Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-03-03 Docket: C66776

Judges: Simmons, Harvison Young and Zarnett JJ.A.

Between: Stamatis (Steve) Stamatopoulos, Nikolaos Stamatopoulos, Christothea Stamatopoulos, Kyriakos Stamatopoulos and Stephanie Clarke Plaintiffs (Appellants)

And: Richard J. Harris, The Regional Municipality of Durham, Her Majesty the Queen in Right of the Province of Ontario, represented by the Minister of Transportation for the Province of Ontario and State Farm Insurance Defendants (Respondents)

Counsel: Allan Rouben, for the appellants David G. Boghosian and Sachin Persaud, for the respondent, the Regional Municipality of Durham Brian M. Bangay, for the respondent, Richard J. Harris

Heard: February 23, 2022 by video conference

On appeal from: the judgment of Justice J. Copeland of the Superior Court of Justice, dated March 6, 2019, with reasons at 2019 ONSC 603.

Reasons for Decision

[1] This is an appeal from a judgment dismissing an action against the Regional Municipality of Durham pursuant to s. 44 of the Municipal Act, 2001, S.O. 2001, c. 25, on the basis that it had failed to keep a roadway in a reasonable state of repair. The appellants commenced an action against Durham and the respondent, Mr. Harris, following a motor vehicle accident in November 2004. The appellant, Mr. Stamatopoulos, was a front seat passenger in a vehicle driven by Mr. Harris. The two men were travelling on the road around 8:30 p.m. when Mr. Harris lost control of the vehicle while driving over a depression or dip in the roadway. The vehicle rotated, left the roadway and travelled across the shoulder and into a ditch, where it hit a hydro pole. The vehicle travelled a further distance and collided, passenger side, into a group of trees and an embankment. Mr. Stamatopoulos suffered life altering injuries.

[2] Mr. Harris conceded that he was negligent and that his driving was a cause of the collision. He reached a settlement with the appellants in 2010. However, he and the appellants alleged that the road where the collision occurred was in a state of non-repair, due to the dip in the road, and that this was also a cause of the collision. Damages were settled before the trial. The sole issues at trial were whether the respondent Durham was liable in negligence and, if so, what the apportionment of damages should be.

[3] The trial judge found that the roadway was not in a state of non-repair. The appellants appeal from that finding. Mr. Harris appealed initially, but has since abandoned his appeal. He filed a factum only in relation to the costs award in the event the appellants were successful.

[4] The appellants argue that the trial judge committed an extricable error of law in analyzing the question of whether the road was in a state of non-repair. This was the result of two related errors. To begin with, the appellants submit that the trial judge erred by measuring Durham’s standard of care from the perspective of Mr. Harris rather than that of the ordinary reasonable driver. Second, she compounded this error by adopting too low a standard for conduct that takes a driver outside of the scope of an ordinary reasonable driver. They argue that Mr. Harris’ negligence was not of such a magnitude to take him outside the scope of an ordinary reasonable driver. Her approach, they submit, was contrary to the authorities, and distorted the proper analysis of the claim as set out in Fordham v Dutton-Dunwich (Municipality), 2014 ONCA 891, 327 O.A.C. 302, by conflating the question of the driver’s manner of driving with the question of whether the road was in a state of non-repair.

[5] We do not agree and dismiss the appeal for the following reasons.

[6] There is no dispute that the applicable four-part test for establishing the statutory cause of action in negligence against a municipality was set out by this court in Fordham at para. 26:

1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.
2. Causation: The plaintiff must prove the “non-repair” caused the accident.
3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
4. Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries.

[7] First, we do not agree that the trial judge conflated Mr. Harris’ negligence with her finding that the road was not in a state of non-repair such that it would have presented a hazard to an ordinary reasonable driver. She summarized the factors that she considered in determining whether the road was in such a state of non-repair that it would have presented a hazard to an ordinary reasonable driver at para. 483 of her reasons:

In considering whether the dip in the road constituted a state of non-repair, I consider the following factors: the measurements of the length and depth of the dip, including the expert evidence that I accept (primarily that of Mr. Bigelow in terms of his survey, and Mr. Malone); the photos of the dip (primarily those taken by Mr. Bigelow, Mr. Morden, and Mr. Harris’ sister); the qualitative evidence of witnesses about driving over the dip, in particular the civilian witnesses and the police drive-throughs; the absence of an accident history at that location; and Mr. Harris’ manner of driving on the evening of the collision, including his excessive speed, and his distraction.

[8] The trial judge then analyzed all of the factors other than Mr. Harris’ manner of driving. This included evidence that driving over the dip at and over the speed limit did not create problems. She concluded, at para. 495 of her reasons, on the basis of those factors that the road was not in a state of non-repair. She stated, “[t]aking these factors together, I find that the plaintiffs have failed to persuade me on a balance of probabilities that the dip in the road constituted a state of non-repair. I am not persuaded that the dip posed an unreasonable risk to an ordinary reasonable driver.” There was ample evidence to support this, including the qualitative evidence of witnesses who live in the area and knew the dip, the agreed fact that there had been no prior collisions identified at this site attributable to the depression since 1993, police evidence of “runs” conducted over the dip at various speeds up to 120 km per hour, applicable guidelines regarding road depressions, as well as guidelines regarding signage for road hazards.

[9] Only after so concluding did the trial judge turn to Mr. Harris’ driving, and how his manner of driving related to whether the road was in a state of non-repair such as to create a risk to the ordinary reasonable driver. She made a finding of fact that Mr. Harris was driving 100 km per hour when he began to cross the dip, and that he was distracted as he had no hands on the wheel, having just opened a pop bottle. He was not an ordinary reasonable driver.

[10] We do not accept the premise that, because the trial judge considered Mr. Harris’ manner of driving, she conflated the analysis. She did not reason that, because he was driving in a manner that was not that of an ordinary reasonable driver, the road was not in a state of non-repair. She began her analysis of this issue by setting out the Fordham test and focusing on the question of whether the dip in the road constituted a state of non-repair. Having found that it was not a risk to the ordinary reasonable driver, she considered Mr. Harris’ driving, and found that he was not driving as an ordinary reasonable driver, which was consistent with her finding on the state of the road. Had she found that Mr. Harris’ manner of driving was that of the ordinary reasonable driver, and an accident had still occurred, she would have had to reconsider whether the road posed a hazard to the ordinary reasonable driver.

[11] We see no error in taking the manner of Mr. Harris’ driving into account as a part of the trial judge’s consideration of whether the road was in a state of non-repair. Read in context, this was simply one factor considered.

[12] Nor do we do agree that the trial judge erred by adopting too low a standard (100 km) for conduct taking a driver beyond the scope of an ordinary reasonable driver. The appellants argue that this finding was unreasonable on the basis that a significant percentage of drivers travel the same stretch of road at speeds exceeding 90 km an hour and that this effectively immunizes the municipality from liability pursuant to s. 44 of the Act.

[13] The trial judge found that the ordinary reasonable driver would not exceed the speed of 100 km per hour on that stretch of road. This was a finding of fact that she reached after a careful review of the evidence. We see no basis for interfering with this finding.

[14] The appeal is dismissed. Costs are payable by the appellants to the respondent Durham in the amount of $40,000 inclusive of HST and disbursements.

"Janet Simmons J.A."

"A. Harvison Young J.A."

"B. Zarnett J.A."