COURT OF APPEAL FOR ONTARIO DATE: 20231124 DOCKET: COA-22-CV-0037
Doherty, Nordheimer and George JJ.A.
BETWEEN
Melinda Wasylyk, Steven Wasylyk, Kim Wasylyk and Rachelle Wasylyk, by her Litigation Guardian Steven Wasylyk Plaintiffs (Respondents)
and
The Corporation of the County of Simcoe, Doreen G. Wos and the Corporation of the Township of Bradford Defendants (Appellants)
Counsel: Andrew A Evangelista and Avi Cole, for the appellants J. Thomas Curry and Derek Knoke, for the respondents
Heard: October 20, 2023
On appeal from the judgment of Justice Annette Casullo of the Superior Court of Justice, dated July 29, 2022, reported at 2022 ONSC 4458.
Doherty J.A.:
OVERVIEW
[1] At about 10:30 p.m. on January 12, 2011, Melinda Wasylyk (the respondent) was driving her vehicle eastbound toward Bradford, Ontario on County Road 88 (“CR 88”) in the County of Simcoe. She collided with a vehicle being driven westbound by Ms. Darlene Wos. Sadly, the respondent suffered catastrophic injuries.
[2] The respondent initially sued Ms. Wos, the Township of Bradford and the appellant, the County of Simcoe (“Simcoe”). By the time of trial, only Simcoe remained in the action. Damages in the amount of $16 million were agreed upon prior to trial.
[3] CR 88 is a busy two-lane roadway. It was cold and snowy along CR 88 on both January 11th and January 12th, 2011. The part of CR 88 where the accident occurred is particularly vulnerable to blowing snow because of the prevailing winds and open terrain. Much of the evidence at trial focused on the driving conditions along CR 88 at the time of the accident, and the steps taken, or not taken, by Simcoe to maintain the safety of the roads in the existing wintery conditions.
[4] The respondent claimed that Simcoe was liable for her damages under s. 44 of the Municipal Act, 2001, S.O. c. 25 (the “Act”). She claimed that Simcoe had failed to keep the relevant portion of CR 88 in a reasonable state of repair by failing to take reasonable steps to remove the ice and snow that accumulated on the relevant part of that roadway during the late afternoon and evening of January 12, 2011. The respondent argued that the icy and snowy conditions on the road caused her to lose control of her vehicle and spin into the oncoming lane where she collided with the westbound vehicle driven by Ms. Wos.
[5] Simcoe took the position that the relevant part of CR 88 was clear and dry. Simcoe further argued that, even if there was some snow and/or ice on the roadway, the respondent had not demonstrated that the accident was caused by the condition of the road. Simcoe also maintained that it had, in any event, taken all reasonable measures to maintain the roadway. Simcoe relied on each of the three defences in s. 44(3) of the Act.
[6] Finally, Simcoe claimed that the respondent was at least partly responsible for the accident. Simcoe relied primarily on two facts to advance its contributory negligence claim. First, the respondent was on the wrong side of the road when the accident occurred. Second, the respondent had swerved onto the wrong side of the road less than 10 seconds before she swerved a second time into Ms. Wos’s oncoming vehicle. Simcoe submitted that the respondent’s failure to take appropriate steps to adjust the manner of her driving after the first swerve, rendered her negligent when she swerved a second time, this time into oncoming traffic.
[7] The trial judge found Simcoe 100 percent liable.
[8] The trial judge was satisfied that the relevant part of CR 88 was in a state of disrepair. Ice and hard snow patches on the roadway made the road slippery and hazardous, rendering the road unsafe for reasonable drivers exercising ordinary care: Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, at paras. 27-28.
[9] The trial judge further held that the conditions of the road were the “obvious” cause of the respondent losing control and colliding with the oncoming vehicle.
