CITATION: Gardiner v. MacDonald, 2016 ONSC 602

COURT FILE NO.: 10-47447

DATE: 20160126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BEN GARDINER and SAMANTHA GARDINER

Plaintiffs

– and –

ANDREW MacDONALD as Litigation Administrator for the Estate of Mark MacDonald, THE CITY OF OTTAWA, RAYMOND RICHER, 1292002 ONTARIO LTD. (o/a GRACE O’MALLEY’S), PETER HAMILTON, GEOFFREY GARRETT, SEAN HILLIKER, TUCKER McCABE, THE CLOCKTOWER BREW PUB LTD., JANE DOE, JOHN DOE, CARLETON UNIVERSITY STUDENTS’ ASSOCIATION INC. (o/a OLIVER’S PUB), GSA CARLETON INC. (o/a MIKE’S PLACE), INTACT INSURANCE COMPANY (formerly known as ING INSURANCE COMPANY OF CANADA)

Defendants

– and –

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Added by Order pursuant to Section 258(4) of the Insurance Act, R.S.O. 1990, c. I8.

Peter J.E. Cronyn/Jessica Fullerton, for the Plaintiffs

Paul Muirhead, for the Defendant, Intact Insurance Company

Mark Charron/Stephanie Doucet, for the City of Ottawa and Raymond Richer

Bryan Carroll, for the Third Party, State Farm Insurance Automobile Insurance Company

Third Party

HEARD: September 10, 11, 14, 15, 16, 17, 18, 24, and 25, 2015

REASONS FOR JUDGMENT

toscano roccamo J.

Introduction

[1] On January 23, 2008, an OC Transpo bus driven by Raymond Richer T-boned an SUV driven by Mark MacDonald, which resulted in fatal injuries to three of its occupants, including Mr. MacDonald, Brianne Deschamps and Vanessa Crawford, and catastrophic injuries to Ben Gardiner. The collision occurred at the intersection of Heron Rd. and Riverside Dr. in Ottawa, Ontario at approximately 1:54 a.m.

[2] The bus was travelling northbound on Riverside Dr. in the bus lane, and entered the intersection with Heron Rd. on a green light.

[3] The SUV was travelling westbound on Heron Rd. and entered the intersection on a red light where it was struck by the bus, and propelled in a northerly direction until it came to rest in snow and slush off the southbound lanes of Riverside Dr.

[4] The bus crossed a snow-covered median separating the south and northbound lanes of Riverside Dr. and took down a traffic signal pole on the median before coming to rest in a ditch off the southbound lanes of Riverside Dr., north of the SUV. Although the intersection at Heron Rd. and Riverside Dr. was well illuminated, the roads were wet and slushy from recent snowfall.

[5] Alcohol use by Mr. MacDonald was a factor in the collision.

[6] No charges were laid against Mr. Richer as a result of this tragic accident.

The Litigation

[7] Ben Gardiner and his family commenced an action against the Estate of the late Mark MacDonald, his father, Andrew MacDonald, as owner of the vehicle involved in the collision, Raymond Richer, the City of Ottawa, as owner of the OC Transpo bus, and a number of commercial hosts who served alcohol to Mr. MacDonald prior to the accident. Similarly, the family members of Brianne Deschamps commenced an action advancing derivative claims, arising out of fatal injuries to Brianne Deschamps, under the Family Law Act.

[8] Initially, State Farm Mutual Automobile Insurance Company denied coverage to Mark MacDonald on the basis that, as a holder of a G2 driver’s licence, he was not permitted to have alcohol in his blood while driving. However, this insurer subsequently confirmed that its mandatory minimum policy limits of $200,000, plus a reasonable share of costs, are available to satisfy any judgment awarded to the Plaintiffs in both actions.

[9] In the Gardiner action, the Plaintiffs issued a claim against Intact Insurance, with policy limits of $1 million dollars pursuant to the OPCF 44 underinsured coverage available to Ben Gardiner as a dependant under his mother’s auto policy.

[10] Similarly, in the Deschamps action, the Plaintiffs advanced a claim against Co-Operator’s General Insurance Company under the OPCF 44 coverage available to the Deschamps in an auto policy issued by The Co-operators.

[11] The parties arrived at an Agreement on Damages, the substance of which is set out in a Statement of Agreed Facts entered as Exhibit 2 at trial.

[12] In accordance with the parties’ agreement, if the Defendants, the City of Ottawa and Raymond Richer, are found wholly or partly liable for this accident, by virtue of the provisions of the Negligence Act, they pay the difference between the State Farm policy limits, as allocated between the Plaintiffs in the two actions, and the total of the agreed upon damages.

[13] The parties also agree that, in the event the Plaintiffs in both actions are unable to recover any amount from the City of Ottawa and Raymond Richer, then in addition to the amounts under the State Farm policy, the Gardiners will recover $800,000 from Intact, being the difference between the limits of coverage in the State Farm policy ($200,000) and the Intact policy, ($1 million), plus costs.

[14] By virtue of the terms of the OPCF 44 coverage, the parties agree that in the event the Deschamps are unable to recover any amount from the City of Ottawa and Raymond Richer, then in addition to their agreed proportionate share of the State Farm policy limits, they will recover the balance of their agreed upon damages from Co-operators, plus costs.

[15] The parties in the Deschamps action have agreed to be bound by the liability findings in the Gardiner action.

The Issues

[16] Having agreed upon the matter of damages, the parties join issue on one matter only, that being the degree to which the City of Ottawa and Mr. Richer should be found liable, if at all, for the collision and resulting losses sustained by the Gardiner and Deschamps claimants. In order to arrive at a conclusion on liability, the following matters must be addressed:

a) The duty of care owed by the dominant driver, in this case Mr. Richer, with a statutory right of way;

b) The standard of care owed by the dominant driver, in this case a professional driver, to the servient driver, in this case Mr. MacDonald, as well as his passengers; and

c) Whether there is a causal link between the breach, if any, of the standard of care by Raymond Richer and the injuries and losses sustained by the Plaintiffs.

Position of the Plaintiffs

[17] The surviving occupants of the MacDonald vehicle have no memory of events leading to the collision. They rely on the hard evidence documented by members of the Ottawa Police Services (“OPS”) who investigated the collision. Investigating officers with the OPS and OC Transpo took statements from Mr. Richer and Derek Moran, an off-duty bus driver who was the only passenger on Mr. Richer’s bus at the time of this accident. As part of the investigation, police took photographs of the vehicles and measurements at the accident location. The hard evidence also includes GPS data documenting the speed at which Mr. Richer’s bus was travelling at certain locations, most notably in the last hour prior to the accident.

[18] The Plaintiffs accept that the primary cause of the accident was the negligence of the late Mark MacDonald, for which liability has been admitted. However, the Plaintiffs take the position that Raymond Richer also owed a duty of care to users of the highway, including the occupants in Mr. MacDonald’s vehicle, to exercise due care and attention to the posted speed limit, weather, and road conditions in the operation of his bus. The Plaintiffs submit that Mr. Richer failed to meet the standard of care for any reasonable and prudent driver on the night of the accident. The Plaintiffs further submit that, as a professional driver operating a city bus, Mr. Richer was obligated to meet an even higher standard of care. Finally, the Plaintiffs posit that, regardless of the standard of care applied, Mr. Richer’s conduct fell short of all standards, and that his negligence causally contributed to the accident as confirmed by the expert evidence received at trial.

[19] In short, the Plaintiffs contend that Mr. Richer placed himself in a position where he was unable to avoid a collision with the MacDonald vehicle.

Position of the Defendants

[20] The Defendants, Raymond Richer and the City of Ottawa, submit that the late Mark MacDonald was entirely to blame for this collision by proceeding through the intersection on a red light just as Mr. Richer was about to enter the intersection, thereby creating a hazard which no reasonably prudent driver operating his vehicle with the right-of-way could be expected to avoid. They take the position that if the servient driver creates an emergency by proceeding through an intersection against a red light, a dominant driver in these circumstances owes no duty of care to the servient driver or the occupants of his vehicle.

[21] These Defendants further contend that the standard of care applicable to Raymond Richer is that of the reasonably prudent person in similar circumstances, not the standard of perfection.

[22] Finally, these Defendants posit that whether or not Mr. Richer is found to have breached the standard of care in the operation of the bus on the night in question, the Plaintiffs have failed to establish that, but for his alleged negligence, the accident and resulting losses would not have occurred.

[23] In addition to the contents of a three-volume Joint Book of Documents, these Defendants rely upon the evidence of fact witnesses, Detectives Mann and Hung, Raymond Richer and Derek Moran and the expert evidence tendered on behalf of these Defendants, at trial.

The Evidence

[24] The available information documented about the accident, the weather records, and the GPS data are contained in a Joint Book of Documents filed by the parties as Exhibit 1, Volumes I to III. The expert reports of Peter Williamson of Williamson Forensic Consulting Inc., on behalf of the Plaintiffs, were filed as Exhibit 3. The expert report of Jamie Catania of Giffin Koerth Inc., on behalf of Intact Insurance, was filed as Exhibit 4, and the expert reports of Jason Young of Advantage Forensics Inc., on behalf of Mr. Richer and OC Transpo, were filed as Exhibit 8. By agreement among counsel, the content of all documents filed as exhibits was deemed to be evidence filed for its truth, whether or not specifically identified by a party or witness during the trial. The content of the Joint Book of Documents was not materially challenged by any party.

Evidence of Detective Steve Mann

[25] Det. Mann of the OPS was half way through his night shift between 9:00 p.m. and 6:30 a.m. when he was dispatched to the scene of an accident at 1:56 a.m. on January 23, 2008. He arrived on the scene six minutes later. When he got there, other police officers, fire crew, and paramedics were at the scene.

[26] Det. Mann could not recall the weather before he arrived, but made a note consistent with the weather records received at trial that it was cold and clear, at approximately -10 degrees Celsius. He further noted the roads were covered with loose, slushy snow.

[27] In reference to police photographs taken at the scene (Exhibit 1, Tab A5, pages 6 to 19), he confirmed the layout of the intersection, and where the SUV and bus each came to rest after the accident. He confirmed the photographs depicted sliding marks caused by the bus tires in the snow on the median north of the area of impact, and other tire marks leading to the resting position of the bus. He could not determine the exact point of impact between the vehicles. He also could not determine the bus driver’s path before the point of impact nor that of the SUV before it entered the intersection. He was only able to discern the path of the bus after the impact.

