Court of Appeal for Ontario

Date: May 26, 2017 Docket: C61442

Judges: Strathy C.J.O., Cronk and Pepall JJ.A.

Between

Lisa Marie Belanger, Craig Belanger, Christine Belanger, Lori Belanger, Aime Belanger, Gail Kennedy and John Laughlin Respondents (Plaintiffs)

and

The Regional Municipality of Sudbury and The City of Greater Sudbury Appellants (Defendants)

Counsel

C. Kirk Boggs and David Litwin, for the appellant, The Regional Municipality of Sudbury

Paul J. Pape, Shantona Chaudhury, Jerome Morse and Joanna L. Nairn, for the respondents

Heard: May 10, 2017

On appeal from the judgment of Regional Senior Justice R.D. Gordon of the Superior Court of Justice, dated November 17, 2015, with reasons reported at 2015 ONSC 7071.

Cronk J.A.:

Introduction

[1] This is a tragic case. It involves whether a municipality complied with its statutory obligation to keep one of its roads in a reasonable state of repair.

[2] On November 22, 2000, at approximately 11:15 a.m., then 20-year-old Lisa Marie Belanger was involved in a serious motor vehicle accident during a winter storm while she was driving southbound on Regional Road 35 ("RR35"), a two-lane "Class 1" road, in the Regional Municipality of Sudbury (the "Region"). Ms. Belanger's car crossed the centre line of the highway and collided with an oncoming school bus. She sustained catastrophic personal injuries in the collision from which she will suffer for the remainder of her life.

[3] After the accident, the respondents, Ms. Belanger and her family members, sued the appellant Region and also the City of Greater Sudbury in negligence, claiming that they had failed to meet their obligations under s. 284(1) of the Municipal Act, R.S.O. 1990, c. M.45 (the "Act"), as then in force, to keep RR35 in a reasonable state of repair.

[4] At trial, only liability was in issue. The parties agreed that the appropriate quantum of damages was approximately $12 million.

[5] The trial judge ruled in favour of the respondents, holding that the Region was 100% liable for the damages claimed. He found that RR35 was snow covered and slippery at the time and location of the accident and that these conditions constituted a state of non-repair within the meaning of s. 284(1). He also held that, but for these conditions, the accident would not have occurred and Ms. Belanger would not have sustained injury.

[6] On the trial judge's findings, RR35 was salted by one of the Region's road maintenance employees at about 7:15 a.m. on the day of the accident. Both lanes of the road were also twice plowed about three hours later, sometime between 10:15 and 11:15 a.m. However, by the time of this plowing, the 7:15 a.m. salting had lost its effectiveness due to dilution caused by falling snow and a refreeze of the road had occurred. As a result of the refreeze, the snow had already bonded to the asphalt of the road, rendering the plowing ineffective in clearing the road to bare pavement. The southbound lane of RR35, in which Ms. Belanger was travelling, was only re-salted shortly after the accident, more than four hours after the initial 7:15 a.m. salting.

[7] Before this court, the Region does not contest the trial judge's threshold finding that RR35 was in a state of non-repair at the time of the accident, in particular, his finding that a refreeze of RR35 occurred, as described above. Instead, it relies on the statutory defences to negligence set out in ss. 284(1.2) and 284(1.3) of the Act to avoid liability for the damages claimed. At the time of the accident, those sections provided that a municipality was not liable for failing to keep a highway or bridge in a reasonable state of repair: i) "if it did not know and could not reasonably have been expected to know about the state of repair of the highway or bridge" (s. 284(1.2)); or ii) "if it took reasonable steps to prevent the default from arising" (s. 284(1.3)).

[8] Relying on these statutory defences, the Region appeals from the trial judge's liability findings. It maintains that both defences were established at trial and the trial judge erred in holding to the contrary. The Region also argues that the trial judge erred in his apportionment of liability by failing to find that Ms. Belanger was contributorily negligent in the circumstances.

Issues

[9] The issues on appeal may be framed as follows:

(1) Did the trial judge err in his treatment of the statutory defences in ss. 284(1.2) and 284(1.3) of the Act?

(2) Did the trial judge err in his treatment of the Region's contributory negligence claim?

