ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-08-091811-00
DATE: 20121019 CORRIGENDA: 20121120

BETWEEN:

Hope Warga, by her Litigation Guardian, Deborah Warga, Deborah Warga personally, Brent Warga, Grant Warga and Jeffrey Warga
Plaintiffs

– and –

Estate of Vanessa Rivard, Deceased, Janine Rivard, Marvin Stapleton, Evergreen Farm and Garden Ltd., The Regional Municipality of Durham and ING Insurance Company of Canada
Defendants

Robert Sugar, for the Plaintiffs

Christopher Valente, for the Defendants Marvin Stapleton and Evergreen Farm and Garden Ltd.
C. Kirk Boggs, for the Defendant Regional Municipality of Durham
Patrick J. Monaghan, for the Defendants Estate of Vanessa Rivard, deceased and Janine Rivard

– and –

John Semplonius and Elizabeth Semplonius
Third Parties

HEARD: May 4, 2012

REVISED REASONS FOR DECISION

The text of the original ruling has been corrected with the text of corrigendum (released today’s date)

Edwards j.

Background

[ 1 ] On January 24, 2007, Hope Warga (“Warga”) was a passenger in a vehicle operated by the defendant, Vanessa Rivard (“Rivard”), which entered an intersection (“the intersection”) at Regional Road 42 and Clark Concession Road 3, in the Town of Clarington, Region of Durham. A vehicle driven by Marvin Stapleton then struck the Rivard vehicle resulting in catastrophic injuries to Warga. While I have no evidence before me as to the extent of the plaintiffs injuries (nor for that matter is it overly relevant to the factual issues before this court), it does appear that given the description of the catastrophic nature of Warga’s injuries it is likely there will be insufficient insurance policy limits available to respond to Warga’s claim. I can infer this given that ING Insurance Company of Canada is named as a defendant, and that the only claim against ING, is for uninsured and inadequately insured coverage afforded through the plaintiff’s own motor vehicle policy of insurance and the family protection coverage endorsement of that policy. Undoubtedly, as this matter will ultimately unfold, the addition of the Regional Municipality of Durham (“Durham”), as a party defendant has been to some degree imposed upon the plaintiffs given the inadequate insurance policy limits of the two involved vehicles in this tragic motor vehicle accident.

[ 2 ] The motion before this court is a motion for summary judgment brought by Durham to dismiss all claims and cross claims. The plaintiffs oppose the motion as it is argued that there are genuine issues requiring a trial in order to determine Durham’s liability.

The Facts

[ 3 ] The motor vehicle accident involving the parties to this action occurred on January 24, 2007, at approximately 1:00 p.m. As previously noted Warga was a passenger in the motor vehicle driven by the defendant Rivard.

[ 4 ] Rivard’s motor vehicle was proceeding in a westerly direction on Clark Concession Road 3, where it intersected with Durham Regional Road No. 42. There is no dispute that Durham is the municipal road authority with jurisdiction over the intersection where the accident occurred.

[ 5 ] Traffic proceeding through the intersection in an east/west direction, would have been governed by a stop sign requiring all east bound and west bound traffic to yield the right of way to oncoming traffic that would be proceeding in a northerly or southerly direction on Regional Road 42.

[ 6 ] At the time of the collision Warga was 19 years of age. The force of the impact resulted in Warga suffering catastrophic injuries which are said to include the following:

(a) Severe closed head injury resulting in subarachnoid haemorrhage and punctuate intracerebral haemorrhage involving the left front lobe, mid-brain and left insular region;

(b) Atlanto-occipital space subluxation;

(c) Fracture of the C7-T1 transverse process, wedge compression fracture of T3, and facet joint fracture of L5;

(d) Open fracture of left clavicle requiring open reduction and internal fixation and wound debridement with antibiotic prophylaxis;

(e) Fracture of the sternum and right first rib;

(f) Pelvic fractures involving the left iliac crest and the public ramii requiring open reduction and internal fixation;

(g) Intra/extraperitoneal bladder rupture requiring surgical repair;

(h) Lacerations to the liver;

(i) Bilateral pneumothoraces and left pulmonary contusion;

(j) Left hemiplegia, resulting in left partial cranial nerve III paresis, aphonia due to left vocal cord paralysis, and left spastic hemi paresis;

(k) Anterograde, retrograde and reduplicative amnesia;

(l) Permanent cognitive, emotional/behavioural and personality dysfunction secondary to acquired brain injury.

