COURT FILE NO.: 1661/10

DATE: 20140714

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Stephanie Kelly, Anne Kelly and Mike Kelly

Maia Bent and Nancy McAuley, for the Plaintiffs

Plaintiffs

• and -

The Corporation of the County of Perth

Peter Madorin, Q.C., for the Defendant

Defendant

HEARD: February 3, 5, 10, 11, 12, 13, 14, 18, 19, 20, 21, 24, May 12, 13, 14, 15, June 25 and 26, 2014

Grace J.

[1] Stephanie Kelly left her parents’ home in the village of Kinkora, Ontario during the latter part of the afternoon on April 6, 2009. She was headed to her part-time job at a nearby Staples store in Stratford. She did not arrive.

[2] Ms. Kelly lost control of the car she was driving along County Road 37 (“Line 37”). It left the road and hit a tree. Otolaryngologist Dr. John Yoo said that he had never seen a patient survive after sustaining comparable injuries. Dr. Yoo called Ms. Kelly’s survival remarkable. It was. However, Ms. Kelly’s life was forever changed.

[3] At issue is whether and to what extent the Corporation of the County of Perth (the “County”) bears responsibility for the accident and the damages Ms. Kelly and her parents have sustained.

A. The Context

i. The Statutory Scheme

[4] The Municipal Act, 2001, S.O. 2001, c. 25 requires each municipality to keep highways under its jurisdiction “in a state of repair that is reasonable in all the circumstances” and provides that a municipality that fails to do so “is, subject to the Negligence Act, liable for all damages any person sustains because of the default.”[^1]

[5] Section 44(3) of the Municipal Act excuses a municipality from liability in three situations. The relevant portion provides:

Defence

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway …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…;

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

(c) at the time the cause of action arose, the minimum standards established under subsection (4) applied to the highway…and to the alleged default and those standards have been met.

[6] I will return to the legal framework later in these reasons. For now I will focus on the involvement of the County’s personnel in the events of April 6, 2009.

ii. Road Maintenance

[7] Line 37 runs east and west. For a short distance Line 37 stretches along Stratford’s northern boundary. The City is responsible for that portion of the road.

[8] The highway then continues east of Stratford through the County of Perth. In that area, the County is responsible for maintaining Line 37.

[9] Charles Blancher is the County’s road foreman. He monitors weather reports as part of his duties.

[10] Blancher testified that he began patrolling area highways at 4 a.m. on April 6, 2009 because “a little snow and weather” had been predicted by Environment Canada. In fact, a snowfall warning for Perth and Huron Counties had been issued. In cross-examination, Blancher acknowledged that he was aware of forecasts of severe weather.

[11] What he heard – and saw – caused Mr. Blancher to call in the County’s snow plow operators between 5:45 and 6 a.m. John Kelly was one of them. He was assigned route 5: the route which included the County maintained portion of Line 37. While John and Stephanie Kelly share the same surname, they are not related.

[12] During his trial testimony, John Kelly said he could not remember April 6, 2009. However, during the course of his duties he made entries in business records maintained by the County. In addition, the snow plow he was driving - truck 5 - was equipped with electronic devices which kept track of its location and its activities. Those records detail what John Kelly and the plow he was operating did – and did not do – that day.

[13] John Kelly’s shift started at 6 a.m. He plowed and salted route 5 between approximately 6:15 and 8:30 a.m. According to the global positioning system, truck 5 attended to Line 37 from about 7:54 until 8:17 a.m.

[14] John Kelly recorded his observations concerning the weather and road conditions on a County Winter Road Report shortly after 8:30 a.m. on April 6, 2009. He reported a temperature of zero degrees Celsius, good visibility, an overcast sky and light winds from the northwest. Under the heading conditions and operation, he marked the wet, loose snow, slush, center bare, track bare, ice patches, plowed and salted boxes.

[15] According to the County’s records, after a short break John Kelly left the depot for the balance of the morning. He reported patrolling routes 4 and 5 for two hours, followed by one hour plowing Lines 26 and 112 south of Stratford. For road conditions during those hours, Mr. Kelly marked the wet, slush, center bare and track bare boxes on the County’s Winter Road Report.

[16] John Kelly returned to the depot at noon. He acknowledged that he did not monitor the weather or return to route 5 for the balance of the workday. Instead, he stayed at the depot washing truck 5 and another piece of equipment. John Kelly did not inform his supervisor, Mr. Blancher, that he had finished plowing his route for the day.

[17] At 4:30 p.m., John Kelly’s shift ended. Toward the end of his shift, John Kelly was notified that Line 37 had been closed.

iii. The Accident

[18] Since Ms. Kelly has no recollection of the April 6, 2009 accident, details have been pieced together from evidence given by others.

[19] At the time of the incident, Brad McIntosh drove a dairy truck. He was en route from Toronto to Mitchell, Ontario. McIntosh testified that he was westbound on Line 37 just east of Stratford late in the afternoon on April 6, 2009; a date he referred to as “a bit of a snowy day” with a strong north wind.

[20] While he reported generally favourable road conditions, he said Line 37 was icy and slippery.

[21] As he approached Stratford, McIntosh saw a fairly long stretch of snow covering both sides of Line 37. He estimated the depth at ten inches and said he could see tire marks traversing the snow in both directions.

[22] With two cars approaching, he slowed and then stopped. He noticed a lot of snow coming off the back of both vehicles. He said he thought they were going a little quickly for the conditions but estimated their speed at less than 80 km/hr. – the posted speed limit.

[23] The first car made it through the snow without incident. The second did not. McIntosh said that about half-way through the snow, the second vehicle started to swerve, departed from the tire marks left by earlier passersby and then fish-tailed two or three times. He hoped that it would exit the patch of snow and regain control when the car’s tires made contact with the pavement on the other side. It didn’t. The driver lost control. The vehicle exited the roadway and hit a tree. That car was driven by Stephanie Kelly.

[24] McIntosh said he stayed in his vehicle and called 911.

[25] Motorist Jody Catalan also reported a strong north wind that day. He was travelling with a co-worker southeast from his home in Mitchell to the Toyota plant in Cambridge, Ontario. He said that as he travelled along another County Road – Line 36 - he encountered finger like drifts of snow in the westbound lanes.

[26] His route took him to line 37. Like Stephanie Kelly, Catalan was travelling east. He said he accelerated to the posted speed as he exited Stratford because the road conditions were then pretty good.

[27] However, Catalan soon noticed snow ahead. At first, he didn’t think much of it but then realized that the snow had height. Catalan said he geared down and applied his brakes. He estimated his speed at 45-55 km/hr. as he began to enter the snowy patch and said he slowed further to about 25-35 km/hr as he continued through the accumulated snow. He said his car “wobbled a bit” as it travelled through the thickest part of a drift he thought was eight to twelve inches in height and about fifty yards long.

[28] He said that he did not see tire tracks in the drift. Catalan said that while he expected blowing snow on Line 37, he was “shocked” to see a sizable drift in that location despite the conditions he had encountered earlier and his familiarity with that road.

[29] Part way through the snow, Catalan reported seeing a transport truck on the north side of the road facing west and a car in the field to his right – or to the south.

[30] At first he saw no one around and thought that an accident had occurred sometime ago. However, as he drove by he saw a hand extending out the driver’s side window of the car. He turned around and bravely did what Mr. McIntosh testified he could not do. Mr. Catalan exited his vehicle and rushed to see if Stephanie Kelly was alright. She was not.[^2]

[31] Off duty Stratford police officer Michael Robinson was also on Line 37 that day. He was driving from his home in New Hamburg to pick up his children in Stratford.

[32] New Hamburg is to the east of Stratford. Robinson’s route required that he travel westbound on Line 37. He said the day was somewhat clear but windy. He said he had come across patches of light snow along the route but as he came up a rise he suddenly encountered a patch of heavy snow about six to eight inches high and forty five to sixty feet in length. Mr. Robinson estimated his speed at between 80 and 90 km/hr.

[33] Robinson said he only had time to take his foot off the accelerator. He reported that the snow took control of the steering and sent his Chevrolet Venture van across the opposite lane, through the ditch on the south side of Line 37 and onto the lawn of a nearby residence.

[34] Sergeant Walter Van Essen of the Ontario Provincial Police (“O.P.P.”) was on duty on April 6, 2009.[^3] He said that around noon, he was investigating an accident south of Stratford. He said that the weather was then “pretty good”.

[35] Later, he arrived at the scene of Mr. Robinson’s accident. Sergeant Van Essen observed that the weather conditions had deteriorated. He reported a strong north wind.

[36] Sergeant Van Essen testified that Line 37 had a mix of bare and drifting sections. He estimated the drift that interrupted Mr. Robinson’s journey at six to twelve inches high. He said it covered the full width of the highway.

[37] Both Van Essen and Robinson saw an eastbound motorist lose control and go into the ditch alongside Line 37 as she tried to navigate her way through the snow drift Mr. Robinson had failed to negotiate.

[38] At 4:34 p.m. and while still at the scene of the Robinson accident, Van Essen received a call asking him to attend the scene of Stephanie Kelly’s crash. He was only a couple of kilometers east of that location.

[39] On arrival, Van Essen said he slipped as he exited his cruiser. He found a snow drift that he estimated was about one hundred to two hundred feet in length and six to eight inches high. He said the drift was wet at the bottom with blown and packed snow on top. Tire marks traversing the accumulated snow could be seen.

iv. The Immediate Aftermath

[40] Constable Susan Blacklock is a member of the O.P.P. She was asked to investigate the accident and arrived at the scene at approximately 5:00 p.m.

[41] She described the weather conditions she encountered. The temperature was minus 2, the wind was strong and from the north. Snow was blowing. While Line 37 was bare and wet to the east of the accident scene, she reported that there was heavy drifting to the west. Blacklock did not measure the depth or length of the drift.

