COURT FILE NO.: C-663-04

DATE: 20120622

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

NATHANIAL MARK

Gary L. Petker, for the Plaintiff

Plaintiff

• and -

THE CORPORATION OF THE CITY OF GUELPH, THE CORPORATION OF THE COUNTY OF WELLINGTON and LOUIS SUTTER

James H. Bennett, for the Defendants, The Corporation of the City of Guelph and The Corporation of the County of Wellington

Defendants

HEARD: April 10, 11, 12, 13, 16, 17, 18, 19, 20, 2012

JUDGMENT

Mossip J.

[1] Nathan Mark (Nathan) had just turned 22 years old. On February 5, 2003, he was heading to meet a co-worker at Trafalgar Road and 401 so they could car pool to a work site together. At the time Nathan worked full-time as a carpenter and carpenter’s helper.

[2] The weather the day before, and on February 5, was making the roads treacherous in the Guelph area. The roads had been closed the day before for several hours because of the dangerous conditions on the roads caused by winter storms. Nathan heard that the roads were icy; he tested his car’s ability to stop on the road near his home before getting onto Gordon Street.

[3] Nathan was driving a blue 1987 Chevrolet pick-up truck and was proceeding southbound on Gordon Street towards the 401. He was on Gordon Street, south of Clair Road at the time of the accident.

[4] Louis Sutter (Louis) was driving a red 1995 Chevrolet pick-up truck proceeding northbound on Gordon Street, driving into the City of Guelph.

[5] Nathan’s vehicle crossed the centre line of Gordon Street into the northbound lane and the two cars collided head-on. The action against Louis was dismissed on consent in July, 2005.

[6] As per the Agreed Statement of Facts, the section of Gordon Street where the accident occurred is within the municipal limits of the City of Guelph (“Guelph”) and as such, is the responsibility of Guelph to maintain pursuant to the Municipal Act, 2001 (the “Act”).

[7] Gordon Street south of Guelph becomes Wellington Road 46, and is the responsibility of the County of Wellington (“Wellington”) to maintain. This road becomes Brock Road N. further south to Highway 401.

[8] Guelph and Wellington roads departments had an understanding that Wellington would maintain that part of Gordon Street located within Guelph from Clair Road south to the municipal city limits. By that understanding, Wellington assumed the maintenance responsibilities for the place of the accident, although it was located within the boundaries of Guelph.

[9] Nathan suffered catastrophic injuries as a result of the crash and he has been permanently impaired.

[10] The parties have agreed on damages in the global amount of $1,912,176.96 inclusive of pre-judgment interest calculated to and including April 2, 2012. There is no dispute that these damages arise from injuries Nathan sustained in the motor vehicle accident.

ISSUE TO DECIDE

[11] The sole issue for me to decide is whether Guelph and Wellington are liable to pay the agreed upon damages; and if so is Nathan contributory liable to pay any of the damages?

[12] This trial was conducted by competent, experienced and well-prepared counsel. Many of the exhibits counsel agreed were admissible. Counsel were professional and co-operative in their dealings with each other; they were always professional and respectful in their dealings with the court.

Applicable Legal Principles

[13] Counsel agreed as to the applicable legal principles to decide this case which are briefly set out here. These principles and the jurisprudence interpreting them will be dealt with more fulsomely in the Analysis and Decision section.

[14] The tort law duty of care applies to government authorities in the same way as it does to individuals, unless exempted by statute or situations involving policy decisions which would negate the duty of care.

[15] Section 44(1) of the Act provides that the municipality having jurisdiction over a highway shall keep it in a state of repair that is reasonable in the circumstances. This “state of repair” also applies to winter road maintenance of highways. Subject to the issue of contributory negligence set out in the Negligence Act, if a municipality defaults in this duty, it is liable for all damages any person sustains because of the default. If an employee of the municipality authorized to carry out its duty, defaults in carrying out the municipalities’ duty, the corporation is liable for that default of the employee.

[16] The Act also provides for situations in which the corporation is not liable for failing to keep a highway in a reasonable state of repair. These situations are set out in s. 44(3)(a)(b) and (c) of the Act.

[17] The court must consider whether compliance by the municipality with the Minimum Maintenance Standards (“MMS”) provides a defence to a finding that a highway was not in a reasonable state of repair. If the MMS do not apply, the common law standard of reasonableness applies. In the context of this case the question is, were the road conditions on Gordon Street, on February 5, 2003, in a reasonable state of repair? If not, did the state of non-repair cause the accident and the injuries to Nathan? If those two questions are answered in the affirmative, the municipality must show it took reasonable steps within a reasonable time to reduce the risk to the public; it is not a standard of perfection. The municipality cannot be all places at all times. The municipality cannot guarantee an ice-free road in Ontario winters. If the municipality is found liable after these determinations, contributory negligence may be apportioned.

[18] There is no legal dispute that Guelph and Wellington would be equally liable, if the duty of care is not met, notwithstanding that Guelph delegated to Wellington the maintenance of Gordon Street where the accident occurred.

[19] The parties relied on the trial evidence, both lay and expert, to make their diametrically opposed submissions on whether the MMS apply on the facts of this case, whether Wellington met the MMS, and whether it failed in its duty to keep Gordon Street in a reasonable state of repair, prior to and at the time of the accident.

Evidence at Trial

Plaintiff

[20] The plaintiff called several “first responder” witnesses to give important background testimony as to the circumstances of the accident and their observations of the condition of Gordon Street at the location of the accident.

[21] Michael Knighton, with the Guelph Fire Department, responded to the 911 call from the Stone Road Fire Station. He was the driver of the truck that day.

[22] He testified that the snowy road conditions did not permit him to drive too fast. South of Clair Road, which was the beginning of the stretch of road where the accident occurred, the road was icier and wind- swept; more so than north of Gordon Street.

[23] Mr. Knighton testified that as he came upon the scene, he had to slow down. When he went to brake the truck, the truck went sliding and skidding on the road. As a police officer came toward the truck, Mr. Knighton “scared the bejesus” out of the police officer because the fire truck was not stopping.

[24] In cross-examination, Mr. Knighton testified that he did not make notes that day, the captain did. He agreed there was nothing in his notes about the road conditions. He also confirmed that the photos of the road found at Tab 48 of the Joint Book of Documents Accident and Liability (“Accident and Liability Book”) were consistent with what he saw that morning at the scene of the accident.

[25] Bill Lawrence, who was the captain of the Guelph Fire Department at the time of the accident, prepared the Report found at Tab 43 of the Accident and Liability Book.

[26] He recalled that after the truck crossed Clair Road and continued south on Gordon, the road became more treacherous. He remembered grabbing the sides of the truck which was having trouble stopping and which was sliding on the glare ice. He remembers a difference in the road conditions after the truck crossed Clair Road.

[27] Mr. Lawrence gave three compelling reasons why he remembers some of the details of that day over nine years ago, which all made sense to the court.

[28] James MacIntosh was a paramedic for the City of Guelph at the time of the accident. Although, he does not have a memory of responding to the accident that day, he agreed that he wrote “conditions very icy” in the Ambulance Call Report, filed as an exhibit.

[29] Louis Sutter, the other driver Nathan collided with testified. He had just left his home heading north on Gordon Street into Guelph when he saw a “shadow” in front of him, and then there was the impact of another vehicle with his.

[30] Mr. Sutter testified that the road conditions that morning were very icy. He recalled that he could walk on the gravel side of the road but not on the road as it was too icy. The attendants could not balance themselves to carry him to the ambulance; he was put on a stretcher to get to the ambulance because of his broken leg. He also remembers that the fire department truck had trouble stopping and that it slid on the ice right past his truck.

[31] Mr. Sutter recalls talking to the police and giving them a statement truthfully that day. This statement was filed as an exhibit and he adopted what he said to the police about the other driver, namely, “I don’t believe he was speeding; 45 may be 50 at the time”.

[32] Mr. Sutter agreed that the area south of Clair Road is more rural than the area north of Clair. He testified that he did not recall seeing any lights on the other vehicle that hit him.

[33] Mr. Sutter did not have problems controlling his vehicle when he turned to go northbound onto Gordon Street. The vehicle, from the distance where he saw the shadow swerving into him, was going 50 to 60 km. per hour at the most. He believes the vehicle had lost control sometime before he swerved into his lane.

[34] In cross-examination he testified that he knew the road was icy and that he could not walk on the road; the ambulance attendants could not walk on it either so they brought a stretcher for him. He realized that the ice was quite thick. The photos of the ice on the road at Tab 48 accorded with his recollection of the ice on the road at the time of the accident.

[35] Chris Sutter, Louis Sutter’s son, was a police officer with the City of Guelph. He had pulled out of his driveway and started up Gordon Street and came upon the accident. He attended to his dad and then to Nathan.

[36] Chris Sutter described the road conditions as quite slippery; he would “equate it to an ice rink”. He testified that there was ice from one shoulder of the road to the other; that he could not see road markings or where the shoulder of the road began. He described the road as a “sheet of ice from end to end”.

