CITATION: Lloyd v. Napanee (Town), 2015 ONSC 761

BELLEVILLE COURT FILE NO.: 0568/03

DATE: 2015 Feb 6

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLIE GAIL LLOYD and JASON LLOYD

Plaintiffs

– and –

DAVID P. BUSH, 818601 ONTARIO INC. c.o.b. as MacDONALD’S PROPANE, THE CORPORATION OF THE COUNTY OF LENNOX AND ADDINGTON, and THE CORPORATION OF THE TOWN OF GREATER NAPANEE

Defendants

R. Steven Baldwin, for the Plaintiffs

David G. Boghosian and Laura M. Day, for the Defendants, Town of Greater Napanee and County of Lennox & Addington

HEARD: October 6 – 10, 14 – 17, 20 – 24 and 27 – 30, 2014 with written submissions by December 19, 2014

tAUSENDFREUND, j.

REASONS FOR JUDGMENT

I. OVERVIEW

[1] On January 3, 2003, at approximately 10:35 a.m., the Plaintiff Leslie Lloyd (“Leslie”), left the home of her in-laws driving her 2001 Hyundai Elantra. She was on her way to pick up her sister-in-law at work, who apparently had fallen ill. Her destination was the Town of Greater Napanee (“Napanee” or “Town”) about 4 kms east along County Road 9 (“Cty Rd 9”), also known as River Road.

[2] The Defendant David Bush (“Bush”) was then driving a commercial tank truck westerly on Cty Rd 9. Leslie had driven about one-half kilometre and partly through an “S” curve, locally known as Rankins Corner, when her vehicle collided with the Bush truck in the eastern half of the “S” curve near the middle of the paved part of Cty Rd 9. The only eye witnesses to this accident were these two drivers. Leslie has no memory of the accident. She was severely injured and was left with permanent disabilities.

[3] At the time of the accident, Cty Rd 9, including the centre and fog lines in Rankins Corner, were snow covered.

[4] The County of Lennox and Addington (“L&A”) maintains ownership and control of Cty Rd 9, yet Napanee is responsible for its maintenance as of January 1, 1998, based on the Ministry of Municipal Affairs Order in Council of January 7, 1997. That includes winter maintenance.

[5] During the first trial in 2009, the Plaintiffs settled their claim with the Defendants Bush and 818601 Ontario Inc. The Ontario Court of Appeal ordered a new trial of the Plaintiffs’ claim against the municipal Defendants, including damages.

[6] At issue in this action are these questions of liability:

a. Are the municipal Defendants liable for the injuries and losses suffered by the Plaintiffs because of the failure to properly maintain Cty Road 9 on the morning of the accident? If so, at what percentage?

b. Was there negligence in the operation of the propane truck by the Defendant Bush? If so, at what percentage?

c. Was there contributory negligence in the operation of the vehicle by Leslie? If so, at what percentage?

[7] Also at issue is the assessment of damages.

II. LIABILITY

(a) The Collision

[8] It is common ground that the accident occurred at or about 10:35 a.m. on January 3, 2003 and that the vehicles collided near the middle of the road in the easterly part of the “S” curve in Rankins Corner on Cty Rd 9.

[9] Leslie was born January 2, 1978. Her husband, Jason Lloyd (“Jason”) was born March 25, 1975. They were married August 5, 2000. Jason’s parents lived just west of Rankins Corner at 806 River Road as of 2000. Leslie was a licensed driver as of age 16 and was familiar with River Road. She and Jason had returned the previous day from a ski vacation and had stayed overnight at the home of Jason’s parents. That morning, Jason’s sister called with a complaint of cramps and requested a ride for medical attention to the Lennox & Addington Hospital in Napanee. Leslie volunteered and left the senior Lloyd residence in her 2001 Hyundai Elantra vehicle intending to proceed east on Cty Rd 9 to Napanee.

[10] As already stated, Leslie has no recollection of the incident. The evidence of her sister-in-law’s telephone call and Leslie leaving in her vehicle to proceed easterly on Cty Rd 9 is that of her husband, Jason Lloyd. The only eye witness with recall is the defendant Bush.

[11] Bush was then 46 years of age. He was proceeding westerly on Cty Rd 9 in a 2001 Freightliner Tri-Axle truck with anti-lock brakes. His truck was loaded with 20,000 lbs of propane. Mr. Bush was an experienced driver and was in the process of making propane deliveries.

The essence of his evidence is as follows:

[12] Earlier that morning, he had left his home at 5:30 a.m. and had driven about 20 km to his employer’s depot north of Kingston. There he picked up the truck and started his delivery route. He proceeded westerly towards Napanee making deliveries along the way. By the time he approached the accident scene, he had covered 95 km and had delivered about 1000 litres of propane. He described the roads along the way to be snow covered and slippery. When he started his delivery route, it was then snowing heavily. Snow continued to fall while he was making his deliveries. The further west he drove and the closer he got to the eventual accident scene, the heavier the snow fall became. He turned onto Cty Rd 9 in Napanee at a point about 4 km east of the accident scene. Cty Rd 9 was snow covered to a depth of 1 – 2 inches. The road was slippery approaching Rankins Corner. His wipers were set on medium and the defroster on high due to the snow fall. His speed was between 60 – 72 km/h. That was slower than his usual and also the posted speed of 80 km/h, due to the road conditions. Approaching Rankins Corner, he thought that he probably had slowed down, but was not certain. He agreed that he was going faster than the advisory speed of 60 km/h as posted on a sign for and approaching Rankins Corner. He followed tire tracks in the snow. He could see neither the centre line nor the fog lines at the edge of the pavement due to the snow cover. As he approached Rankins Corner, Bush attempted to stay as close as possible to the guard rails on his right side. He used these as a visual guide to attempt to remain on his side of the road. He could not tell if he succeeded in that regard as neither the pavement, the centre nor the fog lines were visible.

[13] The easterly curve of Rankins Corner is uphill for west bound traffic. As he proceeded through the east curve, Bush could see a vehicle between the two curves approaching him. It was the first vehicle he encountered on Cty Rd 9 that morning. Although it was but a fleeting glimpse, he felt there was then nothing out of the ordinary with respect to that vehicle. It appeared to be proceeding normally and in control, but perhaps a little fast, in light of the weather and the approaching curve. He conceded that his comment on the speed of that vehicle was but speculation on his part. He then lost sight of the vehicle for a second or two as it disappeared behind trees and bushes blocking his view. When it visually reappeared, now in the middle of the east curve, the vehicle seemed to suddenly lose control and to slide in his direction and towards his side of the road. The vehicle continued to slide towards him at an angle. He applied his brakes and continued to steer in a straight line. He did not lose control. The vehicles collided which resulted in his truck coming to a stop in the south ditch.

[14] He saw no indication that Cty Rd 9 had been plowed, sanded or salted. When he got out of his truck after the impact, he found the road to be snow covered and slippery.

(b) Summarized Evidence of Witnesses as to Weather and Road Conditions

Bruce Desveaux

[15] As of 2003, he had lived on Cty Rd 9 for several years. He drove it daily to and from his work as a dispatcher in a factory north of Napanee. He described Cty Rd 9 generally to be a treacherous road and Rankins Corner to be a slippery curve, depending on the weather.

[16] Mid-morning on January 3, 2003, he was on his way home from work. Cty Rd 9 was then snow packed and slippery. Based on the condition of the road, he took his time.

[17] He was the first to arrive at the accident scene, apparently seconds after the collision. Debris was still moving and the rear wheel of Leslie’s car was spinning in the air. He got out of his car and waved his arms at two approaching vehicles. Each of these cars started to skid, broke traction and fishtailed. Rankins Corner was snow packed and slippery. It made walking difficult. There was no sign of salt or sand. He saw no indication that the road had been plowed nor the presence of a windrow on either side of the road.

Joanne Robins

[18] Ms. Robins was a registered nurse. She lived west of Rankins Corner and travelled eastbound on Cty Rd 9 when she arrived at the accident scene shortly after Mr. Desveaux. She described Cty Rd 9 as having no signs of recent plowing, nor the presence of sand or salt. After getting out of her vehicle to assist those involved in the accident, she and another person at the scene had to help each other while walking back to the accident scene due to the slipperiness of the road. She did not see any lines on the road as it was covered with “slime and slush.”

Robert Martin Castle

[19] In 2003, he was a truck driver who partnered with another witness, John Woolhead, who operated the same truck unit as did Mr. Castle. They exchanged the tractor/trailer unit at the home of Mr. Woolhead daily from Monday to Friday. Mr. Woolhead resided on Cty Rd 9, west of Rankins Corner.

[20] That morning, Mr. Castle drove the 53’ trailer westerly along Cty Rd 9 between 10:00 and 10:30 a.m., as was his custom. He found the road to be snow covered, hard packed and very slippery. He saw no line markings due to the snow cover. Upon approaching Rankins Corner, he had reduced his speed to 15 – 20 km/h due to the slippery condition of the road. He continued through the accident scene, but did not stop, as he felt other cars might not be able to stop without hitting him. The snow cover on the road was such that he saw no bare spots. He continued westerly along Cty Rd 9 to the residence of John Woolhead.

John Woolhead

[21] At about 11:00 a.m. that day, he drove his truck easterly on Cty Rd 9. The OPP were, by then, at the accident scene. Cty Rd 9 was snow covered. He saw no line markings due to the snow cover or any evidence that the road had been plowed or sanded.

[22] Although it had snowed earlier in the day, it had stopped by the time he drove along Cty Rd 9. He did not slip or slide while travelling along that road that morning.

Jason Lloyd (Plaintiff)

[23] The day before, he and Leslie had returned from a ski trip. They stayed overnight at his parents who resided about 500 metres west of the eventual accident scene.

[24] On January 3, 2003, he received a call from his sister who was then at work. She complained of cramps and asked for a ride to the hospital. Both his parents had left for work early that morning. He and Leslie were alone in his parents’ home. Leslie was familiar with Cty Rd 9, including Rankins Corner. She volunteered to drive. He did not see her leave. It was snowing that morning and the road was snow covered. Their car had been parked outside all night in his parents’ driveway.

Sam Lloyd (Jason’s father)

[25] He and his wife left for work at about 6:00 a.m. that morning. It was snowing at the time with about “1 inch or so” of snow on the ground. It appeared to him that the plows had not been through Cty Rd 9 by then.

Arlene Lloyd (Jason’s mother)

[26] She confirmed her husband’s evidence that they both had left for work at about 6:00 a.m. that morning and that it was then snowing. Their driveway had a significant amount of new snow. She and her husband drove to work carefully that morning due to the weather conditions.

