Editor’s note: Corrigendum released on January 31, 2017, 2017 and appended to the original decision. The corrections were not integrated in the original reasons.

CITATION: Chiocchio v. Ellis, 2016 ONSC 7570

COURT FILE NO.: 08-2596

DATE: 2016-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL CHIOCCHIO SR., AMY DOWLING, AND MICHAEL CHIOCCHIO JR., BY HIS Litigation Guardian, MICHAEL CHIOCCHIO SR.

Michael D. Smitiuchi, for the Plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr., by his Litigation Guardian, Michael Chiocchio Sr.

Plaintiffs

• and -

RICHARD ELLIS, WENDY ELLIS and THE CORPORATION OF THE CITY OF HAMILTON

Joe Masterston for the Defendants Richard Ellis and Wendy Ellis;

T.R. Shillington and Jonathan de Vries, for the Defendant, The Corporation of The City of Hamilton

Defendants

HEARD: November 23, 24, 25, 28, 29 and December 1, 2016

REASONS FOR JUDGMENT

The Honourable Mr. Justice Skarica

OVERVIEW

[1] This is a civil trial involving issues of negligence and contributory negligence arising out of a motor vehicle collision that caused life-changing injuries to the plaintiff Michael Chiocchio Sr.

[2] On April 29, 2006, Mr. Chiocchio Sr. was a passenger in a minivan driven by his girlfriend, Amy Dowling.

[3] Ms. Dowling was driving north on Brock Road approaching 5th Concession West in Flamborough in the City of Hamilton. Richard Ellis was stopped at the stop sign on the east end of the intersection and drove his vehicle westward into the intersection and his Buick sedan collided with the minivan being driven by Ms. Dowling. The minivan rolled over and struck a pole.

[4] Mr. Chiocchio Sr. suffered a fractured cervical spine and was rendered a quadriplegic as a result of the accident.

ISSUES

[5] The main issue at trial involved liability: which parties were negligent and to what extent did their negligence contribute to the accident?

[6] Liability issues involve the following parties:

1. The City of Hamilton pursuant to section 44 of the Municipal Act, 2001, S.O. 2001, c. 25, for alleged failure to keep the relevant roads in a reasonable state of repair.

2. Richard Ellis for alleged negligence in entering the intersection when it was unsafe to do so. Wendy Ellis was the owner of the Buick sedan being driven by Richard Ellis.

3. Amy Dowling for alleged negligence in not taking appropriate steps to avoid the accident.

ISSUE #1 – LIABILITY OF THE CITY OF HAMILTON

FACTS

1. THE EVIDENCE OF THE PLAINTIFF MICHAEL CHIOCCHIO SR.

[7] Michael Chiocchio Sr. (“Mr. Chiocchio”) testified that he was born on September 13, 1968. On April 29, 2006, the day of the accident, he was 37 years old.

[8] On April 29, 2006, his girlfriend Amy Dowling and their 16-month-old son, Michael Jr., visited Ms. Dowling’s parents in Paris, Ontario. They drove to Paris in her blue 1999 Grand Caravan (“minivan”).

[9] Mr. Chiocchio, Ms. Dowling and Michael Jr. left Paris at about 3.30 to 4.00 p.m. in Ms. Dowling’s minivan. Mr. Chiocchio drove initially but at a Tim Horton’s café, Ms. Dowling took over the driving chores. Mr. Chiocchio was in the front passenger seat and Michael Jr. was in the back.

[10] It was a clear, sunny day. Ms. Dowling drove the minivan onto Brock Road and travelled north approaching the 5th Concession West intersection. She was travelling at the speed limit which was 80 kilometres per hour. Mr. Chiocchio had no concerns regarding her driving. Ms. Dowling had not consumed drugs or alcohol that day.

[11] Mr. Chiocchio noticed the Ellis vehicle on 5th Concession West when it was 150 feet away from the minivan. He asked Ms. Dowling why that guy was not moving and told her to watch out for him as he had been there for some time. He saw the Ellis vehicle at the stop sign. The front of the vehicle was at the stop sign and no portion was ahead of the stop sign.

[12] Ms. Dowling did nothing and continued to drive. Mr. Chiocchio saw the vehicle come at them when it pulled out from its position at the stop sign. Mr. Chiocchio reached for the steering wheel. It all happened in a blur or in a flash; the vehicle impacted the minivan and Mr. Chiocchio heard a loud noise. The next thing he knew he was being pulled out of the minivan which had lodged on a telephone pole.

[13] In cross-examination, it was pointed out that the police observed a drug pipe and rolling papers. Mr. Chiocchio did not know if Ms. Dowling was smoking that day. It was suggested that Ms. Dowling was exceeding the speed limit but Mr. Chiocchio denied that.

[14] Ms. Dowling did not apply the brakes. Mr. Chiocchio is not an expert but he has avoided many accidents and Ms. Dowling should have been able to avoid the accident. Mr. Chiocchio had a concern that the Ellis vehicle might go and he believes that Ms. Dowling should have put on her brakes to avoid the accident.

[15] Before the accident, Mr. Chiocchio did not see the Ellis vehicle moving forward. When the minivan got beside the Ellis vehicle, the vehicle accelerated and hit them.

[16] Mr. Chiocchio did not see the Ellis vehicle go up to the stop line. He observed the Ellis vehicle stopped at the stop sign. Mr. Chiocchio did not see any other vehicles around either the Ellis vehicle or their minivan.

2. THE EVIDENCE OF DEREK TOPHAM

[17] On the day of this accident, Derek Topham was parked at 872 Brock Road, which is a home located at the northeast corner of Brock and 5th Concession West. Mr. Topham was standing on the back of his truck and did not see the collision. He was 40 yards from the intersection. He heard a crash and saw a van roll over two times in the air and strike a fence.

[18] Mr. Topham went to the van and told the man in the Caravan not to move and he phoned 911.

[19] In March of 2003, Mr. Topham started to date Nicole Simpson who lives at 872 Brock Road with her parents.

[20] There are lots of accidents at that intersection. He can hear car noises when he is in the house. Sometime before 2006, a pick-up truck drove into the house. He could not recall the stop line and could not comment on the pavement markings at the intersection.

[21] In cross-examination, Mr. Topham testified that there were regular accidents at the intersection but he did not see any specific accident.

[22] When he stops at the stop sign at 5th Concession West intersection on Brock Road, he is able to see the oncoming traffic.

3. THE EVIDENCE OF LOUISE MAWER

[23] Louise Mawer has resided at the intersection of 6th Concession West and Brock Road for 26 years.

[24] Over the years, Brock Road has become a significant trucking route for northbound trucks. Ms. Mawer is aware of six accidents in 26 years at the intersection of 6th Concession and Brock Road. She has been involved in two near misses at the intersection of Brock and 5th Concession West. On both occasions, she was travelling southbound on Brock Road when a westbound vehicle shot out in front of her. She avoided an accident due to her habit of slowing down when she nears the intersection as she never knows what is coming out.

[25] In 2003, Ms. Mawer organized a petition requesting the installation of tiger stripes (reflective markers attached to the bottom of stop signs, also known as “tiger tails”) on the concession roads between Highway 5 and Safari Road intersecting Brock Road. This would include the stop signs at 5th Concession West and Brock Road. The petition was entered as Exhibit 1.

[26] Ms. Mawer vaguely recalls a thin white stop line at the concession roads. Since 2014, there has existed a huge white stop line, while the stop signs have a flashing light on top and the intersections are well lit and noticeable.

[27] In cross-examination, Ms. Mawer indicated that the two near misses were in 2003 and sometime before respectively.

[28] The tiger stripes on the stop signs have improved the safety situation. When you stop at Brock Road going westbound on 5th Concession West, the view of southbound traffic to your right is blocked by a house and you have to pull out into the intersection to see oncoming southbound traffic. If you look to the left for oncoming northbound traffic, you can see oncoming traffic 100 feet away and not farther due to trees and brush.

4. THE EVIDENCE OF JEFF DUNFORD

[29] Jeff Dunford is an operations supervisor for Hamilton paramedic services.

[30] Mr. Dunford attended at the accident scene. He observed that the male passenger in the minivan was injured and the attendants took steps to immobilize his spine with a specialized device referred to as a K.E.D.

[31] Mr. Dunford spoke to the driver of the sedan and asked if he had been injured. The driver was not injured and was walking around. The driver said that the minivan came out of nowhere.

[32] Mr. Dunford did not notice any markings at the intersection.

[33] In cross-examination, Mr. Dunford indicated that it is not his practice to look for markings. His priority is to look after patients and ask about speed, seat belts and deployment of air bags.

5. THE EVIDENCE OF CONSTABLE DAVID INGRASSIA

[34] Constable David Ingrassia is a Hamilton police officer who investigated the April 29, 2006 accident and had, at that time, 16 years’ experience as a police officer.

[35] Constable Ingrassia attended the scene at 5th Concession West and Brock Road and noticed a van farther up on the road. It was wedged up on a pole. There was a man in the passenger side and a lady outside was holding a little boy.

[36] Constable Ingrassia spoke to both drivers. On the strength of his interviews and measurements, he determined the speeds and how the collision occurred, as well as the points of impact and where the vehicles came to rest. Constable Ingrassia took relevant measurements and prepared the Motor Vehicle Accident Report (accident report) that was entered as Exhibit 3.

[37] Constable Ingrassia took a witness statement from the driver of the sedan, Mr. Ellis. This witness statement was entered as Exhibit A.

[38] Exhibit 2 is a police document brief and Tab 4 contains a number of pictures taken by forensic identification officers. The photos contain a variety of pictures of the intersection from different angles. The officer testified that there was a faded stop line just after the police tape attached to the westbound stop signs at the intersection of 5th Concession West and Brock Road. However this stop line cannot be seen in the photos.

[39] Constable Ingrassia took measurements from the stop line. A driver going westbound stopped at the intersection has clear sight for oncoming northbound traffic coming from the left for about 250 metres down Brock Road. For oncoming southbound traffic coming from the right, the view down Brock Road is blocked by the house at the northeast corner; accordingly, a driver must pull closer to the intersection to see oncoming southbound traffic.

[40] The Exhibit 3 accident report includes Constable Ingrassia’s estimate that, at the time of the accident, the Ellis vehicle was travelling at ten kilometres per hour on 5th Concession West and the van was travelling at 82 kilometres per hour on Brock Road. The speed limit is 80 kilometres per hour.

[41] Constable Ingrassia had another officer proceed northbound on Brock Road toward the intersection starting at about 300 to 400 metres south of 5th Concession West. The officer was asked to proceed at speeds of 80, 100 and 120 kilometres per hour. Constable Ingrassia determined that there was a clear sight line at the intersection of 250 metres for approaching northbound traffic.

[42] Constable Ingrassia did not believe that Ms. Dowling had been travelling at 82 kilometres per hour as the damage was more consistent with damage that he has seen at accidents occurring at higher speeds on Highway 6 and the 403.

[43] Mr. Ellis was charged with a Highway Traffic Act, R.S.O. 1990, c. H.8, (“HTA”) offence: starting from a stopped position and entering an intersection not in safety contrary to subsection 142(2) of the HTA. Section 136 of the HTA requires a person entering an intersection to yield the right of way to traffic in the intersection.

[44] Constable Ingrassia has investigated accidents at Brock Road before. There are more than the average number of accidents on that road. Brock Road is hilly and accidents are caused by drivers blowing through stop signs. Brock Road is patrolled for speeders.

[45] In cross-examination, Constable Ingrassia indicated that the forensic identification officers take photos of everything they can.

6. THE EVIDENCE OF JASON YOUNG

[46] Jason Young is a forensic engineer who was qualified to give expert opinion evidence in the areas of human factors and road design assessments as they relate to accidents. His C.V. was entered as Exhibit 5.

[47] Exhibit 6 includes figures contained in Mr. Young’s reports of May 30, 2016, August 24, 2016 and November 13, 2016.

[48] Also entered into evidence as exhibits on consent are Exhibit 7 – geometrics standards brief, Exhibit 8 – excerpts from Ontario Traffic Manual, Exhibit 9 – Kodsi Engineering Report and Exhibit 10 – City of Hamilton document brief.

[49] In preparing his opinions, Mr. Young referred to Google Maps which provides archives of past photographs of mapped areas. For example, Exhibit 6 at Tab 1, page 1 shows a 2015 satellite image of the 5th Concession West and Brock Road intersection. The new wide stop lines are clearly visible in it. Just below is a 2005 satellite image of the same intersection, where the stop line for westbound traffic on the northeast corner of the intersection contains a very faded remnant of a stop line in the turning portion of the north east corner of the intersection.

[50] Exhibit 6 at Tab C, page 3 shows the same 2005 satellite image of the intersection and compares it to a 2004 satellite image of the same intersection. The faded white line is more visible in the 2004 image on the roadway itself but a year later in 2005, there is no visible white line on the roadway except for the remnant on the turning portion of that intersection. The 2015 satellite image shows that the very visible thick stop lines have been moved backwards from the original faded stop lines by 3 to 4 metres.

[51] Exhibit 6 at Tab C, page 5 shows a July 2012 archived photograph from Google, regarding the intersection of 5th Concession West going westward toward Brock Road. The top photo reveals no hint of a faded white stop line and it would be invisible to a driver. The bottom photo is taken from the perspective of a person standing on top of the faded white stop line. The faded white stop line can be seen but you need to stand above it looking down to see it; thus, the stop line would be invisible to a driver approaching the intersection toward the stop sign.