[37] Chris Sutter made the 911 call, transcribed at Tab 41 of the Accident and Liability Book. In that call he described Gordon Street as being “all ice” and like an “ice rink”, and he told 911 to call public works out to “ice the street”.

[38] Chris Sutter testified that after the 911 call, he stayed to assist with traffic directions. He saw the fire truck arrive. He testified that it was going slow, but as it approached him it slid by where he was standing. He also recalled that when he later drove north on Gordon Street, the ice ended at Clair Road; thereafter Gordon Street was wet, but not icy and he could see the asphalt.

[39] Trevor Harness was also a police officer with the Guelph Police in February 2003. He attended at the accident scene. He remembers it was very cold that day and that it was “very very icy; incredibly icy.” What stood out for him was the “thickness of the ice”; the thick build-up of ice on the road. He testified that there was a significant change in the condition of Gordon Street south of Clair Road and near the accident.

[40] Mr. Harness testified that when a police accident reconstructionist arrived and they walked on the road, it was very icy and difficult to walk on. The road was also snow-covered; they had to be careful so they did not fall. He agreed that the photos of the road at Tab 48 were what the road looked like with respect to the ice. He testified these photos were “very accurate in reflecting the road conditions” at the scene of the accident.

[41] Mr. Harness testified that he completed the Motor Vehicle Accident Report found at Tab 42 of the Accident and Liability Book. He testified that he does not recall laying any charges against either of the drivers because of the weather and road condition which was snow-covered and ice-covered. He did not think either of the drivers was responsible for the accident.

[42] Scott Green was also with the City of Guelph police department on February 5, 2003. He was a traffic sergeant at that time. He attended the accident scene; he oversaw the police investigation at the scene. There were two accident reconstructionists at the scene. He recalls that at the collision scene there was thick ice and the roads were “treacherous”.

[43] Mr. Green left the scene to get the mobile home unit and brought it back to the scene. Cst. Harding was the lead reconstructionist. Mr. Green was also at the time a Class ‘A’ auto technician and licenced truck/car operator. He testified that a full-scale inspection of Nathan’s car was not carried out.

[44] He testified that the road conditions were poor and that it was a stormy day. He recalls that a call was placed to the City of Guelph to service the road.

[45] In cross-examination, he was taken to Tab 48 of the Accident and Liability Book and shown photo 3, which shows sand on the road. This officer testified that that sand was from the sander that came through at around 7:30 a.m. and which he turned back. He testified that the sander showed up at 7:30 a.m. and was coming from the north heading south.

[46] He testified that he observed Harding slip on the road coming out of the mobile trailer and fall on his backside.

[47] Mr. Green agreed that he would have provided the information to Cst. Harding as to the mechanical condition of Nathan’s pick-up. He would have checked the steering and the brakes. With respect to the tires on the vehicle he noted the difference in the types from the front to the back, but noted the size of the tires, 14”, was the same on each of the axles. The tires on the back were an “all weather/snow tire”. The difference in the tire type and size from back to front would not make a big difference in the stability of the truck. He testified that he is aware that extra weight is sometimes put in a pick-up to make the pick-up more stable.

[48] Mr. Green testified that Nathan’s pick-up was an old vehicle and the first impression was that it was in disrepair. The brakes and steering were however in good condition. In re-examination he testified that he would have noted in his report if the condition of the tires had contributed to the cause of the accident.

[49] Paul Harding from Guelph Police Services testified. He was qualified on consent as an expert to give his opinion on accident reconstruction. He did the reconstruction of the accident in this case. He agreed he had no specialized training on winter road maintenance or on the issue of re-freezing on roads.

[50] He testified that when he stepped out of the command vehicle, he slipped and fell on his backside; it was glare ice. He testified he was on his “hands and knees” looking for marks on the road; he noticed a gouge in the ice. There was a light dusting of snow; it was very slippery.

[51] He went through his field sketch at Tab 50 of the Accident and Liability Book. He wrote in those notes, “snowy windy roads icy”. He took some measurements, called “Drag Sled” which determines the slipperiness of the roadway. These measurements were taken with respect to the southbound Gordon Street lane. The measurement came out to .25 which is considerably more slippery than .7 or .75 which is ordinary slipperiness; the northbound lane was measured at .18 for slipperiness. He testified that the road was so slippery he did not employ the usual method to calculate slipperiness, which to drive a vehicle and then slam on the brakes, while using a Vericom machine.

[52] Mr. Harding went through some other measurements he made, which I do not need to outline. At page 11 of his report he concluded that at the point of impact Louis Sutter was travelling at approximately 47 km per hour and Nathan was travelling at approximately 23 km per hour.

[53] At p. 15(b) of Tab 50, he noted that “the roadway at the scene of this collision was very treacherous, due to a thick layer of ice, with a light dusting of snow on it.”

[54] He also noted that “although Mr. Mark’s truck looked to be in a state of disrepair, its brakes and drive train were found to be in good shape.”

[55] It was the opinion of Mr. Harding that “neither driver was driving in a dangerous manner and the road was very, very slippery. This roadway is a major traffic artery within the City of Guelph and had the roadway been sanded, this collision probably would not have occurred.”

[56] In cross-examination, he agreed the car lights’ switch was in the off position when he looked at it, but that was eight days after the crash.

[57] He agreed that he noted with respect to the left front tire, “outer tire cord separating”, which meant it was not in “good shape”. He also testified that in his opinion, if Nathan had been going over 50 km per hour, he would have spun out and left the roadway.

[58] Mr. Harding was shown the sand in photo 3 at Tab 48. He testified that came from a plough coming from the south end, south of the accident. The plough was stopped by the police and turned around.

[59] Mr. Harding testified that the road was slippery when he got there and that in the condition it was in when he got there it was glare ice and he could not stand.

[60] Mr. Mohamed Alkoha was qualified on consent as an expert in winter road maintenance and operations. His report was filed at Tab 3 of the Joint Book of Documents – Expert Reports (“Expert’s Book”).

[61] The scope of Mr. Alkoha’s report is set out on p. 3 of the report as follows:

This report will examine the actions of the County of Wellington and the City of Guelph (referred to herein collectively as the Municipality) winter maintenance practices as related to location and the time period leading up to the incident on February 5, 2003. This report is concerned with the determination as to whether the practices of the Municipality met acceptable or accepted industry standards.

This report is neither an evaluation nor an overview of the winter maintenance operations of either the County of Wellington or the City of Guelph.

[62] Mr. Alkoha testified as to what documents he reviewed, the basis for his comparison and conclusions with respect to Wellington’s winter road maintenance under various categories which are set out in his report.

[63] Mr. Alkoha’s analysis and conclusions are found at pp. 12 to 15 of his Report. His conclusions are based on what are the “Best Practices” for snow and ice control within road winter maintenance operations. Mr. Alkoha goes through a number of categories which I will not outline here and concludes at p. 15:

In conclusion, the Municipality’s practices and methodologies for road maintenance as they relate to this incident are not instep with known, acceptable, and widely used industry practices.

[64] Tim Leggett testified at the trial and was qualified on consent as an expert in winter road maintenance practices and meteorological issues. His curriculum vitae, and reports are found at Tab 1 of the Expert’s Book.

[65] The purpose of Mr. Leggett’s involvement was to comment on the winter road maintenance that had been completed in the days before the accident. Mr. Leggett examined all aspects of the winter road maintenance procedures, policies and practices in effect at the time of this accident and testified in court on these issues.

[66] Mr. Leggett’s conclusions are found at page 8 of his Report and a summary of them was given by the witness in court. His conclusions were as follows:

1. Potash or potassium chloride is the least effective anti-icing or de-icing chemical available with a practical working limit no greater than 25°F (-3.9°C).

2. According to all weather reports, including diaries and shift logs reviewed, the temperatures at the time of the incident and the evening before were approximately -8°C to -11°C. These temperatures would be far too cold for even sodium chloride which has a practical temperature range of 15°F to 20°F (-6.7°C to -9.4°C), let alone potassium chloride which is far less effective than sodium chloride.

3. Thus, icy sections, if they occurred, should have been addressed by the application of sand alone (no chemical application).

4. By applying chemicals, a brine was allowed to form and in the presence of additional snowfall, this brine diluted to the extent of it re-freezing. This occurrence is well established in the literature, and should be on the minds of any maintenance manager before the decision is made to anti-ice a road surface.

5. The decision to anti-ice, and with what chemical ratio, was apparently left to the operator of the sander/plough unit, Mr. Hamilton. Such decisions are typically made by maintenance managers who have updated weather information and a higher level of understanding of how anti-icing chemicals work and the function of road maintenance in general.

6. Notwithstanding that anti-icing chemicals should not have been used at the low temperature range experienced, the plough route taken by Mr. Hamilton apparently took six hours to complete, which provides substantial time for a re-freeze to occur. Unless a re-pass can occur within several hours, which can revitalize any brine that has formed on the road surface, chemicals should not be used as a re-freeze could occur with additional snowfall.

[67] I will refer more to Mr. Leggett’s comments and conclusions with respect to the actions of the snow plough operator, Lyle Hamilton, in the Analysis section of this Judgment.

