ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 62438, 2607-10 & 2608-10
DATE: 20140429

B E T W E E N:

Marie Grosbeck

G. Robson, for the Plaintiff

Plaintiff

• and -

The Estate of Judith Mae Abram (a.k.a. Judith Mae Peters), The Municipality of Strathroy-Caradoc, The Corporation of the County of Middlesex, and the Chippewas of the Thames First Nation, Douglas Vink operating as Ideal Quality Automobiles, and T.J’s Tire & Auto

M. Stocks, for the Defendant, Estate of Judith Mae Abram
J. Stirton, for the Defendant, The Corporation of the County of Middlesex

Defendants

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Morgan Henry Williams Jr., by his Litigation Guardian, Morgan Williams Sr. and Morgan Williams Sr.

P. Sonoski, for the Plaintiffs, Morgan Henry Williams Jr. and Morgan Williams Sr.

Plaintiffs

• and -

Judy Abram, deceased, by her Litigation Administrator, Michael Debiase, TJ’s Tire & Auto Service, Chippewas of the Thames First Nation, Municipality of Strathroy-Caradoc, The Corporation of the County of Middlesex and Douglas Vink, carrying on business as Ideal Quality Automobile

M. Stocks, for the Defendant, Judy Abram, deceased, by her Litigation Administrator, Michael Debiase

Defendants

A N D B E T W E E N:

Henry Williams, Brian Peters and Crystal Gayle Abram

Plaintiffs

Judy Abram, deceased, by her Litigation Administrator Michael Debiase, TJ’s Tire & Auto Service, Chippewas of the Thames First Nation, Municipality of Strathroy-Caradoc and The Corporation of the County of Middlesex and Douglas Vink carrying on business as Ideal Quality Automobiles

Defendants

S. Yoker, for the Plaintiffs
M. Stocks, for the Defendant, Judy Abram, deceased, by her Litigation Administrator, Michael Debiase

HEARD: February 25, 2013 & January 20, 2014

LEITCH J.

[1] The defendant, The Corporation of the County of Middlesex (the “County”), seeks an order for summary judgment dismissing these actions and all cross-claims against it with costs.

Background Facts

[2] These actions relate to a single vehicle accident that occurred on June 1, 2007 at the intersection of Jubilee Drive and Muncey Road in the County of Middlesex. The County had jurisdiction over Muncey Road and was responsible for signage at the intersection.

[3] The vehicle was operated by the defendant Judy Abram who sustained fatal injuries in the accident. Judy Abram’s son, Morgan Henry Williams Jr., and Marie Grosbeck were passengers in the vehicle. They sustained personal injuries as a result of the accident.

[4] In action #2608/10, Morgan Henry Williams Jr., by his litigation guardian, Morgan Williams Sr., has brought an action to recover damages for injuries sustained in the accident. Morgan Williams Sr. is a family law claimant in that action (“the Williams action”).

[5] In action #2607/10, three of Judy Abram’s children seek damages as family law claimants (“the Abram action”).

[6] In action #62438, Marie Grosbeck seeks damages for her personal injuries sustained in the accident (“the Grosbeck action”).

[7] The County is named as a defendant in all three actions. The County has denied liability for the accident in all actions. The co-defendants in all actions have cross-claimed against the County based on the allegations in the plaintiffs’ statements of claim.

[8] The action has been dismissed against defendants The Municipality of Strathroy-Caradoc and TJ’s Tire & Auto Service. Chippewas of the Thames First Nation has not responded to the claim and has been noted in default.

The Claims Against the County

[9] It is alleged in each of the statements of claim that the condition of the intersection, which is the responsibility of the County, contributed to the accident.

[10] In the Williams action and the Abrams action, the plaintiffs allege that the County was negligent in that it:

1. Failed to take adequate or any measures to keep the intersection properly maintained;
2. Permitted the intersection to remain in an unsafe and dangerous condition and, by reason of such state, to be in the nature of a concealed danger;
3. Failed to give the plaintiffs adequate or any warning of the state and condition of the intersection; and
4. Failed to develop, implement or otherwise carry-out a plan to inspect and monitor the intersection.

[11] It is alleged by the plaintiffs in the Grosbeck action that the County was negligent in that it:

1. Failed to properly maintain the roadways and/or intersection;
2. Failed to erect appropriate signage to control or warn traffic on Jubilee Drive and/or Muncey Road of the inherent dangers created by the nature and design of the intersection of Jubilee Drive and Muncey Road;
3. Failed to have adequate guard rails or other devices to prevent vehicles from entering a deep ditch at the east end of Muncey Road at the intersection with Jubilee Drive;
4. Failed to otherwise take reasonable and necessary steps to ensure that any operator of a motor vehicle would be able to safely negotiate the intersection; and
5. Failed to design an intersection that was reasonably safe for users of the road.