[10] The trial judge separately considered each of the three defences laid down in s. 44(3) of the Act. In respect of s. 44(3)(a), she found that Simcoe, through its employees, had actual knowledge of the hazardous conditions on CR 88 for several hours before the accident. The area had been experiencing severe winter weather for about two days. Simcoe knew that the relevant part of CR 88 was susceptible to dangerous winter driving conditions on account of the prevailing winds, the openness of the countryside, and the significant traffic volume on that roadway. CR 88 was one of the busiest roads in the county.
[11] Next, the trial judge rejected Simcoe’s arguments that it had taken reasonable steps to prevent the state of disrepair from arising (s. 44(3)(b)). On this issue, the trial judge concluded that Simcoe had “an effective system” for addressing problems associated with winter driving conditions. She was, however, satisfied that the employee responsible for maintaining CR 88 had not followed the procedures set down by Simcoe for maintaining the roadways. The relevant part of CR 88 had been left unattended and unserviced for large parts of the late afternoon and evening of January 12, 2011.
[12] The trial judge also concluded that the statutory defence in s. 44(3)(c) was not available. Simcoe could not establish that it had treated the hazardous conditions at the relevant part of CR 88 within three hours of learning of those conditions.
[13] In assessing the contributory negligence claim, the trial judge accepted, that as the respondent was on the wrong side of the road when the accident occurred, there was a rebuttable presumption she was negligent. The trial judge rejected various arguments advanced by Simcoe in support of the contributory negligence claim. In her view, there was no evidence that the respondent was distracted when she lost control of her vehicle and no evidence that her all season tires caused or contributed to the accident. The trial judge noted that the tires met applicable standards. In ultimately concluding that the respondent had met her onus to rebut the presumption of negligence, the trial judge said:
There is no evidence to suggest Ms. Wasylyk was anything other than a prudent and reasonable driver as she traversed CR 88 on the evening of January 12, 2011. She was not driving at an excessive rate of speed. She was not driving negligently. She was on a straight section of road not a corner. She lost control because of the conditions of the roadway, not the way she was driving.
THE GROUNDS OF APPEAL
[14] The outcome of trials involving allegations of negligence and contributory negligence will almost inevitably depend on the findings of fact made by the trial judge. Those findings are the product of the trial judge’s assessment of the reliability of evidence and the credibility of witnesses, as well as the inferences drawn or not drawn from sometimes conflicting or unclear evidence. Trial judges are much better positioned to make those assessments than are appellate courts. Wisely, the law demands that appellate courts defer to findings of fact made at trial, absent palpable and overriding error: Housen v. Nikolaisen, [2002] SCC 35, at para. 36; L. (H.) v. Canada (AG), [2005] SCC 25, at para. 55.
[15] When reviewing a trial judge’s reasons for palpable and overriding error, this court must consider the reasons as a whole in the context of the issues raised and the arguments made: Farej v. Fellows, 2022 ONCA 254, at para. 45. It is not enough for an appellant to point to an ambiguity, inconsistency, omission, or other shortcoming in some aspect of the trial judge’s reasons. Appeal courts do not exist to grade the reasons of trial judges. Appellate courts must determine, on a fair and full reading of the record as a whole, whether the appellant has demonstrated reversible error. When the alleged error targets the fact-finding process at trial, deference sounds the loud keynote for appellate review.
[16] Simcoe acknowledges that some of its arguments challenge factual findings and that it must demonstrate palpable and overriding error to succeed on those grounds. Simcoe alleges factual errors arising out of a misapprehension of material parts of the testimony of the respondent’s expert, Timothy Leggett. Simcoe further contends that the trial judge’s failure to consider material evidence, namely the evidence that the respondent lost control of her vehicle twice within 10 seconds, resulted in clear and palpable errors in respect of the trial judge’s causation finding, and her finding that the respondent was not contributorily negligent.