[68] Nathan testified at this trial. He was able to give the court some of his history regarding his employment and his life. He also was able to go through his injuries from the motor vehicle accident in some detail.

[69] Nathan does not remember what happened for most of the day of the accident. He remembered doing a brake test at the top of his road and he found the road slippery. He remembers he drove slowly on the road that morning because of the conditions.

[70] As far as the actual accident, he recalls not having control and then bracing. He remembers not having control, feeling hit, and realizing he was going to be hit.

[71] In cross-examination, Nathan was referred to the transcript of parts of his examination for discovery. Counsel agreed that the questions and answers were admissible at this trial under the principle of “Past Memory Recorded”. The answers to those discovery questions are part of the evidence at trial. This evidence relates to what Nathan knew about the condition of the roads and the driveway for example which I have briefly summarized above.

[72] The plaintiff also filed a Brief as an exhibit which included the read-in’s from the Examination for Discovery of Mr. John Johnson who was the operations manager for Wellington. A Brief was also filed of the read-in’s from the Examination for Discovery of Mr. Lyle Hamilton, the snow plough operator on Gordon Street on the night shift/early morning shift on the day of the accident.

Defence

[73] Mr. John Johnson was the operations manager for Wellington at the time of the accident, and had been in that position since 1995. His job description is to oversea the maintenance for the county roads, develop policies and procedures, and deal with employee discipline issues and training.

[74] Mr. Johnson went through the duties of Wellington to maintain the roads in great detail. He set out the policies and procedures in place at that time, as well as outlining the training the employees received for winter road maintenance.

[75] Mr. Johnston testified that Wellington does not have a specific “patrolling” position in its winter road maintenance operations. He testified that every time the ploughs are on the road, the operators are acting as patrollers.

[76] Mr. Johnston’s understanding was that Wellington had to clear the snow as soon as practicable and on a Class 2 Highway (which Gordon Street was) within six hours when the snow was to a depth of 5 cm. With respect to icy roads, Wellington must “treat” the icy roadway as soon as practicable as on a Class 2 Highway it must be treated within four hours of becoming aware of the ice.

[77] Mr. Johnston testified that Wellington County complied with the winter road maintenance standards set out in the MMS; little use was made of a Manual, filed as an Exhibit, which was dated 1972. This Manual was considered outdated and was replaced by the MMS.

[78] Mr. Johnston testified that the “early” or “night shift” was from 11:30 p.m. until 7:30 a.m. This shift ensured the roads would be ready for the rush hour traffic.

[79] Mr. Johnston did not think the section of Gordon Street where the accident occurred required any special attention or that it was a difficult area to maintain.

[80] Mr. Johnson was cross-examined extensively on all of the practice and policy topics. Given my decision as set out below, it is not necessary for me to go through Mr. Johnson’s testimony on these topics in any detail.

[81] Mr. Johnson agreed in cross-examination that Wellington did not have any winter road maintenance policies in writing other than the MMS, and the 1972 Manual. The job descriptions for the personnel involved in winter road maintenance were filed and were up-dated as of 2002. Mr. Johnson was cross-examined at length on the various job description functions of the employees involved in winter road maintenance.

[82] Mr. Johnston agreed that he does not know exactly what material Mr. Hamilton applied at the accident site. He does not know the application rates or ratio of sand and salt he applied; he knows the volume of material applied on Mr. Hamilton’s shift from the records.

[83] Mr. Johnson agreed Gordon Street was a high priority road. He also agreed that the only patrolling that was done on that road on February 5, 2003, was by Mr. Hamilton at 12:30 a.m. and 6:15 a.m.

[84] Brendan Mackinnon was qualified on consent as an expert to give an opinion on winter road maintenance – operation, practice and procedures as well as with respect to materials used in winter road maintenance; their use and effectiveness.

[85] Mr. Mackinnon is a professional engineer and his resume is found at Tab 2 of the Expert’s Book, along with his report.

[86] Mr. Mackinnon at trial, and in his report, reviewed all of the relevant documentation which provided the data for his report. His summary conclusions are at page 11 of his Report and are as follows:

8.1 The maintenance of Gordon Street was under the supervision of Paul Johnson and Rob Moore who are qualified to do this work.

8.2 As noted in part 7 above, Wellington County staff spent the day carrying out various patrolling, plowing, salting, and sanding operations on Gordon Street on February 05, 2003. The need for operations was determined in the field by competent staff.

8.3 The winter maintenance operations carried out by Wellington County staff on Gordon Street on February 05, 2003 met or exceeded the requirements of Ontario Regulation 239/02.

8.4 There were no other reported MVAs on Gordon Street on February 05, 2003 indicating other road users were able to use Gordon Street safely.

[87] Mr. MacKinnon testified that he reviewed Mr. Hamilton’s records as to what he did by way of winter maintenance on Gordon Street on his shift and prior to the accident.

[88] Based on his review of these records, Mr. Hamilton sanded both north and south on Gordon Street at 12:30 a.m.; he sanded going north on Gordon Street at 6:15 a.m. Mr. Hamilton was “spot” sanding, with a mixture of primarily sand with some salt mixed with it. At times he was using a mixture of two parts sand to one part salt and other times he used half sand and half salt.

[89] His overall opinion was that Mr. Hamilton applied the right formula to the road, and he was treating the road appropriately; the roads were also patrolled appropriately.

[90] In cross-examination, Mr. MacKinnon testified that when he wrote his report, he understood there was some supervision of the snow plough operators during the night shift, and that a foreman was available to Mr. Hamilton if he needed one.

[91] Mr. MacKinnon also agreed that based on the form completed by Mr. Hamilton, he could not tell which conditions applied to what part of the road or at what time. He agreed that it is hard to say whether Mr. Hamilton treated that section of Gordon Street appropriately because he did not know what that road was like or how he treated that section specifically. He also does not know from Mr. Hamilton’s records what the application rate of the sand and salt mixture was when he sanded at 12:30 a.m. When he wrote his report, Mr. MacKinnon relied on the operator to use his judgment.

[92] Mr. MacKinnon was cross-examined extensively on the issue of the salt in the sand laid down by Mr. Hamilton at 12:30 a.m. on Gordon Street and as to it causing a re-freeze. I am not going to outline the testimony in any detail here. One of the important facts that was confirmed by this witness is that to wait six hours after the application of some salt in the mixture being laid down could create a risk of re-freeze on the road.

[93] Mr. MacKinnon also gave evidence with respect to the information contained in MMS and also what topics are missing in the standards. He also addressed the job descriptions for various employees doing winter road maintenance set out in the Wellington documents. It is not necessary for me to elaborate on this evidence here based on my decision.

[94] Mr. MacKinnon agreed that Wellington did not have a specific manual which told the operators what material formula to use on the roads and under what conditions. There was also no plan from Wellington as to the priority of the roads in an area for snow and ice removal.

[95] Duane E. Amsler, Sr. testified. He was qualified as an expert in winter road maintenance systems, operations and procedures, as well as winter road maintenance materials, their appropriate use and effectiveness for snow and ice control.

[96] The instructions he was given for completing his report are at page 1 of his report and were as follows:

The instructions provided by H. Wayne Snyder of Madorin, Snyder LLP were to provide a “fair, objective and non-partisan” assessment of the snow and ice control highway maintenance actions of the County of Wellington relative to the subject claim.

[97] The nature of the opinion sought from Mr. Amsler is at page 2:

In Paragraph 8 of the claim, the plaintiff provides a list of actions and inactions the maintenance agency (Wellington) did not perform, or performed incorrectly, that contributed to slippery road conditions that were present at the time of the accident. I will not address every individual allegation, as they all relate to improper snow and ice control maintenance actions. I will address only the major issues (paraphrased):

• Failure to take necessary action to prevent or reduce the danger

• Failure to sand or salt the road

The two bulleted items, above, boil down to the appropriateness of the Wellington response in terms of:

• Applicable standards of care

• Available weather forecast information

• Personnel, material and equipment resources utilized by Wellington prior to the accident (level of service)

• Choice of ice control materials

[98] In his report and testimony at trial, Mr. Amsler goes through each of those items. His conclusion is at page 5 as follows:

In my judgment, the snow and ice control maintenance actions provided by Wellington early on February 5, 2003 were appropriate for the predicted weather conditions and consistent with acceptable snow and ice control practices.

[99] Mr. Amsler testified that based on his review of the relevant documents, the snow plough operators were patrolling and treating the roads as necessary. He considered what they were doing in the context of what was set out in the MMS as well as the road conditions and what he understood the operators were doing for road maintenance.

[100] Mr. Amsler testified that a patrolling system is generally based on weather forecasting data. Sometimes municipalities send out a foreman with a truck to patrol and the foreman will phone back the condition of the roads for the operators. Sometimes the operators themselves are out on the roads with a full range of materials to treat the roads; the operators patrol the roads and treat them as they determine necessary.

[101] Wellington did have weather forecast data available from World Weather Watch. This information was faxed to Central Garage in Wellington and then was distributed to the various other garage locations by fax.