Brian Waite

[27] As of the date of the accident, he had lived for about 9 years on the north side of Cty Rd 9 in the middle of Rankins Corner. That day, he was home from his regular employment and was undertaking renovations at his house. That caused him to drive into Napanee to get supplies. It was mid-morning. He was uncertain of the exact time. On his 10 minute drive into town, it was snowing with the wind blowing snow across the road. He saw some bare spots on the pavement.

[28] On his return trip home, he followed a plow. Its wheels occasionally were on the centre line when not meeting oncoming traffic. It was plowing snow and depositing material. His observations of the road then were similar to what he had experienced on his drive into Napanee, namely that the road, including the centre line, was covered in snow, but was bare in spots.

[29] Shortly after having arrived home, he realized that he needed more supplies. He decided to return to Napanee. He then saw that an accident had occurred, apparently minutes earlier. The evidence is unclear how long he had been home by then. Initially, he stated it was about 20 minutes, but later noted that it was about 5 minutes. By then, a further 1 – 2.5 cm of new snow had accumulated on the road. I find that he likely had been at home about 15 – 20 minutes when he noticed that an accident had occurred in Rankins Corner. With respect to the snow accumulation which he thought was between 1 – 2.5 cm during the 15 – 20 minutes spent from the time of his arrival at home to when he noticed an accident had happened and his stated observation that it snowed heavily during his attendance at the accident scene, he nevertheless agreed that photos of the vehicles at the accident scene showed signs of only little snow accumulation.

[30] He walked to the scene and arrived as the OPP was pulling in. He saw no signs of sand or salt on the road. He spoke to the OPP and then to his friend, Vern Amey, whom he knew to be the Road Superintendent for Napanee. It was then snowing heavily. He had not found the road to be slippery when walking to the accident scene.

[31] His recollection was that there had been little snow accumulation between 6:00 a.m. and the time of the accident at or about 10:30 a.m.

Vern Amey

[32] He had been the Road Superintendent for Napanee for about two years as of the date of the accident.

[33] I will now review his observations of the road conditions on the morning of the accident. Later I will return to his evidence as it pertains to the general winter operations of Napanee and what was undertaken in that regard on the day of the accident.

[34] His home was then on Cty Rd 9 west of Rankins Corner.

[35] On January 3rd at 4:00 a.m., he heard from his home a noise along Cty Rd 9 which he thought might be a plow. In the absence of more detail relating to this piece of the evidence, I consider it not to be helpful.

[36] On his way to work along Cty Rd 9 at 6:00 a.m., snow was falling and blowing and Cty Rd 9 then had a snow cover of about 2 – 3 cm. As he saw no signs that Cty Rd 9 had been plowed, sanded or salted and as he expected the road curves to become slippery if not treated, he called Doug Abrams, one of the Town’s plow operators, to attend to Cty Rd 9.

[37] He had proceeded to the accident site in his official duty as Road Superintendent. He expected to assist with traffic control, if required, and to inspect the road condition.

[38] As had been the case on his way to work along Cty Rd 9 at 6:00 a.m., he saw no signs of plowing, sanding and salting as he drove to the accident scene at 11:00 a.m. When he walked through the accident scene, he found the road surface to be slippery.

[39] He agreed that he would have expected plow operations along Cty Rd 9 to have left a windrow of accumulated scraped snow from the road along each shoulder of the road. He also agreed that the photos of the accident scene showed no signs of the presence of such windrows.

[40] The Fire Chief was present at the accident scene. At Amey`s request, the Fire Chief arranged for a single axle plow to attend at the scene. As the OPP had closed the road, the plow came to a stop at the east end of the accident scene, turned around and left. I accept that the photos of the accident scene reflect the fact that this had occurred.

[41] He was at the accident scene for 2 hrs. As he had a personal connection with Leslie Lloyd through his own daughter, he was emotionally upset at what he witnessed. He made no notes of his observations that morning.

Constable Evans

[42] Constable Evans is an OPP officer. When he came on duty at 7:00 a.m. on January 3, 2003, he noted that there was a light snow fall, the temperature was -5°C and the roads were snow covered.

[43] At 10:38 a.m., he received a call to attend the accident scene. Proceeding westerly along Cty Rd 9, he found the road condition to be hazardous and that his cruiser was slipping. The distance on Cty Rd 9 to the accident scene from Centre Street in Napanee was about 5 km. He arrived at 10:42 a.m. He requested the attendance of an ambulance and fire truck.

[44] He closed the road. When walking on the road, he found it to be snow packed and slippery. He saw no indication that the road had been plowed. In addition, he saw no signs of the presence of salt or sand, but noted that it could have been covered by snow. Prior to his arrival, there had been a minimal amount of snow fall, but enough to have made the roads treacherous. He noticed no signs of snow build-up such as windrows on either side of the road.

[45] On his way to the accident scene on Cty Rd 9, he passed other vehicles. He had his lights on. He went faster than he normally would have wanted to go. He recalled that his heart “was in his mouth” and at times, his car slipped. He had found it to be a stressful drive based on the road conditions.

[46] He left the accident scene and returned at 12:14 p.m. with a camera. He then took photos of the scene. These were entered collectively as Exhibit 9.

Constable Ball

[47] Constable Ball is an OPP officer. On January 3, 2003, he lived on Cty Rd 9 about 5 km west of the accident scene which he described to be about 3 km west of the start of Cty Rd 9 in Napanee at Centre Street.

[48] He left home at 5:45 a.m. and drove easterly on Cty Rd 9 to the detachment for the start of his shift at 6:00 a.m. He recorded in his notes that it was then approximately -3°C and not snowing. He described Cty Rd 9 then to be snow covered with some areas being “track bare.” By that term, he meant that some parts of the travelled portion of the road had bare pavement. He had no recollection of seeing a snow plow or signs of salt or sand at that early time of 5:45 a.m.

[49] At or about 10:00 a.m., he had occasion to drive from Napanee westerly along Cty Rd 9 to his home. On his return to Napanee, he drove through Rankins Corner about 10:30 a.m. There was snow on the road. He had no recollection of the road being plowed or of seeing a plow. He had no driving issues in negotiating Rankins Corner.

[50] He and Constable Evans were in their respective cruisers and had met in Napanee when he received a call at 10:38 a.m. about an accident on Cty Rd 9. Both proceeded to the scene in their cruisers. On Cty Rd 9, he was driving faster than the speed limit of 80 km/h and suspected that he may have been driving about 100 km/h. He had slowed his speed by the time he approached the accident scene at Rankins Corner. He did not have any problems with traction, slipping or sliding on his way to the scene. He had no recollection, one way or the other, of signs of plowing, sanding or salting.

[51] He agreed that the accident probably happened between 10:30 a.m. and 10:38 a.m. when he received the call. He arrived at the scene at 10:42 a.m.

[52] He prepared a Motor Vehicle Accident Report in which he recorded that it was snowing at/or about the time of the accident and that the road surface had a packed snow cover.

(c) Weather Condition

[53] Dr. James Young and Bryan Smith testified on the weather affecting Cty Rd 9 on January 3, 2003. Both were qualified to give opinion evidence on this subject. Their evidence was substantially similar. Based on their opinions and the observations of the weather given by the various witnesses referred to above, I find that the weather conditions of Cty Rd 9 on January 3, 2003 were as follows:

a. Light snow accumulation of about .4 – .5 cm/h starting shortly after midnight and continuing until the time of the accident at about 10:30 a.m. The snowfall abated somewhat between 6:00 a.m. and 10:00 a.m., but then increased for about 45 minutes to one hour.

b. The total snow accumulation as of about 10:30 a.m. was in the range of 2.5 – 5 cm.

c. The air temperature rose from -8°C at midnight to -5°C at 10:30 a.m. and the road temperature was in the range of -5°C to -1°C at 10:30 a.m.

d. The wind was from the northeast at 20 – 25 km/h with no gusts at the time of the accident.

NAPANEE’S WINTER MAINTENANCE OPERATIONS

Bill Docteur

[54] He was the night patrolman for Napanee. His duties during the winter season were to monitor weather and road conditions.

[55] He had no recollection of his actions on January 3, 2003. It was his custom to maintain a diary of his activities and his observations. The original could not be located. A copy of his diary page for January 3, 2003 was tendered into evidence as a business record marked Ex.47. This indicated that he called the Road Foreman, Ron Vankoughnet at 3:35 a.m. to advise it was snowing and the roads were then snow covered. He made a further note at 7:00 a.m. that the temperature was -6°C, that it was overcast and snowing and that the roads were snow covered, but bare in spots.

Ron Vankoughnet

[56] He was the Road Foreman responsible for all plow operations.

[57] He received a call that morning at 3:30 a.m. from the night patrolman, Bill Docteur, advising of snow accumulation on the road. He called the plow operators to be out at 4:00 a.m. Thirteen operators reported. It was his custom to maintain two diaries in which he made entries on a regular basis. He was unable to produce the originals. Based on excerpts of those diaries for January 3, 2003, he noted that it was -7°C as of 4:30 a.m. He also noted that there was light snow all day with a little wind.

[58] He expected the plow operators to plow and spread a 3:1 sand/salt mixture.

[59] He noted that as of 4:00 a.m., there was a snow accumulation of 2 cm.

[60] The plows were designed to scrape to pavement level, although some snow residue mixed with salt was expected to remain on the road surface. The plows spread the 3:1 sand/salt mixture to create a salt saturated water solution called brine. With multiple applications of the sand/salt mixture, he would expect the roads to be scraped with brine remaining. The objective of such plow operations is to achieve bare or centre-bare roads with the centre line visible.

[61] Cty Rd 9 was then the regular route for plow operator Wayne Dixon. Doug Abrams, another plow operator, did not have Cty Rd 9 as his regular route until 2004 or 2005.

Doug Abrams

[62] As of 2003, he had been a plow operator for Napanee for five years. Prior to that, he had 26 years’ experience with the County of L & A as a plow operator and then as a maintenance foreman.

[63] On January 3, 2003, he was called out to plow. He made no notes, kept no diary and testified based only on his unrefreshed memory.

[64] Cty Rd 9 was then his regular route. His evidence of what he did that morning as a plow operator was based on the fact that it was his regular route. This gave him the recall on which he relied. I note that Vern Amey, the Road Superintendent and Ron Vankoughnet, the Road Foreman stated that Cty Rd 9 was not Abrams’ regular route in 2003.