[28] Det. Mann did not communicate with the occupants of the SUV as others were attending to them. He spoke to the bus driver, Raymond Richer, and his passenger, Derek Moran. He received their respective versions of events and obtained statements from them, written out in their own handwriting, found in Exhibit 1, Tabs A17 and Tab A18.

[29] Det. Mann had no exact recall of road conditions for driving leading up to the time of the accident, but noted that it snowed off and on throughout the evening, a fact consistent with the weather records.

[30] In cross-examination, when referred to photographs 16 to 20 of the SUV in Exhibit 1, Tab A5, Det. Mann confirmed he was not present when the passengers were extracted from the SUV, and could not say what equipment was used to extract them.

Evidence of Det. Evan Hung

[31] Det. Hung of the OPS was on duty from 5:00 p.m. to 3:30 a.m. when dispatched at 1:58 a.m. on January 23, 2008, to the scene of an accident between an OC Transpo bus and SUV at Heron Rd. and Riverside Dr.

[32] He arrived at the scene at 2:00 a.m. and ended his shift at 8:30 a.m. on January 23, 2008.

[33] He noted that when he started his shift at 5:00 p.m. on January 22, 2008, it was -5 degrees Celsius, snowing, and the roads were “really bad.” It snowed off and on throughout his shift, but it was worse at the start. When he arrived at the scene of the accident, he observed clear tracks in the road, and while the conditions were “not great”, they were “reasonably good” in that most of the snow had melted, and the roads had a wet surface. It subsequently began to snow to the point where he could see footprints. However, his notes record that there were tire track marks left by the bus in the snow on the median after the collision with the SUV. His notes also record weather details at the beginning of his shift and at the accident scene to the effect that it was cold, the roads were slightly snow-covered and that it snowed all night.

[34] When shown the photographs at Exhibit 1, Tab A1, and in particular photographs 5 to 8, he confirmed that they depicted the vehicle locations, but did not accurately reflect the road conditions. The photographs depicted road conditions worse than what Det. Hung observed when he first arrived at the scene.

[35] It was the detective’s belief that the point of impact was within the northeast quadrant of the intersection at Heron Rd. and Riverside Dr., as this was where he found a coil and other loose debris on the road. It also appeared to him that the impact was between the SUV as it was travelling westbound on Heron Rd. and the northbound bus on Riverside Dr. He could not recall seeing gouges in the pavement.

[36] He had no evidence as to the exact path of the SUV or the bus before impact, but described the accident as a “T-bone collision.”

[37] When he arrived at the scene, he focused on the passengers in the SUV and specifically on Ben Gardiner, after Mr. Gardiner regained consciousness. Det. Hung could not say where Ben Gardiner had been seated in the car, but when police observed him, he was in the rear passenger compartment, not wearing a seatbelt amid a “jumble of bodies and body parts” in the SUV.

[38] In describing the damage sustained by the SUV in the accident as depicted by photographs 16 to 21 of Exhibit 1 at Tab A1, Det. Hung noted that he and Cst. Matamoros had to pry open the doors on the passenger side of the SUV using the Jaws of Life, and smash in windows to gain access to a passenger. He could not say what the firefighters did to the vehicle. He acknowledged that photographs 17 and 18 of the SUV were taken with the doors closed and depict significant crush damage on the left side of the SUV between the two wheel wells.

Evidence of Raymond Richer

[39] Mr. Richer is a 69 year old man whose first language is French, but who offered his recollections of the accident in English, both at his Examination for Discovery and at trial. He had no difficulty making himself understood.

[40] Mr. Richer noted that he would retire in December 2015, after driving for OC Transpo for almost 34 years. At the date of the accident, he had been driving buses for approximately 27 years.

[41] He recalled that he had been working a night shift which began at 7:30 or 8:00 p.m. on January 22, 2008. The shift required him to work the first five or six hours transporting members of the public, and the balance of the shift transporting other bus operators to and from OC Transpo bus depots. His shift would have ended at 4:00 or 4:30 a.m. on January 23, 2008.

[42] At the time of the accident, Mr. Richer was driving a standard size bus. He denied having any problems navigating the roads and described them as “all right.”

[43] After he completed the portion of his shift transporting members of the public on his bus route, he contacted his dispatcher who directed him to a bus depot where other drivers were waiting for a ride. Normally, he had approximately four drivers to transport, but at 1:00 a.m. on January 23, 2008, he was only asked to transport two. After he did so, he received a call from a dispatcher who informed him that an operator had been waiting for about an hour for pick-up at the Merivale station. He detailed the route he subsequently took from the Fallowfield station to the Merivale station. He described the roads between these two points as “mainly dry.”

[44] There was no traffic on the road before Mr. Richer arrived at the Merivale station at about 1:30 a.m. to 1:40 a.m., where he picked up an off duty operator, Derek Moran.

[45] After Mr. Moran boarded, Mr. Richer saw him walk to an area near the wheel well where he stood adjacent to the seats about ten feet behind the door and to his right. Mr. Richer was able to see Mr. Moran through the centre wide mirror. Mr. Richer recalled that Mr. Moran remained standing throughout the run.

[46] Mr. Richer described the route taken from the Merivale station through points on Colonnade Rd., Prince of Wales Dr. and Hogs Back Rd. where he waited for a traffic light to turn green. He then made a left turn and proceeded in a northerly direction on Riverside Dr. in the right lane. There was no traffic on the road.

[47] Mr. Richer estimated the speed travelled by his bus as he proceeded to the intersection at Riverside Dr. and Heron Rd. at between 55 and 60 kilometers per hour, the posted speed limit at that point being 60 kilometers per hour. He did not recall having a problem navigating the road.

[48] Mr. Richer recalled that at about 1500 feet south of the intersection with Heron Rd., the light turned green for him. He next saw what looked like an SUV approaching the intersection from his right, travelling in a westerly direction on Heron Rd. He saw its brake lights flashing, and observed that it was slowing down as though it was coming to a stop.

[49] In keeping with what he described as common practice, Mr. Richer then turned to his left, looked in his mirrors, and then turned to his right before looking ahead as he entered the intersection. It was at this point, after crossing into the intersection, that he noted the SUV at the right corner of his bus. He estimated that he was seven feet away from the SUV when he saw the driver, a young man who looked at Mr. Richer as though the young man did not realize he had entered the intersection on a red light.

[50] Mr. Richer attempted evasive action by steering towards his left and applying his brakes, but contact was made between the front of his bus and the middle of the SUV. His bus pushed the SUV to the side, and then Mr. Richer lost control as the bus proceeded towards the traffic light standard located on the median at the north side of the intersection. Mr. Richer described how he jumped out of his seat, and ducked behind the fare box before striking the traffic light post, noting he must have lost control of the bus when his foot slipped from the brake.

[51] After the bus came to rest in the ditch, he recalled that he and Mr. Moran exited the bus from the back door and approached the SUV to offer assistance. They were unable to get a response from the one female passenger who appeared to be conscious. Police and fire crew arrived and opened the SUV with the Jaws of Life. He saw “bodies come out with bottles of beer.”

[52] Mr. Richer suffered minor injuries including cuts over the face from the windshield shattering. He was nonetheless able to give a statement to police at the scene and testified that he did so without others present. He declined medical attention or treatment for physical injuries or counselling and returned to work the next day.

[53] Mr. Richer was wearing his glasses at the time of the accident. After the collision, he briefly spoke with Derek Moran only to confirm that he was ok.

[54] Mr. Richer testified that, in his mind, he has gone “over and over” what he could have done to avoid collision with the SUV. To his way of thinking, the only thing he could have done was to make a full stop as he approached Heron Rd. on a green light, noting “nobody does that.”

[55] In cross-examination and in reference to the contents of the Official Bus Handbook published by the Ontario Ministry of Transportation in Exhibit 6, Mr. Richer confirmed that he received the special training required by the Ministry to obtain a class “C” licence to drive a bus. He was also required to pass rigorous medical, visual, knowledge and driving tests to obtain and to renew his operator’s licence at various times. The special training he received included defensive driving.

[56] When referred to excerpts from the City of Ottawa Transit Operations Handbook (Exhibit 1, Vol. I, Tab 6), Mr. Richer confirmed the Major Job Responsibilities as published in September, 2007 for a Class “C” licence transit operator required him to :

[S]afely operate a transit vehicle in accordance with Transport Canada and all related federal laws, the Ontario Highway Traffic Act, the Quebec Highway Code, RSQ, the Bylaws of the City of Ottawa, rules and regulations of Transit Services and the policies and procedures, including the Code of Conduct and Workplace Harassment Policy of the City of Ottawa.

[57] Mr. Richer was referred to other excerpts from the Official Bus Handbook, which required him to have knowledge of measures promoting passenger safety and control, including the safety of other bus operators he transported to and from bus depots.

[58] Of particular note, Mr. Richer confirmed the contents of a Fact Sheet published by the Ministry of Transportation in January 2005, which pertained to commercial drivers, including those with Class C licences, who reported for mandatory medical review on a regular basis. The Fact Sheet spelled out the requirements for commercial drivers, including mandatory hearing standards and mandatory vision standards, as follows:

Commercial drivers (Classes A, B, C, D, E, and F) are required to submit a medical report when they apply for a licence. Commercial drivers are required to meet higher standards because:

• They drive longer hours, often in poor weather conditions;

• Are subject to greater physical demands due to driving large heavy vehicles [Emphasis added]

[59] Mr. Richer agreed that his job responsibilities required that he observe safe and responsible driving protocol, including the taking of special precautions spelled out in the Official Bus Handbook excerpts found in Exhibit 7, as follows: “Bad weather requires all drivers to adjust their driving habits and take extra care.”

[60] He also agreed that the defensive driving protocol in the Handbook provided as follows:

The most important concern for a bus driver is the safety of the passengers. Professional drivers who carry passengers must observe the rules of the road, understand and practice defensive driving, and take special precautions in loading and unloading.

The professional looks ahead, thinks ahead, acts early and drives defensively. A person who drives defensively:

• keeps space around the vehicle

• keeps his or her eyes moving and sees what is happening far ahead and to the sides

• checks the mirrors frequently

• recognizes possible danger far enough in advance to take preventive action

• makes allowances for the errors of other drivers and pedestrians

• gives up the right-of-way if it will avoid possible danger to the driver or passengers

• makes allowances for the rapidly changing conditions of the road, weather and traffic…

• drives at a safe speed slowing when road conditions can affect stopping distance or vehicle control [Emphasis added]

[61] Mr. Richer confirmed that the Handbook also spelled out a number of ways to help make Ontario’s roads safer; it set out the requirement for a bus operator to obey the speed limits, and to slow down when road and weather conditions are poor.