[102] Wellington also had a radio dispatcher who was on duty 24/7 in the winter season, and who advised the snowplough operators of weather and any problems. The dispatcher could call a foreman for advice or could call in extra help if the operators needed it.

[103] In his opinion, Mr. Hamilton, with 30 years experience as a snow plough operator, would be capable of responding to any snow and ice situation and would call in persons for help as needed.

[104] Mr. Amsler reviewed all of Mr. Hamilton’s reports that he filled in at the end of his shift, which was after the accident had occurred.

[105] Mr. Amsler testified that the sand:salt ratio that Mr. Hamilton used on his shift was appropriate; he was putting down a mixture that had sand to help with traction and salt to prevent the sand from freezing. The salt would also be effective in assisting the ploughing to get to the asphalt even though he agreed the brine created might freeze. Mr. Hamilton was “spot-sanding” which involves sanding where required, that is where there was an accumulation of snow and ice on the road. The materials are put down after ploughing to be more effective. He testified that a sand and salt mixture is used when the temperature is -5° and below; if the temperature is well above -10° the operator would use salt only and if -10° and lower, the operator should use sand only.

[106] Mr. Amsler testified that the two parts sand to one part salt recipe that Mr. Hamilton used did not have a long-lasting effect; whatever melt this amount of salt caused would have re-frozen, and the sand would have stayed on the road. A “sand-salt” combination is a “do no harm” strategy. The only effective way to treat ice is to use excessive amounts of salt and this approach has both economic and environmental concerns.

[107] Mr. Amsler testified that he could not fault Mr. Hamilton; it was a difficult situation and he did his best in the circumstances.

[108] In cross-examination, Mr. Amsler testified that he considered the MMS in assessing the road maintenance work carried out by Wellington prior to the accident, not any Guelph or Wellington Maintenance Standards. He agreed there is no provision for winter weather patrolling in the MMS.

[109] He agreed that the form completed by Mr. Hamilton did not help him know the road conditions precisely on Gordon Street between Clair Road and Maltby.

[110] Mr. Amsler agreed that he believed Mr. Hamilton could operate “unsupervised” on the night shift; he was not aware that Mr. Hamilton on his discovery said that he thought he might be better off if he had help from a supervisor when he was on the roads.

[111] Mr. Amsler also agreed that because he does not know the calibration rate, that is the application rate of the mixture Mr. Hamilton was using, he cannot say whether a re-freeze likely occurred following Mr. Hamilton’s work on Gordon Street after 12:30 a.m.

[112] He also agreed that it is reasonable to expect the operator to re-attend the road within a reasonable time to decide if the mixture on the road needed to be “sweetened” with more sand/salt, or needed to be ploughed and a new salt mixture applied because of the re-freeze phenomenon.

[113] When challenged on his assertion that Mr. Hamilton fundamentally “did the best he could”, he agreed he does not know that because he does not know the application rate of the mixture Mr. Hamilton applied, nor does he know the salt concentration in that mixture.

[114] Mr. Amsler agreed with plaintiff’s counsel that six hours was too long to wait to come back to Gordon Street in the weather conditions on the road that night and morning. The temperature was -8°, it was windy with blowing/drifting snow. There was a good possibility of re-freeze in these conditions and the salt brine that may have formed needed to be checked.

[115] Mr. Amsler agreed that it is a good idea for a municipality to develop a local plan for snow and ice removal which takes into account weather conditions. He did not see any evidence of Guelph or Wellington having a local plan dealing with snow and ice removal in inclement weather where they prioritized the roads for example.

[116] Mr. Amsler did not review any “level of service” document which set out the type of treatment to put on a road; the timing and conditions for the different treatment of roads, or the locations to be serviced first. Such a document he agreed would inform the operators of what is the priority of service in the area.

[117] Mr. Amsler agreed that a municipality has to keep the roads safe for all drivers, and that the municipality has to take into account where there is more traffic and therefore more risk to the public in deciding where to use its resources. The municipality should also consider whether there is a rush hour on certain roads.

[118] In re-examination, Mr. Amsler testified that whatever treatment was put on at 12:30 a.m. would have lost much of its effectiveness by 3:00 a.m.

[119] The defendant called all of the men involved in winter maintenance in the 48 hours prior to the accident. I will summarize what I find is the relevant evidence from these numerous witnesses:

• Scott Patterson

  • He was involved in winter maintenance on the roads as a snow plough operator out of the Aberfoyle garage;
  • On February 4, 2003, he was working days, from 7:30 a.m. to 4:30 p.m.; he also worked overtime from 6:00 p.m. to 9:00 p.m.;
  • He worked on Gordon Street as part of his route;
  • He testified as to the training he received from the County regarding road maintenance including the application of certain materials on the road;
  • He went through his understanding of the conditions under which certain materials were to be used;
  • He testified as to the supervision of the operators during the day, which was by the foreman and the sub-foreman in the different garages; on the night shift they supervise themselves. The operators can phone a supervisor if they need advice;
  • He testified that there was “no need to be supervised on that shift; he has as much experience as the foreman and sub-foreman”;
  • There is usually a ready mix of material for him to use or the foreman may leave a note as to what he wants them to use. Otherwise he uses his best discretion based on his experience; it is his decision what mix of material to put on the road;
  • In cross-examination, he testified that his log book is kept in the truck with him and he is expected to fill it in and keep it accurate;
  • He testified that on his shift he did two to three passes on Gordon Street including between Maltby and Clair Roads because it is an important road. He did these passes before he went elsewhere on his route;
  • He testified that two hours is about the right amount of time for him to go back after an application of salt and re-check to see if there has been a re-freeze;
  • Between 6 and 9:00 p.m. on Gordon Street he did not note any icy sections nor wet conditions. He noted the road was snow-covered;
  • He agreed Mr. Hamilton’s mixture had a lot more salt in it than his did, his had very little salt in it. He would not have used that much salt; he did not think the storm was coming to an end.

• Danny McDougall

  • He is the radio dispatcher and has been so with Wellington since 1989 and works about five months a year; November until Easter;
  • He went through what the radio dispatcher does from 11:00 p.m. to 7:00 a.m.;
  • He said he is there generally to “help the guys” out on the roads;
  • The radio dispatchers work 24/7 and cover all of Wellington. Accidents and weather are all recorded through the dispatcher;
  • The snow plough operators phone in the weather and road conditions by 5:00 a.m.; all the operators can hear these reports. They also tell the dispatcher if they need help on the roads and he will organize the help needed;
  • In cross-examination he confirmed the dispatcher receives the weather forecast from the World Weather Watch Forecast, as well as Weather Alerts. These are faxed to the other garages such as Aberfoyle from the Central Garage. The weather forecasts are not radioed to the operators.
  • At 4:50 a.m. on February 5, 2003, when the operators called, in no one said there were icy conditions or spot ice. None of the forms at Tab 38 of the Accident and Liability Book were noted as “icy”.

• Robert Moore

  • He has been the Superintendent of County roads since the Spring of 2004; before that he was the Roads’ Foreman for Area 1 since 1986;
  • He went through how the County is divided up and which garages are responsible for what areas; and the employees in the various areas as well as the routes for the areas. He went through the shifts and the record sheets showing who was working when;
  • He testified that the operators at night work fairly independently but they can call him for help. The radio dispatcher is also available 24/7;
  • He testified as to the training the operators received. He said that there was not a large turn-over of staff and that many returned each winter. The training was more on an individual basis. The training took place at the start of each season, usually in each garage. At that time they would go over the different mixes for the treatment of roads, and when to use different “recipes”. Most of the information about the “recipe” of sand and salt was verbal among the operators;
  • The patrolling of the roads was done by the foreman and sub-foreman in trucks during the day; at night the operators did the patrolling;
  • He noted that from his records, the roads in Wellington were closed the day before the accident, February 4th, from approximately 3:30 p.m. to 6:00 p.m.;
  • He testified that Mr. Hamilton’s mixture of two parts sand to one part salt was appropriate. Based on what he saw of Mr. Hamilton’s records the road should not have been iced over unless there were squalls. He testified the capability of the salt would diminish if there were squalls;
  • He testified that Gordon Street is a higher priority road and that the traffic on that section of the road is commuter traffic;
  • In cross-examination he agreed that according to the records, there was no ice on Gordon Street before Mr. Hamilton started working that night. Mr. Patterson, who worked on Gordon Street before Mr. Hamilton noted snow on the road. He agreed that for snow to turn into ice it has to melt and that salt melts snow. He also agreed that as snow melts, it attracts drifting snow which dilutes the potency of salt, and this can cause the melted snow to re-freeze. The sand is in the mix to help with traction on the road;
  • Gordon Street was noted as having drifted snow sections; snow is blowing onto the road. The blowing snow is attracted to salt on the road;
  • He testified that in his experience 7 a.m. is the time the traffic picks up going south to the 401;
  • The only policies and procedures he is aware of are the MMS and those standards were adopted by Council for Wellington. There was an old 1972 Manual for the County;
  • There were no written instructions in a chart distributed to the operators setting out a recipe for the materials to be used on the roads and under what conditions. There was an old sanding guide (Tab 1(f) Accident and Liability Book);
  • He agreed that in the job description for an operator, it does not say that the operator is to decide the material recipe and when to apply it;
  • He agreed that Mr. Hamilton’s log indicated icy sections but the log does not say what time he saw these. He also agreed Mr. Patterson’s log did not indicate icy sections;
  • He agreed that Gordon Street was a priority road; a higher volume road with more traffic and therefore more risk to the public;
  • He cannot tell from Mr. Hamilton’s records if between 11 p.m. and 7:00 a.m. there was adequate salt application for the ice on Gordon Street at this point;
  • He testified that no two operators use the exact same recipe of sand and salt; they are “close” but put it in their plough by buckets;
  • He testified there could have been ice at this section of Gordon Street because of blowing and drifting snow; chloride (salt) residue from the day before would attract snow;
  • It is not possible that Mr. Hamilton went northbound on Gordon Street at 6:15 a.m. and applied a mixture that 11 minutes later turned the road into a sheet of ice;
  • One application of sand and salt would not solve the problem with ice. If the operator expects the possibility of re-freeze, he has to come back in a reasonable time to re-treat the road. He estimated that depending on the weather conditions, it would be reasonable to get back within 3 hours.

