COURT FILE NO.: CV-09-0138

DATE: 20120214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WILLIAM MCHARDY, a person under disability by his litigation guardian, Tara Luck, WILLIAM MCHARDY SR., KATHERINE MCHARDY and TARA LUCK

Plaintiffs

– and –

DAVID BALL, ERIC BALL and

CITY OF BARRIE

Defendants

A. Little, for the Plaintiffs

D. Abreu, for the Defendants Ball

S. Zacharias, for the Defendant City of Barrie (Moving Party)

HEARD: January 25, 2012

REASONS FOR DECISION

DiTOMASO J.

INTRODUCTION

[1] On the evening of October 20, 2008, the plaintiff William McHardy (“Mr. McHardy”) was driving his 2008 Honda Civic northbound on Yonge Street at the intersection of Yonge Street and Mapleview Drive East in the City of Barrie when the defendant David Ball (“Mr. Ball”) failed to stop for a red traffic signal and collided with the rear driver’s side of Mr. McHardy’s vehicle. The collision caused the McHardy vehicle to lose control and strike a traffic signal pole mounted on a raised concrete median in the middle of Yonge Street, on the north side of Mapleview Drive. As a result of this motor vehicle collision, Mr. McHardy allegedly suffered a severe brain injury.

[2] On the reconstruction of this intersection in 2006-2007, the defendant City of Barrie (“City”) used a rigid or non-breakaway type of traffic signal pole on the small raised concrete median in the middle of Yonge Street. As against the City, Mr. McHardy’s claim is based on the allegation that the traffic signal pole “failed to breakaway” when struck by the McHardy vehicle.

[3] The plaintiffs maintain that the City’s failure to install a breakaway support at this location constitutes actionable negligence and non-repair pursuant to s. 44 of the Municipal Act, 2001, S.O. 2001, c.25. It is the position of the City that there is no reasonable basis for finding an actionable situation of non-repair existed pursuant s. 44 of the Municipal Act, 2001.

[4] Further, the plaintiffs assert that if this pole had been installed with a breakaway support, as it should have been, Mr. McHardy would not have likely sustained any serious injuries in the collision. However, the City contends that there was no standard which required a breakaway pole to be installed. Even if a breakaway pole had been installed, the City submits there is no evidence that it would have broken away in the specific circumstances of this accident. The City argues that the plaintiff cannot prove causation with respect to its allegation against the City.

[5] Lastly, the City maintains that this action is statute-barred against it by operation of s. 44(8) of the Municipal Act, 2001 as the traffic signal pole was situated on an untravelled portion of the roadway.

[6] Contrary to the City’s assertions, the plaintiffs submit that s. 44(8) of the Municipal Act, 2001 has no application to this case. That section was intended to apply where a driver has intentionally left the travelled portion of the highway. In any event, the plaintiffs submit the traffic signal was an integral part of the highway and was not captured by the exemption from liability contained in s. 44(8).

[7] All of which leads us to this motion. The City moves pursuant to Rule 20 of the Rules of Civil Procedure for summary judgment on the basis that there is no genuine issue requiring a trial. The plaintiffs, supported by the defendants Ball, take the opposite position claiming there are genuine issues requiring a trial and that this motion should be dismissed.

BACKGROUND

[8] None of the material facts as to how this accident happened are in dispute.

[9] As pleaded in the Amended Statement of Claim, Mr. McHardy was driving northbound on Yonge Street approaching its intersection with Mapleview Drive East in the City of Barrie. At the same time, Mr. Ball was driving eastbound on Mapleview Drive East approaching its intersection with Yonge Street. Mr. Ball’s vehicle struck Mr. McHardy’s vehicle causing the McHardy vehicle to collide with a rigid traffic signal pole. It has been formally admitted on behalf of the plaintiffs and the defendants Ball a) the collision occurred as a result of Mr. Ball entering the intersection against a red traffic signal; b) but for being struck by the vehicle driven by Mr. Ball, the McHardy vehicle would not have come into contact with the signal pole. It is further admitted the signal pole was located on the north median island of the intersection. This pole was bolted onto a raised concrete median.

[10] At paragraph 7 of the Amended Statement of Claim[^1] it is alleged: ...Suddenly without warning, the defendant David Ball failed to stop for a red traffic signal and violently collided with the McHardy motor vehicle, causing it to strike a traffic signal pole. The traffic signal pole failed to break-away. Further at paragraph 8 C. of the Amended Statement of Claim[^2], the following specific allegations of negligence are made against the City:

C. As to the defendant City of Barrie:

(a) it failed to install breakaway poles for traffic signals at the intersection of Mapleview Drive East and Yonge Street, although such poles were required in the circumstances;

(b) it installed or allowed to be installed faulty or improper traffic signal poles at the intersection of Mapleview Drive East and Yonge Street;

(c) it failed to follow or comply with roadside design standards;

(d) it retained or employed incompetent road designers, engineers or builders;

(e) it knew or ought to have known that its failures would lead to injury;

(f) it failed to conduct an appropriate engineering assessment for the intersection of Mapleview Drive East and Yonge Street;

(g) it failed to take reasonable care to see that the plaintiff William McHardy would be safe while travelling on the roadways within the city limits;

(h) it caused to exist and permitted to exist a hidden or unusual danger;

(i) it failed to warn the plaintiff William McHardy adequately or at all of the presence of the danger;

(j) it failed to take reasonable caution for the safety of those persons using the roadways within the city limits; and

(k) it failed to keep the intersection where the accident occurred in a safe state of repair.

[11] In the Amended Statement of Claim, the principle allegation against the City is that “it failed to install breakaway poles for traffic signals at the intersection of Mapleview Drive East and Yonge Street, although such poles were required in the circumstances.”[^3]

[12] The Amended Statement of Claim contains no allegations that any specific condition of the road surface on either Mapleview Drive East or Yonge Street either constituted a deficiency or otherwise caused or contributed to the accident.

[13] The focus in respect of the allegations of the City relates to “break-away pole issue”.

