. Bush and his propane company and 10% for Leslie.
(5) Damages
[54] The trial judge assessed damages inclusive of general damages, damages under the Family Law Act, R.S.O. 1990, c. F.3, s. 61, loss of income, future care needs and future costs of attendant care in the total amount in excess of $4 million, which he then reduced to 60% to reflect his apportionment of liability. I need only summarize the trial judge's findings with respect to the future attendant care costs of $2 million, as this is the only aspect of the damages award that is under appeal.
[55] The trial judge found that, because of her medical condition, Leslie should not be left alone during the night and that even during the day she required regular care. He concluded, therefore, that nighttime attendant care and some attendant care during the day were required.
[56] As to the cost of this care, the trial judge accepted the plaintiffs' expert evidence that the present value of the required care was $1,871,163 (based on $13 per hour) if the care was to be provided by Leslie's spouse Jason and was $4,066,181 (based on $25 per hour) if it was to be provided by a third-party agency. The trial judge then assessed the appropriate figure as being $2 million based on the need for two hours per day of care, as well as eight hours of nighttime care to be provided by Jason. This figure also included an amount for the contingency that Jason "may not be available to Leslie for the balance of her life based on any number of reasons, such as marriage breakup or untimely death."
(6) Costs
[57] Finally, the trial judge awarded the respondents' costs of the trial, as well as costs and disbursements for the first trial in accordance with this court's 2012 order, in the amount of $750,000 inclusive of HST and disbursements of $167,937.
C. Issues
[58] The appellants raise several grounds of appeal. They submit that the trial judge:
erred in his analysis and application of the test for determining a Town's liability pursuant to s. 44 of the Municipal Act, 2001;
erred in his determination of contributory negligence;
exhibited bias against the appellant;
erred in his assessment of the attendant care damages; and
erred in his assessment of the trial costs.
[59] As I will explain, I need only deal with issues 1, 3 and 4 to dispose of this appeal. In my view, the appeal should be allowed in part and a new trial must be ordered on the issue of the appellants' liability.
D. Analysis
(1) The Test for Liability Pursuant to Section 44 of the Municipal Act, 2001
[60] The central issue at trial was determining whether the appellants had any liability for the accident pursuant to s. 44 of the Municipal Act, 2001.
[61] Section 44 of the Municipal Act, 2001 sets out the duty of a municipality with respect to road maintenance. It provides as follows:
44. (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Liability
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Defence
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
[62] In Fordham v. Dutton Dunwich (Municipality), 2014 ONCA 891, 327 O.A.C. 302, at para. 26, Laskin J.A. set out the four-step test to be applied when a claim is made against a municipality for non-repair. It can be summarized as follows:
Non-Repair: The plaintiff must prove the existence of a condition of non-repair, that is, a road-based hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road, with a view to the circumstances including the "character and location" of the road.
Causation: The plaintiff must prove that the condition of non-repair caused the loss in question.
Statutory Defences: If the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality. The municipality then bears the onus of proving that one of the three independently sufficient defences in s. 44(3) applies. These defences include proof that the municipality took reasonable steps to prevent the default from arising (s. 44(3)(b)).
Contributory Negligence: If the municipality cannot establish any of the statutory defences, it will be found liable. The municipality can, however, still demonstrate that the plaintiff's driving caused or contributed to his or her injuries.
[63] In considering these steps, Canadian courts have taken into account the difficult winter conditions that exist and the cost of clearing the roads of snow. The courts have emphasized that a municipality is not to be treated as an insurer of the safety of the users of its roads by imposing overly onerous maintenance obligations. Specifically, a municipality's failure to salt or sand its roads does not automatically expose it to civil liability: "[t]he driving public cannot expect municipalities to keep the roads free and clear of snow and ice at all times during the winter" (Frank v. Central Elgin (Municipality), 2010 ONCA 574, at para. 7).
[64] In other words, proof of a state of non-repair is not in itself enough to establish liability. Rather, a municipality will only be liable for failing to salt and/or sand and clear the road of snow where it had actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway, and where the municipality unreasonably neglected that risk: see Frank, at paras. 7-11; Montani v. Matthews, 29 O.R. (3d) 257, at p. 270.