• Lyle Hamilton

  • He was the snow plough operator on Gordon Street where the accident occurred;
  • He testified he started with Wellington in 1968, but was with Puslinch Township before that in 1962. He retired in 2000, but did winter snow ploughing after that for three winters;
  • He testified he did not receive much training each year; he just carried on what he had been doing the year before;
  • His understanding was that he used sand when weather colder, salt when it was milder, and a mixture of sand and salt he could “use that anytime really”;
  • He went through his logs for the night shift he worked before the accident. He confirmed he worked from 11:00 p.m. on February 4 to 7:30 a.m. on February 5; that Gordon Street is a Class 1 road. He confirmed he marked on his log that on Gordon Street there were “bare and wet” sections, “bare and dry sections”, and “icy sections”;
  • He ploughed and sanded Gordon Street both ways at 12:30 a.m. He started at 12:30 and finished an hour later. At 6:15 a.m. he ploughed and sanded Gordon Street going northbound. He was returning to do the southbound lane at 7:30 a.m. but the road was closed because of the accident;
  • On the shift ending the morning of February 4th he was using a mixture of half potash salt and half sand. He uses this mixture when its colder;
  • On February 5th, his records show he switched to two parts sand and one part salt. He testified he did that because it works better when it’s colder. He used the sand for traction and the salt to melt the snow;
  • With this mixture the road can get wet and re-freeze. To prevent re-freezing, he has to go back over the road;
  • He waited until 6:15 a.m.to go back over the road so he would get to it before the traffic starts. If he went back too early, say 4:00 a.m., the road would be “messed up again” by 6:00 a.m.;
  • He went northbound on Gordon to spot sand and plough to get rid of drifting snow; he was spreading sand and salt;
  • On cross-examination, Mr. Hamilton testified that the peak traffic on Gordon Street starts around 5:00 a.m.;
  • When he went through Gordon Street at 6:15 a.m., he only did the northbound lane;
  • Gordon Street is the highest priority road on his route. Compared to other roads on his route, Gordon Street would have the most traffic;
  • After doing Gordon Street northbound, he finished the other parts of his route, which were lower priority roads, before doing Gordon Street southbound;
  • When he went through Gordon Street at 6:15 a.m., it was icy. He applied the sand and salt mixture in the northbound lane at the accident site; it was icy there;
  • He did not plough it earlier than 6:15 a.m. because it would be “messed up” by 6:00 a.m. There would be a 50% chance the road would re-freeze in a couple of hours. After the first application of his mixture, and his return in six hours, it was more than 50% likely the road would have “re-froze”; it would likely re-freeze before six hours;
  • He recalls one training session about 5 years before his retirement; he does not recall seeing a manual on mixtures of sand and salt. He recalls he was given something on instructions on what to apply but cannot recall if he followed those instructions;
  • There was no one supervising the operators at night. On the day shift they were told what to apply and when based on weather conditions, and that was helpful. He testified that he “knew more than the supervisor” with respect to the mixtures and when to apply;
  • Gordon Street is the busiest road on his route;
  • When he showed up for work on February 4th, he was not told about the weather forecast; he did not look at the forecast that was faxed to the Aberfoyle garage;
  • He agreed that if there was blowing snow he should apply sand in cold temperatures; salt would attract the snow, which would be diluted and allow re-freeze to occur. When he drove into work, there was blowing snow. He applied salt in his mixture, and agreed there was a 50% chance of re-freeze;
  • He testified that at 6:15 a.m. he did not turn around and go southbound on Gordon Street. He was aware there was ice on both the northbound and southbound lanes of Gordon Street at that time. He knew it was the rush hour;
  • He agrees it would have taken him about 10 minutes to turn around and prepare to do the southbound lane. He got back to the accident scene at 7:30 a.m. It took him an hour to get back to the southbound lane because he went elsewhere in his area first, after he had done the northbound lane;
  • On re-examination, Mr. Hamilton testified that although there was a 50% chance of re-freeze, he put salt with the sand because the road was icy, and he had to do something;

• Bradley Hutchinson

  • He was a snow plough operator for Wellington since March, 2002;
  • He went through the training he received with respect to the equipment, filling out logs, material application, weather issues and other topics related to winter maintenance;
  • He was working nights on February 5, 2003 out of the Central garage;
  • Mr. Hamilton gave him lots of information about ploughing because he had been with Wellington so many years;
  • He testified about how it worked for him when he was out on the roads; the radio dispatch system; calling for extra help, filling out logs and time cards;
  • He testified that at night, he used mostly sand to spread; there was not much traffic so it was a waste to salt; He might switch to 50/50 sand and salt mixture at 5:00 a.m. for the rush hour. He might use a 2:1 sand to salt mixture in the evening and night, if there was low traffic and the weather forecast was that the temperature was going to drop. If the temperature was dropping really low, he would only use sand, as salt does not work;
  • In cross-examination he testified that if salt is applied in blowing snow, the salt melts the snow, the salt attracts the snow and this dilutes the salt and the liquid will re-freeze if you do not get back to add more chemical. Traffic can help to make sure re-freezing does not happen. He should get back to the road within two to three hours to make sure re-freezing has not occurred.

• Ken Bosonworth

  • He is a snow plough operator with Wellington;
  • He gave testimony about the training he received with respect to winter road maintenance regarding the equipment and the materials;
  • He worked the night shift out of the Central garage on the night of February 4th going into February 5th;
  • He testified that if they needed help they let radio dispatch know and someone would be called. Mr. Hamilton could call Central Garage if he needed help. He and Mr. Hamilton usually worked it out if he needed help;
  • He went through the various materials he used on the roads for what conditions, and why;
  • In cross-examination he agreed that the actual class number of a road does not mean the priority that is given to the road. For example, all of the roads in the area he works in are Class 2 roads except one which is a Class 1 road.
  • He did not consult a chart or table as to what material to put on the road; they consulted among themselves, and he sometimes relied on Mr. Hamilton as to what material to apply to the road;
  • There were no charts inside of the ploughs, or the lunch rooms, as to what materials to apply under what conditions;
  • He testified that when you apply salt to the road, even mixed with sand, you have to “watch it”, that is go back and make sure there is no re-freeze happening on the road;
  • He would say a reasonable time to “sweeten” the mixture would be 3 to 5 hours. It depends on many factors as to how long it will take to re-freeze;
  • He agreed that if there is blowing and/or drifting snow, salt attracts that snow; it melts on the road; re-freeze occurs, and if the operator is not careful, the road can turn into a sheet of ice.

[120] Ms. Susan Soholai testified at the trial. She was driving northbound on Gordon Street at the time of the accident. She testified that the road conditions were pretty slippery; there was snow and ice on the road. There was not as much through Aberfoyle, but more so north of Aberfoyle. There was snow on top of the ice on the road and it was really cold.

[121] She described seeing the accident happen when Nathan’s truck came into the northbound lane where the red truck was. She testified that she was driving 50 kms per hour or less. She testified she had no problem controlling her vehicle on the road. The roads seemed fine; she drove slowly.

[122] She estimated that the truck Nathan was driving looked like it was going faster than 50 kms; faster than her and the red vehicle.

[123] She stopped behind the accident and got out of her car. It was slippery when she got out of her car.

[124] In cross-examination she agreed she did not drive her vehicle in the southbound lane of Gordon Street and she does not know if there was any difference between the northbound and southbound lanes of Gordon Street.

[125] She testified that the blue truck Nathan was driving had its headlights on. The blue truck was two to three car lengths from her and she was two to three car vehicles behind the red truck.

POSITION OF THE PLAINTIFF

[126] The thrust of the plaintiff’s argument is that Wellington did not have sufficient procedures and policies in place which if they had, would have prevented this accident.

