DATE: 20040405
DOCKET: C40247

COURT OF APPEAL FOR ONTARIO

RE:

MARIA GERDEVICH, FRANK GERDEVICH, DAVID GERDEVICH, EMIL RAYMOND GERDEVICH, STEPHANIE MARIE GERDEVICH, by her Litigation Guardian, MARIA GERDEVICH, JORDAN SHANNI GERDEVICH, by her Litigation Guardian, FRANK GERDEVICH, VICTORIA ANN GERDEVICH, by her Litigation Guardian, FRANK GERDEVICH, SARAH ELIZABETH ALEXANDRA GERDEVICH, by her Litigation Guardian, DAVID GERDEVICH, and ADAM JACOB JOSPEH GERDEVICH, by his Litigation Guardian, DAVID GERDEVICH (Plaintiffs/Appellants) v. D.E. HOEY CONTRACTING LTD. and LEWIS B. ALLISON (Defendants/Respondents)

BEFORE:

DOHERTY, MOLDAVER and FELDMAN JJ.A.

COUNSEL:

Mark L.J. Edwards for the appellants

Robert Somerleigh for the respondents

HEARD & ENDORSED:

April 2, 2004

On appeal from the judgment of Justice J.F. McCartney of the Superior Court of Justice, sitting with a jury, dated June 3, 2003.

APPEAL BOOK ENDORSEMENT

[1] The appellant challenges the jury's finding of negligence. He acknowledges that if the finding is not unreasonable on the entirety of the evidence, we cannot interfere. He does not challenge the apportionment of liability assuming the appellant was properly found negligent.

[2] We cannot agree that the jury's answer to question 2 conflicts with s. 50 of the Public Lands Act. The jury's finding refers to a failure "to act on or investigate concerns brought up in safety meetings regarding the corner" [the location of the accident]. Section 50 precludes civil suits for negligence in relation to the maintenance or repair of the road. The jury was properly instructed on s. 50 and, in our view, their finding refers to the appellant's failure to take any steps to bring the concerns to the attention of the owner of the road and/or to its failure to take appropriate steps in its own operations to address the risk prescribed by the curve.

[3] The fact that s. 50 may shelter the owner from civil liability in some circumstances does not mean that the owner would have ignored any safety concerns that the appellant might have brought to the owner's attention. Consequently, it cannot be said that there is no causal link between the jury's finding of negligence and the damages suffered by the deceased. We are satisfied that the statement of claim is broad enough to encompass the basis of liability found by the jury.

[4] We cannot agree that the minimal apportionment of liability as against the driver demonstrates that the finding of liability against the appellant was unreasonable. The findings are predicated on different considerations and one does not inform the other.

[5] Costs to the respondent for the appeal and a related motion in the amount of $19,300.