[65] Abrams stated that at 5:30 a.m. that morning, he plowed, salted and sanded Cty Rd 9 westbound through Rankins Corner and at 6:00 a.m. eastbound on Cty Rd 9. On his first trip along Cty Rd 9 at 5:30 a.m., there were no signs that the road had been plowed or sanded.

[66] Rankins Corner was wind sheltered and for that reason, would likely not be much affected by an east wind in terms of blowing snow. Based on his experience and assuming effective application of a 3:1 sand/salt mixture, he would expect Cty Rd 9 to be centre-bare, with other bare patches.

[67] The plow which he operated scraped directly on the asphalt road surface.

Wayne Dixon

[68] Mr. Dixon had worked as a municipal plow operator for 22 years as of 2003. The last five years prior to 2003 were for the Town of Napanee.

[69] He testified that he plowed, sanded and salted Cty Rd 9, including Rankins Corner, a total of seven times that morning prior to the accident. Based on that number of applications, he agreed that the presence of a sand/salt mixture would be obvious at Rankins Corner. He stated he came upon the accident scene in Rankins Corner at about 1:00 p.m. on January 3, 2003.

[70] During the course of his cross-examination, it became apparent that he had testified about his plowing activity on the day of the accident based entirely on a statement he signed on February 14, 2006. He had reviewed that statement prior to his testimony. He agreed that not only did he not have a good memory, but that in fact, he had no memory at all of his activity on January 3, 2003. When he was asked about the evidence he gave during the first trial of this matter in 2009, he could not recall the questions then put to him or the answers he then gave although he recalled that he did then testify. He stated that he was “mixed up” when he testified in 2009.

[71] On the basis of his admission that his evidence was based entirely of the note he signed in 2006 and that he had no memory at all of his activity on January 3, 2003, I find that it would be unsafe to accept his evidence of his activity that day and I decline to do so.

WINTER MAINTENANCE STANDARDS

Stephen Roberts

[72] He is the Manager of Roads & Bridges for the County of L & A.

[73] As of January 1, 1998, the responsibility for road maintenance was transferred from L&A to Napanee. That included winter maintenance. L&A, however, maintained ownership of the roads. That included Cty Rd 9.

[74] Rankins Corner, the site of this accident, had a speed advisory sign posted indicating 60 km/h. Speed advisory signs such as this are based on the Ontario Traffic Manual and are used where the road alignment cannot accommodate the posted or designed speed which, in this case, was 80 km/h. It is a local advisory and not a reduced speed limit. At Rankins Corner, this sign was posted as it was an “S-curve” with an upward elevation for westbound traffic in the east curve.

[75] Generally, including Rankins Corner, where a speed advisory was posted, special maintenance practices and procedures were required. Cty Rd 9 was one of several higher priority roads as dictated by L&A’s winter maintenance standards and staff familiarity with local needs and conditions. Mr. Roberts expected these sections of county roads having a special speed advisory would benefit from and receive special procedures in the context of a winter weather event.

[76] After January 1, 1998, L&A did not investigate Napanee’s winter maintenance operation.

[77] The applicable winter maintenance minimum standards By-law 2654/97 in effect in January 2003 states that unless there is more than 10 cm of accumulated snow, Napanee is not obligated to undertake any winter maintenance programs. However, exceeding these minimum standards was routine for L&A and Napanee.

[78] He stated that a snow packed road, especially in a curve with a speed advisory, presents as potentially dangerous. It was therefore desirable that Napanee responded quickly, as resources permitted.

Vern Amey

[79] As stated, he was the Roads Superintendent for the Town of Napanee as of January of 2001.

[80] Napanee used a 3:1 ratio of sand to salt on Cty Rd 9 as it did on all of the other county roads it maintained and had done so for many years. As he stated, it had “proven to do the job” for us. The segment of Cty Rd 9 in question had an annual average daily traffic count volume of about 1500 vehicles.

[81] In his view, there was a concern with using a straight salt application on county roads based on the risk of re-freeze once the salt/brine had reached the melt stage. That was due to the relatively lower traffic volume on county roads compared to the higher traffic count roads in the downtown area of Napanee which had been treated with straight salt as of 1978.

[82] The minimum maintenance standard by-law 2654/97 for L&A was in effect as of the date of the accident and that was the by-law which Napanee then followed.

[83] Although this by-law provides that there was no obligation on the Town to start plowing unless the snow accumulation had reached 10 cm, Napanee did not rely on it. It followed a policy to send plows out if there was snow accumulation between midnight and 4:00 a.m. and to continue plowing until the snow was cleared. At the beginning of every winter maintenance season, he and the winter maintenance staff had a meeting to review the routes and application rates. In his view, hills and corners were considered “hot spots.” These were “common knowledge” to his operators. He relied on their experience to adequately treat these “hot spots.” No specific instructions in that regard were given to any of his plow operators. He felt they were all sufficiently experienced. He did not elaborate on what might constitute “adequate treatment for these hot spots.”

Daniel Doner

[84] He was called by the Plaintiffs and was qualified to give opinion evidence on appropriate municipal winter road maintenance practices and procedures as of 2003 and to comment on winter operations performed by the municipal Defendants on Cty Rd 9.

[85] He addressed the issue of the plow blade by stating that it is designed to scrape down to the surface of the pavement.

[86] “Plow shoes” are placed behind the plow blade at 1 cm above the asphalt. In the face of an obstruction, these plow blades are designed to instantly pick up the plow blade and carry it momentarily over the obstruction.

[87] In his view, the operations of plowing and the application of salt or a sand/salt mixture would have been effective in removing snow from Cty Rd 9 on the day in question prior to the accident at 10:30 a.m.

[88] Assuming at least three passes by plows prior to the accident and reviewing the Exhibit 9 photographs of the accident scene, these photos did not reflect his expected condition of the road. He would have expected to see evidence of a windrow on both shoulders of the road. There was no sign of such windrows. He would also have expected to see an indication of material on the road and an amount of brine. He saw no indication of either in the photographs.

[89] The assumed temperature of -6°C at 6:00 a.m. and -5°C at 10:30 a.m. were perfect for effective straight salt application that day. If applied, he would have expected the road to be centre-bare. Salt applied by a chute along the centre of a straight part of the road would create an amount of brine initially and work its way to the shoulders. On an elevated curve, he would expect the salt to be dropped on the higher side of the road with the plow driving partially on the shoulder. That would allow the eventual brine to flow down to the middle of the road. Brine is a liquid formed by the salt breaking down when it makes contact with the snow. Once brine is on the road, it is easier for a plow to lift and plow it off.

[90] In his view, the application of salt and/or salt/sand mixture on Cty Rd 9 would have been effective in removing snow from the road on the day in question prior to the accident. In examining the photograph, Exhibit 9 showing Cty Rd 9 at the accident scene, he would have expected to see brine in the road. He did not.

[91] He was asked about the Ministry 700C guideline for MTO. As the evidence indicates that Napanee was not bound to follow this guideline and in the absence of any evidence that Napanee, in fact, adopted it as a guideline, in my view, it has no application to these facts and I will not consider it.

David Bender

[92] He was called by the Plaintiffs and qualified to give opinion evidence on winter maintenance treatment of roads by municipalities. He stated that -7°C and rising is a perfect temperature range for the application of salt to roads to create brine.

[93] At least centre-bare road conditions allow drivers the ability to maneuver the vehicle on the road.

[94] In his opinion, it is probable this accident could have been avoided by the drivers of the Bush and Plaintiff vehicles, if the centre line had been visible to them and if there had been at least a centre-bare wet pavement surface to provide reasonable traction for the left side tires of these two vehicles.

[95] He agreed that the response time for the beginning of the winter maintenance operations at 4:00 a.m. was appropriate.

Tim Leggett

[96] He was called by the municipal Defendants and was qualified to give opinion evidence on winter road maintenance, practices and procedures for 2003.

[97] He relied upon the opinion of Dr. Young regarding the weather conditions for Cty Rd 9 on January 3, 2003, namely that:

a. Air temperature at midnight was -8°C and rose to -5°C as of 10:30 a.m.;

b. Snow accumulation as of 10:30 a.m. was approximately 2.4 to 2.6 cm; and

c. The snow fall rate as of 10:30 a.m. was approximately 0.15 cm/h.

[98] An assumed temperature range of -10°C to -1°C is favourable for salt application as part of winter road maintenance. He agreed that salt would have been effective that day based on the assumed weather conditions.

[99] Leggett assumed that Napanee had completed three winter maintenance passes to Rankins Corner between 4:00 a.m. and 10:30 a.m. In his opinion, this would have been an impressive frequency of treatments, given that Cty Rd 9 was considered a Class 4 road, based on the Ministry of Transportation winter maintenance classifications.

[100] He explained that the purpose of salt was not to melt snow, but to create a brine which then helps to prevent the snow from bonding with the road. Sufficient traffic volume would then be needed to break up the snow so as to then be more easily removed with plowing activity.

[101] In his opinion, the blade on a snow plow was not expected to scrape down to the surface of the asphalt. It was expected to float at the setting of 3/8” to ½” above the road surface. That opinion does not comport with the Doner opinion and the evidence of Abrams, Amey and Ron Vankoughnet, the Napanee employees, all of whom stated that blades on municipal plows were designed to scrape directly on the asphalt surface of the road. On that point, Mr. Leggett acknowledged that he had no experience with plow settings and its maintenance.

[102] Based on his assumption that the plow blade would float about ½” above the road surface, Leggett did not expect a plow to scrape off all of the snow. Therefore, he expected a snow pack to remain on the road after a plow had passed. For that reason, he stated, one could not see the applied sand and salt except where the surface was disturbed.

[103] Based on the assumption that there had been at least three passes by a plow at the accident scene on Cty Rd 9 between 4:00 a.m. and 10:30 a.m., he found that information difficult to reconcile with the actual road condition. He would have expected more visual evidence of sand at the accident scene than what is apparent on the photos marked Exhibits 9 and 15. He agreed with David Bender that the presence of some sand is evident in the tread marks shown in the photos Exhibit 9A and 15.

[104] When asked about Vern Amey’s evidence that at 6:00 a.m. he saw no signs of sand and salt or signs that Cty Rd 9 had been plowed when Amey drove into Napanee that morning, Leggett found it difficult to reconcile Amey’s observation with the assumption that the road had been plowed between 4:00 a.m. and 6:00 a.m.

[105] Also based on the assumed three plow passes that morning prior to the accident, he would have expected those present at the scene shortly after the accident, such as Evans, Ball and Amey, to have commented on the presence of sand on the road and signs that it had been plowed. That was not so.

[106] He agreed with the Doner and Bender opinions that applications of straight salt probably would have resulted in centre-bare conditions on Cty Rd 9.