[52] The police photos taken on the day of the accident at the intersection of 5th Concession West approaching west toward Brock Road show no trace of a stop line at all. These photos appear at Exhibit 2, Tab 4 as photos 2, 4, and 17. They are reproduced collectively at Exhibit 6, Tab A, page 2.

[53] The archived photos taken from 2004 to 2012 and the police photos establish that a driver travelling west on 5th Concession West toward Brock Road would not be able to see the faded white stop line. However the police officer and a city patroller were able to see and report a faded white stop line as they were making their observations by standing right over the faded stop line, as outlined in Exhibit 6, Tab C, page 5.

[54] Exhibit 6, Tab C, page 5 also establishes that the faded white stop line does not appear at or before the stop sign facing westbound traffic on 5th Concession West at Brock Road. It appears after the stop sign for westbound traffic on 5th Concession West very close to Brock Road. Mr. Ellis in his discovery testified that he stopped on the stop line at or before the stop sign. Mr. Ellis testified that he stopped at the stop sign and then proceeded. Accordingly, Mr. Young assumed that Mr. Ellis stopped at or before the stop sign. Mr. Chiocchio also testified at the trial that he saw the Ellis vehicle stopped at the stop sign and no part of the Ellis vehicle was in front of the stop sign.

[55] Exhibit 8 includes excerpts from the Ontario Traffic Manual (“OTM”). Book 11 of the OTM (Toronto: Ministry of Transportation, Ontario, 2000) is included in Exhibit 8 and outlines the prevailing standards for stop lines in Ontario. These standards have been adopted by the City of Hamilton.

[56] Exhibit 1, Tab A includes excerpts from Book 1 of the OTM (Toronto: Ministry of Transportation, Ontario, 2005) which indicates that construction authorities should make every effort to stay as close to the guidelines as possible in order to provide a safe and predictable driving environment for drivers.

[57] Exhibit 1, Tab B includes excerpts from Book 5 of the OTM (Toronto: Ministry of Transportation, Ontario, 2000) which includes standard sizes for stop signs and indicates that stop signs may be supplemented with stop lines.

[58] Exhibit 1, Tab C includes excerpts from Book 11 of the OTM which provides guidance with respect to road markings including stop lines. When the word must is used, the instructions are mandatory. When the word should is used the guidelines are advisory, while may indicates the guidelines are permissive.

[59] Stop lines and lane markings fulfill an importance guidance function for drivers. They provide a preview of changes in road conditions and result in better driver performance and control. Paragraph 2.3 of Book 11 indicates that markings and delineators should be visible for at least two seconds’ preview time, at least according to some studies.

[60] Paragraph 2.9 indicates that, to achieve the safest possible delineation system, the roadway delineations must be carefully maintained. Markings should be inspected at regular intervals and permanent markings must be replaced when they are no longer effective.

[61] In the opinion of Mr. Young, the faded stop line on the day of the accident at 5th Concession West and Brock Road was in an ineffective state and not in compliance with the OTM as adopted by the City of Hamilton.

[62] Exhibit 8 at Tab C, page 71, under the controlled intersections section at paragraph 3.8 of Book 11, indicates that “a stop line must be used to indicate the point at which a vehicle must stop in compliance with the stop sign.” Book 11 has been in force since March of 2000, six years before the accident. Again, the OTM, including Book 11, has been adopted by the City of Hamilton as the standard with which it must comply.

[63] Figure 26 in Exhibit 8 at Tab C, page 72 indicates that the stop line should be adjacent to the stop sign at rural locations and is to be on the minor highway 1.25 to 3 metres back from the intersection of the major highway.

[64] On the day of this accident in 2006, the stop line had been allowed to fade and did not satisfy OTM requirements. The stop line was ineffective, in that it could not be seen by a driver two seconds before approaching it. There were no exceptions and nothing to justify the City of Hamilton’s allowing the stop line to fade into an ineffective marking on the roadway.

[65] On the contrary, the intersection at 5th Concession West and Brock Road had been identified by the City of Hamilton as the tenth highest risk of 1,600 two-way stop intersections in the City of Hamilton. This would demand that this intersection receive extra attention.

[66] Exhibit 10 at Tab 21 contains a City of Hamilton recommendation dated April 9, 2001. At paragraph 4, the city recommended that the painting of stop lines be limited to locations where a specific need had been identified. The cost of painting a single intersection is estimated at $50 to $100. This recommendation stands contrary to the OTM guideline that requires documentation to justify on an intersection-by-intersection basis why stop lines are not being painted.

[67] Exhibit 10 at Tab 18 is a 2005-2006 collision report which details the police-reported collisions on Hamilton highways. The collision report lists the top 60 worst collision areas which should be given higher priority for remedial work given limited resources. Exhibit 11 outlines the societal costs of collisions which range depending on the severity of an accident. For instance, a fatality is listed as costing $973,000.

[68] Exhibit 10 at Tab 18 lists the intersection at 5th Concession West and Brock Road as the #22 intersection overrepresented for collisions but it is the #10 overrepresented intersection for two-way stop intersections. There were 13 collisions over five years. Compare this figure to the average for all 1,600 two-stop intersections: 1.9 collisions. Accordingly the 5th Concession West and Brock Road intersection sustained 680 per cent more collisions than the average two-way stop intersection. There were six fatal or injury collisions over the five-year span. Only one other two-way stop intersection had more fatal or injury collisions.

[69] Accordingly, in the opinion of Mr. Young, there was no justification for allowing the fading of the stop line. This intersection at 5th Concession West and Brock Road was overrepresented for collisions and required extra attention; this was an intersection identified as a “specific need” intersection.

[70] Exhibit 10 at Tab 27 is a City of Hamilton collision countermeasure field sheet dated November of 2006. This document demonstrates that the city recognized that the east and west stop bars (lines) were faded and recommended that the stop lines be repainted with an implementation date of April of 2007. Corrective measures had been taken in the past to add tiger tails (i.e., tiger stripes) to the stop signs and these were present at the time of the collision. However, these corrective measures did not provide a gauge for drivers as to where to safely stop.

[71] At most intersections in Hamilton, peak periods of traffic occur during weekdays. At the peak time on a weekday, 100 vehicles per hour could be expected to traverse the 5th Concession West and Brock Road intersection. However due to its proximity to the nearby Flamborough Speedway (see Exhibit 12 photo), a greater volume of traffic would go through that intersection on weekends. Exhibit 13 is a compilation of the sales records of the Flamborough Speedway for 2005 and 2006. These records establish that 600 to 1,200 people attend the speedway on the weekends. Accordingly, traffic at the 5th Concession West and Brock Road intersection would peak on the weekends.

[72] This increased weekend traffic would be another factor that would have to be looked at and would be an extra need to be considered.

[73] Exhibit 6 at Tab C, page 7 is a picture that was taken on October 31, 2016. The photo depicts a stump which is the location of the stop sign that would have been in place at the time of the accident. The new stop sign is two feet closer to the intersection.

[74] Exhibit 6 at Tab C, page 6 shows that the new stop line is approximately 5.4 metres from the stop sign. The new stop line has been moved back from the old stop line by 3 to 4 metres. The old stop line was approximately 8.4 to 9.4 metres from the original stop sign.

[75] Exhibit 7 is the geometrics standard brief. Tabs 3, 4, and 5 contain the relevant excerpts that have been applicable from 1999 onward. Tab 3, pages 28 to 31, establishes that a roadway is designed to accommodate speeds anywhere from ten to 30 kilometres over the speed limit.

[76] Exhibit 7 at Tab 5 at Table 1.3.4.1, establishes that Brock Road with a speed limit of 80 kilometres per hour would be designed to accommodate traffic travelling 20 kilometres per hour over the limit, i.e., 100 kilometres per hour.

[77] Exhibit 7 at Tab 4, page 65, at section 2.3 regarding intersections, indicates that collision rates decrease where sight distance is increased and sight obstructions are removed.

[78] There are two visibility requirements: (1) the approach sight distance, where vehicles can see each other when they are approaching each other, and (2) the departure sight distance, where a vehicle is already stopped and wants to cross and requires a sight distance to enable it to cross the intersection safely.

[79] Regarding the approach sight distance, as illustrated by the charts at pages 67 and 75 of Exhibit 7, Tab 4, an approach sight distance of 85 metres is required on the main road for a vehicle travelling at 100 kilometres per hour and 25 metres back on the secondary road in order for the approaching vehicles to be able to safely recognize each other.

[80] Regarding the departure sight distance, the charts at pages 68 and 73 of Exhibit 7, Tab 4 indicate that the departing vehicle would require 180 to 188 metres of visibility from the stopped position in order to safely cross the intersection for a roadway with a design speed of 100 kilometres per hour. If that is not available, the crossing cannot be made safely. In the chart at page 68, the stop line is three metres back from the intersection.

[81] Exhibit 6 at Tab A, page 6 outlines four different sight lines depending on the location of the stopped vehicle travelling westbound on 5th Concession West approaching the intersection at Brock Road. At the 2016 stop line, visibility of the stopped vehicle would be 270 metres for northbound traffic on Brock Road. A stop line positioned two metres back from the 2016 stop line would maintain visibility at 270 metres. A vehicle stopped four metres from the 2016 stop line would have visibility of 180 metres and a vehicle stopped at the stop sign some five metres from the 2016 stop line would have visibility for northbound traffic limited to 150 metres.

[82] The HTA driving manual excerpt included at Exhibit 6 at Tab B, page 1 indicates that a vehicle is required to stop at a stop line, and if none exists, a vehicle is to stop at the edge of the intersection.

[83] In the Kodsi Engineering Report (“Kodsi report”) at Exhibit 9, there is a reference to a study which indicates that 73 per cent of vehicles stop at a stop line but 27 per cent do not, as they had stopped earlier. The HTA manual at Exhibit 6, Tab B, page 1 instructs drivers to stop at the edge of the intersection but the accompanying diagram 2-24 shows vehicles stopped at the stop sign.

[84] Exhibit 6 at Tab A, page 7 is a chart that shows that the green zone (a designated safe area to stop and then proceed into the intersection), starting at the new stop line on 5th Concession West and going backward for a short distance, has sufficient visibility for a stopped vehicle in the green zone to see northbound traffic on Brock Road before crossing Brock Road. Any vehicle stopped in the red zone has insufficient visibility to cross Brock Road safely. It is to be noted that a vehicle stopped at the stop line contains a driver seated approximately 1.9 metres back from the stop line which could place the driver in the red zone.

[85] Exhibit 6 at Tab A, page 5 contains measurements which show that the new stop line is 5.4 metres west of the stop sign on 5th Concession West. The old faded stop line was three to four metres west of the new stop line.

[86] The photo taken just ahead of the stop sign looking southwest onto Brock Road (see Exhibit 6 at Tab A, page 6), is taken about five metres from the stop line. A car that was stopped here, according to the Transportation Association of Canada (“TAC”) formula, would require a sight line of 200 metres in order to cross the intersection safely (a car stopped at the new stop line would require a sight line of 188 metres and a car stopped at the old faded stop line would require a sight line of 180 metres).

[87] The approach sight line was 60 metres due to sight line deficiencies but this number is irrelevant due to the concern here being only about the departure sight line distances.

[88] Exhibit 14 is a research paper referred to in the Kodsi report. Its authors found that drivers stop at or just after the stop line at two-way intersections. This matches the OTM guideline that indicates that stop lines provide guidance to drivers as to where to stop at two-way intersections.

[89] Mr. Young agrees with the Clement report (a report prepared by an engineer retained by the City of Hamilton) on a variety of matters and disagrees on others. In cross-examination, Mr. Young agreed that stop lines provide benefits and that vehicles that stop at stop lines have clear visibility into the intersection. The Clement report did not change Mr. Young’s conclusions.

[90] The Clement report indicates that the City of Toronto does not use stop lines at local roads that intersect arterial roads. This is not true. Exhibit 15 contains a variety of photos taken on Toronto roads that illustrate examples of local roads that have stop lines.

[91] Geometric sight lines are not to be measured from stop signs. Even though the intersection at 5th Concession West and Brock Road did not have an effective stop line present, one was required since the requisite 200-metre sight line from the stop sign did not exist.

[92] The Clement report identified an issue regarding the City of Hamilton adopting the OTM but this was resolved by Mr. Spoleti, a representative of the City of Hamilton, testifying at the discovery that the City of Hamilton had in fact adopted the OTM.

[93] Mr. Young opined that the intersection at 5th Concession West and Brock Road could be safe if it were to have a clear, effective stop line to guide the driver to stop at a spot that allows for visibility of oncoming traffic in both north- and southbound directions on Brock Road.

[94] Stop lines are highly effective in reducing collisions. They increase visibility and decrease collisions. Just prior to this accident, Mr. Ellis had stopped at an incorrect location.

[95] In cross-examination, Mr. Young admitted that in his first report of May 30, 2016, he intended to include all his important conclusions. There was no mention of the OTM but he did mention the TAC. Other than the reference to tiger tails, there was no mention of the OTM in his second report of August 24, 2016. Mr. Young included the OTM references in his third report.

[96] There was no mention of human factors in his report. Mr. Young was not retained to do an accident reconstruction.

[97] A reasonable driver heading westbound on 5th Concession West would be expected to stop at Brock Road and would be expected to be familiar with and to comply with section 136 of the HTA.