[62] Mr. Richer admitted that the excerpts read to him included all things a reasonably prudent bus driver should do as a professional driver. He confirmed the standards apply whether he is transporting a member of the public or a co-worker.

[63] Mr. Richer confirmed that OC Transpo buses have a speed governor controlling the maximum speed of a bus. OC Transpo’s mechanics adjust each bus to a maximum speed of between 80 to 100 kilometers per hour. Mr. Richer agreed that a standard bus weighs between 10 and 12 tons depending on the year of manufacture. He admitted that, because of the weight and mass of a bus, it takes longer for a bus to stop and can do more damage in a collision. On the other hand, he resisted the notion that a bus would be more difficult to manoeuvre than the average vehicle, given his driving experience. He nonetheless agreed that the faster the bus travels, the longer it takes to stop and, depending upon the speed of travel, it can be more difficult to manoeuvre.

[64] He initially testified that it was his usual practice to travel five kilometers more or less than the posted speed limited. However, when referred to the transcript of his Examination for Discovery, he confirmed that he had testified it was his practice to go five kilometers below the posted speed limit.

[65] He confirmed his evidence in-chief that, at the time of the accident, the roads were dry. However, when referred to the Accident Incident Report (Exhibit 1, Vol. I, Tab B4) that he prepared at the request of OC Transpo on the night of the accident, he reluctantly admitted he had described environmental conditions to include ice, sleet and snow/slush covered roads. He tried to suggest that after the accident he was still in shock, but that his memory today was that the roads were nice or “not that bad.” When it was suggested to him that the weather records obtained for January 22, and all other documentation describing the weather, referred to the roads as being snowy and slushy, consistent with the information he provided to OC Transpo in the Accident Incident Report, Mr. Richer conceded that his memory of the road conditions immediately following the accident would be better than his memory of conditions at the time of trial.

[66] When referred to the transcripts of his Examination for Discovery, Mr. Richer agreed that, at that time, he had described conditions for the evening of the accident to include snow and slush but added that the roads were “not bad.” At trial, Mr. Richer offered more detail, as follows: “the road was still nice, if I recall”, noting roads had been salted up to the pavement, and that there was snow and slush on the sides of the road. In cross-examination, Mr. Richer offered no resistance to the suggestion that his professional obligations required him to take road conditions into account, and make adjustments for the road conditions, as it would not be reasonable in the circumstances to go faster than the speed limit. Indeed, he initially said “and I wish I did” but then quickly added: “no, I did.”

[67] He agreed with the suggestion that it would have been reasonable for him to travel five kilometers below the posted speed limit of 60 kilometers per hour, or at approximately 55 kilometers per hour, on the evening of the accident, as he approached the intersection of Riverside Dr. and Heron Rd.

[68] In further reference to transcripts of his Examination for Discovery, Mr. Richer denied that he had any problem applying his brakes before the accident, but agreed that with conditions of ice, sleet and snow/slush, he was required to make adjustments that evening. He could recall no incident prior to the collision where he had a hard time bringing his bus to a stop.

[69] When referred to a map prepared by the Plaintiffs’ expert, Peter Williamson, (Exhibit 3, Tab 1, Page 9) which incorporates the GPS recorded data taken from the bus after 1:00 a.m. on January 23, 2008 overlaid on a map, Mr. Richer confirmed that he had seen the map on a prior occasion, but vigorously denied that it accurately reflected the route he drove prior to the accident. He testified that it would be impossible to travel the route depicted by Mr. Williamson’s map in 58 minutes or less. On the other hand, he agreed that no other bus had been involved in an accident at Riverside Dr. and Heron Rd. that evening.

[70] Presented with the suggestion that he had been speeding in the hour prior to the collision, which might explain how he covered the route depicted by Mr. Williamson’s map, he reiterated that he usually stays within five kilometers more or less of the speed limit. When reminded that his testimony at the Examination for Discovery was that it was his practice to drive five kilometers below the posted speed, Mr. Richer again offered resistance and responded that he tried to do so. He proceeded to add that the GPS on OC Transpo buses were outdated, at least 15 years old and, that two years after the accident, were taken out of service because “90 per cent of them were not working properly.”

[71] Mr. Richer had to be taken to his Examination for Discovery transcripts once again to confirm that he clearly stated he usually drove his bus at about five kilometers under the posted speed limit. In response, he argued that the GPS was inaccurate, and without providing particulars, claimed that this had been proven many times. He described the GPS on buses as “hokus pokus.” In short, he stubbornly resisted the suggestion that the GPS recorded the bus route he drove in the hour leading up to the accident, and that the only way he could have covered the route in the 58 minutes before the accident was if he was speeding.

[72] Mr. Richer confirmed that he had not taken any course of instruction on GPS, nor had any special expertise with which to challenge the GPS records. He was in no position to state to what degree the GPS record would have been inaccurate on January 23, 2008, other than to note that he worked with them every day, and that the GPS system was “a made up thing.” After he maintained that he would not have travelled in excess of the posted speed limit by as much as 20 kilometers per hour, and was taken to the data, he had to agree that the last part of the route tracked by the GPS, which he admitted to be the route travelled by his bus, included a data point on Prince of Wales Dr. at 1:49:54 a.m. that revealed his bus travelled at 83.3 kilometers per hour in a 60 kilometer per hour zone on Prince of Wales Dr.

[73] Similarly, at 1:50:27 a.m., while proceeding in a northerly direction on Prince of Wales Dr., Mr. Richer’s bus was recorded to have travelled at a speed of 75.7 kilometers per hour, well in excess of the posted speed limit of 50 kilometers per hour. In the face of the record undermining this evidence, Mr. Richer continued to deny the speed travelled by his bus, offering only that the GPS data recorder was often “5 to 10 kilometers off.” He added that even today, the GPS on buses is “5 to 10 kilometers off.”

[74] When Mr. Richer was advised that the City of Ottawa was not calling evidence to support his testimony that OC Transpo buses carry GPS systems that were significantly unreliable, Mr. Richer then returned to the suggestion that the map prepared by Mr. Williamson tracking GPS data points was not the one that accurately depicted the route of the bus prior to the accident, other than the last part travelled from Prince of Wales Dr. to the location of the accident.

[75] Mr. Richer admitted that when he arrived at the Merivale station to pick up Mr. Moran, Mr. Moran was pretty upset because he had waited an hour or more for transport to the St-Laurent station, where his car was parked. Mr. Richer agreed that all Mr. Moran spoke of after he was picked up was how long he had had to wait; although Mr. Richer tried to calm him down.

[76] When referred to an aerial photograph of Riverside Dr. (Exhibit 1, Tab A7), Mr. Richer confirmed the location of a bus shelter adjacent to the northbound lane on Riverside Dr., at or about 180 meters south of the intersection at Riverside Dr. and Heron Rd. When it was put to him that the GPS last recorded his speed as he approached the intersection at 65.6 kilometers per hour in the vicinity of the bus shelter in a 60 kilometer per hour zone, and he was reminded that he testified to the practice of travelling five kilometers below the posted speed limit, Mr. Richer responded that it was “impossible sir” that he had travelled approximately ten kilometers above a speed of 55 kilometers per hour.

[77] Mr. Richer confirmed that, as he was approaching the intersection at Heron Rd., he had no distractions or worries. He confirmed that, after he saw the SUV brake lights, he turned to his left to check his mirrors, and then to his right. He confirmed he would normally take his foot off the accelerator and put it over the brake pedal to “get ready”; but by the time he turned his attention back to the road ahead, the SUV was at the right corner of his bus and he only had time to tell to Mr. Moran to “hang on” and to steer to the left and brake. He did not stop before striking the SUV.

Evidence of Derek Moran

[78] Mr. Moran gave evidence that on January 22, 2008, he had been driving buses for OC Transpo for about nine years and ended his shift at about 1:00 a.m. on January 23, 2008 at the Merivale station. He then reported to a dispatcher in order to arrange a drive back to where his vehicle was parked at the St-Laurent bus station.

[79] Mr. Moran testified that he waited almost an hour for Mr. Richer to pick him up. He also readily agreed that Mr. Richer drove from Kanata to pick him up, contrary to Mr. Richer’s evidence that he had not traveled from Kanata in the 57 to 58 minutes prior to the accident, as recorded by the GPS on his bus.

[80] Mr. Moran recalled that after he boarded Mr. Richer’s bus, he stood in the aisle behind Mr. Richer and to his right, and held on to a stanchion rail.

[81] Mr. Moran did not make note of the time that it took Mr. Richer to drive the bus from the Merivale station to the intersection at Hogs Back Rd. and Prince of Wales Dr., where they stopped for a red light. He guessed it took somewhere between four to five minutes.

[82] He did not recall any traffic on the road other than to note it was light and characteristic of the hour, that being at or around 2:00 a.m. He did not recall anything unusual about the road conditions that night.

[83] Mr. Moran testified that after Mr. Richer turned left onto Riverside Dr., and proceeded in a northerly direction, he had a solid green light on approach to the intersection at Heron Rd.

[84] In describing events as Mr. Richer drove along Riverside Dr., up to and including the accident, Mr. Moran repeatedly used the first person plural in ascribing observations he alone made on approach to the location of the collision. As an example, he noted “we observed” a black SUV westbound on Heron Rd., as it was slowing down giving every indication it would stop at the red light for westbound traffic on Heron Rd. When they were very close to the intersection with Riverside Dr. and it appeared the SUV had breached the stop line, he recalled that Mr. Richer exclaimed that the SUV was not going to stop; and then saw it travel in front of the bus.

[85] Although Mr. Moran gave evidence that he remained standing throughout the journey from the Merivale bus station, in a spot to the right and back of Mr. Richer, he claimed to have observed the driver of the SUV look up at the last moment with an astonished expression before the collision. At the same time, he said that before impact he stepped back, grabbed another stanchion rail and crouched to brace himself before collision.

[86] In describing the moments after the collision, Mr. Moran confirmed that the bus pushed the SUV through the intersection, hit the median on the far side of the intersection further north of the point of impact, crossed the southbound lanes and came to rest in the ditch off the southbound lane on Riverside Dr. He could not recall at what point the bus stopped pushing the SUV in a northerly direction.