The Relevant Provisions of the [Municipal Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m45/latest/rso-1990-c-m45.html)

[12] Section 44(8) of the Municipal Act, 2001, S.O. 2001, c. 25 provides as follows:

(8) No action shall be brought against a municipality for damages caused by,

(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or

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

[13] It is clear, that as the County emphasized, two discrete types of claims are barred by s. 44(8):

1. Claims arising from the presence, absence or insufficiency of walls, fences, rails or barriers along or on the highway; and
2. Claims arising from materials or objects adjacent to or on the untravelled portion of a highway

[14] Mr. Sonoski’s position, adopted by the other defendants, was that s. 44(8)(a) is not applicable because the plaintiffs are not arguing that damage was caused by the absence or insufficiency of any barrier.

[15] Therefore, the issue on the motion is whether the County was entitled to summary judgment based on s. 44(8)(b), or in other words, were the plaintiffs’ claims for damages caused by the condition or configuration of the untravelled portion of a highway.

Evidence Relating to the Accident

[16] The motion materials contain the report from the Strathroy-Caradoc Police Services and a collision reconstruction report prepared by the Ontario Provincial Police, which indicated that both Jubilee Drive and Muncey Road were in good condition; the regulation size stop sign on Jubilee Drive was visible and in proper working order, and the roadway was clear and dry at the time of the accident.

[17] In addition, the collision reconstruction report stated that the vehicle driven by Judy Abrams side-slipped as she attempted to turn right from Jubilee Drive onto Muncey Road; the vehicle left the road and “vaulted” off the north shoulder of Muncey Road at a speed of 40-42 km per hour, travelling 11.57 m before impacting an embankment approximately 4.78 m below the take-off area. This report also indicated that the mechanical fitness of the vehicle may have played a role in the collision.

[18] The plaintiffs in the Williams action retained Giffin Koerth Engineers, which prepared a report dated September 17, 2009 (the “Giffin Koerth Report”).

[19] In the summary of the Giffin Koerth Report, it was noted as follows:

Our analysis of the collision indicates that the road design was a factor in this collision, specifically the unprotected steep and large embankment that was too close to the pavement edge. The steep embankment was a critical and non-recoverable hazard that was located within the ‘clear zone’ of the roadway perpendicular to the termination of a T-intersection. A clear zone is the area next to the travelled portion of the road that must be traversable and free of roadside hazards. Based on Provincial and Federal guidelines, a minimum clear zone of 3.53 m must be provided, unless barriers are present and/or roadside hazards are made to breakaway on impact. The actual clear zone provided was 3.0 m or less with no barriers. The slope of the embankment was twice as steep as that which would allow an errant vehicle to recover safely.

The severity of the subject collision may have been lessened had the slope been less steep, allowing the vehicle to decelerate more gradually at the bottom of the embankment, or had a barrier been present.

The County of Middlesex reconstructed Muncey Road through the subject intersection in 2006, prior to the subject collision. The reconstruction of the road by the County did not satisfy the roadside safety guidelines that were in place at that time. A properly designed clear zone should have been established at that time, or a properly designed barrier should have been installed. The less steep embankment and larger clear zone would be the preferred remedial action at a T-intersection.

[20] Further in discussing the clear zone requirements, it was stated in the Giffin Koerth Report that:

The ‘clear zone’ is a designated amount of width next to the edge of the travelled portion of the road that must be designed to be traversable and clear of fixed hazards (such as poles, rock cuts, non-recoverable embankments, etc.) so that errant vehicles have a chance to recover or come to a safe stop.

[21] A complete statement of the conclusions in the Giffin Koerth Report was set out at p. 10 as follows:

• The embankment on the north side of Muncey Road opposite Jubilee Drive had a steep slope, which based on current Provincial and Federal road design guidelines, would be considered a “critical” and “non-recoverable slope” and twice as steep as that which would allow an errant vehicle to recover safely.

• The steep slope was a hazard and was located in the ‘clear zone’ of the roadway, defined as the area between the edge of the travelled portion of the roadway to the face of an unprotected hazard that must be traversable, allowing errant vehicles to recover or come to a safe stop.