(2) Was the Road in a State of Non-Repair?
[65] The trial judge's central findings as to both the state of non-repair and the reasonableness of the appellants' response are set out in paras. 160 and 161 of his written reasons. Those paragraphs read as follows:
There is no evidence that Rankins Corners received any such winter maintenance special procedures. The plowing activity that was carried out, I find, was inadequate for Rankins Corners. A 3:1 mixture of sand/salt may well have been adequate for the Town's road system generally, but not that day for Rankins Corners. The Town readily could have spread straight salt through Rankins Corners plus a greater than normal application of sand/salt, all confined to a "hot spot" such as Rankins Corners. Such added focus for one or more of its road "hot spots" would likely not have been a meaningful financial burden for the Town or an altering change to its established winter maintenance operation. It would, however, likely have led to a centre-bare condition, according to the opinion of Messrs. Doner and Bender, which I accept. That would have made the centre-line visible and have provided traction to the left tires of vehicles proceeding in either direction.
As did Murray J. in Giuliani v. Halton, at para. 151, I find that the snow accumulation in the range of 2 – 5 cm in Rankins Corners presented a hazard to the users of the road and as such, Rankins Corners fell into a state of disrepair that morning.
[66] The appellants argue that the trial judge erred in finding that the road was in a state of non-repair. Specifically, they argue that CR9 is a Class 4 road and that the trial judge's decision imposes an unreasonably high standard of maintenance for such a class of road. The trial judge's error is apparent, they say, from his reliance on Giuliani for the proposition that two to five cm of snow on a Class 4 road during a snowfall event constitutes a state of non-repair. In Giuliani, Murray J. was dealing with a different and much more highly trafficked road that, in the appellants' submission, requires a greater degree of maintenance, including winter snow clearance. CR9 was a rural road with a much lower traffic volume and the provincial standards that apply to such roads only provide for plowing where there is an accumulation of eight cm of snow for a Class 3 road and ten cm of snow if it is a Class 4 road.
[67] It appears that no evidence was led at trial nor is there documentary evidence in the record to confirm whether the subject portion of the road was properly classified as a Class 3 or Class 4 road on the date of the accident. County By-law 2941/03, which was passed just six weeks after the accident on February 27, 2003, lists the entire length of CR9 as Class 4 but the authority of the County to so designate is unclear. CR9 was either a Class 4 road, which was assumed by the appellants' expert and not challenged, or, based on my own review of the provincial regulations, a Class 3 road. In any event, it is clear that CR9 was a rural and relatively low-traffic two-lane roadway.
[68] I consider the trial judge's reliance in this case on Giuliani for the above proposition – namely that two to five cm of snow accumulation constitutes a state of non-repair – to be misplaced. First, that case involved a road covered with both hard-packed snow and ice. There is, however, nothing in the record to suggest that icy conditions were present on CR9 on the morning of January 3, 2003. Second, the trial judge ought to have specifically addressed the fact that CR9 was a lower-traffic two-lane rural road to which a lower standard of maintenance was applicable than the road in Giuliani, which was a "principal thoroughfare" designed for high traffic volumes and was classified by the Region in that case as a road requiring "first priority treatment": Giuliani, at paras. 126 and 175.
[69] When considering whether a road is in a state of non-repair, a court must analyze all of the surrounding circumstances. What is deemed to be a reasonable state of repair will depend on the facts of each case. According to the plain wording of s. 44(1), the circumstances that must be considered in determining the reasonably applicable standard of repair includes the character and location of the roadway.
[70] The jurisprudence is clear that a lower standard will apply with respect to the state of repair on a low-traffic rural roadway than on higher-traffic thoroughfares and highways. The character and population of the area are to be considered as well as the amount of traffic using the road: see Ian Rogers, The Law of Canadian Municipal Corporations, loose-leaf (2016-Rel. 9), 2nd ed. (Toronto: Thomson Reuters Canada Ltd., 2009), at para. 235.32.
