COURT FILE NO.: 05-CV-283449PD1

DATE: 20190306

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STAMATIS (STEVE) STAMATOPOULOS, NIKOLAOS STAMATOPOULOS, CHRISTOTHEA STAMATOPOULOS, KYRIAKOS STAMATOPOULOS and STEPHANIE CLARKE

Plaintiffs

– and –

RICHARD J. HARRIS and THE REGIONAL MUNICIPALITY OF DURHAM and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO represented by THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO and STATE FARM INSURANCE

Defendants

Mr. George A. Bougadis, Mr. Boris Goryayev, and Mr. Joga S. Chahal, for the Plaintiffs

Mr. David G. Boghosian and Mr. Sachin Persaud, for the Defendant, Regional Municipality of Durham

Mr. Brian M. Bangay for the Defendant, Richard J. Harris

HEARD: March 26-29, April 3-5, April 16-20, April 30, May 1, May 15-18, May 22-25, and August 8, 2018

TABLE OF CONTENTS

Overview.. 1

Events of the Collision. 3

(i)...... The Agreed Statement of Facts. 3

(ii)..... Absence of event data recorder data from Mr. Harris’ Lincoln. 4

(iii).... Evidence of Mr. Stamatopoulos. 5

(iv).... Evidence of Mr. Harris. 7

(v)..... The Accident reconstruction evidence. 15

Detective Sgt. Andre Wyatt 15

Scott Walters – Accident reconstructionist called by plaintiffs. 19

Joe Correia – Accident reconstructionist called by Durham Region. 25

Conclusion on the accident reconstruction evidence. 30

The Cause of Action under s. 44 of the Municipal Act 31

1. Was the road in a state of non-repair?. 34

(i) Agreed facts regarding the character of RR 39 in the area of the collision. 34

(ii) Agreed facts regarding absence of prior collisions at this location. 35

(iii) Evidence of the Civilians. 36

Anand Sirha. 36

Harvey Schell 37

Robert Kruchio. 38

Howard Lumley. 40

Randall Kane. 40

(iv) Evidence of Police drive-throughs of dip at various speeds. 42

(v) The Durham Region and Ontario guidelines regarding road depressions. 44

(vi) The Ontario Traffic Manual guidelines regarding signs for road hazards. 45

(vii) Evidence of Neil Bigelow.. 47

(viii) Evidence of Lloyd Morden. 52

(ix) Evidence of Robert Gilchrist 56

(x) Evidence of Brian Malone. 63

(xi) Evidence of John Robinson and Eugene Lisco regarding quantitative assessment of the dip by mapping 2010 data over Bigelow survey data. 69

(xii) The Balance of Mr. Robinson’s evidence. 75

(xiii) Conclusion on whether the road was in a state of non-repair and the ordinary reasonable driver 76

2. Causation. 83

3. Statutory Defences. 84

Section 44(3)(b) defence. 84

Evidence of Robert Macklem – Durham Road Safety supervisor 85

Evidence of Brad Watson. 87

Section 44(8) defence. 90

4. Contributory Negligence. 92

Apportionment 93

Spoliation. 93

Conclusion. 95

COURT FILE NO.: 05-CV-283449PD1

DATE: 20190306

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STAMATIS (STEVE) STAMATOPOULOS, NIKOLAOS STAMATOPOULOS, CHRISTOTHEA STAMATOPOULOS, KYRIAKOS STAMATOPOULOS and STEPHANIE CLARKE

Plaintiffs

– and –

RICHARD J. HARRIS and THE REGIONAL MUNICIPALITY OF DURHAM and HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO represented by THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO and STATE FARM INSURANCE

Defendants

Mr. George A. Bougadis, Mr. Boris Goryayev, and Mr. Joga S. Chahal for the Plaintiffs

Mr. David G. Boghosian and Mr. Sachin Persaud for the Defendant, Regional Municipality of Durham

Mr. Brian M. Bangay for the Defendant, Richard J. Harris

HEARD: March 26-29, April 3-5, April 16-20, April 30, May 1, May 15-18, May 22-25, and August 8, 2018

Justice J. Copeland

REASONS FOR JUDGMENT

Overview

[1] Stamatis (Steve) Stamatopoulos brings an action in negligence involving a motor vehicle collision. The other plaintiffs are family members of Mr. Stamatopoulos, who bring claims under the Family Law Act, R.S.O. 1990, c. F.3. The defendants remaining at the time of trial were the driver, Richard Harris, and the Regional Municipality of Durham (“Durham Region” or “Durham”).

[2] At this stage, the issues in the trial focus primarily on whether Durham Region is liable in negligence, and if so, apportionment of damages. In 2010, Mr. Stamatopoulos reached a settlement with Mr. Harris. The settlement involved a Mary Carter agreement. Mr. Harris concedes that the manner of his driving was negligent and was a cause of the collision. However, he and the plaintiffs take the position that the road where the collision occurred was in a state of non-repair, and that this was also causal of the collision.

[3] The impact of the settlement and the Mary Carter agreement is that Mr. Harris continues to participate in the litigation for purposes of pursuing his cross-claim against Durham Region. His effective role relates to attempting to establish liability on the part of Durham Region, and if Durham is found liable, what proportion of liability Durham is responsible for. I note as well that the practical impact of the Mary Carter agreement is that the interests of the plaintiffs and Mr. Harris were largely aligned during the trial.

[4] The trial issues were further narrowed at a pre-trial held approximately one month prior to the start of the trial. An agreement was reached regarding the amount of Mr. Stamatopoulos’ residual total damages (after deduction of all collateral benefits, and also those previously paid by Mr. Stamatopoulos’ accident benefits insurer, as a credit to the tort defendants). The agreed amount is set out in Exhibit #4. Thus, if I find liability on the part of Durham Region, I need not consider the amount of damages, but only what portion of the agreed upon amount Durham is liable for. At trial, the plaintiffs and the defendant Harris seek to have Durham found liable for 50 percent of the amount of damages agreed to.

[5] As a result of the agreement regarding damages, I heard very little evidence about the injuries suffered by Mr. Stamatopoulos. Indeed, since he also has no memory of the collision, in some ways these reasons make very little reference to his experience of the collision. There is no question, however, that the effect of the collision on Mr. Stamatopoulos was life-changing.

[6] There are a number of issues I need to decide in this trial, which are outlined in the index. The three most central issues are the following: 1) whether the road where the collision occurred was in a state of non-repair such that Durham Region breached its duty of care to drivers (and passengers) using the road; 2) if the road was in a state of non-repair, was the state of non-repair a cause of the collision; and 3) whether Durham Region can avail itself of any of the statutory defences in s. 44 of the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”), in particular the defences in ss. 44(3)(b) and 44(8).

[7] In an appendix at the end of these reasons I provide reasons for a number of rulings that I made during the trial, either without reasons or with abbreviated oral reasons.

Events of the Collision

(i) The Agreed Statement of Facts

[8] Many of the facts regarding the collision and the vehicle are not in dispute, and were set out in an agreed statement of facts filed as Exhibit #4.

[9] The collision was a single motor vehicle collision that occurred on November 5, 2004, at approximately 8:45 p.m. The collision occurred on Regional Road 39 (“RR 39”), approximately one to two kilometres east of Regional Road 30 (“RR 30”), in the Township of Uxbridge, in the Regional Municipality of Durham.

[10] The defendant Mr. Harris was the driver. The vehicle was a 2000 Lincoln LS, four door sedan with a V8 engine, owned by Mr. Harris. Mr. Stamatopoulos was a passenger in the front seat, and was wearing a seat belt.

[11] At the time of the collision, Mr. Harris and Mr. Stamatopoulos were on their way to Casino Rama in Orillia, after completing their work shifts at the Garden Basket grocery store where they both worked.

[12] Neither alcohol consumption, nor the use of prescribed or unprescribed drugs was a factor in the collision.

[13] The Lincoln had no mechanical defects at the time of the collision, and it was agreed that it would have passed a safety inspection at the time of the collision. The mechanical condition of the Lincoln was not a contributing factor to the collision.

[14] On the date of the collision, the defendant Durham Region had jurisdiction over and responsibility for the maintenance of RR 39.

[15] On the date of the collision, the weather in the area was cool (+5.5 degrees Celsius), dry, and clear. The roads, including RR 39, were dry. It was dark. There was no artificial lighting on the area of RR 39 at issue.

[16] Mr. Harris’ vehicle was travelling eastbound at the time of the collision. Mr. Harris lost control of the Lincoln after travelling over an area of depression (also referred to in the evidence as the “dip”) in the roadway in RR 39. The Lincoln started to rotate, left the asphalt portion of the road, and travelled across the south side gravel shoulder and an adjacent ditch. The vehicle hit and snapped a pole in the ditch. This pole was a guide pole used to support a hydro pole on the other side of the road. The vehicle travelled a further distance, and collided, passenger side first, into a group of trees and an embankment. The embankment was the side of the driveway to a residence at 187 RR 39. The Lincoln came to rest with the passenger side wedged up against the dirt embankment.

[17] The pole that the Lincoln hit was located in the “clear zone”, i.e. approximately three metres from the south edge of the pavement of RR 39.

[18] The dip was located on RR 39 just west of the residence at 184 RR 39. The dip was not signed for traffic approaching in either direction on RR 39.

[19] RR 39 is classified by Durham as a Class 3 rural road for mandatory minimum standards purposes (“MMS”). RR 39 has one lane in each direction (i.e., eastbound and westbound), separated by a dashed yellow painted centerline. It has gravel shoulders and open ditches. The (unposted) speed limit on eastbound RR 39 was 80 km/h at the time of the collision, and remains 80 km/h.

[20] As a result of their investigations, the Durham Police investigators identified yaw marks, i.e., tire marks, left by the Lincoln from the collision, commencing 110 to 155 metres east of the dip.

(ii) Absence of event data recorder data from Mr. Harris’ Lincoln

[21] Unfortunately, for purposes of trying to assess how the collision occurred, there is no evidence available from the event data recorder from the Lincoln (i.e., the black box). In modern accident investigations, the event data recorder can be very helpful to provide evidence about issues such as speed at various points, application of force to the accelerator, application of brakes, and steering input.

[22] The event data recorder from the Lincoln was not seized by the police, and is no longer available. Detective Sgt. Andre Wyatt, the accident reconstruction officer for this collision from the Durham Regional Police Service (whose evidence I address in more detail further below) testified that the event data recorder was not seized because in that time period, Ford, the maker of the Lincoln, was not forthcoming about data collected by event data recorders. As the recorders used proprietary software, the police could not obtain the information without Ford’s cooperation. Detective Wyatt testified that in that time period, only General Motors was cooperative with the police in obtaining information from the event data recorders of vehicles involved in collisions.

[23] Sgt. Don St. Onge gave similar evidence about Ford not being forthcoming at that time with data from event data recorders. Sgt. St. Onge also testified that the speed data that was available in that time period, when the manufacturer would provide it, was the speed at the time of impact, not the speeds before that.

[24] The effect of the absence of data about speed from the event data recorder is that I am left to consider the issue of what speed the vehicle was travelling as it traversed the dip based on the evidence of Mr. Harris (which is contested), and the evidence of the accident reconstruction experts (also contested).

[25] Because they did not have specific data about speed from an event data recorder, the accident reconstructionists called as expert witnesses by the parties had to use various methods to calculate and estimate the speed of the Lincoln at the time it went over the dip. These methods were based on using various evidence from the scene, and the laws of physics, to calculate speed. The accuracy and appropriateness of the various methods of calculation used by the experts is in dispute, and discussed further below.

(iii) Evidence of Mr. Stamatopoulos

[26] As noted above, prior to the start of the trial, the parties reached an agreement in relation to the total amount of Mr. Stamatopoulos’ damages. As a result of this agreement, I did not hear significant evidence about the nature of Mr. Stamatopoulos’ injuries. I want to be clear that the fact that the nature of his injuries was not the focus of the trial does not in any way lessen the significance of those injuries. It was clear from the limited evidence I heard about Mr. Stamatopoulos’ injuries, and from the agreed statement of facts, that his injuries were significant and life-changing.

[27] Mr. Stamatopoulos was 42 years old at the time he testified. He was 28 at the time of the collision. He is married to the woman who was his fiancée at the time of the collision, who he met in high school. They have two children, and a dog.

[28] Mr. Stamatopoulos completed a three year college degree in business and marketing prior to the collision. At the time of the collision, he worked at the Garden Basket grocery store in Markham. He had started work there part-time, and worked his way up to full-time positions as a department manager, and then as assistant store manager. He hoped to become the store manager, and then move on to work as a buyer for a large supermarket chain. Because of the collision and the injuries he suffered, that possibility is no longer open to him.

[29] He has been declared “catastrophically impaired” for purposes of accident benefits. He is considered “disabled” for Canada Pension Plan benefits purposes, and “totally disabled” under his work long term disability plan. Mr. Stamatopoulos has not worked since the collision. He is not expected to work again. Prior to the collision, he had no disabilities or chronic illness.

[30] Based on the agreed statement of facts, Mr. Stamatopoulos’ injuries when he was admitted to hospital following the collision were as follows: a left side eye globe rupture; multiple facial fractures, including frontal sinus fractures, a broken nose, and a broken jaw that had to be wired shut; orbital floor fractures; disfiguring facial and scalp lacerations; multiple fractured teeth; a moderate to severe closed head injury with objective brain damage; and a subarachnoid brain hemorrhage.

[31] As a result of his injuries from the collision, Mr. Stamatopoulos has undergone numerous surgeries to date, including: repair of the left eye globe rupture; repair of the anterior cranial vault; repairs of the bilateral nasal orbitoethmoid fractures; frontal sinus sinusectomy; removal of the entire left eyeball; multiple removals of hardware; insertion of dental implants; and correction of contour deformity of the left supraorbital rim.

[32] Mr. Stamatopoulos testified that since the collision, he has had over two dozen surgeries on his head or his eye. He is expected to require more surgeries for his mouth and teeth. On average he has had a surgery between every one to two years. He is likely to have an ongoing pattern of surgery.

[33] Mr. Stamatopoulos met Mr. Harris when they were both around age 17 years. They met when both were working part-time at Garden Basket. They formed a work friendship. They both became full-time employees. They began going out together occasionally.

[34] When they went out usually one of them would drive, but it varied who drove. Depending where they were going, one would drive to the other’s house to pick the other up. Also, sometimes they would take separate cars.

[35] Mr. Stamatopoulos testified that he has no memory of the collision. He also has no memory of about one week prior to the collision, and approximately two weeks after the collision.

[36] Mr. Stamatopoulos testified that he had driven with Mr. Harris about ten times prior to the evening of the collision. That includes times when Mr. Stamatopoulos was driving. He testified that approximately seven of those times Mr. Harris was the driver. On those prior occasions, Mr. Stamatopoulos never saw anything that led him to be concerned about Mr. Harris’ manner of driving, including his speed of driving. He felt that Mr. Harris was a responsible driver.

[37] Mr. Stamatopoulos testified that very soon after he got out of the hospital, he spoke to Mr. Harris by phone. Mr. Stamatopoulos was hoping Mr. Harris would say something about how the collision happened. During that conversation, Mr. Harris said he hit a bump and his tire came off or his tire blew, and he lost control of the car and they ended up in the ditch. In cross-examination, Mr. Stamatopoulos was less sure of exactly what Mr. Harris said about how the dip caused him to lose control. Mr. Stamatopoulos recalled, but was not certain, that Mr. Harris asked him during this conversation if he had any memory of the collision.

[38] In cross-examination, Mr. Stamatopoulos agreed that he recalled once being in the car with Mr. Harris driving, and he remembered waking up, because they went over a dip in the road (i.e., he felt something and it woke him). Mr. Stamatopoulos said something like, “whoa”, and Mr. Harris responded, “sorry I woke you.” Mr. Stamatopoulos said he was not sure if it was the same dip in the road involved in the collision at issue.

[39] In cross-examination, counsel for Durham Region sought to refresh Mr. Stamatopoulos’ memory to ask him questions about an alleged prior incident in December 2003 where counsel for Durham wanted to suggest that Mr. Harris had driven at a very excessive speed with both Mr. Stamatopoulos and Mr. Stamatopoulos’ brother, Kenny, in the vehicle as passengers. The document which counsel wished to use to refresh Mr. Stamatopoulos’ memory was a summary made by counsel for the plaintiffs during a discovery of a statement previously made by Kenny. I allowed counsel to ask Mr. Stamatopoulos to read the statement to himself to see if it refreshed his memory. It did not, and Mr. Stamatopoulos did not recall any such incident. Counsel then sought to put a number of specific questions, clearly factually drawn from the brother’s statement. I allowed the questions to be asked, but again, Mr. Stamatopoulos did not recall the incident. I do not use this questioning in any way, because it is not evidence. Questions asked by counsel are not evidence, unless a witness accepts the factual premise posed in the question as true: R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827 at para. 37. That did not happened here. Mr. Stamatopoulos had no memory of an incident like the one suggested by counsel. And Mr. Stamatopoulos’ brother was not called as a witness at trial.