[98] Mr. Young relied on police reports quoting Ms. Dowling’s statement that Mr. Ellis stopped at a stop sign and then accelerated “fast”. In his examination for discovery, Mr. Ellis said he stopped at the stop line and proceeded when it was clear. The stop line was a long way back from the intersection and was further east from the stop sign. Mr. Chiocchio indicated in his discovery that the front of the Ellis vehicle was at the stop sign and was sitting there and then suddenly accelerated and T-boned the Dowling minivan.

[99] Exhibit 10 at Tab 2 is a photo showing the old stop line on September 28, 2009. The stop line is clearly visible and is 3 to 4 metres in front of the current stop line. This stop line would provide sufficient sight lines for vehicles proceeding westbound from a stopped position at this stop line. The 2004 stop line would provide a sight line equal to 270 metres, which is in the exact range of the police estimate of 250 to 300 metres. If Mr. Ellis had stopped at this old, faded stop line, he would have had clear visibility. At discovery, Mr. Ellis said the stop line was before the stop sign and stopping there would have made the sight line more difficult and explained why he did not see the Dowling vehicle proceeding north on Brock Road.

[100] Regarding Exhibit 8, Book 1 of the OTM at Tab A, the OTM is not a regulation or a law but provides guidance for transportation practitioners.

[101] Regarding Exhibit 8, Book 5 at Tab B, stop signs are to be placed 1.5 to 15 metres from the edge of the intersection highway. The stop sign may be supplemented by a stop line. Stop lines are not painted at all stop signs in Toronto or Ontario.

[102] Regarding Exhibit 8, Book 11 at Tab C, it was suggested that some municipalities do not have stop lines. However some municipalities have not adopted Book 11. The definitions of must, should, and may at page 11 of Tab C relate only to Book 11. At page 71, Book 11 outlines that a stop line must be used to indicate where vehicles must stop in compliance with the stop sign.

[103] If Mr. Ellis had stopped at the stop line, there would be no issue regarding the OTM.

[104] The stop line at 5th Concession West and Brock Road intersection has been moved back one time, for which the City of Hamilton may have had local reasons. The faded stop line in 2006 could only be seen by standing over and looking down on it, and both Mr. Ellis and Constable Ingrassia had been walking in the area for hours. This could account for why Mr. Ellis referred to a stop line.

[105] Regarding the accident history contained in Exhibit 10 at Tab 13, of the four accidents that transpired in the years 1998 through 2006, two of them were prior to 2000 and the one in 2001 was a snow-related accident. Regarding the accident collision report for 2005-2006 in Exhibit 10 at Tab 18, Mr. Young did not know when it was compiled in 2006.

[106] In the 2002 traffic safety report in Exhibit 10 at Tab 16, 5th Concession West and Brock Road is not on the list of the 25 worst intersections reported. In the 2003-2004 traffic safety report Exhibit 10 at Tab 17, 5th Concession West and Brock Road is not included in the list of the 30 worst intersections.

[107] In Exhibit 10 at Tab 13, page 17, there were no accidents at all for westbound traffic at the 5th Concession West and Brock Road intersection in 2004. As can be seen from Tab 2 of Exhibit 10, the stop line was visible in 2004.

[108] The study filed as Exhibit 14 deals with similar situations to the one at trial. During that study, people would stop ahead of the stop sign or stop line. (Mr. Ellis, in this trial, was not in a queue of vehicles as outlined in that study.) Where there were stop lines, people would stop two to 2.5 metres just past the stop line and no one stopped at the stop sign. Pursuant to section 136 of the HTA, vehicles are obligated to stop at the stop line, and if none, immediately before entering the intersection.

[109] As indicated in his second report, Mr. Young explained that the Ontario Driver Handbook provides a poor set of instructions regarding where to stop and does not create a sight line from a stop sign. It is reasonable for drivers, stopped at a stop sign with an obstructed view, to move forward to get a better sight line. At the 5th Concession West and Brock Road intersection, a stop at the stop sign would leave a sight line short by 50 metres. Further, the house to the north of the intersection would completely block the view of southbound traffic for a driver if he or she stopped at the stop sign, like Mr. Ellis. Accordingly, it would be very unsafe for that driver to pull out from the stop sign due to the obstructions at that location.

[110] In re-examination, Mr. Young indicated that the obstructions for observing southbound traffic on Brock Road creates a specific need for more guidance as to where to stop. The four accidents detailed in Exhibit 10 at Tab 13 did not change Mr. Young’s opinion. This intersection had numerous special needs that had to be addressed.

7. THE EVIDENCE OF ROSEANNE SIMPSON

[111] From March 13, 1997 until October 15, 2010, Roseanne Simpson lived with her two children and her husband at 872 Brock Road, which is the house at the northeast corner of 5th Concession West and Brock Road.

[112] On the day of the accident, Ms. Simpson was outside with her son-in-law on the north side of the home. She heard a crash and saw a van roll over and hit a hydro pole, coming to rest on a fence. Her daughter, Nicole Simpson, phoned 911.

[113] The 5th Concession West and Brock Road intersection is very busy especially in spring and summer. There are many businesses operating in the area and there is lots of truck traffic. There have been numerous accidents there and many near misses. She can hear the screeching of tires all the time.

[114] In 1997, a car took out her porch causing $85,000 in damage. Additionally, Ms. Simpson contacted the Town of Flamborough to address an issue of people driving over her driveway. In 1998, the town painted a white line to define where her property was.

[115] The City of Hamilton would paint a stop line in the spring as illustrated in Exhibit 10 at Tab 2. The white stop line would fade over the course of winter and also because of the high volume of traffic.

[116] In cross-examination, Ms. Simpson conceded she did not see any of the accidents or near misses she had described, with the exception of the accident in question. In 1997, she contacted the Town of Flamborough and this was before the town’s amalgamation into the City of Hamilton in January of 2000.

8. THE EVIDENCE OF RICHARD ELLIS

[117] Counsel for Mr. Ellis made an admission that Mr. Ellis concedes at least one per cent liability for this accident.

[118] On April 29, 2006, Mr. Ellis was driving a Buick sedan that was owned by his wife. His ten-year-old son Kyle was seated in the back.

[119] Earlier that day, he had been in Niagara Falls and was going to the Flamborough Speedway. He was in no rush.

[120] Mr. Ellis was driving west on 5th Concession West and approached the Brock Road intersection. He came to a complete stop at the intersection and then pulled out into the intersection where he hit a car.

[121] Mr. Ellis stopped at the stop line but does not recall where it was. He could see both directions on Brock Road but he never saw the other vehicle. After the accident, his Buick came to rest in the intersection. Mr. Ellis went to a nearby house and spoke to paramedics. He told them he was not hurt and could not recall saying anything else to the paramedics. He made a statement to the police but he cannot remember its contents due to the ten years that have since elapsed. He never spoke to the other driver.

[122] In cross-examination by the defendant City of Hamilton, Mr. Ellis indicated he stopped at the stop line but can’t remember where the stop line was.

[123] Mr. Ellis had a good sight line of Brock Road but he did not see the Dowling minivan. When he pulled out toward Brock Road, he had a good sight line both to the right and left. Since his young son was in the car, he would not have taken any obvious risks.

[124] If he had stopped at the stop sign, southbound traffic would be obscured and it would not be safe to pull out. He proceeded forward to see southbound traffic on Brock Road. There were no cars in front of or behind him. There were no cars on Brock Road.

[125] When he wrote out his police statement, he was shaken up. He told the police he had stopped at the stop sign but he meant to say he stopped at the stop line. He had been at that intersection before and had crossed it safely. He was aware he had to pull forward to see past the house.

[126] In his statement of defence, Mr. Ellis made no claims against the City of Hamilton as he had full sight lines of both north- and southbound traffic on Brock Road. His impression was that the Dowling minivan was going too fast and this partially explains what happened.

[127] In cross-examination by counsel for the plaintiffs, Mr. Ellis indicated that he was not impaired and had no health issues at the time of the accident. He was wearing glasses and was not tired or drowsy.

[128] He does not recall where he stopped and there was nothing on Brock Road obstructing his vision. He was not distracted by the sun or his ten-year-old child.

[129] Mr. Ellis was aware of the stop sign facing him and there was no stop sign on Brock Road at that time. He slowed down and stopped. He believes that he stopped at the stop line despite telling the police he stopped at the stop sign. There were no cars in any of the directions he looked and he would not have pulled out if he saw cars on Brock Road. He could not estimate how far down Brock Road he could see but there was vegetation to his left. He accelerated forward in a steady acceleration and did not see the Dowling minivan until he hit it and by then it was too late.

[130] In his examination for discovery on February 8, 2010, Mr. Ellis testified, at page 33 of the transcript, that he could not estimate how far down Brock Road he could see but indicated he could not see all the way down the road. He testified that he could not see 100 yards or 200 yards but could not estimate how far he could see.

[131] Mr. Ellis’ normal practice is to stop at the stop line. Constable Ingrassia testified that Mr. Ellis made a statement to the police 30 minutes after the accident. In the statement, Mr. Ellis indicated, “I was going down West Concession 5. Stopped at the stop sign. Proceeded through the intersection when my vehicle hit a car gong very fast through the intersection on the side of the vehicle…” Mr. Ellis signed that statement and indicated he was not pressured to make it. Mr. Ellis was still upset but he was trying to be truthful to the officer and had no reason to lie or mislead the officer.

[132] Mr. Ellis had no injuries and no head injuries and when he saw Constable Ingrassia a couple of weeks later, he did not request to change his statement.

[133] Counsel suggested to Mr. Ellis that he told the paramedics that he “stopped at the stop sign and proceeded into the intersection.” Mr. Ellis could not recall what he told the paramedics. Exhibit 17, filed on consent, is the statement of paramedic Jeff Dunford. At page 2, Mr. Dunford indicates,

I did speak to the operator of the car and he said that he had just started from a stop sign at the intersection when he collided with the minivan … I recall that the driver of the car said the minivan came from out of nowhere. I cannot recall if the driver commented on the speed of the minivan. I do not recall any other comments being made by the driver of the car with respect to the facts of the accident.

[134] In his police statement, Mr. Ellis indicated that he only stopped one time. Mr. Ellis agreed that his memory was better on the day of the accident than ten years later.

[135] Mr. Ellis reviewed the police photos both before and at the trial. He could not see the stop line in the photos and cannot recall where the stop line was. Mr. Ellis indicated he stopped one time on the stop line and went into the intersection as is his normal practice. Mr. Ellis was not aware that Mr. Chiocchio saw him stopped at the stop sign. Mr. Ellis indicated he remembers stopping at the stop line.

[136] It was suggested that the stop line was not visible at that time on 5th Concession West. Mr. Ellis does not recall stopping at the stop sign. He was paying attention after he stopped one time before pulling out and has no explanation why he did not see the Dowling vehicle. He does not remember where the stop line was.

[137] At page 24 of his discovery evidence, Mr. Ellis testified that the stop line was a long way back from the edge of Brock Road. That was Mr. Ellis’ memory on February 8, 2010 (the date of the discovery) but now he does not recall.

[138] At pages 45 to 46 of his discovery evidence, Mr. Ellis testified that the stop line was farther back from the stop sign and was to the east of the stop sign but he could not tell the exact spot. At trial, Mr. Ellis could not remember where the stop line was.

[139] Exhibit 19 is an admission, filed on consent, that Richard Ellis was charged on May 13, 2006 under subsection 142(2) of the HTA with the offence of failing to start from a stopped position in safety with respect to the motor vehicle accident of April 29, 2006. Mr. Ellis pled guilty and was found guilty under subsection 142(2) of the HTA with respect to the motor vehicle accident of April 29, 2006. Mr. Ellis, as a result of this conviction, paid an assessed fine.

DEFENDANT CITY OF HAMILTON EVIDENCE

1. STEVE COOPER

[140] Steve Cooper is the project manager for the Traffic Safety Department at the City of Hamilton. He has three staff and he deals with complaints from the public regarding traffic issues like speeding, collisions, and intersection problems such as sight line obstructions.

[141] Mr. Cooper has a diploma from Mohawk College in transportation engineering and technology and now teaches part time at the college.

[142] Mr. Cooper is familiar with both the OTM and TAC manuals and uses them frequently.

[143] He is familiar with the 5th Concession West and Brock Road intersection. Brock Road runs north-south with a speed limit of 80 kilometres per hour. 5th Concession West runs east-west with a speed limit of 70 kilometres per hour.

[144] Tab 7 of Exhibit 10 includes a variety of traffic data summaries pertaining to that intersection. Mr. Cooper estimates that in 2006, 2,400 vehicles travelled on Brock Road in a 24-hour period and 300 vehicles travelled on 5th Concession West in a 24-hour period. In 2006, 5th Concession West had stop signs for east-west traffic.

[145] Tab 28 of Exhibit 10 is a work order dated July 7, 2003 for the installation of an oversize left-hand stop sign at the intersection. The work was done on September 17, 2003.

[146] Tab 32 of Exhibit 10 is a work order dated December 12, 2005 to install tiger tails on the left and right-hand stop signs on 5th Concession West. The work was done on December 20, 2005.

[147] Tab 23 of Exhibit 10 is a list of locations that would have their pavement markings painted annually. It indicates that 5th Concession West at Brock Road was painted on July 5, 2004.

[148] Tab 2 of Exhibit 10 shows the white stop line dated September 28, 2004 at the intersection. This would be just under three months after the July painting of the stop line.