[17] Simcoe also submits that the trial judge made two legal errors. First, the trial judge failed to apply the proper legal test when determining whether the relevant part of CR 88 was in a state of non-repair at the time of the accident. Second, Simcoe contends that the reasons, specifically the reasons on causation, were inadequate and failed to offer any explanation for the trial judge’s finding that the road condition caused the collision and resulting damages. There is no doubt that a failure to provide adequate reasons is an error in law: R. v. Sheppard, [2002] SCC 26, at para. 28; R. v. G.F., 2021 SCC 20.
[18] The appellant submits that the arguments based on legal error must be reviewed on a correctness standard. I accept that if the arguments actually raise questions of law, correctness is the appropriate standard.
[19] I will address the two alleged legal errors first.
DID THE TRIAL JUDGE FAIL TO APPLY THE PROPER LEGAL TEST IN DETERMINING WHETHER THE RELEVANT PART OF CR 88 WAS IN A STATE OF NON-REPAIR AT THE RELEVANT TIME?
[20] Simcoe does not suggest that the trial judge misstated the legal principle engaged when determining if a road is in a state of disrepair. As the trial judge observed, the respondent was required to establish that the relevant part of CR 88 presented hazardous conditions that posed an unreasonable risk of harm to ordinary, non-negligent users of the road in the prevailing circumstances: Lloyd v. Bush, 2017 ONCA 252, at para. 71.
[21] Simcoe does submit, that in the circumstances, a finding that the road was in a state of disrepair could not be made in the absence of evidence that other drivers encountered difficulty controlling their vehicles along the relevant part of the roadway. As I understand counsel’s submission, he argues that the finding that the respondent lost control of her vehicle twice in less than 10 seconds demonstrates, in the absence of any evidence that any other driver lost control, that the respondent’s loss of control must have been due, at least in part, to the negligent manner in which the respondent was driving her vehicle. If the respondent was negligent, she would not fall within the category of the “ordinary non-negligent user of the road”. Her failure to maintain control of her vehicle, therefore, could not assist in determining whether a non-negligent user of the road would have been put at risk by the conditions of the road. On Simcoe’s argument, because the respondent was herself negligent, the fact that she lost control is no evidence that the road was in a state of disrepair. As no other driver testified to difficulty in maintaining control of their vehicle, there was no evidence that the roadway conditions posed an unreasonable risk of harm to the ordinary non-negligent user of the road.
[22] Simcoe’s submission does not actually take issue with the legal test to be applied in determining whether a road is in a state of disrepair. Instead, Simcoe attacks the trial judge’s factual finding that the respondent lost control of her vehicle on account of the condition of the road. Simcoe submits that, in the face of the evidence that the respondent lost control twice in less than 10 seconds, and in the absence of evidence that anyone else lost control, the finding that the respondent lost control because of the road condition was an unreasonable finding of fact. Properly characterized, this submission raises a question of fact and is subject to the palpable and overriding standard of review. To succeed, Simcoe must overcome the deference owed to the trial judge’s factual findings.
[23] There was ample evidence, all of it reviewed by the trial judge in her reasons, from emergency responders, other drivers using the road, and Simcoe employees, that the relevant part of CR 88 was slippery and icy. Indeed, some of the emergency responders had considerable difficulty even walking on the roadway at the scene of the accident because it was so slippery.
[24] It does not follow, from the absence of evidence that other drivers had difficulty maintaining control of their vehicle on the relevant part of CR 88, that in fact other drivers did not have difficulty maintaining control of their vehicles on that part of the road. Furthermore, evidence that another driver or drivers were able to safely manoeuvre along the roadway is, at best, a piece of the evidentiary picture to be considered with the rest of the evidence relevant to the condition of the roadway. The totality of the evidence in this case would not have justified a finding of fact that no other driver had difficulty maintaining control of their vehicle on the relevant part of CR 88.
[25] The submission that the respondent must have been negligent because she lost control of her vehicle twice in less than 10 seconds cannot be accepted. Repeated swerving in a very brief period of time could support the inference that the road was slippery and hazardous and, therefore, in a state of disrepair. The further argument that the respondent did not react appropriately after the initial loss of control, so as to avoid the second loss of control, is germane to the contributory negligence claim and not the argument that CR 88 was not in a state of non-repair. I will address that aspect of the argument when I come to the contributory negligence ground of appeal.