[127] The plaintiff also submits that Gordon Street was not treated properly by Mr. Hamilton at 12:30 a.m., that he did not get back to Gordon Street to stop re-freeze on the road as a result of his application of some salt in his mixture at 12:30 a.m., and he did not treat the southbound lane after he had done the northbound lane at 6:15 a.m.

[128] The plaintiff submits that with respect to s. 44 of the Act, which exempts the Municipality from liability in certain circumstances, s. 44(a) does not apply because Wellington knew about the ice; s. 44(b) the question is did the municipality take reasonable steps. And with respect to s. 44(c), which provides that if the MMS set by the province are met, the municipality is not liable, the Plaintiff argues:

(a) The situation being assessed has to be covered by the MMS; and

(b) The standard has to be met.

[129] The relevant section of the MMS is s. 5 “Icy Roadway”. The Plaintiff submits that the court must consider if “treat” an icy roadway means “treat competently” and what does “as soon as practicable” mean. Does it mean that if the operator is treating the icy roadway with salt that the operator has to get back to the road within two to three hours so re-freezing does not occur?

[130] The plaintiff submits that on the facts before me, this situation is not covered by the MMS because the ice on Gordon Street was created by the municipality through the actions of the operator, Mr. Hamilton.

[131] The plaintiff’s position is that the MMS is not an all-inclusive document; if the situation being examined is not in the standards then the court must decide if the municipality took reasonable steps to prevent the default from arising. Here where Wellington through its own snow plough operator, Mr. Hamilton, failed to take reasonable steps to avoid ice forming on Gordon Street, and/or, Wellington actually caused the ice to form, the plaintiff submits:

(1) Wellington did not meet the MMS; or

(2) The situation is not covered by the MMS; and the actions of Wellington do not meet the common law standards of reasonableness.

[132] The plaintiff’s submission is that the MMS do not cover many of the winter road maintenance topics that the plaintiff alleges the municipality was deficient in, such as, weather monitoring; what recipe/materials to use on the roads and under what conditions, record-keeping, training, supervision and others. Further, the reference to “routine patrolling” in the MMS does not apply to “winter patrolling”. There is no standard set out for patrolling in inclement weather.

[133] The plaintiff made numerous submissions based on the comments of the Court in the decisions of Gialiani v. Halton (Regional Municipality), 2010 ONSC 4630, [2010] O.J. No. 3674 (S.C.J.) upheld at [2011] O.J. No. 5845 (C.A.) and Thornhill (Litigation Guardian of) v. Shadid, [O.J. No. 372 (S.C.J.) I will set out some of those principles in the Analysis section below.

[134] The plaintiff reviewed the evidence at trial to support the submission that the thick ice on Gordon Street at the time of the accident was because of the treatment of the road at 12:30 a.m. by Mr. Hamilton, that this treatment created the ice on Gordon Street, and that Mr. Hamilton failed to properly treat that ice on the southbound lane of Gordon Street at 6:15 a.m. on February 5, 2005.

[135] The plaintiff also reviewed the evidence, or lack of evidence, with respect to the issue of Nathan’s car, his driving, and whether there was any contributory negligence. Based on the evidence at trial, the plaintiff’s submission is that the accident happened that morning through no fault of Nathan’s.

[136] The plaintiff also spent considerable time in its submissions setting out the shortcomings of Wellington with respect to its winter road maintenance practices and procedures. Given my decision, I do not need to set out all of those submissions here. I will make some reference to this issue in the Analysis section.

POSITION OF THE DEFENDANT

[137] The position of the defendants is that, as set out in the jurisprudence, “ice is a natural hazard” that cannot be completely eliminated. The municipality has a duty to keep drivers reasonably safe. The courts should not impose overly onerous maintenance obligations on the municipalities.

[138] The defendants’ position is that the caselaw supports the submission that Wellington responded reasonably when measured against the nature of the risk it was facing on February 4th and 5th, 2003.

[139] The defendants submit that the plaintiff is asking the court to impose on the municipality a standard of perfection, not reasonableness, which is the standard Wellington must meet in order to reduce the risk to the public of harm.

[140] The defendants emphasized the standard of reasonableness set out in s. 44 of the Act. In particular the defendants submitted that pursuant to s. 44(3) the municipality can establish that it is shielded from liability by s. 44(3) because it met the MMS in what the operators did on February 4th and 5th, 2003. The defendants submit that pursuant to s. 5 of the MMS, “Icy Roads”, the Municipality was treating Gordon Street as soon as practicable and within four hours of becoming aware of the ice. The evidence of Mr. Patterson and Mr. Hamilton supports that submission.

[141] The defendants relied on the expert evidence, the evidence of the operators, and the written records of the County to support its submission that Wellington treated Gordon Street properly and therefore is not liable to pay Nathan’s damages. The defendants submitted that the operator cannot ignore the other Class 2 roads on his route; he cannot be everywhere at once. Specifically if Mr. Hamilton had turned around right away and gone southbound on Gordon Street, then it would mean other roads were not going to be treated. The plan was to hit the 7:00 a.m. rush hour. Mr. Hamilton started Gordon Street at 6:15 a.m. and got back to Gordon Street at 7:30 a.m. The plan they submitted, was a good one but unfortunately the accident intervened.

[142] The basic submission of the defendants on this issue is that the MMS apply, and that those standards were met by Wellington.

[143] The defendants stress the work of the operators throughout the 48 hours before the accident to support the submission that Wellington did all that could be reasonably expected in the circumstances it faced to meet the MMS and that it took all reasonable steps to make the roads safe for reasonable drivers.

[144] The defendants reject the suggestion that Mr. Hamilton’s treatment of Gordon Street at 12:30 a.m. caused or contributed to the formation of ice on that road at 6:15 a.m.

[145] The defendants agree that Wellington cannot wait for ice to form on the road before treating the road. Here, Wellington employees were working around the clock, 24/7, to deal with the ice and snow on the roads.

[146] The defendants submit that although Mr. Hamilton said there was a 50% chance of a re-freeze given his treatment of Gordon Street and the weather conditions, he had to do something; the ice would not go away unless some chemical, for example, salt was put down on the road. The formula of two parts sand to one part salt was reasonable and a “do no harm” strategy. The plan was the salt would help to melt the snow, and the sun and traffic would speed up that process. In the meantime, the sand would provide some traction for vehicles on the ice.

[147] The defendants submit that it would have been unreasonable for Mr. Hamilton to just use sand as he would have been accused of not treating the ice. There was a 50% chance of re-freeze, but there was also a 50% chance of removing the ice.

[148] The defendants submit that what mixture the snow plough operators are to put down is not an exact science; the experts at trial could not agree on this issue. The defendants submit that the plaintiff is holding Mr. Hamilton to a standard of perfection regarding the recipe he used on the roads that night.

[149] With respect to liability, if the court finds Wellington liable for the accident, then the court should find Nathan contributed to the accident and to his damages. The defendants went through the evidence with respect to Nathan’s driving that morning and the condition of his car and the case law in this area, to submit that Nathan should be held 50% liable for the accident, particularly if I cannot determine the degree of fault between Wellington and Nathan.

[150] The defendants’ submission is that Wellington was treating the ice as soon as practicable and within four hours of being aware of the ice on Gordon Street. Wellington therefore met the MMS and this is a complete defence to the plaintiff’s action. Further the defendants met the common law standard of care and is not negligent on that basis.

ANALYSIS AND DECISION

Relevant Statutory Regime

[151] The relevant section of the Act applicable to my analysis is s. 44 which reads as follows:

44. (1) 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. 2001, c. 25, s. 44 (1).

Liability

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default. 2001, c. 25, s. 44 (2).

Defence

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c. 25, s. 44 (3).

[152] The relevant section of the MMS [the 239/02 regulations apply to this case] is s. 5 Icy roadways which reads as follows:

5. (1) The minimum standard for treating icy roadways is,

(a) To deploy resources to treat an icy roadway as soon as practicable after becoming aware that the roadway is icy; and

(b) To treat the icy roadway within the time set out in the Table to this section after becoming aware that the roadway is icy. O. Reg. 239/02, s. 5(2).

[153] Gordon Street is a Class 2 Highway and the time set out in the Table to treat a Class 2 Highway is four hours.

[154] There has been significant jurisprudence, some of it very recent from our Court of Appeal, which has dealt with this standard of care issue and the application of MMS as a defence for municipalities pursuant to s. 44(3)(c) of the Act.

[155] In Thornhill (Litigation Guardian of) v. Shadid, 2008 3404 (ON SC), [2008] O.J. No. 372 (S.C.J.) Howden, J. provided an excellent summary of the duty of care principles arising out of the jurisprudence. At para. 18 and para. 26, [referring to s. 284 of the Act which is now s. 44 and slightly altered] he wrote:

18 In Ontario, the proposition that municipalities have a duty to keep their public streets and highways in a reasonable state of repair and to pay compensation in cases of default causing damage is codified in the Municipal Act, section 284, as of December, 2002. Those provisions now appear in slightly altered form in the Municipal Act 2001 as section 44. The appellate courts of Canada and Ontario have arrived at certain principles governing the application of this duty to winter conditions of cases, such this one. I have summarized these principles in the following statements:

The duty of care resting on a province or municipality towards its road system consists of protecting users of the highway from unreasonable risks of harm to them. The highway authority is not an insurer.