Discussion

[10] In several recent cases, this court has considered the duty of a municipality regarding road maintenance and the statutory defences to a claim in negligence against a municipality based on its alleged non-repair of a road, including in winter storm conditions: see for example: Lloyd v. Bush, 2017 ONCA 252; Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, 327 O.A.C. 302; Frank v. Central Elgin (Municipality), 2010 ONCA 574, O.J. No. 3736. These cases confirm that proof of a state of non-repair, as in this case, is not in itself sufficient to establish a municipality's liability for the alleged failure to meet its duty of road maintenance. The Lloyd court explained, at para. 64:

Rather, a municipality will only be liable for failing to salt and/or sand and clear the road of snow where it had actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway, and where the municipality unreasonably neglected that risk. [Citations omitted.]

[11] With this principle at the forefront, I turn to the Region's core submission that the trial judge's liability findings are unsustainable.

(1) Section 284(1.2) Statutory Defence

[12] The trial judge held, at para. 105, that the Region:

[F]ailed to meet its maintenance quality standards when [RR35], in a winter storm event, was left without maintenance activity for over three hours. That lack of maintenance activity resulted in snow-packed and slippery road conditions. That those conditions could result ought to have been known by the employees of the [Region]. [Emphasis added.]

[13] The Region attacks these key findings on several grounds. It submits that the Region could not be held to reasonably have known about the risk of a refreeze at the site of the accident because: i) the accident location was not a "hot spot", that is, the Region had no knowledge of any problems at this location in the past or on the day of the accident; ii) the accident site was also not a "refreeze magnet", in the sense of presenting as being at any particular risk of a refreeze; iii) none of the Region's involved employees had any experience with a refreeze in the conditions that existed on the day of the accident; iv) the Region's road maintenance quality standards, which were not met in this case, are not determinative of the standard of care; and v) the trial judge made no finding that the Region could reasonably have known about the risk of a refreeze based on the maintenance activities it undertook on the day in question.

[14] In my view, these submissions do not undercut the trial judge's impugned finding that the s. 284(1.2) defence was not made out in this case. As I will elaborate, it is my opinion that the trial judge's factual findings, to which deference is owed by this court absent a showing of palpable and overriding error, essentially are dispositive of this ground of appeal.

[15] Based on the evidence at trial that the trial judge accepted, he made the following critical findings:

A. Region's Standards and Recommended Procedures

(1) the Region's road maintenance quality standards for winter plowing, sanding and salting provided that, for Class 1 roads like RR35, "coverage (either plowing or spreading) intervals shall not be greater than every 2 hours throughout the storm" (emphasis in original) and Class 1 and 2 roads were to have "First Priority" (emphasis in original);

(2) the Ministry of Transportation's coverage guidelines for Class 1 roads, as then in force, were substantially to the same effect;

(3) the Region's recommended procedures for the salting of roads, streets and lanes stated in part:

2. Spread salt before snow accumulates so that a "brine sandwich" develops. This will prevent snow from sticking to the pavement, removal will be easier and bare pavement will result.

3. Cover route as often as possible, but not before the first application has a chance to work (usually 1 hour); and

(4) the Region's winter road maintenance quality standards and recommended salting procedures were not met in this case.

B. Weather Conditions

(5) initially, before 7:00 a.m. on the morning of the accident, the weather forecast called for only light snow (0.5 cm); however, at 8:17 a.m. the forecast changed to anticipate heavier snow;

(6) November 22, 2000 was a bitterly cold day. At the time of the accident, the temperature was about -11.6 Celsius, with heavy wind blowing from the north at approximately 25 kilometres per hour; and

(7) the amount of precipitation increased throughout the morning. Before 7:00 a.m., only 0.5 cms of snow fell; however, between 8:00 a.m. and 11:00 a.m., the total snow accumulation was approximately 5 cms.

C. Road Conditions

(8) at the time of the accident, RR35 was in a treacherous, snow-packed and slippery condition.