[14] In its Statement of Defence and Crossclaim the City denies liability and damages and crossclaims against the co-defendants Ball.

[15] The co-defendants Ball adopt the allegations of negligence against the City and crossclaim against the City for contribution and indemnity.

[16] By way of background, various photographs were relied upon by the plaintiffs depicting the damage sustained to the McHardy vehicle in this collision. The McHardy vehicle was destroyed in this collision. The bulk of the vehicle damage was to the right (passenger) side of the vehicle where it impacted the traffic signal pole. The photographs depict massive incursion of the passenger side of the McHardy vehicle into the driver’s compartment. As a result of the collision, it is alleged Mr. McHardy suffered severe traumatic brain injury and other physical injuries. Because of his brain injury, Mr. McHardy required extensive hospitalization, and constant supervision since his discharge. Due to his mental incapacity, he is represented in this action by a litigation guardian.

[17] Further by way of background, it is submitted by the plaintiffs that the wheels of the McHardy vehicle never left the road and remained on the pavement. The passenger side of the McHardy vehicle came to rest against the traffic signal pole bolted down on the narrow concrete raised median. There was minimal damage to the driver’s side at the rear of the McHardy vehicle. However, the McHardy sustained massive damage to the passenger side. The plaintiffs maintain that but for the rigid traffic signal pole, this motor vehicle accident would have been relatively minor.

[18] There are experts reports prepared on behalf of the City and the plaintiffs in this case. The City received an expert report from a professional engineer, David C. Wilson, dated March 2, 2011. In it, Mr. Wilson has given the opinion that the decision to use the one-piece traffic signal pole “was appropriate in 2006 when constructed and is still appropriate today for this location”.[^4]

[19] The City subsequently received a supplementary report from Mr. Wilson dated August 26, 2011 in which he identified similar median traffic signal pole installations in other municipalities in support of the “wide spread use of the pole in the Province.”[^5]

[20] The plaintiffs retained professional physicist, accident reconstructionist and road design/safety expert Ken Iliadis of MEA Forensic to investigate the circumstances of this collision and summarize the design and location criteria for the use of frangible or breakaway traffic signal supports. Mr. Iliadis prepared reports dated July 11 and December 12, 2011.

[21] In addition, the plaintiffs retained biomechanical engineer Gunter Siegmund of MEA Forensic to assess whether Mr. McHardy’s injuries would have been reduced or prevented had his vehicle struck a breakaway pole, rather than a rigid pole. Mr. Siegmund holds a Ph.D. in biomechanics.

[22] No expert report has been delivered on behalf of the defendants Ball.

[23] On this motion for summary judgment, the parties argued the issues of liability, causation and the applicability of the precluding section, namely s. 44(8) of the Municipal Act, 2001.

THE ISSUE

[24] The primary and overarching issue on this Rule 20 summary judgment motion is whether there is a genuine issue requiring a trial.

POSITION OF THE PARTIES

Position of the City (Moving Party)

[25] The City submits that there is no genuine issue requiring a trial based collectively and individually on three grounds:

1. Whether the roadway was in a state of non-repair because of the pole. The City states that there is no statement that the pole was in non-repair. There is no evidence that the pole posed any hazard to drivers exercising ordinary care.

2. Whether the pole caused alleged damage. The City asserts that the plaintiffs have failed to prove causation. There is no evidence that the signal pole, if it were a breakaway pole, would have actually broken away in this collision.

3. Whether, in any event, the plaintiffs’ claims are statute-barred pursuant to s. 44(8) of the Municipal Act, 2001. The City submits that the plaintiffs’ claims are statute-barred because the damage was caused by the pole which was on an untravelled portion of the highway.

Position of the Plaintiffs McHardy

[26] The plaintiffs submit that there are genuine issues requiring a trial. Those issues relate to liability, causation and the applicability of s. 44(8) of the Municipal Act, 2001.

[27] Regarding liability, the plaintiffs argue that breakaway supports should have been used in this case unless an engineering study would have indicated otherwise. The City did not utilize any engineering assessment or study regarding the reconstruction of this intersection in 2006-2007. The plaintiffs submit that the general rule supports the use of breakaway support or frangible poles of this sort unless an exception applies and in this case there was no applicable exception.

[28] As for the issue of causation, the plaintiffs submit the Iliadis and Siegmund reports when read together establish on the balance of probabilities that if a breakaway pole was used in this instance, it would likely breakaway and Mr. McHardy would not have suffered the injuries that he did. There is no competing evidence from the City on this issue. Mr. Wilson’s report is silent on this point. The plaintiffs assert that there is more than a chance of success on the issue of liability and causation.

[29] Lastly, as for the applicability of s. 44(8), the plaintiffs maintain that this section does not apply on the facts of this case. This section would only apply where a driver intentionally left the travelled portion of the roadway. Further, the traffic signal in question is not on an untravelled portion of the highway but rather is in the middle of the intersection and is an integral part of the intersection. Mr. McHardy’s vehicle never left the travelled portion of the roadway. Whether s. 44(8) precludes the plaintiffs’ claims and renders those claims statute-barred is a triable issue. Regarding the case at bar, it cannot be said that this is a case where there is no chance of success.

Position of the Co-Defendants Ball

[30] The co-defendants Ball support the plaintiffs’ opposition to this motion. These co-defendants submit that a more contextual approach is required when considering the location purpose and functionality of the traffic pole. It forms an integral part of the highway. The s. 44(8) issue requires a complete exploration at trial together with the expert evidence tendered on behalf of the City and the plaintiffs.