[71] As noted above, for a road to be in a state of non-repair, it must present a hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road in the circumstances. As explained in Docherty (Litigation guardian of) v. Lauzon, 2010 ONSC 1006, "non-repair" is a relative concept and the condition of repair for a rural road does not impose a high standard on a municipality. Rural roadways are, "by their nature, susceptible to the development of adverse conditions. Therefore, drivers have to adjust to these conditions" (para. 206).
[72] No such analysis was carried out by the trial judge and his finding that Rankins Corners was in a state of non-repair must be set aside. Although the trial judge made other findings that provide some support for his conclusion, I cannot on this record be satisfied that, had he properly assessed the nature of the road and surrounding circumstances, he would necessarily have reached the same conclusion.
[73] Among those other findings made by the trial judge is that Rankins Corners was a "hot spot", meaning that the municipality recognized that it required special winter maintenance attention. Another is that, at the time of the accident, the road was very slippery.
[74] The trial judge also rejected the suggestion that the municipality's duty was necessarily limited to the minimum standards imposed by the province. He found that the appellants reasonably followed a policy of sending out plows "if there was snow accumulation between midnight and 4:00 a.m. and to continue plowing until the snow was cleared."
[75] I agree with the trial judge that mere compliance with minimum standards or guidelines is not, in itself, sufficient to avoid liability if there was an obvious deficiency or risk. The overriding question remains: in all of the circumstances, does the condition of the road pose an unreasonable risk of harm to reasonable drivers? See Fordham, at para. 53.
[76] There is, therefore, some support for the trial judge's conclusion as to the existence of a state of non-repair. It is, however, premised on a faulty assessment of the nature and character of the roadway in issue and of whether it presented an unreasonable risk of harm to a reasonable driver in all the circumstances.
[77] It is difficult to ascertain what standard of non-repair the trial judge ultimately applied in this case, and it would be inappropriate for this court to make findings on the record as to the appropriate state of repair for CR9 at the time of the accident. As explained below, I have concluded that the trial judge committed other errors and that a new trial as to liability is necessary. For the purpose of the ensuing analysis I will assume without deciding that the trial judge correctly determined that Rankins Corners was in a state of non-repair at the time of the accident.
(3) Did the Town Take Reasonable Steps to Prevent or Correct the State of Non-Repair?
[78] The appellants argue that the trial judge committed several errors in his analysis of this issue. Specifically, the trial judge erred in failing to weigh all of the relevant circumstances, such as the condition of the road, financial considerations, and the fact that snow was still falling at the time of the accident. Further, the appellants argue that the trial judge prejudiced their defence by preventing cross-examination of the respondents' expert as to the cost of applying straight salt rather than a sand/salt mix to roadways and in concluding that the Town ought to have applied straight salt as well as greater amounts of the sand/salt mixture.
[79] In my view, the trial judge's finding that the appellants did not take reasonable steps to prevent the state of non-repair at Rankins Corners from arising, or did not take reasonable steps to correct it, must be set aside. I reach this conclusion for several reasons. As I will explain, the trial judge erred:
in focusing on whether the state of non-repair had in fact been corrected rather than on the reasonableness of the steps that were taken by the Town;
by making conflicting findings as to the plowing and application of sand/salt mixture that was performed at Rankins Corners on that morning; and
in concluding that, because the Town did not apply straight salt in addition to a greater amount of sand/salt mixture on Rankins Corners, the Town did not respond reasonably to the state of non-repair.
(a) The Reasonableness of the Steps Taken
[80] The trial judge not only found that an accumulation of two to five centimetres of snow presented a state of non-repair at Rankins Corners, but he also went on to find that Rankins Corners ought to have been centre-bare such that the centre line would have been visible and vehicles would have had increased traction to their left tires when negotiating the curve. For this condition to have been achieved, the trial judge determined that the municipality would have had to apply straight salt and greater amounts of sand/salt mixture to that portion of the road. Its failure to do so, in his view, constituted an unreasonable response to the state of non-repair.