[16] As I have said, the trial judge also addressed the road maintenance activities carried out by the Region on RR35 on the morning of the accident. To repeat, he found that:

(1) the relevant stretch of road on RR35 was salted by a Region employee at 7:15 a.m. on the day of the accident;

(2) due to a series of unanticipated equipment failures, the road was not serviced again until between 10:15 a.m. and 11:15 a.m., when a Region employee twice plowed both the north and southbound lanes of RR35. Plowing occurred in the southbound lane not later than 10:45 a.m.; and

(3) re-salting of the bridge on the southbound lane of RR35, where the accident occurred, was not undertaken until shortly after 11:15 a.m., by which time the accident had already taken place.

[17] The trial judge's findings regarding the Region's RR35 road maintenance activities are amply supported by the record and are not contested. They establish that from 7:15 a.m. to approximately 10:15 a.m. – a period of three hours – the Region failed to carry out any maintenance works on RR35, notwithstanding that snow continued to fall and it remained windy and bitterly cold. Moreover, re-salting of the southbound lane of the road did not take place at any point prior to the accident.

[18] The Region emphasizes that plowing of RR35 did occur between 10:15 a.m. and 11:15 a.m. (including, in the southbound lane, by no later than 10:45 a.m.) and that the trial judge found that, allowing for the time required to prepare the plow for use and for it to arrive at the starting point of its assigned route, the timing of the plowing was reasonable.

[19] This is accurate. However, the trial judge also accepted the evidence of the respondents' winter road maintenance expert, Russell Brownlee, that the road surface and weather conditions after the application of salt on RR35 at 7:15 a.m. were consistent with the risk of a refreeze and an accumulation and packing of snow on the road.

[20] Mr. Brownlee further testified that the concept of a refreeze was well known in the winter maintenance industry, a fact that the Region did not contest at trial and does not contest now. He gave the following evidence regarding the risk of a refreeze on RR35 in the conditions that existed on November 22, 2000:

The road temperatures experienced on November 22nd in the morning under cloudy skies or overcast skies would reduce the effectiveness of road salt on this particular day. The reported wind speeds did have the potential to cause drifting snow, which would create an additional challenge, and these two things in combination with, along with the snow, the anticipated snowfall accumulation would make it a challenge to prevent a refreeze of the salt and snow brine on the roadway in, in, in [sic] combination with these things.

[21] Mr. Brownlee also outlined the preventative steps necessary to avoid a refreeze. He said that this required consistent and sequenced plowing and salting of a roadway. Specifically, he testified that plowing should follow the salting of a road within half an hour to an hour, to clear the salt and melting snow from the road. Salt should then be reapplied, and the salting/plowing sequence should continue until the snowfall stops and bare pavement conditions have been achieved.

[22] According to Mr. Brownlee, in light of the prevailing weather and road conditions on the morning of the accident, this plowing and salting sequence on RR35 "needed to be returned in a cycle that was continuous and consistent to reduce the likelihood of the road, the, the [sic] snow that's falling to pack on the roadway, to bond to the surface of the roadway, and for the roadway to, surface to refreeze". He offered the opinion that, in this case: i) the Region's road maintenance operations "were not properly staged to plow off the falling or blowing snow that was on the road surface in conjunction with the [timing of the original salt application]"; ii) the mixture of the prevailing road temperatures, wind speed and snowfall on November 22, 2000 "would [have made] it a challenge to prevent a refreeze of the salt and snow brine on the roadway"; and iii) the Region "didn't get there in time and the salt was overwhelmed by the snowfall".

[23] As I have indicated, the trial judge accepted Mr. Brownlee's evidence on this critical issue. He found, at paras. 50 and 57 of his reasons, that Mr. Brownlee's explanation of a refreeze on RR35 "best reflects what is likely to have happened on November 22, 2000" and "why, notwithstanding the plowing that took place in the hour before the accident, the road remained snow covered and slippery."

[24] The trial judge concluded that the Region ought to have known of the risk of a refreeze on RR35 and of the fact that the failure to meet its road maintenance quality standards for RR35 could lead to a state of non-repair.

[25] The Region takes aim, especially, at the trial judge's treatment of the evidence of the Region's maintenance employees who testified that they had never experienced a refreeze in winter conditions equivalent to those that applied to RR35 on the morning of the accident. The Region argues that, based on this evidence, the Region's employees could not be held to have known or be expected to have known of the potential for a refreeze on RR35 in the conditions that existed on the day of the accident.