[42] Constable Blacklock said that the car Stephanie Kelly was driving – a 1997 Chevrolet Cavalier – was equipped with snow tires. Their tread was in good condition. She said that it was clear that the undercarriage of the car had struck a stump, that the Cavalier had become airborne and started to roll. The driver’s side of the Cavalier struck high up the trunk of a tree. Both airbags deployed and, as depicted in several photographs, the vehicle was heavily damaged.

[43] Stephanie Kelly was cut out of the car by members of the local fire department and airlifted to London Health Sciences Centre (“LHSC”).

[44] On arrival, Stephanie Kelly was unconscious. Her Glasgow Coma Scale was alarmingly low. She had sustained multiple severe, life threatening injuries.

[45] Stephanie Kelly’s sister Erin teaches overseas. April 6, 2009 began as a joyous day for the Kelly family. Erin was returning for a visit. Her parents, Mike and Anne Kelly, travelled to Toronto to meet her and bring her home.

[46] Ironically, Erin’s warm welcome at the Lester B. Pearson International Airport and Stephanie’s tragedy were occurring almost simultaneously.

[47] Stephanie Kelly’s parents and sisters Erin and Brett were having dinner in Guelph, Ontario, when Anne Kelly received Sergeant Van Essen’s unexpected and unwanted call telling her of the accident.

[48] The family rushed to LHSC. They found a broken, unconscious and intubated daughter and sister.

[49] Stephanie Kelly testified that she has no memory of events following St. Patrick’s Day in mid-March, 2009 until waking up one day in Parkwood Hospital in the presence of her parents.

B. Liability

i. The Elements

[50] The onus is on Ms. Kelly to prove two things: first, that the County failed to keep Line 37 in reasonable repair in all the circumstances and second, that the accident would not have occurred but for the state of disrepair.[^4]

[51] If those elements are proven, it is then incumbent on the municipality to establish one of the statutory defences set forth in s. 44(3) of the Municipal Act, 2001.[^5]

ii. The Duty to Repair

[52] Allegations of non-repair may relate to conditions that are long-standing or temporary. Issues relating to road design[^6] or signage[^7] fit within the former category. Winter road conditions, which are in issue here, belong to the latter classification.[^8]

[53] Wintry weather can and often does wreak havoc for those using – and maintaining – roads in Ontario. In Frank v. Central Elgin (Municipality), 2010 ONCA 574, (“Frank”), the Court of Appeal acknowledged the difficulties facing road authorities during the winter. In addressing the predecessor to s. 44 of the Municipal Act, 2001, Laskin J.A. wrote at para. 7:

…the [A]ct does not impose on a municipality a duty to repair every adverse road condition. In the winter, for example, a municipality’s failure to salt or sand its roads does not automatically expose it to liability. The driving public cannot expect municipalities to keep the roads free and clear of snow and ice at all times during the winter. Courts have recognized that although motorists ought to be kept reasonably safe during winter driving conditions, municipalities ought not to be turned into insurers of the safety of the driving public by imposing overly onerous maintenance obligations.

[54] Earlier I outlined the applicable statutory provisions set forth in the Municipal Act, 2001. They impose a duty on a road authority to protect ordinary users of a highway, exercising reasonable care for their safety, from unreasonable risks of harm.[^9]

[55] What do the words “ordinary users of a highway, exercising reasonable care for their safety” mean? In Deering v. Scugog (Township), 2010 ONSC 5502 (S.C.J.) (“Deering”), at para. 154, Howden J. concluded that:

The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and makes mistakes.

[56] Included within the County’s brief of authorities was Ferguson v. The Corporation of the County of Brant, 2013 ONSC 435 (S.C.J.) (“Ferguson”). At paras. 16 and 17 of that decision, the trial judge wrote in part:

The Supreme Court of Canada stated the law clearly in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. A municipality has a duty to keep a roadway in a reasonable state of repair so that the users of the roadway, exercising ordinary care may travel upon it safely. The municipality owes a duty of care to the ordinary driver, not the negligent driver.

The ordinary driver is expected to adjust his or her behaviour according to the nature of the roadway and the driving conditions. If he/she does not, he/she cannot sustain an action for negligence against the municipality, even where the conditions of a road present a hazard. [Italics added]

[57] Since the speed at which Ms. Kelly was driving on Line 37 is an issue, I asked whether the County was taking the position that Ms. Kelly was precluded from maintaining this action.

[58] Mr. Madorin readily acknowledged that the County’s position did not go that far. In my view, that was an entirely appropriate and fair concession.

[59] With respect, the italicized portions of the excerpts drawn from Ferguson go too far. The quoted portion of Ferguson referred to the Supreme Court of Canada’s decision in Housen v. Nikolaisen (“Housen”). In Housen, the plaintiff was a passenger in a motor vehicle that crashed after its driver lost control during a failed attempt to negotiate a sharp curve. The municipality argued that the accident was caused by the driver’s negligence. The trial judge concluded that both the driver and municipality were negligent and apportioned liability between them.

[60] The majority of the Supreme Court of Canada agreed that the trial judge appropriately “distinguished the conduct of Mr. Nikolaisen in driving negligently on the road from the conduct of the municipality in negligently failing to erect a warning sign”.[^10]

[61] The court upheld the trial judge’s findings “that the curve was hidden and unexpected” and that “a motorist exercising ordinary care could easily be deceived into approaching the curve at speeds in excess of the safe speed for the curve, and subsequently be taken by surprise”.

[62] Contrary to the suggestion in Ferguson, a finding of negligence on the part of a driver does not automatically preclude recovery. The question is whether the condition of the road “would pose a risk to the reasonable driver exercising reasonable care.”[^11] If it would, a duty to repair arises and any negligence on the part of the driver will limit, rather than extinguish, the right of recovery.[^12] As Howden J. explained in Deering at para. 142:

It is wrong and bad law to confuse the issue of contributory negligence with the test of the ordinary motorist’s ability to proceed through the section of the road safely, using due care…Of course, contributory negligence is not a bar to recovery, but neither is the negligent driver part of the measure of the standard of care for road authorities.[^13]

[63] In this case, there is no serious issue whether the condition of Line 37 sparked the County’s obligation to repair. Without hesitation Matthew Ash, the County’s Director of Public Works, offered that the County would have attended to the drift Ms. Kelly encountered had the County been aware of its existence.

[64] Even without that acknowledgement the evidence leads to the overwhelming conclusion that a dangerous situation faced all motorists travelling along Line 37 in the vicinity of the accident site during the afternoon hours of April 6, 2009.

[65] While the estimates of height and length varied, all of the witnesses agreed that a sizable drift covered both lanes of Line 37. Its presence caused Mr. McIntosh to first slow and then stop his truck and empty dairy trailer.

[66] Despite having driven some distance and encountering finger like drifts on another county road, Mr. Catalan was surprised by the size and location of what he encountered on Line 37.

[67] When Mr. Catalan realized that a large volume of snow had collected on the highway, he geared down and braked. He slowed down further while negotiating his way through the drift. Even at an estimated speed of 25-35 km/hr., he observed that his car “wobbled a bit”.

[68] The drift’s composition was also problematic. As mentioned, Sergeant Van Essen testified the drift was wet at the bottom with blown and packed snow on top. Sergeant Van Essen wrote that the road was “covered w[ith] icy drifting snow” when describing the scene in the motor vehicle accident report. He remembered slipping when getting out of his cruiser.

[69] The weather continued to be a concern. Mr. McIntosh testified that conditions were deteriorating while he sat still alongside Line 37. Mr. Blancher acknowledged that he called in part-time plow operators during the afternoon hours of April 6, 2009 because of the ongoing weather conditions and the continuing need for road monitoring and maintenance.

[70] In Frank, Laskin J.A. concluded that a duty of repair arises if “road conditions create an unreasonable risk of harm to users of the highway.”[^14]

[71] That is precisely what existed on Line 37, east of Stratford, at the time of Ms. Kelly’s accident on April 6, 2009. A large drift containing a mixture of wet, packed and blown snow had formed that created a danger to ordinary drivers exercising reasonable care.

iii. Standard of Care

[72] As in Frank, the issue is whether the County met the standard of care required of it. Section 44(1) of the Municipal Act, 2002 sets forth the County’s obligation in relation to highways in these words:

The municipality that has jurisdiction over a highway…shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway…

[73] Section 44(2) of that statute outlines the consequences of a failure to meet that standard. It provides:

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.

[74] In light of the wording of those subsections, the question that arises is this: did the County fail to keep Line 37 in a state of repair that was reasonable in the circumstances, including the character and location of that highway?

[75] Reasonableness is the applicable standard, not perfection. In addressing winter storms, Laskin J.A. added at paras. 12-13 of Frank:

Where winter road conditions give rise to an unreasonable risk of harm, a municipality must show that it took reasonable steps to eliminate or reduce the danger within a reasonable time after it became aware of the danger.

[76] Environment Canada’s forecasts for April 6, 2009 were cause for concern. At 3:30 p.m. on April 5, 2009, increasing cloudiness with rain changing to wet snow was predicted overnight. Fifteen centimeters of snow and a north wind of 40 km/hr. gusting to 60 km/hr. were called for along with a fall in temperature from plus 1 to minus 2. A snowfall warning was in effect for Huron and Perth Counties.

[77] While Mr. Blancher was on patrol in the early morning hours of April 6, 2009, Environment Canada released its 5 a.m. forecast. Winds were predicted to be a little lighter (30 gusting to 50 km/hr.) and the temperature a little warmer (near zero) but otherwise the predictions were unchanged. A snowfall warning continued to be in effect.

[78] Mr. Blancher reacted promptly and appropriately. He mobilized the crews that serviced the County’s roads. His expectation was a simple one: the plow operators would monitor and service their assigned routes throughout a day which he acknowledged involved falling, blowing and drifting snow.