[ 7 ] While this court on a motion for summary judgement is not concerned with the accuracy of such an assessment of the injuries it is quite apparent to this court as I have already indicated that the plaintiff’s injuries will likely assess out at an amount well in excess of any available insurance policy limits available to respond on behalf of the Rivard defendants, and the ING policy.

[ 8 ] In part the essence of the claim which is advanced against Durham is that it failed to maintain an appropriate southerly site line from Concession Road 3, thereby depriving west bound drivers such as Ms. Rivard of the ability to see north bound vehicles, such as Mr. Stapleton from a safe distance.

[ 9 ] All of the defendants have commenced a third party claim against John and Elizabeth Semplonius who are the owners of a home located at 3155 Concession Road 3. The Semplonius home sits on the south east quadrant of Regional Road 42 and Concession Road 3.

[ 10 ] Regional Road 42 can be best described as essentially a straight, flat, asphalt covered rural road running North and South with a speed limit of 80 kilometres per hour. It is classified as a class 3 roadway for the purposes of the Minimum Maintenance Standards. It is a roadway which primarily serves north/south traffic between Highway 2 and Taunton Road in the Region of Durham.

[ 11 ] Northbound drivers travelling from Highway 2 to Taunton Road would eventually come to an at grade railway crossing operated by CP Rail which is located approximately 160 metres south of the intersection of Concession Road 3.

[ 12 ] Just north of the railway crossing there are approximately three rows of evergreen trees located on the east side of Regional Road 42. These trees are located on private property in the southeast quadrant of the intersection. The property is owned by the Semplonius’.

[ 13 ] The trees located near the intersection were originally planted by the Semplonius’ as seedlings in 1998 at a point in time when they had recently constructed their home. When the trees were planted the Semplonius’ believed that they had been planted on the western edge of their property.

[ 14 ] By the time of the subject accident the seedlings had grown into trees ranging in height from 8 to 12 feet with a base ranging from 7 to 10 feet in diameter.

[ 15 ] Subsequent to the accident Durham conducted an investigation as to whether any of the trees planted by the Semplonius’ were within the road allowance. As a result of that investigation it was determined that a number of the trees had been planted slightly within the road allowance. Subsequent to the accident four of the offending trees were removed by Durham.

[ 16 ] Concession Road 3 is a two lane paved roadway running east/west. Both east and west bound traffic on Concession Road 3 is required to stop at a stop sign at the intersection. West bound traffic approaching the intersection would be warned of the approaching obligation to come to a complete stop as a result of a “stop ahead” warning sign placed approximately 214 metres east of Regional Road 42 As drivers would pass the aforesaid “stop ahead” warning sign westbound traffic would then travel through a curve to the left with a radius of 160 metres before the road straightens out prior to the intersection. There is approximately 150 metres of visibility of the stop sign afforded to westbound traffic prior to coming to the intersection.

[ 17 ] The stop sign located at the intersection governing westbound traffic was at the time of the accident located nine metres back of the intersection. The stop sign was an oversized stop sign measuring 90 centimetres by 90 centimetres. The stop sign was in good condition at the time of the accident.

[ 18 ] The parties are in agreement that at the time of the accident there were no painted “stop bar” lines on Concession 3 which would direct westbound drivers as to specifically where to stop prior to entering the intersection. There had been a stop bar in place up until sometime prior to October 10, 2006 which was removed during the course of a road resurfacing project.