[149] Stop lines wear off over time and have to be redone either annually or semi-annually. Given that this was a truck route with a quarry nearby and given the large volume of traffic on 5th Concession West, Mr. Cooper assumed that this line should be painted semi-annually. After July of 2004, the stop line was not repainted up to the date of the accident.

[150] The stop line at the intersection was not painted in 2005. It was not painted in the spring of 2006, as the painting season is just beginning on April 29, 2006, the date of the accident. The next recorded painting of the stop line was in 2008. There was no reason given for the gap in the painting.

[151] A stop line is not really required. A stop line supplements the stop sign. Under the HTA, you are required to stop at the stop line or crosswalk but if there are neither, you must stop prior to the intersecting roadway.

[152] Tab 12 of Exhibit 10 shows the ten-year history of police-reported collisions from 1996-2006 at the intersection. This information assists in identifying high-collision locations that require improvement. Tab 13 of Exhibit 10 further breaks down the accidents into a number of factors for the years 1996-2006. Page 17 is an overview of all 19 accidents over those ten years and looks at the four westbound collisions with northbound traffic on Brock Road.

[153] Tab 17 of Exhibit 10 is the City of Hamilton’s Safety Report for 2003-2004. Page 136 lists the most dangerous or overrepresented (for collisions) rankings for roadways in Hamilton for the years 1999-2003. Page 137 ranks the most overrepresented roadways for the years 2000-2004. Overrepresentation rankings are not simply just a counting of accidents. As indicated in Exhibit 11, a number of variables are taken into account such as number of collisions, severity of accidents, volume of traffic and a rank is determined by a network risk indicator. The 1,600 intersections are ranked from 1 to 1600 depending on the network risk indicator. The most dangerous intersections are reviewed and recommendations are made to reduce their danger.

[154] The intersection at 5th Concession West and Brock Road was not on the list of the 30 most dangerous roadways for 2003 or 2004, as listed in Tab 17 of Exhibit 10.

[155] Tab 19 of Exhibit 10 is an excerpt of the rankings of the network indicators of roadways in the City of Hamilton for 2002 to 2006. The intersection at 5th Concession West and Brock Road ranks as the 83rd most dangerous roadway of 3,357 City of Hamilton roadways. The intersection exceeded the estimated upper limit of expected collisions at 95 per cent; this is a trigger that the intersection should be looked at by city officials.

[156] Tab 18 of Exhibit 10 is the City of Hamilton collision report for 2005-2006 which was released in the spring of 2007. Again this report targeted high-collision intersections and locations. Hamilton has a Collision Counter Measure (“CCM”) Program that reviews and responds to high-collision locations and recommends improvements over the next 12 months. Pages 167-170 include the ranking of the 60 most overrepresented roadways for network risk indicators. 5th Concession West and Brock Road ranks as the number 22 overrepresented roadway on the list.

[157] Tab 27 of Exhibit 10 is the Collision Countermeasure Field Sheet which is indirectly related to the Tab 18, page 167-170 list. The CCM Field Sheet, authored by Chris van Berkel, is dated November of 2006 and proposes an implementation date of April 2007. The intersection at 5th Concession West and Brock Road was identified as network screening rank number 83 and the collision issues identified were fail to stop and fail to yield to right angle traffic. The Field Sheet proposed to increase the size of the stop signs and repaint both the east- and westbound stop lines. However, this work was not done until 2008. Mr. Cooper does not know why. Mr. Cooper then indicated it could have been done in 2007 but there is no record of this. The collision history of this intersection was a failure to stop and to yield to traffic. The bigger stop signs were to address the problem with stop compliance.

[158] Tab 33 of Exhibit 10 is a work order dated June 26, 2008 which indicates the larger signs were to be installed on July 23, 2008 and a new 24-inch stop bar was to be painted on July 11, 2008. This was the work that was recommended by the Tab 27 CCM Field Sheet.

[159] Mr. Cooper’s department receives annually some 800 to 1,000 complaints regarding speeding, collisions, near misses, sight line obstructions, sign requests, etc.

[160] The city looks into each complaint. Regarding accidents, the city’s response depends on the collision history and past patterns. The city also reviews roadways looking for efficiencies.

[161] Tab 35 is a Safety Audit report dated March 26, 2007. At a September 11, 2006 meeting of the City of Hamilton’s Public Works Infrastructure and Environment Committee, staff were asked to investigate and report back on traffic control measures on 5th Concession West and Brock Road. City staff in the report recommended, with respect to this intersection, replacing the 30-inch stop signs with 36-inch stop signs and repainting the stop bars “as they [had] faded”.

[162] This March 2007 recommendation was distinct from Mr. van Berkel’s CCM proposal of November of 2006 as outlined in Tab 27. Accordingly, as at March of 2007, there were two separate recommendations to paint stop bars at the intersection of 5th Concession West and Brock Road.

[163] Tab 21 of Exhibit 10 is a City of Hamilton recommendation regarding “Policy Regarding Use of Painted Crosswalks and Stop Lines”. The policy noted that the former Town of Flamborough painted stop lines at virtually all stop locations. The policy indicates at page 182 that staff recommend crosswalks and stop lines not be painted on intersections controlled by stop signs except at specific locations on an as-required basis. In conducting this evaluation, the city may refer to the OTM depending on the location. The city also looks at the site’s collision history and may make observations. If there is a truck route, the city may put the stop line further back to provide a turning radius. The policy concludes at page 185 that stop line painting should be limited to locations where a specific need has been identified. The annual cost is $50 to $100 per intersection.

[164] The City of Hamilton assumed Flamborough’s inventory of stop lines when it amalgamated with the town in 2000. The city would continue to paint, as before amalgamation, and this is why in 2004 it repainted the stop line at the intersection. After 2004, it was not repainted before the April 2006 accident. Stop lines can be repainted up to three times per year or annually or bi-annually depending on the traffic volume and weather conditions.

[165] As indicated at Tab 26 of Exhibit 10, (the City of Hamilton’s document brief), prepared in October of 2005, the sight lines at the intersection exceeded the minimum and the intersection did not meet the criteria for a four-way stop. In 2012, city council made a political decision to put in a four-way stop due to political pressure from residents.

[166] Tab 1 of Exhibit 10 is a 2002 photo from “i MAPS” (taken by the city before the advent of Google Maps). In this photo, the stop lines are visible on both the east and west sides of 5th Concession West where it intersects with Brock Road.

[167] Tab 3 of Exhibit 10 is an i MAP photo taken in 2005. The stop lines are either not visible or can be seen very faintly. These photos are usually taken in the late fall and by the lack of vegetation in the photo, this photo was taken in early spring or late fall. Stop lines fade due to wear and tear.

[168] In cross-examination, Mr. Cooper confirmed that, in 2005, one could not see the stop line on 5th Concession West. In 2006 and 2007, there were separate recommendations to repaint the stop lines. There is no record of any repainting until the 2008 work order at Tab 33.

[169] It was suggested that there was in fact a third recommendation made by Mr. Cooper in 2005. Exhibit 18 contains a series of emails authored by Mr. Cooper while he was a junior Traffic Technologist working for Traffic Engineering and Operations for the City of Hamilton.

[170] In early October 2005, Mr. Cooper was asked to review the collision history on Brock Road and 4th, 5th and 6th Concessions. On October 21, 2005, Mr. Cooper reported to Sue Russell regarding his analysis of Brock Road from Highway 5 to 6th Concession as he had been requested to do. Regarding 5th Concession, he noted that there were no stop bars in both directions and that visibility of 200 metres was clear in all directions. A four-way stop was not warranted there as the number of collisions was lower than at 4th and 6th Concessions. Mr. Cooper recommended four-way stops at 4th and 6th Concessions due to the high volume of collisions in the preceding three years. Mr. Cooper’s report indicated, “We may want to install tiger tails at Con. 5 and Con. 6 as well as paint stop bars.”

[171] On November 29, 2005, a public meeting took place at Strabane United Church. This meeting was attended by Councillor Braden and Mr. Cooper to discuss safety issues on Brock Road and the Concession Roads (see Exhibit 18).

[172] Mr. Cooper agreed that the city has a duty to prevent accidents as best it can and to use proper rural design and delineation markings. Mr. Cooper felt that stop lines were not necessarily helpful and were merely supplementary markings.

[173] Mr. Cooper agreed that the Exhibit 8 OTM Books provide guidelines that have been adopted by the City of Hamilton. The OTM has also been adopted by the Ontario Traffic Council of which the city is a member. The city regularly uses the OTM, as well as a Canadian uniform manual and the TAC manual, and often references all three.

[174] Regarding the OTM Book 11, Mr. Cooper agreed that marking delineations must be carefully maintained as outlined at page 19. Mr. Cooper agreed that if a stop line is no longer visible, it is no longer effective. Mr. Cooper agreed with the statement that a stop line must be used to indicate the point at which a vehicle must stop in compliance with a stop sign, but only if you have one. There is no legal requirement to use a stop line. Stop lines have their place depending on location and issues. They are not required under the HTA.

[175] Regarding the City of Hamilton Policy at Tab 21, of Exhibit 10, the City of Hamilton was maintaining the existing inventory of stop lines it inherited at the time of amalgamation. Tab 21 also indicates at page 184 that stop lines may help highlight the presence of a stop sign, and at page 185, that the policy was to limit stop lines to locations where a specific need has been identified. The cost of a stop line was $50 to $100.

[176] A series of work orders at the 5th Concession West and Brock Road intersection is included in Exhibit 10 at Tabs 23, 28, 29, 32 and 33.

[177] Tab 28 of Exhibit 10 indicates that in September of 2003 a westbound left-hand sign “Ra – 101” (a 30-inch stop sign) was installed at the intersection.

[178] Tab 23 of Exhibit 10 is a list of intersections in Flamborough entitled “Pavement Marking Inventory” and indicates that on July 5, 2004 the stop line at the intersection was painted.

[179] Tab 32 of Exhibit 10 indicates that tiger tails were installed on the left and right hand stop signs at the intersection on December 20, 2005. Tab 22 indicates that in July of 2003 a Ms. Louise Mawer living at 847 Brock Road had requested tiger tails at the intersection. At that time it was recognized that the intersection was having 2.2 collisions per year and it was recommended that a left-hand sign be installed (it was installed two months later – see Tab 28, above) but tiger tails were not recommended.

[180] Tab 29 of Exhibit 10 indicates that a warning sign advising of the approaching intersection was erected on Brock Road 240 metres south of the intersection in March of 2006.

[181] There is no record of any painting of the stop line after 2004 until July of 2008. Tab 33 of Exhibit 10 indicates that in July of 2008, the four stop signs were replaced with four 36-inch signs and a new 24-inch stop line was painted on the 5th Concession West westbound approach.

[182] Regarding the list of accidents at Tab 12 of Exhibit 10, it should be noted that, in 2003, Collision Reporting Centres were set up to deal with accidents with property damage of less than $1,000. These accidents are not included due to the biased information provided by the reporting drivers. This information is only used to support the existing trends for police-reported incidents. Accordingly, there are no self-reported accidents in Exhibit 12. Fail to yield the right of way was listed ten times in Tab 12 and was the predominant reason for accidents in the ten-year period surveyed.

[183] Regarding the Tab 13 breakdown of accidents at the intersection, drivers were pulling out before it was safe to do so. There were no sight line issues and Mr. Cooper does not know what was causing the accidents. Near misses were not recorded.

[184] At Tab 18 of Exhibit 10, it was noted at page 143 that after the installation of Collision Reporting Centres, there was a significant decrease in total collisions reported by police officers and also a parallel decrease in injury collision reporting. When page 168 was put to him, Mr. Cooper agreed that the intersection at 5th Concession West and Brock Road was number 22 on the list of overrepresented roadways. At that time in 2006, there were 1,650 two-way stop intersections in Hamilton.

[185] Regarding Tab 19, there were 3,357 roadways in Hamilton and this intersection was number 83 in the list of higher-risk roadways from the 2002-2006 Network Screening List. In percentage terms, in 2004 the intersection was within the top six per cent of dangerous roadways (number 140 of 2,080), in 2005, the intersection was in the top three per cent (111 of 3,346), in 2006, the intersection was in the top 2.4 per cent (83 of 3,357) and in 2007, the intersection was in the top 2.36 per cent (80 of 3,385).

ANALYSIS OF EVIDENCE

[186] All of the witnesses called by the plaintiff were credible witnesses. They gave their evidence in a straightforward and honest fashion and were not materially shaken in cross-examination. Further, their evidence was generally supported by the documentary evidence filed.

[187] The defendant Richard Ellis’ memory of the accident at trial was vague and he constantly indicated that he could not remember details of the accident. This is understandable given the passage of time – ten years.

[188] Mr. Ellis’ trial evidence that he stopped at the stop line (and not at the stop sign) is contradicted by the evidence of the plaintiff Michael Chiocchio, by statements made by Mr. Ellis himself, and by Exhibit 2 – the police photos. Mr. Chiocchio testified that he saw the Ellis vehicle stopped at the stop sign with no portion of the Ellis vehicle ahead of the stop sign. Mr. Chiocchio then saw Mr. Ellis pull out and the Buick came at them until it struck them. It all happened in a flash. Mr. Ellis in his written statement, given to the police 30 minutes after the accident, indicated he stopped at the stop sign and then proceeded into the intersection and he hit a vehicle going very fast. Shortly after the accident, Mr. Ellis told the paramedic that he had started from the stop sign at the intersection when he collided with the minivan which came out of nowhere (see Exhibit 17). In his discovery evidence given on February 28, 2010, he indicated that the stop line was a long way back from the edge of Brock Road and was to the east of the stop sign. At trial he could not remember where the stop sign was.