[107] He offered no opinion whether the accident could have been prevented if centre-bare conditions had been achieved.

ACCIDENT RE-CONSTRUCTION

Constable Prent

[108] He carried out a technical traffic collision investigation

[109] Cty Rd 9 at Rankins Corner was paved to a width of 7.3 m with an unpaved gravel north shoulder of 2.07 m wide. The pavement was marked with a solid, single yellow line and fog lines on the edge of the pavement.

[110] The accident was in the east curve of Rankins Corner. For westbound traffic, this curve was banked at an upward elevation of 3%. It was located 3.5 km west of the start of Cty Rd 9 at its intersection with Centre Street in Napanee. The speed limit was 80 km/h with a yellow advisory speed sign approaching the S-curve and marked at 60 km/h.

[111] Cst. Prent measured the travelled roadway as having a co-efficient of friction at 0.24 and 0.25 which he noted to be consistent with a snow packed road.

[112] The truck and the car were both located in the south ditch. The 2001 truck was equipped with ABS brakes.

[113] He noted the following details re: the car:

• centre console shift in “D”;

• wiper setting – high;

• heat – on hot;

• windshield defrost setting – high

• seatbelts – sign of friction, consistent with driver having used it at time of impact;

• four winter tires, all inflated consistent with ratings on tires;

• took photo of the rear under carriage of the car. It had no signs consistent with having caused gouging in the asphalt; and

• noted gouge and scratch marks in the westbound lane about 1 m north of the centre line. These marks appeared to look fresh to him. He made this observation on January 6, 2003.

[114] Cst. Prent was qualified to give opinion evidence based on the data he collected at the accident scene. In his view, the gouge and scratch marks were caused by the impact of these two vehicles. These gouge and scratch marks were located in the westbound lane. Based particularly on the location of these gouge and scratch marks and the location of the debris in the westbound lane, Cst. Prent concluded that prior to impact, the Plaintiff vehicle had partially crossed the centre line into the westbound lane.

Tom Prescott

[115] Each side called an expert on the issue of accident re-construction, namely Tom Prescott for the Plaintiffs and Tim Leggett for the municipal Defendants.

[116] Based on the Bush evidence as to his own estimated speed and his observations of the approaching Plaintiff vehicle, Prescott stated that the Bush vehicle was moving at a speed of 64-72 km/h and the Plaintiff vehicle at 40-60 km/h, both just prior to impact. He concluded that the speed of each of these vehicles was not a factor in the cause of this collision.

[117] I did not find Prescott’s evidence and opinions regarding the location of the debris and the pool of red fluid on the road as helpful in identifying the probable impact location. Accordingly, I will disregard that part of his evidence.

[118] He considered the scratch and gouge marks located in the westbound lane. He felt that the gouge marks had a dated appearance and therefore, likely pre-dated this accident. The scratch marks in the pavement appeared fresh, but could have been caused by a snow plow. However, he agreed that both gouge and scratch marks can assist and even be determinative of the point of impact. He agreed that if these gouge and scratch marks, in fact, were caused by the impact of these vehicles, then one-half of the Plaintiff’s vehicle would have been in the westbound lane and the left wheels of the Bush truck may have been partially over the centre line. He further agreed that the scratch marks were parallel to the expected direction of vehicular traffic in the westbound lane.

[119] Based on the Bush evidence that he saw the Plaintiff vehicle before it disappeared momentarily from view behind trees and bushes before it entered the eastern part of the S-curve, he concluded that it would have taken 3.6 sec from that point to impact.

[120] In the absence of any evidence of the movement of each of these two vehicles other than the testimony of Bush, Prescott accepted that upon re-entering Bush’s line of sight, the Plaintiff vehicle was then in the course of sliding toward Bush. He agreed, however, that this was an “off-set” or “overlap” collision, meaning that 1/2 to 2/3rds of the left side of the Plaintiff vehicle made contact with the left 1/2 front of the Bush truck.

[121] He opined that the Bush truck would have been visible to Leslie just as she was entering the downhill curve. As the centre and fog lines all were likely snow covered, it likely would not have been visually clear to Leslie exactly where, in relation to the centre line, the Bush truck was driving. Only a slight steering or braking action by Leslie on the slippery road surface would have caused her vehicle to slide. He acknowledged that absent any braking or steering action, the road conditions and speed by themselves would not have caused the Plaintiff vehicle to slide.

Tim Leggett

[122] Based on the damage these vehicles sustained, Leggett determined that this accident was an “off-set, head-on” collision. The reference “off-set” meant the vehicles did not collide “headlight-to-headlight,” but rather, 1/2 to 2/3rds of the left front of the Lloyd vehicle struck the 1/2 left front of the Bush truck, head-on. This is consistent with Prescott’s conclusion regarding the head-on nature of the collision.

[123] Although there were some concerns about the detail of his review of the available evidence leading to his opinions, I accept Leggett’s opinion that the point of impact of these vehicles was likely at the location of the gouge/scratch marks located about 60 cm from the centre line in the westbound lane. This would mean that the left side of the Bush truck was on the centre line with 2/3rds of the Lloyd vehicle in the westbound lane.

[124] He stated that the nature of this collision did not permit him to comment on the exact speed of each vehicle at the time of impact. It did not appear that either vehicle was travelling too fast. In his view, this was not a “speed case.”

[125] He agreed that any braking by the Plaintiff of her car could have caused it to lose control. In that event, and in the absence of ABS brakes, it would have caused the Plaintiff vehicle to diagonally enter the other lane. That would have caused the vehicle to continue at an angle to the point of impact, which did not occur. It was, therefore, his view that the brakes did not cause the Lloyd vehicle to have entered the westbound lane.

[126] In his opinion, the Lloyd vehicle proceeded through the curve without a problem. That, however, is clearly contrary to the evidence of Bush. Leggett agreed that the Plaintiff would have either applied the brakes or steered in her attempt to avoid the imminent collision. He did not challenge Prescott’s opinion that a minor adjustment of the steering wheel in the normal course of negotiating the curve would have resulted in the Lloyd vehicle losing control. He did not contradict the further opinion of Prescott that a snow obscured centre-line was at least part of the cause of impact. In fact, Leggett offered no opinion as to the cause of this collision.

ANALYSIS

Applicable Test of Liability

[127] Liability for municipal highway non-repair, including allegations of negligent winter maintenance, stands to be determined pursuant to the provisions of Section 44 of the Municipal Act, 2001, S.O. 2001, c. 25. It came into force January 1, 2003, and was in effect as of the date of this accident.

[128] The relevant provisions of Section 44 are as follows:

Maintenance

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

Liability

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

Defence

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

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

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

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

[129] Municipal liability for highway non-repair under s. 44 of the Municipal Act, 2001, is a two part test:

a. The onus rests with the Plaintiffs to show that a condition of non-repair caused or contributed to the Plaintiffs’ injuries and damages;

b. If the first part of the test is satisfied by the Plaintiffs, the onus then shifts to the municipality to show that it undertook reasonable efforts to maintain the roadway, despite the fact that a condition of non-repair had arisen.

Vancouver v. Cummings (1912), [1912 21 (SCC)](https://www.canlii.org/en/ca/scc/doc/1912/1912canlii21/1912canlii21.html), 46 S.C.R. 457

McLeod v. General Motors of Canada Ltd. [2014 ONSC 134](https://www.minicounsel.ca/scj/2014/48), [2014] O.J. No. 26 at paras. [18 and 19](https://www.minicounsel.ca/scj/2014/48) (S.C.J.)

[130] The principles governing the application to address road winter conditions are helpfully summarized by Howden J. in Thornhill (Litigation Guardian of) v. Shadid 2008 CarswellOnt 517 (S.C.J.) at para. 18:

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

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

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

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

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

[131] Whether a condition of non-repair exists is to be judged from the stand point of a reasonable and prudent driver.

Morsi v. Fermar Paving Ltd., [2011] O.J. No. 3960 (C.A.)

[132] The standard is not one of perfection, merely reasonableness.

Frank v. Central Elgin, [2010 ONCA 574](https://www.canlii.org/en/on/onca/doc/2010/2010onca574/2010onca574.html), [2010] O.J. No. 3736, at para.12

ROAD CONDITION – SUMMARY OF EVIDENCE

Winter Maintenance by Napanee

[133] Light snow started to fall at about midnight. Night patrol called Ron Vankoughnet, the then Public Works Foreman, at 3:35 a.m. to advise that winter maintenance operations were needed. Ron Vankoughnet called plow operators out for 4:00 a.m. Thirteen operators reported.

[134] Ron Vankoughnet and Vern Amey stated that Cty Rd 9 was the regular route of Wayne Dixon. During the course of his evidence, it became apparent that he had kept no notes and had no memory of his activity on January 3, 2003. I conclude that his evidence is of no assistance regarding his plowing activities that day.

[135] Doug Abrams was another Town employee who had no notes of his activities that day. His evidence was based entirely on his stated recollection. He was certain that Cty Rd 9 was then his regular route. That was contrary to the evidence of Ron Vankoughnet and Vern Amey, both of whom stated that it was then Dixon’s regular route. I find this to be the case.

[136] Doug Abrams testified that he plowed and applied a mixture of sand & salt in a westbound direction at 5:30 a.m. on Cty Rd 9 and again eastbound through Rankins Corner at 6:00 a.m.

[137] Doug Abrams did not have the benefit of any notes to refresh his memory regarding his plow operations that morning, some 11 years ago. I am skeptical of the soundness and reliability of his stated recollection. Accordingly, I place little weight on it.

[138] Vern Amey drove to work through Rankins Corner shortly after 6:00 a.m., in an easterly direction. He noted that the road was snow covered and that there was no sign of the road having been plowed or that a sand/salt mixture had been applied. He stated that Wayne Dixon had been expected to do two runs that morning on Cty Rd 9. That should have taken him about 4 – 5 hours, depending on the amount of snow accumulation. I have no reliable evidence that this actually occurred. The only clear evidence on plow operations that morning and which I accept is that at or about 10:00 a.m., Brian Waite followed a plow westerly on Cty Rd 9.

[139] The plows were supplied with a 3:1 mixture of sand and salt. Except for its main streets in town where only salt was used, the 3:1 mixture had been in use for a number of years by Napanee for the rest of its roads, including Cty Rd 9.