DID THE TRIAL JUDGE FAIL TO GIVE ADEQUATE REASONS FOR HER CAUSATION FINDING?
[26] Simcoe submits that the trial judge failed to explain how she came to the conclusion that the hazardous road conditions caused the respondent to lose control of her vehicle and collide with the oncoming vehicle. Counsel submits that a finding as to the reason for the respondent’s loss of control was central to the necessary causation inquiry, and without any explanation for that finding, this court cannot meaningfully review the trial judge’s finding that the conditions of the road caused the accident: Sheppard, at para. 46.
[27] The respondent had to establish that “but for” the “defects” in the repair of the road, in this case the icy and snowy conditions of the roadway, the respondent would not have lost control and collided with the vehicle driven by Ms. Wos. To meet that burden, the respondent was not obliged to point to the specific ice patch or accumulation of snow on the road that caused the respondent’s vehicle to lose control: Kamin v. Kawartha Dairy Ltd. (2006), 79 O.R. (3d) 284. The respondent was, however, required to prove that the hazardous conditions brought about by the ice and snow on the road caused the accident.
[28] The trial judge turned to causation after a detailed review of the evidence and a finding that at the scene of the accident the conditions of CR 88 were slippery and hazardous. Further, she found that CR 88 had not been adequately maintained, even according to Simcoe’s own established procedures for road maintenance during wintery weather. On the trial judge’s finding, the respondent “was unable to manoeuvre safely” because of the condition of the road. In addition, again on the trial judge’s finding, “the roadway would not have posed a risk to Ms. Wasylyk” had the Simcoe employees maintained the road as contemplated by the protocol established by Simcoe.
[29] In addition to the trial judge’s factual findings about the condition of the roadway and the connection between that condition and the respondent’s loss of control of her vehicle, the trial judge made a series of other factual findings relevant to the respondent’s manner of driving. She concluded that the respondent was travelling well under the speed limit, was not impaired, and was not distracted in any way. She was also travelling on a straight section of the roadway.
[30] The findings of fact made by the trial judge, and outlined above, reasonably, if not inevitably, led to the inference that the hazardous conditions of the CR 88 caused the respondent to lose control of her vehicle. The trial judge’s review of the evidence, and her findings of fact, offer a full and clear explanation for her findings on causation. Those findings can be subject to meaningful appellate review, albeit under the restrictions imposed by the deferential palpable and overriding standard of review.
[31] Counsel for Simcoe makes one further argument challenging the adequacy of the trial judge’s causation reasons. Counsel submits that the trial judge’s factual finding that the respondent lost control of her vehicle twice in the space of less than 10 seconds is inconsistent with the trial judge’s further finding that the second loss of control, which resulted in the accident, was caused by the hazardous conditions on the roadway. Counsel argues that to provide adequate and meaningful reasons on the causation issue, the trial judge had to address and take into account her finding that the respondent lost control of her vehicle twice in a very short time period.
[32] I see no inconsistency between the trial judge’s finding that the accident was caused by the slippery and hazardous conditions on the road, and her finding that the respondent loss control of her vehicle twice in less than 10 seconds. As indicated above (para. 25), the loss of control twice in a short timespan could reasonably be viewed as evidence of just how slippery and hazardous the road was at the relevant time and place. Trial judges are not required to expressly refer to all of the evidence advanced for or against a finding of fact. A trial judge’s failure to specifically allude to a certain piece of evidence in making a particular finding must be considered having regard to the totality of the reasons, and the significance of that evidence in the context of the trial judge’s analysis. Here, the trial judge’s failure to specifically allude to the evidence that the respondent lost control of her vehicle twice in less than 10 seconds, a fact which could support the trial judge’s ultimate causation conclusion, did not inhibit meaningful appellate review of the causation finding.