[26] The trial judge dealt expressly with this argument. He stated, at para. 101:

I have difficulty with the position of the Defendant on this point for three reasons. First, a close examination of the evidence of those three foremen indicates that although they had not experienced a refreeze in similar winter conditions they had not been posed the question in the context of their having been no further winter maintenance on the road for over three and [a] half hours. Secondly, the employees of the Defendant knew the maintenance standards and knew the standards were designed to prevent a situation of non-repair. They should have easily been able to adduce [sic] that failure to meet those standards could result in non-repair even if they did not appreciate the precise reason. Thirdly, the evidence of Mr. Brownlee, the Plaintiffs' expert, was that the refreeze principle is well known in the winter road maintenance industry.

[27] The Region contends that this reasoning reflects errors of both fact and law and furnishes no basis for fixing the Region with actual or constructive knowledge of the risk of a refreeze on that part of RR35 where the accident occurred.

[28] I disagree for several reasons.

[29] First, the trial judge was entitled to accept Mr. Brownlee's expert evidence notwithstanding the evidence of the Region's employees, and to conclude, as he did, that the Region's employees ought to have known of the risk of a refreeze on RR35 due to the snow-packed, slippery and salt and snow brine conditions on the road. It is undisputed that the risk of road refreezes during winter storm events is well known in the road maintenance industry. The Region, through its employees, therefore must be taken to have known of this risk, a proposition that the Region does not generally dispute. Representatives of the Region certainly knew that RR35 had not been re-salted and they knew of the prevailing weather and road conditions during the morning of the accident, which, in combination, could trigger a refreeze if proper and timely maintenance works were not carried out. Yet, contrary to the Region's standards and procedures, no re-salting of RR35 was undertaken within the two hours following the first salting at 7:15 a.m.

[30] Recall, in this regard, that the Region's standards and procedures contemplated maintenance works in circumstances that could trigger a refreeze. They provided: i) for the spreading of salt before snow accumulated in order to prevent snow from sticking to the pavement and to facilitate snow removal; ii) the intervals between road maintenance activities (plowing or spreading) during a winter storm were to be no greater than every two hours; iii) Class 1 roads were to be assigned maintenance priority; and iv) roads were to be "covered" by maintenance activities "as often as possible" during a snow event.

[31] In the case of RR35, these standards and procedures were not followed. As set out above, Mr. Brownlee testified that, in the prevailing conditions, a refreeze of RR35 was not only possible, but it would be "a challenge" to prevent it.

[32] In these circumstances, I agree with the respondents' submission that the fact that the Region's employees had never experienced a refreeze in the past in the type of conditions that existed on the morning of the accident does not mean that they should have been unaware of the risk of a refreeze in similar conditions. It was open to the trial judge, on the evidence, to find that they reasonably ought to have known of this risk.

[33] Second, the Region submits that the trial judge erred by treating a breach of the Region's standards and procedures, as occurred here, as tantamount to a breach of the standard of care applicable to the Region's statutory duty to keep RR35 in a reasonable state of repair.

[34] I do not read the trial judge's reasons in the manner urged by the Region. The knowledge of the Region's employees that the applicable standards and procedures were designed to prevent the occurrence of a state of highway non-repair, and that they had not been met on the day in question, was only one factor considered by the trial judge in concluding that the Region's employees reasonably ought to have known of the risk of a refreeze on RR35.

[35] The fact of non-compliance with the Region's applicable winter road standards and procedures was a relevant and necessary consideration. And the trial judge did not indicate that the Region's failure to comply with these standards and procedures established a breach of the standard of care. Rather, his finding that the Region's employees ought to have known of the risk of a refreeze on RR35 was based on the particular facts and circumstances of this case, including the Region's failure to adhere to its own standards and procedures, Mr. Brownlee's evidence about the well-known phenomenon of refreeze and the steps necessary to prevent it, and the weather and road conditions on the day of the accident.