[79] Initially, his expectations were met. As noted, the roads on route 5 – including Line 37 – were plowed and pre-wetted salt was applied. The global positioning system confirmed that Line 37 received Mr. Kelly’s attention between 7:54 and 8:17 a.m.

[80] As also mentioned, Mr. Kelly recorded patrolling routes 4 and 5 between 9 and 11 a.m. on April 6, 2009. He completed the wet, slush, center bare and track bare boxes on his return to the depot. According to his notations, road conditions had improved over those he encountered near the beginning of his shift.

[81] However, those entries must be read with caution. The data retrieved from the global positioning system evidences the fact that truck 5 did not return to Line 37 during the balance of Mr. Kelly’s scheduled time. The County’s route map helps explain why that may have occurred. Line 37 stood alone, separated from the rest of route 5 by the City of Stratford.

[82] Furthermore, for reasons which were not explained, Mr. Kelly helped patrol route 4. Mr. Blancher testified that one route was assigned to each operator. Route 4 was not assigned to Mr. Kelly but to another employee. It appears those operators – described by Mr. Blancher as “buddies” – decided to share a responsibility that each was to bear individually. Although it is possible Line 37 was the only road they ignored, I question whether the operators responsible for routes 4 or 5 gave them the attention the County expected and the public deserved.

[83] In light of the weather, Mr. Blancher testified that Mr. Kelly was expected to attend to route 5 as needed for the balance of the day. In other words, Mr. Kelly’s task was to patrol route 5 and service its roads as needed. Mr. Ash agreed that servicing is required throughout a severe weather event. That was exactly what was being experienced on and around Line 37.

[84] Yet, according to the records he completed, Mr. Kelly did not venture outside after returning to the depot about noon on April 6, 2009. He reported being off-duty until 12:30 p.m. and then on-duty but not driving thereafter. According to other records, he washed truck 5 and at least one other piece of equipment. Mr. Kelly acknowledged he did not monitor the weather for the balance of his work day. He did not patrol, let alone plow or salt, a single road.

[85] In fact, it was not until Mr. Blancher was advised of Ms. Kelly’s accident by the O.P.P. that Line 37 received any further attention. According to his day timer, Mr. Blancher called Mr. Kelly to close and another operator to plow the portion of Line 37 that Ms. Kelly had failed to traverse. According to the County’s records, Line 37 was plowed and salted at approximately 5:30 p.m. After completing that round of route 5, Mr. Kelly’s replacement noted, with emphasis, that the “roads are good to very BAD”.

[86] Ms. Kelly was on a “very bad” portion of Line 37. It was in that condition because of the neglect of the route 5 plow operator. He failed to return to Line 37 after plowing and salting it early in the morning. Had he performed his assigned duties, the operator would have patrolled Line 37. He would have seen and removed the snow which had accumulated and he would have applied salt.

[87] The operator of truck 5 failed to do any of those things. As a consequence, I conclude that his employer - the County - failed to comply with s. 44(1) of the Municipal Act, 2001. Line 37 was not kept in a state of repair that was reasonable in the circumstances that existed in the afternoon hours of April 6, 2009.

[88] Ms. Kelly has proven the first element she must establish. I turn to the next statutory requirement.

[89] As mentioned, s. 44(2) of the Municipal Act, 2001 imposes liability on a municipality “for all damages any person sustains because of” its failure to comply with s. 44(1).

iv. Causation

[90] Understandably the statute requires a causal link between the wrong and the damage suffered. In Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, McLachlin C.J. restated the applicable test in these words at paras. 8 and 9:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry…

The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. [Citations omitted]

[91] In this case, the connection between the County’s default and Ms. Kelly’s injuries is obvious. Mr. McIntosh testified that approximately half way through the drift, the car Ms. Kelly was driving started to swerve, left the tire marks made by previous vehicles, fishtailed two or three times, went out of control, exited Line 37 and struck a tree.

[92] Removal of the drift and the application of salt would have eliminated the problem that caused Ms. Kelly’s routine commute to the Staples store to end in tragedy. The County’s operational failure was a cause of the crash and of the damages Ms. Kelly has sustained. In other words, the accident and hence the injuries that followed, would not have occurred but for the failure of the County to comply with its statutory obligation.

v. Statutory Defences

[93] Section 44(3) of the Municipal Act, 2001 allows a municipality to avail itself of any one of three defences.

[94] For ease of reference, s. 44(3) provides as follows:

Despite subsection (2), a municipality is not liable for failing to keep a highway …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…;

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

(c) at the time the cause of action arose, the minimum standards established under subsection (4) applied to the highway…and to the alleged default and those standards have been met.

[95] Section 44(3) (c) may be dealt with in short order. Because the accident occurred a few days after the end of the winter maintenance season, the County acknowledged that the Minimum Maintenance Standards for Municipal Highways, O’Reg. 239/02 do not apply. The County does not seek to avail itself of the third statutory defence.

[96] The other subsections may be dealt with almost as quickly. For s. 44(3) (a) to apply, the County must establish that it “did not know and could not reasonably have been expected to have known about the state of repair of the highway”.

[97] In this case, the County had a ready means of knowledge available. It had the necessary personnel and equipment. It had specifically assigned an operator and a plow to the route which includes Line 37. Mr. Blancher confirmed that Mr. Kelly was well acquainted with route 5 having attended to it many times before.

[98] Furthermore and notably, Mr. Kelly was intimately familiar with that road. He lived on the portion of Line 37 the County was responsible for maintaining.

[99] I recognize that Mr. Kelly performed other duties during the afternoon hours of April 6, 2009. However, they were not tasks that should have been undertaken that day. He was called in to patrol and service route 5. Had he continued on with his assigned tasks, as his supervisor expected, Mr. Kelly would have known of the state of repair of Line 37 and of the need for renewed plowing and salting.

[100] In order to obtain the benefit of s. 44(3) (b), the County must prove that it took reasonable steps to prevent the default from occurring.

[101] Ms. Kelly’s accident occurred after the end of what was described as the winter maintenance schedule. However, the County did not suggest that it should be held to a lesser standard. As Murray J. wrote in Giuliani v. Region of Halton, 2010 ONSC 4630 (S.C.J.) at para. 144:

While it may not make good business sense to schedule winter patrols on a daily basis before December 1 or after March 31, those responsible for road maintenance have an obligation to respond appropriately to winter conditions when they occur outside the designated winter patrol system. Climatologists would probably agree that this four-month time period is, generally speaking, the time of year in which snow and ice most often present hazards to drivers on the roadway. However, anyone who has lived in this climate will know from experience that severe snow and ice storms can and do occur before December 1 or after March 31…While the scheduling of winter road patrols is mandatory from December to March 31, the obligation to respond appropriately to adverse road conditions is a constant.[^15]

[102] Those principles apply here. In any event, the County’s Director of Public Works, Mr. Ash, testified that the County’s approach and ability to respond to a winter storm was the same on April 6 as they were during the designated winter maintenance season that ran from November 15 to March 31.

[103] I accept that evidence. Mr. Blancher monitored the weather, conducted an early morning patrol and called out all of the operators who worked on a full-time basis for the County. The initial response was exactly what the statutory scheme contemplated.

[104] Unfortunately, the breakdown occurred later in the day and at the operational level. One employee failed to do his job. Unfortunately, he was the one person entrusted with the critical job of identifying and remedying road conditions that created an unreasonable risk of harm to users of Line 37. The failure to patrol, plow or salt had dire consequences.

[105] Engineer Brian Malone testified at the request of the County. Mr. Malone’s statement “you can’t catch every snowflake before it hits the ground” is a particularly memorable one. That is very true. However, one cannot catch a single snowflake by staying indoors.

[106] The inaction of the operator of truck 5 leads to this conclusion: on April 6, 2009 and in relation to Line 37, the County did not do all that was reasonably required of it. The County cannot avail itself of any of the defences set forth in s. 44(3) of the Municipal Act, 2001.[^16]

vi. Contributory Negligence

[107] Section 44(2) of the Municipal Act, 2001 provides that the liability of the County is “subject to the Negligence Act”. Section 3 of the latter statute reads:

In any action for damages that is founded upon the fault or negligence of the defendant if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively.[^17]

[108] The County maintains that Ms. Kelly drove at a speed which was excessive for the conditions. It suggests that she bears equal or nearly equal responsibility for the accident and that fault should be apportioned accordingly.

[109] In Bow Valley Husky v. Saint John Shipbuilding, [1997] 3 S.C.R. 1210, the Supreme Court of Canada adopted statements made in the 1950’s concerning the purpose of and test for contributory negligence. In Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.) at p. 611, Viscount Simon explained the underlying rationale in these words:

For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

[110] Denning L.J. outlined the applicable test in Jones v. Livox Quarries Ltd., [1952] 2 Q.B. 608 (C.A.), at p. 615 as follows:

A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless.

[111] Excessive speed can and often does result in a finding of contributory negligence.[^18]

[112] The County’s argument is based on four sources: the opinion evidence given by engineer Jason Young, eyewitness testimony given by Mr. McIntosh, a comment contained in the accident report Sergeant Van Essen completed and the physical evidence. I will deal with each in turn.

[113] Mr. Young has a bachelor’s degree in mechanical and a master’s degree in biomechanical engineering. He was qualified to give opinion evidence in the areas of accident reconstruction and human factors. Mr. Young was retained by the County to attempt to determine the speed of the car Ms. Kelly was driving at various points in time.

[114] In Mr. Young’s opinion, Ms. Kelly was most likely travelling at 95 km/hr. when she first lost control and at 62 km/hr. when her car left the road. Mr. Young concluded that Ms. Kelly was travelling far too fast for the conditions she faced and that speed was the primary cause of the accident.

[115] Joseph McCarthy was retained by the plaintiff. He holds a bachelor’s and a master’s degree in mechanical engineering. He was qualified to provide opinion evidence on accident reconstruction, speed analysis and crash data retrieval (“CDR”) from the Sensing and Diagnostic Module (“SDM”) installed on Ms. Kelly’s vehicle.