[81] The trial judge was clearly focused on what, in theory, the Town would have had to have done in order to have prevented or corrected the state of non-repair before the accident occurred, rather than on the reasonableness of the Town's response to the state of non-repair in the circumstances. In my view, however, the fact that whatever actions the Town took did not ultimately achieve the goal of centre-bare pavement or non-slippery road conditions at Rankins Corners before the collision occurred is not determinative of whether the actions the Town took were reasonable. Given unlimited resources, any town might be able to keep its roads centre-bare even in the middle of the worst snow storm. That, however, is not the standard to be met.
[82] The trial judge properly referenced but does not appear to have applied Ondrade v. Toronto (City), [2006] O.J. No. 1769 (S.C.J.) where it is noted at para. 65 that s. 44(3)(b) of the Municipal Act, 2001 speaks to action rather than to result. In other words, the Municipal Act, 2001 does not create a regime of absolute liability. The steps to be taken by a municipality need only be within the range of what is reasonable in the circumstances.
[83] The trial judge may well have been correct that, if straight salt and additional sand/salt mixture had been applied to Rankins Corners, the road would have been centre-bare at the time of the accident. However, while the goal of any maintenance activity is obviously to correct the non-repair, the focus of the analysis must be on the reasonableness of the steps taken in all of the circumstances.
[84] The circumstances here include the fact that this was a rural road and at the time of the accident Mr. Bush, the only eyewitness with any recall of the events, testified that as he approached Rankin Corners it was snowing heavily. Neither of these points was addressed by the trial judge in his analysis or in his summary of winter conditions at para. 142.
[85] The trial judge's focus ought to have been on the evidence related to the Town's response to the snow event. That evidence, some of which the trial judge did refer to, includes the following:
The Town's overnight patrolman, Bill Docteur, was patrolling and inspecting the roads very early in the morning of January 3, 2003. Recognizing the potential for hazardous conditions, as found by the trial judge, he called the public works foreman, Ron Vankoughnet, at 3:35 a.m. to advise that winter maintenance operations were required;
Ron Vankoughnet called plow operators out for 4 a.m. and all thirteen operators reported for duty;
Each plow operator was assigned a specific route and, as found by the trial judge, CR9 was Wayne Dixon's regular route;
One of the Town's snowplows passed through Rankins Corners at about 10 a.m., plowing snow and depositing material onto the road;
The Town followed a practice of applying 3:1 sand/salt mix to its rural roads;
CR9 was a rural road to which lesser maintenance standards were applicable during a snowfall event based on the MTO's winter maintenance classifications and the County's By-laws;
All three experts on road maintenance who testified at trial agreed that a sand/salt mixture is widely used by many municipalities in Ontario as well as by the MTO;
The Town's plow drivers were experienced and would know to apply additional amounts of sand/salt mixture to "hot spots" such as Rankins Corners. Although the trial judge did not accept the evidence of either Mr. Dixon or Mr. Abrams as to their specific activities on that particular day, both testified that it was their normal practice to apply an increased amount of sand/salt mixture to Rankins Corners.
[86] The trial judge's conclusion that the Town "failed to show that it undertook reasonable efforts to address the condition of non-repair which prevailed at the time of the accident" at Rankins Corners rests, almost exclusively, on the fact that Rankins Corners was a "hot spot" and his finding that, had both straight salt and additional sand/salt mixture been applied, the road at Rankins Corners would have been centre-bare. In other words, because he accepted evidence that the application of straight salt as well as additional sand/salt mixture would have remedied the state of non-repair, the trial judge concluded that this was the response required for the Town to avoid liability. As I will explain, he reached this conclusion without making clear findings as to what the Town in fact did that morning and there is virtually no analysis or discussion as to the reasonableness of the Town's response in light of all the relevant circumstances.
(b) How Many Times Did the Town Plow and Apply Sand/Salt Mix to Rankins Corners Before the Accident?
[87] A significant factor in assessing the reasonableness of the Town's response to the snow event is the frequency with which it plowed and applied material to Rankins Corners. At trial, this was a hotly disputed issue.