[189] When Mr. Ellis was shown the police photos of the accident scene in Exhibit 2, Mr. Ellis could not see the stop line in the photos. Officer Ingrassia testified that the stop line could not be seen in the photos in Exhibit 2 and the stop line was faded. Exhibit 6, Tab C, page 5 at Figure 4 shows the stop line in July 2012 when it was faded as well. The stop line could only be seen if you were standing right on top of it and I infer a similar situation existed on April 29, 2006 on the date of the accident. Accordingly, I conclude that, as a driver, Mr. Ellis was not in a position to see the faded stop line when he approached the intersection.

[190] The plaintiff’s engineering expert Mr. Young testified that the old faded stop line in effect in 2006 was some 8.4 to 9.4 metres from the old stop sign. The Kodsi report filed by the City of Hamilton in its accident reconstruction indicates, at page 24, that it was “expected” that the front end of the Buick (Ellis’ vehicle) was positioned at or up to about seven metres east of the east road edge of Brock Road when it was stationary before it started to accelerate. This would put the Ellis vehicle within approximately one to two metres of the stop sign and well back from the original faded stop line. This is generally consistent with the evidence of Mr. Chiocchio and the statements and discovery evidence of Mr. Ellis.

[191] Accordingly, I find that the evidence establishes that Mr. Ellis did not stop at the faded stop line but in fact stopped at the stop sign and then accelerated into the intersection thereby causing the collision. As can be seen from Mr. Young’s evidence and the chart in Exhibit 6, Tab A, Figure 7 at page 7, the sight line of the Ellis vehicle would have been limited and would be in the red zone of inadequate sight lines as testified to by Mr. Young.

[192] Regarding the evidence of Mr. Cooper, the project manager for the City of Hamilton Traffic Safety Department, I found his evidence at times evasive, somewhat confusing and occasionally contradictory. For example, Mr. Cooper initially testified in his examination-in-chief that stop lines fade and need to be redone either annually or semi-annually. Later, in chief, Mr. Cooper stated that stop lines can be repainted up to three times per year or annually or bi-annually.

[193] Given that this intersection was on a truck route with a quarry and a large volume of traffic, Mr. Cooper assumed that the painting should be done semi-annually. The stop line was not painted in 2005 or 2006 and the next recorded painting was in 2008. Tab 3 of Exhibit 10 is a photo of the intersection in 2005 taken either in the early spring or late fall. This photo is taken either just under a year or just over a year from the July 2004 repainting. The stop line in this 2005 photo is not visible or can be seen very faintly. This seems to confirm Mr. Cooper’s opinion that the stop lines needed to be repainted semi-annually. Mr. Cooper himself was asked to look at the collision history of this and other intersections at Brock Road in October of 2005. With reference to 5th Concession West and Brock Road, Mr. Cooper recommended on October 21, 2005 that stop bars be painted in addition to adding tiger tails. No stop lines were repainted, according to City of Hamilton records, until July of 2008 (see Tab 33 of Exhibit 10). No reason was given in the records for the gap in the painting. Mr. Cooper, despite his recommendation in this instance, indicated later in his evidence that stop lines were not necessarily helpful. He further testified that stop lines have their place depending on location and are not enforceable under the HTA.

[194] Mr. Cooper then testified that a stop line is not really required as it merely supplements the stop sign. Under the HTA, the requirement is to stop at the stop line and if there is not one, to stop prior to the intersecting roadway. Later in chief, Mr. Cooper referred to Mr. van Berkel’s CCM Field Sheet, dated November of 2006, which proposed that the stop lines be repainted in April of 2007. Mr. Cooper further testified that the stop line could have been repainted in 2007 but there is no record of this. Mr. van Berkel’s CCM Field Sheet on November of 2006 indicated the intersection collision history included failing to stop and failing to yield issues.

[195] The evidence at trial was that the City of Hamilton keeps records of their construction work, such that if the intersection was repainted in 2007, I infer that there would have been a record of it. Further, the Tab 33 work order is the exact remedial work recommended by Mr. van Berkel in November of 2006 (see Tab 27 of Exhibit 10). It is reasonable to assume that the work recommended by Mr. van Berkel was not done in April of 2007 as recommended but in July of 2008. There is no explanation for this delay. I conclude that after 2004, no repainting was done until four years later in July of 2008, despite Mr. Cooper’s opinion that it should have been repainted semi-annually. Given the lack of any evidence of work orders regarding repainting of stop lines in 2005 to 2007, I reject Mr. Cooper’s speculation that the intersection’s stop lines could have been repainted in 2007 per Mr. van Berkel’s recommendation.

[196] Mr. Cooper referred to Tab 21 of Exhibit 10 dated April 9, 2001, which indicates that the City of Hamilton’s policy is not to recommend the painting of stop lines except at specific locations on an as-required basis. The city may refer to the OTM. The City of Hamilton’s policy concludes that stop line painting be limited to locations where a specific need is identified.

[197] However, the city, after amalgamation, assumed the inventory of the Town of Flamborough’s stop lines which appeared at virtually every stop sign in Flamborough. The City of Hamilton was maintaining the existing inventory of stop lines. The city would continue to paint these stop lines as before amalgamation and this is why, according to Mr. Cooper, the stop line at the intersection was painted in 2004. As can be seen from Tab 23, the document entitled 2004 Pavement Marking Inventory lists numerous stop line repainting work in the former Town of Flamborough including the 5th Concession West and Brock Road intersection. It appears that the City of Hamilton had a list of Flamborough roadways with stop lines and simply repainted them as before with or without a “need basis” and this practice appears to conflict with the as-needed requirement outlined in Tab 21 of Exhibit 10.

[198] Given the comments above, I conclude that that the following series of events led up to the accident:

1. Prior to amalgamation of the City of Hamilton with the Town of Flamborough on January 1, 2000, the Town of Flamborough painted stop lines at virtually every stop location in Flamborough. This would include the intersection of 5th Concession West and Brock Road.

2. After amalgamation, the City of Hamilton decided to maintain the existing inventory of stop lines in the former Town of Flamborough, notwithstanding their policy dated April 9, 2001 that stop lines would be limited to locations where a specific need was identified (see Exhibit 10 at Tab 21).

3. Louise Mawer has resided at 6th Concession Road West and Brock Road since 1990. Over 26 years, there have been six accidents at that intersection. She has been involved in two near misses at the intersection of 5th Concession West and Brock Road. She organized a petition in 2003 for the placing of tiger stripes on the stop signs on the concession roads between Highway 5 and Safari Road. This would include the intersections at 5th and 6th Concessions with Brock Road. Documentary support for this evidence is found at Tab 22 of Exhibit 10. The city indicated in July of 2003 that 5th Concession West and Brock Road was averaging 2.2 collisions per year and recommended no tiger tails but recommended an eastbound left-hand stop sign.

4. Roseanne Simpson, from 1997 until 2010, lived at 872 Brock Road which is at the northeast corner of 5th Concession West and Brock Road. That intersection is very busy especially in the spring and summer months. There are many businesses operating in the area and lots of truck traffic. There have been numerous accidents and near misses there. In 1997, a car took out Ms. Simpson’s porch causing $85,000 in damage. The town painted a white line to delineate her property boundary. The city would paint a stop line in the spring but the stop line would fade over the winter due to weathering and the large volume of traffic.

5. Constable David Ingrassia, who investigated the April 29, 2006 accident, had 16 years of experience at the time of the investigation. He testified that he had investigated accidents on Brock Road before and that there is more than the average number of accidents on that road. Brock Road is hilly and accidents are caused by drivers blowing through stop signs. Brock Road is patrolled for speeders.

6. In September of 2003, a left-hand stop sign was installed for westbound traffic on 5th Concession West (see Exhibit 10 at Tab 28).

7. On July 5, 2004, the stop line at the intersection was painted by the City of Hamilton (see work order in Exhibit 10 at Tab 23). The photo of the intersection taken on September 28, 2004 (Exhibit 10 at Tab 2) shows the stop line after just under three months of use.

8. Steve Cooper, the manager for Traffic Safety for the City of Hamilton assumed that due to the high traffic volume that would result in the fading of the stop line, the stop line at the intersection of 5th Concession West and Brock Road should be repainted semi-annually. According to city records, the stop line was painted July 5, 2004 and then the city waited four years until July of 2008 to repaint the stop line at this intersection.

9. The intersection at 5th Concession West and Brock Road was not on the 30 most dangerous roadways for 2003 and 2004. However for the years 2002 to 2006, the intersection ranked number 83 on a dangerous network indicator of 3,357 City of Hamilton roadways (see Exhibit 10 at Tab 19) and exceeded upper limit of expected number of collisions. According to Mr. Cooper, this is a trigger that indicated that the intersection needed to be looked at.

10. The City of Hamilton collision report for 2005 to 2006 listed the intersection at 5th Concession West and Brock Road as the number 22 most overrepresented roadway, in terms of collisions, in the City of Hamilton out of 1,600 roadways. This report would come out in the spring of 2007.

11. Mr. Cooper agreed that in 2004, the intersection at 5th Concession West and Brock Road was in the top six per cent of dangerous roadways in the City of Hamilton; in 2005 it was in the top three per cent; in 2006, it was in the top 2.4 per cent and in 2007, it was in the top 2.36 per cent.

12. Tab 3 of Exhibit 10 is an i MAP photo of the intersection taken in 2005 either in early spring or late fall, but likely in late fall. Mr. Cooper confirmed that the stop lines are not visible or can be seen only faintly. This photo was taken approximately one year after the stop line was painted by the city in 2004.

13. Mr. Cooper himself was asked to review the collision history of Brock Road and 4th, 5th and 6th Concessions in October of 2005 (see Exhibit 18). He indicated that there were no stop lines at 5th Concession West and Brock Road. On October 21, 2005, Mr. Cooper noted that the number of collisions at 5th Concession was lower than at 4th and 6th Concessions, and recommended four-way stops at 4th and 6th Concessions. He also indicated, “We may want to install tiger tails at Con. 5 and Con. 6 as well as paint stop bars”.

14. A public meeting took place at Strabane United Church on November 29, 2005 and was attended by Councillor Braden and Mr. Steve Cooper to discuss safety issues on Brock Road and the Concession Roads (see Exhibit 18).

15. Tiger tails were installed by the City of Hamilton at the 5th Concession West and Brock Road intersection on December 20, 2005 (see Exhibit 10 at Tab 32).

16. In March of 2006, a warning sign advising of the approaching intersection was erected on Brock Road 240 metres south of the 5th Concession West and Brock Road intersection.

17. There is no record of any painting or repainting of this intersection after 2004 until 2008, despite Mr. Cooper’s opinion that it should have been repainted semi-annually, and despite Mr. Cooper’s recommendation in October of 2005 that the city may want to paint stop bars at the intersection.

18. It is clear from Exhibit 10 at Tab 3, a 2005 photo of the intersection, in combination with Exhibit 2, the April 29, 2006 police photos as confirmed by Officer Ingrassia, that the stop line at the intersection had faded by 2005 and was still faded on the April 29, 2006 accident date. It could not be seen by motorists such as Mr. Ellis and the stop line was ineffective.

19. Book 11 of the OTM (see Exhibit 8 at Tab C) indicates that roadway delineations must be carefully maintained to achieve the safest possible delineation system. Permanent markings must be replaced when they are no longer effective. Mr. Cooper agreed that if a stop line is not visible, it is not effective.

20. Book 11 of the OTM also indicates that stop lines clarify information used in driver decision making. If used, a stop line or stop bar must indicate the point at which a vehicle must stop in compliance with the stop sign.

21. Accordingly, Mr. Ellis, in driving westbound on 5th Concession West, was unable to see the faded stop line. Had he stopped at the faded stop line, he would have been able to see 270 metres south on Brock Road which exceeded the required sight line of 180 to 200 metres (see Exhibit 6 at Tab A, page 6). According to Mr. Young, this would have enabled Mr. Ellis to see the oncoming minivan and the accident would never have happened. Mr. Ellis testified that his normal practice is stop at the stop line.

22. Instead, Mr. Ellis, as I have found, stopped at the stop sign and then accelerated into the intersection and did not see the oncoming minivan until he hit it.

23. Mr. Ellis, after stopping at the stop sign, had a sight line of approximately 150 metres south on Brock Road or less than the required 180 to 200 metres (see Exhibit 6, at Tab A, page 6 at photos C and D). This was substantially less than the required sight line. This put Mr. Ellis in the red zone of not having an adequate sight line for northbound traffic on Brock Road (see red zone blocked area in Exhibit 6 at Tab A, page 7).

24. Mr. Ellis stopped at the stop sign and not at the stop line due to the fact that the stop line had faded beyond perception. The evidence establishes that the city had committed itself to maintain this stop line and had ample notice that this intersection was a dangerous—if not one of the most dangerous intersections in the City of Hamilton. The stop line was last painted in July of 2004 and, according to the city’s own witness, was required to be repainted every six months. It was not, and it was faded to the extent that it could not be seen in 2005. Mr. Cooper himself recommended painting the stop line in October of 2005, six months before the accident, yet nothing was done as of the accident date April 29, 2006. The City of Hamilton guideline at Tab 21 indicated that stop lines would be painted on an as-required basis. Mr. Cooper, as of October 2005 (six months before the accident), had identified a specific need for repainting of the stop bar or stop line.