[140] L&A had maintained detailed records of its winter maintenance operations. No such records were kept by Napanee after January 1, 1998 when it took over the maintenance of the County’s roads, including Cty Rd 9. Consequently, Napanee was unable to provide any records or documents on its winter maintenance operations for January 3, 2003. Specifically, the evidence indicated that

a. if Wayne Dixon maintained a diary, it was missing;

b. Doug Abrams maintained no diary;

c. the original diary and daily report of Ron Vankoughnet was missing;

d. plow operators were not required to maintain a detailed log of their plowing activity;

The evidence of Napanee regarding its winter maintenance operations on January 3, 2003, was essentially based entirely on the stated recollection of its employees.

Observations of the Condition of Cty Rd 9

[141] Based on the evidence of the weather experts, Bryan Smith and Dr. James Young, I find that light snow started to fall after midnight until about 10:30 a.m. at a rate of about 0.5 cm per hour. At the time of the accident, the total snow accumulation was in the range of 3-5 cm. The air temperature at a low was -8°C during the night and rose to about -5°C at the time of the accident.

[142] A summary of the observations of the winter condition of Cty Rd 9 on January 3, 2003 as to snow conditions and the signs of plowing, sanding/salting activity is as follows:

• Cst. Prent: noted no signs of sand or salt;

• Cst. Evans: found River Road to be hazardous and that his cruiser was slipping; the road was covered with packed snow; no signs of plowing, sanding or salting, but states that snow could have covered it; no signs of windrows; walking was slippery;

• Cst. Ball: the road was covered with a layer of packed snow;

• Bruce Desveaux: had lived in the area of Rankins Corner for several years; he described Cty Rd 9 in the winter to be a treacherous road and Rankins Corner to be a slippery curve, depending on the weather; that morning, he was the first person at the accident scene; he saw two other cars proceed through Rankins Corner with signs of traction problems and fishtailing; he saw no signs of plowing, sanding or salting and saw no evidence of a windrow; the road was snow packed and slippery;

• Joanne Robins: saw no signs of recent plowing, sanding or salting; lines on the road were covered by snow; the road surface was slippery when walking;

• Robert Castle: the road was snow packed and very slippery; line markings were covered by snow; there were no signs of any prior plowing activity;

• John Woolhead: the road was snow covered; line markings were not visible; no signs of prior plowing, sanding or salting activity;

• David Bush: the road was snow covered and slippery; no signs of recent plowing, sanding or salting activity; centre and fog lines were covered by snow;

• Vern Amey: Cty Rd 9 shortly after 6:00 a.m. was snow covered without signs of it having been plowed or a sand/salt mixture having been applied. These observations are inconsistent with the recollections of Doug Abrams that he had plowed and applied sand/salt to Cty Rd 9 in one direction at 5:30 a.m. and in the other at 6:00 a.m.; Amey attended the accident scene at 11:00 a.m. and again noted that there were no signs of the road having been plowed or a sand/salt mixture applied; the snow on the road at 11:00 a.m. was not over the soles of his boots; when he walked through the accident scene, he found the road to be slippery.

Rankins Corner

[143] Although Cty Rd 9 had a speed limit of 80 km/h, Rankins Corner had a posted speed advisory of 60 km/h. The Ontario traffic manual provides that a speed advisory may be used where the alignment of the road cannot accommodate the posted or designed speed. Such a sign is to serve as a localized advisory and to address a risk particular to a small part of the road. The manager of Roads and Bridges for L&A, Stephen Roberts, stated that the speed advisory sign was posted at Rankins Corner due to the “S” curve and the down grade in the curve for eastbound traffic. Based on the road alignment, Rankins Corner required special practices and procedures in the context of a winter weather event.

[144] Vern Amey stated that Napanee’s road maintenance staff would have a meeting each fall regarding “hot spots” that might need special winter maintenance attention. Napanee relied on the operators’ experience regarding the nature and type of any special winter maintenance attention that might be given to such “hot spots.” There was no evidence to indicate whether Rankins Corner was included for such special attention and if so, what it might have entailed. If any records were kept regarding these annual pre-winter meetings, none were referred to or produced.

Was Cty Rd 9 in a condition of non-repair?

[145] Based on the evidence of Vern Amey and Ron Vankoughnet, I find that the Town plowed and applied a 3:1 mixture of sand/salt to Cty Rd 9 both ways on two separate occasions between 4:00 a.m. and the time of the accident. Vern Amey stated that at about 4:00 a.m. he thought he heard the sounds of a snow plow. This evidence is not sufficient for me to find that a plow had passed along Cty Rd 9 in the vicinity of Vern Amey’s house that morning at 4:00 a.m. In view of the conflict in the evidence of whose regular route Cty Rd 9was on January 3, 2003, I am unable to find that Doug Abrams plowed Cty Rd 9 that morning. I accept the evidence of Brian Wayte that at about 10:00 a.m., he drove westerly on Cty Rd 9 from Napanee to his home off Rankins Corner and in doing so, that he was then following a plow.

[146] The snowfall had been relatively modest, with an accumulation of between 2 and 5 cm. Assuming two passes by a plow in both directions and a corresponding application of sand/salt, such evidence is difficult to reconcile with the visual absence of any signs of windrows, as confirmed by the witnesses and my own review of the photographs of the scene. What also troubles me is the modest and even the marginal amount of sand on the road and the apparent complete absence of any evidence that salt had been applied or had been effective in creating a brine solution that might have led to bare spots on the road. If there were bare spots on Cty Rd 9, these were to the east and not within Rankins Corner or in the approach from the east to the accident scene.

[147] Counsel for Napanee points to the evidence of wind and blowing snow that morning that might have caused the prior plowing activity to be covered by snow accumulation. However, the evidence on that matter is contradictory. Brian Wayte stated that when he drove into town at about 9:00 to 9:30 a.m., it was windy and snow was blowing. Doug Abrams stated that Rankins Corner was sheltered and only marginally wind affected. Vern Amey testified that the road was snow covered and that snow was blowing when he drove into Napanee at 6:00 a.m. When he returned at 11:00 a.m. to attend at the accident scene, there was a light snowfall with some blowing. He disagreed with Doug Abrams that Rankins Corner is wind sheltered. Ron Vankoughnet recalled that there was little wind that morning and that it was a light snow day. On balance, I am unable to find that wind and blowing snow, if any, had any affect on the snow condition on Cty Rd 9 that morning.

[148] Rankins Corner had been identified by L&A as a “higher priority road as dictated by L&A’s winter maintenance standards.” There is no evidence that this need was recognized by Napanee when it assumed the maintenance of L&A’s roads as of January 1, 1998. Despite the evidence that the Town’s winter maintenance staff met in the fall of each year to address the particular needs of “hot spots” during the then pending winter maintenance program, there is no evidence that Rankins Corner was included for discussion among the “hot spots” so considered and if so, what special maintenance measures might be needed and applied.

[149] As part of its regular winter maintenance program, Napanee provided straight salt for its higher volume roads in town. However, for county roads including Cty Rd 9, Napanee did not provide straight salt, but a 3:1 mixture of sand/salt. The reason Napanee advanced for this decision is that county roads are not all paved and that a sand/salt mixture is far more appropriate and effective for non-paved roads.

[150] Although the evidence does not address the number and location of the “hot spots” within the road system for which Napanee had taken responsibility, it follows from the evidence that certain additional or other measures of winter maintenance were or could have been applied by Napanee to address the special winter maintenance needs of a “hot spot” such as Rankins Corner. The evidence indicates that Napanee had the capability of providing straight salt by way of a chute attached to plow trucks. I accept the evidence of Daniel Doner and David Bender that straight salt applied to the centre of the road leading up to and within Rankins Corner would have resulted that morning, prior to the accident, in centre-bare conditions of the road through Rankins Corner. That would have made the centre line visible to cars proceeding in either direction and would have provided greater traction for the wheels on the left side of such vehicles.

[151] The evidence is overwhelming that the conditions of light snow and the temperature range of -8°C to -5°C that morning were ideal for the effectiveness of salt to create a brine. The evidence is also overwhelming and contrary to the evidence of Napanee’s winter maintenance expert that blades on the Town’s plows scraped the surface of the road, which evidence I accept. I find that if salt had been applied to the centre area of the road within Rankins Corner, a plow blade probably would have effectively cleared the accumulation of snow and ice loosened by the brine solution and have achieved bare pavement along the centre line of the road.

[152] In Gould v. Perth (County) (1983), 1983 1754 (ON SC), 42 O.R. (2d) 548 at pp. 556-57 (H.C.J.) aff’d (1984), 1984 2060 (ON CA), 48 O.R. (2d) 120 (C.A.), Southey J. stated at pp.556-57 that:

… liability did not depend on the imposition of a general duty to salt or sand highways, but, in so doing, I do not think they intended to say that there could never be a duty to apply salt or sand on a substantial stretch of highway. …

Liability will only result where the situation gives rise to an unreasonable risk of harm to users of the highway, and the authority has failed to take reasonable steps to eliminate or reduce the danger within a reasonable time after it became aware, or ought to have become aware, of its existence.

[153] In Montani v. Matthews, (1996) 1996 1387 (ON CA), 29 O.R. (3d) 257 (Ont. C.A.) Moldaver J.A. for the majority, stated:

The trial judge … recognized that he could not impose liability on the Ministry for failing to salt and sand unless the Ministry had actual or constructive knowledge of a special and highly dangerous situation at a certain location on the highway, which the Ministry unreasonably neglected.

[154] Murray J. in Giuliani v. Halton (Regional Municipality), 2010 ONSC 4630, [2010] O.J. No. 3674 referring to the above noted two cases stated at para . 146:

146 It is clear from the cases that liability will only result where the situation gives rise to an unreasonable risk of harm to users of the highway, and the authority has failed to take reasonable steps to eliminate or reduce the danger within a reasonable time after it became aware, or ought to have become aware, of its existence. …

[155] In Roberts v. Morana, 1997 12257 (ON SC), [1997] O.J. No. 3089 aff’d (2000) 2000 2950 (ON CA), 49 O.R. (3d) 157 (Ont. C.A.), the court stated: “In the final analysis the facts of each case will determine whether a condition of non-repair exists.” (para.12).

[156] In find that Napanee failed to show that it undertook reasonable efforts to address the condition of non-repair which prevailed at the time of the accident on Cty Rd 9 at Rankins Corner.

[157] I make this finding in the face of by-law 2649/97 for the County of L&A. This is the minimum standards by-law for winter maintenance and which Napanee adopted. It sets a far more relaxed standard and expected response time to winter maintenance operations than Napanee actually followed. In fact, it is the position of Napanee that it was not guided by this by-law with respect to its obligation to address winter maintenance issues. It followed a laudable policy to send plows out if there was snow accumulation between midnight and 4:00 a.m. and to continue plowing until the snow was cleared.