DID THE TRIAL JUDGE MISAPPREHEND MR. LEGGETT’S EVIDENCE?
[33] At trial, it was Simcoe’s primary position that CR 88 was clear and dry at the time of the accident. Questions about the physical cause of any ice or snow on CR 88 arose in the context of the respondent’s allegation that the roadway was slippery and hazardous. The respondent’s expert, Mr. Leggett, in his reports and in his evidence, referred to two explanations for the icy and hazardous conditions of CR 88. According to one explanation, the slippery and icy conditions developed because the salt placed on the roadway by Simcoe acted as a “magnet” attracting blowing snow. That snow melted upon contact with the salt, but later refroze on the roadway as the temperature dropped. This opinion, referred to as the “magnet” theory, could be found in Mr. Leggett’s expert report.
[34] The second explanation offered by Mr. Leggett was based on the heavy traffic along CR 88. Mr. Leggett opined that the heat generated by the tires of the vehicles would melt the snow which had blown on the road. The melted snow would then refreeze, creating ice when the temperatures dropped as the day went on. This explanation was put forward by Mr. Leggett at trial and appears to have developed, at least in part, because Mr. Leggett saw no evidence of salt or sand on the relevant part of CR 88 in the photographs provided to him.
[35] Simcoe contends that, at trial, Mr. Leggett effectively abandoned the first of the two explanations set out above and that the trial judge misapprehended his evidence and relied on the abandoned explanation in her reasons.
[36] In considering this argument, two things must be kept in mind. First, the two explanations for the icing of the road are not mutually exclusive, or even inconsistent with each other. Both could have occurred over the same time period and, taken together, explained the condition on the road. Second, the respondent was obligated to prove that the icy and snowy conditions rendered the road in a state of disrepair for the purposes of the Act. It was not necessary in establishing that the road was in a state of disrepair to demonstrate how the road became icy: Giuliani v. Halton (Regional Municipality), 2011 ONCA 812, at para. 30.
[37] That is not to say, however, that the manner in which the ice and snow accumulated on the road was irrelevant. It was relevant to whether Simcoe took reasonable steps to prevent the state of disrepair from arising. However, the trial judge’s finding that Simcoe failed to take reasonable steps to actively maintain the road during the afternoon and evening of January 12 applied with equal force to both of the possible causes of the accumulation of ice and snow on the relevant part of the road. On both explanations, the thawing and refreezing occurred over a period of time. The failure to actively maintain the roads over several hours allowed that process to occur.
[38] Contrary to counsel for Simcoe’s submission, I do not understand the trial judge to have accepted the “magnet” theory as the exclusive explanation for the icy conditions of the road. Nor do I understand Mr. Leggett to have entirely abandoned that explanation in his trial testimony. The trial judge accepted that both the refreezing after salting and the refreezing due to heavy traffic, combined to bring about the hazardous conditions. More significantly, in finding that Simcoe did not take reasonable steps to address the hazardous conditions on CR 88 regardless of how they occurred, the trial judge focused on Simcoe’s failure to perform the necessary ongoing active maintenance called for by Simcoe’s own procedures. The eastbound lane of CR 88 was left largely, if not totally, unattended for several hours prior to the accident.
[39] Neither the trial judge’s finding that CR 88 was in a state of disrepair, nor her finding that Simcoe did not take reasonable steps to prevent that default, turned on a determination of the exact physical cause of the icy conditions. Even if the trial judge’s reasons confused, to some extent, the contents of Mr. Leggett’s pretrial report, and his testimony, that confusion was not material to either of the essential factual findings to which Mr. Leggett’s testimony was relevant.
[40] Simcoe also submitted in its factum that Mr. Leggett opined that it would have been appropriate in the circumstances for Simcoe to “do nothing” to address the hazardous conditions on the roadway. According to this submission, anything Simcoe might have done would not have helped and may have made matters worse.