[40] I accept Mr. Stamatopoulos’ evidence as true regarding the nature of his injuries (which are not in dispute), and regarding the fact that he had driven with Mr. Harris’ as the driver approximately seven times before, and nothing had happened on those occasions that led him to have concerns about the nature of Mr. Harris manner of driving, or speed. Mr. Stamatopoulos was consistent in his evidence throughout, including in cross-examination. He was forthright about what he could and could not remember, and gave his evidence in a measured fashion.

[41] Regarding his evidence of his telephone conversation with Mr. Harris where Mr. Harris attributed his loss of control of the car to a dip in the road, and may have said something about losing a tire or a tire blowing out, I do not find Mr. Stamatopoulos’ evidence about that alleged prior statement by Mr. Harris to be reliable. The potential relevance of this evidence is as a prior inconsistent statement of Mr. Harris, as it is not consistent with Mr. Harris’ evidence at trial (nor is it consistent with the physical evidence of from the collision according to the second joint expert report). I find Mr. Stamatopoulos’ evidence on this issue not to be reliable for two reasons. First, Mr. Stamatopoulos was unsure of exactly what Mr. Harris said about how the dip caused him to lose control of the car. The lack of certainty matters because it was only the claim of the tire coming off the rim or blowing out that was inconsistent with Mr. Harris’ trial evidence. Second, the timing of the conversation in relation to Mr. Stamatopoulos’ stated problems with his memory gives me concern about its reliability. Mr. Stamatopoulos said the conversation took place shortly after he got home from the hospital. He earlier testified, and I accept, that he had no memory of the week prior to the collision, and for a couple of weeks after the collision. In light of the proximity in time of this statement to his memory problems, I am concerned about the reliability of his recollection of what Mr. Harris said. As I find Mr. Stamatopoulos’ evidence of this alleged statement by Mr. Harris to be unreliable, I will not consider this particular alleged prior statement in assessing Mr. Harris’ credibility.

(iv) Evidence of Mr. Harris

[42] I have concerns about the credibility and reliability of Mr. Harris’ evidence. I will summarize his evidence in examination-in-chief and in cross-examination by the counsel for the plaintiffs (since, given the Mary Carter agreement, in substance it was an extension of the examination-in-chief). I will then outline the areas where his cross-examination by Durham Region’s counsel leads me to have concerns about the credibility and reliability of his evidence.

[43] Mr. Harris was 40 years old when he testified, and was 27 at the time of the collision.

[44] He testified that on the evening of the collision, he and Mr. Stamatopoulos were on their way from his home to Casino Rama. He was driving his own vehicle, a 2000 Lincoln LS, 4 door sedan, with a V8 engine. Mr. Stamatopoulos was in the front seat and was wearing a seat belt.

[45] Mr. Harris and Mr. Stamatopoulos left Mr. Harris’ home just after 8 p.m. It was dark out. The weather was dry. The roads were dry.

[46] It is common ground that the area on RR 39 where the depression at issue lies is at the bottom of a gentle slope, travelling eastbound, approximately one kilometre past where RR 30 curves into RR 39.

[47] Mr. Harris testified that after exiting the curve from RR 30 to RR 39, travelling eastbound, he accelerated to 100 km/h. At some point as he travelled down the hill to the west of the dip, he took his foot off the accelerator, and coasted the rest of the way down the hill and through the dip. He testified that he kept his foot above the accelerator or the brake, covering the accelerator or the brake, he was not sure which one.

[48] Mr. Harris claimed that just as he entered the dip, he looked at his speedometer, and saw that he was going 100 km/h. His evidence was that this occurred “right at the end of the downslope when it – right when it flattens out before – right before the dip”.

[49] Mr. Harris testified that he knew that the speed limit on that part of RR 39 was 80 km/h.

[50] He testified that he did not press the accelerator again from the point where he started coasting down the hill until a few seconds after passing over the dip.

[51] He testified that when he hit the dip, that was when it “went wrong”. He recalled a bit of a bounce of the front end of the car. Then he saw the traction control light come on momentarily, and felt a tug to the left. He said he then panicked. He said he panicked because “the bump startled me and then the traction control light just didn’t make sense to me at that time”. He then mistakenly depressed the accelerator fully, causing the tachometer or the speedometer, or both, to “shoot up”. He tried to correct by steering towards the right. He then felt a second pull to the left. He again tried to correct by steering towards the right. He testified that in his panic, he continued to depress the accelerator full throttle for another 3-4 seconds, until one of the wheels of his vehicle went onto the right shoulder, at which point he says he lost control of the vehicle.

[52] Mr. Harris testified that once he panicked, he never stopped panicking, and had no time to settle down. Once the vehicle hit the shoulder, he did not have a recollection of the rest of the collision until after the vehicle came to rest, and firefighters were present.

[53] Mr. Harris testified that he was holding a bottle of pop in his right hand when he came to the dip in the road. The timing of when Mr. Harris opened the bottle of pop he was drinking from was an area of significant dispute, and as I will outline, an area where Mr. Harris has given inconsistent statements. His evidence in examination-in-chief was that he brought a bottle of Pepsi with him. It had a twist off cap. In his examination-in-chief he said he did not recall exactly when he opened the bottle of pop. However, he testified that he was not opening it when the collision occurred. He testified that he never had both hands off the wheel to open the pop bottle in the car. He also testified that never put the cap back on the pop bottle after he entered the vehicle. He knew he had opened it before the dip because he had had two sips from the bottle as he came down the hill before the road flattens (and one then approaches the dip). He testified that his left hand was always on the steering wheel. He testified that when he hit the dip and felt the car pull to the left, he had his left hand on the wheel, but his right hand was still holding the pop bottle. Mr. Harris is right handed.

[54] Mr. Harris testified that he did not know what his speed was after he hit the dip and pressed the accelerator. He believed his speed must have increased, since he pressed the accelerator.

[55] Mr. Harris testified that in the collision he suffered a concussion, and a fractured C4 and C5 vertebrae.

[56] I found Mr. Harris to be evasive and inconsistent on a number of issues in cross-examination. I will give some examples. In his examination-in-chief and examination by counsel for the plaintiffs, Mr. Harris described the first pull to the left as a “tug”. In cross-examination, was confronted with a line of questioning asking why he panicked, when he admitted there were no oncoming cars, and no traffic around, and that although the car may have gone over the centre line a little on the first tug, Mr. Harris said “I know it was not much”. In response to this line of cross-examination, Mr. Harris then said of the first tug that “it was an aggressive pull to the left at the front end”.

[57] Mr. Harris was asked about a portion of his examination for discovery where he said that after the first tug: “right now my foot is on the brake or on the gas because I panicked and that’s when I saw the needle shoot up and I had my foot on the gas.” Rather than admit the obvious explanation that maybe he misspoke at the discovery, Mr. Harris repeatedly asserted that the answer referring to his foot on the brake was a “typo” in the discovery transcript.

[58] Mr. Harris was asked a number of questions in cross-examination about answers he had given in his examination for discovery that after the first pull to the left, he steered the car back to the right, and the car went straight for a few more seconds, or four or five seconds. In response to these previous answers, Mr. Harris said that those estimates were not accurate. He said it was more like “milliseconds”. He said his previous answers were “my guesses but I don’t know how accurate they are”.

[59] I also find that Mr. Harris was inconsistent and evasive regarding when he opened the pop bottle, and whether he had both hands off the wheel immediately before he began to traverse the dip. He gave a number of significantly inconsistent statements on this issue prior to the trial. He was cross-examined about these prior inconsistent statements during the trial.

[60] As I have outlined above, Mr. Harris said in his examination-in-chief, and when being examined by counsel for the plaintiffs, that he did not specifically recall when he opened the pop bottle, but that it was not immediately before the dip, and that he had his left hand on the wheel the whole time as he approached the dip. At the start of the portion of his cross-examination on this issue, counsel for Durham had Mr. Harris confirm that he denied that just before he felt the tug to the left he had opened the pop bottle using both hands and had no hands on the steering wheel.

[61] However, the account he gave to Sgt. St. Onge in his videotaped statement to police several weeks after the collision was very different, in my view. Mr. Harris was cross-examined extensively on the videotaped statement he gave to Durham Regional Police on November 25, 2004. That statement was formally proven both by Mr. Harris’ admission that he had made the statement, and by Durham Region later calling as a witness Sgt. St. Onge, who conducted the videotaped interview. He testified that the videotape, which was entered as an exhibit, accurately represented the interview, and was complete. I accept that the video of the interview is a complete and accurate record of the statement.

[62] Mr. Harris agreed that he was cautioned prior to providing the videotaped statement. At the time Mr. Harris gave the statement, the police were conducting the investigation that ultimately led to Mr. Harris being charged with careless driving. He agreed that Sgt. St. Onge was nice and polite to him, and let him tell his story.

[63] In the portion of the videotaped statement to where Sgt. St. Onge asks about the opening of the pop bottle, the following exchange takes place:[^1]

OFFICER: Were either one of you drinking water, or pop, or anything like that?

RICHARD: Yes, there was … I had a pop in my car.

OFFICER: Okay, at the time, just prior to, do you recall whether you had the beverage in a cup holder, or did you have it out in your hand, or …

RICHARD: This is what bugs me a lot. Because right before it happened, I had … I did have a pop, and I’d just opened it.

OFFICER: Okay.

RICHARD: And during everything that happened, like, I only had one hand on the wheel.

OFFICER: Okay, when you make this motion to open the can of pop, obviously this is one of those tabs?

RICHARD: It was exactly like that, except it was a Diet Pepsi.

OFFICER: Okay, so it was a bottle with a twist-off top?

RICHARD: Yeah. Yeah.

OFFICER: Okay, so obviously, you have to momentarily let go and pop this thing off, right?

RICHARD: Yes, but this isn’t when it happened. I pulled if off…

OFFICER: Yes.

RICHARD: … and I don’t know, I took a few drinks, and I hadn’t even put it back in the cup holder when it all happened.

OFFICER: Okay, so you have still got it in your hand, but you have one hand on the wheel?

RICHARD: I remember the whole time I was like this, because I hadn’t put it in the cup holder yet.

OFFICER: Yes, okay. So, you did have a hand on that steering wheel?

RICHARD: I had my left hand on the wheel and my cup holder . . . or pop was just in my right, and I was about to put it down, but I hadn’t got to it yet. [Emphasis added.]

[64] Further, in addition to the words Mr. Harris says to Sgt. St. Onge about opening the pop bottle immediately before he began to traverse the dip, I find that his gestures while he was giving this portion of the statement also support the conclusion that he opened the pop bottle just before he began to traverse the dip, and thus had both hands off the steering wheel at that time. As Mr. Harris recounted this portion of the statement to Sgt. St. Onge, he gestured using both hands to show holding a pop bottle in one hand, and twisting off the cap with the other hand.

[65] When cross-examined at trial about this exchange, Mr. Harris agreed that he gave those answers in the videotaped statement. He denied that he told Sgt. St. Onge that he had just opened the pop bottle prior to feeling the tug to the left. And he denied that he told Sgt. St. Onge that he had both hands off the wheel to open the bottle.

[66] I do not accept these responses by Mr. Harris as truthful. I have reviewed the videotaped interview. It is quite clear from reviewing that portion of the exchange that Mr. Harris was telling Sgt. St. Onge that he had “just opened” the bottle of pop prior to passing over the dip and feeling the tug to the left. It is also clear that to open the pop bottle he took both hands off the steering wheel. This is clear not only because it is common sense that one has to use both hands to open a bottle of pop, but also because Mr. Harris demonstrates in the videotaped statement using both hands to open the pop bottle.

[67] This is a significant inconsistency on the part of Mr. Harris, because it relates to the issue of his distraction, and his inability to control the vehicle. Based on Mr. Harris’ words and gestures in this portion of the statement to Sgt. St. Onge, I find that he clearly told Sgt. St. Onge that he was opening the pop bottle, using both hands, just before he began to traverse the dip. This is a significant inconsistency in his evidence. Further, as an out of court admission against interest by a party to litigation, it is admissible for the truth of its contents (in addition to being admissible as a prior inconsistent statement).

[68] I find as a fact that immediately prior to entering the dip in the road, Mr. Harris had both hands off the steering wheel, and then was only able to get one hand back on the steering wheel just prior to or as he entered the dip. I find that these factors clearly played a significant role in his panicked reaction to the dip and the causation of the collision.

[69] Mr. Harris gave yet another inconsistent version of events involving the pop bottle in his provincial offences trial. In the provincial offences trial he was asked in his examination-in-chief about whether the bottle of pop affected his ability to control the car. The following exchange took place (after some preliminary questions that raised the issue of the pop bottle):

Q: Did that [the pop bottle he was holding] in any way affect your ability to drive the car prior to the accident?

A: Prior to the accident, no.

Q: You had complete control of the vehicle?

A: Oh yes, I had complete control. I had my left hand on the wheel at all times. I even – I noticed in my – statement on the video, I think I said I opened it, but – I think – I don’t know when I opened it, but it was long before the time of the accident, so I never – I don’t believe I ever had two hands off the wheel. I think I may have even opened the pop at my house and taken it with me. [Emphasis added.]

[70] This statement is inconsistent with Mr. Harris’ statement to Sgt. St. Onge in the videotaped interview in which, as I have outlined above, I find that Mr. Harris clearly said that he had opened the pop bottle just before he began to traverse the dip. When confronted at trial with this inconsistency, Mr. Harris denied the suggestion that he lied at the provincial offences trial about when he opened the pop. He said his house is only five minutes from where the collision occurred.

[71] I do not accept this explanation by Mr. Harris. A fair reading of his answer about the pop bottle in the provincial offences trial is that he was telling the court that he had opened the pop bottle “long before” the collision, and maybe even at his home. In my view it was a clear attempt to try and distance the opening of the pop bottle in time from the collision, contrary to what Mr. Harris had told Sgt. St. Onge.

[72] I also do not believe Mr. Harris’ version of how the collision occurred because the events he describes defy common sense for an experienced driver, if he was paying attention to the road, as Mr. Harris asserts he was. Mr. Harris testified that he had had his driver’s licence for approximately ten years prior to the collision. He was an experienced driver. His evidence was that as he passed over the dip, he felt a bit of a bounce of the front end of the car. Then he saw the traction control light come on momentarily, and felt a tug to the left. He said he then panicked. He said he panicked because “the bump startled me and then the traction control light just didn’t make sense to me at that time”. He then mistakenly depressed the accelerator fully, causing the tachometer or the speedometer, or both, to “shoot up”. He tried to correct by steering towards the right. He then felt a second pull to the left. He again tried to correct by steering towards the right. He testified that in his panic, he continued to depress the accelerator full throttle for another 3-4 seconds, until one of the wheels of his vehicle went onto the right shoulder, at which point he says he lost control of the vehicle.

[73] On this version of events, Mr. Harris is saying that as he was driving 100 km/h on a straight road, according to him paying attention to his driving, when he felt a bit of a bounce of the front end of the car, and a tug to the left, and when the traction control light came on his reaction was to try and slam on the brakes, but he hit the gas by accident. On his evidence, the mistake between the pedals was possible because he had taken his foot off the gas and brake when he was coasting down the hill prior to the dip. And recall that Mr. Harris testified that there were no other cars near him.

[74] Setting to one side for a moment the mistake between the pedals, I do not accept that the reaction of an experienced driver travelling at 100 km/h on a straight road, to feeling a bounce of the front end and a tug to the left, but still in the lane, would be to slam on the brakes. I accept that different drivers might react differently, correcting the steering, and/or tapping the brakes. But slamming on the brakes at 100 km/h is not the reaction one would expect. However, that type of panicked reaction is consistent with a driver who was distracted by opening a bottle of pop, had both hands off the steering wheel for a time, had just put one hand back on, felt the bounce and the tug, and panicked.

[75] Further, I find that Mr. Harris’ recollection of events once he hit the dip is not reliable. He was clear that events happened very quickly and he panicked. I noted when he gave his evidence that he was unsure of various things in the sequence of events. Repeatedly in his evidence he said he was “not sure” of points he was questioned about. Repeatedly he referred to what “would have” happened or what he “would have” done when describing the events of the collision, as if he did not have a clear recollection but was trying to recreate events. In addition, there were times in his evidence that he filled gaps in his own recollection based on information that he learned subsequent to the collision.