[87] After he and Mr. Richer exited from the back of the bus, the front door having been blocked and damaged by the traffic light post striking the side and roof of the bus, they went to offer assistance to the occupants of the SUV. He noted that the driver was unconscious and that, of the other four occupants in the vehicle, only the female passenger in the right front passenger seat was conscious. Other than damage to the driver’s side of the SUV, Mr. Moran had no recollections about the state of the vehicle. He notes only that the police arrived before long and directed him and Mr. Richer away from the SUV.

[88] Mr. Moran confirmed that he and Mr. Richer provided statements to police and to an OC Transpo supervisor. He could not recall where they were when the statements were taken, other than to note standard procedure was to prepare statements on a bus. Unlike Mr. Richer, he stated that there were other people around him when he wrote out his statement, including other emergency response personnel, Mr. Richer, his transit supervisor and an employee from the Employee Assistance Program. Unlike Mr. Richer, he said that he and Mr. Richer engaged in conversation until they left the scene of the accident. As did Mr. Richer, he returned to work the next day after declining the offer of treatment or counselling.

[89] At the end of his testimony, when asked to recall what he saw Mr. Richer do when the SUV appeared in front of his bus, Mr. Moran testified that “we had a hard brake application.” Although he did not see Mr. Richer’s foot on the brake pedal, he felt the brakes engaged and he recalled the bus veering away slightly to the left. He recalled that there was a very small window of time between when they saw the SUV in the intersection and the impact.

[90] In cross-examination, Mr. Moran confirmed that when he saw the SUV before the impact, he took one step back and to the right while facing forward and crouched down, holding onto two stanchion rails. However, in reference to photographs of the bus interior (Exhibit 1, Vol. I, Tab A1, pages 31 and 34), Mr. Moran was unsure which of two yellow bars he grabbed onto across the aisle and behind Mr. Richer. Nevertheless, he confirmed that he moved back because of what he saw, not because of what Mr. Richer said. He moved back and crouched down in order to brace himself for impact, after which Mr. Richer applied the brakes and steered to the left.

[91] Notably, Mr. Moran did not recall any deceleration in speed as Mr. Richer approached the intersection of Riverside Dr. at Heron Rd. and did not look at Mr. Richer’s speedometer.

[92] In re-examination, Mr. Moran added that Mr. Richer proceeded at a constant speed from when he reached a “normal” driving speed after the bus turned left onto Riverside Dr. until the last second before impact, when Mr. Richer applied the brakes.

Expert Evidence

[93] Three expert witnesses testified at the trial of this action. Peter Williamson of Williamson Forensic Consulting Inc. gave evidence for the Plaintiffs. Jamie Catania of Giffin Koerth Inc. gave evidence on behalf of the Defendant, Intact, and Jason Young of Advantage Forensics testified for the Defendants, the City of Ottawa and Raymond Richer.

[94] All three witnesses were qualified to give opinion evidence as experts in accident reconstruction. Mr. Young was further qualified as an expert on human factors such as cognitive, physical, and perceptual limitations affecting ability to perceive and react to hazards. While Mr. Williamson and Mr. Catania were not recognized as experts on human factors, per se, they were deemed capable of testifying on the technical aspects of human factors such as perception reaction time.

[95] Mr. Williamson focuses 90 per cent of his work in accident reconstruction on motor vehicle collisions. The other two experts, while qualified to give opinion evidence in motor vehicle accident related cases, have allocated their time to more varied litigation, including product liability. More importantly, and as I will note later in these Reasons, Mr. Williamson alone acquired special training and experience with the PC Crash software used by all three experts herein, having been one of two lead engineers in British Columbia who for four years provided technical support in North America for PC Crash. He thus acquired first-hand knowledge in staging the software and proficiency in its use. After moving to Ontario, he undertook advanced courses in PC Crash software. He noted the new features of the software did not substantially alter its operation.

The Available Data

[96] All three experts relied on the same body of information.

[97] Mr. Williamson alone examined the vehicles and measured the extent of the crush damage to the SUV. Mr. Catania and Mr. Young each relied on Mr. Williamson’s measurements to form their respective opinions.

[98] Aside from the crush measurements, one of the most important pieces of hard evidence available to the experts was the post-impact location of the MacDonald vehicle.

[99] GPS data from Mr. Richer’s bus recorded in the hour prior to the accident also played a key role in the experts’ analyses (Exhibit 1, Vols. 2 and 3). In particular, the bus GPS system recorded two data points on Riverside Dr. before the accident. The first showed a speed of 37.5 kilometers per hour near the intersection of Hog’s Back Rd. and Riverside Dr. after Mr. Richer stopped for a red light and turned left onto Riverside Dr., proceeding in a northerly direction towards the accident location. The second point recorded a speed of 65.6 kilometers per hour at a point 180 meters south of the intersection where the accident occurred. A third point was recorded after the accident, 22 seconds after the second data point on Riverside Dr.

[100] The experts also relied on photographs taken by the police after the collision (Exhibit 1 at Tabs 1, A1 and A5) and a scale diagram of the accident site prepared by the investigating police officers (Exhibit 1 at Tab A5).

Unknown Elements

[101] The analysis of this accident was unusually complicated. The following factors enhanced the difficulty of accurate accident reconstruction:

• There were no gouge marks in the pavement, or tire skid marks at the scene of the collision;

• The exact point of impact was unknown;

• By the date of the expert examination of the location of the accident, there was no debris marking the approximate location of impact;

• The post-impact location of the bus was of very limited use in determining the point of impact or the pre-impact speed of the vehicles, due to the fact that the bus also hit a traffic signal pole and Mr. Richer likely stepped on the accelerator after the impact;

• There was no crash test data available for a 1992 Toyota 4Runner, the SUV MacDonald was driving. This required each expert to make a judgment call on the use of appropriate crash test data from the National Transportation and Safety Association (NTSA) on comparator vehicles, and on how to account for the differences between the SUV and the comparator vehicles in arriving at an estimated change in velocity (Delta-V) of the MacDonald SUV on impact, a value which then allowed them to opine on the impact and pre-impact speeds of the bus.

Techniques used by the Experts

[102] Using the same body of evidence, the three experts conducted a number of tests to arrive at their findings. To varying degrees, all three experts considered the same four techniques to arrive at or “check” their findings:

• Crush test analysis;

• Computer simulations using PC Crash software;

• GPS analysis; and

• Crash avoidance analysis.

Crush Test Analysis

[103] The crush test analysis was performed by comparing the measurements of the crush damage sustained by the MacDonald SUV to data from tests conducted on similar vehicles, and accounting for the weight differential between the vehicles involved in this accident. This comparison allowed the experts to determine the change in velocity, or Delta-V, of the MacDonald vehicle at impact. The Delta-V, as calculated, was then used to estimate the likely speed that each vehicle was travelling at the time of impact. Mr. Williamson used the program WinCRASH to make these calculations. Neither Mr. Catania nor Mr. Young identifies the program that they used in their respective analyses.

[104] To arrive at an approximate Delta-V, each of the experts compared the measurements taken of the MacDonald vehicle to available information for similar comparator vehicles: Mr. Williamson used the data from tests involving a 1988 Chevrolet S10 pickup truck and a 1988 Nissan pickup truck; Mr. Catania used the test data for a 1999 Toyota 4Runner; and Mr. Young used test data for 1991 and 1993 Toyota pickup trucks.

[105] The experts agreed that the comparator vehicles used by Mr. Williamson and Mr. Young would result in an underestimate of the Delta-V, while the comparator vehicle used by Mr. Catania would result in an overestimate. The 1988 trucks and the Toyota pickups are “softer” vehicles, while the 1999 4Runner is “stiffer” than the 1992 4Runner operated by Mr. MacDonald due to the addition of side impact beams in models of the same 4Runner manufactured in or after 1996.

[106] These differences limit the accuracy of the crush test analysis, although the choice of comparators made by the experts rendered their conclusions more or less probable than others, as these Reasons will later reveal.

PC Crash Simulations

[107] After obtaining an estimated Delta-V from the crush test analysis, the experts were able to input this data into specialized software to determine the closing speeds of the vehicles. PC Crash is one such simulation program that is available to help determine the impact speeds of the vehicles based on the final resting place of each vehicle and the Delta-V.

[108] Mr. Williamson ran simulations, but placed more weight on his crush test analysis, noting that these simulations rely on many variables and have limited accuracy. He used PC Crash simulations to “check” the strength of his crush analysis. As did all experts, Mr. Williamson used PC Crash primarily for his crash avoidance analysis.

[109] Both Mr. Catania and Mr. Young ran PC Crash simulations to determine the pre-impact speed of the bus. Both factored the final resting place of the MacDonald vehicle into their PC Crash simulations, using this methodology as a “check” for the results of their crush analysis.

GPS Analysis

[110] The experts disagreed on the usefulness of the GPS data. While Mr. Williamson analysed the GPS data to demonstrate that Mr. Richer was speeding at many times that night. Mr. Williamson concluded that the 22-second interval between the last data point recorded before the accident at 1:54:20 a.m. and the first data point recorded immediately after the collision at 1:54:42 a.m. allowed for too much variation to provide an accurate estimate of the pre-impact speed of the bus. His analysis showed that a pre-impact speed of anywhere from 65 to over 80 kilometers per hour could “fit” the GPS data.

[111] Mr. Catania and Mr. Young both found the GPS data more useful. Both used the GPS data to confirm the range of the bus pre-impact speed they arrived at using other techniques.

[112] Mr. Catania’s GPS analysis relied on two core assumptions:

1. That the impact occurred 198 meters away from the last recorded GPS point at or in the vicinity of a bus shelter off the northbound lanes of Riverside Dr. near where the bus was determined to be travelling at 65.6 kilometers per hour; and

2. That the speed of the bus declined gradually from the point of impact to its rest position. His GPS analysis confirmed the impact speed estimates generated by his crush analysis. It also allowed him to estimate the interval of time between the last recorded GPS point and the time of impact, thus arriving at a pre-impact speed for the bus.

[113] Mr. Young approached the information from a different perspective, first calculating the likely time of the collision, and then working back to determine the average speed of the bus as it travelled between the last recorded pre-collision GPS point on Riverside Dr. and the estimated point of collision, 190 meters north of this point. Using the known speed of 65.6 kilometers per hour at the last recorded GPS point and his calculation of average speed, Mr. Young was able to arrive at an estimate of the peak speed over this span of road and the likely pre-impact speed of the bus.

