COURT OF APPEAL FOR ONTARIO

CITATION: Greenhalgh v. Douro-Dummer (Township), 2012 ONCA 299

DATE: 20120508

DOCKET: C51534

Before: Blair, Lang and Hoy JJ.A.

BETWEEN

Jessica Darlene Greenhalgh, Gary Greenhalgh, Eileen Greenhalgh, and Robyn LaDuke, Lee LaDuke, Diane LaDuke and Aaron LaDuke

Plaintiffs (Appellants)

and

The Corporation for the Township of Douro-Dummer and Henry Weidner

Defendants (Respondent)

Counsel:

Paul J. Pape and Nicolas M. Rouleau, for the appellants

David G. Boghosian, Sachin Persaud, Avril Allen and Shaneka Taylor, for the respondent

Heard and released orally: April 27, 2012

On appeal from the judgment of Justice Peter Lauwers of the Superior Court of Justice, dated December 17, 2009.

ENDORSEMENT

[1] Jessica Greenhalgh and her parents, Gary Greenhalgh and Eileen Greenhalgh, appeal from the judgment of Lauwers J. of December 17, 2009, which dismissed the appellants’ claims for damages arising from the events that befell the appellant, Jessica Greenhalgh, on January 14, 2000.

[2] On that evening, Ms. Greenhalgh, then 18, and her friend, Robyn LaDuke, then 20, went on what the trial judge referred as a form of “back road tour” by car, in the rural area in which they lived, in minus 20 degree weather. They frequently went on those back road adventures. They headed down Rusaw Lane, a little used public road, which dead-ends after 1.4 km at a wide, turnaround area. They had been on Rusaw Lane before. Indeed, on a prior back-road adventure, Ms.Greenhalgh, Ms. LaDuke and two of their friends, “went all the way down Rusaw [Lane] and ended up gettin’ stuck on a boulder on one of the pathways” running off of the turnaround.

[3] On the evening of January 14, 2000, Ms. Greenhalgh and Ms. LaDuke proceeded along a narrow, lane running off the turnaround area. They made a sharp right turn onto another laneway known as Weidner Lane. Ultimately, their car became stuck on a hydro right-of-way which they accessed from Weidner Lane.

[4] Sometime later, they abandoned the car and set off by foot, leaving empty alcohol bottles behind. Ms. Greenhalgh wore no coat, mittens or hat. There were blankets and other warm clothing in the car. She lost her unlaced boots and proceeded bare foot. By the time that they were discovered the next morning, Ms. Greenhalgh and Ms. LaDuke had suffered severe injuries from frostbite. Ms. Greenhalgh eventually lost both legs at mid-calf and parts of four fingers on each hand.

[5] The respondent Township had jurisdiction over Rusaw Lane and was under a statutory duty of care to keep it in a reasonable state of repair. Signage is an element of repair.

[6] The appellants argue that the trial judge made three errors in dismissing their claims.

(i) First, he erred in concluding that the Township’s failure to post “No Exit” signs at the entry to Rusaw Lane and a “checkerboard sign”, signifying that Rusaw Lane ended, at the turnaround point did not breach the standard of care;

(ii) Second, he erred in finding that, in any event, the failure to post these signs did not cause the injuries sustained by Ms. Greenhalgh; and

(iii) Third, he erred in his application of the discount rate in the calculation of damages he undertook in the event he was found to have erred in finding that the Township had no liability to the appellants.

[7] In our view, the appeal fails on the issues of the breach of standard of care and causation.

[8] The trial judge conducted a thorough and rigorous review of the evidence. He made a clear finding that there were no “conditions upon or adjacent to the highway that are potentially dangerous to the road users” at the end of, or immediately beyond the end, of Rusaw Lane that would not have been apparent to a reasonable driver (whether or not experienced) and accordingly required an advance warning.

[9] There was ample evidence on the record to support this finding and we see no palpable or overriding error on the part of the trial judge in arriving at it. The turnaround was obviously designed to permit a driver to turn around at the road’s end with ease. The appellants’ own expert noted the sharp turn that Ms. Greenhalgh and Ms. LaDuke had to make to access Weidner Lane, and the changes in the road’s surface. The narrow, bumpy, single-lane laneway that Ms. Greenhalgh and Ms. LaDuke proceeded down clearly differed from the well-maintained, two-lane Rusaw Lane.

[10] The trial judge also made a clear finding that Ms. Greenhalgh and Ms. LaDuke would have paid no heed to “No Exit” signs posted at the intersection of Rusaw Lane and County Road 40 or to a checkerboard sign at the end of Rusaw Lane. They would have continued on their adventure in any event. Again, there was ample evidence on the record to support this inference, which underpins the trial judge’s conclusion on the causation issue. There was no palpable and overriding error.

[11] In the result, the appeal must be dismissed. Given the foregoing, it is not necessary for us to address the third issue of the discount rate raised by the appellants.

[12] The respondent Township shall be entitled to its costs of the appeal fixed in the total amount of $40,000, inclusive of disbursements and taxes, payable as to $38,750 by the appellant, Jessica Greenhalgh, and as to $1,250, jointly and severely, by the appellants Gary and Eileen Greenhalgh.

“R.A. Blair J.A.”

“S.E. Lang J.A.”

“Alexandra Hoy J.A.”