[76] I will give some examples of areas where Mr. Harris was not sure of the sequence of events. In cross-examination he was asked about his evidence that he was coasting from the time he came down the hill until the traction control light came on and he hit the accelerator. He testified that he was not sure if he was coasting the whole time. He testified that he might have slammed on the accelerator first, and then the traction control light came on. He said it happened so fast, that although he thinks the traction control light came on first, he was not sure. He said it was hard to remember. But when pressed on this point he then said he was sure the traction control light came on before he hit the accelerator. I am not persuaded that his memory on this issue is reliable.

[77] Mr. Harris was also unsure whether after he had coasted down the hill before the dip, he continued to coast until he felt the first tug and slammed on the accelerator, or if he had pressed the accelerator before when he slammed in on in a panic.

[78] Thus, in addition to my concerns about Mr. Harris’ credibility, I have concerns about the reliability of his recollection of the events of the collision due to his panic, how quickly events happened, and the long (and somewhat unfortunate) passage of time between the collision and this trial.

[79] For these reasons, I find that Mr. Harris is neither a credible nor a reliable witness overall.

[80] Although I do not accept Mr. Harris’ evidence as a whole, as I find significant aspects of his evidence not to be credible or reliable, he made a number of admissions in his trial evidence that I find are reliable, because they are to some extent against his interest. I accept Mr. Harris’ evidence that he knew the posted speed limit on the area of RR 39 where the collision occurred was 80 km/h.

[81] I also accept his evidence that he was travelling 100 km/h when he began to traverse the dip. I want to be clear about the basis for this finding. As I will explain below, I find the accident reconstruction evidence called both by the plaintiffs and by Durham Region to be unreliable. This leaves me only with Mr. Harris’ evidence in relation to the speed he was travelling when he hit the dip. Although I have significant concerns about Mr. Harris’ credibility and reliability as a witness, I do not see that he has any motive to overstate his speed. On that basis I find that he was travelling at least 100 km/h, based on his admission in his trial evidence that he was travelling 100 km/h just as he began to traverse the dip. I suspect that he may have been travelling faster than 100 km/h. But I find that the evidence in the trial is not sufficient for me to conclude on a balance of probabilities that he was travelling faster than 100 km/h when he began to traverse the dip.

[82] I do not accept Durham’s submission that Mr. Harris made an admission in his videotaped interview with Sgt. St. Onge that he was travelling 130 km/h when he began to traverse the dip. I have reviewed that portion of his police statement, which he was extensively cross-examined on by counsel for Durham Region. I find that a fair interpretation of that portion of his statement to police is that Mr. Harris was saying he was going at least 130 km/h when the vehicle crashed, after he had depressed the accelerator by mistake (into the pole and the embankment), not when he began to traverse the dip.

[83] As I have outlined above (at paras. 59-71), I do not accept Mr. Harris’ evidence that he opened the pop bottle a significant time before traversing the dip. As I have outlined above, he has given inconsistent statements on when he traversed the dip. In the circumstances, I find that his admission to the police that he had opened the pop bottle immediately before traversing the dip is the truth of the matter. Although the videotaped statement by Mr. Harris to Sgt. St. Onge was made out of court, as a statement by a party to the litigation, to the extent the statement is against Mr. Harris’ interest, it is admissible for its truth.

[84] Thus, I find that in addition to speeding, Mr. Harris was distracted by opening the pop bottle. Further, I find that it is clear from his admission in the police video interview that he took both hands off the steering wheel to open the pop bottle. Thus, immediately before he began to traverse the dip, he had no hands on the steering wheel, and was only able to place one hand back on (his left hand), because he still had the pop bottle in his right hand.

[85] Before leaving Mr. Harris’ evidence, I want to comment briefly on issues that arose during the trial regarding his trial on a charge of careless driving under the Highway Traffic Act, R.S.O. 1990, c. H.8 in relation to this collision.

[86] At various points in the trial, counsel for both the plaintiffs and Durham Region attempted to delve into the fact that Mr. Harris was initially found guilty of careless driving in the provincial offences trial, but that on appeal, the finding of guilt was overturned, and an acquittal entered.

[87] Although Mr. Harris’ testimony at the careless driving trial was fair game for cross-examination on prior inconsistent statements, the fact that he was ultimately acquitted is of no relevance to this trial.

[88] Had Mr. Harris’ finding of guilt of careless driving been upheld, it may have had some relevance as a binding adjudication, to which he was a party, that his driving constituted careless driving under provincial law, a worse level of driving than that required for common law negligence.

[89] But the acquittal does not have the same impact on a civil trial as a finding of guilt, given the higher standard of proof in a provincial offences trial of proof beyond a reasonable doubt, the criminal standard. As such, the fact of Mr. Harris’ acquittal has no impact on this trial. It is a neutral factor.

(v) The Accident reconstruction evidence

[90] The plaintiffs and Durham Region each called expert evidence regarding accident reconstruction. The plaintiffs called Scott Walters. Durham Region called Detective Wyatt, who was involved in the original investigation of the collision by police, and Joe Correia.

[91] In this case, because damages were agreed on in the event there is a finding of liability on the part of Durham, the accident reconstruction evidence is not necessary in order to sort out the specific path taken by the vehicle. The accident reconstruction evidence was led primarily for the purpose of using the path of the vehicle in the collision, and road markings from the scene, to extrapolate back to the speed the vehicle was travelling when it began to pass over the dip. There is dispute between the experts about the path and movement of the vehicle after it traversed the dip (in particular after the yaw marks – skid marks – on the road). But the disputes about the path of the vehicle are really only of interest as they relate to attempting to calculate the speed of Mr. Harris’ vehicle as it began to pass through the dip.

[92] Ultimately, as I will explain below, I find none of the accident reconstruction evidence to be reliable. My conclusions in this regard arise out of problems with methodology used by each of the experts. I note that to some extent my conclusions also arise out of limits in the evidentiary record regarding the events of the collision. Normally, in a trial held in 2018, one would have speed data from a vehicle’s event data recorder. Because such data was not available in this case, the accident reconstruction experts has to attempt to calculate the speed the vehicle was travelling based on relatively limited information, and information that created challenges in terms of extrapolating the vehicle’s speed.

[93] Although Detective Sgt. Wyatt was called by Durham in its defence, I start with his evidence because he was the police accident reconstructionist at the time the collision occurred. He was involved in the collection of the evidence available from the scene, including tire markings on the road, and various measurements. Although I ultimately do not accept his conclusions about Mr. Harris’ speed, I do accept the evidence he collected regarding the road markings and various measurements. These measurements were relied on by the other accident reconstructionists, Mr. Walters and Mr. Correia.

Detective Sgt. Andre Wyatt

[94] Detective Sergeant Andre Wyatt was called as a witness by Durham Region. Detective Wyatt was an officer with Durham Regional Police Service (“DRPS”). At the time of the collision, he was trained and working regularly as an accident reconstructionist. But at the time of the trial his police responsibilities did not include accident reconstruction. Detective Wyatt did the scene investigation and accident reconstruction in relation to this collision for the DRPS investigation that led to the careless driving charge against Mr. Harris.

[95] At trial, I ruled that Detective Wyatt could give expert opinion evidence in accident reconstruction and collision scene investigation. I ruled that issues related to his not having worked in a capacity performing accident reconstruction since 2005, and the level of his training, could be considered as going to the weight of his evidence, subject to cross-examination.

[96] The bulk of Detective Wyatt’s evidence was recounting the various tire marks on the road and other evidence that was observed and noted at the scene of the collision, as well as his opinion evidence about the speed of the Harris vehicle based on accident reconstruction techniques.

[97] Detective Wyatt also participated in test drives over the dip with Detective McDonald. I summarize that evidence separately below at paras. 268-280.

[98] In addressing Detective Wyatt’s evidence, I will focus on his evidence regarding the measurements and road evidence, such as tire marks, that he took at the scene.

[99] Detective Wyatt conducted the investigation at the scene of the accident in November 2004. He did a survey and took measurements, using a total station device to document the observations he made at the scene. In particular, he documented a number of tire marks which started in the westbound lane, travelled across the eastbound lane, and continued onto the shoulder and into the ditch. The tire marks on the road were black marks on the grey asphalt of the road, which he documented and photographed. The tire marks on the shoulder and ditch were indentations in the shoulder and ditch caused by the car travelling across those softer surfaces.

[100] Much of Detective Wyatt’s evidence about the general path of the vehicle is included in the agreed statement of facts and summarized at paras. 8-20 above.

[101] Detective Wyatt documented the evidence he found at the scene in his notes, in diagrams, in photos, and by video (with the assistance of other officers). The location of the tire marks are documented Detective Wyatt’s Collision Reconstruction Report[^2] at Exhibit #1, Tab 2, at pp. 43-91, and photos at Exhibit #1, Tab 7. In particular, the diagram at p. 61 of Exhibit #1, Tab 1, and the CAD drawing at p. 59 of Exhibit #1 are of assistance in understanding the location of the tire marks. Detective Wyatt testified that the CAD drawing is to scale.

[102] I will not recount all of the distances noted by Detective Wyatt. He recorded five tire marks on the road, which he labelled A, B, E, F, and G. A and B were in a pair, as were E and F. Tire marks A and B were the first tire marks on the road, and started 115.5 metres east of the east end of the dip.[^3] Tire marks A and B started in the westbound lanes, and continued into the eastbound lanes. The distance from the first tire marks (A and B) to the final resting place of the vehicle was just over 107 metres.

[103] Detective Wyatt also gave opinion evidence of the Critical Speed Yaw (“CSY”) speed calculation for the Harris vehicle at the start of the yaw marks. That speed calculation was significantly out of step with the other experts, Mr. Walters and Mr. Correia (whose evidence is outlined in more detail below). Detective Wyatt’s CSY calculation was 162 km/h. I explain more about the method to calculate speed using CSY analysis below in my discussion of the evidence of Durham’s accident reconstruction expert, Mr. Correia. Because Detective Wyatt’s CSY calculation was ultimately agreed by all parties not to be reliable, I will not go deeply into CSY methodology here.

[104] Counsel for Durham in his closing submissions did not ask the court to accept Detective Wyatt’s CSY calculation of 162 km/h. He conceded it was methodologically unsound. I agree with this concession. Both the plaintiffs’ accident reconstruction expert, Mr. Walters, and Durham’s accident reconstruction expert, Mr. Correia, agreed that the formula to calculate CSY is very sensitive to measurement error in the middle ordinate. Detective Wyatt also agreed that a small error in measurement of the middle ordinate can make a significant difference in a speed calculation using the CSY method.

[105] Mr. Walters and Mr. Correia also both agreed that because of this, it is accepted in the field of accident reconstruction that a middle ordinate must be a minimum of 15 cm long (or 6 inches). This is because having a shorter middle ordinate will magnify the impact of measurement error. However, Detective Wyatt testified in cross-examination that he was not aware and had not been told in his training that in doing a CSY calculation one should ensure that the chord length used is long enough that the middle ordinate figure is at least 15 cm (or 6 inches).

[106] Detective Wyatt’s evidence was clear that because of the length of the chord measurements he took (10 metres and 10 metres, with the second chord measurement starting within the length of the first chord), his middle ordinate figures were both less than 6 inches – his middle ordinate figures were 4.5 cm and 5.0 cm respectively. I accept the evidence of Mr. Walters and Mr. Correia that generally accepted methodology for doing a CSY calculation requires that the middle ordinate figure be at least 6 inches or 15 cm.

[107] I find that Detective Wyatt’s speed calculation is unreliable because he used middle ordinate figures which are below the minimum length generally accepted in the field of accident reconstruction for this method of speed calculation. For this reason, I place no weight on Detective Wyatt’s speed calculation.

[108] Although I have found that Detective Wyatt’s CSY calculation was flawed by methodological problems, I accept that the measurements he took of the locations of the various tire marks on the road were accurate. No party challenged the accuracy of those measurements. Indeed, both the plaintiffs’ accident reconstruction expert, Mr. Walters, and Durham’s accident reconstruction expert, Mr. Correia, used the data collected from the scene, in particular the location of the tire marks and other measurements of distance by Detective Wyatt, as some of the underlying factual basis for formulating their opinions.

[109] I accept that the measurements that Detective Wyatt took on the roadway, in particular of the location of the tire marks, are reliable and accurate. At the time he took and recorded the measurements (November 2004), he had been working full time doing police accident investigation and accident reconstruction for approximately three years prior. It was his regular work at the time, and he documented his findings contemporaneously in his field notes, diagrams, the CAD drawing, and other documents included in his Collision Reconstruction Report.

[110] Detective Wyatt confirmed (and this was also agreed in the agreed statement of facts) that no information was retrieved from the event data recorder on Mr. Harris’ vehicle. Detective Wyatt explained that in the time period of the collision, Ford, the manufacturer of Lincolns, was not forthcoming to police with information from event data recorders in vehicles they manufactured.

[111] Detective Wyatt testified that he did not measure the diameter of the hydro guide pole that the Harris vehicle hit on the way to its final resting place. He testified that he believed it to be a standard hydro pole, but in his experience the diameter depends on what they are carrying. He testified that he did not know the diameter of a standard hydro pole.

[112] Detective Wyatt testified that it was his opinion that the vehicle hit the hydro pole on the driver side, and then spun as it continued to its final resting place beside the berm/driveway.

[113] As I explain further in relation to the evidence of Mr. Walters and Mr. Correia, the accident reconstruction experts of the plaintiffs and Durham respectively, considering the evidence as a whole, including the photos of the Harris vehicle and the scene, I am unable to make a finding as to which side of the vehicle hit the pole. Nor do I find that which side the vehicle hit the pole with is relevant to the issue of liability.

[114] Before leaving Detective Wyatt’s evidence, I want to express some concern from the perspective of efficient use of limited court resources about the decision by counsel for Durham Region to put forward to the court Detective Wyatt’s critical speed yaw calculation. I appreciate, and accept, the need to call Detective Wyatt to give evidence about the measurements he took of evidence from the scene, such as the various marks on the road. These are relevant to assessing the movement of Mr. Harris’ vehicle, and were relied on by the other experts, Mr. Walters and Mr. Correia, in various calculations they performed in relation to speed.

[115] However, Detective Wyatt’s CSY calculation was wildly different than the calculation done by Durham’s own expert, Mr. Correia. In his reports, Mr. Correia calculated Mr. Harris’ speed at the start of the dip as between 135 and 141 km/h.

[116] Prior to the trial of this action, there were two joint expert meetings, where the various experts considered different issues in the case, and identified areas of agreement and disagreement. The joint reports of those meetings are dated December 21, 2011, and October 26, 2017. In the first joint report, the experts agreed that the range of speed of Harris’ car at the tire marks was between 115 and 162 km/h (with different experts putting it at different parts of that range). The 162 km/h clearly represented Detective Wyatt’s CSY calculation. In the second joint expert report, the experts narrowed that range to 115 to 135 km/h at the start of the tire marks. Clearly this was based on the range of calculations by Mr. Walters and Mr. Correia, but no longer included the 162 km/h calculated by Detective Wyatt.

[117] Faced with that evidence, it is difficult to see how counsel for Durham Region found it reasonable to put forward at trial the much higher speed calculation of Detective Wyatt (which it turned out on cross-examination suffered from some very fundamental flaws). I appreciate that in his closing submissions counsel for Durham Region did not ask the court to accept Detective Wyatt’s CSY calculation of 162 km/h. This was a reasonable position to take in closing. However, it ought to have been obvious to counsel for Durham before he led the evidence of Detective Wyatt’s CSY calculation that it was untenable, based on his own expert Mr. Correia’s reports, and the second joint expert report. Counsel need to be mindful of the time and expense incurred by expert evidence of dubious value.

Scott Walters – Accident reconstructionist called by plaintiffs

[118] Scott Walters was called by the plaintiffs. Mr. Walters is trained as an engineer. He has been licenced by the Professional Engineers of Ontario since 1990. He has taken specialized training in accident reconstruction. His professional work for more than the last 25 years has focussed on accident reconstruction. I ruled that Mr. Walters is qualified to provide expert evidence regarding motor vehicle accident reconstruction.

[119] Ultimately, I find that Mr. Walters’ evidence is not reliable. I will outline in summary form his evidence in examination-in-chief, and then explain why I find his evidence not to be reliable.