25. Despite the seriousness of this accident and the statistical evidence available to the City of Hamilton and public concerns and meetings expressed from 2003 to 2005, the stop line non-maintenance continued for years after the accident.

26. Approximately four months after the accident, a safety audit was recommended by a city committee on September 11, 2006 that required an investigation into traffic control measures on 5th and 6th Concessions at Brock Road. It was noted that 5th Concession West and Brock Road had been the site of 14 collisions over the preceding five years, with ten of the collisions resulting from failure to yield or failure to stop at the stop signs at Brock Road. It was noted that sight lines were very good. On March 26, 2007, it was recommended that the stop bars be repainted as they had faded and that the 30-inch stop signs be replaced with 36-inch stop signs.

27. Approximately six months after the accident in November of 2006, a CCM Field Sheet was prepared by city employee Mr. van Berkel who noted that the intersection had a high dangerous network screening rank of 83 of 3,357 roadways along with collision concerns relating to drivers failing to stop and failing to yield. According to the Tab 18 collision report for 2005-2006, the collision total at that intersection was 13 collisions in the past five years as opposed to the average of a 1.9 collision rate. Mr. Young testified that this collision rate was 680 per cent of the expected average collision rate of Hamilton intersections. Mr. van Berkel proposed CCM changes in the form of bigger stop signs and repainted stop bars, with an implementation date of April 2007. Mr. Cooper testified that repainting might have been done in 2007. There is no documentary evidence of any repainting in 2007, so I reject that conjecture. The remedial work was not done until July of 2008 (see work sheet in Exhibit 10 at Tab 33, which indicates the painting of lines and the replacing of stop signs took place at the 5th Concession West and Brock Road intersection in July of 2008).

[199] Accordingly, before the April 29, 2006 accident, in October of 2005, Mr. Cooper had recommended painting a stop line but nothing was done at that time, despite mounting public pressure and statistical and anecdotal evidence that this intersection was one of the most dangerous in the City of Hamilton. Even after this accident on April 29, 2006, which resulted in life-altering injuries to the plaintiff of the most serious kind, recommendations were made by Mr. van Berkel in November of 2006 for repainting of the faded stop lines by April of 2007. In March of 2007, city staff reported to the Public Works committee that the faded stop lines needed to be repainted as indicated by Mr. van Berkel. Mr. van Berkel had information in November of 2006 that this intersection was now number 83 in dangerousness on a list of 3,357 intersections, plus information that the intersection was in the top two to three per cent of dangerous intersections in the city. What was the city’s response? No repainting in April of 2007 and in fact, no repainting in all of 2007. There was no explanation provided for this lack of follow through on a number of recommendations by a variety of city staff members.

[200] The year 2007 proved to be another dangerous one, and the intersection was now in the top 2.36 percent of dangerous roadways (80 of 3,385). This rank was the worst of any of the preceding three very dangerous years. According to Tab 21, the cost of a repainting of the intersection in 2001 was $50 to $100—it could not be that much higher in 2007.

[201] There is absolutely no excuse for the city not painting the stop line at this intersection for four years from 2004 to 2008, particularly given the dangerousness of the intersection, of which the city was fully aware, combined with the meagre cost of repainting the stop line semi-annually as recommended by Mr. Cooper.

LAW

[202] Section 44 of the Municipal Act provides a cause of action against a municipality that fails to keep its roads and highways in a reasonable state of repair. Subsection 3 of section 44 provides three defences available to municipalities.

[203] Section 44 of the Municipal Act states as follows:

44.

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

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

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

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

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

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

[204] The leading case in this area is Fordham (Litigation Guardian of) v. Dutton-Dunwich (Municipality), 2014 ONCA 891. At para. 26, Laskin J.A. sets out the four-step test for analyzing a statutory cause of action against a municipality as follows:

1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.

2. Causation: The plaintiff must prove the "non-repair" caused the accident.

3. Statutory Defences: Proof of "non-repair" and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.

4. Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff's driving caused or contributed to the plaintiff's injuries.

[205] Regarding onus of proof, the onus of proof lies on the plaintiffs to establish on a balance of probabilities that (1) the defendant city failed to keep the road in question in a reasonable state of repair in the circumstances, and (2) the non-repair caused the plaintiff’s loss or damage. Then the burden shifts to the defendant city to establish at least one of the three defences in subsection 44(3). See Deering v. Scugog (Township), 2010 ONSC 5502, at para. 185, aff’d 2012 ONCA 386, leave to appeal ref’d [2012] S.C.C.A. No. 351; see also Fordham at para. 26.

1. FORDHAM STEP #1 – NON-REPAIR OF ROADWAY

[206] The municipality is not required to make its roads safer for negligent drivers. It is only required to make its roads safe for ordinary drivers exercising reasonable care. The municipality’s standard of care is set out in Fordham as follows, at paras. 27-31:

(b) The municipality’s standard of care and the reasonable driver

27 More precisely, this appeal turns on the standard of care a municipality must meet in fulfilling its duty of reasonable repair, and the application of that standard to the facts. A municipality’s standard of care has been thoroughly canvassed in two cases: the Supreme Court of Canada’s decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 35, a case perhaps better known for its discussion of the standard of appellate review; and Howden J.’s decision in Deering v. Scugog (Township), 2010 ONSC 5502, 3 M.V.R. (6th) 33, which this court affirmed in a brief endorsement: 2012 ONCA 386, 33 M.V.R. (6th) 1, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 351.

28 In brief, a municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. In other words, a municipality’s standard of care is measured by the “ordinary reasonable driver”. Ordinary reasonable drivers are not perfect drivers; they make mistakes. As Howden J. wrote in Deering, at para. 154:

In conclusion, I accept what have become the submissions of all counsel that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to the defences of no knowledge and reasonable steps to prevent and minimum standards compliance. The ordinary motorist includes those of average range of driving ability -- not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.

29 But -- and this is the important point for this appeal -- a municipality's duty of reasonable repair does not extend to making its roads safer for negligent drivers. In Deering, Howden J. made this point succinctly, at para. 142: “The standard of care of road authorities rests on the notion of the ordinary motorist driving without negligence”.

30 And again, at para. 155:

It is not the law in Canada that the duty of road authorities goes beyond the duty to keep their roads in reasonable repair for the ordinary driver exercising reasonable care, to include drivers who, for instance, do not pay attention, drive at excessive speeds, drive too close to the vehicle in front and who are otherwise negligent.

31 A municipality’s duty of repair includes erecting and maintaining proper signs: see The Queen v. Jennings, 1966 CanLII 11 (SCC), [1966] S.C.R. 532. And, where hazards are hidden or “not readily apparent to users of the road”, a municipality may have a duty to install warning signs. A municipality’s duty to install signs, however, is simply an application of the general standard of care. Signs are required only if without them, an ordinary driver exercising reasonable care would be exposed to an unreasonable risk of harm. Thus, the mere presence of a hazard does not require a municipality to put up a warning sign; the hazard must be one that puts reasonable drivers at risk. See e.g. Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (ON SC), [2009] O.J. No. 5438 (Sup. Ct. J.), at para. 17; aff’d 2012 ONCA 299.

[207] The factual question that needs to be resolved therefore is: Have the plaintiffs proven on a balance of probabilities that the municipality failed to prevent or remedy a hazardous condition at the intersection of 5th Concession West and Brock Road that created an unreasonable risk of harm for ordinary drivers exercising reasonable care? The ordinary reasonable driver is a person of average intelligence, pays attention, uses caution when conditions warrant but is human and makes mistakes. However the City of Hamilton’s duty of reasonable repair does not extend to making its roads safer for negligent drivers.

[208] Liability for non-repair must be based on the condition of the road in question. What was the condition of the road on April 29, 2006?

[209] The intersection at 5th Concession West and Brock Road had stop signs to both the right and left of a driver proceeding westbound on 5th Concession West. In addition, there was a painted stop line to give assistance to a driver as to where to stop. The stop line was faded, and I have found that it could not be seen by drivers approaching the intersection. The stop line had been painted in July of 2004. It could still be seen by approaching drivers in September of 2004 (see Exhibit 10, Tab 2). Mr. Cooper testified that, given the traffic volume, the stop sign should have been repainted every six months. This did not happen.

[210] Accordingly, by at least the fall of 2005, the stop line was very faint and not visible (see Exhibit 10, Tab 3). Mr. Cooper himself investigated the area in October of 2005 and indicated in his email that “there are no stop bars in either direction” on 5th Concession West (see Exhibit 18).

[211] The police photos taken on April 29, 2006 do not reveal any visible stop lines on 5th Concession West. Constable Ingrassia, who completed a thorough investigation of the scene, testified that the stop line was vaguely visible, but he stood right over it.

[212] The evidence adduced at trial is that the stop line on the day of the accident had faded, could not be seen by approaching motorists and accordingly was ineffective in providing any guidance to approaching motorists. Did this state of affairs provide an unreasonable risk of harm for ordinary drivers exercising reasonable care?

[213] An ordinary driver exercising reasonable care would be aware of section 136 of the HTA. That section requires a driver who approaches a stop sign at an intersection to stop his or her vehicle at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection and to yield the right of way to traffic in the intersection.

[214] For all practical purposes, on April 29, 2006, there was no marked stop line for approaching drivers. Therefore, the obligation for an approaching driver was to stop immediately before entering the intersection. With no visible stop line and with the stop signs well back from the intersection, where would the ordinary driver, exercising reasonable care, stop?

[215] Mr. Young pointed out that, as illustrated in Tab B of Exhibit 6, that the OTM does not provide clear guidance. The text of diagram 2-24 indicates that the driver is to stop at the edge of the intersection but the picture shows the vehicles stopped at the stop signs just back from the intersection.

[216] In Kennerley v. Norfolk (County) (2005), 16 M.P.L.R. (4th) 286, [2005] O.J. No. 4782 (Ont. S.C.J.), Killeen J. held, at para. 14, that Mrs. Kennerley stopped at a stop sign 11.4 metres before an intersection that had no marked stop line or crosswalk and did not stop again. To drive into the intersection without looking again was found to be an “act of folly”. Ms. Kennerley was held to be the sole cause of the accident.

[217] Exhibit 6, at Tab A, page 7 shows the range of stopping points that ensures the sight line required to safely enter the intersection, depending on where a driver stops. Any stop from the edge of the intersection to the stop line and approximately two metres back would constitute the green zone which provides an adequate sight line to safely enter the intersection. The entire safe zone would consist of the edge of the roadway and proceed back two to three metres to the original faded stop line. The new stop line is about a further three to four metres back, and the green zone goes back a further two metres. However, a person in a stopped vehicle would be seated about one to two metres back from the front of the vehicle. Putting this all together, the safe zone for stopping before proceeding into the intersection included in the green zone would be anywhere from six to eight metres from the edge of the roadway. A person stopped as much as eight metres back might have an adequate sight line. However, a person stopped possibly as close as seven metres from the edge of the roadway but certainly 8.5 metres or more would be in the red zone and not have an adequate sight line. Put simply, a person stopped eight metres back would be in the safe green zone but a person stopped 8.5 metres back would be in the dangerous red zone. How would an ordinary driver using reasonable care know how to make this judgment?

[218] Exhibit 14 is a research paper which indicates that drivers typically stop with their vehicle 1.7 to two metres from the near edge of the travelled lane. However the study indicated that of the 244 vehicles observed, 179 came to a complete stop before accelerating. Sixty-five vehicles, or 27 per cent, did not stop prior to accelerating and did not stop before the road edge as they had stopped some time earlier.

[219] Further complicating the situation is the evidence of Ms. Simpson who indicated that people at the intersection were driving over her driveway which is adjacent to the east part of Brock Road. It is a reasonable inference that persons driving in this way would be stopping at some point back from the intersection. The Town of Flamborough painted a line in 1998 to define where her property was. This line can be seen in Tab 2 of Exhibit 10 taken in September of 2004, just shy of three months after the repainting at the intersection; it extends back from the stop line to well behind the stop sign at 5th Concession West.

[220] Mr. Cooper, evidenced by Exhibit 18, was asked to investigate the collision history of Brock Road at 4th, 5th and 6th Concessions and noted, in October of 2005, higher collision rates for 4th and 6th Concessions not 5th. This is curious as Mr. Cooper indicated in cross-examination that the 5th Concession West intersection was in the top six per cent of overrepresented collision roadways in 2004 and in the top three per cent in 2005. In any event, he noted that there were no stop bars at that intersection and recommended that tiger tails and stop bars be painted. Tiger tails were installed on December 20, 2005 but stop bars were not painted until July of 2008 (see Exhibit 10 at Tabs 32 and 33). The city’s policy as reproduced in Tab 21 was to paint stop lines where a specific need had been identified. Mr. Cooper, in October of 2005, had identified this specific need. In any event, the City of Hamilton had committed itself to repaint stop lines it inherited from the Town of Flamborough. Mr. Cooper, in Exhibit 18, prepared in October of 2005, indicated there were no stop lines on 5th Concession West at Brock Road. This was not true, but he appears to have not noticed the old stop lines. Obviously, the stop lines had faded to almost invisible.

