Court of Appeal for Ontario
CITATION: Morsi v. Fermar Paving Limited, 2011 ONCA 577
DATE: 20110908
DOCKET: C52495 and C52505
MacPherson, Juriansz and Karakatsanis JJ.A.
BETWEEN
Antonella Morsi, Christina Chiari Morsi and Sophia Marka Morsi, minors by their Litigation Guardian, Antonella Morsi, Carlo Morsi, Stephen Morsi and Maria Liidemann
Plaintiffs (Respondents)
and
Fermar Paving Limited, Regional Municipality of York, and The Corporation of the City of Vaughan
Defendants (Appellants)
D.H. Rogers, Q.C., for the appellant Fermar Paving Limited
J. Murray Davison, Q.C. and Charles A. Painter, for the appellant Regional Municipality of York
David R. Neill and Caroline Meyer, for the respondents
Heard: June 30, 2011
On appeal from the judgment of Justice J. Bryan Shaughnessy of the Superior Court of Justice dated July 6, 2010, with reasons reported at [2010] O.J. No. 3842.
MacPherson J.A.
A. INTRODUCTION
[1] The appellants Fermar Paving Limited (“Fermar”) and the Corporation of the Regional Municipality of York (“York Region”) appeal from the judgment of Justice J. Bryan Shaughnessy of the Superior Court of Justice dated July 6, 2010. In that judgment, the trial judge apportioned liability for a single car accident that killed the driver and sole occupant Mark Morsi as follows: Fermar – 25 per cent; York Region – 25 per cent; and Mark Morsi – 50 per cent.
[2] The appellants contend that the trial judge erred by finding any liability against them. Their position is that the sole cause of the accident was Mr. Morsi’s excessive speed on a curvy and well-signed road.
B. FACTS
(1) The parties and events
[3] On June 15, 2005 at approximately 6:30 p.m., Mark Morsi was driving alone on his way home from work in his Volkswagen Jetta. The weather was sunny and warm and the road was dry. Mr. Morsi turned off Highway 27 onto Major Mackenzie Drive and proceeded westbound.
[4] Major Mackenzie Drive had been resurfaced shortly before and on June 15 pursuant to a contract between York Region and Fermar. The 400 or so metres westbound from Highway 27 had been freshly paved with asphalt shortly before June 15. On June 15, the balance of the road from the 400 metre point west to Highway 50 had been resurfaced using a foam surface treatment.
[5] The 400 metres of Major Mackenzie Drive immediately west of Highway 27 was not a straight road. Quite soon after entry, there was a long sweeping left curve. After this curve, the road straightened briefly and then became a long sweeping uphill right curve at the 400 metre point. It was here that the surface of the road changed from the new asphalt to the foam surface treatment set down on June 15 (the “transition point”).
[6] As Mr. Morsi traversed the 400 metres on Major Mackenzie Drive, he was confronted by several road signs, some permanent and others temporary, and all prescribed by the Ontario Traffic Manual.
[7] The permanent signs on the road, moving from east to west, were a sign identifying the road and imposing a load restriction, a yellow and black reverse curve (i.e. a left curve followed by a right curve) sign with a 40 kilometre per hour advisory tab, a speed sign indicating a 60 kph limit and, at the transition point, a second 60 kph sign. In addition, there were two temporary signs posted on Major Mackenzie Drive almost immediately after the entry point from Highway 27 – a Construction Ahead sign and an orange and black Pavement Ends sign depicting a change in the road surface from asphalt to gravel.
[8] Mr. Morsi ignored these signs, especially the speed signs. The evidence from the police and the accident reconstruction expert witnesses advanced by the plaintiffs and the defendants was, on the question of speed, virtually identical – Mr. Morsi exited the long left turn at about 90 kph, accelerated hard onto the short straight section of the road, and reached a speed of 117-120 kph at the transition point.
[9] Unfortunately, at the transition point Mr. Morsi lost control of his car. The car slewed sideways, became airborne, flew over a ditch, and hit a telephone pole. Tragically, Mr. Morsi was killed.
[10] The plaintiffs, Mr. Morsi’s wife, two young children (one born after his death), father, brother and sister sued the two defendants. The parties agreed that damages were $1,700,000. The action proceeded to trial on the question of liability.
(2) The trial judgment
[11] In comprehensive reasons for judgment, the trial judge began by finding that York Region owed a statutory duty, pursuant to s. 44(1) of the Municipal Act 2001, S.O. 2001, c.25, to Mr. Morsi “to keep Major Mackenzie Drive in a reasonable state of repair in all the circumstances.” He also found that Fermar had a common law duty of care to Mr. Morsi “to carry out its responsibilities under the contract in a manner that did not create an increased risk of harm to the public.”