[158] The evidence of the Town as to its winter maintenance operations on Cty Rd 9 that morning unfortunately is not as helpful as I would have expected. Perhaps that speaks to the degree of the Town’s administrative organization. Had there been the type and frequency of winter maintenance as the Town’s witnesses purported to represent, I would have expected signs of windrows and at least the presence of some sand. There were no signs of the former and only marginal signs of the latter. What the evidence did indicate was packed snow cover on top of the road surface. The co-efficient of friction was consistent with that finding. Line markings were not visible. The road surface caused vehicles to lose traction. It was slippery for walking.

[159] Rankins Corner was known to the Town as one of its “hot spots” and as such, a high priority corner in need of special procedures in the context of winter maintenance.

[160] There is no evidence that Rankins Corner received any such winter maintenance special procedures. The plowing activity that was carried out, I find, was inadequate for Rankins Corner. A 3:1 mixture of sand/salt may well have been adequate for the Town’s road system generally, but not that day for Rankins Corner. The Town readily could have spread straight salt through Rankins Corner plus a greater than normal application of sand/salt, all confined to a “hot spot” such as Rankins Corner. Such added focus for one or more of its road “hot spots” would likely not have been a meaningful financial burden for the Town or an altering change to its established winter maintenance operation. It would, however, likely have led to a centre-bare condition, according to the opinion of Messrs. Doner and Bender, which I accept. That would have made the centre-line visible and have provided traction to the left tires of vehicles proceeding in either direction.

[161] As did Murray J. in Giuliani v. Halton, supra, at para. 151, I find that the snow accumulation in the range of 2 – 5 cm in Rankins Corner presented a hazard to the users of the road and as such, Rankins Corner fell into a state of disrepair that morning.

Did the condition of non-repair cause or contribute to the Plaintiffs’ injuries and damages?

[162] The accident re-construction experts for both sides concur that the speed of either vehicle was not cause of the collision.

[163] Upon approaching Rankins Corner, David Bush was unable to see either the centre or the fog lines. They were covered by packed snow. He followed tracks on the road. He did his best to stay on his side of the centre line, but was not certain if he was successful in that regard. That is so, despite the fact that he attempted to use as a guide the guard rails on the shoulder approaching the curve.

[164] He initially saw the Plaintiff’s vehicle in the straight stretch between the two curves. At that moment, there was nothing out of the ordinary that he saw regarding the Plaintiff’s vehicle. He saw the Plaintiff’s vehicle and so would Leslie have been able to see him driving on a snow packed road, unable to tell exactly where on the road he was, except that he was coming toward her. She then momentarily disappeared from his view behind trees and bushes. When he saw her again, but seconds later, she was in the curve and sliding. It was clear to him that she had lost control. The cause of that he could not tell. He recalled that she continued that slide until the vehicles collided. On the evidence, I find that at the point of impact, the Plaintiff’s car was 1/2 to 2/3rds over the centre line and the left wheels of the Bush vehicle were either on or partially over the centre line.

[165] Napanee’s accident re-construction expert, Tim Leggett, was of the opinion that it was a head-on, off-set collision. He did not offer an opinion as to the cause of the collision nor did he contradict the opinion of the Plaintiffs’ expert, Tom Prescott, that the visually obscured centre-line due to the snow cover played a part in this collision. Mr. Leggett did not challenge Mr. Prescott’s opinion that a minor adjustment in the steering wheel in the normal course of driving the curve would likely have resulted in Leslie’s loss of control of her vehicle. Mr. Prescott agreed that this was an off-set, head-on collision. He opined that Leslie was driving normally through the curve and then experienced a sudden loss of control based on her braking or steering or both.

[166] When Leslie was likely first able to see the Bush truck, she was between the two curves and would likely not have been able to tell where in relation to the centre-line it was proceeding towards her. That was likely due to the light colour of the propane truck and the visual absence of the centre and fog lines.

[167] Based on the snow packed road, a marginal adjustment of steering would probably have been enough to cause her vehicle to start sliding.

[168] Bender stated that a centre bare condition and a visible marked centre-line would have assisted the approaching Plaintiff driver to identify where on the road the Bush truck then was. He also opined that such a road condition would have given traction to the left tires of each vehicle. That would have allowed these two drivers to avoid the collision.

[169] I find that Leslie lost control of her vehicle immediately upon first seeing the Bush truck. It was not her speed that caused her to lose control. She would have been uncertain exactly where on the road the Bush truck was. That likely would have caused her to generate driver action in an attempt to move her vehicle further to the right. That steering action, I find, likely caused the Plaintiff’s vehicle to slide, if only marginally. She was unable to recover. The slippery snow packed road caused a loss of normal traction, despite winter tires. The collision was the result.

[170] Having identified Rankins Corner as a “hot spot”, I find that Napanee either knew or should have known that in a winter event such as the snow fall on January 3, 2003, Rankins Corner would likely become an unreasonable risk to users of Cty Rd 9 and would, for that reason, require special winter maintenance treatment. That did not occur.

[171] Having found that Cty Rd 9 in Rankins Corner then was in a state of disrepair based on the then existing winter conditions, the onus shifts to the Town to establish on a balance of probabilities that a condition of non-repair existed, notwithstanding all reasonable efforts by the Town: Roycroft v. Kyte, [1999] O.J. No. 296 at para. 48 and Thornhill v. Shadid, supra, at paras. 108-109. For reasons noted above, I find that the Town failed to discharge this evidentiary burden.

[172] Applying the “but for” test in Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333, I find that the Town caused at least in part the collision of the Plaintiffs’ vehicle with the Bush truck.

[173] I find that the Plaintiffs, on a balance of probabilities, have established that the condition of non-repair of Cty Rd 9 caused or contributed to Leslie’s injuries and the Plaintiffs’ damages.

Contributory Neligence

[174] I now turn to the issue of the degree to which the drivers of these two vehicles contributed to the collision.

David Bush

[175] He had driven this truck many times to make propane deliveries. This was his regular route. He was familiar with Cty Rd 9 and Rankins Corner. He had been on the road for several hours that morning driving through snowfall and winter conditions.

[176] As he approached Rankins Corner, he was guided by tracks in the snow. The centre and fog lines were snow covered and not visible. In Rankins Corner, he tried to stay close to the guard rails on his right side. Although he thought that he was fully on his side of the road, he could not be certain.

[177] As he was familiar with Rankins Corner, yet not certain where in relation to the covered centre-line he was, “alarm bells” should have gone off. He should have slowed down. In fact, his speed was greater than the advisory speed of 60 km/h.

[178] As did Scott J. in Bilodid v. Gadwin 1985 CarswellOnt 3656 at para. 8 and Gray J. in Kelly v. Curry, 1984 CarswellOnt 3410 at paras. 34 and 35, I adopt this principle of vehicle speed stated in Laurie v. Raglan Building Co. Ltd., [1941] 3 All E.R. 332 at p. 336:

If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace.”

[179] Although both experts were of the view that this is not a “speed case”, I disagree. Speed is a term relative to the conditions. For Bush, that meant a speed slow enough for him to be certain he was completely on his side of the road. Based on the evidence, I find that his left wheels were either on or slightly over the centre-line. Regardless, his truck in that position on the road likely presented a visual obstacle to Leslie causing her to react by braking and/or turning the steering wheel. This probably started her car to swerve.

Leslie Lloyd

[180] The residence of Leslie’s in-laws was about 500 m from the accident scene. The car had been parked out overnight. She intended to pick up her sister-in-law to take her to the hospital. Leslie was an experienced driver and familiar with Rankins Corner.

[181] The opinion of Prescott is that Leslie’s vehicle at point of impact was travelling in the range of 40 – 60 km/h. Both Prescott and Leggett agree that this speed alone would not have caused Leslie to have lost control of her vehicle.

[182] When Bush first saw her, Leslie’s car was in the straight stretch between the two curves. At that stage, he saw nothing out of the ordinary in the way her car was travelling, although he thought it might have been a little fast. With respect to his comment on Leslie’s speed, he admitted that he was actually speculating. For that reason, I will disregard his comment on the speed of Leslie’s car.

[183] Counsel for the municipal Defendants invited me to find that the collision was the result of Leslie driving with an obstructed windshield based on the existing winter conditions. There is no evidence regarding the state of the windshield of Leslie’s car while driving through Rankins Corner. The only evidence on the state of her car comes from Cst. Prent who examined the damaged car after impact. He found the wiper setting on high, heat on hot and the windshield defrost setting on high. In the absence of evidence to support defence counsel’s theory, I discarded it.

[184] The Bush evidence which I accept stated that when he next saw Leslie’s vehicle come into view from behind the trees and into the curve, it started to slide. It is that loss of control that brought her car partially across the centre-line and into contact with the Bush truck. Murray J. in Giuliani v. Halton, supra, at para. 171 adopted this statement by the B.C.C.A. in Redlack v. Vekved, [1996] B.C.J. No. 3040 at para. 17:

When a motor vehicle goes off the road or into the oncoming line of traffic, there arises a prima facie case that the driver was negligent which the driver must rebut.

[185] Although I have concluded that Rankins Corner was in a state of dis-repair which contributed to the loss of control by Leslie of her car, I find that the principle of vehicle speed in Laurie v. Raglan Building Co. Ltd., supra, at p. 336 applied to Leslie’s operation of her car as well. She was familiar with Rankins Corner and its possible treacherous nature in winter conditions.

[186] I conclude that the responsibility for the Plaintiffs’ damages is as follows:

a.

The municipal Defendants

60%

b.

David Bush and 818601 Ontario Inc.,

c.o.b. as MacDonald’s Propane

30%

c.

Leslie Lloyd

10%

III. DAMAGES

[187] At the time of this accident, 12 years ago, Leslie was 25 years of age. She and Jason, three years her senior, were married August 5, 2000. They had met in high school. Their common interest, among others, was that of athletics and in particular, competitive running. Leslie had no pre-existing medical issues. Both she and Jason had attended the University of Ottawa. He graduated with a 4 year B.A. and obtained employment as a teacher in Toronto. Leslie needed one full course to obtain her 3 year B.A. Yet, she decided to follow her husband to Toronto where she obtained employment as a clerk and then manager of a Blockbuster Video store. One year later in 2001, Jason was accepted as a teacher with the Hastings and Prince Edward District School Board. That allowed him to teach in Deseronto near their respective parents’ homes. He continues to teach there to this day. The school is a 15 minute drive from their present home which they built on a lot severed from Leslie’s parents’ ancestral farm. Their return to the Napanee area had always been their plan where each of their parents and siblings continue to reside. Leslie obtained employment in a pharmacy in Napanee.