Collision Avoidance Analysis

[114] Mr. Williamson and Mr. Catania both performed hypothetical avoidance analyses using the PC Crash software. These analyses assumed that all factors, such as road conditions, the speed of the MacDonald vehicle and the location of the bus at the moment the MacDonald vehicle entered the intersection, would have remained unchanged, except for the pre-impact speed of the bus. Mr. Williamson and Mr. Catania based their respective analyses on an estimated elapsed time of approximately three seconds between when the MacDonald SUV crossed the stop line on Heron Rd. at the intersection with Riverside Dr. and the time of the impact. Mr. Young estimated the interval at 2.4 seconds. All three experts used Mr. Young’s estimated 1.9 second reaction interval, which accounted for both Mr. Richer’s reaction time upon detecting or perceiving the emergency created by the MacDonald SUV entering the intersection into the path of the bus, and the lag inherent in the bus’s air brake system before deceleration occurs following application of the breaks. They also used an estimated speed of 24 kilometers per hour for the MacDonald vehicle at impact.

[115] Mr. Williamson and Mr. Catania inputted their respective estimates of the most likely actual pre-impact speed of the bus into PC crash simulation programs, and then substituted a hypothetical speed of 60 kilometers per hour before re-running the simulation. This allowed the experts to opine on whether the accident could have been avoided, had the bus been travelling at the posted speed limit of 60 kilometers per hour at the time of detection of the hazard created by the MacDonald vehicle.

[116] Mr. Young also conducted a collision avoidance analysis using PC Crash software. His analysis concentrated on average human reaction times and hazard recognition. The utility of Mr. Young’s analysis was limited by the fact that, rather than analysing whether Mr. Richer could have avoided the accident by travelling at the posted speed limit, Mr. Young focussed on whether Mr. Richer could have avoided the accident by responding differently at the time the hazard presented itself. Specifically, Mr. Young assessed whether Mr. Richer began braking and steering away from the MacDonald SUV in a timely manner and whether with a faster reaction Mr. Richer could have avoided the collision.

Expert Conclusions

[117] None of the experts found that Mr. Richer failed to employ measures to avoid the collision when faced with the sudden hazard of the MacDonald vehicle. However, each expert reached different estimated pre-impact and impact speeds for the bus. Further, Mr. Williamson and Mr. Catania concluded that, had Mr. Richer been travelling at the posted speed limit, the accident could have been avoided. In my opinion, Mr. Young failed to adequately address this hypothetical situation.

Mr. Williamson

[118] Mr. Williamson’s crush tests rendered a Delta-V of approximately 54 kilometers per hour for the SUV. He modelled the bus as a “moving barrier” with a mass of 13,100 kilograms. He did not consider the damage to the bus in the calculations, given its size and mass in comparison to the MacDonald SUV. Mr. Williamson used the available crush stiffness coefficients for a 1988 Chevrolet S10 pick-up truck and a 1988 Nissan pick-up truck, both of which would result in an underestimation of the closing speed of the bus. Using this information and WinCRASH software, Mr. Williamson arrived at the following speed calculations for the bus: a pre-impact speed of about 76 kilometers per hour and an impact speed of approximately 70 kilometers per hour.

[119] Mr. Williamson ran PC Crash simulations to “check” his crush test calculations. His PC Crash results suggest an impact speed of 72 to 77 kilometers per hour for the bus. Further, Mr. Williamson calculated that the post-impact motion of the vehicles could support an impact speed of up to 80 kilometers per hour for the bus.

[120] After considering all of the evidence, Mr. Williamson’s expert opinion was that the impact speed of the bus was likely between 70 and 80 kilometers per hour, with an impact speed below 70 kilometers per hour being unlikely. Given the minimal braking time, this would result in a pre-impact speed for the bus of between 73 and 85 kilometers per hour.

[121] Mr. Williamson’s avoidance analysis determined that the collision could have been avoided had Mr. Richer been travelling at the posted speed limit of 60 kilometers per hour at the time of detection of the hazard – that is, Mr. MacDonald crossing into the intersection. Mr. Williamson constructed his hypothetical scenarios from the starting point of a pre-impact speed of 70 kilometers per hour and a reaction time of 1.9 seconds, as suggested in Mr. Young’s report. In cross-examination, Mr. Williamson conceded that, using Mr. Young’s assumptions, the analysis suggests that a pre-impact speed of 61 kilometers per hour would still have resulted in a collision.

[122] However, if Mr. Richer’s reaction time were changed to 1.1 seconds, instead of 1.9 seconds as assumed by Mr. Young, the accident would have been avoidable at pre-impact speeds of up to 72 kilometers per hour. A reaction time of 1.1 seconds is the average reaction time, while the 1.9 seconds used at by Mr. Young is in the 85th percentile, which assumes that 85 per cent of individuals would have reacted faster than Mr. Richer. The 1.9 second value included a 0.4 second allowance for Mr. Richer to move his foot from the accelerator to the brake pedal. However, Mr. Richer testified that his foot was already hovering over the brake pedal as he approached the intersection.

Mr. Catania

[123] Mr. Catania’s crush test rendered a Delta-V of approximately 59 kilometers per hour for the SUV. Like Mr. Williamson, he modelled the bus as a “moving barrier” with a mass of 12,520 kilograms and did not consider the damage to the bus in the calculations. Mr. Catania used the available crush stiffness coefficient for a 1999 Toyota 4Runner, a vehicle of similar size and weight to the MacDonald SUV. Using a process of trial and error, Mr. Catania estimated that the impact speed of the bus must have been approximately 60 to 65 kilometers per hour to match the Delta-V for the SUV.

[124] PC Crash simulations resulted in bus impact speeds of 60 to 70 kilometers per hour being most likely. The GPS data confirmed this range, but suggested that an impact speed at either end of the range would be highly unlikely.

[125] Using these calculations, Mr. Catania was able to work backwards, as did the other experts, to estimate an average speed of 71 kilometers per hour between the last recorded GPS point, in the vicinity of the bus shelter and the point of collision, and a “peak” speed of around 76 kilometers per hour over this same interval. Mr. Catania noted that these values suggest the bus was accelerating for most, or all, of the 198 meters it covered immediately before the accident, a distance it covered in approximately ten seconds.

[126] All experts agreed that the danger of the MacDonald SUV would be perceived when it crossed the western edge of the stop line on Heron Rd. and entered the intersection. Mr. Williamson and Mr. Catania opined that approximately three seconds elapsed from the time the Macdonald SUV crossed this stop line to the point of impact. Therefore, Mr. Richer had three seconds to react and implement his reaction maneuvers.

[127] Like Mr. Williamson, Mr. Catania’s avoidance analysis concluded that the collision could have been avoided had Mr. Richer been travelling at the posted speed limit of 60 kilometers per hour at the time of detection of the hazard posed by the MacDonald SUV.

Mr. Young

[128] Mr. Young’s crush test analysis produced a Delta-V of 44 kilometers per hour for the SUV. Mr. Young used the available crush stiffness coefficients for 1991 and 1993 Toyota pickup trucks, which he admitted would have resulted in an underestimation of the Delta-V. Mr. Young therefore adjusted the Delta-V upwards to 54 kilometers per hour.

[129] Mr. Young’s PC Crash simulations based on these values resulted in an impact speed of the bus of approximately 55 to 65 kilometers per hour.

[130] Both Mr. Williamson and Mr. Catania commented critically on Mr. Young’s findings and questioned Mr. Young’s analysis based on his choice of comparator vehicles. Mr. Williamson noted that Mr. Young’s Delta-V value did not coincide with the severe crush damage suffered by the MacDonald vehicle, and therefore underestimates the speed of the bus on impact and pre-impact. Mr. Catania commented that the comparator vehicles chosen by Mr. Young had significantly different body types and were far lighter than the MacDonald SUV, belonging in the same weight class as subcompact sedans. Mr. Catania also demonstrated that Mr. Young’s findings were inherently inconsistent: a Delta-V of 44 kilometers per hour, along with Mr. Young’s calculated bus impact speed of 55 to 65 kilometers per hour, would have required the bus to drive through the SUV after impact. This clearly did not happen.

[131] Mr. Young’s analysis of the GPS data resulted in an average speed of 65 kilometers per hour and a “peak” speed of 71 kilometers per hour for the bus over the distance between the last recorded GPS point, in the vicinity of the bus shelter, and the point of impact. This result was based on an estimated 11-second interval between the time the bus passed the last recorded GPS point and the time it arrived at the point of impact and an estimated distance of 190 meters between the two points. Mr. Young arrived at 11 seconds as the most likely time interval by analysing the distribution of intervals in GPS data collected over a three day period from January 22 to January 25, 2008, and postulating that the collision occurred at the time of the missing data point, interfering with the GPS signal. Based on this data, Mr. Young concluded that the likely pre-impact speed of the bus was 66 kilometers per hour and that the Mr. Richer likely braked for one second or less prior to impact.

[132] I accept the opinions of Mr. Williamson and Mr. Catania to the effect that Mr. Young’s GPS conclusions are unduly speculative. Mr. Young professed to having no expertise in GPS systems. He also failed to address the concerns raised by Mr. Williamson in the latter’s second and third reports as to the merits of Mr. Young’s GPS analysis.

[133] Mr. Young’s accident avoidance analysis concluded that Mr. Richer was not provided with sufficient opportunity to avoid the collision by steering or braking. As noted, Mr. Young did not analyse whether the accident could have been avoided had Mr. Richer been travelling at the posted speed limit. His conclusions are further drawn into question by his decision to attribute to Mr. Richer a quicker than expected steering avoidance response time, while simultaneously attributing a slower than average (85th percentile) reaction time to Mr. Richer for braking speed, even though Mr. Richer had his foot over the brake pedal as he entered the intersection.

[134] Mr. Williamson’s supplementary reports demonstrated that attributing an average reaction time to Mr. Richer would have resulted in likely avoidance of the collision at pre-impact speeds of up to 72 kilometers per hour.

The Law

Statutory Framework

[135] Sections 144(12) and 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8 define the actions that drivers may take when approaching an intersection controlled by traffic lights:

Green light

(12) A driver approaching a traffic control signal showing a circular green indication and facing the indication may proceed forward or turn left or right unless otherwise directed.