[ 19 ] The stop bar which had been in place was essentially in line with the stop sign for westbound traffic. Subsequent to the completion of the paving and road resurfacing which was completed by November 15, 2006, the stop bar was reapplied to the roadway in August of 2007, i.e. post accident.

[ 20 ] On the day of the accident road conditions were clear and ideal for driving. The weather was overcast and cold. There was no precipitation. The surface of the roadway had nothing to do with the ability or inability of Rivard to come to a complete stop prior to entering the intersection. An analysis was done on the CDR data recorder (“the CDR”) of the Rivard vehicle which reveals that Rivard was travelling approximately 2 miles per hour five seconds prior to impact. The analysis of the CDR reveals that the brake on the Rivard vehicle was at least partially applied five seconds prior to impact. Approximately four second prior to impact the Rivard vehicle was travelling at approximately 2 miles per hour. Ms. Rivard’s foot had been transferred to the gas pedal and acceleration was at that point commencing. Approximately one second prior to impact the Rivard vehicle was moving at approximately 21 kilometres per hour and the RPM of the engine had increased from an idle of 640 to 2240 rpm.

[ 21 ] A review of one of the expert’s interpretation of the Rivard CDR may ultimately lead to the conclusion that as Rivard was approaching the intersection she came to what may be best described as a rolling stop. An analysis of the CDR does not reveal that the Rivard vehicle ever came to a complete stop prior to impact.

[ 22 ] The northbound vehicle being driven by Mr. Stapleton as it was approaching the subject intersection was slowing down as it crossed the railway tracks immediately south of the intersection. After crossing the railway tracks Mr. Stapleton accelerated and according to the CDR in his vehicle he was travelling at 57 miles per hour approximately five seconds prior to impact. He then accelerated slightly and was travelling at approximately 93 kilometres per hour at the time of the collision. The analysis that has been conducted on his CDR does not reveal that he applied his brakes at any time prior to impact.

[ 23 ] According to the evidence given by Mr. Stapleton at his examination for discovery he was approximately 100 feet prior to the intersection before he first saw the Rivard vehicle. In evidence that he gave at his discovery he estimated that at the point when he was approximately 100 feet from the intersection, the Rivard vehicle was within fifty feet of the intersection and inching forward.

[ 24 ] At the time of the accident Mr. Stapleton gave a statement to the police in which he indicated that he first saw the Rivard vehicle at a point in time when he was crossing the railway tracks i.e. approximately 500 to 600 feet from the intersection. This evidence would appear to be in conflict with the evidence that he gave at his examination for discovery.

[ 25 ] Evidence that has arisen since Mr. Stapleton’s discovery calls into question whether or not at the time of the accident Mr. Stapleton was using his cell phone. At his examination for discovery Mr. Stapleton testified that he was not using his cell phone although the cell phone records that have been produced may call that evidence into question.

[ 26 ] This court is not called upon to determine whether there is any liability on either the Rivard vehicle or on the Stapleton vehicle. Nor is this court called upon to determine what proportion of liability might ultimately be found as between the Rivard and Stapleton vehicles. This court is solely fixed with the determination of whether or not there is any genuine issue requiring a trial as it relates to the claim as against Durham.

[ 27 ] The evidence that this court had before is was found in voluminous Motion Records filed by Durham and Warga which included various expert reports as well as examination for discovery transcripts. The bulk of the submissions made by the various parties on the motion related to the expert evidence. It is noteworthy that the expert evidence before this court was in the nature of various reports appended to the affidavits of the experts, but did not consist of any cross examinations on those reports or affidavits.

Position of the Plaintiffs Experts

[ 28 ] In response to the position advanced on behalf of Durham, plaintiffs’ counsel obtained the reports of two engineers Joe Correia and Robert Gilchrist. The report of Joe Correia advances the opinion that the Stapleton vehicle would not have been visible to Rivard at the start of her acceleration into the intersection adjacent to the stop sign given the presence of the trees located on the Durham road allowance that had been planted by the Semplonius’.