[88] The Town led evidence suggesting several applications of sand/salt mixture to Rankins Corners but the trial judge was clearly reluctant to accept that evidence, as the Town's key witnesses had little or no independent recollection of their actions on the relevant day.
[89] At least one finding is clear. The trial judge accepted Brian Wayte's evidence that a plow depositing material had passed through Rankins Corners at about 10:00 a.m. that morning. A second finding relied on by the appellants is the trial judge's finding that "[b]ased on the evidence of Vern Amey and Ron Vankoughnet, I find that the Town plowed and applied a 3:1 mixture of sand/salt to [CR9] both ways on two separate occasions between 4:00 a.m. and the time of the accident." This level of maintenance is, the appellants argue, well beyond what was necessary to satisfy the requirements of s. 44 of the Municipal Act, 2001.
[90] In the course of oral submissions, however, the respondents raised for the first time the suggestion that this latter, critical part of the trial judge's reasons contains a typographical error. In the respondents' view, the word "cannot" was erroneously omitted and the second finding should properly read: "based on the evidence of Vern Amey and Ron Vankoughnet, I cannot find that the Town plowed and applied a 3:1 mixture of sand/salt to CR9 both ways on two separate occasions between 4:00 a.m. and the time of the accident." Counsel for the respondents argued in oral submissions that only this version is consistent with the trial judge's other findings of fact and assessment of the witnesses' credibility and reliability.
[91] It is impossible for this court to know with certainty whether this second finding contains a typographical error. Given comments made by the trial judge in other parts of his reasons, wherein he states that the suggestion of two passes in both directions is "difficult to reconcile with the visual absence of any signs of windrows" and that he "has no reliable evidence" that Wayne Dixon made two runs on CR9 that morning, it is quite possible that this in fact was a typographical error. We are, however, left to guess as to his finding about how many times Rankins Corners was plowed and material deposited at that location.
(c) Was the Application of Both Straight Salt and a Greater Amount of Sand/Salt Mixture Required?
[92] The trial judge found that the application of a sand/salt mixture was not an adequate response to the state of non-repair that existed at Rankins Corners that day. In his view, what was required for the Town's "hot spots" including Rankins Corners was straight salt plus a greater than normal application of sand/salt mixture. This finding that straight salt was required is central to the trial judge's finding of negligence. He concluded that the mandatory application of straight salt was reasonable as it "would likely not have been a meaningful financial burden for the Town or an altering change to its established winter maintenance operation." Had the application of straight salt been performed, he stated, it would "likely have led to a centre-bare condition, according to the opinions of Messrs. Doner and Bender, which I accept."
[93] There are several problems with the trial judge's finding that straight salt ought necessarily to have been applied. First, he reached this conclusion based on a finding that the use of straight salt would not likely have imposed a meaningful financial burden on the Town. However, as noted above, when in cross-examination of the respondents' expert the appellants sought to explore the cost to the Town of using salt rather than a sand/salt mixture, the trial judge refused to allow the question. He ruled that because the cost of using salt was not pleaded by the municipal defendants in their statement of defence, and because it was not set out in their experts' report, it could not be raised. He went on to say that he "would be surprised if any municipality were to take the position that it's too costly to adequately maintain the roads, so we just let our citizens slip and slide all over the roads."
[94] In my view, the trial judge's ruling was incorrect. In an action against a municipality for non-repair of a road, the resources of the municipality and the cost of the proposed measures can be relevant considerations.
[95] Whether a municipality's actions are reasonable or not depends in part on the resources that were available to the municipality. In considering whether reasonable efforts have been made to keep the road in a state of repair, regard must be had to a number of factors including the means available to the municipality: Foley v. Township of East Flamborough (1898), 29 O.R. 139, at p. 141, reversed in (1899) 26 O.A.R. 43 (C.A.) but not on this point; see also Groves et al. v. The County of Wentworth, O.R. 138, per Robertson C.J.O.