Red light

(18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

Applicable Legal Principles

Duty of Care

[136] It is a longstanding principle that a driver entering an intersection has a duty to act so as to avoid a collision, if reasonable care will prevent it (Walker v. Brownlee, 1952 CanLII 328 (SCC), [1952] 2 D.L.R. 450 (SCC) at 460 [Walker].

[137] The Ontario Court of Appeal in Sant v. Sekhon, 2014 ONCA 623, 68 M.V.R. (6th) 1 [Sekhon], recently refined the parameters of the duty of care, as follows:

A driver with a green light is free to go through the intersection assuming that drivers approaching the intersection from other directions and who are necessarily being shown a red light will stop. However, a statutory right of way does not absolve a driver from exercising proper care. A driver should not exercise his or her right of way 1) if the driver becomes aware or should become aware that the driver without the right of way is going to go through the intersection and 2) if the circumstances are such that the driver with the right of way had the opportunity to avoid the collision. (Sant at para. 4)

[138] Courts have generally adopted the following terminology: the driver with the right of way is described as ‘dominant’, while the driver who must yield is described as ‘servient.’

Standard of Care

[139] The dominant driver will be held to the standard of care of a reasonable and skillful driver in the same circumstances (Walker at 461. See also Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 at para. 69, [2007] 2 S.C.R. 129). The dominant driver will be fixed with some responsibility if he or she had a reasonable opportunity to avoid the collision but failed to do so (Knight v. Li, 2011 BCSC 184 at para. 17).

[140] In determining whether the standard has been met, a court must consider all of the actions of the dominant driver and how those actions relate to the perception of the hazard. Relevant factors for consideration can include speed, distraction, and the size and weight of the vehicle. In Kroonen v. Trail, 1998 CanLII 4854 (B.C.S.C.), the court considered these factors to find that a dominant driver had breached the standard of care. The driver was operating a heavily loaded vehicle while travelling over the speed limit, speaking with a passenger and glancing at a sign at the time of the accident. The court found that “had Mr. Marshall met the standard of care expected of him, he would have had an opportunity to avoid the accident” (at para. 32).

[141] Travelling over the speed limit does not, in itself, constitute negligence. The rate of speed that will be considered excessive is a factual determination that will vary from case to case (Martin v. Powell, 1928 CanLII 459 (ON CA), [1928] 4 D.L.R. 149 (Ont. S.C. (A.D.)). In general, “[t]ravelling over the speed limit will only constitute negligence if the speed prevented the driver from taking reasonable measure[s] to avoid the collision” (Cooper v. Garrett, 2009 BCSC 35 at para. 42).

[142] In Saldana v. Caruana, 2015 ONSC 4426, Faieta J. concluded that not adjusting driving speed to account for poor weather conditions amounted to a breach of the standard of care. In Saldana, the dominant driver, Mr. Caruana, was travelling at approximately 10 kilometers per hour under the posted speed limit on a snow-covered, slippery road. He proceeded through the intersection on a green light and collided with a vehicle turning left. He testified that he had difficulty seeing the other vehicle, but that he attempted to avoid the collision by steering and applying his brakes once he became aware of the other vehicle’s presence. The court found Mr. Caruana at least 1 per cent liable for the collision: “He failed to exercise reasonable care to avoid the collision. Caruana was simply travelling too fast given the poor visibility and slippery, snow-covered road conditions even if his vehicle was travelling at a speed that was less than the posted speed limit” (Saldana at para. 62).

[143] The ‘relevant circumstances’ may also take into account the expertise of the driver. Professionals can be held to a higher standard than the general public when performing their professional duties. A professional “must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances” (Hill at para. 70). Though this is a heightened standard, it is not a standard of perfection (Hill at para. 73).

[144] In Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6, 329 O.A.C. 173, the Ontario Court of Appeal upheld the trial judge’s decision to apply the standard of “a reasonable bus driver in like circumstances” to a Greyhound driver involved in an accident after a passenger grabbed the steering wheel. In this case, the trial judge addressed the question of “whether the bus driver used all due, proper and reasonable care and skill in the circumstances” (at para. 65). The Court of Appeal approved of the trial judge’s examination of “Greyhound’s training materials and … other expert evidence adduced by the appellants” to determine the standard of care (at para. 66).

Causation

[145] There is no doubt, and all parties agree, that the applicable test for causation is the “but for” test. In order to establish causation under this test, a plaintiff must show that “the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence” [emphasis in original] (Clements v. Clements, 2012 SCC 32 at para. 8, [2012] 2 S.C.R. 181 [Clements]).

[146] In keeping with earlier jurisprudence, the Supreme Court in Clements held that the “but for” test “must be applied in a robust, common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury” (at para. 9). The earlier jurisprudence holds that a judge is permitted to draw a common sense inference that the defendant’s negligence caused the loss when provided with “[e]vidence connecting the breach of duty to the injury suffered” (Clements at para. 10. See also Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 at 330-332). A court is thus to weigh all the evidence presented and come to a factual determination as to whether the injury would have occurred “but for” the defendant’s negligence.

Application of the Law

Duty of Care

[147] The duty of care of a dominant driver entering an intersection on a green light vis-à-vis a servient driver required to stop on the red is clearly delineated by long-standing legal authority. Despite having the statutory right-of-way, a driver in the shoes of Mr. Richer is required to yield the right-of-way where, exercising proper care, circumstances dictate he ought not to exercise the statutory right-of-way. The statutory right-of-way ought not to be exercised in circumstances where:

1. The driver becomes aware or ought to have been aware that the driver without the right-of-way is proceeding through the intersection on a red; and

2. If circumstances are such that the driver with the right-of-way has the opportunity to avoid a collision. (Sekhon at para. 4)

[148] In this case, Mr. Richer was bound by that duty.

[149] The Plaintiffs took no issue with the fact that the late Mark MacDonald was primarily responsible for creating the emergency or hazard to which Mr. Richer had to respond on January 23, 2008. This is consistent with well-established law that a servient driver entering an intersection on a red light is negligent; perhaps even grossly negligent (Chaschuk v. Lebel (1981), 12 M.V.R. 228 at 232 (Ont. C.A.)).

[150] On the other hand, while the law recognizes that there is no duty on a driver to anticipate that other drivers will disobey a traffic control device and that a driver is free to assume that drivers approaching the intersection from other directions shown a red light will stop, the statutory right-of-way does not absolve the driver from exercising proper care (Sekhon at para. 4). The law remains that a driver entering an intersection with the right-of-way “is bound to act so as to avoid a collision if reasonable care on his part will prevent it. To put it another way, he ought not to exercise his right-of-way if the circumstances are such that the result of his doing so will be a collision which he reasonably should have foreseen and avoided” (Walker at 460).

[151] Mr. Richer admitted that according to the training and experience he acquired in the course of employment and pursuant to the Ministry of Transportation and Official Bus Handbook policies, there was a duty upon him to:

1. respect the provisions of the Highway Traffic Act by observing the posted speed limit;

2. drive defensively by giving up the right-of-way if by doing so he could avoid possible collision with other vehicles;

3. make allowances for conditions of the road, by driving in such a way and at such a speed as to maintain vehicle control, and

4. manoeuvre at a distance and in such a way so as not to preclude safe stopping or averting of a collision.

[152] Mr. Richer admitted that the duties he was bound to observe as a professional driver applied on the night of the collision. He admitted these duties applied even though he was driving a “work bus”, out-of-service to the regular public, transporting other bus drivers.

Standard of Care

[153] The parties agree that the applicable standard of care must be discerned by reference to the circumstances in play. The Supreme Court in Hill held that “the general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances” (at para. 69). McLachlin C.J. went on to say “[the] standard is not perfection, or even the optimum, judged from the vantage of hindsight: but reasonableness only” (Meady at para. 73).

[154] The requirement that Mr. Richer observe the standard of care of a reasonably prudent driver in like circumstances does not preclude a finding that as a professional driver, he should be held to a higher standard. Indeed, the Ontario Court of Appeal has recognized that: “the general standard of care of a professional…is a question of law, but the content of the standard of care in a particular case is a question of fact” (Meady at para. 34). In other words, Mr. Richer’s conduct may be judged through the lens of the “reasonable bus driver in like circumstances” (Meady at para. 65).

[155] I did not receive expert evidence defining the standard of care applicable to a bus driver in the circumstances faced by Mr. Richer. However, as recognized by the Ontario Court of Appeal in Meady, expert evidence is not required for “non-technical matters or those of which an ordinary person may be expected to have knowledge” (at para. 35). I find the standard of care in this case does not give rise to considerations beyond common understanding. Expert evidence is unnecessary given the admissions made by Mr. Richer, coupled with the documentary record including excerpts from the Ministry of Transportation Official Bus Handbook. These documents suffice to delineate the content of the standard of care to be applied to Mr. Richer in this case.

[156] On the facts of this case, including the documentary record, I find that Mr. Richer was obliged to drive with due regard to the posted speed limit, while alive to the weather and road conditions, with attention to the traffic, sparse or otherwise, before him as he approached and subsequently entered the intersection at Riverside Dr. and Heron Rd. In addition, as he quite properly conceded, these collective responsibilities were to be carried out in such a manner as not to lose sight of the fact that he, alone, controlled the manoeuvrability and capacity of a vehicle that weighed in excess of 12,000 kilograms. The training he was required to pursue to obtain and maintain his class “C” licence, and the experience that he acquired over 27 years of driving prior to the date of the accident, obliged him to consider all of these factors and to act in such a way while driving defensively that would not invite risk and/or preclude his ability to stop or steer the mass and weight of a city bus away from the hazard presented by Mr. MacDonald’s SUV.

Breach of the Standard of Care

[157] I agree with a number of the propositions urged upon me by the Defendants, Mr. Richer and the City of Ottawa, although I arrive at findings and make inferences contrary to their cause.

[158] First, I agree with the proposition that the protracted testimony of the experts tendered at trial, coupled with the complex analysis contained in the experts’ reports while not unhelpful and certainly critical to the question of whether the accident could have been avoided, made it clear the Experts were hampered in their ability to arrive at conclusions with the degree of precision favoured by their science. Fortunately, the law does not require scientific precision in the analysis of proof on a balance of probabilities. In discussing the opinion of experts in medical cases, the Supreme Court long ago held that, while many experts deal in certainties, the civil standard deals only with probabilities (Snell at p. 330).