[188] Leslie’s program of interest at the University of Ottawa had been in criminology. In the fall of 2002, she obtained employment at the Corbyville Youth Facility in Belleville about one-half hour drive from their home. It was a part-time position working with troubled children and youth. This was an area of particular interest to her. In high school, she had tutored children from a troubled background and found she had an affinity for this type of vocation. Then the MVA happened with the resulting dramatic change of her life and future.

[189] Dr. David Ruggles is a specialist with the Department of Physical Medicine and Rehabilitation at Queen’s University. He was the only medical doctor to testify. He reviewed Leslie’s injuries and the progress of her rehabilitation to the present. Dr. Ruggles provided his opinions on the permanence of Leslie’s injuries, her functional disabilities and their long-term implications. His opinions were based not only on his examination of Leslie, but also on his review of her medical history including various medical reports and hospital records.

[190] Dr. Ruggles provided these opinions:

a. Leslie sustained a severe traumatic brain injury medically described as a diffuse axonal brain injury. Her brain sustained injury to its superficial and deep structures in both hemispheres and to the front and back of the brain.

b. Leslie also sustained severe open fractures to her legs, involving both knees.

c. She remained in a coma for several weeks and sustained post-traumatic amnesia of at least several months.

d. Her leg and knee fractures were managed over several separate operations at Kingston General Hospital.

e. Leslie was moved to the neighbouring St. Mary’s of the Lake Rehabilitation Hospital in March 2003. When she was discharged home on July 31, 2003, she was still not ambulatory and required a wheelchair.

f. Extensive rehabilitation in her home by a physiotherapist, occupational specialist and speech language pathologist followed.

g. Leslie likely will require bilateral knee replacement surgeries in the future based on the expected, continued degeneration of her knee joints.

h. Leslie has partial paralysis exemplified by severe spasticity to the left side of her body, including both upper and lower extremities. This symptom is permanent and diminishes her strength, endurance, mobility, balance and dexterity.

i. The brain injury has damaged Leslie’s speech, leaving her with a very soft voice and impaired articulation. Her sleep is now so deep that it is difficult to rouse/awake her. This requires Leslie to have night-time attendant supervision, as otherwise she would be unsafe in the event of an emergency.

j. She suffers from persistent fatigue.

k. Leslie has severe cognitive problems, including significantly reduced short-term memory requiring the use of various memory aids, decreased attention and concentration.

l. She has moderately severe balance issues resulting in periodic falls and decreased walking speed and efficiency.

m. Her neurologic and cognitive deficits and the limitations of her mobility are likely to persist indefinitely.

[191] The evidence of Dr. Ruggles on the effect these injuries had on Leslie was corroborated by various family members.

Gail McCullough

[192] Leslie’s mother testified that Leslie was a vibrant and engaging person prior to the accident. She now has lost her independence and must rely on the assistance of other people. In a crowd, Leslie is quiet. She cannot follow multiple conversations. Although Leslie is a good mother, she requires assistance in raising their two children, Abby and Hayden, now ages 8 and 6. She is unable to keep up with them and cannot multi-task. She relies on lists and must lead a very structured life. If Leslie were to live on her own, she would be a constant worry for her parents. Fortunately for all, that is not a concern, as Leslie and Jason appear to have a good marriage. They love and respect each other.

Don McCullough

[193] Leslie’s father described how she, from a young age, helped with the operation of the family farm including the driving of tractors and performing the usual demands of farm work.

Melanie McCullough

[194] Leslie’s sister remembers her as a leader and excellent role model, one who was involved in sports and had an active social life. After the accident, her extended family became Leslie’s care providers. She can no longer multi-task and fatigues easily. Her social life is limited to her family.

Becky Peters

[195] Leslie’s younger sister stated that everything about Jason and Leslie’s life has changed. She now has cognitive difficulties and is unable to fully manage the demands of parenting.

Sam Lloyd

[196] Jason’s father stated that the “old” Leslie failed to return after the accident. Since then, it has been difficult for both Jason and Leslie, yet they love each other.

Arlene Lloyd

[197] Jason’s mother stated that Leslie tries what she can around the house and with the children, but relies on Jason to “back stop” and assist her short-comings.

Leslie and Jason Lloyd

[198] Leslie fatigues easily. Her voice is affected, as is her balance. She easily becomes stressed. She has issues of left side paralysis and a “restless” left leg. Due to her now deep sleep, it is difficult to rouse her and to then “get her going.” She sleeps so deeply that she would not hear the children or even an alarm. Since the accident and partially for that reason, she has not slept alone.

[199] Leslie can and does prepare simple meals, but is not capable of making them “from scratch.”

[200] They rely on a housekeeper who assists for three hours a week.

[201] Jason attends to all of the necessary outdoor tasks.

[202] Leslie’s appetite is not the same. In fact, she needs prompting and cueing to remind her that it is time to eat.

[203] With the financial assistance of the Accident Benefits Insurer, they installed a number of home modifications to assist Leslie. These include a ramp, an attached garage, a home gym, a hydrotherapy tub, an elevated toilet, a kitchen with special drawers and a lift.

[204] Leslie has now resumed driving, but limits herself to short neighbourhood distances.

GENERAL DAMAGES

[205] The municipal Defendants do not challenge the nature and extent of the injuries Leslie sustained in this accident, their impact and her continued limitations. These Defendants state that notwithstanding the severity of these injuries, Leslie has made a remarkable recovery and appears to have many positive aspects to her life, including:

a. Two children who were borne to Leslie and Jason as planned prior to the accident;

b. A warm, loving, intimate and stable relationship between Leslie and Jason; and

c. Independence in many aspects of Leslie’s life.

[206] These Defendants submit that general damages ought to be assessed at $250,000. In support of that position, they rely on Galka v. Stankiewicz, [2010] O.J. No. 2046 (S.C.J.) paras. 90-93 where general damages were assessed at $225,000 and on Walker v. Ritchie, 2003 17106 (ON SC), [2003] O.J. No. 18 (S.C.J.) at paras. 2, 45-46, 51-55 and 59 where general damages were assessed at $250,000. In considering the appropriate assessment of general damages, I do not consider Galka v. Stankiewicz, supra, as helpful in view of the factual differences. The plaintiff in Galka was 20 years older than Leslie at the time of the incident and, in my view, is far less seriously affected by his injuries than Leslie was and still is. The injuries described by Brockenshire J. in Walker v. Ritchie, supra, and the effect of those injuries on the plaintiff are similar to the present case. I note that the date of the incident in Walker v. Ritchie, supra, was April 1997 while here, this accident occurred about six years later. I consider the intervening inflationary increase here to be a distinguishing feature. I consider Brockenshire J.’s assessment of damages in Walker v. Ritchie, supra, to be persuasive, but not necessarily binding on the assessment which I must undertake.

[207] I find that Leslie’s life has been substantially altered. It will affect her for the balance of her years. She was on the spring board of her adult, married life at the time of this accident. I acknowledge that the totality of her injuries, deficits and disabilities are not at the “cap” range, yet they are within sight. I assess Leslie’s general damages to be $300,000.

Family Law Act CLAIM, JASON LLOYD

[208] In assessing Jason’s claim for the loss of care, guidance and companionship, I adopt the following part of the Plaintiffs’ written submissions:

a. Leslie will provide no care to Jason as a spouse in the expected manner that would occur if Jason required short or long term care by reason of his illness or disability;

b. Leslie’s impairments preclude her abilities from managing and completing many of the household routines, which spouses generally share and take for granted;

c. Leslie does not fully participate in the family decision-making roles nor offer the guidance that spouses often seek from each other such as household finance or the insights of parenting children to adulthood;

d. Leslie and Jason were drawn to each other as a couple because of their shared interest in athletics and the enjoyment derived from physical activity. This connection as spouses is irreparably altered; and

e. The dynamics of their relationship has changed. Prior to the accident, they enjoyed fully sharing in decisions that would affect their lives. That has partially changed. It remains a relationship based on commitment and love, but has required adjustment and compromise to accommodate Leslie’s impairments.

[209] I assess the award to Jason for his loss of care, guidance and companionship at $130,000.

FUTURE CARE NEEDS – EXCLUDING ATTENDANT CARE

[210] With respect to the claims for compensation for a future pecuniary loss and for future care costs, I remind myself that the Plaintiffs must prove these claims not on a balance of probabilities, but on the basis of a real and substantial risk of future pecuniary loss and/or need: Schrump v. Koot (1977) 1977 1332 (ON CA), 18 O.R. (2d) 337 and Thornhill (Litigation Guardian of) v. Shadid, 2008 CarswellOnt 517 at para. 147.

[211] On the question of the need for speech pathology, the Plaintiffs’ future care consultant, Sandra Vallone, relied on the opinion of Dr. Ruggles that ongoing, intermittent speech language therapy would be appropriate to assess areas of potential improvement. Eva Madres, a future care consultant retained by the municipal Defendants, relied on a report by Ms. McCool, a special language pathologist, which indicated that Leslie had limited capacity for functional improvements in her speech and recommended that she participate in independent activity that would allow her opportunities for public speaking. On that basis, Ms. Madres recommended a lifetime allowance for speech language services of $8,000. Particularly in view of the many limitations Leslie continues to have, with little hope of improvement, I find it not to be sufficient to essentially leave her to her own devices with respect to this issue. I prefer and adopt the opinion of Dr. Ruggles on this matter and find that the annual allowance of $1,555 for speech pathology services for Leslie is appropriate.

[212] Ms. Vallone stated that Leslie should have a cell phone at her disposal. To support that position, Ms. Vallone points to the evidence of Jason that he sends daily “cues” to Leslie to remind her to eat lunch or other snacks. The evidence is that absent such cueing, Leslie generally forgets about the need for regular meal sustenance. Leslie also uses the phone to make various lists for herself for shopping and other “to-do” purposes. Without such reminders, I find that Leslie would not be able to function as she should. The municipal Defendants challenge this position that a cell phone should be funded for Leslie. They state that cell phones are now ubiquitous and would be used by Leslie in any event for all and sundry daily purposes including reasons quite unrelated to her disability needs. I disagree. It might well be that Leslie will require a cell phone in any event, yet Leslie has special and justifiable reasons particular to her that would require the use of a cell phone. Simply because a cell phone may be put to other uses does not obviate the need for such a phone for reasons particular to Leslie’s condition. I find that the sum of $40 per month is a reasonable and necessary expense.