[36] At the end of the day, the trial judge held that the Region's employees reasonably ought to have been expected to know of the emergence of conditions on RR35 giving rise to the risk of a refreeze, conditions that were caused by the Region's failure to employ the plowing and salting sequence of preventative maintenance works outlined by Mr. Brownlee and contemplated by the Region's own standards and procedures. In my view, this holding is unassailable. It is fatal to the Region's s. 284(1.2) defence.

(2) Section 284(1.3) Statutory Defence

[37] Relying on this court's decision in Lloyd, the Region argues that the trial judge erred in his consideration of its s. 284(1.3) 'reasonable steps' defence by failing to consider the reasonableness of the maintenance steps actually undertaken by the Region on RR35 on the morning of the accident, instead focusing on the steps that the Region could have taken in the circumstances. The Region says that the trial judge, like the trial judge in Lloyd, impermissibly concentrated his reasonableness analysis on the results of the Region's efforts, rather than evaluating whether the Region had acted reasonably in all the circumstances.

[38] I would reject this argument.

[39] As in this case, Lloyd involved a statutory 'reasonable steps' defence advanced by a municipality in relation to its road maintenance work during a winter snow event. The Lloyd court held that the trial judge in that case, when evaluating the municipality's statutory defence, erred by focusing on whether the existing state of roadway non-repair had been corrected by the municipality, rather than on the reasonableness of the steps that were actually taken by the municipality. Lloyd holds that what the trial judge should have done was to focus on the evidence about the municipality's response to the relevant snow event. However, the trial judge's reasons in Lloyd contained no clear findings as to what the municipality had done, and virtually no analysis or discussion of the reasonableness of its response in light of all the relevant circumstances: Lloyd, at paras. 79, 85 and 86. On this ground, among others, this court concluded that the trial judge's rejection in Lloyd of the municipality's statutory defence could not stand.

[40] That is not this case. Here, in my view, the trial judge's reasons clearly indicate that he appreciated the requirement that he assess the reasonableness of the road maintenance works actually performed by the Region on the day in question and that he undertook this analysis.

[41] Unlike the trial judge in Lloyd, the trial judge made specific findings about the nature and timing of the Region's road maintenance activities on RR35 and elsewhere in the Region on the day of the accident. I have described his findings concerning RR35 earlier in these reasons.

[42] The trial judge also identified the arguments advanced by the respondents in support of their assertion that the steps taken by the Region to maintain RR35 were unreasonable. He addressed each of those arguments in turn, and the Region's responses to them, in his reasons.

[43] The trial judge was entitled to structure his reasonableness analysis under s. 284(1.3) to respond to the case run at trial, including the arguments advanced by the parties. His reasons confirm, contrary to the Region's submission, that he did undertake the requisite analysis whether the steps actually taken by the Region were reasonable in all the circumstances. Having listed the maintenance works that he found the Region had undertaken on RR35, the respondents' arguments on the reasonableness of those works in the circumstances, and the Region's responses, the trial judge devoted 36 paragraphs of his reasons to the question whether the Region's efforts were reasonable.

[44] In so doing, the trial judge addressed: i) the amount of loose snow accumulation on RR35; ii) whether the Region's road maintenance work crews failed to meet the two-hour return time for maintenance on RR35 contemplated under the Region's road maintenance quality standards; iii) whether the Region's "efforts to meet the two hour return period by the [salt] spreader [were] reasonable"; iv) the availability and use by the Region of spare equipment; v) whether there was a failure to communicate by the Region's employees, as the respondents alleged; and vi) whether the Region had failed to adequately patrol its roads on the day of the accident. The trial judge made specific factual findings in respect of each of these issues, some favouring the Region and others favouring the respondents.

[45] In view of this analysis by the trial judge, I do not think this case mirrors Lloyd in the manner asserted by the Region. That the trial judge in this case might have structured his reasons in another fashion, or made different factual findings more helpful to the Region, is irrelevant. It is not the function of this court to re-try the case or, absent reversible error, to second-guess the trial judge's factual findings. The important point is whether the trial judge considered, as he was obliged to do, the reasonableness of the maintenance works in fact carried out by the Region on RR35. In my opinion, his reasons demonstrate that he did so.