The duty does not arise in relation to policy decisions made in the exercise of statutory discretions. The duty of care applies to operational decisions of the highway authority, its officials, employees, and contracted operational forces. Liability will result where the highway authority has failed to take reasonable steps to eliminate or effectively reduce a condition of risk (a state of non-repair) within a reasonable time after it became aware, or ought to have become aware, of its existence.

There is no general duty on that authority to sand or salt highways; in other words, the failure to sand or salt will not in itself be a sufficient ground for imposing liability.

It is a question of fact in each case whether a condition of non-repair exists and if so, whether the highway authorities response is reasonable, timely, and reasonably executed.

Whether the alleged condition of non-repair is described as a special highly dangerous situation or an unreasonable risk of harm to the public using the road, the duty of care is triggered on notice or constructive notice of a condition of non-repair; this includes a situation of non-repair at a specific place or one that extends across a wide area, such as conditions during an ice or snow storm having wide effect.

See The Queen v. Cote; Millette et al v. Kalogeropoulos et al, 1974 31 (SCC), [1976] 1 S.C.R. 595; MacMillan v. Ontario (Minister of Transportation and Communications), [2001] O.J. No. 1891 (Ont.C.A.); Montani v. Matthews, 1996 1387 (ON CA), [1996] O.J. No. 1974 (Ont. C.A.); Gould v. County of Perth, (1983), 1983 1754 (ON SC), 42 O.R. (2d) 548 (H.C.), aff'd in 1984 2060 (ON CA), 48 O.R. (2d) 120 (C.A.); Roberts v. Morana et al. (1997), 1997 12257 (ON SC), 34 O.R. (3d) 647 (H.C.), aff'd 2000 2950 (ON CA), [2000] O.J. No. 2688 (C.A.); Bisoukis v. Brampton (City), 1999 3825 (ON CA), [1999] O.J. No. 4598 (Ont.C.A.); The Law of Municipal Liability in Canada by D.G. Boghosian and J.M. Davison, LexisNexis Butterworths, 1999, at s. 3.147

26 In my view, section 284 of the Municipal Act provides a code on the subject of the duty of care in relation to highways under municipal jurisdiction and the consequences of default where damage or loss results. The case law that has emanated from the Municipal Act has subsumed within that code, or co-extends with it to include, the common law tort principles of duty of care, standard of care, and causation where a claim emanates from the condition of a highway or street in municipal jurisdiction and control.

[156] With respect to the issue of the MMS, these standards were discussed in the recent decision of our Court of Appeal, Giuliani v. Halton (Regional Municipality), [2011] O.J. No. 5845 (C.A.), the Court wrote at para. 23:

The MMS do not purport to cover all circumstances that may arise in the course of maintaining roadways. In this regard, I agree with Justice Howden of the Superior Court who in the case of Thornhill v. Shadid (2008), 2008 3404 (ON SC), 289 D.L.R. (4th) 396 (Ont. S.C.), at para. 95 said, "It has been recognized that the MMS are not, and do not purport to be, an all inclusive document."

[157] Further, as to whether, on the facts of that case the MMS even applied, the Court wrote:

30 The trial judge also concluded that the minimum standard established by s. 5 did not apply. I agree with his conclusion. While I agree with the thrust of the trial judge's reasons, I would express those reasons in a somewhat different way. Section 5 was intended to create a minimum standard for treating a highway "after becoming aware that the roadway is icy". I do not think that it matters how the roadway became icy. It could be from natural causes such as freezing rain or ice pellets. It could have been, as in this case, from snow falling and covering the road and then being compacted by vehicles into hard packed snow and ice.

31 Section 5 of the MMS was directed at the situation when the roadway had become icy, not before. The standard's requirement to deploy resources and treat was triggered by knowledge that the roadway is icy - present tense - not by knowledge that it may or will become icy. The standard did not address a municipality's response to conditions that had not yet become icy. The standard provided for a timeline for treatment of the icy condition depending on the class of highway.

32 In the present case, the allegations of fault directed at the appellants do not include a failure to treat the icy roadway within four hours of becoming aware of the icy conditions, as required by s. 5. The trial judge's findings of default on the part of the municipality are directed at failures to take reasonable steps to avoid ice forming on Derry Road. The failures, as I mention above, included failures to monitor the weather and to have deployed resources much earlier than was done so as to avoid the formation of ice.

35 The interpretation I reach is also consistent with the language of s. 44(3)(c). I repeat that language for convenience:

Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if

at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. [Emphasis added.]

36 The key words for present purposes are "to the alleged default". The defaults here, as found by the trial judge, were the failure to monitor the weather and the failure to deploy resources so as to prevent Derry Road from becoming icy. The trial judge did not find the appellants liable for failure to treat a roadway after becoming aware that it was icy.

37 It is important to note that the conclusion that a minimum standard did not apply to the circumstances of this case does not leave those circumstances unregulated. A municipality must take steps to keep the highway in a reasonable state of repair having regard to all the circumstances pursuant to s. 44(1). While assessing compliance with that standard will be a fact-specific exercise, the standard is grounded in reasonableness. A municipality is required to take reasonable steps and will only be found liable if its conduct is found to fall below the reasonableness standard.

39 In summary, I am of the view that the MMS did not establish a minimum standard to address the accumulation of less than five centimeters of snow on a class 2 highway, nor did it establish a minimum standard for the treatment of a highway before ice is formed and becomes an icy roadway.

[158] I will comment on s. 5 of the MMS and the facts in the case before me below.

[159] The practices and procedures of a municipality could come under review and criticism by the court if they resulted in the municipality failing to meet the MMS or if they cause a municipality to fall below the common law standard of care in maintaining a road.

[160] It is fair to say that in hindsight it appears there were certain practices of Wellington that could be improved to assist the snow plough operators on the roads. For example, the fact that there was no written list of the priority of roads in Wellington and which should be dealt with first in inclement weather seems like an obvious shortcoming. The fact that there is little to no supervision of the night shift; that there is little to no direction to the night shift as to what formula of material the operators should put on the roads are, in my view, shortcomings that leave Wellington vulnerable. There were others raised by the Plaintiff throughout the trial.

[161] Further, Wellington can maintain that all of their snow plough operators are on “patrol”, but then they are stuck with how well each operator does that patrol with little to no oversight of that patrolling on the night shift. Further, Wellington is stuck with all of the decisions the individual operators make on the roads with respect to the materials they lay down, and how they perform the duties of Wellington to maintain the roads in good repair, because there are no supervisors on duty at night. Overall, I cannot say the practices and procedures amounted to negligence on the part of Wellington. I cannot compare the procedures in place in Wellington to the “best practices” of a municipality that were fulsomely described by Mr. Alkoha for example.

[162] Having said that, the fact that there could be better training, supervision of the operators at night, more direction with written materials for the operators with respect to the practice and procedures regarding winter road maintenance, including information on the use of different materials at different times, might be something the municipality decides to re-assess given that the weakness in any of these areas affects how their employees carry out their job functions.

[163] If their employees do not carry out their job functions to the appropriate standard, Wellington is liable for damages arising from that default. On all of the evidence, and for the reasons set out below, I am satisfied on a balance of probabilities that the treatment of Gordon Street on February 4th and February 5th by the operator Lyle Hamilton was the cause of Gordon Street being icy at the time of the motor vehicle accident, particularly in the southbound lane. Further, I am satisfied that the icy road was the sole cause of the motor vehicle accident and there is no contributory negligence on the part of Nathan.

[164] I am satisfied that the MMS for Municipal Highways, Ontario, passed as a regulation to the Act either do not apply on the facts of this case or were not met. Therefore Wellington is not protected by s. 44(3) of the Act.

[165] I have set out section 5 of the MMS above. I find the facts of this case are similar to those in Giuliani. The MMS do not deal with a situation where the municipality has caused a non-icy road to become icy by its own actions and then not treated that road properly.

[166] On his shift, based on Mr. Hamilton’s Patrol log for February 5, 2003, he checked off that Gordon Street had “icy sections”. The log does not specify the time or precise locations on Gordon Street that had “icy sections”. Mr. Patterson, the snow-plough operator on Gordon Street before Mr. Hamilton did not check off “icy section” on Gordon Street and he finished his shift at 9:00 p.m. 3 ½ hours before Mr. Hamilton started. He noted that Gordon Street was “snow covered”.

[167] Mr. Hamilton testified that the mixture he laid down on Gordon Street at 12:30 a.m. had salt in it. He said that given the temperature, around -8°, and the blowing snow, there was a 50% chance of re-freeze of the melted snow on Gordon Street if he did not get back to the road and top it up with more salt in a reasonable time.

[168] Mr. Hamilton did not get back to Gordon Street for approximately six hours. Every witness at this trial, except Mr. Johnson whose evidence on this point I reject given the evidence of the experts and the other operators, testified that six hours was too long to wait to get back to a road to check for re-freeze. Most of the witnesses testified the operator should get back within two to three, maximum five hours.