[116] In Mr. McCarthy’s opinion, there was insufficient information to allow anyone to estimate the speed of the car when it began to swerve. He estimated Ms. Kelly’s speed at between 36 and 57 km/hr. when her car left the road. Mr. McCarthy concluded that Ms. Kelly was travelling well below the posted speed at the time it left Line 37.

[117] Both experts estimated Ms. Kelly’s speed at various points using the technical traffic collision investigation documents created by Constable Blacklock including measurements, photographs and data retrieved from the SDM.

[118] For ease of reference their estimates of speed are set forth in the following chart:

Point in Time

Speed as Estimated by Joseph McCarthy (km/hr.)

Speed as Estimated by Jason Young (km/hr.)

After Impacting the Tree

0-5

3-7

Deceleration as a Result of Impact with the Tree

Decelerated by 25.8

Decelerated by 23.3-29

Just prior to Impact with the Tree

25.8-30.8

26.3-36

Loss of Speed as a result of the Stump

Decelerated by 0-negligible

Decelerated by 8-12

Just prior to hitting the stump

Not stated

34-48

When about to exit Line 37 (the first tire mark)

36-57

62 (based on a range of 60.5-63)

When control first lost

Unknown

95 (based on a range of 87-102)

[119] They started by estimating the car’s speed after contact with the tree and then worked backward. They did so because the SDM recorded the longitudinal change in velocity of the vehicle at the time the air bags deployed.

[120] Messrs. Young and McCarthy agreed that determination of the actual change in speed required an adjustment to allow for the fact that the vehicle struck the tree at an angle. They agreed that their figures were similar, though not identical, at that point.

[121] The engineers agreed that material differences first arose at a tree stump which lay about six meters from the tree. Mr. Young was of the view that when the front driver’s side tire of Ms. Kelly’s Cavalier struck the stump, the car began to roll or “tripped”. He was of the opinion that the force of the impact caused the car to decelerate from 8 to 12 km/hr.

[122] Mr. McCarthy disagreed. He was of the view that the front passenger side tire ramped up the stump without any appreciable change in speed. Mr. McCarthy disputed Mr. Young’s findings for two reasons.

[123] First, “tripping” would have caused the car’s clockwise rotation to increase. According to Mr. McCarthy that did not happen. In fact, he expressed the opinion that the vehicle’s rotation had been slightly counterclockwise. Second, he noted that the SDM recorded an event 3.28 seconds before the accident which did not involve a longitudinal change in speed. The SDM is designed to capture the most significant event that did not result in the deployment of the air bags. It did not record the impact with the stump. Instead, it noted something that occurred earlier; in the area where the car began to leave the road.

[124] I found Mr. McCarthy’s criticisms of this portion of Mr. Young’s speed analysis to be compelling. Undoubtedly the Cavalier made contact with the stump. According to Constable Blacklock it was about a foot high. She saw fresh damage. However, for the reasons given by Mr. McCarthy I am not satisfied that there was any appreciable loss of speed at that point in the car’s unfortunate journey.

[125] That conclusion requires an adjustment to Mr. Young’s speed estimate by backing out the 8-12 km/hr. of deceleration he ascribed to the stump. His estimated range of speed of 60.5-63 km/hr. when the car began to leave Line 37 becomes 48.5-55 km/hr. That is within the upper range of Mr. McCarthy’s estimate.

[126] Mr. Young testified that his use of two other methods supported his higher estimate. First, he referred to a vault or projectile analysis. Mr. Young agreed that he assumed that all four wheels of the car were off the ground as it entered a ditch on its approach to the stump. However, it was not at all clear that the car was airborne. While Constable Blacklock said that was possible, she also said the absence of tire marks in that area could simply have been attributable to the contour of the land. I interpreted that as meaning that the speed and size of the vehicle allowed it to slide over that small area without entering the ditch.

[127] Furthermore, given the weather conditions, the presence of emergency crews and equipment and the passage of time, it was entirely possible that any tire marks in that area had become obscured. I am not satisfied that there was any, let alone enough, reliable information upon which to base a projectile analysis.

[128] Finally, Mr. Young used a vehicle simulation software program called PC Crash. Mr. Young testified that the tire marks found by Constable Blacklock could only be replicated if the Cavalier was travelling at a speed in the range of 52-72 km/hr. at their commencement. It should be noted the lower portion of Mr. Young’s range overlaps with the upper portion of Mr. McCarthy’s estimate of 36-57 km/hr.

[129] At trial, Mr. Young suggested that 60 km/hr. was a “perfect match”. That evidence ignored the fact that the file which Mr. Young produced for inspection contained a notation by his colleague that 55 km/hr. was “good”.

[130] Mr. McCarthy testified that he ran a simulation using a similar software program[^19] and was able to closely match the vehicle’s trajectories at speeds ranging from 40-70 km/hr.

[131] After considering the evidence of Messrs. McCarthy and Young, I am of the view that Ms. Kelly’s car was most likely travelling at approximately 55 km/hr. at the commencement of the tire marks Constable Blacklock found.

[132] What was her likely speed when she encountered the drifted section of Line 37? As noted, in Mr. Young’s opinion Ms. Kelly was travelling between 87 and 102 km/hr. He testified that the probable speed was 95 km/hr. I disagree for four reasons.

[133] First, Mr. Young’s calculation was based on his estimate of speed in the preceding stage. I have already found Mr. Young’s estimate at the commencement of the tire marks to be too high.

[134] Second, Mr. Young was selective in his use of the physical evidence. He relied on evidence that suggested Ms. Kelly swerved two or three times. However, he then added his own interpretation and suggested that they were dramatic – from one side of the road to the other. Mr. McIntosh said no such thing.

[135] Third, Mr. Young assumed that Ms. Kelly’s brakes were fully applied. There was no evidence to that effect.[^20]

[136] Fourth and most significantly, Mr. Young assumed that Ms. Kelly swerved over a distance of 97 meters (318 feet) before the tire tracks began. Mr. Catalan estimated the drifted portion at 50 yards long (150 feet). The upper end of Sergeant Van Essen’s estimate was 200 feet. Mr. McIntosh wasn’t specific. He said the snow covered portion was a fair length but testified that the swerving started about half-way through.

[137] With respect, Mr. Young’s premise is at best flawed and at worst, simply wrong.

[138] Mr. McCarthy said he did not estimate Ms. Kelly’s initial speed because it was impossible to do so. There was simply no physical evidence upon which to base an opinion. I agree.

[139] The County relies on the evidence of Mr. McIntosh. Mr. McIntosh described the observations he made while watching two cars approach the drifted section of Line 37 just east of Stratford. It was his impression that both cars were travelling too fast for the conditions although he thought their speed was somewhat less than the posted maximum of 80 km/hr. Ms. Kelly was driving the second car Mr. McIntosh saw.

[140] Sergeant Van Essen completed the motor vehicle accident report. The code he used under the heading “apparent driver action”, corresponded with the words “speed too fast for condition”.

[141] I am prepared to accept Mr. McIntosh’s estimate of speed. In my view, it is probable that Ms. Kelly was travelling at or close to the posted speed limit. That conclusion is consistent with his observations and Mr. Catalan’s experience. Like Mr. Robinson, she may well have taken her foot off the accelerator just before entering the snow covered portion of the highway.

[142] Like Mr. Catalan, Ms. Kelly was leaving the portion of Line 37 that the City of Stratford maintained. The road conditions seemed to be satisfactory until the drifted portion of the road was encountered.

[143] However, I do not agree that Ms. Kelly’s speed was too fast for the conditions.

[144] The comments concerning the appropriateness of speed must be considered in context. They were made after a horrible accident. The temptation to attribute fault to the driver, at least in part, is natural. However, Mr. McIntosh and Sergeant Van Essen had perspectives Ms. Kelly did not.

[145] Mr. McIntosh had come from the east. He had travelled the portion of Line 37 that the County did not maintain for some distance. He already knew that Line 37 was slippery and he had seen the drifted portion in time to slow and then stop. He had the luxury of time to gauge the height and length of the drift.

[146] Sergeant Van Essen had been on duty since about 6:00 a.m. He had already attended at least two other accident scenes: one south of Stratford about noon and the drifted portion to the east that had caused Mr. Robinson – and soon thereafter, another motorist, to leave Line 37. Sergeant Van Essen knew that the conditions on Line 37 could change in an instant and become treacherous.

[147] The perspective that most closely resembled that of Ms. Kelly came from Mr. Catalan. Both came from the same general direction.[^21]

[148] Mr. Catalan had encountered a strong north wind, blowing snow and finger like drifting along Line 36. However, he had not seen anything that resembled the road conditions he faced on Line 37. I have already mentioned Mr. Catalan’s surprise and quick actions in gearing down and braking before entering the snow covered area.

[149] However, Mr. Catalan had the advantage of having a clear view ahead. Ms. Kelly was following another car. It was not clear how close the two vehicles were from the evidence of Mr. McIntosh but he said he stopped because he saw two cars approaching. They could not have been far apart.

[150] According to Mr. McIntosh the lead car travelled through the drifted section without incident. He did not mention any change in speed, any swerving or other motion that suggested otherwise. Ms. Kelly will never be able to tell us her thought process. However, she was following a car that made it through the hazard while travelling near the posted speed limit.

[151] While Mr. McIntosh saw tracks through the drifted portion, Mr. Catalan did not. Mr. McIntosh was facing west, was sitting up high and stationary. Mr. Catalan was travelling east, in a car and at speed.

[152] Mr. McIntosh testified that the car Ms. Kelly was driving went out of control when it left the pre-existing tire tracks. Based on Mr. Catalan’s evidence, she may never have seen them.