[46] I find further support for this conclusion in the trial judge's reference, at para. 17, to this court's decision in Frank. The trial judge quoted from para. 7 of that decision, in which the Frank court confirmed that s. 284 of the Act does not impose on a municipality "a duty to repair every adverse road condition" and that "municipalities ought not to be turned into insurers of the safety of the driving public by imposing overly onerous maintenance obligations." The trial judge thus appreciated that the operative standard under s. 284(1.3) of the Act for assessing a municipality's road maintenance works is one of reasonableness, not perfection: Frank, at para. 12.

[47] I note that Frank also holds, at para. 10, that a municipality's duty of repair arises "in any situation where road conditions create an unreasonable risk of harm to users of the highway". The Frank court states, at para. 12: "[W]here winter road conditions give rise to an unreasonable risk of harm, a municipality must show that it took reasonable steps to eliminate or reduce the damage within a reasonable time after it became aware of the danger." This was the central issue at trial in respect of the Region's s. 284(1.3) defence. And it is this inquiry that, in my opinion, the trial judge addressed.

[48] It is true that, in the course of his 'reasonable steps' analysis, the trial judge considered those steps that he concluded were available to the Region and that, if undertaken, might have averted the development of road conditions on RR35 that were ripe for a refreeze. He held that the Region failed either: i) to assign a salt spreader to salt RR35 in a timely fashion; or ii) to require that one of its available road maintenance contractors, Mr. Edward Marynuk, drop salt on RR35 when he passed through the accident area approximately one hour prior to the accident while en route to his assigned maintenance route. The trial judge concluded, at para. 105, that if either action had been taken, RR35 "would not have been in the treacherous condition it was [in] when the accident occurred and it is likely that the accident would not have occurred at all".

[49] The Region argues that, in considering these additional or alternate steps, the trial judge erred in law and misdirected himself. The Region submits that, in order to establish its s. 284(1.3) defence, it was required to prove only that the steps it took to prevent a state of non-repair on RR35 were reasonable, and not that it took all reasonable steps to do so. In support of this submission, the Region renews its argument that the trial judge erred by asking whether the Region could have acted differently, rather than assessing whether the Region acted reasonably in the circumstances it faced.

[50] Again, I disagree.

[51] In considering this argument, it is important to bear in mind that, under s. 284(1.3) of the Act, the Region bore the onus of establishing the defence that it advanced, namely, that the steps it took on the morning of November 22, 2000 to prevent a state of non-repair from arising on RR35 were reasonable: see for example, Fordham, at para. 26.

[52] As I have explained, the trial judge's finding that those steps were not reasonable in all the circumstances was not anchored solely in his consideration of the alternate or additional steps available to the Region. He conducted a detailed analysis whether the actual steps undertaken by the Region were in fact reasonable and concluded that, in several material respects, they were not. He thusd, in effect, that the Region had failed to meet its onus to establish the s. 284(1.3) statutory defence. His findings in this regard are supported by the evidence and, consequently, they attract deference from a reviewing court unless they are tainted by palpable and overriding error. No such error has been demonstrated by the Region.

[53] I note also that the Region failed to call any evidence at trial to contradict Mr. Brownlee's opinion regarding the maintenance works required to avoid a refreeze. Nor did it lead expert evidence that its failure to meet its own road maintenance quality standards and recommended salting procedures was unavoidable in the circumstances on account of its numerous equipment breakdowns or other factors.

[54] The critical undisputed facts remain that the Region failed to re-salt RR35 after the 7:15 a.m. salt application, until after the accident had occurred, and its plowing of the road was ineffective due to the road conditions it had allowed to develop. The trial judge reviewed in detail the evidence about whether it was reasonably possible for the Region to have re-salted before 11:15 a.m. on the day of the accident. He made two important findings in this regard.

[55] First, he held that, on the state of the evidentiary record, he was unable to find that one of the Region's spare salt spreaders, Unit R-136, was unavailable for use on RR35 before the road was plowed. This is significant because the trial judge also found that, if Unit R-136 had been mobilized to service RR35, its operator could have passed over the scene of the accident, depositing salt in the southbound lane of the road, at about 10:30 a.m. This would have permitted the salt to begin to work on the road and the fallen snow before plowing took place in advance of the accident.