ANALYSIS

The Law – Rule 20 and The Full Appreciation Test

[31] Rule 20.04 states that summary judgment shall be granted if the court is satisfied that there is “no genuine issue requiring a trial” with respect to a claim or defence. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for that purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence;

2. Evaluating the credibility of a deponent; and

3. Drawing any reasonable inference from the evidence.[^6]

[32] In Combined Air Mechanical Services Inc. v. Flesch,[^7] a five-member panel on the Ontario Court of Appeal developed the approach to be taken in interpreting the amended Rule 20. The Court of Appeal concluded there are three types of cases amenable to summary judgment:

1. Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment (does not apply in the case at bar);

2. Where the claims or defences are shown to be without merit (does not apply in the case at bar); and

3. Where the trial process is not required in the interest of justice.

[33] In the cases where summary judgment is sought under the third category of cases (where the trial process is not required in the interest of justice), the Court of Appeal developed the “full appreciation test”:

In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?

We think this “full appreciation test” provides a useful benchmark for deciding whether or not a trial is required in the interest of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process. Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings. Accordingly, the full appreciation test is not met and the “interest of justice” requires a trial.[^8]

[34] The Court of Appeal further stated in document-driven cases or where there are limited contentious factual issues or where the record can be supplemented to the requisite degree at the motions judge’s discretion by hearing oral evidence on discrete issues, the full appreciation test may be met.[^9]

[35] In deciding whether to grant summary judgment, the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless a full appreciation of the evidence and issues is attainable on the motion record, the judge cannot be satisfied that the issues are appropriately resolved on a motion for summary judgment.[^10]

[36] The new Rule 20 does not change the evidentiary obligations on a summary judgment motion. Each side must put its “best foot forward” and the court is entitled to assume that that the record contains all the evidence which the parties would present at trial.[^11]

[37] In response to evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, through admissible evidence, specific facts showing why there was a genuine issue regarding a trial.[^12]

Liability

[38] The City had identified the plaintiffs’ own characterization of the primary issue in this action as the City’s negligent placement of a rigid or non-breakaway traffic signal pole in the middle of Yonge Street at its intersection with Mapleview Drive East, which constituted actionable non-repair of the highway pursuant to s. 44 of the Municipal Act, 2001.

[39] The City maintains that the claim in negligence advanced by the plaintiffs in this case is incorrect. Rather, the proper test and correct statement of the law is statutory as confirmed by the Court of Appeal in Morsi v. Fermar Paving Limited, 2011 ONCA 577, paras. 16-24. In particular, it is codified in s. 44(1) of the Municipal Act, 2001 which provides:

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.

[40] The general rule which may be taken from the authorities 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.[^13]

[41] Also as confirmed by the Court of Appeal, municipalities are not insurers of the safety of the travelling public. Rather, the statutory test for liability is whether users of the road, exercising ordinary care, travel upon it safely.[^14]

[42] The City argues that there is no suggestion that the fixed pole interfered with traffic or anything that the pole or anything else caused drivers to lose control of their vehicles. There is no issue in respect of the condition of the road surface. Whether some use of a different pole may have affected Mr. McHardy’s injuries is irrelevant to the objective question regarding state of repair and applicable tests. On this threshold issue of liability, the plaintiffs cannot succeed and therefore their claim must be dismissed.

[43] In coming to this conclusion, the City relied upon the cross-examination of Mr. Iliadis to acknowledge the following:

Location of the pole

(a) the purpose of the raised concrete median is to divide opposing lanes of traffic[^15];

(b) the perimeter of the median consists of a vertical curb, which is a means of discouraging motorists from intentionally leaving the roadway[^16];

(c) his photograph #10[^17] shows “opposing lanes of traffic: divided by the median, i.e., traffic lanes which are adjacent and parallel to the median[^18];

(d) his photograph #10 also shows signs on the traffic signal pole which would have been facing Mr. McHardy’s vehicle, which are contained in the Ontario Traffic Manual, and which are communicating to oncoming drivers “don’t come up onto this median, go around”[^19];

(e) this raised median is not a surface where vehicles are supposed to travel[^20];

(f) he would not expect people to intentionally drive their cars over the vertical curb and up onto the raised concrete median[^21];

(g) he is not aware of any evidence or information to suggest that, at the time of this accident, drivers commonly or even drive onto this raised concrete median on purpose[^22];

(h) he is not aware of any evidence or information to suggest that, at the time of this accident, vehicles were otherwise going up onto this raised concrete median with any frequency or ever[^23];

(i) the traffic signal pole in this case was a fixed object adjacent to the roadway or travelway[^24];

(j) a vehicle striking an object on a median is a “run-off road” collision[^25];

(k) Mr. McHardy’s vehicle left the travelway and struck the pole[^26];

(l) Mr. McHardy’s vehicle struck the pole where it had been placed, on the median[^27];

(m) Mr. McHardy’s vehicle came into contact with the pole because it was forced there when it was struck by Mr. Ball’s vehicle[^28];

Nature of the pole

(n) the pole in question is the subject of an Ontario Standard Specification (the poles’ conformity with this design standard is not disputed by Mr. Iliadis)[^29];

(o) the base of the pole is the subject of a City of Barrie design standard which refers to poles made by the manufacturer (Powco) identified on the pole itself[^30];

(p) it appears the pole is CSA (Canadian Standards Association) approved, and is the type of pole that is referred to in the City of Barrie contract documents for this intersection[^31];

Appropriateness of the pole

(q) poles of this type were in use in 2006 and they still are today[^32];

(r) solid fixed poles, like the one at issue in this case, are in existence in many intersections throughout southern Ontario – including intersections similar to the subject intersection[^33];

(s) with respect to the one example he was able to verify of a breakaway pole on a median island, the other three median poles at the same intersection are (as indicated in Mr. Wilson’s reply report[^34]) non-breakaway[^35];

(t) although he cites certain documents under both the headings “Location Criteria for Breakaway Supports” and “Relevant Standards and Policies”[^36] in his reports, the actual documents respectively state that they are:

i) neither a standard nor a design policy[^37];

ii) a guide that may be used[^38];

iii) not attempting to establish standards[^39];

(u) although he states in his reports that a breakaway pole “should have been installed at this location”, a reasonable designer could have decided, based on the documents cited in his own reports and with the proper assessment, to install a non-breakaway pole at this location[^40].