[213] The municipal Defendants do not challenge the need for bathroom renovations and for the construction of an exterior walkway, the latter to permit Leslie access to the backyard of their property. However, these Defendants state that the expense for these two items should properly be the obligation of the AB carriers. Leaving that matter to be decided between the parties, I find that the expense of $39,182 including H.S.T. is appropriate for these two items.

[214] In summary, the net present value of all items of future care costs, excluding attendant care, and as calculated by Ms. Carter, the Plaintiffs’ economic expert, is as follows:

a.

Future care costs excluding attendance care

$ 370,839

b.

Present value of future neuropsych or speech evaluation

10,044

c.

Home monitoring

7,292

d.

Home elevator maintenance

16,204

e.

H.S.T.

4,507

Total

$ 408,886

FUTURE CARE COSTS OF ATTENDANT CARE

[215] Relying on the opinion of Dr. Ruggles that Leslie should not be left alone during sleeping hours at night (8 hrs daily) and that Leslie requires and benefits from daytime attendant care to alleviate fatigue and to provide her with necessary cueing and direction, Ms. Vallone costed the attendant care at $13/h if these services were provided by Jason and $25/h if the same services were provided by a private agency.

[216] The municipal Defendants concede the need for night-time attendant care. However, they urge that the proposed need for a personal support worker (“PSW”) from an agency is not required, as Mr. Lloyd is currently carrying out this function. He and Leslie sleep next to one another, in the manner as one would generally expect a married couple to have ordered their sleeping arrangements. I am inclined to accept that view, yet I am mindful of the contingency that Jason may not be available to Leslie for the balance of her life based on any number of reasons, such as marriage breakup or untimely death.

[217] On the issue of daytime attendant care to provide Leslie some relief regarding fatigue and to address required cueing, among other issues, I note that both children are now at school. That, in itself, reduces somewhat the need for daytime assistance. Accordingly, I find that two hours per day is sufficient to address the required respite assistance for Leslie.

[218] The nature of this attendant care is not sophisticated or complex. I distinguish this situation from the more complex and unpredictable nature of the care demanded for the plaintiff in Matthews Estate v. Hamilton Civic Hospitals, 52312 (S.C.J.) at para. 189. I find that $13.00/h for the care to be provided to Leslie is appropriate.

[219] Using the standard of proof for future damages as a “real and substantial risk” and factoring in the various contingencies and my observations noted above, I assess the net present day value of the attendant care Leslie needs at $2,000,000.

LOSS OF INCOME

[220] At this stage of her recovery which is 12 years post-injury, Dr. Ruggles opined that Leslie’s neurologic and cognitive deficits would likely persist indefinitely, including her physical limitations of spasticity, balance problems and intelligibility of oral communication. Neither that opinion nor the opinion of Ms. Vallone that Leslie would likely not be employable at some future date, was not challenged by the municipal Defendants in the sense that I have no evidence to contradict these opinions. Based on the opinions which I have from Dr. Ruggles and Ms. Vallone, Leslie’s evidence and my observation of her and the evidence of her various family members as to her marginal ability to adequately cope with the challenges of day-to-day living, I conclude that it is not likely that Leslie would ever be employable in the competitive marketplace.

[221] Leading up to the MVA and based on the evidence describing the type of person Leslie then was, I conclude that at age 25, she then was energetic, motivated and ambitious. It was her intent to carve out a career path suitable to her which, but for the MVA, would have seen her involved in the competitive labour market gainfully employed on a full-time basis, as was and remains the case with her parents and her siblings. Her formal education was all but completed, but for six credits, the equivalent of a one full year course. I find that she probably would have completed such a course, likely “on-line” from home and would have obtained a three year BA in criminology which was her major at the University of Ottawa.

[222] As already noted, Leslie did not complete her university degree at the University of Ottawa. She chose to follow Jason to Toronto where he started his first teaching position in September 2000. She obtained employment at Blockbuster Video, initially as a clerk and was then promoted to manager. In the following year, Jason obtained a teaching position with the Hasting and Prince Edward District School Board. He started to teach with that board in Deseronto, a short drive from the McCullough home. Leslie found employment in a pharmacy in nearby Napanee. In August of 2002, she was hired on a contract basis at the Corbyville Youth Facility. The supervisor of staff interviewed and then hired Leslie. He was aware that Leslie had not completed her B.A. degree and told her that she would need to do so in the future to allow her to advance in her field with the Corbyville Youth Facility. He noted that Leslie had the personal qualities and temperament to work with young persons sentenced to that facility. It was also his evidence that it was difficult to find staff and particularly female staff, at the time of her application for employment. He described Leslie as enthusiastic and that she had made herself available for all shifts that were offered.

[223] Professor Douglas Hyatt, an economic consultant retained by the municipal Defendants, provided an opinion on Leslie’s past loss of income to October 6, 2014. He assumed that she would have earned, on average for the years 2003 – 2008, the amount that she had earned in 2002, which was $15,643 per year, increased for inflation. Thereafter, from January 1, 2009 to October 6, 2014, Professor Hyatt assumed that Leslie would have earned the average for a community and social services worker of $39,845, adjusted for inflation. For the period January 11, 2003 to October 6, 2014, he calculated an assumed loss of earnings, net of income tax and at 80% of those earnings, to be $223,305. Ms. Carter, the economic consultant retained by the Plaintiffs, was asked to assume that Leslie would have had annual earnings consistent with her income at the Corbyville Youth Facility four weeks prior to the accident which extrapolates to an annual amount of $38,619, increased for yearly inflation up to October 6, 2014, the start date of this trial. That sum of $38,619 is consistent with the average income range for community and social service workers relied on by Professor Hyatt, as obtained from the Financial Services Commission of Ontario. Ms. Carter calculated a past income loss reduced to “80% of net” at the amount of $337,627. To that she added past non-wage benefits which she calculated to be $70,855, for a total past income loss of $408,482.

[224] Both assumed scenarios are speculative and in my view, each has flaws. Based on the evidence of Leslie’s enthusiasm, energy and drive, it is likely that she quickly would have earned more than the sum of $15,610 Professor Hyatt assumed for the years 2003 to 2008. I also find it likely that Leslie would have taken every shift available to her at Corbyville. This would not have brought her into the range of $38,619 per year which Ms. Carter was asked to assume, but would, in my view, have been substantially more than the amount assumed by Professor Hyatt. There is also the issue of maternity leave for her two children which may have impacted her annual income for a total of two years. No evidence was presented on that issue. I also find that Leslie should be credited with at least some non-wage benefits, but not in the amount assumed by Ms. Carter.

[225] I find that 80% of the net income Leslie would have earned, including some past non-wage benefits, for the period January 6, 2003 to October 6, 2014, is $300,000.

[226] That amount will be offset by the amount of income replacement benefits (“IRBs”) which are said to be in the amount of $219,707.50. This is to be credited to the Defendants against their obligation for this claim.

FUTURE LOSS OF INCOME CLAIM

[227] As I already noted, I find it likely that Leslie would have completed the one remaining course she needed and would have obtained her Bachelor of Arts degree in criminology.

[228] Based on the findings I made above with respect to Leslie’s pre-MVA character, drive, energy and enthusiasm, coupled with the employment experience and history of her immediate family members, I find it likely that Leslie would have fully participated in the workforce with a greater attachment than the statistical average. For that reason, I find it appropriate to be drawn to the higher end of the range of potential future earnings, as presented by the economists, Ms. Carter and Professor Hyatt.

[229] I find it more likely than not that Leslie would have gravitated to an employment position as a social and community service worker. However, I cannot completely ignore the real and substantial possibility that Leslie might, at some stage, have entered the teaching field. I have the evidence of Graham Pett. He provided an analysis of the labour market conditions for teachers in Ontario. It was his opinion that statistically, it is a difficult and long drawn out process to obtain a teaching position in Ontario. He was also skeptical that Leslie’s university marks were in the sufficiently high range to grant her admission to teacher’s college, a necessary pre-requisite to obtain a teaching certificate in Ontario. Yet I note the ease with which Jason obtained a teaching position with the local school board. I also note the meaningful family connections Leslie has with employees in the administration and the teaching field of that school board. Accordingly, I find that I should apply a 10% positive contingency factor that Leslie might, at some future stage, have become a teacher.

[230] Based in part on the evidence of Brad Allport that in 2003 he would have hired Leslie on a full-time basis as a social worker at the Corbyville Youth Facility and on Leslie’s interest to assist children in need and her educational background, I find that Leslie would have obtained full-time employment as a social and community service worker as of 2003. Based on Leslie’s attachment, ambition and inclination for the workforce, I find that Leslie’s future loss of earnings would likely be in the higher end of the range provided by Ms. Carter and Professor Hyatt. That range for a social and community service worker with a B.A. degree from October 2014 to Leslie’s age 65 in 2042, indicates a net present value of future income in the range of $992,782 to $1,443,479. I find it more than likely that Leslie would have retired no earlier than age 65. Based further on the factors noted and the real and substantial possibility that she may have become a teacher, I find that within the range provided by the economists, the sum of $1,400,000 is the figure most applicable for Leslie. That amount, however, should be reduced by 10% in view of the market forces beyond a worker’s control which impact on Leslie’s ambition to have maintained continuous employment. Accordingly, I find that the present day lump sum of future loss of earnings for Leslie as a likely social and community service worker is $1,260,000.

[231] The following is the summary of the damages awarded to the Plaintiffs:

(a) Leslie – general damages: $300,000.00

(b) Jason – FLA claim: $130,00.00

(c) Leslie’s special damages:

(i) Future care needs, excluding attendant care: $408,886.00

(ii) Future attendant care: $2,000,000.00

(iii) Past loss of income: $300,000.00

• Defendants to be credited with IRB’s paid in amount of $219,707.50

(iv) Future loss of income: $1,260,000.00.

[232] If required, I may be spoken to on costs within 45 days.

Honourable Mr. Justice W. Tausendfreund

Released: February 6, 2015

CITATION: Lloyd v. Napanee (Town), 2015 ONSC 761

BELLEVILLE COURT FILE NO.: 0568/03

DATE: 2015 Feb 6

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLIE GAIL LLOYD and JASON LLOYD

Plaintiffs

– and –

DAVID P. BUSH, 818601 ONTARIO INC. c.o.b. as MacDONALD’S PROPANE, THE CORPORATION OF THE COUNTY OF LENNOX AND ADDINGTON, and THE CORPORATION OF THE TOWN OF GREATER NAPANEE

Defendants

REASONS FOR JUDGMENT

Tausendfreund, J.

Released: February 6, 2015