[153] With respect to the physical evidence, the County notes that other drivers did what Ms. Kelly could not do: they passed safely through the stretch of snow covered highway that Ms. Kelly did not. However and with respect, that fact does not mean that Ms. Kelly was negligent. As Jenkins J. said in Peddle (Litigation guardian of) v. Ontario (Minister of Transportation), [1997] O.J. No. 1874 (Gen. Div.) at para. 70:

Very subtle changes in the operation of an automobile can cause a vehicle to skid out of control on icy pavement.[^22]

[154] The evidence of Mr. McCarthy supports a similar finding here.

[155] Mr. Madorin suggested that a presumption of negligence arises because Ms. Kelly’s car left the road: Mark v. Guelph (City), 2013 ONCA 536 at paras. 1-3.[^23] Even if one arises, for the reasons given I am satisfied that it has been rebutted. The County is responsible for the conditions that existed on Line 37 that caused Ms. Kelly’s accident.

[156] I am of the view that Ms. Kelly was not travelling too fast for the conditions. Despite the weather, a reasonable driver in her circumstances would not have expected to encounter the drifting and icy conditions she faced on Line 37 just east of Stratford. There was no contributory negligence.[^24]

C. Non- Pecuniary Damages

i. General Damages

[157] Ms. Kelly was born on September 18, 1985. She is 28 years old. When she left home on April 6, 2009, Ms. Kelly was healthy, athletic, energetic, ambitious, bright, social and, for the most part, happy. Her future seemed bright. Ms. Bent’s statement that Ms. Kelly was “bursting with life” was a fair one.

[158] Eventually, a very different person returned to her parents’ residence in Kinkora.

[159] Twelve paragraphs of a partial agreed statement of facts detailed the injuries she suffered as a result of the accident. By way of summary, Ms. Kelly sustained the following: traumatic injuries to her bowel and pancreas, her left lung was bruised and her spleen lacerated. The long list of fractures included several ribs, three vertebrae, her sternum, left orbital temporal bone and her skull. Several cranial nerves were injured causing left vocal cord paralysis and left facial palsy. She sustained hemorrhagic contusions in the brain, subarachnoid and extradural hemorrhages and diffuse axonal injury. She has an acquired brain injury.

[160] Ms. Kelly spent over two months in hospital. She remained at LHSC until April 23, 2009 and was then transferred to Parkwood Hospital where she participated in the Acquired Brain Injury Program until discharged on June 11, 2009.

[161] The journey ahead was and continues to be long and arduous.

[162] In his submissions, Mr. Madorin said the County does not quarrel with the fact that Ms. Kelly suffered a serious acquired brain injury, a severe injury to her left eye and other injuries which he characterized as “less significant”.

[163] While calling Ms. Kelly’s recovery “reasonable”, the County acknowledges there is a long list of permanent impairments. It includes cognitive and executive functioning deficits. Ms. Kelly cannot multi-task. She is prone to uncontrollable rages. While looking in certain directions she endures double vision.

[164] Always present, is unrelenting fatigue which prevents Ms. Kelly from engaging in many of her pre-accident activities and, in fact, from living a normal life. Naps are required every day and every activity requires careful pre-planning.

[165] The County acknowledged that Ms. Kelly lacks insight and judgment which makes her vulnerable. She is socially withdrawn. She does not interact well with others. She is anxious.

[166] Mr. Madorin said that while Ms. Kelly had been diagnosed with obsessive compulsive disorder pre-accident, he volunteered that it could not seriously be argued that is a significant contributor to her current problems.

[167] The County submitted that the facts of this case are analogous to those addressed in Wallman v. John Doe, 2014 BCSC 79 (S.C.) and that an award of $250,000 for pain and suffering and the loss of amenities of life was appropriate.

[168] Ms. Bent submitted that the Court should award the maximum allowable of $356,695.[^25]

[169] Her list of items was longer. She noted that the list of fractures included the occipital bone housing the foramen magnum. As mentioned, Dr. Yoo testified that he had never seen anyone survive after sustaining the range of fractures that Ms. Kelly endured.

[170] Several witnesses testified about Ms. Kelly’s memory. She requires frequent reminders. Sometimes Ms. Kelly has trouble finding the intended word. The constant need for support has made Ms. Kelly feel like she is a burden.

[171] Her brain injury has contributed to increased sensitivity. Ms. Kelly exhibits an explosive temper followed by remorse.

[172] She endures more than fatigue. She suffers from chronic pain in her jaw, neck, shoulders and back.

[173] Some of Ms. Kelly’s cranial nerves were damaged. While they self-repaired, sometimes they chose the wrong pathway resulting in a loss of facial symmetry or synkinesis. Some of her facial features seem a little askew. Understandably, Ms. Kelly feels self-conscious and does not see the beauty that others still do and will.

[174] In addition to a mild loss of hearing, she endures ringing in her ears. Balance can be an issue.

[175] Eye dryness carries with it a risk of ulceration. On occasion, that condition also causes searing, debilitating pain.

[176] In short, Ms. Kelly’s pain and suffering is and always will be omnipresent.[^26] Her limitations are significant and permanent.

[177] I have read the cases provided to me by counsel. While illustrative, Mr. Madorin fairly conceded quantification of general damages is unscientific.

[178] Things most of us take for granted: memory, sight, hearing, the ability to swallow, our voice, mobility, balance and more were affected by the accident. Ms. Kelly is brave and resilient. She is admired – and more – by all who know her. She has made dramatic gains. However, she will never be the same. Her pain, her suffering and the loss of the life she knew is deserving of an award near the permitted ceiling. I award Ms. Kelly $325,000 on account of general damages. Pursuant to rule 53.10, prejudgment interest is payable on that amount at the rate of 5% per year.

ii. Past Income Loss

[179] The parties agree that after the accident Ms. Kelly was not – and will never be – competitively employable.[^27]

[180] At the time of the collision, Ms. Kelly was enrolled in Brock University’s concurrent teaching program.

[181] In an effort to improve her career aspirations, Ms. Kelly had taken time off from Brock to work on a volunteer basis at the Norwell District Secondary School in Palmerston, Ontario.

[182] Sarrah Beemer is a special education teacher at that school. She worked with Ms. Kelly during her October, 2008-March, 2009 placement. Ms. Beemer gave Ms. Kelly a rave review. She described Ms. Kelly was “a natural” teacher. Ms. Kelly was energetic, able to take direction, receive feedback and adapt her teaching style to the individual needs of the students.

[183] As a result of her injuries, Ms. Kelly was unable to return to Brock in September, 2009 as she had planned. While she did not complete the teaching program, Ms. Kelly had obtained enough credits to earn a Bachelor of Arts.[^28]

[184] Economist Jack Carr was retained by the plaintiff. He calculated Ms. Kelly’s past income loss to February 24, 2014[^29] at $163,088 inclusive of salary and benefits[^30] and net of statutory deductions.[^31] He testified that he was asked to assume that Ms. Kelly would have obtained employment as a full-time secondary school teacher commencing in September, 2010.

[185] The County relied on the testimony of economist Douglas Hyatt. He calculated past income loss to May 15, 2014[^32] at $143,966 inclusive of salary and benefits and net of statutory deductions and negative contingencies.[^33] His estimate was based on the average annual income of all women 25 years old or older working in Ontario, whether on a full or part-time basis, who had obtained a bachelor’s degree.

[186] Professor Hyatt questioned the premise that Ms. Kelly would have obtained full-time employment as a secondary school teacher in September, 2010. He pointed to statistics which suggest that in 2010 the available supply vastly exceeded demand.[^34]

[187] Ms. Beemer testified that Ms. Kelly was well-liked. Ms. Kelly would have received Ms. Beemer’s strong recommendation had she applied for a teaching position. She said that during this period, hiring decisions were made by principals rather than the local school board. She said her school board had filled lots of vacant positions since 2010 but could not say how many.

[188] I am prepared to accept Ms. Beemer’s evidence as far as it went. However, the assumption on which Professor Carr relied goes too far. At most, Ms. Beemer suggested that Ms. Kelly may have earned a spot on the supply list. From time to time, she may have worked several days per week. However, that was not assured. Nor was there a predictable period within which she would have obtained full-time employment.

[189] The distinct possibility existed that she would have been underemployed for a period of time. At a minimum, that would have offset any higher income she would have earned as a teacher for the balance of the period involved in the calculation of past income loss. Consequently, I prefer the past income loss calculation provided by Professor Hyatt. As of May 15, 2014, that loss was $143,966.

iii. Future Income Loss

[190] There is no question that Ms. Kelly will sustain a future loss of income. The only issue is quantum.

[191] Professor Carr calculated Ms. Kelly’s post-February 24, 2014 income loss as having a present value of $2,577,561. Professor Hyatt’s figure was $1,573,473 for the period from May 15, 2014 onward.

[192] There are five principal areas of disagreement.

[193] First, their previous difference of opinion concerning occupation continued. In my view, the question is when, rather than if, Ms. Kelly would have become a full-time secondary school teacher. With her personality, intelligence, passion, range of interests, academic progress and practical experience, I conclude, without hesitation, that she would have achieved that goal before now. I agree with Professor Carr’s choice of occupation.

[194] Second, Professor Hyatt questioned his colleague’s use of average lifetime earnings rather than the average earnings of the age range that was applicable to Ms. Kelly. In direct examination, Professor Carr agreed that his figures would have been more accurate if he had adopted Professor Hyatt’s approach.[^35]

[195] Third, Professor Hyatt noted that Professor Carr assumed a retirement age of 62. In his initial report, Professor Hyatt summarized data concerning the average retirement age for teachers in Ontario. In 2009, the average age of a retiree was 58.5. However, over a five year period the average retirement age had steadily increased. In fact in 2004, the average retirement age was 56.4. In my view, Professor Carr’s assumption is a reasonable one.