[44] While there are no material factual issues as to the mechanism of the accident, the plaintiffs submit that there are a host of issues to be decided arising out of the expert evidence tendered on both sides and the credibility of expert witnesses called by both the plaintiffs and the City.

[45] Some of those issues without providing an exhaustive list were stated as follows:

1. The nature of the intersection. Whether a rural or urban intersection becomes important under the road design publications?;

2. What is the operating speed of motorist using the intersection?

3. Are the publications reviewed by the experts applicable to the City’s design of the intersection i.e. decisions to use rigid poles?

4. Should the City have followed those road design publications and guidelines regarding the type of pole to used at the intersection at question?

5. Was the use of a breakaway support required for the traffic signal pole in question?

[46] The plaintiffs submit that such findings cannot be reached on a motion for summary judgment in a way which satisfies the high onus of proof on the City. These findings cannot be reached without a trial and it cannot be said that there is no chance of success in this case. Quite the opposite, on the plaintiffs’ expert evidence, they submit there is a strong chance of success.

[47] I have reviewed the reports of Mr. Wilson and Mr. Iliadis together with their cross-examinations.

[48] With respect to the intersection of Yonge Street and Mapleview Drive East, this intersection is located in a rural area. The speed limit on Yonge Street is 60 kilometers per hour while the speed limit on Mapleview Drive East is 50 kilometers per hour. However, Mr. Iliadis conducted a 30 minute radar speed measurement test for Yonge Street, both north and southbound in the area of the collision. He noted that the 85th percentile operating speed for this roadway (the generally accepted criteria for operating speed) was 80 kilometers per hour.

[49] The traffic signal pole that the McHardy vehicle struck is located on the north side of Mapleview Drive East on a concrete raised median in the middle of Yonge Street. The pole is 6.1 meters or approximately 20 feet in height and it weighs 131 kilograms or about 289 pounds. The traffic signal pole was not constructed with frangible or breakaway couplers or supports. It was simply bolted to the median.

[50] Both experts agree that frangible or “breakaway” support is one that is designed to yield, fracture, or separate when struck by a vehicle, thereby minimizing damage to the vehicle and injury to the occupants of the vehicle. All breakaway supports must meet certain design requirements set out by the American Association of State Highway and Transportation officials (“AASHTO”).

[51] The general rule advanced by the guiding publications and design manuals is that a breakaway support should be provided whenever a traffic signal pole is exposed to traffic. At the intersection of Yonge Street and Mapleview Drive East, the traffic signal pole at issue is in the middle of the highway. In his report dated July 11, 2011, Mr. Iliadis states that the general rule provided in the AASHTO roadside design guide is that breakaway supports should be used unless and engineering study indicates otherwise.[^41]

[52] The plaintiffs cite a number of guiding publications and design manuals including the Ontario Ministry of Transportations Roadside Safety Manual. Mr. Wilson acknowledged the authority of this manual on cross-examination and referred to it in his own report. When asked if municipalities used this manual on a regular basis, he replied “I hope so”.[^42]

[53] With respect to the use of breakaway supports, the Roadside Safety Manual, states:

As a general rule, breakaway supports should be considered in some urban and most rural areas, or wherever vehicle speeds are moderate to high. A passenger who strikes the interior of a vehicle that hits a nonyielding object at only 40 km/h can sustain substantial injuries. However, in urban areas or other locations, where pedestrians and bicyclists may be struck by falling breakaway hardware after a crash, yielding supports are not typically used. In these cases, barrier style curb and gutter may provide adequate shielding at operating speeds 60 km/h or less. The designer must weigh the relative risks involved in these situations before selecting an appropriate design.

Traffic signal posts present a special situation where a breakaway support may not be desirable. As with luminaire supports, the immediate hazard created by a fallen signal post must be considered as well as the potential hazard created by the temporary loss of full signalization at an intersection.[^43]

[54] Mr. Wilson was cross-examined on whether the City paid no attention to the Ontario Ministry of Transportation’s Roadside Safety Manual when it constructed the traffic signal poles at the Yonge/Mapleview intersection. Mr. Wilson agreed that the general rule in the Roadside Safety Manual required the consideration of breakaway support whenever vehicle speeds were moderate to high, and not just on “high speed facilities” as stated in his report.[^44]

[55] The plaintiffs also cited a number of AASHTO publications confirming that, generally, breakaway supports should be provided whenever the support (pole) is exposed to traffic see AASHTO’s Highway Signs, luminaires and traffic signals, AASHTO’s Standard Specifications for Structural Supports for Highway Signs and AASHTO’s Roadside Design Guide. All of these are referenced in Mr. Iliadis’ report of July 11, 2011 and supplementary report dated December 12, 2011.

[56] Regarding AASHTO’s Roadside Design Guide, the general rule provided in this publication is that breakaway supports should be used unless an engineering study indicates otherwise. The City of Barrie did not conduct any such engineering study with respect to the traffic signal pole requirements at the Yonge/Mapleview intersection.[^45]

[57] In this particular case, there were no examples that breakaway supports might be undesirable such as in the instance of the loss of signalization at the intersection or a breakaway support adjacent of a bus shelter or in areas of extensive pedestrian concentrations. None of these factors applied to this rural intersection. Mr. Wilson relied on AASHTO’s Roadside Design Guide in his initial report and agreed in cross-examination that it was an authoritative design guide in the transportation industry.

[58] Mr. Wilson was cross-examined in respect of National Co-operative Highway Research Program, Report 612: Safe and Aesthetic Design of Urban Roadside Treatments. The publication was cited in his report. It indicated that the strategy for constructing traffic medians is to place only frangible or breakaway items on the median, in order to reduce crash severity. In his cross-examination Mr. Wilson agreed that this was reasonable and consistent with the message contained in all the other publications. Mr. Wilson agreed that another publication, Transportation Association of Canada’s Geometric Design Guide for Canadian Roads “can be” an authoritative text for road designers in Ontario.