[12] The trial judge held that both defendants breached their duties of care to Mr. Morsi. He said:
I find that these defendants breached their duty of care by reason of a lack of inspection in the transition area on the date of the accident and a lack of adequate signage on Major Mackenzie Drive to warn of the change in the road surface.
[13] The trial judge also held that Mark Morsi’s driving at an excessive speed contributed to the accident.
[14] As stated above, the trial judge apportioned liability among the three parties at 50 per cent for Mr. Morsi and 25 per cent for each of Fermar and York Region.
C. ISSUE
[15] The sole issue on the appeal is whether the trial judge erred by finding the appellants partially liable for the accident resulting in the death of Mr. Morsi.
D. ANALYSIS
(1) York Region’s appeal
[16] Section 44(1) of the Municipal Act, 2001 imposes a statutory duty of care on municipalities with respect to the maintenance of highways and bridges:
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.
[17] York Region’s principal submission is that, having correctly stated the main issue and the test for resolving that issue, the trial judge failed to apply the test to the facts of this case. I agree with this submission.
[18] Early in his reasons, the trial judge said:
The issues in this proceeding are:
- Whether at the material time Major Mackenzie Drive was in a state of repair that was reasonable in the circumstances such that users of the road, exercising ordinary care, could travel upon it safely ... . [Emphasis added.]
[19] The trial judge’s formulation of the first issue in this fashion tracked the articulation of the relevant test from the leading decisions of the Supreme Court of Canada. As explained by the trial judge later in his reasons:
The standard of care imposed on municipalities to keep the highway in a reasonable state of repair has been discussed in a number of cases... The Supreme Court in Housen v. Nikolaisen, supra, reaffirmed the appropriate standard of care placed on municipalities pursuant to their respective applicable statutory obligations as set out in Partridge v. Rural Municipality of Lanenburg, 1929 CanLII 220 (SK CA), [1929] 3 W.W.R. 555 (Sask. C.A.):
The extent of the statutory obligation placed upon municipal corporations to keep in repair the highways under their jurisdiction, has been vicariously stated in numerous reported cases. There is, however, a general rule which may be gathered from the decisions, and that is, that the road must be kept in such a reasonable state of repair that those requiring to use it, may, exercising ordinary care, travel upon it with safety. [Emphasis added.]
[20] An earlier, and similar formulation of the test was stated by Kerwin J. in McCready v. Brant (County), 1939 CanLII 5 (SCC), [1939] S.C.R. 278 at 282:
It is undoubted law that they are not insurers of the safety of the travelling public. The obligation of a municipality in Ontario has been considered in numerous cases in the courts of that province but the problem has always been to apply the principle as exemplified in the words of Chief Justice Armour in Foley v. East Flamborough [(1898) 29 O.R. 139, at 141]:
I think that if the particular road is kept in such a reasonable state of repair that those requiring to use the road may, using ordinary care, pass to and fro upon it in safety, the requirement of the law is satisfied. [Emphasis added.]
See also: Raymond v. Bosanquet (Township) (1919), 1919 CanLII 11 (SCC), 59 S.C.R. 452 at 453.
[21] Unfortunately, the trial judge did not address the issue he specifically formulated or the test from Housen and Partridge he set out. He did review Mr. Morsi’s driving but in a way that, inferentially, does not meet the test he articulated. In his most comprehensive discussion of Mr. Morsi’s driving, he said:
I find as a fact that the late Mark Morsi operated his vehicle at a speed well in excess of the posted and advisory speed limit. The evidence of Detective Stock and the Varicom tests as well as the evidence of Constable Hebert and the various engineering experts establishes that if Mark Morsi had operated his vehicle at the posted speed or even a speed modestly above it, he would have been able to successfully negotiate the transition area. There is ample evidence in this case which demonstrates that speed was a significant factor in this collision. [Emphasis added.]
[22] It seems to me that the clear import of this passage, and especially the emphasized portion, is that if Mr. Morsi had driven at or even modestly above the speed limit or, in other words, had used ‘ordinary care’ while negotiating the reverse curve on the road, there would not have been an accident. In short, the trial judge’s own description of Mr. Morsi’s driving places it squarely inside the language from Housen, Partridge and Raymond that would absolve York Region of liability.
