DATE: 20000426
DOCKET: C28356
COURT OF APPEAL FOR ONTARIO
ABELLA, GOUDGE AND MACPHERSON JJ.A.
B E T W E E N : )
) David Hillel
HUGH JOHN MACMASTER, a mental )
incompetent, no so found, by his ) for the plaintiffs (appellants)
Litigation Guardian, Michael )
MacMaster, MICHAEL MACMASTER and )
ANNE CATHERINE MACMASTER )
)
Plaintiffs )
(Appellants) )
)
- and - )
) J. Murray Davison
THE CORPORATION OF THE ) David G. Boghosian
REGIONAL MUNICIPALITY ) Christine Carter
OF YORK ) for the defendant (respondent)
Defendant )
(Respondent) )
) Heard: April 4 and 5, 2000
)
On appeal from the judgment of E. Macdonald J. dated September
30, 1997.
GOUDGE J.A.:
[1] Tragically, Hugh John MacMaster was seriously injured on
July 12, 1991. He was driving south on Leslie Street just south
of the Vandorf Sideroad at about 11:00 p.m. when his car crossed
the north bound lane, left the road, and came to rest on its roof
at the bottom of a ravine.
[2] Through his representative, Mr. MacMaster sued the Regional
Municipality of York for negligently maintaining the roadway.
[3] After a nine day trial in which liability was the only
issue, Madam Justice E. Macdonald dismissed the action. This is
the appeal from that decision.
[4] The appellant raises three issues.
[5] First, he says that the trial judge made a clear and
reversible finding of fact when she described the location of the
accident.
[6] I disagree. There is no doubt where the accident happened.
As one drives south on Leslie Street one turns right at Vandorf
Sideroad East then curves to the left past Vandorf Sideroad West.
Following a straight stretch of approximately fifty meters, the
road curves to the right. The accident occurred approximately
fifty-five meters beyond the end of that curve.
[7] The record is replete with evidence and photographs of the
accident location. It is clear that the trial judge knew where
the accident happened. She indicates in her reasons that she is
attaching to them schedule B where the collision site is marked
with an ‘X’. That schedule is a map showing Leslie Street as
described above. The ‘X’ was accurately placed by the trial
judge at the proper location.
[8] Moreover, she accurately described the location this way at
page 10 of the reasons:
As Hugh John approached the intersection of Vandorf
Sideroad East and Leslie Street, he encountered a
checkerboard sign and chevron signs which were visible
and which would warn him, if he wished to continue
southbound on Leslie Street (as he apparently did),
that he would have to make a sharp right turn and
then proceed through two curves before returning to
straight roadway. The distance between the speed
advisory sign and the point where Hugh John left the
roadway is approximately 615 metres.
[9] The appellant relies heavily on the fact that in a number of
places in her reasons the trial judge described the curve just
before the accident site as a “left turning” curve. While this
would seem to be a mis-description in that this “critical” curve
would bend to the right at least for a southbound driver, the
trial judge clearly knew where the accident happened. She knew
that this was just beyond the “critical” curve. The trial
judge’s error is one of semantics not of fact. This ground of
appeal fails.
[10] Second, the appellant argues that the respondent failed to
meet the required standard of care in maintaining this roadway,
particularly in failing to have an adequate sign that would
properly warn drivers of the curves described above. It was the
appellant’s theory that these curves caused or contributed to the
accident.
[11] Again, I disagree. While the alignment of these curves was
acknowledged to present a danger, the respondent had placed a
sign just north of Vandorf Sideroad East that was sufficient to
warn drivers of the curves ahead. That sign depicted the right
turn at Vandorf Sideroad East followed by a curve to the left,
followed by a sharp turn to the right. It indicated that the
roadway so depicted should be traveled at no more than 30
kilometers per hour, a speed at which the curves could be safely
negotiated.
[12] The trial judge found that this sign was not confusing – a
finding that was entirely open to her on the evidence. Indeed
the curve just before the accident was portrayed on the sign as a
sharp turn therefore presumably suggesting even more caution than
the actual layout of the road would require.
[13] The accident occurred approximately 600 meters from this
sign, a distance that at 30 kilometers per hour would be traveled
in just over a minute.
[14] Given a sign that communicated without confusion the turns
in the road ahead and the speed to be observed in negotiating
them safely, and further that a driver would have to retain this
information for only a short period of time, I agree with the
trial judge that the respondent had adequately warned drivers of
the up-coming curves. Despite the design flaws, the respondent
was not negligent in maintaining the roadway. This ground of
appeal fails.
[15] Finally, the appellant argues that the trial judge erred in
finding that the appellant had not established causation.
[16] I disagree. The trial judge’s finding here is one of fact.
We can interfere only if the finding is unreasonable or a
“palpable and overriding error”. There was no direct evidence of
how the accident happened, that is, what caused it. The trial
judge was unprepared to infer that the condition of the roadway,
and particularly the sign in question, caused or contributed to
the accident.
[17] In my view, this finding was entirely open to her on this
record. She found that the appellant was familiar with the road.
This too is a conclusion for which there is evidentiary support.
To go on to conclude, where the appellant is driving over a road
he is familiar with, that she cannot say that the sign
contributed to his accident is not unreasonable. This ground of
appeal must also fail.
[18] The appeal must therefore be dismissed with costs.
Released: April 26, 2000
“S.T. Goudge J.A.”
“I agree R.S. Abella J.A.”
“I agree J.C. MacPherson J.A.”