[ 29 ] Mr. Gilchrist authored a report dated March 10, 2011 in which he advances the opinion that Durham may be partially at fault for the accident for not having a stop line bar for westbound traffic. A stop line bar at the intersection is a requirement as set forth in the Ontario Traffic Manual.

[ 30 ] Mr. Gilchrist also advances an opinion which may ultimately cause Durham to be found partially at fault for this accident for not having any adequate patrol system which would have alerted it to site line deficiencies at the intersection. Mr. Gilchrist advances the opinion that Durham should have been aware of the significant hazard posed by the intersection particularly for westbound drivers such as Rivard.

[ 31 ] The Ontario Traffic Manual which is referred to by Mr. Gilchrist in his report is a manual produced by the Ministry of Transportation for the Province of Ontario which is used to identify traffic control devices necessary for all intersections. It was developed by municipalities in the Province of Ontario for application to roadways of all road authorities in the Province to ensure consistency and signage as drivers move from one municipality to another.

[ 32 ] Mr. Stewart McCallister was produced on behalf of Durham for the purposes of an examination for discovery. Mr. McCallister was the capital utilities coordinator for the Region of Durham. His examination for discovery transcript was attached to his affidavit which was filed in support of the motion by Durham. In his examination for discovery, Mr. McCallister acknowledged that he would refer to the Ontario Traffic Manual when looking at the line of site issues and where to place a stop line relative to an intersection.

[ 33 ] The Ontario Traffic Manual provides that at rural intersections, stop line/bars should be used to indicate the point at which a vehicle must stop in compliance with the stop sign. Where no sidewalk is present, the stop lines are placed within a distance of 1.25 to 3 metres at the edge of the intersection roadway.

[ 34 ] In addition to the reports prepared by Messrs. Gilchrist and Correia, plaintiffs’ counsel obtained a report from Mr. B.F. Pinder who is also a professional engineer. In Mr. Pinder’s report of October 28, 2011 he states that that Ontario Traffic Manual is intended to promote uniformity of treatment in the design, application, and operation of traffic control devices for Municipal authorities consistent with the intent of the Ontario Highway Traffic Act .

[ 35 ] In his report Mr. Pinder cites the Ontario Traffic Manual Book 11 and specifically Section 3.8 thereof which deals with stop signs and stop lines. Section 3.8 is reproduced below:

At both urban and rural intersections a stop line (also called the stop bar) must be used to indicate the point in which a vehicle must stop in compliance with a stop sign…

At stop signs where visibility is restricted, the stop line should be located so the driver of a vehicle properly positioned behind the stop line has an adequate view of approaching cross traffic in both directions.

[ 36 ] As previously noted the evidence establishes that the intersection for westbound traffic did have a stop line until approximately the early part of October, 2006 when it was removed during the course of road resurfacing. The stop line was not reapplied until August of 2007. It is argued on behalf of the plaintiffs that once the road resurfacing was completed by November 15, 2006 Durham had an obligation to replace all of the pavement markings including the stop line. Noteworthy when the stop line was reinstalled in August of 2007 it was installed in the location of the stop sign i.e.: 9 metres back from the intersection. Approximately a year later in October of 2008 the stop line was replaced with a stop line set back 4.2 metres from the intersection.

[ 37 ] The Pinder report faults Durham for its failure to have a stop line in place and advances the opinion that if a stop line had been properly in place three metres from the intersection a driver like Warga stopping at the stop line would have had an unobstructed view of at least 190 metres to the south consistent with the required site distance for vehicles departing from the stop control calculated in geometric design standards for Ontario Highways.

[ 38 ] Plaintiffs’ counsel also obtained an opinion from Allison Smiley who is a certified professional ergonomist with experience and expertise in accident analysis driver behaviour signage and measurement of human performance. She has been qualified as an expert witness in human factors analysis in numerous cases that come before this court. Ms. Smiley in an affidavit that was filed with this court and sworn April 17, 2012 summarizes her various reports as follows:

…I believe that the failure of the defendant Rivard to check for traffic, her relative inexperience, Mr. Stapleton’s excessive speed and potential distraction caused by cell phone use, were causative factors contributing to the collision. The design of the intersection as traffic controlled devices, that is, the absence of the westbound stop line at the time of this accident, in combination with the reduced site line distance afforded to both the defendant Rivard proceeding westbound and the defendant Stapleton proceeding northbound to detect the presence of each other’s vehicles, may also have been contributing factors.