[159] I agree with the observation made on behalf of Mr. Richer and the City of Ottawa that the fact evidence received at trial from the only persons with memory of the collision, Raymond Richer and Derek Moran, and from the police officers who subsequently investigated the accident was pivotal in this case. In addition, the hard data offered by the weather records, and the data points recorded by the GPS on Mr. Richer’s bus were of great assistance.

[160] Secondly, I accept the general proposition that a driver travelling in excess of the posted speed limit will not per se be found negligent. Where the speed travelled is prudent and reasonable in the circumstances, courts have declined to find the decision to exceed the speed limit negligent (see e.g. Boxenbaum v. Wise, 1944 CanLII 40 (SCC), [1944] S.C.R. 292; Coy v. Godin (1980), 1980 CanLII 3264 (NB CA), 31 N.B.R. (2d) 1 (C.A.)).

[161] I also have no quarrel with the submission that the rate of speed which may be considered excessive and thereby constitute negligent driving, will vary depending on the nature and the condition of the particular road travelled upon and the traffic faced by the driver. As all parties agreed in this case, the speed of the dominant driver exercising reasonable prudence is a question of fact that turns on the circumstances of each case (Martin at p.153; Saldana at paras. 62-63).

[162] The testimony of the fact witnesses, and Mr. Richer in particular, with the evidence generated by police investigation, and contained in the weather records and the data recorded by the GPS on Mr. Richer’s bus, persuade me that Mr. Richer failed to meet the standard of care a reasonably prudent bus driver in multiple respects, not limited to excessive speed. The evidence of Derek Moran did little to persuade me otherwise. The expert evidence provided by Jason Young, on behalf of Mr. Richer and the City of Ottawa, failed to buttress, or rehabilitate the evidence received through Mr. Richer in such a way as to negate the indicia of negligence.

[163] After hearing the evidence of Mr. Richer, I referred the parties to the dicta of Watt J.A. in R. v. C.(H.), 2009 ONCA 56 at para. 41, which are of great guidance in evaluating the credibility and reliability of testimony proffered by a witness. Justice Watt described the difference between these concepts as follows:

Credibility and reliability are different. Credibility has to do with a witness’ veracity, reliability with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately:

i) observe;

j) recall; and

k) recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

[164] While Mr. Richer’s evidence contained credible admissions with respect to the bounds of his duties as a professional driver, his evidence was neither reliable nor credible on questions material to issues of liability in this case.

[165] The weather conditions as recorded by Environment Canada disclosed that on January 22, 2008, snow fell each hour between 3:00 a.m. and 8:00 p.m. and again from 10:00 p.m. to 11:00 p.m., resulting in a total snowfall of 9.8 centimetres that day. The temperature in the late afternoon and evening of January 22, 2008, fell to between -6 and -7 degrees Celsius, but dropped to -8 by 11:00 p.m. The temperature continued to drop: by 1:00 a.m., it was -10.3 and at 2:00 a.m., it was -10.7.

[166] Detectives Mann and Hung confirmed that the snowfall was heavier in the first part of their respective shifts. Det. Hung testified to some improvement by the time of the accident, although the roads were certainly wet and snow-covered or slushy at places. The information contained in the weather records, and as proffered by the testimony of the police officers reconciles with the information Mr. Richer provided in the OC Transpo Incident Report (Exhibit 1, Tab B4) which he prepared on the day of the accident. He checked off the prevailing weather conditions to include “ice/sleet” and “snow/slush.”

[167] The police photographs clearly depict that the roads were not dry, and that slush and snow covered the sides and medians along the highway.

[168] Mr. Richer testified that he encountered no traffic on the highway as he proceeded in a northerly direction on Riverside Dr. towards the intersection with Heron Rd. The only obstacle within view was the SUV driven by Mr. MacDonald, which approached the intersection in a westerly direction. Derek Moran offered a similar observation that traffic was light and in keeping with the hour. However, even accepting Mr. Richer’s experience and facility in manoeuvering the mass of the bus, confirmed by Mr. Catania to weigh approximately 12,520 kilograms, as compared with the MacDonald SUV with its passengers weighing in at approximately 2,059 kilograms, I note Mr. Richer’s admission that given the ratio in the weight of the bus to SUV of 6 to 1, it would take much longer to stop the bus. Mr. Richer admitted that because of the weight of the bus, it would do more damage on collision with another vehicle.

[169] Mr. Richer clearly acknowledged his obligation to adjust his driving to accord with the weather and, in particular, when it is cold and the road surface is wet. He agreed that it is not prudent to go faster than the speed limit when it is cold and wet. He agreed that it is prudent in these circumstances to go slower. Mr. Richer testified that his own practice was to travel at least five kilometers per hour below the speed limit; although he unsuccessfully attempted to resile from or qualify this evidence of his usual practice, provided at his Examination for Discovery.

[170] Mr. Richer did not fare well when cross-examined with respect to the data recorded by the GPS on his bus. Mr. Richer’s credibility was damaged beyond repair when he attempted to refute the unchallenged evidence that he covered a bus route coming in from Kanata before he picked up Derek Moran at the Merivale station prior to the collision. He refused to admit that he would have covered the route in a timeframe of approximately 57 or 58 minutes, which left no conclusion other than the likelihood that he was speeding at various stretches over the course of his route.

[171] Presented with the data that the GPS recorded speeds travelled by his bus of as much as 25 kilometers per hour over the posted speed limits, Mr. Richer offered all manner of excuses including the fact that he had not travelled the route he undoubtedly travelled prior to the accident. He later admitted that no one else travelled the route that night and that no other bus but his was involved in the collision. He was constrained to admit that he was the driver who, after picking up Mr. Moran, proceeded along Colonnade Rd. and on Prince of Wales Dr. at stretches where he was clearly recorded to be travelling at over 20 kilometers per hour in excess of the speed limit. Amid futile attempts to challenge the GPS-recorded data as “hokus pokus”, when referred to the fact that he travelled at 65.6 kilometers per hour, above the posted speed limit of 60 kilometres per hour, only 180 meters south of the intersection with Heron Rd., Mr. Richer claimed it was “impossible.” The evidence taken from the GPS is that he had accelerated from 37.5 kilometers per hour after turning left onto Riverside Dr. from Prince of Wales Dr. to 65.6 kilometres per hour between these two points.

[172] When reminded of his alleged practice to travel five kilometers below the posted speed limit, Mr. Richer blurted out “I wish I did” at a point most vulnerable in his cross-examination. He quickly doubled over this admission and claimed that he did so on the night of the accident, and that the GPS was simply wrong.

[173] I am satisfied that Mr. Richer did not slow down after travelling 65.6 kilometers per hour as he approached the intersection with Heron Rd. I further find that given his pattern of speeding along the route, the lack of traffic other than Mr. MacDonald’s SUV as he approached the intersection, and the fact that his co-worker, Derek Moran, vented the entire time after pick-up at the Merivale station about the amount of time he had had to wait for a ride from Mr. Richer, there is every likelihood that Mr. Richer continued to travel at a speed or speeds above the posted limits as he approached and entered the intersection with Heron Rd.

[174] The decision made by Mr. Richer to travel above the posted speed limit in the circumstances was not the only choice made that amounted to negligent operation of the bus. In addition, having admitted that his training and experience would require him to adjust his driving in bad weather or to account for a cold and wet road surface, he chose not to make any adjustments despite the environmental conditions he reported in the OC Transpo Incident Report to include “ice/sleet” and “snow/slush” on the road surface. Despite his acknowledgement that due to the weight and mass of the bus it took longer to stop and made it more likely to do damage to another vehicle on impact, he chose not to make adjustments for the conditions. I find that Mr. Richer ought to have been traveling with greater caution with due regard for the weather and road conditions. The unchallenged evidence of Mr. Catania was that a wet and slushy road surface would have resulted in a reduced co-efficient of friction between bus tires and road surface, a factor which, coupled with excessive speed, would have compounded the challenge faced by Mr. Richer in driving defensively and eventually facing the hazard posed by the MacDonald vehicle as it entered the intersection.

[175] Finally, in addition to traveling in excess of the speed limit, and failing to adjust his driving to account for weather and road conditions, Mr. Richer chose to look away from the road ahead of him as he approached and entered the intersection in the seconds before collision with the MacDonald SUV. I find that he ran the risk of delayed perception and reaction to the hazard posed by the MacDonald SUV by conforming to a practice of turning left, looking in both mirrors and then turning right before bringing his attention to the road ahead, at which point he was faced with the MacDonald SUV seven feet from the corner of his bus. Both Mr. Richer and Mr. Moran recalled there being no traffic on the road aside from the MacDonald SUV along Riverside Dr. and Heron Rd. that would have required Mr. Richer to turn his attention away from the road and intersection ahead. I find that this unfortunate and short-lived inattention compounded the risk subsequently faced by the presence of the SUV in the intersection.

[176] Mr. Moran’s evidence raised alert. By the manner in which he testified, and repeatedly gave evidence in the first person plural, I could not rule out that Mr. Moran was partial to Mr. Richer’s cause. Moreover, I was not satisfied, given his preoccupation with having had to wait for almost an hour to be picked up by Mr. Richer, that he was overly concerned by Mr. Richer’s acceleration from 37.6 kilometers per hour at the second last GPS data point on Riverside Dr. to 65.6 kilometers per hour at the last pre-collision GPS data point. I find that Mr. Moran was likely more concerned that he had been left waiting as long as he had at the Merivale station. Indeed, he spoke of nothing else throughout the ride, despite the fact that Mr. Richer tried to calm him down.

[177] Furthermore, I am mindful of the fact that, after boarding Mr. Richer’s bus, Mr. Moran stood at some distance behind and to the right of Mr. Richer. Mr. Moran’s evidence was that he was not able to see Mr. Richer’s speedometer or to note other signs of acceleration along Riverside Dr. in the 180 meters from the bus shelter off the northbound lanes of Riverside Dr. to the intersection with Heron Rd.

[178] Mr. Moran’s evidence in cross-examination was that he did not feel the bus decelerate on the approach to the intersection.

[179] In short, Mr. Richer’s recollection of the accident cannot be reconciled with the data recorded by the GPS on his bus. Furthermore, the reliability of Mr. Richer’s memory cannot be buttressed by the observations and recollection of Mr. Moran as to the circumstances of the accident.

[180] Moreover, I find that the expert evidence addressing the contribution of speed to this accident demonstrates that Mr. Richer was speeding as he approached the intersection of Riverside Dr. and Heron Rd.