[41] While it is true that Mr. Leggett testified that sometimes doing nothing is the best option, I do not understand him to have offered the opinion that in the circumstances of this case, it would have been appropriate for Simcoe to simply leave CR 88 unattended. Certainly, Simcoe’s own procedures called for active ongoing surveillance and maintenance of the road. Unfortunately, that procedure was not followed. As I read this record, “doing nothing” was never put forward as a viable option by Simcoe.
DID THE TRIAL JUDGE ERR IN FINDING THAT THE RESPONDENT WAS NOT CONTRIBUTORILY NEGLIGENT?
[42] The appellant submits that as the respondent was on the wrong side of the road when the collision occurred, she had the onus to demonstrate she was not negligent: El Dali v. Panjalingam, 2013 ONCA 24, at paras. 18-20. Counsel contends that the respondent cannot meet that onus in light of her loss of control on two occasions within a very brief timespan. In the context of the contributory negligence argument, counsel focuses on the absence of any evidence that the respondent took any corrective measures in an attempt to adjust her driving between the first loss of control and the second loss of control. Counsel submits, that even if the hazardous conditions of the road caused the respondent to lose control of her vehicle on both occasions, her failure to adjust her driving after the first loss of control made her partly responsible for the collision which occurred after the second loss of control. Counsel submits that a finding that the respondent was 50 percent liable would be appropriate.
[43] Simcoe’s argument on the contributory negligence claim comes down to two submissions. First, Simcoe submits that the trial judge failed to consider the evidence that the respondent took no steps to adjust her driving after the first loss of control. Simcoe submits that this evidence was crucial to Simcoe’s argument on the contributory negligence issue and the trial judge’s failure to consider the evidence amounts to a palpable and overriding error. Second, Simcoe submits that on a totality of the material evidence, including the respondent’s failure to adjust her driving after the first loss of control, and bearing in mind the presumption operating against the respondent, the finding that the respondent was not contributorily negligent was an unreasonable finding, constituting a palpable and overriding error.
[44] Before turning to the relevant evidence and the trial judge’s reasons, I will briefly refer to the case law relied on by Simcoe on this point. Counsel referred to cases in which courts have found that a failure to take corrective measures after an initial loss of control and before the loss of control resulting in an accident, amounted to negligence: Giuliani v. Halton (Regional Municipality), 2010 ONSC 4630, aff’d, 2011 ONCA 812; Greer (Litigation Guardian of) v. Kurtz, [2008] O.J. No. 2185 (SCJ), aff’d, 2009 ONCA 865.
[45] There is no reason to doubt the findings in the cases relied on by Simcoe. They are not, however, particularly helpful in assessing the merits of Simcoe’s appeal. Findings of negligence or contributory negligence turn on the evidence of the particular case and, more importantly, the assessment of that evidence by the trier of fact who heard the evidence. Different triers of fact may draw different inferences and come to different factual conclusions. As long as those inferences and conclusions fall within the reasonableness range, this court will defer to those findings, absent a demonstration of palpable and overriding error in the process leading to the findings.
[46] The cases cited by Simcoe go no further than to indicate that in other cases, others judges were satisfied that the theory advanced by Simcoe in support of its contributory negligence claim in this case, justified a finding of contributory negligence in those other cases. Factual findings made by other trial judges in other cases may assist a trial judge in her evaluation of similar evidence that has been placed before her. The extent to which the prior findings by other judges may assist a subsequent trial judge, is entirely for that judge to determine.
[47] Returning to the evidence in this case and the trial judge’s reasons, counsel for Simcoe is correct that the trial judge did not, in the course of considering the contributory negligence claim, make specific reference to the evidence that the respondent lost control of her vehicle twice. It does not follow from the failure to expressly refer to certain evidence, that the trial judge did not consider that evidence. It may be implicit in the trial judge’s reasons, considered as a whole, that the trial judge did take into account evidence, even though that evidence is not expressly mentioned in the context of the specific argument in issue: e.g. Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428, at para. 71.