[56] The trial judge's appreciation of the sufficiency of the evidence regarding the availability of Unit R-136 attracts deference from this court. The Region's complaint that the trial judge failed to draw a "logical", "inescapable" and "common sense" inference that Unit R-136 was not available for use on RR35 at the material time cannot succeed. In effect, the Region invites this court to engage in speculation regarding the availability of Unit R-136 and criticizes the trial judge for properly declining to do so. The reality is that the Region failed to establish at trial the whereabouts of Unit R-136 during the relevant time period and, hence, that it was unavailable to be deployed to re-salt RR35.

[57] Second, as I have already mentioned, the trial judge found as a fact that Mr. Marynuk, one of the Region's contractors, was on RR35 in the area of the accident scene at approximately 10:15 a.m., when re-salting of the road could have been accomplished. On the trial judge's findings, Mr. Marynuk's machine had a full load of salt and his use of it on RR35, if he had been ordered to do so, would not have required his diversion from his assigned, regular route – he was passing through the accident scene in any event.

[58] Yet, the responsible Region foreman failed to direct Mr. Marynuk that RR35 required servicing and that he should use some of his salt load on RR35 while en route to his assigned destination. Indeed, at the appeal hearing, the Region was unable to point to evidence of any communications among the responsible Region employees between 7:15 a.m. and 11:15 a.m. on November 22, 2000 regarding the road conditions on RR35 and its need for servicing, or the potential risk of a refreeze of the road.

[59] The evidence concerning the additional or alternate road maintenance steps available to the Region, in my opinion, properly informed the trial judge's analysis of the reasonableness of the steps taken by the Region to prevent the build-up of conditions on RR35 that could lead to a refreeze. Further, in considering what the Region could have done, the trial judge was responding directly to the Region's argument at trial that, given the number of unanticipated equipment breakdowns it had experienced on November 22, it had taken all reasonable, available steps in the circumstances and it could not have done any more. The trial judge cannot be faulted for coming to grips with an argument advanced by the Region in defence of its conduct.

[60] I make these final comments concerning the Region's attack on the trial judge's findings regarding Mr. Marynuk's potential re-salting of RR35. The Region submits that the trial judge's impugned findings regarding the potential re-salting of RR35 by Mr. Marynuk fail to recognize that other, similar roads in the area of RR35 were subject to the same weather conditions on November 22, 2000 and also required servicing on an equal priority basis.

[61] There are two difficulties with this submission. First, as I have said, the trial judge found that the use by Mr. Marynuk of his spreader to re-salt RR35 would not have required that he be diverted from his assigned route. It simply required timely communications between the Region's foreman and Mr. Marynuk. This did not occur.

[62] Second, unlike RR35, the adjacent routes in question do not appear to have required urgent re-salting. The first salting route, S11, was Mr. Marynuk's assigned route for maintenance work. He was en route to S11, to salt it for the first time that day, when he travelled over the area of the accident scene. Hence, the risk of a refreeze due to ineffective early salting of S11 did not arise. RR35 forms part of another salting route, S4. Portions of S4 had been salted during the morning of November 22. Unlike RR35, these other portions of S4 were also plowed at a time that permitted removal of the salt/snow brine that had developed on the route. As a result, no risk of a refreeze arose concerning the S4 route either, except with respect to RR35.

[63] Thus, for varying reasons, neither of these other roads presented the same risk of a refreeze or emergent hazard as applied to RR35 during the relevant period on the day of the accident.

[64] In my view, it therefore cannot be said that this is a case involving the allocation by the Region of reduced resources to multiple and competing, potential hazards of equal priority. Rather, it is a case where the Region failed to recognize, but reasonably ought to have known of, the risk of a refreeze on RR35 due to its failure to re-salt the road on a timely basis. Consequently, the Region failed to respond to that risk in a reasonable fashion under all the circumstances. Since the Region failed to undertake any responsive road salting activities for more than four hours after its initial salting of RR35, this is also not a case where, as in Ondrade v. Toronto (City), 2006 O.J. No. 1769 (S.C.J.), a case cited by the Region, its actions may be regarded as falling within a range of reasonable responses to the risk of harm to users of the highway that emerged on RR35 during the morning of the accident.