[120] Mr. Walters was of the opinion that a CSY analysis, the type of analysis done by Detective Wyatt and by Durham’s accident reconstruction expert, Mr. Correia, was not appropriate for the circumstances of the collision in this case. Regarding Detective Wyatt’s CSY calculation, Mr. Walters was of the view that the middle ordinates used by Detective Wyatt were too short, and below the minimum length accepted in the field of accident reconstruction (Mr. Correia also agreed with this opinion).

[121] Regarding Mr. Correia’s CSY calculation, Mr. Walters was of the opinion that it was not appropriate to take measurements for a CSY calculation off a diagram. In his opinion, they had to be taken at the scene to avoid measurement error. In light of Detective Wyatt taking too short chord and middle ordinate measurements to use, CSY could not now be used. Further, in Mr. Walters’ opinion, a vehicle in a CSY would not rotate as he found the Harris vehicle did. Thus, even had proper measurements been taken at the road scene, this was not a case where CSY analysis was appropriate.

[122] Mr. Walters’ opinion was that the “spin method” was the appropriate method to use to calculate the speed of the Harris’ vehicle. The spin method involves making assumptions about the path of the vehicle on the road and as it left the road during the collision, until it came to rest by the driveway, and then applying a calculation for the speed loss for each segment of its path.

[123] By combining all of the portions of the speed loss from each segment of its path, Mr. Walters could then provide an opinion of the speed of the vehicle at the start of the tire marks on the road.

[124] He also then further calculated the speed at the midpoint of the dip by subtracting 15 km/h, based on assuming Mr. Correia’s acceleration test of a similar vehicle (discussed below at para. 155), and accepting that the Harris’ vehicle could accelerate 15-16 km/h over the 115 metres between the mid-point of the dip, and the start of the tire marks on the road (assuming Mr. Harris accidentally hit the accelerator full throttle as he testified).

[125] Based on this method, Mr. Walters provided the following opinions:

• After travelling over the dip, the Harris vehicle crossed the centre line and started to rotate clockwise, after an initial slight counter-clockwise rotation. Thus, the vehicle was rotating clockwise when it hit the hydro guide pole.

• Because it was rotating clockwise, the Harris vehicle struck the hydro guide pole on the driver side, between the C and D pillars (i.e., in the area of back driver side door).

• After the vehicle hit the pole, it spun 180 degrees to its final resting place adjacent to the driveway.

• The speed of the Harris vehicle at the start of the tire marks on the road was between 116-117 km/h.

• Accounting for Mr. Harris’ evidence of hitting the accelerator near the start of the dip, his speed at the start of the dip would have been 102 km/h (this is based on the acceleration testing by Mr. Correia that a vehicle similar to the Lincoln could accelerate 15-16 km/h over that distance).

• The Harris vehicle experienced a change in elevation when it went into the dip (a drop), and then again as it left the dip (a rise up). Mr. Walters was of the opinion that these changes in elevation significantly increased the risk of the vehicle losing control.

[126] In light of three main issues exposed in cross-examination, I find that Mr. Walters’ opinion evidence is not reliable. The first issue relates to an error in the calculation that Mr. Walters used for speed loss due to the vehicle hitting the hydro guide pole. The second issue relates to aspects of Mr. Walters’ spin analysis that involve assuming the Harris’ vehicle made movements that in places are inconsistent with the tire mark evidence on the road, and defy the laws of physics. The third issue relates to various assumptions that Mr. Walters made as part of his calculations that I find are insufficiently proven on the evidence at trial.

[127] Overall, I find that when Mr. Walters was faced with what I find were appropriate challenges to his speed opinion based on the spin analysis, rather than follow the logical chain of those challenges and amend his calculation, he simply amended his approach in order to preserve the result of the speed he had originally found. As a result, I find that his evidence is not reliable.

[128] I will address first the issue of the change of the speed loss calculation regarding the vehicle hitting the hydro guide pole.

[129] I note that the spin analysis speed calculation that Mr. Walters testified to in examination-in-chief came from a supplementary report dated April 13, 2018. This report (along with a report dated March 22, 2018) significantly changed a number of aspects of how he had done the speed calculation in his earlier reports, starting with his first report dated July 10, 2008. These changes in Mr. Walters’ opinion between his earlier reports and his trial evidence were made in response to acknowledging a mistake in his earlier reports, which had been pointed out by Mr. Correia. However, rather than just correct the error identified by Mr. Correia, Mr. Walters changed other aspects of his analysis, so that he ended up with basically the same final opinion of the speed of the Harris vehicle at the start of the tire marks.

[130] Mr. Walters agreed in cross-examination that his method of calculating the speed of the vehicle at the start of the tire marks was based on breaking up the speed loss of the vehicle into four segments of its path: 1) speed loss from sliding or spinning on the road and the shoulder up to the hydro guide pole; 2) speed loss from striking the hydro guide pole; 3) speed loss from spinning from the pole to the berm; and 4) speed loss from striking the berm. He agreed that the this method of calculating the speed loss started from where the vehicle came to rest at the berm (at 0 km/h), and worked backward to calculate the speed on the road based on how much speed it lost in each segment once it left the road.

[131] Mr. Walters agreed in cross-examination that he calculated the speed loss for each segment separately. Thus, for example, if one changed the calculation of the speed loss from striking the hydro pole, it would not affect the speed loss in the other segments.

[132] Mr. Walters agreed in cross-examination that in his original report from July 2008, he had calculated the speed loss from hitting the hydro pole (segment 2 above) as 1.38 to 2.16 km/h. He agreed in cross-examination that this was an error, and understated the speed loss due to the vehicle striking the pole.

[133] As a result, in his trial evidence, and in his reports of March 22 and April 13, 2018, Mr. Walters made changes to his assumptions for that segment of the calculation that resulted in a much larger speed loss due to hitting the pole of 24-28 km/h. Those changes were assuming that the pole was 12 inches in diameter rather than the 15 inches that he had earlier assumed, and assuming a lower weight for the Harris vehicle with two passengers (based on further research he had done about the weight of that model).

[134] Had Mr. Walters left the other three segments of the calculation as they were in his original report, but included the revised speed loss from striking the pole of 24-28 km/h, then the result of the speed calculation using spin analysis would be 129-132 km/h at the start of the tire marks (and accounting for acceleration, if one accepts that Harris hit the accelerator full throttle near the dip, then approximately 114-117 km/h as Mr. Harris began to traverse the dip). Mr. Walters agreed in cross-examination that this would be the effect of doing the calculation with his revised estimate of speed loss from hitting the pole, but leaving the other three segments the same as his original calculation (but said he disagreed that the other three segments should be left the same).

[135] However, in his report of April 13, 2018, Mr. Walters changed his analysis of two other segments of the analysis, speed loss from the tire marks on the road to the hydro pole, and speed loss from the hydro pole to the berm. He lowered his calculations of the speed loss in these segments. He agreed in cross-examination that he did so, and he agreed the changes are as follows. He reduced the speed loss in the segment from the tire marks on the road to the hydro pole from 94 km/h (in his original report) to 77-78.5 km/h. He reduced the speed loss from the hydro pole to the berm from 56.8 km/h (in his original report) to 53.3 km/h.

[136] These new lower calculations for two of the other segments had the effect that adding the new much larger speed loss of 24-28 km/h from hitting the pole to the lower speeds other segments did not significantly increase his opinion of the speed of the Harris vehicle at the tire marks on the road, but rather, the result was almost the same as in his initial report (in his first report of July 10, 2008, Mr. Walters gave the opinion that the speed of the Harris vehicle was 115-118 km/h at the tire marks on the road. In his last report, and his evidence in examination-in-chief, he gave the opinion that it was 116-117 km/h at the tire marks on the road).

[137] Put more plainly, the increase in the speed loss from hitting the pole to 24-28 km/h was offset by the decreases in Mr. Walters’ revised calculations of the speed loss between the tire marks on the road and the pole, and between the pole and the berm/driveway.

[138] Mr. Walters denied the suggestion made to him in cross-examination that he changed the other segments of his speed calculation in order to reach the same result because of the change that he had to make to correct the error for speed loss from striking the pole. However, I never heard from him a satisfactory explanation for why he changed the other segments. He agreed that he had not made calculation errors in the other segments. He agreed that he did not become aware of new facts that led him to change the calculations for the other segments. Rather, he said the reason that he changed the calculations for the other segments was that there had been “errors of methodology” in his earlier calculations for the other segments. Elsewhere he said that when he was preparing for trial he “re-evaluated” and “re-analyzed” his calculations, and revised them. However, I never heard an explanation of what the errors of methodology were, or why he felt the need to re-evaluate and re-analyze his original calculations.

[139] This seems to me to be very results-oriented reasoning. With respect, I find that Mr. Walters’ evidence is unreliable, because it is based on unsupported assumptions, and because he appeared to be determined to keep to his original speed calculation, no matter what flaws were found in it, by changing other assumptions.

[140] I turn then to the second major problem I see with Mr. Walters’ evidence. It relates to his spin diagram of the movement of the vehicle while it was on the pavement. Mr. Walters agreed in cross-examination that it is important in preparing a spin diagram showing the movement of a vehicle to locate the tires of the vehicle in the diagram on the tire marks located at the scene (as marked on the diagram). This is important because the tire marks found on the road at the scene are some of the only objective evidence of the movement of the vehicle on the road.

[141] In cross-examination regarding his spin diagram[^4]of the movement of the vehicle while it was still on the pavement included in his report of April 13, 2018, Mr. Walters agreed that in his spin diagram, there were aspects of the assumptions he made about the vehicle’s path that did not match the tire marks on the road, and aspects that defied the laws of physics.

[142] In particular, Mr. Walters agreed that in a portion of his spin diagram, he had the vehicle sliding sideways down the road, essentially perpendicular to the road. He agreed that it would be probable that a vehicle travelling in this manner would leave tire marks on the road. However, at that interval of the path of the vehicle, no tire marks had been found on the roadway.

[143] Further, in at least one place where the police had identified a tire mark on the roadway (tire mark G, as identified by the police), Mr. Walters agreed that his spin diagram of the path of a car did not have any tire of the vehicle in his diagram on that tire mark. Thus, that aspect of his spin diagram was not consistent with the physical evidence on the road that there was a tire mark there. He agreed that there were two other portions of his diagram where his diagram of the vehicles path showed no tire on a spot where the police had identified a tire mark on the road.

[144] In regard to the laws of physics, Mr. Walters agreed in cross-examination that there was a portion of his spin diagram of the path of the vehicle while on the roadway, where in a very short interval the vehicle went from travelling forwards on the road at relatively slight rotation of about 10 degrees, to a sudden rotation of over 200 degrees, back to virtually no rotation. He agreed that the movement depicted at that portion of his spin diagram was physically impossible in the absence of the vehicle striking an object at that portion of its path (which it was common ground did not occur).

[145] In response to the issue of the spin diagram not matching the tire marks on the road in places, and defying the laws of physics in places, Mr. Walters testified that it did not matter that his spin analysis was based on assuming the vehicle moved in ways that could not possibly happen according to the laws of physics or did not completely match the tire marks from the scene, because he said his assumptions were conservative, and that using less conservative assumptions, the speed calculation would yield an even lower speed at the start of the tire marks.

[146] Again, I am concerned that this line of cross-examination shows Mr. Walters’ analysis to be result-oriented, and not based on an objective approach to the available evidence. To the extent that Mr. Walters’ spin diagram (which shows a portion of how he arrived at his speed calculation) does not accord with some of the physical evidence of tire marks (or lack of tire marks) at specific places on the road, and in places does not accord with the the laws of physics, I find it is unscientific and unreliable.

[147] The third problem I find with the reliability of Mr. Walters’ method of calculation of the speed of the Harris vehicle is that I find that some of the assumptions on which it based are not proven on the record at trial.

[148] For example, Mr. Walters testified that he assumed that the speed loss at the berm (i.e. from crashing into the berm where the vehicle came to rest) was 30 km/h. He based this on National Highway Transportation Safety Administration crash tests of a similar vehicle in a side impact crash at 30 km/h, and his opinion that the side damage to the Harris vehicle was similar to that seen in the side impact crash test vehicle at 30 km/h. I am not persuaded that the crash test example Mr. Walters used to assume the speed loss of 30 km/h is in fact analogous to the crash of Mr. Harris’ vehicle into the berm/side of the driveway. The photos depicting the crash test show the vehicle on pavement involved a direct side impact. By contrast, at the time the Harris vehicle crashed into the berm at the side of the driveway, it was travelling over some combination of dirt, mud, and water. And I find that the evidence supports that the Harris vehicle rolled up onto its side into the berm, and then back down to rest on in an upright position. I find that this is not comparable to the simple side impact collision in the crash test relied on by Mr. Walters. Thus, I find that his assumption of 30 km/h speed loss due to hitting the berm is not reliable.

[149] There is no evidence before me of an alternative speed loss figure from the vehicle crashing into the berm where it came to rest. But the record is clear that if the 30 km/h speed loss figure is not reliable, which is my finding, a different number for speed loss due to crashing the berm would greatly impact on Mr. Walters’ calculation of the speed of the Harris vehicle at the start of the tire marks on the road. In cross-examination, Mr. Walters agreed that if he kept all of his calculations from his first report, except that he applied the revised calculation of the speed loss from hitting the hydro pole of 24-28 km/h (see paras. 128-139 above), and assumed the speed loss from hitting the berm was 50 km/h, then the speed estimate for the Harris vehicle at the tire marks on the road would be 137 to 140 km/h (he agreed that the math would work out to 137-140 km/h as the speed at the tire marks, but not with those assumptions). My point is not that the 50 km/h speed loss from crashing into the berm has been proven. It has not been. Rather, my point is that my finding that Mr. Walters’ assumption of 30 km/h speed loss from hitting the berm is not reliable makes his opinion regarding the speed of the vehicle at the tire marks of 116-117 km/h unreliable.

[150] Similarly, Mr. Walters agreed that he had to make assumptions about: the coefficient of friction on the road (he used the one measured by Detective Wyatt); the coefficient of friction on the shoulder (which he did not measure, but made assumptions about); the diameter of the hydro guide pole (which he did not know);[^5] the position of the vehicle in each of the 19 positions on his spin diagram; the coefficient of friction in the swampy ditch area between the pole and the berm; and, as I have already mentioned, the energy loss from striking the berm. Although some of these assumptions have a reasonable factual basis (for example, Detective Wyatt’s measurement of the coefficient of friction on a portion of the paved surface of the road), I find that others are not sufficiently reliable for me to find Mr. Walters’ speed calculation to be reliable. His opinion relies on many assumptions, and unfortunately, on the evidentiary record in this case, I find they are not sufficiently proven.

[151] For these reasons, I do not find Mr. Walters’ evidence to be reliable, in particular his opinion as to the speed of the Harris vehicle at the start of the tire marks on the road, and at the dip.

Joe Correia – Accident reconstructionist called by Durham Region

[152] Joe Correia was called by Durham Region. Mr. Correia is trained as a mechanical engineer. He has been licenced by the Professional Engineers of Ontario since 1988. He was designated a consulting engineer in 1994. He has taken specialized training in accident reconstruction. His professional work for the last approximately 25 years has focussed on forensic engineering, and in particular accident reconstruction, and product liability issues. I ruled that Mr. Correia is qualified to provide expert evidence as a professional engineer with a speciality in accident reconstruction, including a) speed analysis, and, b) testing and analysis of vehicle response.

[153] Ultimately, I find that Mr. Correia’s evidence is not reliable. I will outline in summary from his evidence in examination-in-chief, and then explain why I find his evidence not to be reliable.

[154] Mr. Correia used two methods to assess the speed of the Harris vehicle at the tire marks on the road. The two methods he used were CSY analysis, and a computer simulation program called PC Crash. The speed at the tire marks that Mr. Correia calculated using CSY analysis was 141 km/h. The speed that he assessed using the PC Crash simulation was 135 km/h.

[155] Using the conclusions he came to using each of those methods regarding the speed of the Harris vehicle at the tire marks on the road, he then calculated back to the speed as the vehicle crossed over the dip. This was done based on his own test using a similar model car to Mr. Harris’ Lincoln, in which he found that flooring the accelerator on RR 39 eastbound over the area where the dip had been (recall the 2005 repair), the vehicle could accelerate 15-16 km/h over the distance of 115 metres, which is the approximate distance between the middle of the dip, and the tire marks on the road. His test of how much the vehicle could accelerate over that distance was not significantly in dispute between the parties. He thus calculated the speed at the dip by subtracting 15 from the speed he found at the tire marks on the road (either 126 or 120 km/h).