[48] The evidence relevant to the respondent’s manner of driving immediately before the accident came from Ms. Debbie Smith. Ms. Smith was driving in front of the respondent’s vehicle and watching the respondent’s vehicle through the rear view mirror. The trial judge reviewed Ms. Smith’s evidence. Although the trial judge accepted Ms. Smith’s evidence that the respondent’s car swerved out of control twice in less than 10 seconds, the trial judge also expressed significant concerns about the credibility and reliability of other parts of Ms. Smith’s evidence.
[49] The trial judge did not accept Ms. Smith’s evidence describing certain aspects of the respondent’s driving. For example, she did not accept Ms. Smith’s testimony that the respondent’s vehicle veered onto the shoulder of the road. The trial judge determined, based on the rest of the evidence, that the respondent’s vehicle did not leave the roadway.
[50] The trial judge further noted that Ms. Smith’s ability to watch the respondent’s manner of driving between the first and second loss of control was significantly limited. It was very dark, Ms. Smith was looking through her rear view mirror, and she was understandably focused on the road in front of her.
[51] Ms. Smith’s evidence was also quite vague in other important respects. As to the timing of the two swerves by the respondent’s vehicle, Ms. Smith could say only they were less than 10 seconds apart. On her evidence, the two losses of control could have been as little as two or three seconds apart, or as much as eight or nine seconds apart. These two scenarios could lead a trier of fact to draw very different inferences from a driver’s failure to adjust her driving to road conditions.
[52] On a fair reading of Ms. Smith’s evidence, her testimony provided little assistance on either the time the respondent had to react after the first loss of control, or what steps, if any, the respondent took in response to the first loss of control. It is not surprising, given the trial judge’s assessment of Ms. Smith’s evidence, that she was not prepared to make any detailed findings of fact based on that evidence.
[53] The trial judge understood the significance to the defence of the evidence that the respondent had loss control twice in a very short period of time. The trial judge referred to and obviously appreciated Simcoe’s argument that the second loss of control supported the inference that the respondent was negligent for failing to adjust her driving to the conditions. The trial judge also clearly understood that Simcoe’s argument was advanced in the context of the respondent having the onus to rebut a finding of negligence.
[54] In the face of a detailed and critical consideration of the relevant evidence, an express acknowledgment of the position of the defence in respect of that evidence, and an appreciation that the respondent carried the initial burden on the issue, I cannot accept the submission that the trial judge’s failure to specifically advert to the evidence should be taken as a failure to consider the evidence. It is implicit in the trial judge’s reasons that she did not find either that the respondent had an opportunity to take corrective measures after the first loss of control, or that she acted negligently in failing to do so.
[55] Nor was it unreasonable for the trial judge to decline to draw inferences about the respondent’s driving from Ms. Smith’s evidence. Her evidence about the time elapsed between the first and second loss of control was uncertain, as was her evidence about the nature of the respondent’s driving during those few seconds. Instead of relying on Ms. Smith’s vague, and in some respects unreliable, evidence about the movement of the respondent’s vehicle in the short time between the two losses of control, the trial judge looked to, and relied on, other evidence about the respondent’s manner of driving. In her view, that evidence showed the respondent to be driving in a “prudent and reasonable” manner. That finding was open to the trial judge on the entirety of the evidence and could reasonably be taken as a rebuttal of the inference of negligence based on the location of the respondent’s vehicle on the highway at the time of the accident.
[56] I find no error in the trial judge’s conclusion that the respondent was not contributorily negligent in the accident.
CONCLUSION
[57] The appeal is dismissed. As agreed by the parties, the respondent is entitled to her costs, fixed at $40,000 for the appeal and $10,000 for a related motion. The total amount, $50,000, is inclusive of disbursements and relevant taxes.
Released: November 24, 2023 Doherty J.A. I agree. I.V.B. Nordheimer J.A. I agree. J. George J.A.