[196] Fourth, Professor Hyatt maintained that the competing opinion failed to use the discount rate rule 53.09 of the Rules of Civil Procedure mandates. Professor Carr stated the prescribed rates.[^36] He then assumed that wages would increase on average by 0.8% more than the rate of inflation. He adjusted the discount rate by that “productivity” allowance.

[197] In Walker v. Ritchie (2005), 12 C.P.C. (6th) 51 (Ont. C.A.) at para. 91, the Court of Appeal upheld a variation of the discount rate where the evidence established that the costs of professional services were increasing faster than the rate of inflation. A similar conclusion was reached in cases involving wage increases.[^37]

[198] Although I have jurisdiction to adjust the discount rate on account of factors other than investment and price inflation rates,[^38] I decline to do so. I am simply not satisfied that the data to which Professor Carr referred is a reliable predictor of the times in which we live generally or in relation to the teaching profession specifically.[^39]

[199] Fifth, the economists disagreed on the importance of negative contingencies such as layoffs, short-term disability or a decision not to participate in the work force. Professor Carr was of the view that the positive and negative contingencies were of equal weight. Professor Hyatt expressed the opinion that a net negative contingency of two per cent per year should apply.

[200] In Thornhill v. Shadid (Ont. S.C.J.), the Court agreed that the future pecuniary loss on account of future income should not be adjusted. In that case, however, the plaintiff was able to point to a lengthy employment history that pre-dated her injuries. Prognostication in a case such as this one is particularly difficult given that Ms. Kelly had not yet embarked on her chosen career. I do not question Ms. Kelly’s commitment but there is, with respect, simply too many variables to reach the conclusion her counsel advocates. Enthusiasm and devotion may not always have secured Ms. Kelly a full-time position continuously or throughout her career.

[201] Three adjustments to Professor Carr’s $2,577,561 figure are required. First, the 0.8% productivity adjustment he applied should be reversed. Second, the annual teaching income should have been determined based on Ms. Kelly’s age. Third, there should be a one-time ten per cent reduction on account of negative contingencies.

[202] The parties are asked to attempt to agree on the resulting reduced figure. If they are unable to do so, I may be spoken to when the parties address the other issues mentioned in the concluding paragraphs of these reasons. I would have thought the present value of Ms. Kelly’s future income loss would be in the range of $2 million.

iv. Future Care Costs

[203] Jennifer Spencer was qualified to provide opinion evidence with respect to the cost of future care. Based on input received from Ms. Kelly and from various health professionals, Ms. Spencer prepared a detailed life care plan (the “plan”).

[204] The plan contains tables identifying the products and services recommended by her sources and Ms. Spencer’s estimate of frequency, duration and cost. The products and services were divided into ten categories: housekeeping and handyman duties; attendant care, child care and a financial management fee;[^40] aids for independent living; medical care; therapy and treatment from non-medical health professionals; medications; medical equipment; continuing education and avocational costs.

[205] Actuary Thomas Schinbein was retained by the plaintiff to calculate the present value of the high and low range of the costs estimated by Ms. Spencer.

[206] The County retained life care planner Eva Madras but did not call her as a witness. Ms. Spencer had prepared a table comparing her recommendations and estimates with those set forth in a November 15, 2013 report Ms. Madras prepared. In those circumstances, the County suggested there was no need to call Ms. Madras. I disagree. Ms. Spencer testified about anticipated evidence. She did not adopt Ms. Madras’ report. Further and notably, Ms. Madras was not made available for cross-examination.

[207] The County properly utilized the report prepared by the life care planner it retained when cross-examining Ms. Spencer and some of the sources on which she relied. In my opinion, the contents of Ms. Madras’ report were not otherwise admissible. Even if admissible, they were not helpful.

[208] I will deal with each category in turn.

[209] The applicable legal principles are not in dispute. Claims dependent on the occurrence of future events or conditions do not need to be proven on the balance of probabilities. Rather, Ms. Kelly must establish a real and substantial risk of future pecuniary loss.[^41]

[210] It is not an all or nothing proposition. The measure of compensation depends on the possibility that Ms. Kelly would have suffered all or some of the projected losses.[^42]

[211] The first category relates to housekeeping and home maintenance. The present values ranged from a low of $169,669 to a high of $371,666.[^43] The County accepts the figure of $139,902. It notes that Ms. Spencer estimated that because of Ms. Kelly’s background, she would spend significantly more time than the average woman on home maintenance and repairs.

[212] The County suggests that the evidence does not support that conclusion. I disagree. As noted, Ms. Kelly intended to enter the teaching profession. She had the inclination and during part of the year, would have had far more time than the average full-time worker, to attend to tasks she will now have to hire someone else to undertake. I accept the low range figure of $169,669.

[213] The second category relates to attendant care and child care. The present values ranged from a low of $6.259 to a high of $6.295 million.

[214] The largest component is attendant care to address Ms. Kelly’s cognitive deficits and the consequences of fatigue. Ms. Spencer estimated such care would be required 13.3 hours per day for fifty weeks and around the clock during two vacation weeks per year.

[215] Ms. Spencer’s estimate also included constant care during periods of transition which she projected would occur once every five years on average.

[216] Not surprisingly, the County submits this item is excessive.

[217] Ms. Kelly’s deficits were identified and commented upon throughout the trial. Ms. Kelly is a paradox. She exudes a desire to be in control. Yet, her limited memory, lack of social skills and fatigue cause her parents and health providers to question Ms. Kelly’s ability to live independently.

[218] Ms. Kelly has not been receiving attendant care. However, she has not lived alone since the accident. Her first roommate was long-time friend Carla Miller. Ms. Miller described their year together as difficult. She said that Ms. Kelly was opinionated, controlling and emotionally unstable.

[219] In a partial agreed statement of fact, other observations of Ms. Miller were noted. She said Ms. Kelly would forget to take her medication if there were changes to her morning routine. She noticed Ms. Kelly slept deeply and often needed to be roused. Without Ms. Miller’s assistance, Ms. Kelly did not eat regularly or well.

[220] Afterward, Ms. Kelly cohabited with her boyfriend Alex Ware: first in Kingston and then in London. Unfortunately, their relationship ended during the course of the trial. Ms. Kelly said that Mr. Ware found her unpredictable and her temper too explosive. While still residing together, Ms. Kelly said the situation was a little awkward. Unfortunately, neither party called Mr. Ware as a witness. I would have benefitted from his more recent observations made over an extended period of time.

[221] Ms. Kelly said that she wanted to try living alone at the end of her current lease but conceded she may need support.

[222] Michael Kelly doubted that his daughter could live alone. However, he also questioned whether Ms. Kelly would accept as much attendant care as the plan contemplates.[^44]

[223] Occupational therapist Cheryl Heard was the source of the attendant care entries in the plan. She has been working with Ms. Kelly since 2011. Ms. Heard said she was concerned about Ms. Kelly’s safety at night. She was not certain that Ms. Kelly would react appropriately in response to a fire alarm or other emergency.

[224] Ms. Heard talked about Ms. Kelly’s continuing struggle to manage time, her tendency to become overwhelmed, her challenges in problem solving and her slow progress in learning life skills such as cooking. However, Ms. Heard said that she has noticed that Ms. Kelly has become more open to suggestions since her break up with Mr. Ware. Mike Kelly said that Ms. Kelly’s cooking skills were showing improvement.

[225] With respect, Ms. Heard’s recommendations are excessive. I accept that Ms. Kelly will require – and will accept – daily attendant care. However, based on what I have seen, heard and read, the number of hours suggested is far too high. I do not believe she needs – or will allow – attendant care for more than a third of what has been recommended.

[226] Ms. Kelly is evolving. She continues to be intelligent and thoughtful. She knows that there are limitations and while the progress is slow, she is embracing strategies that will allow her to make her life all that it can be.

[227] I am also of the view that the real and substantial risk test has not been satisfied in respect of the childcare item. I do not doubt Ms. Kelly’s love of children. Nor do I doubt that but for the accident she would have become a very good parent. In fact, it is for that reason that I reject this part of the claim. In her testimony and with understandable emotion, Ms. Kelly said she did not know how she could care for a child given her circumstances. It is extremely unlikely that view will change.

[228] On account of the second category, I award the sum of $2,086,125.[^45]

[229] The third category relates to aids for independent functioning. The present value of the items included in the plan ranges from a low of $14,178 to a high of $20,319.[^46] The County accepts most of the items but argues that others (a white board and grab bars) are a one-time purchase, that one item (a wheeled cart) is unneeded and that another (a supportive mattress) would have been required in any event due to pre-existing neck and shoulder issues.

[230] In my view, those concerns are fairly taken into account by accepting and awarding the low range number of $14,178 for the third category of items.

[231] The fourth category relates to medical care. The present value of the items included in the plan is $5,173. Those items are not in dispute. The County shall pay that amount.

[232] The fifth category relates to therapy and health maintenance. Some of the items involve an initial cost ranging from $16,997 to $23,168. The present value of the future items included in the plan ranges from a low of $172,052 to a high of $198,074.

[233] The County disputes most of the items. It submits that many of the listed services – cognitive/communication therapy, rehabilitation therapy, physiotherapy, psychological counselling and case management - are not required. The defendant also argues that Ms. Kelly’s active lifestyle would have included a gym membership even if the accident had not occurred.

[234] I disagree. In my view, Ms. Kelly will require the ongoing involvement of the range of health professionals the plan identifies.

[235] Her cognitive, physical and emotional deficits cannot be extinguished but they can, at least to some extent, be managed and minimized. The disciplines are not duplicative but necessary parts of the team approach which is required to address the range of issues Ms. Kelly will continue to face for the balance of her life.

[236] Further, before the accident Ms. Kelly was able to engage in any activity and at any time she chose. The fact that she has been “cleared” to play non-competitive hockey and to downhill ski, does not mean that she will be able to participate regularly, if at all. A gym membership is ideal because it will allow her to exercise if and when she feels able. It is a cost she may well not have incurred in her pre-accident state.