[156] Before stating my conclusions about Mr. Correia’s evidence, I will outline in greater detail his basic approach to the CSY calculation and using PC Crash to assess the speed of the Harris vehicle.

[157] Mr. Correia did not use the chord measurements taken by Detective Wyatt from the road scene, because, as I have outlined above, the chord measurements taken by Detective Wyatt were too short and not in accordance with the accepted way to do a CSY analysis in the field of accident reconstruction. Chord measurements that are too short create too large a margin for error.

[158] Since it was years after the collision that Mr. Correia was doing his CSY analysis, and he could not take his own chord measurements at the scene, he measured his chords from a CAD scale drawing of the scene prepared by Detective Wyatt. Mr. Correia used a chord length of 16 metres for his first chord, which is well beyond the acceptable minimum length of 10 metres. Based on that length chord, he obtained a middle ordinate of 15 cm. This is also an acceptable length for a middle ordinate based on authorities in the field. Using these measurements, and applying the formula to calculate speed by a CSY analysis (which was accepted by the plaintiffs’ expert Mr. Walters as well), he calculated a speed of 141 km/h at the tire marks on the road.

[159] In Mr. Correia’s opinion, using a CSY analysis in this case would yield a more accurate speed calculation than the spin analysis employed by Mr. Walters, because the CSY analysis does not need to rely on uncertain assumptions about speed loss through a ditch, striking the hydro guide pole, driving through water, and striking trees and the berm at the side of the driveway. Rather, the CSY analysis only depends on the measurement of the chords of the tire marks on the road at the start of the yaw (and in turn, the middle ordinate, and the circumference if the tire marks were extended as a circle).

[160] Regarding the PC Crash simulation, Mr. Correia testified that it is a software program that predicts the forward movement of a vehicle using input for speed, steering, braking, the specifications of the vehicle, and other factors that affect vehicle movement. He testified that by doing trials of various alternative speeds, as well as the inputted assumptions, using PC Crash, one can determine which speed is the best match with the physical evidence. In his examination-in-chief, Mr. Correia testified that PC Crash is an accepted method to assess vehicle speed in the field of accident reconstruction.

[161] In doing his PC Crash simulation, Mr. Correia made a number of assumptions, including: that there was some breaking input as the vehicle approached the area where the tire marks are on the road, and that the vehicle hit the pole on the passenger side, and thus was spinning counter-clockwise. He then input various speeds and reviewed what path the PC Crash program would show the vehicle taking.

[162] Based on his PC Crash simulations, Mr. Correia was of the opinion that there was a “good” match with the path of the vehicle from the road evidence when the speed of 135 km/h at the tire marks on the road was input into PC Crash.

[163] I find that Mr. Correia’s evidence of his calculation of the speed of the Harris vehicle when it encountered the dip not reliable for two reasons. My concerns relate both to his PC Crash simulation method, and to his CSY calculation. I will address first the PC Crash simulation.

[164] First, I find that Mr. Correia’s use of PC Crash to assess speed is not reliable evidence regarding the speed of the Harris vehicle. Although Mr. Correia testified that it was his opinion that PC Crash could be used for this purpose, the plaintiffs’ expert Mr. Walters disagreed. Considering only the bare assertions of the two experts saying different things about whether PC Crash is a reliable and accepted methodology in the field of accident reconstruction to assess speed, it is difficult for me to assess which to believe. But considering the substance of how Mr. Correia described he used PC Crash to assess the speed of the Harris vehicle, I am not satisfied that PC Crash is a reliable tool to assess the speed of Mr. Harris’ vehicle.

[165] PC Crash is a program that simulates what a vehicle would do given certain inputs (i.e., factual assumptions) put into the program by the person doing the simulation. Mr. Correia’s evidence (in very summary form) was that he assumed some braking input, and assumed the vehicle hit the pole on the passenger side (and thus was spinning counter-clockwise). Including those assumptions, when he input a speed of 135 km/h at the tire marks into PC Crash, the vehicle followed a path that was consistent with the evidence of the path of the vehicle at the collision scene.

[166] I am not satisfied that using PC Crash to assess the speed of a vehicle is a reliable method, at least in the circumstances of this case, and the manner in which the evidence was presented. In substance, the PC Crash simulation shows what may have happened given certain inputs for speed, braking, and the path of the vehicle. But it does not rule out that one could come to a similar path or end position of the vehicle with different inputs for speed, braking, steering, etc.

[167] Other trial judges have expressed concern about the use of demonstrative computer simulation evidence in the nature of PC Crash (including specifically PC Crash in one case) to purport to draw conclusions about what actually happened: Owens (Litigation Guardian of) v. Grandell, [1994] O.J. No. 496 at paras. 31, 32; Lancaster (Litigation Guardian of) v. Santos, 2011 ONSC 4864 at paras. 53-77.

[168] In my view, assuming for the sake of argument that the PC Crash computer program accurately applies the laws of physics to a given set of inputs (as Mr. Correia testified it did), Mr. Correia’s evidence that when he input a speed of 135 km/h at the start of the tire marks the path of the vehicle in PC Crash was closely aligned to the evidence of the path of the Harris vehicle is only evidence that with these inputs the PC Crash results are consistent with the path of the Harris vehicle. But these results do not rule out that other consistent results could be obtained with different inputs.

[169] This brings me to my second concern about the PC Crash simulation. Mr. Correia was unable to advise the court of the various speeds at which he tried the PC Crash simulations. He was able to tell the court that trying the simulation at 135 km/h had the result that most closely matched the evidence of the car hitting the pole and where it came to rest. However, with one exception,[^6] he had no record of the other speeds he tried the simulation at. His evidence was that whatever the other speeds he tried it at were (which he could not recall, and made no note of), they all caused the vehicle to leave the road prior to the tire marks on the road.

[170] The difficulty with Mr. Correia being unable to tell the court the details of the other speeds at which he tried the simulation is it makes his evidence conclusory, and denies the court, as the trier of fact, the evidentiary tools to assess and evaluate his evidence. I recognize that there is no strict bar on experts testifying about the “ultimate issue” in a trial. But this does not change that a trier of fact must assess and weigh expert evidence, just as it must assess and weigh any other type of evidence.

[171] The conclusory fashion in which Mr. Correia presented the PC Crash evidence denies the court the ability to assess and weigh the reliability of Mr. Correia’s conclusions. The court cannot review the results of the PC Crash simulations that Mr. Correia did at other speeds, and with other inputs, because Mr. Correia kept no record of them.

[172] My third concern about Mr. Correia’s PC Crash simulation is based on factual assumptions which he used as inputs, some of which which I am unable to find have been proven on the evidence before me at trial. It is well-established that the factual assumptions which are the basis for an expert opinion must be proven. To the extent they are not proven in the trial evidence, it affects the weight to be given to the expert opinion: see R. v. Lavallée: 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, 67 Man. R. (2d) 1.

[173] Two assumptions which Mr. Correia said he included in the inputs for his PC Crash simulation were that there was some braking input during the course of the collision (i.e., that Mr. Harris applied the brakes at some point), and that the vehicle hit the utility pole on the passenger side (after spinning counter-clockwise).

[174] I am unable to find that either of these factual assumptions has been proven. Mr. Harris did not testify that he applied the brakes at any time. Although I do not accept Mr. Harris’ evidence for reasons set out above, I am unable to find a sufficient basis in the evidence to conclude that he applied the brakes at any point. Mr. Correia testified that based on the angle of the striated tire marks in part of the tire marks on the road (a portion that was on a yellow painted line, so the contrast was more evident), he was of the opinion that there was some braking. That opinion by Mr. Correia is all the evidence of braking. I am not satisfied that there is a sufficient factual basis for me to find as a fact that Mr. Harris applied the brakes at some point during the collision. The factual record from the trial is insufficient for me to come to that conclusion.

[175] Similarly, there was conflicting evidence on whether the vehicle hit the pole on the driver side or on the passenger side. Mr. Correia gave the opinion that the vehicle hit the pole on the passenger side. Mr. Walters and Detective Wyatt gave the opinion that the vehicle hit the pole on the driver side. The difference of opinion was primarily due to different interpretations of the physical damage to the vehicle as shown in photos. In my view the photos are inconclusive on this issue. I simply cannot tell from the photos if the vehicle hit the pole on the driver side or the passenger side. The photos show significant damage to both sides of the vehicle. Thus, I find that Mr. Correia’s assumptions about the path of the vehicle based on assuming as a fact that it hit the pole with the passenger side are not proven.

[176] I also find that the methodology of Mr. Correia’s CSY analysis is flawed. Mr. Correia testified that he took the chord measurements and middle ordinate measurements from a CAD scale diagram of the scene of the collision, rather than from the roadside. I find that this is not accepted methodology in the field of accident reconstruction. Mr. Correia agreed in cross-examination that Mr. John Daily was a recognized authority in accident reconstruction, and in particular, CSY calculation. Mr. Correia acknowledged that he was familiar with Mr. Daily’s text with Nathan Shigemura and Jeremy Daily, Fundamentals of Traffic Crash Reconstruction, vol 2 (Jacksonville: Fundamentals of Traffic Crash Reconstruction, 2006). He agreed that he had cited Mr. Daily’s text in his report in this case. Mr. Correia agreed that Mr. Daily’s text cautioned against taking measurements from computer-assisted drawings because it can lead to erroneous measurements.

[177] However, Mr. Correia testified that he was of the opinion that he was able to accurately take measurements of the chords and the middle ordinate from the CAD drawing, essentially because of his experience and expertise. I do not doubt that Mr. Correia honestly believes this. But the accepted methodology set out in the Daily text, that measurements should be taken at the road scene, and not from a computer assisted drawing, does not contain an exception for more experienced accident reconstructionists.

[178] Further, in light of my acceptance of the evidence of both Mr. Walters and Mr. Correia that that inaccurate measurements used in a CSY calculation can create great margins of error (discussed above at paras. 104-107, and 157), I am not satisfied that taking chord and middle ordinate measurements off a scale CAD drawing, which is much smaller than the original road markings, is a reliable method to take measurements for a CSY calculation. I am concerned about measurement error when working with a much smaller scale drawing, given sensitivity of calculation for radius to small changes in the middle ordinate.

[179] I note that this does not necessarily mean that an expert doing a CSY analysis needs to attend himself at the scene and take measurements for it to be reliable. Had the measurements of chords taken by Detective Wyatt been sufficiently long that they did not create the risk of increasing the margin for error I have outlined above, then Mr. Correia could have used Detective Wyatt’s measurements. Unfortunately, as I have outlined, the measurements Detective Wyatt took were too short to yield a reliable CSY calculation. As the accepted methodology for a CSY calculation requires that measurements be taken at the scene, and not based off a photo or scale diagram, because of concerns about margin for error, I find that Mr. Correia’s CSY analysis is not reliable.

[180] Having outlined why I find Mr. Correia’s evidence in relation the speed of the Harris vehicle when it encountered the dip to be unreliable, I should add that in addition, in cross-examination Mr. Correia agreed that applying various calculations that he had set out in his reports regarding the expected margin for error of his CSY calculation and his PC Crash simulation, the lower end speed results he was prepared to agree to in cross-examination are much lower than the figures he gave in his examination-in-chief.

[181] Mr. Correia agreed in cross-examination that his acceleration test of a vehicle similar to the Harris vehicle showed that such a vehicle was capable of accelerating 15-16 km/h over a distance of 115 metres, with a the range of error of +/- 10%. Applying that margin for error in the direction favourable to Mr. Harris, his vehicle could have accelerated as much as 17.6 km/h between the dip and the tire marks, if it is accepted that he floored the accelerator.

[182] Mr. Correia also agreed in cross-examination that on his CSY calculation of Mr. Harris’ speed at the tire marks on the road of 141 km/h, the margin for error was also +/- 10%. Applying this margin for error in the direction favourable to Mr. Harris, Mr. Harris’ speed at the tire marks could have been as low as 127 km/h on Mr. Correia’s calculation.

[183] Putting these two figures with the margins for error together would yield a calculation that if Mr. Harris was travelling 127 km/h at the tire marks on the road, and had accelerated 17.6 km/h from the dip, then his speed at the dip would have been 109.4 km/h. This is Mr. Correia’s calculation using the lower end of the margin for error he set out in his evidence and his report. And he agreed in cross-examination to this calculation.

[184] Similarly Mr. Correia agreed that his PC Crash simulation had a margin for error of +/- 5 km/h. Thus, applying this margin for error to the speed that Mr. Correia testified to in examination-in-chief on the PC Crash simulation of 135 km/h at the tire marks on the road, the lower end of the margin for error would be 130 km/h.

[185] Based on this margin for error in the PC Crash simulation, and the more favourable to Mr. Harris margin for error for acceleration of Mr. Harris’ vehicle over the 115 km/h between the dip and the tire marks on the road of 17.6 km/h, I find that the lower end of the speed calculation one would get at the dip based on Mr. Correia’s PC Crash simulation is 130 km/h – 17.6 km/h = 112.4 km/h at the dip.

[186] Thus, while I find that Mr. Correia’s opinion regarding the speed of the Harris vehicle is not sufficiently reliable for me to accept it as fact, even if I had accepted his evidence as methodologically sound, the lower ends of his speed opinion, in light of the margins for error that he conceded, are much lower than the initial numbers Mr. Correia testified to. The lower end of the range of speed for when Mr. Harris traversed the dip using the CSY method was 109.4 km/h using CSY analysis, and 112.4 km/h using the PC Crash simulation.

[187] I have explained why I have concerns about the reliability of both methods used by Mr. Correia. But even had I found his methods to be sufficiently reliable, at best, given range of error he accepted and the lower end of his calculations, they could only be capable of proving that Mr. Harris was travelling at least 109.4 km/h using a CSY analysis or 112.4 km/h on the PC Crash simulation when he traversed the dip. Although this is higher than the 100 km/h that Mr. Harris asserted in his testimony, it would not support such as large a spread of speeds as between the plaintiffs’ expert and Mr. Harris’ evidence and the evidence led by Durham as it had initially appeared.

Conclusion on the accident reconstruction evidence

[188] In conclusion, I am not persuaded that any of the accident reconstruction expert evidence in this case is reliable.

[189] The impact of my finding the accident reconstruction evidence not to be reliable is that I am left with Mr. Harris’ evidence only in relation to the speed he was travelling when he traversed the dip. As I have outlined above, I have concerns about both the credibility and the reliability of Mr. Harris’ evidence. However, I accept that he must have been travelling at least 100 km/h. I reach this conclusion not because I find him credible when he says he was travelling 100 km/h. Rather, I reach this conclusion because I do not think Mr. Harris’ had a motive to overstate his speed. Thus, I find he was travelling at least 100 km/h. I suspect he may have been travelling faster. However, the evidence is not sufficient for me to reach this conclusion on a balance of probabilities. Thus, I approach my analysis below of whether the road was in a state of non-repair, and causation, based on a finding of fact that Mr. Harris was travelling 100 km/h when he began to traverse the dip.

The Cause of Action under s. 44 of the Municipal Act

[190] The negligence-based cause of action in this case is governed by s. 44 of the Municipal Act. The relevant portions of s. 44 provide 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.

[191] In Fordham v. Dutton-Dunwich, 2014 ONCA 891, the Court of Appeal set out the four-part test for considering the cause of action under s. 44 of the Municipal Act as follows (at para. 26):

(i) 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.

(ii) Causation: The plaintiff must prove the “non-repair” caused the accident.

(iii) 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.

(iv) 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. [Emphasis in original.]

[192] In this action all of the elements of the analysis are in issue. However, a subject of particular dispute is the first branch of the analysis – whether the road feature at issue, the dip in the road, constituted a state of non-repair.

[193] The Court of Appeal provided further guidance in Fordham about the standard of care, and what constitutes a state of non-repair (at paras. 27-31). A municipality has a duty to prevent or remedy road conditions that create an unreasonable risk of harm for ordinary drivers, exercising reasonable care. Thus, the municipality’s standard of care is measured by the “ordinary reasonable driver”. The Court of Appeal held as follows, citing with approval the decision of Deering v. Scugog (Township), 2010 ONSC 5502:

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.

[194] The ordinary driver need not be perfect. The ordinary driver includes drivers of average driving ability, and not only perfect drivers who are prescient or especially perceptive. The ordinary driver pays attention, and uses reasonable caution when conditions warrant it, but is human and can make mistakes. However, the ordinary driver does not include drivers who do not pay attention, drive at excessive speed, or are otherwise negligent: Deering, at paras. 154-155; McLeod v. General Motors of Canada Limited, 2014 ONSC 134 at para. 52.