[59] What emerged from the examination for discovery of the City’s representative, Steven Rose was that the City only uses rigid or non-breakaway poles/supports for its traffic signal installations. It simply uses it own regular pole size and height specifications over and over again without giving any consideration to the prevailing design guides or publications respecting the use of breakaway supports as a general rule. The City of Barrie’s representative, (senior traffic technologist Steven Rose) was not even aware of the criteria for determining whether or not breakaway supports ought to be used. Only after receiving the Statement of Claim in this matter did Mr. Rose review the MTO’s Roadside Safety Manual and discover the sections dealing with breakaway supports.[^46]

[60] The City did not conduct any engineering assessment or study with respect to the selection of traffic signal poles or breakaway support prior to reconstructing the intersection of Yonge/Mapleview. The City used its usual poles and bolted them rigidly to their supports. Mr. Wilson was not aware of this when he prepared his three reports.[^47]

[61] Based on the facts of this case and the clear instructions of the authoritative design guides and publications applicable to this issue, Mr. Iliadis reached the following conclusion in his first report:

In summary, breakaway poles are generally a safer alternative to rigid poles and should be installed wherever possible unless there is a clear reason not to (such as high pedestrian traffic, the loss of signalization for other traffic, etc.). At the incident location, none of these exceptions existed. Further, the City of Barrie did not complete an engineering assessment concluding a breakaway pole is unwarranted at this location. Based on this information, a breakaway pole should have been installed at this location.

And in his supplementary report:

In terms of roadside safety, a breakaway pole should have been installed at the incident location. This is based on the moderate to high vehicle speeds on Yonge Street, on my review of the relevant literature, and given that an engineering report was not completed by the City of Barrie indicating otherwise[^48]

[62] Contrary to the City of Barrie’s assertion that Mr. Iliadis agreed on his cross-examination that a reasonable designer could have decided to install a non-breakaway pole at this location, what Mr. Iliadis actually said was that this could have been possible “with the proper assessment”. In other words, only if any engineering assessment determined that a breakaway support was inappropriate, based on the criteria in the road design guidelines. However, no such assessment was undertaken by the City of Barrie, and based on the design guidelines and expert evidence a breakaway support was appropriate for the traffic signal at issue.[^49]

[63] Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial? This essential question is posed regarding the issues of liability, causation and the applicability of s. 44(8) of the Municipal Act, 2001.

[64] Upon my review of the record regarding the issue of liability, and upon application of the “full appreciation” test, I find that a genuine issue requiring a trial exists in this case. There is a divergence of expert opinion as to what type of signal pole would have been appropriate for the intersection of Yonge Street and Mapleview Drive East in 2006, and at the time of the collision. The description of the mechanism of the accident as uncomplicated as it would seem on the surface, does not address all of the issues that arise from the City’s use of a fixed signal pole as opposed to a breakaway pole at this intersection. At issue is whether the City’s negligent placement of a rigid or non-breakaway traffic signal at this intersection constitutes actionable non-repair of the highway pursuant to s. 44 of the Municipal Act, 2001. The conclusions of Mr. Iliadis, the language of the numerous road design authorities and publications and in some respects the cross-examination evidence of the City of Barrie’s own expert Mr. Wilson, all speak to the importance of installing breakaway supports at the traffic signal pole in question. Also to be considered is the City’s lack of knowledge regarding the importance of installing breakaway poles. The divergence of expert opinions on this issue cannot be resolved by way of dispositive findings on a summary judgment motion.

[65] Having considered all of the above, I come to the conclusion that the City has not satisfied its onus in proving that there is no genuine issue requiring a trial on liability. This issue requires a trial particularly where the credibility of Mr. Wilson and Mr. Iliadis on this crucial issue cannot be determined on a motion for summary judgment.

Causation

[66] The City asserts that the fixed pole did not cause the alleged claim. Further, there is no evidence that if a breakaway pole was actually used, it would have broken away in this collision. Neither expert stated an opinion that a breakaway pole would have broken away in this case. The City maintains that the evidence of the plaintiff on this point is insufficient within the context of Mr. McHardy putting his best foot forward. The City submits that there is no genuine issue requiring a trial on the issue of causation. To the contrary, on behalf of Mr. McHardy, it is submitted that causation is indeed a genuine issue requiring a trial. The City served no response in respect of the plaintiffs’ experts report on this point.

[67] In his initial report, Mr. Iliadis confirmed that out of 17 available side-impact crash tests he was able to locate, there were only 2 cases where a breakaway pole remained upright and did not break as designed upon impact. In other words, in side impact crashes the breakaway support will function as expected about 88% of the time. Furthermore, Mr. Iliadis concluded:

Based on the available crash test data, if the incident traffic signal pole had a breakaway feature, I would expect a maximum exterior crush to the McHardy vehicle of about 15 to 30 cm, versus the measured 56 cm in the incident collision. The expected intrusion into the occupant compartment would likely have been about 5 to 25 cm, assuming a 5 to 10 cm compression of the Honda’s side structure. The actual intrusion into the occupant compartment of the McHardy vehicle in the incident collision was about 46 cm.[^50]

[68] Based on Mr. Iliadis’ calculations, biomechanical engineer Mr. Siegmund concluded:

6.0 Conclusions

1. Mr. McHardy’s head may have struck the left side of the vehicle during the initial vehicle-to-vehicle impact. The magnitude of his head impact is low and unlikely to have caused Mr. McHardy’s head and brain injuries.

2. Mr. McHardy’s head struck the intruding right side vehicle structures during the rigid pole impact. The magnitude of this impact was considerably more severe and likely caused Mr. McHardy’s head and brain injuries.