[237] Damages of $20,000 on a current and $185,000 on a future basis are awarded on account of category five.[^47]

[238] Category six involves medications and related supplies. Initial costs of $1,057 are claimed, accepted by the County and awarded.

[239] The present value of the future costs described in this portion of the plan ranges from a low of $128,731 to a high of $171,390.

[240] With the exception of approximately $3,500 relating to facet injection medicine, the County accepts the low range advocated by the plaintiff.

[241] The range of figures provided by the plaintiff is attributable to the fact that it is not known how frequently Ms. Kelly will require ointment and lubricant for her left eye. In my view, an award in the mid-range - $145,000 - is appropriate on account of future costs relating to this category.

[242] Category seven involves medical equipment. An initial cost is claimed ranging from a low of $140 to a high of $280. The present value of the future costs relating to the items in the plan ranges from a low of $41,639 to a high of $49,798.[^48]

[243] Citing pre-accident neck, shoulder, knee and other[^49] problems, the County disputes Ms. Kelly’s claims relating to heating pads, ice packs, a night guard/bite plate and knee braces.

[244] I do not accept that Ms. Kelly’s earlier issues would have necessitated the purchases contemplated by the plan at this stage of her life or with the frequency described in her plan. Ms. Kelly’s future needs are far greater as a result of the April 6, 2009 accident.

[245] The County also submits that funding from the assistive devices program (“ADP”) should be taken into account when determining the amount to be awarded on account of a hearing aid and FM system.

[246] Mr. Madorin fairly conceded that this court has declined to make a deduction on account of government funding in at least two previous decisions.[^50] However, he noted that those cases were decided many years ago and that ADP funding continues to date.

[247] With respect, the cases cited state principles that endure. Public funding may, at any time and whether long-standing or not, end.

[248] In respect of category seven, an award of $140 on account of initial and $41,639 on account of future costs is appropriate.

[249] Category eight relates to transportation. An initial cost of $102 is claimed, accepted by the County and hereby awarded.

[250] The present value of future costs claimed for items included in the plan ranges from a low of $6,393 to a high of $10,906.[^51] The County disputed the item relating to appointments with psychologists. I have already determined that those are necessary and appropriate. The lower range - $6,393 – is hereby awarded on account of future costs relating to category eight.

[251] Category nine relates to continuing education. Initial costs ranging from a low of $11,204 to a high of $11,404 are claimed.[^52] The slightly lower figure is accepted by the County and hereby awarded.

[252] The present value of the future costs of the items included in the plan ranges from a low of $51,375 to a high of $72,350.[^53]

[253] The County accepted all of the items but two. Its submissions with respect to an ergonomic allowance and an FM system mirrored those made and rejected earlier in these reasons.[^54] The additional sum of $51,375 is awarded on account of this category.

[254] Category ten relates to avocation. The present value of the future costs claimed on account of this category ranges from a low of $9,649 to a high of $19,298.[^55]

[255] This item is intended to allow Ms. Kelly to participate in groups and activities with similarly affected persons. That would include, for example, the Brain Injury Support Group.

[256] The County disputes the cost on the basis that the cost would have been incurred in any event because of Ms. Kelly’s various pre-accident interests.

[257] I disagree. The activities contemplated by the plan are ones specific to the injuries Ms. Kelly suffered, the ongoing problems she faces and the support that she will inevitably need. An award of $9,649 for this category is appropriate.

[258] By my calculation, the above amounts aggregate $2,746,704.

[259] Mr. Madorin submitted that, with a few exceptions, the award on account of future care costs should be discounted by a contingency allowance. In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, a twenty per cent contingency was applied to future pecuniary losses despite reservations expressed by Dickson J. in these terms at pp. 249-250:

The whole question of contingencies is fraught with difficulty, for it is in large measure pure speculation. It is a small element of the illogical practice of awarding lump sum payments for expenses and losses projected to continue over long periods of time. To vary an award by the value of the chance that certain contingencies may occur is to assure either over-compensation or under-compensation, depending on whether or not the event occurs.

[260] In Graham v. Rourke the Court of Appeal differentiated between general contingencies which are common to all members of the population and specific contingencies which arise from the plaintiff’s circumstances.[^56] At page 636, Doherty J.A. wrote:

The former type of contingency is not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these contingencies, the trial judge must remember that everyone’s life has “ups” as well as “downs”. A trial judge may, not must, adjust an award for future pecuniary loss to give effect to general contingencies but where the adjustment is premised only on general contingencies, it should be modest.

[261] With the exception of category five, the amounts awarded accorded with the lower range outlined by Mr. Schinbein. In other words, I assumed the frequency of use of a service or of the replacement of a device that was most favourable to the County. In doing so, I took into account general and, to the limited extent they apply given Ms. Kelly’s modest pre-accident medical history, specific contingencies. No further adjustment is justified on the evidence.[^57]

v. Interdependent Claim

[262] Paragraph 15 of Ms. Kelly’s statement of claim alleges:

…that her opportunity to enter into an interdependent relationship has been reduced and if she ever enters into such a relationship, the chances of the relationship lasting have been greatly decreased. As a result…Stephanie Kelly…may suffer a loss of shared family income and other benefits which she would otherwise receive from such a relationship.

[263] Damages for loss of an interdependent relationship are intended to compensate a plaintiff for the “lost opportunity to share household expenses.”[^58] To succeed Ms. Kelly must prove that her ability to form a shared living arrangement was detrimentally impacted by the accident and that damages have been sustained as a result.

[264] In this case, there is evidence to support the conclusion that Ms. Kelly’s ability to enter into or maintain an interdependent relationship was adversely affected by the collision.

[265] However, this case founders on the second element. In Walker v. Ritchie, supra, expert evidence was available which quantified the loss. In Belyea v. Hammond (2000), 2000 NBCA 41, 193 D.L.R. (4th) 476 (N.B.C.A.), Drapeau J.A. concluded at para. 21 that such an award is inappropriate “in the absence of cogent statistical, economic and actuarial evidence.”

[266] In this case, I cannot point to any evidence that would assist me in determining the economic consequences, if any, that Ms. Kelly will suffer. I will not embark on a speculative exercise.

vi. The Family Law Act Claims

[267] Pursuant to s. 61(2)(e) of the Family Law Act, R.S.O. 1990, c. F.3, Mike and Anne Kelly seek an amount to compensate them for the loss of guidance, care and companionship that they might reasonably have received if Stephanie Kelly had not been injured on April 6, 2009.

[268] Once again, quantum, not entitlement, is in issue.

[269] The County concedes that the closeness between parents and child has been adversely affected. However, it submits that a “reasonable” relationship still exists and that some distance was inevitable given Ms. Kelly’s age and stage. An award of $50,000 each was said to be appropriate in the circumstances.

[270] Ms. Bent submitted $75,000 was the proper award for each parent.

[271] For these reasons I agree. I accept that Mike and Anne Kelly would have spent less time with their daughter Stephanie even if the accident had not occurred. However, the accident has limited their time together even more. Every outing is a chore for Ms. Kelly. Her routine is disrupted. Problems arise. She becomes fatigued and irritable. I accept that Ms. Kelly rarely returns to her parents’ home in Kinkora and that she is not always a welcoming or sometimes even responsive, host at her home in London.

[272] That takes me to the quality of the time spent. It is vastly different. Mike Kelly’s testimony concerning a winter trip to Ottawa was illuminating. While fun was had, skating on the Rideau Canal was overdone. Ms. Kelly was so exhausted that she slept for almost twenty four hours straight. Other planned activities were foregone. Expectations were not realized.

[273] The family unit has, to some extent, splintered. The parents have watched a tight group of three siblings transform into a pair of close sisters and a third sometimes on the fringe, sometimes drifting alone.

[274] Ms. Kelly’s survival is cause for celebration. Her herculean struggle to lead a meaningful life is admirable. Ms. Kelly will persevere and so will her parents. They will make the most out of what they have. They will continue to provide life lessons that the rest of us should heed.

[275] But sadness exists. Aspects of a very special relationship have not only been strained, they have been lost forever.

[276] Cases were cited and read. They are illustrative but not determinative. This case is at the high end of the range of reported awards. Mike and Anne Kelly are entitled to compensation in the amounts advocated by their counsel. They are to receive the sum of $75,000 each.

D. Summary and Remaining Issues

[277] For the reasons I have given, I conclude that the County breached its statutory duty and that the County bears sole responsibility for the damages Ms. Kelly and her parents suffered.

[278] Judgment is granted in favour of Ms. Kelly in respect of the following items and, except in the one instance I have identified, for the following amounts:

a. For general damages $325,000;

b. For past loss of income $143,966;

c. For future loss of income the sum of $2,577,561 subject to the downward adjustments outlined in paragraph 201 of these reasons;

d. For future care the aggregate sum of $2,746,704.[^59]

[279] I have awarded compensation to Mike and Anne Kelly pursuant to s. 61(2)(e) of the Family Law Act in the amount of $75,000 each. Judgment shall issue in favour of each of them in that amount.

[280] During their submissions, the parties identified a number of issues that they asked permission to address after the release of these reasons. Those issues relate to collateral benefits, gross up, periodic – or structured – payments, the plaintiff’s claim to a management fee and costs.

[281] I would add one item: prejudgment interest on the amount awarded for past income loss.

[282] Arrangements for a further attendance may be made through the trial coordinator. If counsel agree it is needed, an 8 a.m. teleconference to discuss scheduling issues may also be arranged through that office.

[283] This was a difficult trial - particularly for Ms. Kelly and her parents. While representing his client with vigour, Mr. Madorin demonstrated admirable sensitivity. All counsel served their clients efficiently, fairly and effectively. I commend and thank them.

“Justice A. D. Grace”

Grace J.