[195] The assessment of whether a road is in a state of non-repair is contextual and fact-driven. A lower standard of repair will apply on a low-traffic rural roadway than on higher-traffic thoroughfares and highways: House v. Baird, 2017 ONCA 885 at para. 36; Lloyd v. Bush, 2017 ONCA 252 at para. 69-71; McLeod, at para. 52.

[196] I discuss some more specific issues in relation to the standard of care in my analysis below.

[197] If a plaintiff proves that the road was in a state of non-repair at the time of the collision, the next step is that the plaintiff must prove that the state of non-repair caused the collision. The ordinary “but for” approach to causation applies: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 at paras. 7-12; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333 at para. 21.

[198] If a state of non-repair and causation are established, then a municipality may rely on the statutory defences set out in s. 44(3) of the Municipal Act. The jurisprudence is clear that once a plaintiff establishes on a balance of probabilities that the road was in a state of non-repair, a prima facie case is established. The onus then shifts to the municipality to establish on a balance of probabilities one of the defences set out in s. 44(3): Fordham, at para. 26; Roycroft v. Kyte, [1999] O.J. No. 296 (Gen. Div.) at para. 48.

[199] I note at this point that it is common ground between the parties that only one of the statutory defences under s. 44(3) is at play in this case: the defence under s. 44(3)(b). The defence under s. 44(3)(a) is not in play, because the evidence is clear that roads staff of Durham Region knew about the existence of the dip in the road (although they did not believe it to fall below the standard of care). The defence under s. 44(3)(c) is not in play because there is no applicable minimum Ministry of Transportation (“MTO”) standard for this type of road feature. This leaves the defence under s. 44(3)(b) of whether Durham Region took reasonable steps to prevent the default from arising. In addition, Durham relied on s. 44(8). I address the evidence and my findings on these issues further below.

[200] The issue in considering the defence under s. 44(3)(b) is whether the steps taken by the municipality were reasonable in all of the circumstances, including the resources available to the municipality: Lloyd v. Bush, at paras. 81-82.

1. Was the road in a state of non-repair?

[201] The plaintiffs and Mr. Harris base their claim that the road where the collision occurred was in a state of non-repair primarily on three things: 1) the nature of the dip in the road, in particular its length and depth; 2) the absence of a sign warning of the dip; and 3) the location of the hydro guide pole within three metres of the edge of the roadway, and the steep side-slopes adjacent to the road.

[202] Durham’s response to these issues is that the dip was not of such magnitude that it constituted a state of non-repair in all of the circumstances. If the dip did not constitute a state of non-repair or a hazard, then there was no requirement for a warning sign. In relation to the pole and the side-slopes, Durham argues that the evidence supports a finding that the location of the pole and the nature of the side-slopes do not constitute a state of non-repair. Durham further argues that s. 44(8) of the Municipal Act precludes a finding of liability based on the location of the pole or the side-slopes as they are in the non-travelled portion of the road.

[203] In addition, Durham argues that the record supports a finding that Mr. Harris was travelling at an excessive speed, was distracted by having just opened a pop bottle, and had one or both hands off the wheel. Durham argues that for these reasons, the court should find that Mr. Harris was not driving in the manner of an ordinary reasonable driver at the time of the collision. This issue is relevant to whether the dip constituted a state of non-repair, in assessing whether the condition of the road posed an unreasonable risk to an ordinary reasonable driver. It is also relevant later in considering the issue of causation.

[204] The plaintiffs bear the onus to establish on a balance of probabilities that the road was in a state of non-repair at the time of the crash.

[205] I will review the evidence relating to each aspect of whether the road was in a state of non-repair. Then I will consider whether the nature of the dip, the absence of a sign warning of the dip, or the location of the hydro guide pole or the steep side-slopes constituted a state of non-repair.

[206] I note that the evidence of Mr. Harris also bears on this issue. However, I do not refer to it again. I have addressed it above, and I did not find Mr. Harris to be a credible or reliable witness.

(i) Agreed facts regarding the character of RR 39 in the area of the collision

[207] The parties agreed to various facts about the character of RR 39 in the area of the collision. These agreements are contained in Exhibits #4 and #21. More detail on some of the evidence underlying these agreements was addressed by some of the experts.

[208] The agreed facts were as follows. It is unknown to Durham Region when RR 39 was first built. However, a section of RR 39 that included the area of the dip was reconstructed by Durham in 1994.

[209] Durham’s records in relation to the 1994 reconstruction of RR 39 were subsequently substantially destroyed, pursuant to its document retention policy, in or about 2001.

[210] RR 39 is classified by Durham as a Class 3 rural road for mandatory minimum standards purposes (“MMS”). RR 39 has one lane in each direction (i.e., eastbound and westbound), separated by a dashed yellow painted centerline. It has gravel shoulders and open ditches. The (unposted) speed limit on eastbound RR 39 was 80 km/h at the time of the collision, and remains 80 km/h.

[211] Evidence of traffic counts for RR 39 (found at Exhibit #1, Tabs 16, 20, 22, and 25) are agreed to be accurate.

[212] The area of the dip on RR 39 was repaved in November 2005 by Durham Region.

(ii) Agreed facts regarding absence of prior collisions at this location

[213] Pursuant to an agreed statement of facts (Exhibit #21), facts were agreed to regarding records showing the absence of prior collisions at the location of the collision at issue in this case.

[214] The parties agreed that collision summaries prepared by Durham Region based on motor vehicle accident reports received from the Durham Regional Police Service for RR 39 (trial Exhibits #2 and #3, Tab E) are complete and accurate and are accepted for the truth of their contents. The parties also agreed that the motor vehicle accident reports provided by the Durham Regional Police Service to the Region for time period June 1993 to February 2017 were complete and comprehensive.

[215] As a result of a review of these records, the parties agreed that there were no motor vehicle accidents attributable to the depression in the road on RR 39 forming the subject matter of this action from June 1993 up to February 2017, identified in the disclosed records, except for the single motor vehicle collision involving Mr. Harris and Mr. Stamatopoulos that is the subject matter of this action.

(iii) Evidence of the Civilians

[216] Counsel for the plaintiffs called five witnesses who lived near the area of the collision as witnesses at trial. None of these witnesses had first-hand information about the collision at issue (although Mr. Kruchio attended the scene of the collision shortly after it occurred). Rather, they were called to provide evidence about their own experience driving on the road in the area of the collision at various times.

[217] Overall, I found these witnesses to be of limited assistance. To the extent they do provide assistance, I find that they tend to favour Durham’s position that the dip did not pose a risk to drivers travelling at or a little above the speed limit, and thus did not constitute a state of non-repair.

[218] All of the civilian witnesses confirmed the existence of the dip in the road. But the dip’s existence was not in dispute. Each of these witnesses was reflecting back many years, trying to recall what the dip was like, not having made any contemporaneous record, or having a reason at the time they lived in the area to take note of the specifics of the dip. Their evidence was relatively anecdotal in nature. And, because the road in the area of the collision was repaired both in the mid-1990s, and again in the fall of 2005, and many of these witnesses lived in the area for a long time, they were not always able to pinpoint the state of the road at the time relevant to this collision – fall 2004. However, to the extent that some of the witnesses could pin down the fall 2004 time frame with some specificity, most of them testified that driving at the speed limit, or not to much above the limit, one could feel the dip as one drove over, but the effect was in the nature of small bounce, and would not cause a vehicle to lose control. Some of the witnesses testified to feeling more of an effect of the bump (or seeing other vehicles react as they travelled over the dip), but only when vehicles were travelling at higher speeds, of 100 km/h or more.

Anand Sirha

[219] Anand Sirha lives in the area of the collision. He was 30 years old when he testified, and was 17 years old in the fall of 2004. He testified that he had driven the road in the area of the collision many times, almost daily, with his parents as a child, and now as a driver.

[220] He testified that the speed limit in the area is 80 km/h. He testified that between RR 30 and his home there are a series of dips in the road. He testified that the dip in the road in the area of the collision has been there for many years, since he was a child.

[221] He recalled that the road was repaired and smoothed out when he was around 8 years old (approximately 1994). At that time the dip was gone and the road was smooth.

[222] He recalls driving on the road in 2004. At the time he was 17 years old and had his driver’s licence. He said there were a series of dips, and they would “pop” the car over to the left. He said he was probably driving around 100 km/h when he had this experience. He acknowledged that this was over the speed limit of 80 km/h, but said it was the cruising speed of traffic in the area. He testified that he did not feel the road was safe.

[223] He testified that in his experience driving in the area of the collision, he had seen drivers swerve to the left and hit their brakes. He did not pinpoint in time when he had seen this. He had never seen evidence of a collision on that stretch of road. Nor has he ever had a close call himself of having a collision on that stretch of road (eastbound RR 39 in the area of the collision).

[224] However, in cross-examination, he said he had never seen vehicles swerve at the “swamp dip” (the one in the area of the collision), but rather had only seen vehicles swerve at other dips in the road, including a different one east of Concession 2.

[225] In cross-examination, Mr. Sirha agreed that he had driven over the dip in the area of the collision hundreds of time from when he started driving until 2005. He agreed that he never lost control of his vehicle. He agreed that he never swerved to the side and hit the shoulder. Nor was he aware of that ever happening when his parents were driving.

[226] He was aware that the road was repaired in the area of the collision when he was a child (the mid-1990s repair), and in the mid-2000s (the fall 2005 repair).

[227] Mr. Sirha testified that there are no warning signs in either direction near the dip in the area of the collision.

[228] In cross-examination, Mr. Sirha said he was first contacted about in relation to this case and the possibility of testifying in the road in early 2017, and had only been asked about the dip in the road in the last six months before he testified.

[229] On the whole, I found Mr. Sirha’s evidence to be unclear about whether the dip he was speaking about was the same dip as the one at the collision scene in this case. It was clear that he was saying there were dips in various locations along RR 39, between RR 30 and Concession 2. The lack of clarity leads me to be unable to conclude that the dip that he testified to is the same one that was involved in the collision at issue in this case. In any event, his evidence about a series of dips where his experience was that as driving over the dips would “pop” the car to the left, was that this was at a speed of around 100 km/h, well above the speed limit.

Harvey Schell

[230] Harvey Schell lived near the area of the collision for approximately 20 years, from 1995 to 2017. He has driven on RR 39 in the area of the collision thousands of times and is familiar with the area.

[231] He described the portion of RR 39 east of RR 30, as first going up a small hill, then down a hill, and “then it turns into a roller coaster”, and the road is a little rough.

[232] He testified that the speed limit in the area is 80 km/h. He testified that there is no warning sign before one comes to the “roller coaster” area of the road, either from the west or from the east.

[233] He testified that travelling eastbound, on RR 39 in the area of the dip (where the collision occurred), he would travel at “a hundred plus”. He testified that he would not always have both hands on the wheel. He testified that as a local, he knew the “roller coaster” area was coming. He said he had had a couple of close calls at the dip. He testified that “if you are driving erratically, you could lose control of your vehicle pretty easily”. He testified that as you drove through the dip area eastbound, if you held onto the steering wheel, your vehicle would stay straight on the road, but that if you did not, the vehicle could pull to the left.

[234] When he drives eastbound on RR 39 in the area of the dip where the collision occurred, he travels around 100 km/h, probably a little more. He has seen other cars hit their brakes at the dip, and then speed up again. He has never seen cars change direction or swerve from the dip. He has seen cars in the westbound lane (not the lane the collision occurred in) go into the shoulder, but not cars in the eastbound lane.

[235] Mr. Schell testified that he has seen cars travel more than 100 km/h in the eastbound lane. He said cars going over 100 km/h may swerve left, right, left, until they slow down. However, he is not aware of any collisions on that part of the road.

[236] In cross-examination, Mr. Schell said he was first contacted about the possibility of giving evidence about the dip three to six months before he testified.

[237] In cross-examination, Mr. Schell testified that he once lost control over his vehicle in the area of the dip, around 2002. He was able to regain control. He said he was travelling probably 100 km/h at the time. His vehicle swerved from side to side, and bounced, but he was able to regain control. He also said that when this happened, he probably only had one hand on the steering wheel. He said he did not report it to Durham Region or anyone else, because he did not hit anybody, and because it was probably his fault, because he wasn’t paying attention, and he had a cigarette and a beer.

[238] I find that Mr. Schell’s description of the dip as a “roller coaster” is an exaggeration, which leads me to be very cautious with his evidence. His description of the dip as a “roller coaster” is not consistent with the evidence of the other civilians, or with Mr. Bigelow’s measurements of the dip taken with the total station, which all of the experts accepted as a reliable and accurate method of measuring (discussed below). Like the other civilians, his evidence is very anecdotal, and he is reflecting back to many years ago. That said, when looked at in its totality, Mr. Schell’s evidence supports the conclusion that the dip only poses a risk either at speeds of 100 km/h or more, or if one is driving “erratically”.

Robert Kruchio

[239] Robert Kruchio lived near the scene of the collision from 1991 to 2006 (indeed, one of the driveways to the property where he lived was the driveway beside which Mr. Harris’ vehicle came to rest). He was 31 years old when he testified, and 18 years old in the fall of 2004.

[240] He was aware a dip in the road in the eastbound lanes of RR 39 in the area of the collision (and also in the westbound lanes). This was just west of his home.

[241] Mr. Kruchio obtained his driver’s licence when he was 16, thus, in approximately 2002. Once he obtained his driver’s licence, Mr. Kruchio drove RR 39 in the area where the collision occurred once or twice a day, for about three years (until he moved from the area).

[242] He described the area of settlement (the dip) as that one could notice a change in the road because it sinks down a little in the area. He said when you drove over it, you could feel your vehicle shake, and bounce a little bit. If you were travelling at the speed limit, you would feel an up motion, and a gradual down motion. He could not comment on what would happen at speeds higher than the speed limit of 80 km/h. Because the dip area was near his driveway, if he was travelling eastbound, he would usually be slowing down to 60 or 70 km/h, because he was approaching the turn into his driveway.

[243] His experience on RR 39 in that area was that other drivers travelled between 10 and 30 km/h over the speed limit of 80 km/h (i.e., between 90 and 110 km/h). He had witnessed other drivers in front of him slow down or hit the brakes when they passed through the dip.

[244] In cross-examination, Mr. Kruchio agreed that he had never lost control of his vehicle while driving through the area of the dip, and he had never witnessed any other vehicle lose control there. He also agreed that when he saw other vehicles brake as they went into the dip, those vehicles were going too fast.

[245] I note that following a voir dire, I made a ruling that Mr. Kruchio could give evidence of statements that his now deceased father had made to him about the safety of RR 39 in the area of their home. However, the evidence given of his father’s concerns was ultimately not particularly in dispute. Mr. Kruchio’s father expressed concern to him that people drove too fast on the road, and so his father did not want him near the road unsupervised.

[246] In terms of his knowledge of the collision at issue, he was at home that evening with two friends. He recalled that the vehicle came to rest in front of his family’s property. He recalled seeing police vehicles, but was not sure if he saw an ambulance. He only went out briefly to look. He saw the Mr. Harris’ vehicle in the ditch. He could not recall if there was water in the ditch.

[247] In cross-examination, Mr. Kruchio said the only statement he had been asked to provide recently he gave about two weeks before he testified. He had also been asked to provide a statement at the time of the collision, and about four to six months after the collision (it was unclear who these earlier statements were provided to). He could not recall if in the earlier statements he was asked about the dip. He agreed that no-one asked him about the dip until recently. But he was certain there was a dip or settlement in the road to the west of his driveway (where he lived until 2006).

[248] Mr. Kruchio’s evidence was more measured than the evidence of Mr. Sirha or Mr. Schell. However, like the other civilians his evidence is very anecdotal, and he is reflecting back to many years ago. Taken as whole, I find that Mr. Kruchio’s evidence supports a finding that if a vehicle was travelling in the range of the speed limit, one would feel the dip as they passed over it as a shake or a little bounce. Some drivers might slows down or hit their brakes. But driving over the dip near the speed limit would not cause a loss of control.

Howard Lumley

[249] Howard Lumley lives near the scene of the collision, and has for 40 years. He was 72 years old when he testified.

[250] Mr. Lumley testified that he drives on RR 39 almost every day, and is familiar with the portion of RR 39 between RR 30 and Concession 2 (which includes the scene of the collision).

[251] He testified that there are dips in the road. They have been there for 40 years. He said some repairs were done around 1994 or 1995, with new payment that raised up the road. But the dip came back in a couple of years. But it was not as bad as before when it came back. In cross-examination, he agreed that when the dip came back after the mid-90s repair, it was “quite minor”. He also said the dip had gotten worse in recent years.