[23] In my view, the unfortunate reality is that the most appropriate word to describe Mr. Morsi’s driving is ‘reckless’. From his entry onto Major Mackenzie Drive to the accident scene, he covered a distance of about 400 metres. He obviously accelerated very rapidly as he drove through the long first curve because he exited it, the experts agree, at about 90 kph. He then accelerated again and over a short straightaway he reached a speed, the experts agree, of 120 kph. He then lost control, flew off the road, and hit a telephone pole. All of this happened in about 30 seconds. During that time, Mr. Morsi would have seen, and ignored, two 60 kph speed signs, a reverse curve warning and a 40 kph advisory sign, and two construction signs. He also would have seen and experienced the long first curve, seen the reverse curve straight ahead of him, and noticed that the road surface straight ahead of him was about to change. In the face of all this information, he chose to accelerate and reach a speed of 120 kph in a legal 60 kph zone with a curve advisory speed of 40 kph. This is not driving with ‘ordinary care’. This is not a driver making a mistake. This is reckless driving. As such, it absolves York Region under the test enunciated in the leading decisions of the Supreme Court of Canada set out above.
(2) Fermar’s appeal
[24] Fermar’s duty of care to Mr. Morsi was a common law duty, not a statutory duty.
[25] The trial judge identified the appropriate standard of care as set out in Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201 at para. 28:
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
[26] The trial judge found that Fermar had breached this standard of care by not properly inspecting the road surface at the transition point:
I further find that an inspection of the road surface conditions at the transition would have revealed the increased risk motorists would encounter as they passed through this portion of Major Mackenzie Drive. The risk, which materialized in this case, was the potential for drivers to lose control as they travelled from a freshly paved asphalt portion of the road to freshly surface treated portion. The risk was heightened for motorists, such as Mr. Morsi, travelling in excess of the posted speed limit, a likelihood which the employees of Fermar and York knew or should have known as a matter of common sense. [Emphasis added.]
[27] With respect, I think the trial judge erred by concluding that Fermar should have known as a matter of common sense that motorists “such as Mr. Morsi” would travel in excess of the posted speed limit at the transition point. Mr. Morsi entered the transition point, after a sharp acceleration, at 120 kph, double the posted speed limit of 60 kph and triple the speed advisory for the reverse curve of 40 kph. As a matter of common sense, Fermar should not be deemed to know that a driver would be so reckless on a curvy road with ongoing construction.
[28] In my view, the common sense reality about the road conditions at the transition point and their implications for highway safety were articulated by Detective Constable Gord Herbert in his testimony:
Q. And Detective Constable Herbert, since 1994 can you estimate how many serious fatal or life threatening accidents you have investigated?
A. I usually work on approximately thirty files a year.
Q. And you have seen accidents caused in your opinion by road conditions and or driver error?
A. Correct.
Q. On June 15th, 2005, did you identify any dangerous road conditions?
A. No, I did not.
Q. Do you have the power to call City forces to an accident scene to remove or to make safe a spill, remove gravel or loose sand or remove debris on the ground that you feel is a threat to traffic safety?
A. Yes, we do. We do it quite often at collision scenes.
Q. And did you do it in this case?
A. No, I did not.
Q. You did not feel that the gravel you had been speaking of was a dangerous road condition?
A. Not at all, no.
Q. Would you have opened this road after the accident if you thought it holds a danger to the public?
A. No. We would have called a representative from the Regional Roads.
Q. But you did, in fact, open the road after this collision?
A. Yes, we did.
[29] In a similar vein, the common sense reality about the road conditions at the transition point and their implications for highway safety were accurately stated by the trial judge in his reasons:
The evidence of Detective Stock and the Varicom tests as well as the evidence of Constable Hebert and the various engineering experts establishes that if Mark Morsi had operated his vehicle at the posted speed or even a speed modestly above it, he would have been able to successfully negotiate the transition area.
[30] In my view, this statement by the trial judge, grounded firmly in the evidence, precludes a finding of liability against Fermar. The cause of the accident was Mr. Morsi’s reckless driving, not any negligent conduct or omission by Fermar.
E. DISPOSITION
[31] I would allow the appeals, set aside the judgment of the trial judge, and dismiss the plaintiffs’ action against both defendants.
[32] The appellants are entitled to their costs of the appeal which I would fix at $15,000 each inclusive of disbursements and HST, if requested.
RELEASED: September 8, 2011 (“J.C.M.”)
“J.C. MacPherson J.A.”
“I agree R.G. Juriansz J.A.”
“I agree Karakatsanis J.A.”