Released: July 14, 2014

COURT FILE NO.: 1661/10

DATE: 20140714

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Stephanie Kelly, Anne Kelly and Mike Kelly

Plaintiffs

• and -

The Corporation of the County of Perth

Defendant

REASONS FOR JUDGMENT

GRACE J.

Released: July 14, 2014

[^1]: Municipal Act, 2002, S.O. 2002, c. 25, s. 44(1) and (2).

[^2]: Mr. Catalan is a member of the West Perth volunteer fire department.

[^3]: He was a constable at the time of the accident.

[^4]: Deering v. Scugog (Township), 2010 ONSC 5502 (S.C.J.) at para. 185 aff’d 2012 ONCA 386; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 at paras. 8 and 9; McLeod v. General Motors of Canada Ltd., 2014 CarswellOnt 48 (S.C.J.) at para. 18.

[^5]: Deering v. Scugog (Township), supra note 4 at para. 185.

[^6]: See, for example, Deering v. Scugog (Township), supra, note 4.

[^7]: See, for example, Greenhalgh v. Douro-Dummer (Township). (Ont. S.C.J.) aff’d 2012 ONCA 299.

[^8]: See, for example, Giuliani v. Region of Halton, 2010 ONSC 4630 (S.C.J.) aff’d 2011 ONCA 812.

[^9]: Deering v. Scugog (Township), supra note 4 at paras. 106 and 250.

[^10]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 47.

[^11]: Ibid. at para. 119. The quoted words are drawn from the dissenting reasons of Bastarache J. but, in my view, they are consistent with the reasons of the majority. The court divided on whether the trial judge undertook the required assessment. The majority concluded she did; the minority that she did not.

[^12]: Deering v. Scugog (Township), supra note 4.

[^13]: See, too, Johnson v. Milton (Town) (2008), 2008 ONCA 440, 91 O.R. (3d) 190 (C.A.). For an example of situations which were held not to pose an unreasonable risk to an ordinary driver exercising reasonable caution see Docherty v. Lauzon, [2010] ONSC 1006 (S.C.J.) and Morsi v. Fermar Paving Limited, 2011 ONCA 577.

[^14]: Frank v. Central Elgin (Municipality), 2010 ONCA 574 at para. 10.

[^15]: The decision was affirmed on appeal at 2011 ONCA 812.

[^16]: For other, similar cases see Montani v. Matthews (1996), 29 O.R. (3d) 257 (C.A.), leave to appeal refused [1996] S.C.C.A. No. 395; Bisoukis v. Brampton (City) (1999), 46 O.R. (3d) 417, leave to appeal refused [2000] S.C.C.A. No. 52; MacMillan v. Ontario (Minister of Transportation and Communications) (2001), 24 M.V.R. (4th) 15 (Ont. C.A.), leave to appeal refused [2001] S.C.C.A. No. 348; Johnson v. Milton (Town), supra note 13; Giuliani v. Region of Halton, supra note 8; and Mark v. Guelph (City), 2012 ONSC 3510 (S.C.J.) aff’d 2013 ONCA 536. For cases which are factually dissimilar see, for example, Frank, supra note 14 and Oliver v. McGee.

[^17]: R.S.O. 1990, c. N.1.

[^18]: Deering v. Scugog (Township), supra note 4 at paras. 293 and 297 aff’d 2012 ONCA 386 at paras. 13-15; Giuliani v. Region of Halton, supra note 8 at paras. 170 and 173 aff’d 2011 ONCA 812 at paras. 43-48; Ferguson v. The Corporation of the County of Brant, 2013 ONSC 435 (S.C.J.) at paras. 80-82.

[^19]: He used Engineering Dynamics Corporation’s HVE-Simulation Model Non-Linear (or “SIMON”) program.

[^20]: Mr. Young emphasized that the car was, in his opinion, fully utilizing all available friction. Robert Gilchrist was qualified to give opinion evidence in the areas of transport engineering with expertise in, among other things, human factors. He testified that Ms. Kelly likely tried to steer through the drift when she felt resistance rather than braking.

[^21]: Mr. Catalan was coming from Mitchell, Ontario which is northwest of Stratford. Ms. Kelly was coming from Kinkora which is also northwest of Stratford albeit a little further north and a little closer to the accident scene.

[^22]: The decision was affirmed at 1998 17724 (ON CA), [1998] O.J. No. 5265 (C.A.).

[^23]: In argument, Mr. Madorin mentioned Giuliani, supra note 8 at para. 171.

[^24]: For analogous circumstances see Bisoukis v. Corporation of the City of Brampton, supra note 16 and Mark v. Guelph (City), supra note 16. In my opinion this case is different factually than Giuliani v. Region of Halton, supra note 8 and Deering v. Scugog (Township), supra note 4.

[^25]: Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229. Mr. Madorin submitted the present maximum is $354,000.

[^26]: I had the benefit of evidence from treating physiatrist Dr. Gail Delaney, treating speech language pathologist Stephanie Ellis; rehabilitation therapist Kim Hutcheson – Rehabilitation Therapist; occupational therapists Erin Mara and Cheryl Heard; neurologist Dr. Gordon Brian Young; otolaryngologist Dr. John Yoo; neuro-ophthalmologist Dr. David Nicolle and neuro-psychologist Dr. Susan Pigott.

[^27]: This statement is drawn from a partial agreed statement of fact entered as exhibit 31.

[^28]: These findings are based on a partial agreed statement of facts entered as exhibit 1.

[^29]: He testified on February 24, 2014.

[^30]: Professor Carr calculated benefits at the rate of 12.9% of gross salary.

[^31]: Those are deductions on account of income tax, Canada Pension Plan and employment insurance.

[^32]: He testified on May 15, 2014.

[^33]: Professor Hyatt calculated benefits at the rate of 12% of gross salary. A negative contingency of 14% was applied to take into account voluntary and involuntary factors affecting employability.

[^34]: Professor Hyatt said that according to the Ontario College of Teachers only a small percentage of recent graduates obtained full-time teaching positions during the relevant period.

[^35]: Professor Carr said he used that method to come up with the future income loss using the bachelor’s degree scenario Professor Hyatt had advocated. The present value of the future income loss was said to be $2,551,098. With respect, that does not seem possible.

[^36]: .3% for the first 15 years and 2.5% thereafter.

[^37]: Ligate v. Abick (1996), 28 O.R. (3d) 1 (C.A.); Martin v. Listowel Memorial Hospital (2000), 51 O.R. (3d) 384 (C.A.) at para. 56.

[^38]: The preamble to rule 53.09(1) supports that conclusion. The opening words read:

The discount rate to be used in determining the amount of an award in respect of future pecuniary damages, to the extent that it reflects the difference between estimated investment and price inflation rates, is…

In Giannone v. Weinberg (1989), 68 O.R. (2d) 767 at 777, the Court of Appeal emphasized that the subrule exists to make economic and actuarial evidence concerning future investment and price inflation unnecessary. However, adjustments to the discount rate on account of “other factors” such as “general wage increases over general price inflation” are permitted.

[^39]: Professor Carr did not state the source of the historical statistics on which he relied either in the report that was provided to me as an aide memoire or in his oral testimony.

[^40]: While some submissions were made with respect to management fees, it was my understanding that the parties agree to defer consideration of that issue. The parties have not, as far as I am aware, agreed to periodic or structured payments as permitted by s. 116 of the Courts of Justice Act, R.S.O. 1990, c. C.43. If fairness, they may have deferred any discussion on the point pending release of these reasons.

[^41]: Giannone v. Weinberg, supra note 38; Thornhill v. Shadid (Ont. S.C.J.) at para. 147; Lee (Litigation guardian of) v. Toronto District School Board, [2013] O.J. No. 1157 (S.C.J.) at para. 231; Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.); Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.).

[^42]: Graham v. Rourke, supra note 41, paras. 40-41.

[^43]: The range depends on the frequency of the service.

[^44]: In Morrison v. Greig, [2007] O.J. No. 225 (S.C.J.) at para. 53, Glass J. concluded that while the plaintiff might be “upset with people trying to assist him”, he was not persuaded the plaintiff would not accept the recommended services. In this case, I am.

[^45]: That is 1/3rd of the attendant care costs under the low scenario.

[^46]: The higher number is attributable to the fact that the useful life of each item is uncertain.

[^47]: I have not made any allowance on account of therapy for a “partner” or “family”.

[^48]: The range of numbers relates to differences in frequency.

[^49]: In the context of the claim relating to a night guard/bite plate the County refers to bruxism.

[^50]: MacLean v. Wallace, [1999] O.J. No. 3220 (S.C.J.) at para. 186; Dann v. Chiavaro, [1996] O.J. No. 1912 (Gen. Div.) at para. 76.

[^51]: The range of numbers relates to differences in frequency.

[^52]: The difference relates to the item “books”.

[^53]: The range of numbers relates to a difference in frequency.

[^54]: It objected to most of the ergonomic allowance based on Ms. Kelly’s medical history and submitted that the cost of the FM system should be reduced to the extent of public (ADP) funding that is currently available.

[^55]: The range of numbers relates to a variation in the unit cost.

[^56]: Supra note 41.

[^57]: In Giannone v. Weinberg, supra note 38 at page 774, the Court of Appeal held that the trial judge was wrong to have ignored negative contingencies that were “spelled out in the evidence.” That did not occur during this trial.

[^58]: Walker v. Ritchie, (2005), 12 C.P.C. (6th) 51 (Ont. C.A.) at para. 54.

[^59]: That is the aggregate of the amounts set forth for categories 1 ($169,669), 2 ($2,086,125), 3 ($14,178), 4 ($5,173), 5 ($20,000 current and $185,000 future), 6 ($1,057 current and $145,000 future), 7 ($140 current and $41,639 future), 8 ($102 future and $6,393 future), 9 ($11,204 current and $51,375 future) and 10 ($9,649).