[96] In Ian Rogers, The Law of Canadian Municipal Corporations, at 235.32, the author writes:
In considering whether reasonable efforts have been made to keep a road in repair, it seems that the means available to the [municipal] corporation must be taken into account. It is not bound to use the most expensive methods of road building and repairing and its duty is subject to a limitation as to its financial resources. This does not mean that the complainant must show that the municipality is financially able to perform its duty; the question of expense is merely an element in excuse. Nor does it mean that a municipality may plead expense as a conclusive reason for omitting to perform its duty. [Citations omitted.]
[97] As noted by Anglin J. in his concurring reasons in Hastings (County) v. Clinton, S.C.R. 195, financial constraints will not in themselves justify a municipality's failure to take steps to correct a state of non-repair for a particular road. Financial considerations are, however, plainly recognized as one factor to be considered and weighed among others when assessing whether a municipality's efforts to maintain a road were reasonable in the circumstances. For example, in Restoule v. Strong (Township), O.J. No. 2979 (C.A.), this court expressly recognized that financial constraints are a relevant factor in the analysis, though not in itself determinative or to be overemphasized to the exclusion of other relevant factors. As Borins J.A. wrote, at para. 17:
Although the authorities seem clear that financial constraints represent a factor to be considered by the court in determining liability for non-repair of a highway, they represent only one of many factors to be considered.
[98] I note further that, in this case, the statement of claim does not contain a specific plea that the alleged negligence was the failure to apply straight salt. There was, therefore, no reason for the appellants to have specifically pled in their defence that applying straight salt would have imposed an unreasonable financial burden on them.
[99] In my view, the trial judge's failure to admit evidence of the financial impact of applying straight salt therefore constitutes reversible error, when viewed in combination with his conclusion that applying straight salt to "one or more" of the Town's "hot spots" such as Rankins Corners would not have imposed any meaningful financial burden on the Town.
[100] Moreover, I note that the trial judge made his finding that applying straight salt as well as a greater amount of sand/salt mixture would not likely have imposed a meaningful burden on the municipality despite the testimony of the appellants' expert, Mr. Leggett. In the course of his evidence, he indicated not only that sand is "much more readily available" than salt, but also that it is "much cheaper". This portion of Mr. Leggett's testimony does not appear to have been challenged in cross-examination and there is no evidence in the record suggesting otherwise.
[101] As for the trial judge's suggestion that the required straight salt would be applied only to "hot spots", while Mr. Doner described how salt is dropped via a chute as opposed to being applied with a spinner as in the case of sand, there is no discussion in the evidence as to the number of such "hot spots" nor how straight salt could be applied to these "hot spots" without requiring the appellants to use additional trucks loaded with straight salt and to have those trucks travel the same roads as the trucks carrying the sand/salt mixture. Nor is there evidence as to the attendant costs for this given the judge's ruling.
[102] The trial judge also erred in his characterization of the Town's evidence as to why it did not apply straight salt on CR9 and its other county roads. As noted earlier, the trial judge described the Town's explanation as being that "county roads are not all paved and that a sand/salt mixture is far more appropriate and effective for non-paved roads." This, however, was not the reason advanced by the Town at trial. Rather, as the trial judge noted earlier in his reasons, according to the evidence of the Town's Roads Superintendent the Town's reasons for not applying straight salt were, first, the risk of refreeze in light of the road's relatively low traffic volumes and, second, the fact that a sand/salt mixture had always worked in the past.
[103] Finally, the trial judge explained that he found support for his conclusion that the failure to apply straight salt was negligent in the evidence of the plaintiffs' two experts, Messrs. Doner and Bender. Although these experts did testify that using straight salt likely would have resulted in centre-bare conditions, in cross-examination both admitted that, at the time they prepared their reports expressing their views, they lacked knowledge of facts relevant to assessing the salt's effectiveness in the circumstances. These facts include the traffic volumes on the road as well as the amount of sunlight and how much snow was present on the road at the time. Both agreed that the application of a sand/salt mixture is an acceptable and widely used approach to winter maintenance of such roads, although one expert felt it was not necessarily the most reasonable or practical. The trial judge's failure to acknowledge and address this evidence in his analysis lends further support to the appellants' submission that, in concluding that the application of straight salt was necessarily required in these circumstances, the trial judge misapprehended the evidence.