[181] As all experts who testified observed, despite the lack of hard data precluding an ability to pin point the location of the impact, and the absence of tire marks from which to discern the pre and post-impact movement of the vehicles, their use of other analytical approaches allowed them to postulate as to the pre-braking speed of the bus as it approached and entered the intersection of Riverside Dr. and Heron Rd. when met with the hazard created by the MacDonald SUV. The GPS data was also available to the experts, along with the scaled diagram of the scene prepared by police and the crush damage to the MacDonald SUV, from which to carry out their respective analyses of pre-impact speed of the bus. Quite apart from the various uses to which the GPS data was put by the experts, the data unequivocally established that Mr. Richer’s bus travelled at a speed of 65.6 kilometres per hour 180 meters south of the intersection. No evidence was received from Mr. Richer or Mr. Moran that the bus decelerated on its approach to the intersection and before braking in response to the MacDonald SUV as it entered the intersection.

[182] I am satisfied by the preponderance of the evidence received from Derek Moran, and from Messrs. Williamson and Catania in their respective approaches to accident reconstruction, that there is a better than 50 per cent chance that Mr. Richer did not decelerate from the 65.6 kilometers per hour speed recorded 180 meters south of the intersection. I am further satisfied that the pre-impact speed of the bus, based on the opinions of Mr. Williamson and Mr. Catania, exceeded 65.6 kilometers per hour after it entered the intersection with Heron Rd. As I have already concluded, the evidence proffered by Jason Young raised multiple concerns which ultimately laid in question his opinion.

Analysis of Causation

Did Raymond Richer’s breach of the standard of care causally contribute to the accident?

[183] The onus is upon the Plaintiffs to establish that but for the acts and omissions of Mr. Richer the collision between his bus and the MacDonald SUV would have been avoided.

[184] The onus is not upon the Plaintiffs to satisfy me to a degree of scientific precision. In accordance with guidance offered in Clements at para. 9, “[t]he ‘but for’ causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.” By employing a robust and pragmatic approach to the facts as I have found them, I conclude that the Plaintiffs have met their onus. In so doing, I prefer the opinion of Peter Williamson and Jamie Catania over that of Jason Young which I find to be unsound in relation to accident avoidance. However, I would hasten to add that my findings with respect to the expert opinions reconcile with the evidence received from Mr. Richer and Mr. Moran and satisfy me on a balance of probabilities that, but for Mr. Richer’s negligence, the collision could have been avoided.

[185] All experts were ad idem that the danger of the MacDonald SUV would have been perceived by Mr. Richer when it crossed the western edge of the stop line on Heron Rd. and entered the intersection. Mr. Richer reacted to the perceived danger by steering to the left and by application of hard braking. It was his habit to have his foot hover over the brake through an intersection.

[186] Mr. Catania determined that Mr. Richer would have had 2.9 seconds from the time the MacDonald SUV crossed into the intersection to the moment of impact to avoid the collision. Mr. Williamson similarly determined that Mr. Richer had approximately three seconds to react and employ evasive measures. Mr. Young concluded that, of these three seconds, Mr. Richer required a 1.9 second perception reaction time, which includes 0.4 seconds for the “lag” of the air brake on the OC Transpo bus. Mr. Young’s conclusion left approximately one second of braking time before impact. Mr. Young agreed that the average driver’s perception-reaction time for an unexpected hazard, such as that posed by the MacDonald SUV, is 1.1 seconds. However, Mr. Young chose to use a perception reaction time of 1.5 seconds, being at the 85th percentile for perception reaction time. In other words, 85 per cent of drivers would respond faster than Mr. Richer to the perceived danger. Adding an additional 0.4 seconds for the “lag” of the air brakes, Mr. Young opined that it took Mr. Richer 1.9 seconds to respond to the danger. Mr. Young admitted that by using a slower perception reaction time for braking, Mr. Richer’s ability to avoid a collision with the MacDonald SUV was thereby reduced.

[187] Mr. Young’s choice to use a slower than average perception reaction time for braking is noteworthy given Mr. Young’s conclusion that Mr. Richer had a better than average reaction time when steering. Having concluded that Mr. Richer reacted by steering in 0.8 seconds, well under the average of 1.1 seconds, as compared to the slower reaction time for braking, Mr. Young admitted that he had no evidence to support using an 85th percentile for braking, and a better than average percentile for steering. In addition, he agreed that he did not take into account the evidence of Mr. Richer that he had his foot off the accelerator and hovering over the brake as he came into the intersection, a fact that would have reduced his braking time.

[188] I do not neglect to note that Mr. Young criticized Mr. Williamson’s avoidance analysis in Figure 9 on Page 12 of his second report in Exhibit 3, which suggested that the perception response time began before Mr. MacDonald’s SUV crossed into the intersection and as the SUV was positioned further north in the westbound lane of travel. In his third report, at Figure 5 on page 9, Mr. Williamson addressed those criticisms: he moved the SUV into the centre of the lane, and advanced it to be at the inside edge of the lane. Mr. Williamson redid his simulation and confirmed that, even with these changes the accident was avoidable.

[189] Both Mr. Williamson and Mr. Catania demonstrated in their respective simulations using PC Crash that the accident would have been avoided had Mr. Richer travelled at the posted speed limit of 60 kilometers per hour, or in accordance with his stated practise of traveling five kilometers below the posted speed limit. As previously noted, both Mr. Williamson and Mr. Catania conducted a comparative collision avoidance analysis relying on Mr. Young’s assumptions, including:

1. An impact speed for the bus of 60 kilometers per hour;

2. That the SUV slowed to 10 kilometers per hour before accelerating into the intersection;

3. That the SUV was traveling at 24 kilometers per hour at impact; and

4. That the deceleration of the bus started 1.9 seconds after the SUV crossed the stop line.

[190] Mr. Williamson’s avoidance analysis using Mr. Young’s assumptions was depicted in a diagram at Figure 8 on page 11 of Mr. Williamson’s second report and adjusted, to account for Mr. Young’s criticisms, in Figure 5 on page 9 of his third report. Maintaining all of Mr. Young’s assumptions, but adjusting the pre-braking speed of the bus to the posted speed limit of 60 kilometres per hour at the moment of detection graphically demonstrates that “but for” Mr. Richer’s speeding the accident would have been avoided.

[191] Mr. Williamson’s third report offered a different way of undertaking the avoidance analysis, which I found helpful. Using all of Mr. Young’s assumptions, Mr. Williamson determined that in order for the bus to miss the SUV, the SUV only needed to travel 2.8 meters further to clear the width of the bus on its angled path. Travelling at 24 kilometers per hour, it would thus take the SUV 0.42 seconds to travel the 2.8 meters required to avoid collision. By traveling at a lower speed and covering a shorter distance during the assumed reaction time, there was more time and distance available for Mr. Richer to brake, steer and avoid a collision. In his second report, and in his testimony, Mr. Williamson demonstrated that even if the bus travelled at a pre-braking speed of 72 kilometers per hour, the accident could have been avoided.

[192] I have considered a submission on behalf of Mr. Richer and the City to the effect that neither Mr. Williamson nor Mr. Catania conclusively stated that Mr. Richer did not take reasonable steps to avoid collision when confronted with the sudden hazard. I accept that Mr. Williamson admitted in cross-examination that he never suggested Mr. Richer did not act in a timely manner. On the other hand, this evidence must be considered in the context of all of the evidence received, and with due regard to the fact that Mr. Richer drove in a manner that did not adjust for weather and road conditions, and involved speeding and momentary inattention to the intersection ahead of him, when Mr. Richer chose to look left, then into his mirrors, and right before returning his attention to the front of his bus. After that, Mr. Richer had time to comment to Mr. Moran that the SUV was not stopping, steer to the left and brake. Moreover, Mr. Moran, after seeing the emergency himself, had time to move across the bus to another stanchion and crouch down before the impact.

[193] On the evidence received from the experts, with due regard to the evidence of Mr. Richer and Mr. Moran, I find the accident could have been avoided but for Mr. Richer’s negligence.

Conclusion

[194] In determining as I have that this tragic accident is causally linked to Mr. Richer’s negligence, it bears repeating that Mr. MacDonald was primarily responsible for the carnage that resulted. Without holding Mr. Richer to the standard of perfection, but acknowledging his stated understanding of his obligations as a professional driver, I conclude that it would be appropriate to ascribe to Mr. Richer a degree of fault for the unfortunate choices he made affecting his driving as he approached and crossed the path of the errant MacDonald SUV. Having reviewed those cases produced by counsel that apportion liability in collisions of this type, I conclude that a fair apportionment in this case would be to hold the late Mr. MacDonald 80 per cent responsible for the accident, and Mr. Richer 20 per cent at fault.

[195] Liability findings in this action shall apply to the Deschamps v. MacDonald action, Court File No. 13-58375.

[196] In accordance with the agreement of counsel in relation to costs, if the parties are unable to arrive at an agreement, I will receive written submissions in the timeframe and of the length agreed. The successful party or parties shall deliver costs submissions of no more than eight to ten pages within 30 days of these Reasons for Judgment. The responding parties shall deliver costs submissions of no more than eight to ten pages within 15 days thereafter, the reply to which, if any, shall be delivered within seven days and shall not exceed five pages.

[197] I thank counsel for the skill and professionalism with which they conducted this trial.

Madam Justice Toscano Roccamo

Released: January 26, 2016

CITATION: Gardiner v. MacDonald, 2016 ONSC 602

COURT FILE NO.: 10-47447

DATE: 20160126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BEN GARDINER and SAMANTHA GARDINER

Plaintiffs

-and-

ANDREW MacDONALD as Litigation Administrator for the Estate of Mark MacDonald, THE CITY OF OTTAWA, RAYMOND RICHER, 1292002 ONTARIO LTD. (o/a GRACE O’MALLEY’S), PETER HAMILTON, GEOFFREY GARRETT, SEAN HILLIKER, TUCKER McCABE, THE CLOCKTOWER BREW PUB LTD., JANE DOE, JOHN DOE, CARLETON UNIVERSITY STUDENTS’ ASSOCIATION INC. (o/a OLIVER’S PUB), GSA CARLETON INC. (o/a MIKE’S PLACE), INTACT INSURANCE COMPANY (formerly known as ING INSURANCE COMPANY OF CANADA)

Defendants

-and-

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Added by Order pursuant to Section 258(4) of the Insurance Act, R.S.O. 1990, c. I8.

Third Party

REASONS FOR JUDGMENT

Toscano Roccamo J.

Released: January 26, 2016