[65] For these reasons, I see no basis for appellate interference with the trial judge's treatment of the Region's s. 284(1.3) defence.

(3) Contributory Negligence

[66] The trial judge made two key findings concerning the Region's claim that Ms. Belanger was negligent. First, he found, at para. 61, that Ms. Belanger "sudden[ly]" and without explanation lost control of her vehicle and that this loss of control and her inability to regain complete control of her car once it began to fishtail on the road, would not have occurred but for the slippery road conditions on RR35.

[67] Second, given the slippery road conditions, he further found, at para. 111, that "in the absence of some evidence of an overt decision, action or adjustment" by Ms. Belanger that would cause her to lose control of her vehicle, her loss of control was "as consistent with [the] normal and safe operation of her vehicle as it [was] with some act of negligence on her part".

[68] The Region argues that these findings are fatally flawed because the trial judge failed to appreciate that, as a matter of law, a presumption of negligence applied as against Ms. Belanger because her vehicle crossed the centre line of the road: see El Dali v. Panjalingam, 2013 ONCA 24, 113 O.R. (3d) 721, at paras. 17-18. This error, the Region says, led the trial judge to further err by concluding that the Region bore the onus to prove Ms. Belanger's negligence when, as a matter of law, Ms. Belanger bore the onus of rebutting the presumption of negligence.

[69] I would not accede to this submission in this case.

[70] As the Region points out, the trial judge does not refer expressly to the presumption of negligence in his reasons. However, while it might have been preferable if he had done so, the record reveals that the Region's invocation of the presumption was specifically addressed at trial. In his closing submissions, the Region's counsel dealt in some detail with the Region's allegation of contributory negligence, including the operation of the presumption. He stated with reference to the presumption: "That presumption is not rebutted here (for example, because the crossing of the line occurred in the course of a loss of control)."

[71] In light of this submission, there can be no doubt that the trial judge was aware of the Region's reliance on the presumption. Moreover, the Region appears to have acknowledged that if it was established that Ms. Belanger crossed the centre line of the roadway "in the course of a loss of control" of her vehicle, this would suffice to rebut the presumption of negligence. And this is precisely what the trial judge found had occurred. It is implicit in his finding that he considered the presumption and found that Ms. Belanger had lost control of her car. As the Region had acknowledged in its closing argument, this was sufficient to rebut the presumption on the facts.

[72] I am satisfied, in any event, that the presumption was rebutted in this case. There was no evidence at trial of any action or omission attributable to Ms. Belanger that caused her car to cross the centre line of the highway. Nor, as the trial judge noted at para. 108, was there any suggestion that she engaged in "any deliberate maneuver that could be construed as unusual or dangerous". There was also no evidence that Ms. Belanger was inattentive to or distracted from her driving, or that the condition of her car contributed in any way to the accident. The trial judge also found that she was not driving at an excessive speed. And several other drivers at or near the scene testified that they, too, had experienced difficulties controlling their cars due to the slippery road conditions. Notably, none of these findings is challenged by the Region. Finally, while the Region stresses that Ms. Belanger did not have snow tires on her car, other drivers at the accident scene similarly had chosen to use non-snow tires on their vehicles.

[73] In these circumstances, and on this evidentiary record, I am unable to conclude that the trial judge erred in his consideration of the Region's contributory negligence claim against Ms. Belanger. When his reasons are read in the context of the case advanced and argued by the Region, I conclude that the trial judge fairly considered this claim, the evidence bearing upon it, and the application of the presumption of negligence. Accordingly, there is no basis for appellate interference with his apportionment of liability.

[74] This ground of appeal, therefore, also fails.

Disposition

[75] For the reasons given, I would dismiss the appeal. The respondents shall deliver their brief written costs submissions to the Registrar of this court within 14 days of the release of these reasons. The Region shall deliver its brief responding costs submissions within 14 days thereafter.

Released: May 26, 2017

E.A. Cronk J.A.

G.R. Strathy C.J.O. (I agree)

S.E. Pepall J.A. (I agree)