(4) The Appropriate Remedy
[104] Ordering a new trial is never desirable. It is especially undesirable in this case, where the judgment under appeal is the product of a second trial, the first decision having been set aside because of a reasonable apprehension of bias on the part of the first trial judge.
[105] In my view, however, a new trial on the issue of liability is required. I find myself unable to make the substitute findings necessary to resolve the claim, both as to the applicable standard of repair for CR9 in light of all the circumstances and the reasonableness of the Town's response to the state of non-repair, if indeed such a state of non-repair existed at the time. Those findings depend at least in part on an assessment of the reasonableness of using a sand/salt mixture rather than straight salt given considerations such as the cost differential and the resources that were available to the Town. The trial judge's ruling prevented the appellants from exploring this issue with the respondents' experts and eliciting their response as to how this might affect their opinion. It also precluded fully exploring or leading evidence as to the cost of using straight salt in the course of the appellants' case.
[106] Moreover, in the trial judge's reasons, there is also no clear finding as to how many times Rankins Corners was plowed and material was deposited. We know only that it was done at least once at about 10:00 a.m. We are left to speculate as to whether there was or was not any additional plowing and sand/salt application. The trial judge did write at para. 145 that "the Town plowed and applied a 3:1 mixture of sand/salt to [CR9] both ways on two separate occasions between 4:00 a.m. and the time of the accident" but the respondents argued in oral submissions, plausibly, that this was a typographical error. Even assuming there was in fact no additional plowing beyond the one pass at around 10:00 a.m., we are nonetheless left to speculate as to how the trial judge reconciled his finding that Rankins Corners was plowed and a sand/salt mixture was spread there at about 10:00 a.m. with the evidence that there were no obvious windrows and that little sand or salt was visible to those who attended soon after the accident occurred at 10:35 a.m. This discrepancy may be due to the fact that, at the time of the accident, it was snowing "very heavily" as indicated in Mr. Wayte's testimony. Mr. Bush similarly described the weather conditions as consisting of "heavy snowfall". In that case, if in fact it had been snowing very heavily at the time of the accident, this would need to be considered in assessing the Town's alleged negligence and the issue of causation.
[107] These necessary findings will have to be made in a new trial.
(5) Reasonable Apprehension of Bias
[108] The appellants argue that the trial judge exhibited bias against them and that this bias was apparent from the very first day of trial. On that day, the trial judge sparred with the appellants' counsel during opening statements regarding the established legal principles that should be applied by the trial judge in this case. These principles included consideration of the character of the road, traffic volumes and the like, as these all would have an impact on the extent of the duty resting on the municipality to maintain the roads. In the course of these exchanges, the trial judge's response was to ask counsel: "So we potentially throw users of such a road, on a January 2nd, under the bus?"[1]
[109] In the appellants' submission, the trial judge's negative conduct toward the appellants escalated over the course of the trial and included unwarranted, aggressive, threatening and intimidating interventions, including banging his fist on the desk and making comments such as "too bad, so sad" when the appellants' counsel took issue with rulings that were unfavourable to the appellants.
[110] Further, the appellants maintain that the trial judge refused to allow highly material evidence sought to be tendered by the appellants on critical issues such as the budgetary impact of applying straight salt versus a sand/salt mixture, the significance of the Lloyd vehicle having been equipped with winter tires and the MTO's standards for winter maintenance.
[111] Finally, the appellants submit that there were numerous interjections by the trial judge during their cross-examination of the plaintiffs' witnesses, which, in the appellants' view, were made to derail the flow and effect of these cross-examinations. No similar interventions were made when the respondents' counsel was cross-examining the appellants' witnesses.
[112] The test for reasonable apprehension of bias has recently been summarized by the Supreme Court of Canada in Yukon Francophone School Board, Education Area No. 23 v. Yukon (Attorney General), 2015 SCC 25, 2 S.C.R. 282. The court cited the classic, undisputed test as follows, at para. 20:
what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?