3. Torso interaction with the seatback and right side of the vehicle likely caused Mr. McHardy’s lung injuries.

4. If the McHardy vehicle had struck a breakaway pole instead of a rigid pole, then the following would have occurred:

a) Mr. McHardy’s head and torso would not have struck the intruding right side of the vehicle.

b) Mr. McHardy’s serious head and torso injuries would probably have been prevented

c) Mr. McHardy’s head may have struck the right front seatback or head restraint.

d) Mr. McHardy’s risk of concussion as a result of contact with the seatback or head restraint would be less than 1 percent.[^51]

[69] Based on the reports of Mr. Iliadis and Mr. Siegmund, their evidence is that Mr. McHardy’s head and torso injuries would likely have been prevented had his vehicle struck a breakaway pole instead of a rigid pole. The City’s assertion that causation has not been proven is denied by the plaintiffs. However, we are not dealing with simply a bald denial. The plaintiffs’ expert evidence establishes that breakaway supports are effective 88% of the time and the plaintiffs maintain that the use of a breakaway support would have probably prevented Mr. McHardy’s serious injuries and the incursion into the driver’s compartment of Mr. McHardy’s vehicle would have been significantly less. While it is conceded that there is no specific sentence in either the reports of Mr. Iliadis and Mr. Siegmund that a breakaway pole would have in fact broken in this accident, on the balance of probabilities, the plaintiffs submit more likely than not a breakaway pole would have broken away. There is no competing evidence from the defence expert Mr. Wilson who is silent on the issue.

[70] A cross-examination of Mr. Siegmund was relatively brief largely intended to establish that he relied upon Mr. Iliadis’ calculations.

[71] Upon consideration of the entire evidentiary record and upon application of the full appreciation test, I conclude that there is a genuine issue requiring a trial regarding causation. Competing expert evidence and credibility of the experts require the full scrutiny of the trial process. This is not a case where there is no chance of success. This issue also must proceed to trial together with the issue of liability. Causation cannot be resolved on a motion for summary judgment by way of any dispositive findings in this case.

Is the Claim Statute-Barred per s. 44(8)(b) of the Municipal Act, 2001?

[72] The City submits the plaintiffs’ claims are statute-barred by operation of s. 44(8) of the Municipal Act, 2001. In particular, the City relies upon s. 44(8)(b) which provides:

s. 44(8) No action shall be brought against the municipality for damages caused by,

(b) any construction, obstruction, or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of the highway, whether or not an obstruction is created due to the construction, siting, or arrangement.

[73] The City also relies upon the definition of “median strip” as set out in the Highway Traffic Act, R.S.O. 1990, c.H.8, s. 1(1) as follows:

“Median strip” means the portion of a highway so constructed as to separate traffic travelling in one direction from traffic travelling in the opposite direction by a physical barrier or a raised or depressed paved or unpaved separation area that is not intended to allow crossing vehicular movement.

[74] The City argues that both s. 44(8) and the definition of “median-strip” in the Highway Traffic Act speak to a “portion of highway”, referring to it as “untravelled” and “not intended to allow crossing vehicular movement”, respectively. A raised concrete median, like the shoulder of the roadway in MacDonald v. Lefebvre, 1962 CanLII 111 (ON CA), [1962] O.R. 495 (C.A.) is “a portion of highway” not intended to be used by drivers as a matter of common sense, and as acknowledged by the plaintiffs’ expert, the traffic signal pole that Mr. McHardy’s vehicle collided with was located on a portion of the roadway that was “untravelled”.

[75] Further, as stated by the Court of Appeal in Ouellette v. The Corporation of the Town of Hearst, 2004 CanLII 36122 (C.A.) the plaintiff’s claim in that case would have been precluded “if he had driven off the highway and struck the utility pole where it had been placed”. In Ouellette, the top of the utility pole on the south side of the highway snapped off. It fell toward the highway and struck the roof of Mr. Ouellette’s van which was being operated on Highway 11.

[76] MacPherson J.A. at paragraph 17 held that the plain meaning of s. 284(3) of the Municipal Act, (precursor to s. 44(8) of the Municipal Act, 2001) made it clear it was inapplicable in the Ouellette case. Mr. Ouellette’s injuries were not caused by the erection of an object not within the travelled portion of the highway. Rather, they were caused by the municipality’s alleged failure to properly secure and maintain the pole which broke, fell and struck a van travelling on the highway.

[77] Further at paragraph 20, MacPherson J.A. states:

The purpose and language of s. 284(3) is to protect municipalities from actions where drivers leave the highway and strike an object erected or constructed by the municipality adjacent to the highway. In the present case, s. 284(3) would have precluded Ouellette’s action if he had driven off the highway and struck the utility pole where it had been placed. That is not what happened; Ouellette was injured when the pole struck his van while he was driving it on the highway. In short, s. 284(3) seeks to protect municipalities from actions brought by drivers who go where they are not expected to go (off the highway); it does not protect them from injuries to persons in vehicles on the highway.

[78] The City contends that in the case at bar, according to the plaintiffs’ own expert, this is precisely what happened:

• The traffic signal pole was a fixed object adjacent to the roadway or travel way;

• A vehicle striking an object on a median is a “run-off road” collision;

• Mr. McHardy’s vehicle left the travel way and struck the pole; and,

• Mr. McHardy’s vehicle struck the pole where it had been placed on the median.

[79] The City maintains that the plaintiffs’ claim is for damages allegedly caused by an “obstruction”, “erection” or “other material or object” that was “adjacent to or on” and “untravelled portion of a highway”. As such, the plaintiffs are precluded by statute to pursue their claim against the City.

[80] The plaintiffs submit that s. 44(8) of the Municipal Act, 2001 does not apply to the case at bar. It only applies where a driver has intentionally left the travelled portion of the road. In support of this proposition the plaintiffs cite Johnson v. Milton (Town), [2006] O.J. No. 3232 at para. 89 (S.C.J.) I have some doubt as to whether this section only applies where a driver had intentionally left the travelled portion of the road. Counsel for the City produced a number of authorities where the intention of the driver leaving the travelled portion of the roadway has no bearing on whether the action is statute-barred.

[81] I find more persuasive the authorities cited by counsel for the plaintiffs where various cases have considered an interpretation of “untravelled portion of a highway”.

