Court of Appeal for Ontario

CITATION: Mark v. Guelph (City), 2013 ONCA 536

DATE: 20130830

DOCKET: C55819

Sharpe, Epstein and Lauwers JJ.A.

BETWEEN

Nathanial Mark

Plaintiff (Respondent)

and

The Corporation of the City of Guelph, The Corporation of the County of Wellington and Louis Sutter

Defendants (Appellants)

Terry Shillington and Jonathan de Vries for the appellants

Gary L. Petker for the respondent

Heard and released orally: August 26, 2013

On appeal from the judgment of Justice Nancy M. Mossip of the Superior Court of Justice, dated June 22, 2012.

ENDORSEMENT

[1] The appellant municipality does not dispute the trial judge’s finding of negligence in relation to its responsibility for failing to respond adequately to the icy condition of the road. The appellant submits however that the trial judge erred by failing to apply the presumption of negligence that arises because the respondent went over the centre line of the road.

[2] We disagree with that submission. In our view, the trial judge identified evidence capable of rebutting any presumption that arose because the respondent traversed the center line.

[3] The respondent testified as to the steps he took to verify the condition of his truck and the roadway prior to the accident. There was evidence that he was not going too fast at the time of the accident. Significantly, the accident reconstruction expert testified that he saw no other cause for the accident other than the icy condition of the road and for that, the municipality is responsible.

[4] This case is clearly distinguishable from El Dali v. Panjalingam, 2013 ONCA 24 where the defence called no evidence to rebut the presumption and more or less conceded that his negligence contributed to the accident.

[5] The appeal is dismissed. In accordance with the agreement of the parties, costs to the respondent fixed at $35,000 inclusive of disbursements, plus HST.

“Robert J. Sharpe J.A.”

“Gloria Epstein J.A.”

“P. Lauwers J.A.”