• The clear zone provided on the north side of Muncey Road was 3.0 m or less and did not meet the Provincial or Federal road design guidelines for the expected operating speed.

• The severity of the subject collision may have been lessened had the slope been flatter and the vehicle was allowed to decelerate over a longer distance and more gradually.

• At critical locations such as T-intersections that have a higher collision potential, adhering to road side safety design guidelines should have been a top priority.

• The County of Middlesex reconstructed Muncey Road through the subject intersection in 2006 and failed to address the substandard clear zones, deep ditches and critical embankment slopes during this effort.

• It does not appear that the County conducted a review of the collision risks along Muncey Road during their reconstruction in an effort address site specific concerns. At present the County does not have a formal system to obtain, track or analyze collision trends on the roadways under their jurisdiction.

• The signage and illumination were not factors in this collision.

The Evidence on Discovery from the County Engineer, Mr. Traini

[22] Mr. Chris Traini, the County engineer, testified on his examination for discovery on May 3, 2011. Mr. Traini indicated that in 2006, the County reconstructed Muncey Road to improve the standards of that road and the County took into account safety considerations on the travelled portion of the roadway. He indicated at p. 27 of the transcript that when looking at a clear zone in this area, the County would consider the clear zone to be all the way to the nearest sort of physical barrier which in his opinion would be the tree line. Mr. Traini indicated that the County did not consider traffic entering Muncey Road from the T-intersection at Jubilee Road in determining the clear zone. Mr. Traini outlined what the County considered at p. 28 as follows:

If you’re talking about traffic driving on, specifically on Muncey Road, heading east or westbound on this road, our analysis at the time of design would have been it’s safer for them to actually leave the roadway and go down into the ditch than it would be to hit a guiderail … So in our opinion, I think, at the time would have been that the clear zone here for east and westbound traffic would be to the property line or to where the line of trees is.

[23] Mr. Traini was asked on p. 52 at Q. 229 if there were any safety considerations given to the ditch or the embankment that was under discussion at his examination for discovery and he responded that “the shoulders there would have been extremely narrow prior to construction so we endeavoured to move them up to the accepted standard”. Specifically, Mr. Traini went on to say that the County “improved on the slopes” that were there previously and made them less “severe”. He was asked on p. 53 at Q. 235 as follows:

Q. So there was some acknowledgment that some changes had to be made for safety purposes to the slope of the ditch?

A. Yes.

Q. And the changes were effected to bring it to a 2 to 1 slope?

A. Yes.

[24] After Mr. Traini’s discovery, the County confirmed that the clear zone standard applied was in accordance with Roadside Safety Manual, c. 2.1 and 2.2. The guideline for T-intersections set out in c. 2.9.2 was not applied.

Case Law

[25] The County referenced the decision of Guse v. Thunder Bay (City), [1998] O.J. No. 3257 (Gen. Div.) for the proposition that the intent of s. 44(8) is to exclude municipalities from liability arising from defects existing beyond the travelled portion of the highway. Guse considered a predecessor provision, s. 284(3) of the Municipal Act, R.S.O. 1990, c. M.45, which was substantially the same as s. 44(8) in issue here, and noted that the Ontario Court of Appeal in MacDonald v. Lefebvre et al., 1962 111 (ON CA), [1962] O.R. 495 held that the shoulder of the road is not within the travelled portion of the roadway.

[26] In Guse at para. 10, the court stated that:

The intent of Section 284(3) is to exclude municipalities from liabilities arising from defects existing beyond the part of the highway commonly used by the public. It protects a municipality from liability for injuries arising from conditions of non-repair in locations where the public would not be expected to go.

[27] After a trial in Guse, the court concluded at para. 15 that because the plaintiff “saw fit to pursue a course which led her to a non-travelled portion of the roadway and, while jogging through that area, she came into contact with a concealed culvert”, the applicable provision of the Municipal Act precluded her action for damages given the location of the accident.

[28] In Falkner (Litigation Guardian of) v. Wasaga Beach (Town) (2004), 50 M.P.L.R. (3d) 277 (Ont. S.C.), a child was injured riding his bicycle onto a grassy boulevard that ran between the street and a shopping plaza. As noted by Fuerst J. at para. 23, the parties focused their submissions on the summary judgment motion on whether there was evidence that the accident occurred within the travelled portion of the highway. The defendant municipality had moved for summary judgment on the basis that the claim was barred by virtue of s. 284(3) of the Municipal Act. Fuerst J. found that there was a genuine issue as to material facts and that it could not be said that s. 284(3) barred the action from proceeding. Guse was distinguished.