Position of Durham

[ 39 ] Fundamentally the position of Durham comes down to the submission that the site lines for both westbound and northbound traffic ie: the site lines for Rivard and Stapleton were more than adequate and as such Durham met its duty to keep the roadways in a reasonable state of repair such that any reasonable driver exercising ordinary care could travel through the intersection safely.

[ 40 ] Durham argues that all of the required road signs were in place at the time of the accident and had been passed by the Rivard vehicle prior to the collision. The evidence that was submitted on behalf of Durham makes clear that Rivard did not come to a complete stop at the edge of the intersection before proceeding as she was required to do under the Highway Traffic Act . As such it is argued that if in fact Rivard had stopped in accordance with her legal obligation under the Highway Traffic Act and if she had looked to her left she would have seen the Stapleton vehicle.

[ 41 ] With respect to the issue of the painted stop bar, or the absence of a painted stop bar at the intersection for the west bound traffic, it is submitted on behalf of Durham that there is no legal obligation to install such a stop bar. It is argued that a reasonable driver is expected to know and fulfil their obligation to come to a stop before a stop sign as well as the fact that a reasonable driver is required to fully stop at a point at which oncoming traffic can be observed before entering an intersection.

[ 42 ] While it is acknowledged by Durham that at the time of the accident there was no marked stop line at the intersection for westbound traffic it is submitted that Rivard had a mandatory obligation pursuant to the provisions of Section 136 of the Highway Traffic Act to stop “immediately before entering the intersection”. Having come to a complete stop, Rivard then had an obligation to yield the right of way to any traffic approaching the intersection and that any reasonable driver would have been able to fulfil these obligations.

[ 43 ] In support of the position that a reasonable driver does not need a painted stop bar to tell them where to stop at an intersection. Counsel for Durham sited Bava v. Vaughan (City) , [2009] O.J. No. 4697 (S.C.) . In Bava, L.B. Roberts J. came to the following conclusion with respect to the alleged failure of the municipality to install or maintain a stop bar:

There is no requirement in the Municipal Act, supra and its regulations, or the City’s bylaws that the City maintain the painted markings as contended by the Plaintiff. The reason is that a driver should know where to stop in the absence of painted markings as required by Section 136 of the Highway Traffic Act , supra;… I also agree with the submission of the City’s counsel that this requirement makes practical sense as lines and other markings are often obscured in circumstances like snowstorms over which the City would have limited if any control.

[ 44 ] As to the applicability of the reasoning of Roberts J. in Bava I note that there is no reference in that decision to the Ontario Traffic Manual and how the Ontario Traffic Manual may have informed the court with respect to the need for stop bar lines.

[ 45 ] In support of its motion for summary judgement Durham filed in evidence the experts report of Mr. Jack DeChiara who is a professional engineer. Mr. DeChiara also has expertise as a road engineering expert. In his report Mr. DiChiara comes to the following conclusions:

“8. Findings and Opinions

Based on observations and measurements made at and near the intersection of Regional Road 42/Concession Road 3, subsequent review of pertinent documents, and undertaking of relevant technical analyses, we provide the following findings and opinions:

1. The intersection of Regional Road 42/Concession Road 3 is a conventional intersection of two, 2-lane rural roads, commonly found throughout Ontario. The method of traffic control at this intersection involving stop signs on the minor road (Concession Road 3) and no control on the major road (Regional Road 42) was consistent with generally-accepted traffic engineering practices for traffic control in rural areas in Ontario involving the intersection of a major road and a minor road.