[221] In Cartner v. Burlington (City) (2008), 54 M.P.L.R. (4th) 70, [2008] O.J. No. 2986 (Ont. S.C.J.), Quigley J. held, at paras. 175-177:

175 However, it is equally evident to me that in assessing the state of the sidewalk in this case, and whether it was in a state of non-repair, a determination by the municipality itself that a portion of sidewalk or roadway requires remedial work under its own maintenance policies must necessarily lead to the conclusion that the portion or area of sidewalk is not in a state of repair. Moreover, where a municipality determines that a section of roadway or sidewalk is in a state of non-repair and proceeds to fix it, it cannot be unreasonable for residents to expect that the remedial work will actually repair the defect identified by the municipality, in accordance with its policies, and not leave the sidewalk or roadway in a continuing state of non-repair in spite of the remedial work.

176 In determining whether a section of sidewalk or roadway is in a state of non-repair, it seems equally reasonable to expect that the municipality will adhere to its own inspection, maintenance and repair procedures, and take reasonable steps to insure that the sidewalks and roadways are in compliance with those policies, regardless of whether those policies might otherwise be considered adequate on their own merits.

177 These are the issues that come into play here in determining the liability of the City of Burlington in this case, and whether the sidewalk where Marjory Cartner slipped and fell was in a state of non-repair at the time of her accident. It is the failure of the City to meet these standards that causes me to conclude that the sidewalk was not in a state of repair, and that the City must be liable if that state of non-repair was a cause of Mrs. Cartner’s accident and the injuries she sustained.

[222] Putting it all together, the City of Hamilton assumed an obligation to maintain the stop lines at the 5th Concession West and Brock Road intersection. It failed to maintain the stop line and allowed it to fade into an ineffective and virtually invisible road marking. Mr. Cooper investigated the intersection in 2005 due to the collision history of it and nearby concession roads. The evidence indicates that the intersection was overrepresented for collisions in 2004 and 2005 and Mr. Cooper, after not seeing a stop line, recommended that one be painted. The OTM Books provide guidelines—guidelines only—that stop lines can provide better driver performance. A stop line must be used to indicate the point at which a vehicle must stop in compliance with a stop sign. The original stop line was placed approximately two metres back from the intersection and allowed for a sight line for southbound traffic of 270 metres which is well in excess of the required 180 to 200 metres. This original stop line was not maintained and was no longer effective, which was in contravention of the OTM Book 11 guidelines. The fading of the stop line deprived ordinary, reasonable drivers of an important guide as to where to stop. Without a stop line, drivers had to exercise their judgment as to where to stop safely. An ordinary reasonable driver stopping eight metres back from the intersection was in the green zone of safety and could proceed into the intersection safely; the same ordinary reasonable driver stopping 8.5 metres back from the intersection was in the red zone of dangerousness and could not proceed into the intersection safely.

[223] The Supreme Court of Canada in Housen v. Nikolasien, 2002 SCC 33, indicated, at para. 47:

47 A further indication that the trial judge considered the conduct of an ordinary motorist on Snake Hill Road is her finding that both Mr. Nikolaisen and the municipality breached their duty of care to Mr. Housen, and that the defendant Nikolaisen was 50 percent contributorily negligent. Since a finding of negligence implies a failure to meet the ordinary standard of care, and since Mr. Nikolaisen's negligence related to his driving on the curve, to find that Mr. Nikolaisen’s conduct on the curve failed to meet the standard of the ordinary driver implies a consideration of that ordinary driver on the curve. The fact that the trial judge distinguished the conduct of Mr. Nikolaisen in driving negligently on the road from the conduct of the municipality in negligently failing to erect a warning sign is evidence that the trial judge kept the municipality’s legal standard clearly in mind in its application to the facts, and that she applied this standard to the ordinary driver, not the negligent driver.

[224] Having regard to all the circumstances – including the volume of traffic at this intersection, the collision history, the policies of the City of Hamilton, the specific recommendation of Mr. Cooper in 2005 to paint a stop line, the commitment to continue to repaint existing stop lines by the City of Hamilton, the minor cost of repainting the stop line, the TAC and OTM guidelines (acknowledging that these are guidelines are not legally enforceable requirements – see Fordham at paras. 51-53), and the fading of the existing stop line – this intersection, without an effective stop line, provided no guidance to drivers as to where to stop and created a hazard to ordinary reasonable drivers who could safely stop approximately eight metres from the intersection but were in danger if they stopped approximately 8.5 metres back. Maintaining the existing stop line would have removed the required judgment call from ordinary reasonable drivers using reasonable caution and would have ensured that the ordinary reasonable driver would be able to stop with the adequate sight lines in order to proceed safely into the intersection – see Housen at para. 47; Fordham at para. 28; and Deering at paras. 123-125.

[225] In my opinion, the evidence establishes that the condition of the intersection with the faded stop line posed an unreasonable risk of harm to a reasonable driver. Accordingly, I find on a balance of probabilities that the City of Hamilton failed to keep the intersection at 5th Concession West and Brock Road in a reasonable state of repair.

2. FORDHAM STEP #2 - CAUSATION

[226] The plaintiff must prove the “non-repair” caused the accident – see Fordham at para. 26.

[227] The leading test for causation is set out by the Supreme Court of Canada in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, at paras. 8-10, as follows:

8 The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury -- in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

9 The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant's negligence made to the injury. See Wilsher v. Essex Area Health Authority, [1988] A.C. 1074, at p. 1090, per Lord Bridge; Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311.

10 A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. See Snell and Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458. See also the discussion on this issue by the Australian courts: Betts v. Whittingslowe, [1945] HCA 31, 71 C.L.R. 637, at p. 649; Bennett v. Minister of Community Welfare, [1992] HCA 27, 176 C.L.R. 408, at pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.

[228] In a case where the municipality was found negligent in not maintaining a road properly, Brooke J.A. in Houser v. West Lincoln (Township) (1983), 20 A.C.W.S. (2d) 158, 29 M.P.L.R. 55 (Ont. C.A.), leave to appeal ref’d [1983] S.C.C.A. No. 145, held, at p. 10:

Accepting the finding of the trial judge that the plaintiff was negligent, he was nevertheless found to be a bright, alert person and, in my opinion, it is probable that he would have seen and reacted properly to proper marking signs as he approached this curve and that the failure to maintain the road properly and to mark the curve was negligence which caused or contributed to the plaintiff’s loss and damages.

[229] I have found that Mr. Ellis was unable to see the stop line on April 29, 2006 as it had faded and was now an ineffective road marking. Mr. Ellis testified that his normal practice is to stop at the stop line. Being unable to see the stop line, I have found that Mr. Ellis stopped at the stop sign and then proceeded into the intersection when it was not safe to do so.

[230] Mr. Young testified that if Mr. Ellis had stopped at the faded stop line (which I find Mr. Ellis would have done if it was visible given Mr. Ellis’s normal practice to stop at the stop line), he would have been able to see 270 metres south on Brock Road and this sight line would have enabled Mr. Ellis to see the oncoming minivan and the accident would never have happened.

[231] Accordingly, I am satisfied that the plaintiff has satisfied the onus that is on him to prove this accident would not have occurred without the City of Hamilton’s negligence in failing to keep the intersection in a proper state of repair.

3. FORDHAM STEP #3 – STATUTORY DEFENCES

[232] The plaintiff’s proof of “non-repair” and causation has established a prima facie case of liability against the City of Hamilton. The municipality then bears the onus of establishing that at least one of the three defences in subsection 44(3) of the Municipal Act applies – see Fordham at para. 26.

[233] It is common ground that that paragraph 44(3)(c) does not apply and I need only consider the grounds set out in paragraphs 44(3)(a) and (b).

[234] Paragraph 44(3)(a) of the Municipal Act provides the municipality a defence if it did not know, and could not reasonably have been expected to have known, about the state of repair of the highway or bridge.

[235] The evidence is overwhelming that the city did know and could have been expected to know about the fading of the stop line before the accident.

[236] The evidence from numerous witnesses was that there was a large volume of traffic on the intersection due to nearby businesses including the Flamborough Racetrack and trucks travelling from nearby quarries.

[237] The Town of Flamborough had painted stop lines at virtually every stop sign location. When the amalgamation took place, Hamilton committed to repainting the stop lines.

[238] Ms. Mawer, a local resident indicated there were a number of accidents at her location on 6th Concession West and Brock Road, and she herself had two near misses at 5th Concession West. She organized a petition for tiger stripes at 4th, 5th and 6th Concessions, which was entered in as Exhibit 1. This occurred in 2003 and the city put in the tiger stripes in December of 2005. City documents indicate that in 2003 the city was aware of Ms. Mawer’s efforts and concerns (see Exhibit 10, Tab 22). The city documents indicate the intersection at 5th Concession West and Brock Road was experiencing 2.2 accidents per year in 2003.

[239] Ms. Simpson lived at the northeast corner of 5th Concession West and Brock Road. She testified that the intersection was very busy with numerous accidents and near misses. A car crashed into her porch causing $85,000 worth of damage. The Town of Flamborough put in a white line to define her property as cars stopping at the intersection would drive over her property. It appears this white line was re-painted by the city in July of 2004 along with the stop line in July of 2004 (see Exhibit 10, Tabs 2 and 23).

[240] Constable Ingrassia who investigated the April 29, 2006 accident testified that he had investigated accidents on Brock Road before and there was more than the average number of accidents on that road.

[241] The City of Hamilton keeps records of police reported accidents and has a policy of attempting remedial efforts in high accident locations.

[242] Mr. Cooper, the manager who testified on behalf of the City of Hamilton testified that for the period 2002 to 2006, the intersection at 5th Concession West and Brock Road was ranked as number 83 (out of 3,357 roadways) on a dangerous network indicator and exceeded the upper limit expected collisions at 95 per cent. Mr. Cooper testified that statistic is a trigger indicating that the intersection needed to be looked at by the city.

[243] According to the Exhibit 10, Tab 18 collision report, this intersection had 13 collisions in the past five years, in contrast with the average of 1.9 collisions for two-stop intersections in the City of Hamilton. Mr. Young testified that this collision rate was 680 per cent of the expected average collision rate.

[244] Tab 12 of Exhibit 10 indicates that from 1996 to 2006, ten of the reported collisions at the intersection involved issues relating to failure to yield at this intersection. Tab 13 breaks down the location of those accidents in the intersection. Mr. Cooper testified that according to the city’s screening list, this intersection was in the top six per cent of dangerous roadways in 2004, top three per cent in 2005, top 2.4 per cent in 2006 and top 2.36 per cent in 2007.

[245] The city reviewed the collision history at 5th Concession West and nearby Concessions on Brock Road in October of 2006 (see Exhibit 18). Mr. Cooper himself was asked to investigate the collision history. Regarding 5th Concession West, he found the collision rate there was lower than at 4th and 6th Concessions. Mr. Cooper indicated there were no stop bars at the 5th Concession West and Brock Road intersection (see Exhibit 10, Tab 3 for the photo taken of the intersection in 2005: no stop lines are visible). Mr. Cooper recommended installing tiger tails as well as painting stop bars.

[246] The tiger tails were installed in December of 2005 but the stop bars were not installed until July of 2008 (see Exhibit 10, Tabs 32 and 33).

[247] Mr. Cooper attended a public meeting on behalf of the city (he was a student and junior technologist at that time) at the Strabane United Church on November 29, 2005 attended by the local councillor, David Braden, and Sue Russell regarding speed reductions on Brock Road after conducting his investigations regarding that road. Mr. Cooper indicated that he drove along Brock Road numerous times.

[248] This summary of evidence clearly establishes that the City of Hamilton was aware of the state of non-repair of the intersection regarding the stop line and was aware as well that this intersection was near the top of dangerous intersections in the entire city.

[249] Paragraph 44(3)(b) of the Municipal Act provides a second defence if the city can establish it took reasonable steps to prevent the default from arising.

[250] Mr. Cooper testified that the City of Hamilton took over the Town of Flamborough’s inventory of painted stop lines in 2000 and that it committed to maintain and repaint them.

[251] As indicated in Exhibit 10 at Tab 23, the city repainted the stop line at the intersection on July 5, 2004. Tab 2 of Exhibit 10 shows the intersection in September of 2004 and the stop line is clearly visible.

[252] Mr. Cooper testified that the stop line should have been repainted every six months. This was not done.

[253] As indicated in the photo in Exhibit 10 at Tab 3, the stop line could no longer be seen in 2005 due to wear and tear. Mr. Cooper himself attended the intersection in October of 2005 and indicated, “There are no stop bars in both directions” at the intersection. He recommended the remedial action of installing tiger tails and painting a stop bar (see Exhibit 18).

[254] Tiger tails were installed by the city in December of 2005 (see Exhibit 10 at Tab 32). No stop line was painted.

[255] Not only had the city committed to repainting the Town of Flamborough’s inventory of stop lines, the city’s policy was to paint stop lines where a specific need has been identified (see Exhibit 10 at Tab 21). The cost of painting a stop line was between $50 and $100. I conclude from Mr. Cooper’s evidence at trial and emails and recommendations from October of 2005 that Mr. Cooper had identified a need for a stop bar in October of 2005. No stop bar was painted.

[256] Accordingly, on April 29, 2006, the stop bar had not been repainted as recommended. It could not be seen by Mr. Ellis and was ineffective. No reason was provided as to why the default had not been corrected.

[257] Two further recommendations for the painting of a stop bar were made by other city staff as outlined in Tabs 27 and 35 of Exhibit 10. At Tab 27, Mr. van Berkel, in November 2006, proposed CCMs of increasing the size of stop signs and repainting the stop bars to take place in April of 2007. At Tab 35, this recommendation was repeated by Scott Stewart, general manager of Public Works in March of 2007.