[252] Mr. Lumley testified that he considered RR 39 to be safe.

[253] Mr. Lumley testified that at present, the dips are OK as long as you are driving near the speed limit of 80 km/h. He testified that he drives in the area at 80-90 km/h. His experience is that most people travel at 80-90 km/h on that part of RR 39. He based this evidence on the fact that he drives 80-90 km/h, and is rarely passed. He has never had any problems on that part of RR 39. He drives a four-door sedan (and mostly has in the past as well). When he goes over the dip, he can feel a bump, but his car does not bottom out. This is at 80-90 km/h.

[254] Mr. Lumley testified that there are no warning signs prior to the dip, and there never have been.

[255] He testified that he considers RR 39 to be safe. He has never seen a vehicle have a problem with the dip if they are travelling at the speed limit.

[256] As with the other civilians, I am somewhat cautious with the evidence of Mr. Lumley given the anecdotal nature of his evidence, and the fact that he is reflecting back many years. However, I found that he was consistent and measured in the way he gave his evidence. His evidence supports the conclusion that at a speed of 80-90 km/h, a person in a vehicle travelling over the dip would feel a bump, but that it did not pose a safety issue at those speeds.

Randall Kane

[257] Randall Kane lived near the collision site, and had a cottage in the area. Between the years 1989 and 1996, he drove the area of RR 39 where the collision occurred almost daily. Since 1996, he drove it much less frequently, maybe once a month, and only occasionally now.

[258] During the time he drove the road daily (1989 to 1996), there was more than one dip in the road in the area east of RR 30 and west of Concession 2. He considered the dip in the road to be “fairly major”, but not like a pothole. He said he would drive cautiously in that area, particularly because there was not lighting. He said as of 1994, you could not see the dip with car headlights at night.

[259] He had seen cars hit the dip when going fast. He said they did not crash or anything like that, but you could see the car bounce around. He could not say if he had seen anyone swerve going over the dip. His own practice was to slow down as he approached the dip. He had seen vehicles in front of him hit their brakes as they passed over the dip.

[260] In his experience, during the period 1989-1996, if he went over the area of the dip too fast, if he had groceries in the car, they might fall over or if you had an open cup of coffee, it might spill or splash. He said each of these things had happened to him once. But this depended on your speed. In cross-examination, he agreed that the experiences he had of groceries falling over or coffee spilling were before the road was repaired in the mid-1990s.

[261] He recalled that the road had been repaired twice. Once was in the mid-to-late 1990s. He could not recall when the other repair was. He said that after the mid-1990s repair, the dip in the road returned, but it was not as severe. He said that today the whole road was much smoother, but it still had some ups and downs.

[262] He said he usually drove 80-90 km/h in the area of RR 39 at issue. But many drivers went a lot faster. He based this conclusion on his experience that people would regularly pass him, or tailgate him. He estimated that some vehicles travelled as fast as 120km/h.

[263] Mr. Kane testified that prior to 2004, he had seen at least three rollover single motor-vehicle collisions on RR 39, east of RR 30, in either the eastbound or westbound lanes. But he did not witness the vehicles leaving the road. He just came on them afterwards off the road or in the ditch.

[264] In cross-examination, Mr. Kane said that the first time anyone had spoken to him regarding the dip in the road in RR 39 between RR 30 and Concession 2 was four to six weeks before he testified. He agreed that his memory on details was not as good now. He agreed that he was not sure of exact dates. He also agreed that it was in the time period 1989 to 1996 that he had seen vehicles off the road or in the ditch following a collision.

[265] I did not find Mr. Kane’s evidence to be of assistance. It is common ground in that the area of RR 39 at issue was repaired in the mid-1990s. Mr. Kane’s evidence focusses on the period of 1989 to 1996. He was unable to say if his own experiences of travelling over the dip and having groceries move or coffee spill was prior to the repair in the mid-1990s. Further, I find his evidence of having seen cars in the ditch of no assistance, because in each case he said he came upon the cars when they were already in the ditch, and thus did not know what happened to cause them to be there. As well, in cross-examination, he said these events were in the 1989-1996 time period, long before the collision at issue in this case.

[266] In sum, I give limited weight to the evidence of the civilians. Their evidence was very anecdotal. They were reflecting back in hindsight on a period many years before, without any record, or any reason to have taken care in their observations at the time they made them. However, they provide some support for Durham’s position that the dip where the collision occurred did not constitute a risk to drivers travelling at or near the speed limit of 80 km/h. A driver at the speed limit or a little above would feel a bump or a small bounce, but there would not be pulling or swerving or loss of control. However, if drivers were travelling 100 km/h or more, they might experience pulling. However, none of the witnesses experienced or witnesses the type of loss of control experienced by Mr. Harris. The closest was Mr. Schell, who candidly stated that the time he lost control, and then regained it, he had been travelling probably 100 km/h, and the loss of control was was probably his fault, because he wasn’t paying attention, he only had one hand on the steering wheel, and he had a cigarette and a beer.

[267] I am prepared to find, based on the evidence of the civilians taken together, that there is at least some subset of drivers who regularly travel 100 km/h or more in the area of RR 39 where the collision occurred. There is clearly also a subset of drivers who travel at 80-90 km/h. The evidence from the civilians does not allow me to quantify what percentage of drivers drive in what speed ranges. I discuss further below whether driving 100 km/h in this area falls within the scope of an ordinary reasonable driver.

(iv) Evidence of Police drive-throughs of dip at various speeds

[268] During the police investigation following the crash, two Durham Region police officers drove through the area of the dip at various speeds, to assess the reaction of a vehicle to driving over the dip at various speeds. Durham Region called these officers, Detective Alan McDonald, and Detective Wyatt (also the accident reconstructionist for the police) as witnesses at trial. They made a video as they did these drive-throughs, which was made an exhibit.

[269] Their evidence is relevant to two issues: 1) the safety of the road at various speeds as it relates to whether the road poses a risk to an ordinary reasonable driver; 2) Mr. Harris’ speed, as it has some probative value on whether his vehicle would have lost control the way he did at the speed he claims he was travelling of 100 km/h.

[270] For the most-part, their evidence was similar, except for whether the top speed they drove through the dip was 110 km/h or 120 km/h. On this issue, I accept the evidence of Detective McDonald that the last run was at 120 km/h. I accept this because he was the one driving, and thus was more likely to have accurately recorded the speed of the run, since he could see the speedometer as the driver. Further, Detective Wyatt said in his evidence that to the extent there was a discrepancy between his recollection of the speed of the last run, and Detective McDonald’s, he would defer to Detective McDonald’s recollection of the speed, as Detective McDonald was the driver.

[271] Detective McDonald testified that he and Detective Wyatt did runs over the dip at speeds of 80, 100, and 120 km/h with both he and Detective Wyatt in the vehicle. The drive throughs were conducted on November 12, 2004, one week after the collision. Detective McDonald was the driver, and Detective Wyatt was the front seat passenger, and held a video camera to record the runs. Detective McDonald had the speeds of the test runs recorded in his notes as 80, 100, and 120 km/h, and this accorded with his recollection. In addition there was one more run where Wyatt videotaped from outside the vehicle. Neither officer had a note or a firm recollection of the speed of that run, but both thought it was probably at the speed limit of 80 km/h.

[272] They drove the runs in a regular police vehicle. Detective McDonald testified that prior to driving the run throughs that were videotaped he was aware the dip was there, and had driven over it before the videotaped runs. He testified that he did not do anything special to brace himself as he drove over the dip in the videotaped runs. He could not recall exactly how his hands were positioned on the wheel, but said they were positioned so that he could see the speedometer. He had both hands on the steering wheel. He was unable to recall if he gripped the steering wheel harder than usual.

[273] Detective McDonald testified that as the driver he observed that at the higher speeds driving over the dip, the movement of the vehicle’s suspension increased. He also described this as the suspension “compressing more” at the higher speeds. But the car maintained its due east heading on each run through, and he felt no loss of control. He was not thrown around in the vehicle at all.

[274] During Detective McDonald’s evidence, the video of the runs was played in court. My own observations on watching the video of the run throughs were as follows. At 80 km/h, there was almost no movement of the vehicle. It was difficult even to tell where the dip was. At 100 km/h, there was a small amount of movement of the vehicle down and back up. At 120 km/h there was fairly significant movement of the vehicle down and back up as it crossed over the dip. All of the movement I saw on all three runs was only up and down. I did not observe any side to side movement.

[275] Detective McDonald testified that they did not try the run throughs at even higher speeds because the road was open to other traffic when they did the run throughs, and they were concerned that higher speeds would be unsafe. The reason they had this concern was not from the dip itself, but rather because there were a number of driveways in the area, and at higher speeds there was a risk if a car came out of a driveway that they would cause a collision.

[276] Detective McDonald agreed in cross-examination that the vehicle they used was a standard police equipped Crown Victoria. He agreed that there were differences between a police model and a factory model. He was not sure of the differences, but believed one was that the suspension was tighter on the police model. He also agreed that as a police officer he had been trained to drive in high speed pursuits.

[277] Detective Wyatt’s evidence was for the most part consistent with that of Detective McDonald about the drive throughs. The only significant difference was regarding the speed of the last run when both men were in the vehicle. Detective Wyatt’s recollection was that it was 110 km/h, and he had a note to this effect. However, he said that since Detective McDonald was the one driving, he would defer to McDonald’s recollection about the speed of the runs.

[278] Detective Wyatt testified that his observations from driving through the dip were that there was no loss of control on any of the runs, and a minor dip in the front end over the three runs. He said there was “nothing violent” about the dip at the speeds they drove over it. Based on the drive throughs, he did not believe the road in the area of the dip was a hazard at normal speeds. He would have contacted the Region if he had thought it was a hazard. Like Detective McDonald, Detective Wyatt testified that the only reason they did not try driving over it at even higher speeds was that the road was not closed when they did the drive throughs, and there were a number of driveways in the area. He felt it was unsafe to try the test runs at higher speeds because of the driveways, and the possibility of cars coming out.

[279] Detective Wyatt agreed in cross-examination that the vehicle they drove was a standard police equipped Crown Victoria, which is a four door sedan. He agreed that the test runs were done during the day. He agreed that police officers get driver training. He agreed that he and Detective McDonald were aware of the existence of the dip before they drove over it.

[280] On the issue of the speed of the last run when both men were in the vehicle, I accept Detective McDonald’s evidence that the speed was 120 km/h. As noted above, I accept his evidence on this issue, because he was the driver, and was in a better position to know what speed he drove at. In other respects, the evidence of Detective McDonald and Detective Wyatt is consistent about the drive throughs, and I accept their evidence as truthful. It is largely confirmed by the videotape.

(v) The Durham Region and Ontario guidelines regarding road depressions

[281] The only standards identified by any of the experts as being applicable to the dip in RR 39 were the Durham Region and provincial standards for bumps or depressions of greater than 50 mm in depth over 3 metres in length. As I address further below, there was no consensus among the experts at trial as to how this standard should be applied to depressions of a much longer length than 3 metres, such as the depression in this case.

[282] The relevant portions of the Ontario Maintenance Quality Standard for Asphalt Pavement Surfaces, MQS-102, published in January 2003, provide as follows (see Exhibit #32):

DEFECTS

The following defects shall be noted and action taken according to the following standards. Other defects not listed below shall be Reported to the District Office. All conditions that are causing a Hazard shall be Addressed Immediately.

2. Distortion

Distortions are any deviations of the pavement surface from its original shape other than that described for rippling and shoving. These defects usually take the shape of a bump or depression and are noticeable in a moving vehicle.

Bumps or depressions with a vertical depth differential of 50 mm or more over a 3 m length shall be Reported to the District Office. . . [Emphasis and capitalization in original.]

[283] The portion of the Region of Durham Service Levels applicable to bumps or depressions, effective July 1978, and revised May 2004, are to similar effect (see Exhibit #1, Tab 9):

Depressions or bumps greater than 50 mm over a distance of 3 m or less shall be corrected.

[284] Some counsel at various points in cross-examination and in submissions appeared to put weight on differences between the provincial and regional standards, or the fact that a particular expert referred to the provincial standard and not the regional standard (or an outdated version of the provincial standard). I do not find any significant differences between the provincial and regional standards for purposes of this case, particularly where the key dispute is how to apply a standard which speaks to dips of up to 3 metres in length to much longer dips.

[285] I note that some of the expert witnesses referenced Ontario standard M-100-2. This is an earlier version of MQS-102 published in 1990, which was no longer in force at the time of this collision (having been replaced by MQS-102). M-100-2 is found in Exhibit #3, Tab 46. As with the Durham standard, and MQS-102, I do not find that M-100-2 is significantly different as it relates to “distortions” in road surfaces. To the extent that some of the experts referenced the older Ontario standard in their reports, I do not find it to be a factor that affects the substance of their evidence or credibility.

[286] A central issue in dispute between the experts was how to apply the “50 over 3” standard to a dip that was both longer than 3 metres, and deeper than 50 mm. For reasons I will explain, I find that the disagreement among the experts on how to apply the standard speaks to the issue of whether the 50 over 3 standard is even the appropriate standard to measure a longer and deeper dip.

[287] As a matter of law, documents such as the provincial or regional maintenance standards or the Ontario Traffic Manual (“OTM”) are guidelines. They do not establish a legally enforceable standard for civil liability. The overriding issue is whether the state of the road poses an unreasonable risk of harm to ordinary reasonable drivers. A guideline such as the OTM is relevant evidence in assessing that issue, but it is not conclusive; Fordham, at paras. 51-53; Deering, at para. 243

(vi) The Ontario Traffic Manual guidelines regarding signs for road hazards

[288] The OTM sets the guidelines for road signage in Ontario. The relevant portions of the OTM for this trial are the portions of Book 6 regarding “bump” and “bump ahead” signs, and the foreword to Book 6, which has some more general comments about signage.

[289] I reproduce the key aspects of the OTM regarding “bump” and “bump ahead” signs (see Exhibit #3, Tab 44):

Purpose and Background

The purpose of the BUMP and BUMP AHEAD signs is to give warning of a sharp change in the profile of the roadway that is sufficiently abrupt:

• To create a hazardous discomfort to passengers;

• To cause a shifting of cargo; or

• To deflect a vehicle from its intended course when the bump is crossed at the posted speed limit.

Drivers typically need to slow down to negotiate the bump in a safe and comfortable manner.

[There is then a description of the various types of bump and bump ahead signs]

Guidelines for Use

The BUMP sign (Wa-22) must be used whenever there is a sharp change in profile that cannot be driven safely at the posted speed. This sign is not an advance sign, as are most warning signs. Instead, it is installed directly adjacent to the bump, since it is difficult for drivers to identify from a distance the exact bump location.

The BUMP AHEAD sign (Wa-22A) must be used in advance of the BUMP sign.

When a series of bumps occur over a significant length of roadway, a supplementary HAZARD LENGTH (Wa-6t) may be added to the BUMP AHEAD sign to indicate the distance in kilometres over which bumps may be experienced.

Location Criteria

The BUMP AHEAD sign (Wa-22A) must be located in advance of the bump or series of bumps. The BUMP sign (Wa-22) must be located directly adjacent to the bump.

[290] Importantly, and I will return to this below, the OTM is clear that more signs are not always better. One might be tempted to think that it is better always to err on the side of caution and put up more signs. But the OTM address this issue and is clear that there are dangers from both over-use of signs and under-use of signs.

[291] The danger of under-use of signs is fairly evident. If there is a road hazard and it is not signed, then drivers will not be forewarned of the hazard, and will lack time to react.

[292] However, over-use of signs creates a danger that drivers will become complacent and ignore warning signs. In this regard, I reproduce a portion of the introduction to Book 6 of the OTM (Exhibit #23):

1.1 Application of Warning Signs

Warning signs are intended to provide advance notice to road users about unexpected and potentially dangerous conditions on or near the road. The conditions to which warning signs apply typically require that road users exercise caution, and may require that drivers slow down, in order to travel safely in the presence of a hazard.

In order to retain the public credibility of all traffic control devices, consistency in application is necessary. Insufficient warning signs may leave road users unprepared for encountering hazards, while over-signing or exaggerated signing may result in complacency. It is important, therefore, that warning signs accurately convey the severity of the hazard about which they are warning.

[293] In effect, if warning signs are over-used, they become like the boy who cried “wolf”. Drivers are not as likely to heed a warning sign if they feel that signs are used for road issues that do not present a real hazard to an ordinary reasonable driver. This point was also made by several of the road safety experts (whose evidence I summarize below).