[29] In Ouellette v. Hearst (Town) (2004), 2004 36122 (ON CA), 70 O.R. (3d) 204, 237 D.L.R. (4th) 504 (C.A.), the Court of Appeal concluded at para. 20:

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

[30] Section 284(3) of the Municipal Act was further considered in Johnson v. Milton (Town) (2006), 25 M.P.L.R. (4th) 17, 2006 CarswellOnt 4859 (S.C.) (varied on other grounds at 2008 ONCA 440) during a trial where the intention of the party claiming against the city was found to be significant. The trial judge found that the plaintiffs in that case had not intentionally left the travelled portion of the highway, but rather had lost control of their bicycle, left the travelled portion of the highway as a result, and ultimately collided with a rock embankment which the municipality could not avoid liability for pursuant to s. 284(3) of the Municipal Act.

[31] In Johnson, the trial judge found that the death of one plaintiff and that the injuries suffered by the other plaintiff were not caused by the rock embankment, but rather were caused by the non-repair of the highway, and that the rock wall was merely the mechanism, like the hydro pole in Ouellette, that brought about the injuries. In Johnson, the trial judge found that the road was in a state of non-repair; the municipality was willfully blind to its condition; and, the municipality had failed to meet the expected standard with respect to signage.

[32] I note that the trial judge’s finding in Johnson that the municipality was entirely responsible for the accident was the subject of an appeal. The appeal was allowed in part, and liability was apportioned on the basis that the trial judge ought to have found the respondent driver of the tandem bicycle contributorily negligent with responsibility for 40% of the damages. However, there was no issue taken with respect to the trial judge’s decision that s. 284(3) of the Municipal Act did not apply.

[33] In McHardy (Litigation Guardian of) v. Ball, 2012 ONSC 1095, on a Rule 20 summary judgment motion, the court considered whether s. 44(8) of the current Municipal Act, 2001 applied to the circumstances of that case.

[34] On the motion, the municipality argued that a traffic signal pole was a fixed object adjacent to the roadway or travelled way and that the plaintiff’s vehicle left the travelled way and struck the pole where it had been placed on the median. It was the position of the municipality that the plaintiff’s claim was precluded by virtue of s. 44(8). The plaintiffs on the other hand, referencing Johnson, took the position on the motion that s. 44(8) only applied where a driver had intentionally left the travelled portion of the roadway.

[35] In McHardy, the motion judge had some doubt as to whether s. 44(8) only applied where a driver had intentionally left the travelled portion of the roadway. As a result, he focused on interpreting “untravelled portion of a highway”.

[36] In applying the full appreciation test, the motion judge concluded that there was a genuine issue requiring trial as to whether the plaintiff’s claims were statute barred by operation of s. 44(8), noting at paras. 87 and 88 that:

87. … A technical and restrictive interpretation by the City would locate Mr. McHardy’s [the plaintiff’s] vehicle colliding with the pole on the untravelled portion of the highway. A more contextual and obviously less literal approach would characterize the traffic pole location in the middle of the intersection as an integral part of the highway. …

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

[37] Leave to appeal from the decision of the motion judge in McHardy was granted on the basis that there appeared good reason to doubt the correctness of the order in question and that the proposed appeal involved matters of importance.

[38] When the appeal was heard, the Divisional Court (2013 ONSC 6564) agreed at para. 4 with the submission of the appellant municipality that:

[T]he effect of the amendment to the predecessor of paragraph 44(8)(b) was to provide for the possibility that portions of a highway such as, for example, a median could constitute an “untravelled portion of a highway” to which the statutory bar in paragraph 44(8)(b) applies.

[39] The majority of the Divisional Court defined the issue before them at para. 6 as follows:

The issue in this motion is the meaning of an “untravelled portion of a highway”. In Ouellette v. The Corporation of the Town of Hearst et al (2004), 2004 36122 (ON CA), 70 O.R. (3d) 204, the Court of Appeal expressed the purpose of the predecessor provision to paragraph 44(8)(b) to be to “protect municipalities from actions brought by drivers who go where they are not expected to go (off the highway); …” (italics added)

[40] The majority of the Divisional Court noted at para. 7 that the appellant municipality had argued that an “‘untravelled portion of a highway’ is that portion of a highway which the municipality does not intend will be used by the public in ordinary and normal use”, referencing the Court of Appeal’s decision in MacDonald.

[41] As noted at para. 8, the respondents on the appeal had argued that:

... the issue of where drivers are expected to go or not go is a more objective one that is determined by what is reasonably foreseeable in any given circumstances.