[258] However, no stop line was repainted in the intersection in 2007. No explanation was provided for this lapse. At the same time, the evidence was that this intersection was becoming ever more dangerous and the city was fully aware of this (see Exhibit 10, Tabs 18, 19 and 27). The evidence from Mr. Cooper was that from 2004 until 2007 the intersection collision rate was on the rise, from the top six per cent of dangerous roadways in 2004 to a peak of 2.36 per cent of dangerous roadways in 2007.

[259] Despite this carnage and despite the recognized need and recommendations of three separate city staff, this intersection was not repainted until July of 2008 (see Exhibit 10, Tab 33). This repainting was done four years after the last repainting in 2004. Mr. Cooper testified that the intersection should be repainted every six months. The evidence is clear that the stop line had faded and was ineffective by at least the fall of 2005. The city waited almost three years to repaint the stop line. The cost of repainting was a meagre $100, at most, and there is no explanation at all as to why this stop line and the recommendations to repaint it were neglected while the city was aware of the increasing dangerousness of this intersection.

[260] Accordingly, the evidence is overwhelming that the city did not take reasonable steps to repaint the stop line or prevent the default from arising.

[261] I conclude that the city has failed to establish any of the defences outlined in subsection 44(3) of the Municipal Act.

4. FORDHAM STEP #4 – CONTRIBUTORY NEGLIGENCE

[262] Given the findings above, the municipality is to be found liable. The municipality can show that other persons’ driving caused or contributed to the plaintiff’s injuries – see Fordham at para. 26. I will deal with the liability of the two drivers involved under the sections of these reasons dealing with Issues #2 and #3.

CONCLUSION REGARDING ISSUE #1 – LIABILITY OF THE CITY OF HAMILTON

[263] For the reasons outlined, the City of Hamilton is liable to the plaintiffs for their failure to keep the intersection at 5th Concession West and Brock Road in a reasonable state of repair. The only issue that remains to be addressed is the liability of the two drivers involved in the accident.

ISSUE #2 – LIABILITY OF THE DEFENDANT RICHARD ELLIS

[264] The facts as already summarized can be applied to Mr. Ellis’ liability discussion.

[265] Counsel for Mr. Ellis concedes that Mr. Ellis was negligent and is liable for the accident at least to the extent of one per cent.

[266] I have found that Mr. Ellis stopped at the stop sign well back from the intersection and then proceeded to accelerate into the intersection when it was not safe to do so and he did not see the minivan until he struck it.

[267] Exhibit 19 is an admission that Mr. Ellis was charged under subsection 142(2) of the HTA with the offence of failing to start from a stopped position in safety with respect to a motor vehicle accident on April 29, 2006. Mr. Ellis pled guilty and was found guilty.

[268] As indicated in Kennerley, at paras. 14-16, it is an act of folly to stop at a stop sign well back from the intersection and then drive into the intersection without stopping again to look for traffic. Mr. Ellis’ folly similarly caused and contributed to the plaintiffs’ injuries and damages.

CONCLUSION REGARDING ISSUE #2 – LIABILITY OF THE DEFENDANT RICHARD ELLIS

[269] Given the admissions and evidence adduced at trial, Mr. Ellis is clearly liable to the plaintiffs for his role in this accident subject to apportionment for his and others’ negligence and liability.

ISSUE #3 – THE LIABILITY OF THE PLAINTIFF AMY DOWLING

[270] Ms. Dowling did not participate in the trial and her claims have been dismissed. No one called her as a witness despite her attendance early on at the trial.

[271] Constable Ingrassia did not charge Ms. Dowling with anything after a thorough investigation. Ms. Dowling did admit to him that she was travelling at 82 kilometres per hour which was two kilometres per hour over the posted speed limit. Constable Ingrassia suspected a greater speed but after a very thorough investigation, put into his accident report that she was travelling approximately 82 kilometres per hour in an 80 kilometres per hour zone. Suspicions without more are not proof on a balance of probabilities.

[272] The Kodsi report, Exhibit 9 at page 28, concluded that a typical driver could have either avoided the accident or reduced the speed of her vehicle. The report suggests Ms. Dowling did not do so, due to (1) her inattention, (2) a slower than normal perception-reception time, and/or (3) travelling well above the speed limit, thus only being able to brake her vehicle to a speed of 75 to 90 kilometres per hour at the time of impact.

[273] The difficulty with the Kodsi report is that there is absolutely no evidence adduced at this trial that she was inattentive or had a slower perception-response time or that she was speeding well over the speed limit.

[274] Mr. Chiocchio testified that Ms. Dowling was travelling at the speed limit which was 80 kilometres per hour. He testified that she was not impaired in any way and the officer confirmed this assessment.

[275] Mr. Chiocchio observed the Ellis vehicle when it was 150 metres to the north and stopped at the stop sign as they were approaching the intersection at 5th Concession West and Brock Road. Mr. Chiocchio told Ms. Dowling to watch out for that guy as he had been stopped for some time. Ms. Dowling did nothing and continued to drive. Mr. Chiocchio then saw the vehicle pull out and come at them and the Ellis vehicle struck the minivan. It all happened in a flash.

[276] Mr. Chiocchio, in cross-examination, expressed the opinion that Ms. Dowling should have been able to avoid the accident but also admitted he was not an expert. On a factual level, Mr. Chiocchio denied that Ms. Dowling was speeding and did not know if she was smoking that day. There was no evidence from Mr. Chiocchio that Ms. Dowling was driving improperly that day.

[277] The only firm evidence of speed is her statement that she was going over the limit by two kilometres per hour. Mr. Chiocchio testified she was travelling at the limit. The officer in his accident report adopted Ms. Dowling’s estimate of speed.

[278] As indicated in the Kennerley case, it was an “act of folly” for Mr. Ellis to proceed from the stop sign and not stop again. In Kennerley, it was held that Mrs. Kennerley’s actions in proceeding from the stop sign and not stopping were the sole cause of the accident.

[279] I would adopt the approach of Howden J. in the Deering case where he indicated at paras. 136-137 as follows:

136 Mr. Justice Laidlaw provided the traditional description of the reasonable person, accepted still as an accurate one in Linden & Feldthusen, supra, at 143:

[The reasonable person] is a mythical creature of the law whose conduct is the standard by which courts measure the conduct of all other persons and find it to be proper or improper in particular circumstances ... [The reasonable person] is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; his is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct…

137 To which description should be added that the standard of the reasonable person is an objective one, by which the law requires a minimum level of performance. The reasonable person is not perfect, and may have an occasional accident. The ordinary or reasonable driver neither has the wisdom of Solomon nor is that person obligated to "exercise the best possible judgment in an emergency. ... What the model human must do is act in accordance with normality and practicality rather than judicial technicality or diversity of view." Linden & Feldthusen, supra, at 141-2.

[280] Ms. Dowling is deemed to be a reasonable person and is not deemed to be a person of unusual foresight or obligated to exercise the best possible judgment.

[281] Her only proven mistake on the evidence before me was to drive, at its highest, two kilometres per hour over the limit. As can be seen from Tab 7 of Exhibit 10 and Mr. Cooper’s evidence, surveys were done of traffic travelling on Brock Road between 5th and 6th Concessions; the 85th percentile of traffic was travelling at 92-93 kilometres per hour. Justice Laskin in Fordham held that “no amount of general community compliance will render negligent conduct “reasonable” – see Fordham at para 47. I believe the same comments would apply to community practices of speeding on local roads.

[282] The best possible judgment was for Ms. Dowling was to watch the Ellis vehicle and slow down. Perhaps then she might have been able to avoid the accident when the Ellis vehicle negligently and “in a flash” accelerated into the intersection. But, as indicated by Laidlaw J., that is not the standard. It is easy in hindsight to do some Monday morning armchair quarterbacking.

[283] The reasonable person test does not require perfect driving from Ms. Dowling. Further, I am not satisfied that if she had driven at the speed limit (two kilometres per hour slower) that the result would have been different. Further still, on the evidence before me, there was no evidence of any improper driving by Ms. Dowling other than a very minor speeding infraction. This all happened in a flash when Mr. Ellis decided, on his folly, to accelerate into the intersection without seeing the Dowling minivan – see Kennerley at paras. 14-16.

CONCLUSION REGARDING ISSUE #3 – LIABILITY OF THE PLAINTIFF AMY DOWLING

[284] Accordingly, on the evidence before me, there is insufficient evidence that would establish that Ms. Dowling’s driving was in breach of what was required of the ordinary reasonable driver or that her manner of driving, including speeding by two kilometres per hour, caused or contributed to the accident and Mr. Chiocchio’s loss and damages.

OVERALL CONCLUSION

[285] For the reasons above, the defendants City of Hamilton and Richard Ellis were negligent. Their negligence caused the damages and injuries of the plaintiffs, Michael Chiocchio Sr. and Michael Chiocchio Jr.

[286] In my opinion, the negligent defendants are equally liable. Had the intersection been in a proper state of repair, Mr. Ellis would have stopped at the stop line as was his habit and he would have seen the approaching minivan. Similarly, had Mr. Ellis, after stopping at the stop sign, not committed the folly of pulling into the intersection without checking that it was safe to do so, he would have seen the approaching minivan. In either situation, this accident would not have occurred.

[287] In Hauser, the accident was caused by the negligence of the driver and the negligence of the municipality in failing to maintain the road properly. The Court of Appeal apportioned the fault at 50 per cent against the plaintiff and 50 per cent against the municipality.

[288] In this case, I find that the accident was caused in equal amounts by Mr. Ellis (driving a car owned by Wendy Ellis) and the City of Hamilton. I would apportion fault at 50 per cent against the defendants Richard and Wendy Ellis and 50 per cent against the City of Hamilton.

ORDER

[289] Accordingly, the following order is to issue:

1. Regarding the defendants Richard Ellis and Wendy Ellis, they negligently caused the accident of April 29, 2006 which caused the damage and loss to the plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr. and are liable for 50 per cent of all damages and losses incurred by those two plaintiffs due to the April 29, 2006 accident.

2. Regarding the defendant City of Hamilton, the city negligently caused the accident of April 29, 2006 which caused the damage and loss to the plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr. and the City of Hamilton is liable for 50 per cent of all damages and losses incurred by those two plaintiffs due to the April 29, 2006 accident.

3. The counterclaims of the defendants Richard Ellis, Wendy Ellis and the City of Hamilton against Amy Dowling are dismissed.

4. Costs of the trial are awarded to the plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr.

[290] All counsel in this difficult trial were very well prepared and I wish to extend my appreciation for their excellent assistance.

Skarica J.

Dated: December 7, 2016

CITATION: Chiocchio v. Ellis, 2016 ONSC 7570

COURT FILE NO.: 08-2596

DATE: 2016-12-07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL CHIOCCHIO SR., AMY DOWLING, AND MICHAEL CHIOCCHIO JR., BY HIS Litigation Guardian, MICHAEL CHIOCCHIO SR.

Applicants

• – and –

RICHARD ELLIS, WENDY ELLIS and THE CORPORATION OF THE CITY OF HAMILTON

Defendants

REASONS FOR JUDGMENT

TS:mw

Released: December 7, 2016

CITATION: Chiocchio v. Ellis, 2016 ONSC 7570

COURT FILE NO.: 08-2596

DATE: 2017-01-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL CHIOCCHIO SR., AMY DOWLING, AND MICHAEL CHIOCCHIO JR., BY HIS Litigation Guardian, MICHAEL CHIOCCHIO SR.

Michael D. Smitiuchi, for the Plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr., by his Litigation Guardian, Michael Chiocchio Sr.

Plaintiffs

• and -

RICHARD ELLIS, WENDY ELLIS and THE CORPORATION OF THE CITY OF HAMILTON

Joe Masterston for the Defendants Richard Ellis and Wendy Ellis;

T.R. Shillington and Jonathan de Vries, for the Defendant, The Corporation of The City of Hamilton

Defendants

HEARD: November 23, 24, 25, 28, 29 and December 1, 2016

CORRIGENDUM TO REASONS FOR JUDGMENT

The Honourable Mr. Justice Skarica

[291] The following counsel’s names are corrected on the first page of the original Reasons for Judgment issued on December 7, 2016:

Michael D. Smitiuch, for the Plaintiffs Michael Chiocchio Sr. and Michael Chiocchio Jr., by his Litigation Guardian, Michael Chiocchio Sr.

Joe Masterson for the Defendants Richard Ellis and Wendy Ellis

[292] The following counsel are added after “Michael D. Smitiuchi”, counsel for the Plaintiffs on the first page of the original Reasons for Judgment issued on December 7, 2016:

Peter Cho

[293] The following counsel are added after “Joe Masterston”, counsel for the Defendants Richard Ellis and Wendy Ellis on the first page of the original Reasons for Judgment issued on December 7, 2016:

Laura Emmett

[294] All other contents in the Reasons for Judgment issued on December 7, 2016 remain unchanged.

Skarica J.

Released: January 31, 2017

CITATION: Chiocchio v. Ellis, 2016 ONSC 7570

COURT FILE NO.: 08-2596

DATE: 2017-01-31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL CHIOCCHIO SR., AMY DOWLING, AND MICHAEL CHIOCCHIO JR., BY HIS Litigation Guardian, MICHAEL CHIOCCHIO SR.

Plaintiffs

• – and –

RICHARD ELLIS, WENDY ELLIS and THE CORPORATION OF THE CITY OF HAMILTON

Defendants

CORRIGENDUM TO REASONS FOR JUDGMENT

TS:co

Released: January 31, 2017