2. The principal traffic control devices facing westbound traffic on Concession Road 3 east of the intersection at the time of the collision consisted of the stop sign at the intersection and the stop-ahead warning sign located some 214 m east of the intersection. Both of these signs were sufficient and adequate, and in general compliance with eh Ontario Traffic Manual guidelines. Both signs were clearly visible for considerable advance distances and afforded approaching drivers on Concession Road 3 ample opportunity for bringing their vehicles to a stop in a safe comfortable manner.

3. While there is no regulatory requirement in Ontario for providing specific sight distances at stop-controlled intersections for drivers stopped at such intersections, it is generally recognized that adequate sight distances need to be provided at stop-controlled intersections for ensuring safe traffic operations. The procedures provided in the Geometric Design Guide for Canadian Roads published by the Transportation Association of Canada were used for assessing the intersection sigh distance relevant to the subject collision. These procedures are essentially the same as those used by the Ontario Ministry of Transportation for road design purposes. Based on the prescribed analytical procedures, it was determined that for the posted speed limit of 80 km/h on Regional Road 42, a clear sight distance of 144 m would be required for a westbound driver stopped at the standard stopped position on Concession Road 3 for observing northbound vehicles on Regional Road 42 and safely crossing the intersection. Based on field investigations, it was determined that the available on-site sight distance was over 200 m, well in excess of the required minimum distance of 144 m. This finding was supported by statements made by Mr. Stapleton who indicated that he observed the Rivard vehicle stopped at the intersection from the railway tracks located 160 m south of the intersection.”

[ 46 ] On the basis of the evidence before the court, it was argued on behalf of Durham, applying the Combined Air full appreciation test, that this court could determine based on what is described as uncontested evidence, that a reasonable driver stopping at the appropriate location and looking to their left, would have had an unrestricted view of northbound traffic. As such it is suggested that there could be no actionable state of non repair at the intersection which either caused or contributed to this tragic accident.

The Law

[ 47 ] In order to properly apply the full appreciation test mandated by the recent Court of Appeal decision in Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 , one has to have an understanding of the duty and standard of care for a road authority like Durham. The legal obligation of a municipality as a road authority is governed by Section 44 of the Municipal Act 2001 which provides:

Section 44(1) – the Municipality that has jurisdiction over a highway or bridge should keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

[ 48 ] The leading authority with respect to the standard of care for road authorities is found in the Supreme Court of Canada decision in Housen v. Nikolaisen 2002 SCC 33 () , [2002] 2 S.C.R. 235. Both the majority decision and the minority decision in Housen did not disagree on the fundamental test to be applied, in order to ascertain whether the municipality met its duties to maintain the roads. In that regard the decision of Iacobucci and Major J.J. adopts as a correct statement of the municipality standard of care, what is found in Partridge v. Rural Municipality of Langenburg 1929 220 (SK CA) , [1929] 3 W.W.R. 555 (Saskatchewan Court of Appeal) at pages 558 thru 559 where Martin J.A. stated:

The extent of the statutory obligation placed upon municipal corporations to keep and repair the highways under their jurisdiction, has been variously stated in numerous reported cases. There is, however, a general rule which may be gathered from the decisions, that 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. What is a reasonable state of repair is a question of fact, depending upon all of the surrounding circumstances…

[ 49 ] The aforesaid principle laid down in 1929 by the Saskatchewan Court of Appeal which was adopted in Housen has recently been reviewed in Deering v. Scugog (Township) (2010), 2010 ONSC 5502 () , 77 C.C.L.T. (3d) 167 Appeal Dismissed June 4, 1012 O.N.C.A 386. In Deering Howden J. stated at paragraph 106:

It is correct now to say that the duty of care of the road authority to maintain its road system consists of protecting ordinary users of the Highway, exercising reasonable care for their safety, from unreasonable risks of harm to them.

[ 50 ] In coming to the ultimate conclusion that he did in Deering , Howden J. referred to the Ontario Traffic Manual on a number of occasions. In making a finding of negligence against the defendant Municipality Howden J. noted:

There was no valid reason for the OTM guidelines in books 7 and 11 not to be followed in 2000 and again in 2003–2004 at the time of road rehabilitation. Accordingly, the defendants (The Municipality) should bear the larger responsibility. (See Deering at paragraph 298 ).