[42] The majority of the Divisional Court agreed with the respondents concluding at para. 9:

… that the concept of expectation contemplated by the Court of Appeal for the purposes of paragraph 44(8)(b) refers not to the intention of the municipality but rather to the reasonably foreseeable interaction of the public with the highway, or any portion thereof. To the extent that it is reasonably foreseeable that vehicles on the highway may go on a median, or contact an object on a median, whether voluntarily or involuntarily, a median would constitute a portion of a highway that is travelled.

[43] The majority of the Divisional Court went on to note at para. 10 that there were two possible bases for a conclusion that the median was not “an untravelled portion of a highway”. It was reasonably foreseeable that drivers will enter upon or otherwise contact the median in an ordinary and normal use of the highway and the median is a place upon which it is reasonably foreseeable that pedestrians will go. The majority of the Divisional Court concurred with the motions judge that the full appreciation test could not be satisfied on the motion for summary judgment, noting that there were a number of issues that had to be “fleshed out at trial”, such as “the physical layout of the intersection in summer and winter, the operation of the traffic signals, and the extent of pedestrian usage of the median” (para. 12). In concurring reasons, Matlow J. found that it was unnecessary for the issue to proceed to trial and he was satisfied that the claim against the municipality was not precluded by s. 44(8).

The Test for Summary Judgment

[44] The parties agreed that this motion, based on the prevailing law at that time, required that the County meet the “full appreciation” test.

[45] The Supreme Court of Canada has very recently discussed the test for summary judgment in Hryniak v. Mauldin, 2014 SCC 7, where at paras. 49-50 Karakatsanis J. outlined the circumstances where there will be no genuine issue requiring a trial.

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

Discussion

[46] The County’s position is that the only evidence respecting the cause of the accident is in the Giffin Koerth Report. The County on this motion was prepared to assume that the opinions in the Giffin Koerth Report are correct and that an insufficient clear zone and the slope of the embankment on the north side of Muncey Road contributed to the accident.

[47] The County’s position is that there is no disputed factual matrix here as there was in McHardy because the County has assumed that all expert opinions obtained to support the plaintiff’s case are correct. The County also submits that the cases relied on by the responding parties pre-date the amendments to Rule 20 and that all of the necessary evidence in relation to the accident is here on the record: the police report, the witness statements, and expert evidence noting that the three occupants of the vehicle are unable to offer any evidence. Thus, there is no need for this issue to proceed to trial.

[48] The motor vehicle accident in question occurred because the vehicle failed to stop at a properly signed intersection; the vehicle was observed to be side-slipping; the vehicle left the road and “vaulted” off the shoulder and travelled 11.57 m through an insufficient clear zone and impacted a drainage ditch embankment with a slope that was too steep.

[49] It is the position of the County that any claim arising from the allegedly “problematic” clear zone and the slope of the embankment is barred by s. 44(8) of the Municipal Act, 2001.

[50] The County’s position is that intentional conduct of a plaintiff is not required to trigger s. 44(8) of the Municipal Act, 2001.

[51] In relation to this issue, Mr. Sonoski asks me to follow Johnson and find that there is a genuine issue as to whether s. 44(8)(b) has any application because there is no evidence that the plaintiffs’ vehicle intentionally left the roadway. Mr. Sonoski’s position is that evidence relating to the intention of the driver is required and thus, a trial is required to determine what that intention was.

[52] In my view, it is fair to say that the Abrams vehicle did not intentionally leave the highway. However, there is no need for intentional conduct on the part of a plaintiff before a municipality may rely on the defence in s. 44(8). The Divisional Court decision in McHardy makes this clear. After the Divisional Court decision in McHardy, the important issue in relation to the applicability of s. 44(8) is the reasonable foreseeability of the “interaction of the public with the hazard”.

[53] The County submits that the facts relating to the collision and the distance the vehicle travelled when it left the road indicate that the accident happened where a vehicle is not expected to go, and thus the accident occurred on an untravelled portion of the roadway. The County asserts that it is not reasonably foreseeable that a driver would fail to stop at the intersection and would go off-road considering that there is no accident history at that intersection. Indeed, the County goes further and submits that if it was expected to forsee this accident, s. 44(8) would never be applicable.

[54] The County distinguishes Falkner on the basis that there was no evidence here that the public would use this area. In addition, the County’s position is that the circumstances in McHardy are distinguishable from this case and that these facts are more similar to the culvert issue in Guse.