[169] Mr. Leggett’s conclusions are set out in a summary of the evidence above. I accept his scientific conclusions that Mr. Hamilton’s treatment of the road at 12:30 a.m., in all of the circumstances, caused the re-freeze found on Gordon Street at 6:15 a.m. I accept his evidence, over the defendants’ evidence of this issue, because Mr. Leggett’s conclusions accord with the testimony of the snow plough operators on this point. His opinion also accords with what Gordon Street looked like at 6:15 a.m. with no other reliable explanation for that condition. All of the operators, including Mr. Hamilton, thought a re-freeze was possible, and that the operator had to get back to the road within a reasonable time; six hours was not reasonable.

[170] I find that Gordon Street was not “treated” in a reasonable manner, or in a manner which protected the public from harm. The operator created the icy road and then failed to treat that ice within a reasonable time. The MMS cannot be used to shield the municipality in such circumstances.

[171] Contrast the treatment of Gordon Street on the morning of February 5, 2003 with that described in the decision of Frank v. Central Elgin (Municipality), 2010 ONCA 574, [2010] O.J. No. 3736 (C.A.) at paras. 42 and 43:

42 I begin with the steps Central Elgin did take the morning the accident occurred. The critical steps that justify deference to the trial judge's finding are the following:

• Central Elgin's operations superintendent patrolled and inspected the roads very early in the morning on December 21, 2001;

*He recognized the potential for icy conditions and called out the salt trucks promptly;

*He ordered that Highbury Avenue be salted first because it was a high priority road;

*Mr. Carrothers, the operator assigned to salt Highbury Avenue, salted it first before salting any other roads on his route;

*By 7:00 a.m. he had salted both the northbound and southbound lanes of Highbury Avenue;

*He applied the salt at a rate used by every municipality in Ontario and mandated by the Ontario Good Roads Association;

*He planned to come back to Highbury Avenue to check on its condition after he had salted the other roads on his route.

43 Unfortunately, the accident intervened because the light blowing snow delayed the salt's effectiveness. A municipality, however, cannot be expected to deal with every contingency. The steps that I have outlined support the trial's judge's finding that Central Elgin met the reasonableness standard of care. Moreover, the contrast between what it did and what was not done in the four cases where the provincial or municipal authority was found liable further support the trial judge's finding.

[172] Central Elgin was found to have done everything that could be reasonably expected of a municipality in the circumstances. The same cannot be said of Wellington.

[173] Mr. Hamilton applied a treatment to Gordon Street at 12:30 a.m. that had to be attended to long before he did to prevent Gordon Street from becoming a skating rink.

[174] The defendants presented no evidence at this trial to explain how else Gordon Street could have been in the condition it was as described by the first responders and by the photos of the road. The ice was thick, as described by several witnesses. There was no evidence of freezing rain or any other reliable explanation as to how Gordon Street got in the treacherous and dangerous state it was other than the phenomena of re-freeze caused by Mr. Hamilton’s treatment of the road at 12:30 a.m. Although Gordon Street south of Clair is in a more rural area and subject to more blowing snow, that fact cannot explain the stark contrast in the condition of Gordon Street, north of Clair Road compared to south of Clair Road. North of Clair Road you could see the asphalt; south of Clair Road was a thick sheet of essentially untreated ice.

[175] Further, Wellington is unable to say exactly what Mr. Hamilton laid down and where and at what rate because of the poor record keeping of Mr. Hamilton. The facts, that is the condition of Gordon Street and what we know Mr. Hamilton did do, speak for themselves to a great extent and the records of the operator offer Wellington little to no defence.

[176] The evidence of Mr. Leggett and the snow plough operators satisfies me on a balance of probabilities that Mr. Hamilton did not treat Gordon Street in a reasonable manner and Wellington is liable for that mis-treatment of the road.

[177] Having created this dangerous situation, Mr. Hamilton compounded his failure to meet the standard of care by his actions on Gordon Street at 6:15 a.m.

[178] The decision by Mr. Hamilton not to turn around at Clair Road and go back down Gordon Street and treat the southbound lane at 6:15 a.m. is indefensible. The condition of Gordon Street at the time of the accident was described in so many ways by the people on the scene as dangerous and treacherous it is hard to imagine how anyone stayed on the road. The evidence of the first responders set out in this Judgment is overwhelming that Gordon Street was a sheet of thick ice. The first responders could not stand on the road; everyone was unanimous, the road was like a skating rink from end to end.

[179] Although it is true that Gordon Street was a Class 2 road, and there were other Class 2 roads in his area that Mr. Hamilton went to treat after he came north on Gordon Street, this was no ordinary Class 2 road. Gordon Street was, according to Mr. Hamilton, his top priority road; the busiest road on his route. Mr. Patterson testified that he worked on Gordon Street before anywhere else in his area. He said it was an important road. There was a good reason for this; the road is one of the main arteries that commuters use to get to the 401 to go to work. Most importantly, those commuters use the southbound lane of Gordon Street. Mr. Hamilton knew it was important to treat Gordon Street so the road would be safe for commuters by the time of the rush hour. There was various evidence of when rush hour started but Mr. Hamilton himself thought it started by 5:00 a.m.

[180] The photos of the accident scene confirm the evidence of the first responders that Gordon Street was like a “skating rink”; it was certainly by all the evidence a dangerous road to drive on in that condition.

[181] The defendants’ counsel referred several witnesses to the photos of the accident scene and suggested that the northbound lane of Gordon Street showed evidence that it had been treated with sand and/or salt at some point. Defendants’ counsel invited me to “see for myself” by looking at the photos; I did; the road is completely covered in thick ice. If it was treated, and the “pink” in the ice and below the ice suggests some salt treatment, this is simply some evidence that confirms what Mr. Hamilton testified he did at 12:30 a.m. on Gordon Street. I can see little to no evidence of any significant “treatment”, even in the northbound lane, in those photos. Further, there is no dispute that Mr. Hamilton did not treat the southbound lane at 6:15 a.m. which is the lane in which Nathan lost control of his car. The southbound lane, untreated, would have been significantly more treacherous than the northbound lane.

[182] In these circumstances where I find the operator caused the re-freeze which contributed significantly, if not entirely, to the dangerous icy condition of Gordon Street, and then did not treat the ice properly or in a reasonable time, that is a circumstance not covered by the MMS that Wellington can hide behind.

[183] The fact that Mr. Hamilton’s treatment of the road initially caused a re-freeze would not standing alone likely form the basis of a finding of negligence in the performance of his duties. However, all of the operators, even Mr. Hamilton, knew that it was important to get back to the treated road, to check for a re-freeze, and to “sweeten” the road with more chemical if a re-freeze had happened or was likely to happen. Mr. Patterson for example testified he would not have used as much salt in his mixture for the road as Mr. Hamilton did. If he did, he would have checked the road for re-freeze in about two hours. All the witnesses agreed that six hours was too long to wait to go back and check the roads for re-freeze.

[184] Mr. Hamilton waited six hours to get back to Gordon Street and it was a sheet of ice. He had to treat it aggressively to make it safe. He “spot sanded” going north; he did nothing going south. Mr. Hamilton created the ice then failed to treat that ice properly or in a reasonable manner in the circumstances.

[185] Mr. Hamilton fell below the standard of care in carrying out his duties as a snow plough operator that night and Wellington is liable for that default. I am satisfied on a balance of probabilities that the actions of Mr. Hamilton were not reasonable in the circumstances he found himself on February 4 and 5th, 2003. Wellington is liable as a result of this breach of duty.

[186] There was no evidence to suggest Nathan himself or his car contributed to the accident in any way. I cannot speculate; there is no evidence. In fact, the evidence is to the contrary that Nathan contributed to the accident. Mr. Harding, the accident reconstructionist, and the other police officers who testified, said that Nathan did not contribute to the accident. Mr. Harding testified that at the time of impact, Nathan was going 23 kms. per hour. The accident happened seconds after Nathan lost control of his motor vehicle. He could not have been going faster than 50 kms. per hour to get down to 23 kms. per hour in seconds. Further Mr. Harding testified that if Nathan had been going more than 50 kms. per hour he would have spun out on impact. I do not find the evidence of Ms. Soholai reliable on this issue.

[187] On all of the evidence, the Plaintiff has rebutted the presumption of his negligence which arises because he crossed the centre line prior to impact with Mr. Sutter. I am satisfied based on the evidence that Nathan did not contribute to the cause of the accident.

[188] Accordingly, the defendants are liable to the plaintiff in the agreed upon damage amount of $1,912,176.93 inclusive of prejudgment interest calculated to and including April 2, 2012. The parties can calculate the interest to the date of payment.

[189] The parties, if unable to settle the issue of costs, shall make costs’ submissions as follows:

[190] Plaintiff’s submission as to costs by July 30, 2012. Defendants’ submissions as to costs by August 30, 2012. Plaintiff’s Reply submissions by September 15, 2012.

Mossip J.

Released: June 22, 2012