[ 51 ] There have been a number of other decisions in which reference has been made to the failure of the Municipality to adhere to the Ontario Traffic Manual as providing a basis to inform the court as to the standard of care. See Greenhalgh v. Duoro-Drummer (Township), [2009] CarswellOnt 7995 at paragraph 60 and 66 and Johnson v. Town of Milton 2006 ( 25 MPLR 4 th ) 17 at paragraph 82 and Lancaster (Litigation Guardian of) v. Santos , (2011), CarswellOnt 8894 at paragraph 107 .

[ 52 ] The Housen decision of the Supreme Court of Canada speaks of the reasonable driver exercising ordinary care. In Deering Howden J. had the opportunity to analyze the distinction between the majority decision and the dissenting decision of Bastarach J. In that regard Howden concludes:

The majority is indicating that the issue of the state of repair of the road hinges not only on whether an ordinary driver, using reasonable care, could pass the particular road feature in safety, but also the potential for that driver, paying due attention to what he or she is doing, to be mistaken in a situation of impending danger and to guess wrong without a clear cue from the road environment or proper warning of the hazardous configuration or condition of the roadway.

[ 53 ] The decision of Howden J. was upheld on appeal without any comment with respect to his analysis, with respect to the different meanings between the majority and minority decisions in Housen . The reasonable ordinary driver is not a perfect driver. If every driver fell into the context of being perfect there would be no accidents on our roadways. The fact remains, however, that the ordinary driver will make mistakes in relation to unexpected road based changes. As noted by Howden J. in Deering “they may, without some guidance, miss a subtle queue of potential change in road conditions, amid the information unfolding as that motorist is driving.”

[ 54 ] The evidence before this court may lead the ultimate trier of fact to conclude that Rivard was an inexperienced teenage driver who had not yet completed all of her driver qualifications. She was a G2 licensed driver. How the trier of fact will ultimately resolve the issues that separate the parties as stated by their various experts will ultimately be for the trial judge to decide. Whether or not the site lines contributed to the subject accident and whether or not the absence of a stop line bar may have contributed to the accident, or could have potentially avoided the accident, will also be an issue for the trial judge.

[ 55 ] This court must, however, have a full appreciation of the evidence before it can conclude one way or the other whether summary judgment is appropriate. This court is faced with competing experts’ reports that have not been cross examined on. The Supreme Court of Canada makes clear in Housen that what is a reasonable state of repair is a question of fact depending upon all of the surrounding circumstances. The parties have filed competing expert reports that address the issue of what a reasonable state of repair was for the intersection. This court cannot resolve that issue without the benefit of hearing from all of the witnesses who may ultimately be called to address issues of liability. As I indicated in Paul v. Oliver Fuels Ltd . [2012] O.J. 540 , there may very well be cases in the future with conflicting expert opinions that are amenable to a motion for summary judgment. This, however, is not that type of case. This court is confronted with conflicting expert opinions from all sides and this court does not have a full appreciation of the evidence so as to allow the motion for summary judgment by Durham. A summary judgment motion given the competing expert opinions, cannot serve as an adequate substitute for the trial process. The summary judgment motion of Durham is therefore dismissed.

[ 56 ] If the parties cannot resolve the issue of costs an appointment should be arranged through the trial coordinator for oral submissions. In advance of the oral submissions, written submissions are to be received by the court in advance of the oral submissions written submission are to be received by the court. If no appointment is sought within two weeks from the date of release of these reasons it will be assumed that the parties have resolved the issue of costs.

Justice M. Edwards

Released: November 20, 2012

CORRIGENDA

1. First page - Changed counsel name from Robert Sutherland to Patrick J. Monaghan.

2. First page - Added counsel name of Christopher Valente, for the Defendants Marvin Stapleton and Evergreen Farm and Garden Ltd.