[82] The plaintiffs submit that the traffic signal pole at issue in this case is not on the “untravelled portion of the highway”, as required in order to exempt liability under s. 44(8)(b) of the Municipal Act, 2001. Quite the opposite, it is in the middle of Yonge Street and functions as an integral part of the highway.

[83] In Ficht v. City of St. Catharines, [1978] O.J. No. 3860 at para. 40 (Co. Ct.) Scott, Co. Ct. J. held that a stop sign was “integral part of the highway” and accordingly the predecessor to s. 44(8) did not apply. He noted that the wording of the section was only intended to relate to the situation, arrangement or disposition of materials or objects not within the travelled portion of the highway – and this did not include a stop sign.

[84] Similarly, in Jennings v. Cronsberry and the Queen in the Right of the Province of Ontario, 1965 CanLII 24 (ON CA), [1965] O.J. No. 982 at paras. 53-54 (C.A.) McGillivray J.A. held that a stop sign located 27 feet east of the paved roadway, and 5 feet beyond the border of the road allowance, was an integral part of the highway. As such, a similar subsection of the Highway Improvement Act did not prevent the action from proceeding. On appeal, the ruling of McGillivray J.A. was expressly adopted by the Supreme Court of Canada. The plaintiffs’ rely on Jennings to support their position that a traffic signal ploe placed on a small median in the middle of a highway is an integral part of that highway and as such, s. 44(8)(b) does not apply.

[85] In Wood (Litigation Guardian of v. Meaford (Town), 2001 CanLII 28028 (ON SC), [2001] O.J. No. 518 at paras. 4-7 (S.C.J.), MacKinnon J. found that a tree located on a boulevard within the road allowance on the defendant Town of Meaford’s property was within the travelled portion of the highway, and as such the predecessor of s. 44(8) did not apply.

[86] In Yovanovich v. Windsor (City), [2007] O.J. No. 2134 at paras. 9 and 15 (S.C.J.), Morissette J. held that a raised catch basin elevated in excess of 2 inches about the road surface on the right hand side of the road was not part of the untravelled portion of the road, and the predecessor to s. 44(8) did not apply.

[87] Upon consideration of all the authorities cited by counsel, and upon the application of the full appreciation test, in my view there is a genuine issue requiring trial as to whether the plaintiffs’ claims are statute-barred by operation of s. 44(8), and in particular sub-paragraph (b) of the Municipal Act, 2001. A technical and restrictive interpretation by the City would locate Mr. McHardy’s vehicle colliding with the pole on the untravelled portion of the highway. A more contextual and obviously less literal approach would characterize the traffic pole location in the middle of the intersection as an integral part of the highway. The plaintiffs submit that this is favoured interpretation leading to the result that their claims are not statute-barred.

[88] Whether the plaintiffs’ claim is statute-barried is a genuine issue requiring a trial which should not be determined on this summary judgment on this record. This issue cannot be determined in isolation. Rather, it exists within a factual matrix. Whether this precluding section of the Municipal Act, 2001 applies necessarily involves findings of fact as well as the determination of a legal question properly left to the trial judge hearing all the evidence at trial. The full appreciation test can only be achieved by way of a trial.

[89] In concluding there are genuine issues requiring a trial, I understand the full appreciation test transcends achieving a familiarity with or a working knowledge of the evidence in the motion record. Rather, a broader view of all the evidence presented is required through the lens of “whether the attributes of the trial process are necessary to enable the motion judge to fully appreciate the evidence and the issues posed by the case.”[^52]

[90] I have determined that ours is such a case “where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and experience the fact-finding process first-hand.”[^53] I have concluded that a full appreciation of the evidence and issues required to make dispositive findings are not attainable on the motion record. I have not been satisfied by the moving party City that the issues are appropriately resolved on a motion for summary judgment. The appreciation test is not met and the “interest of justice” requires a trial.

[91] Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment? In the case at bar, the answer is no. I find this full appreciation can only be achieved by way of trial.

DISPOSITION

[92] For the foregoing reasons, the City’s motion for summary judgment is hereby dismissed. The parties agree that costs are to be determined by way of written submissions. Within 14 days of these reasons, counsel are to serve and file with trial co-ordinator at Barrie a concise statement as to costs no longer than 2 pages, Costs Outline, Bill of Costs and copies of any supporting authorities.

DiTOMASO J.

Released: February 14, 2012

APPENDIX “A” – MOTION MATERIALS ON THE CITY OF BARRIE’S MOTION FOR SUMMARY JUDGMENT

1. Motion Record

2. Supplementary Motion Record

3. Factum of the Defendant, City of Barrie

4. Brief of Authorities of the Defendant, City of Barrie

5. Affidavit of Ken A. Iliadis

6. Affidavit of Gunter P. Siegmund

7. Affidavit of A. Eve Rogers Volumes 1 and 2

8. Transcript and Exhibit Book (Cross Examination of David Wilson)

9. Factum of the Plaintiffs/Responding Parties

10. Brief of Authorities of the Plaintiffs/Responding Parties

[^1]: Tab 4, paragraph 7, pages 98 and 99 of the Motion Record

[^2]: Tab 4, paragraph 8 C., pages 101-102 of the Motion Record

[^3]: Paragraph 8 C (a)

[^4]: Motion Record, Tab 3, page 60 Affidavit of David C. Wilson sworn October 14, 2011 (“Wilson Affidavit”)

[^5]: Motion Record, Tab 3, page 76, 90 Wilson Affidavit, exhibit “C”, report dated August 26, 2011 ss. 2.2, 3.0

[^6]: Rule 20.04(2) and (2.1), Rules of Civil Procedure, R.R.O. 1990, Reg. 194

[^7]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at paras. 40-44

[^8]: Combined Air Mechanical Services Inc. v. Flesch, supra at paras. 50-51

[^9]: Combined Air Mechanical Services Inc., supra at para. 52

[^10]: Combined Air Mechanical Services Inc., supra at para. 55

[^11]: Combined Air Mechanical Services Inc., supra at para. 56

[^12]: Rules of Civil Procedure, R.R.O. 1990, reg. 194, Rule 20.02(2)