[113] Judges are afforded a strong presumption of impartiality that is not easily displaced (Yukon, at para. 25; Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, 2 S.C.R. 357, at para. 22). However, as the court noted in Yukon, the presumption of a trial judge's impartiality can be rebutted by the trial judge's conduct, particularly by the manner and frequency of his or her interventions.
[114] A review of the trial transcript in this case confirms that the trial judge's interventions were, on occasion, unduly aggressive and disrupted the flow of the appellants' cross-examination of the respondents' witnesses. The trial judge's choice of words when dealing with the appellants' counsel was in some cases unnecessarily harsh and he appears to have subjected factual challenges made by the appellants to greater scrutiny than those advanced by the respondents. This is certainly unfortunate, particularly in light of the fact that this was a retrial, the first trial having been set aside for a reasonable apprehension of bias. However, in my view, the interventions and comments do not, taken alone or together with the other concerns raised by the appellants, displace the presumption of impartiality.
[115] I have reached this conclusion even though I do acknowledge that at least one of the trial judge's evidentiary rulings made against the appellants did prejudice the appellants. As noted earlier, I have found that the trial judge erred in preventing the appellants from cross-examining the respondents' expert as to the financial cost of using straight salt. In Yukon, the court expressed particular concern about situations where there are both procedural rulings made against a party and problematic comments by the trial judge to that party including unnecessary interventions. While these issues are to some extent present here, I consider that the ruling made against the appellant was simply an error made in good faith and not the result of a bias against the appellants.
(6) Future Attendant Care Costs
[116] The only aspect of the damages calculation challenged on appeal is the amount awarded for future attendant care costs.
[117] The appellants argue that the trial judge found that Leslie required attendant and supervisory care of eight hours per night plus two hours per day for a total of 3,650 hours per year. The trial judge also found that the appropriate rate for the services was $13 per hour. Having determined that this was the required care and the accurate cost of that care, the trial judge then simply awarded a round sum of $2 million dollars in future attendant care damages, a figure that, according to the appellants, bears no relation to the trial judge's finding of determined need.
[118] In the appellants' submission, if the economic loss expert's present value calculations are used, the 3,650 hours per year translate into an award of $1,447,708, which is the correct amount and $552,292 less than the amount awarded.
[119] I would not give effect to this submission. The trial judge did, as the appellants submit, find that 3,650 hours per year of attendant care at $13 per hour was appropriate. I also accept that, using the expert's figures, the hours necessary at the rates specified would produce the present value figure of $1,447,708. The trial judge, however, determined that there were contingencies that ought to be factored into his award. Specifically, the trial judge was concerned that, for various reasons, such as marriage break-up or untimely death, Leslie's husband Jason might not be available to care for Leslie for the balance of her life.
[120] The low rate of $13 per hour was premised on Jason providing the night time attendant care. Should a private agency be required to provide that care, the rate specified by the expert was significantly higher, that is, $25 per hour.
[121] While one might disagree with the magnitude of the adjustment made by the trial judge for contingencies, his decision in this regard is not unreasonable. It is entitled to deference and I see no basis to interfere.
E. Conclusion
[122] In conclusion, therefore, I would not interfere with the trial judge's assessment of damages but would set aside the trial judge's finding of liability and order a new trial on that issue as well as the issues that flow therefrom, such as causation and contributory negligence. I would also set aside the trial judge's award of costs and remit the costs issue to be determined at a new trial.
[123] With respect to the costs of the appeal, I would award the appellants' their costs on a partial indemnity basis. The parties had agreed to an all-inclusive figure of $35,000 to the successful party. This, however, was based on one or other of the parties being entirely successful. There has, to a degree, been mixed success. Should the parties not be able to resolve the issue of costs, I would ask the parties to make brief written submissions on the issue, not to exceed two pages. The appellants are to provide their submissions within ten days hereof and the respondents their submissions within seven days thereafter.
"Paul Rouleau J.A."
"I agree K. van Rensburg J.A."
"I agree B.W. Miller J.A."
Released: March 28, 2017
[1] For clarity, I note that the accident in fact occurred on January 3, 2003.