[55] However, Mr. Sonoski, for the plaintiffs in the Williams action (whose submissions were adopted by Mr. Stocks, counsel for the plaintiffs in the Abram action, and Mr. Yoker, counsel for the plaintiffs in the Williams action) submits that the facts of McHardy are identical to the ones in issue here. The County employed an inadequate clear zone leading to a “too severe slope”, which contributed to the plaintiffs’ injuries. That is, the embankment was a fixed object adjacent to the travelled portion of the roadway.

[56] Mr. Sonoski asserts that it is clear from Mr. Traini’s evidence that safety considerations relating to motorists were taken into account when the slope was reconstructed. This makes it clear that this was an integral part of the roadway. To put it another way, the County made changes with safety considerations for motorists in mind.

[57] Mr. Sonoski submits that the County is making the same argument as the municipality did in McHardy, and whether the steep embankment is on the untravelled portion of the roadway is an issue that must proceed to trial. That is, a finding of fact must be made as to whether the drainage ditch is an integral part of the roadway considering its location, its purpose, and its functionality.

[58] Further, according to Mr. Sonoski, the County’s use of road guidelines must be scrutinized. There must be an assessment of the County’s decision not to take into consideration vehicles coming off of Jubilee Drive to access Muncey Road, and not to apply or to completely ignore s. 2.9.2, noted above, dealing with T-intersections.

[59] Mr. Sonoski’s submissions were also adopted by Mr. Robson on behalf of the Grosbeck plaintiffs, who notes that there is no evidence that the clear zone was not a travelled portion of the roadway and submitted photographs that showed tire marks in the area. He also notes that this evidence he presented was akin to the evidence relied on in Falkner, and supports the assertion that it is reasonably foreseeable that the clear zone is travelled on. He emphasizes, as Mr. Sonoski does, that the travelled portion of a roadway depends on the individual circumstances of each case.

[60] As a result of McHardy, the significant contentious issue on the motion was whether the clear zone and drainage ditch embankment was an integral part of the highway. Was it reasonably foreseeable that vehicles on a highway may go onto this clear zone area voluntarily or involuntarily? Can it be found on this motion that it was not reasonably foreseeable that the public would go on the shoulder of the road, whether voluntarily or involuntarily.

[61] I have concluded that I cannot reach a fair and just determination of the merits of the County’s defence pursuant to s. 44(8)(b) of the Municipal Act, 2001 on this motion for summary judgment. That is, I cannot find the necessary facts and resolve the dispute whether it is reasonably foreseeable that drivers will enter upon the clear zone area and the drainage ditch embankment. I have reached this conclusion, particularly taking into account Mr. Traini’s evidence as previously outlined, and the fact that there are road design standards for these areas that have been developed in the interest of public safety. These circumstances are far different from circumstances where a driver or a pedestrian has deviated from the highway for personal convenience or has taken an extraordinary or unusual pathway. I think it is fair to say, as the respondents have asserted, that it is not unreasonably foreseeable that drivers would make contact with objects, in this case “an embankment”, in a clear zone of the roadway. Therefore, the County cannot satisfy the test for summary judgment.

[62] I agree with the responding parties that there are a number of issues that form part of a “factual matrix” necessary for a determination regarding the reasonable foreseeability that the public would go into the embankment/ditch located within the clear zone of the highway, including the following outlined in Mr. Sonoski’s supplementary factum.

1. The nature of the intersection. Whether a T-intersection becomes important under the road design publications.

2. Did the location of the accident (T-intersection) constitute a critical location with a higher collision potential.?

3. Should the County have applied the clear zone standard set out in s. 2.9.2 (specifically dealing with T-intersections), as opposed to s. 2.1 and 2.0, which it admits was the clear zone standards applied?

4. Did the County adequately address the substandard clear zones, deep ditches, and critical embankment slopes during its 2006 reconstruction efforts?

5. Would the severity of the collision have been lessened had the slope been flatter, allowing the Abrams vehicle to decelerate over a longer distance and more gradually?

6. Did the clear zone provided on the north side of Muncey Road meet the provincial or federal guidelines for the expected operating speed?

7. Should the County have considered traffic entering into the intersection off of Jubilee Road at the T-intersection accessing Muncey Road, which they expressly deny doing, in determining what would be considered the clear zone?

[63] For the foregoing reasons, the County’s motion for summary judgment is dismissed. If necessary, counsel may make brief written submissions on the issue of costs within 30 days.

“Justice L. C. Leitch”

Justice L. C. Leitch

Released: April 29, 2014