[^13]: Morsi v. Fermar Paving Limited, 2011 ONCA 577, para. 19

[^14]: Morsi v. Fermar Paving Limited, supra at para. 20

[^15]: Supplementary Motion Record, Tab 3, p. 27, Iliadis Transcript, q. 44

[^16]: Ibid., qq.45-47

[^17]: Supplementary Motion Record, Tab 5, p. 152, photograph 10

[^18]: Supplementary Motion Record, Tab 3, p. 32, Iliadis Transcript, qq. 71-73

[^19]: Supplementary Motion Record, Tab 3, pp. 33-34, Iliadis Transcript, qq. 76-80

[^20]: Ibid., p. 34, q. 86

[^21]: Ibid., p. 29, q. 55

[^22]: Ibid., p. 29, q. 56

[^23]: Ibid., pp.29-30, qq. 57-60

[^24]: Ibid., p. 41, qq. 130-131

[^25]: Ibid., P. 130, q. 612

[^26]: Ibid., p. 42, q. 136

[^27]: Ibid., pp. 41-42, qq. 132-133

[^28]: Ibid., pp. 42, 130, qq. 135, 615

[^29]: Ibid., pp. 47-48, qq. 170-171

[^30]: Supplementary Motion Record, Tab 3, Iliadis Transcript, pp. 44-45, 47, qq. 149-154, 166-167

[^31]: Ibid., p. 48, qq. 174-176

[^32]: Ibid., q. 177

[^33]: Ibid., pp. 48-49, qq. 178-179

[^34]: Supplementary Motion Record, Tab 2, p. 14, Supplementary Affidavit of David C. Wilson sworn December 16, 2011, Exhibit “A”, report dated December 15, 2011

[^35]: Supplementary Motion Record, Tab 3, pp. 56-58, Iliadis Transcript, qq. 224-233

[^36]: Anticipated responding motion record of the Plaintiffs, Iliadis Affidavit, Exhibit “B”, report dated July 11, 2011, s. 5.3; Exhibit “C”, report dated December 12, 2011, s. 4.1

[^37]: Supplementary Motion Record, Tab 3, pp. 61-62, Iliadis Transcript, qq. 254-256

[^38]: Ibid., pp. 71-72, qq. 303-305

[^39]: Ibid., pp. 83-84, qq. 363-371

[^40]: Ibid., p. 116, qq. 542-543

[^41]: The Collision Investigation Report of Ken Iliadis dated July 11, 2011 found at Exhibit “B” to the Affidavit of Ken Iliadis sworn December 18, 2011, p. 12

[^42]: Transcript of cross-examination of David Wilson, p. 24, qq. 125-128, p. 29, q. 152 found at Tab A of the Transcript and Exhibit Book from the cross-examination of David Wilson

[^43]: Ministry of Transportation: Quality & Standards Division, Roadside Safety Manual (Toronto: Publications Ontario, 1993), found at Exhibit “3” of the Transcript and Exhibit Book from the Cross-Examination of David Wilson, at s. 6.5 and 6.7

Transcript of the Cross-Examination of David Wilson, p. 24, q. 125-128, found at Tab “A” of the Transcript and Exhibit Book from the cross-examination of David Wilson

Collision Investigation Report of Ken Iliadis dated July 11, 2011, found at Exhibit “B” to the affidavit of Ken Iliadis sworn December 19, 2011, p. 13

[^44]: Transcript of the Cross-Examination of David Wilson, pp. 24-31, q. 125-163, found at Tab “A” of the Transcript and Exhibit Book from the cross-examination of David Wilson

Ministry of Transportation: Quality & Standards Division, Roadside Safety Manual (Toronto: Publications Ontario. 1993) at s. 6.5 and 6.7, found at Exhibit “3” of the Transcript and Exhibit Book from the Cross-Examination of David Wilson

[^45]: Mr. Iliadis’ report of July 11, 2011, found at Exhibit “B” to the Affidavit of Ken Iliadis sworn December 19, 2011 at p. 12

[^46]: Transcript of the examination for discovery of Steven Rose, representative of the defendant City of Barrie, p. 29, q. 126-128; p. 3, q. 147-148; pp. 33-34, q. 147-152; pp. 36-37, q. 165-168, p. 37, q. 170; p. 43, q. 203-204, found at Exhibit “H” to the affidavit of A. Eve Rogers, sworn December 13, 2011.

[^47]: Correspondent from counsel for the defendant City of Barrie dated December 3, 2010, found at Exhibit “L” to the affidavit of A. Eve Rogers, sworn December 13, 2011

Transcript of the Cross-Examination of David Wilson, pp. 10-11, q. 53-57, found at Tab “A” of the Transcript and Exhibit Book from the cross-examination of David Wilson

[^48]: Collision Investigation Report of Ken Iliadis dated July 11, 2011, found at Exhibit “B” to the affidavit of Ken Iliadis sworn December 19, 2011, p. 13

Supplementary Report of Ken Iliadis dated December 12, 2011, found at Exhibit “C” to the affidavit of Ken Iliadis sworn December 19, 2011, p. 5

[^49]: Transcript of the Cross-Examination of Ken Iliadis, pp. 101, q. 543, found at Tab 3 of the Supplementary Motion Record of the Defendant City of Barrie

[^50]: Collision Investigation Report of Ken Iliadis dated July 11, 2011, found at Exhibit “B” to the affidavit of Ken Iliadis sworn December 19, 2011, p. 13

[^51]: Injury Biomechanics Report of Gunter Siegmund dated July 20, 2011, found at Exhibit “B” to the affidavit of Gunter Siegmund sworn December 19, 2011, p. 9

[^52]: Combined Air Mechanical Services Inc., supra at para. 54

[^53]: Combined Air Mechanical Services Inc., supra at para. 55