[294] Thus, I find that the OTM supports the proposition that balance must be used in deciding whether to sign any particular feature of a road. If the feature does not constitute a hazard to ordinary reasonable drivers, then then the OTM does not support placing a warning sign.

(vii) Evidence of Neil Bigelow

[295] Neil Bigelow was called as a witness by Mr. Harris. He is trained in as an engineer. He has specialized training in road safety engineering and accident reconstruction. I qualified Mr. Bigelow as an expert in engineering, including accident reconstruction, site inspection, mapping and site data collection.

[296] The substance of Mr. Bigelow’s evidence was that he attended at the scene of the collision on two dates in July 2005. He first conducted a visual inspection or the road, and took the photos (entered as Exhibit #7, photos 8-22).

[297] He then took measurements of the road, including the dip, using a total station measuring device. His evidence was that a total station device is very accurate, and much more accurate than, for example, the string and nail method used by Mr. Morden (discussed below).

[298] I note that in the initial joint expert report (December 21, 2011), all of the experts of all of the parties agreed that the road survey measurements taken by Mr. Bigelow were collected using “an acceptable, good and appropriate methodology.” They also all agreed that the “equipment, technique and resulting data [from the 2005 Bigelow survey] are accepted by the experts” (see Exhibit #3, Tab 53, p. 2).

[299] Mr. Bigelow surveyed a total area of 287 metres along RR 39 in the area of the collision, including the area of the dip. However, he concentrated his survey in the area of the dip (i.e., he took many more measurement points in the area of the dip than in the balance of the 287 metres of his survey).

[300] The various measurements taken by Mr. Bigelow and analysis of those measurements are contained in Exhibit #6. Note that corrections were inserted by hand in diagrams 8 and 9 in Exhibit #6 during Mr. Bigelow’s examination-in-chief. These corrections resulted from an error regarding the vertical scale. The handwritten numbers are the correct ones. In addition there is one handwritten correction on diagram 6A of Exhibit #6.

[301] One other general point to note is that although he took measurements in the road which he marked as being the left tire track, the centre of the lane, and the right tire track, the actual points he measured at are not in perfectly straight lines (see diagram at Exhibit #6, diagram RSK-2). This is part of the human process of walking along the length of the road as measurements are taken with the total station device. Mr. Bigelow explained in his examination-in-chief that the non-straightness of each track in diagram RSK-2 of Exhibit #6 does not indicate anything about the paths of motor vehicles travelling on the road (i.e., it is not an indication that the tracks of each tire have side to side movement).

[302] Durham accepted the correctness of Mr. Bigelow’s measurements of the length and depth of the dip in July 2005, in the sense that it accepted the accuracy of the total station measurements taken at all the points by Mr. Bigelow. The only area where of Mr. Bigelow’s evidence that Durham’s expert Mr. Malone took issue with was with respect to Mr. Bigelow’s use of a figure of -.05% to account for the downgrade in the area in the absence of the dip as one approached the dip from the west. Durham’s expert Mr. Malone, using Mr. Bigelow’s measurements, calculated a somewhat higher downgrade of -.94% (or almost -1%, which I will refer to at times for sake of simplicity). I will return to the issue of the grade in my analysis.

[303] Nor did the plaintiffs seek to contest the measurements taken by Mr. Bigelow (although they did attempt to use them in conjunction with a 2010 survey to suggest that the dip was deeper that what Bigelow found – that is addressed below at paras. 434-473). However, the plaintiffs’ expert Mr. Gilchrist also applied a different figure to calculate to remove the effect of the grade (-0.8% – discussed further below).

[304] I accept that Mr. Bigelow’s measurements of the dip in July 2005 were done using a methodology that was acceptable in the field of road and transportation engineering. I also accept that his measurements were accurate in the sense of physically representing the dip. Further, in the absence of reliable evidence[^7] that the road shifted between the time of the collision in November 2004, and the time of Mr. Bigelow’s July 2005 survey, I accept that his July 2005 survey is reliable evidence of the state of the road in November 2004. However, my acceptance of his measurements is subject to assessing whether the applicable grade to be used in calculating the depth of the dip is -0.5% or closer to -1.0% (or the -0.8 % put forward by the plaintiffs’ expert Mr. Gilchrist).

[305] I will explain the importance of the issue of what general grade is applied to assessing the depth of the dip. The actual points that Mr. Bigelow measured using the total station are not in dispute. However, because there was a slight downslope or downgrade over the entire area that included the dip, from west to east, it is necessary to account for that grade in measuring the depth of the dip. A total station device takes measurements using a fixed point of reference set at the outset of the mapping exercise. Because of the downslope from west to east in the relevant part of RR 39, every measurement taken in the area of RR 39 going from west to east would (in general) be lower than the last point, due to the slight downward grade. For this reason, in order to consider how deep the dip was, it was necessary to do a calculation to remove the effect of the grade. All of the experts agreed that there was a need to do a calculation to account for the general downward slope, but they disagreed on how steep a figure to use for the general slope in the area.

[306] Mr. Bigelow’s evidence was that the overall grade of the roadway, moving from west to east, was a slight downgrade of -0.5%. Mr. Bigelow came to that figure for the grade based on taking measurements 40 metres to the east of the dip, and something in the range of 285 metres to the west of the dip.

[307] Mr. Bigelow testified that the total area of the dip was approximately 22 metres long, and 6.9 metres wide (i.e., it was present in both the eastbound lane and the westbound lane). Although Mr. Bigelow gave evidence that the dip was 22 metres long, his measurements of the profile of the dip cover 27.5 metres in the eastbound lane. He gave the opinion in examination-in-chief that in the eastbound lane, the maximum depth of the dip was 150 to 160 mm, about 11 metres along the dip (travelling west to east). As I understand Mr. Bigelow’s evidence, these figures were calculated by taking the total station measurements, and doing a calculation to adjust to remove the general downgrade in the area that Mr. Bigelow found of -0.5%.

[308] As I have noted, one area of dispute among the experts was – what was the general grade in the area that needed to be adjusted for in assessing the depth of the dip? Mr. Bigelow said it was -0.5%, based on taking measurements from two very far distant points outside the dip. Thus, the -0.5% figure he used was an average of the grade over a very long distance.

[309] Mr. Bigelow agreed in cross-examination that looking at shorter distances within that overall average grade of -0.5% calculated over the longer distance, there could be minor variations in the grade, for example -1.0% in places or -1.5% in places. He also agreed that in his report he had stated that the grade to the west of the dip, as one approached the dip in the eastbound lane was “about negative one percent” (i.e., -1.0%).

[310] Mr. Bigelow did not agree that the grade could be calculated using the points at each end of the dip looked at in isolation. But he agreed in cross-examination that if one did a calculation of the change in elevation from the western edge of the dip to the eastern edge (using the right tire track), the calculation would yield a grade of -.94% (or almost -1.0%) (i.e., he agreed with the math, but not with the theory behind the math). He was asked to do the same calculation for the left tire track, and the result was -.95% (again, approximately -1.0% downgrade).

[311] The (corrected) numbers in diagrams 8 and 9 of Exhibit #6 are figures that assess the depth of the dip using a grade figure of closer to -1.0% based on using a reference line between the points at either end of the dip. Using those figures, the dip is not as deep. That is, if the general downslope of the road is slightly higher (-1.0% instead of -0.5%), then the relative depth of the dip is somewhat less. Using this method of assessing the depth of the dip, Mr. Bigelow’s measurements yield the following data. In the eastbound lane (i.e., following the path of a vehicle travelling eastbound like Mr. Harris’ vehicle), Mr. Bigelow’s measurements show a gradual vertical drop in the right tire track (passenger side) over 17.6 metres in length along the road of 105 mm, and then a rise back up of 105 mm over a distance of 10 metres. Similar elevation changes were measured in the left tire track, of a vertical drop of 108 mm over 16 metres, and then a rise back up of 108 mm over a distance of 11.4 metres. Thus, in both the right and left tire track, the maximum depth of the dip is approximately 10-11 cm, which it reaches over 16-17 metres as one travels eastbound, and then rises back up over a distance of 10-11 metres (see diagrams 8 and 9 in Exhibit #6).

[312] Thus, what level of grade is used when the calculation to adjust for the grade is done affects how deep the dip is relative to the surrounding road. If a -0.5% grade is used, as Mr. Bigelow supports, then the dip is approximately 16 cm deep at the deepest point. If a -1.0% grade is used (as did Durham’s expert Mr. Malone), then the dip is close to 11 cm deep at its deepest point. I note that in either case, the dip reaches this depth over a relatively long distance.

[313] I will return to this point in my conclusion on the issue of liability, and in reviewing the other experts who testified about the dip, but having considered all of the evidence, I do not accept Mr. Bigelow’s opinion that the grade that should be used to remove the effect of the downslope in the area when assessing the depth of the dip is -0.5. Rather, I find the evidence of Mr. Malone, Durham’s expert to be more persuasive (discussed below at paras. 394-433).

[314] I come to this conclusion because I find that Mr. Bigelow’s approach of assessing the grade based on two points far removed from the dip, approximately 280 metres apart, gives an average grade over that much larger area, but is not representative of the actual grade closer to the dip. Mr. Bigelow agreed, and as did Mr. Malone, that within the 280 metres, there could be variations in the grade. Thus, I find that in taking what is effectively an average of the grade over 280 metres, rather than looking at the actual grade in the area of the dip, Mr. Bigelow has understated the downgrade near the dip. The effect of this is that when a lower grade is used to calculate the depth of the dip (as Mr. Bigelow did), it makes the dip appear deeper than it actually is. This is because some of the depth is due to there being a higher amount of downslope in the area surrounding and including the dip than Mr. Bigelow recognized.

[315] I find that Mr. Malone’s approach is more probative of the effect that the dip would actually have had on the Harris vehicle as it approaches the dip, since it is based on the actual height of the surface of the road at both the starting end of the dip, and at the end of the dip.

[316] For these reasons, I find that the corrected figures in diagrams 8 and 9 of Exhibit #6 represent the actual depth of the dip, since those numbers were calculated using the close to -1.0% (-0.94%) that Mr. Malone used to represent the general downslope near the dip. I find that the maximum depth of the dip was 105-108 mm (just under 11 cm), over a distance of 27.5 metres.

[317] As I have noted above, one of the fundamental differences between the parties is whether and how the 50 mm over 3 metres standard to assess dips in a road should be applied to a dip greater than 3 metres in length. I will address my conclusions on that issue below in my analysis. But I highlight one aspect of Mr. Bigelow’s measuring and quantitative assessment of the dip that relates to this issue.

[318] In cross-examination, Mr. Bigelow was asked to do a series of calculations of the change in elevation to pro-rate the changes in elevation to what they would be over three metre increments in the eastbound lane. The sample calculations were done using the depth figures calculated down from the points between the two ends of the dip (i.e., the numbers in diagrams 8 and 9 of Exhibit #6), which uses grade close to -1.0%. For example, between points 37 and 32 in the diagram of the right tire track, if the 11.3 metre distance between points 37 and 32 is pro-rated to 3 metres, it has to be divided by 3.766. Applying the same divisor to the change in depth of 94 mm, the average change in depth over a 3 metre increment is 24 mm. Thus, by way of example, the change in depth in that area is not greater than 50 mm over 3 metres (because it is 24 mm over 3 metres when the pro-rated calculation is done).

[319] I outline this evidence merely to show the numbers, as Mr. Bigelow did not give an opinion on whether it was appropriate to apply the 50 mm over 3 metres standard by dividing a dip into 3 metre increments (that issue was addressed in the expert evidence of Mr. Gilchrist and Mr. Malone).

[320] In reviewing the photos of the road, including the dip, taken by Mr. Bigelow, I note that the dip is gentle enough that it is difficult to see in some of the photographs. To the extent one can see the dip (for example in Exhibit #7, photos 10, 11 and 16) it appears as a gentle slope down and back up.

[321] Similarly, quite apart from the dispute about what grade to apply to assess the depth of the dip, whether one were to accept Mr. Bigelow’s evidence of a maximum depth of 16 cm, or Mr. Malone’s of a maximum depth of 11 cm, it is clear from the total station survey taken by Mr. Bigelow that the dip is a gentle slope downward and back up of a long distance. It is not a sharp or abrupt change in the grade of the road.

[322] Mr. Bigelow testified that he noted during his attendance at the scene that there are no signs in either direction warning of the dip in the road. He also observed that the road has no artificial lighting. These two points are not in dispute.

[323] Mr. Bigelow provided an opinion that a depth of depression of 150-160 mm reached over 11 metres (i.e., near the midpoint of the dip, with the whole dip being 22 metres long) was a depth that would have contributed to the loss of control of the Harris vehicle. As I explain below in relation to causation, I accept that the dip contributed to Mr. Harris’ loss of control; however, I find that it was a non-negligent cause, in the sense that the road did not pose an unreasonable risk to an ordinary reasonable driver.

[324] Mr. Bigelow gave an opinion that there should have been “bump ahead” and “bump” warning signs in both directions. With respect to Mr. Bigelow’s opinion about signage, I found it to be unhelpful because it was conclusory and made without any reference to provincial guidelines for road signs and warning signs. These guidelines were discussed extensively in the evidence of both Mr. Gilchrist and Mr. Malone (the experts of the plaintiffs and Durham). For this reason I assess the issue of signage by considering their evidence, and not Mr. Bigelow’s conclusory assertion.

[325] In cross-examination, counsel for the plaintiffs elicited from Mr. Bigelow evidence about two more recent attendances at the site of the collision in October 2017 and February 2018. I do not summarize this evidence as I found it not to be relevant to assessing the state of the road in November 2004, the time of the collision.

(viii) Evidence of Lloyd Morden

[326] Lloyd Morden had been retired for two years at the time he testified. Prior to his retirement he had worked as an insurance adjuster for L.V. Walker and Associates Insurance Adjusting Limited, which he owned (“L.V. Walker”). He sold the business at the time of his retirement.

[327] Mr. Morden was retained by Durham Region as the insurance adjuster for the Stamatopoulos collision approximately one week after the collision (i.e., in mid-November 2004). Mr. Morden testified that all of his investigation was done to assist Durham in investigating and defending the claim.

[328] I found Mr. Morden to be an honest witness. Indeed, his credibility and honesty were not challenged by the plaintiffs or by the defendant Harris. However, I have concerns about the reliability of Mr. Morden’s evidence, both in terms of the accuracy of his method of measuring the dip, and in terms of his memory, 13 years later, of observations of how fast cars travelled in the area of the dip and their reaction to travelling over the dip. However, I do find that the photographs taken by Mr. Morden of the dip in March and June 2005 are helpful evidence to consider with the rest of the evidence in assessing whether the nature of the dip was such that it constituted a state of non-repair. I will first address my concerns about the reliability and accuracy his evidence regarding measuring the dip, and then his evidence about observations of cars travelling over the dip.

[329] I will not summarize all of Mr. Morden’s evidence, but I will give a general outline of his evidence as context to understand my concerns about the reliability and accuracy of his evidence.

[330] Mr. Morden testified that in a serious collision, like the one in this case, his preliminary investigation would include attending at the scene, taking photos of the scene, contacting the road superintendent for the region to get statements, obtaining salting and sanding records, and inspection records for the road at issue. He did a similar investigation in this case.

[331] He attended at the scene of the collision on March 12, 2005 and again in June 2005.[^8] In March 2005 he took photos of the scene. He was at the scene for a total of 25-30 minutes when he attended in March 2005. In June 2005 he took more photos of the scene, and also took measurements of the dip using a string and nails. Many of the photos taken by Mr. Morden were entered in evidence before me, and I discuss them further below.

[332] Mr. Morden’s gave evidence in some detail of the process he used to measure the dip with a string and a nail or spike. He used orange nylon string, and 10 inch long spikes. He hammered the spikes into the roadway (i.e., the asphalt) about 10 to 12 inches in from the shoulder. He took the measurements near the edge of the road because the road was open to traffic, so he could not drive the spikes in and attach the string in the portion of the road where cars travelled. He put a spike at the western end of the dip. He put another spike at the eastern end, past the end of the dip. He attached the nylon string to the spike at each end, so that the string ran over the length of the dip (and further to the east). He testified that he pulled the string tight. He then went back to the western end, and from the point where the string began to separate from the asphalt (which he took as the start of the dip), he took measurements of the depth from the string down to the roadway every 10 feet. In effect, subject to the issue of the string sagging which I address below, in theory, each measurement at 10 foot increments would show how far the dip was below the height of the road surface at either end of the string.

[333] Using this method of measuring, Mr. Morden measured the dip in the eastbound lane as a gentle slope down and back up, ranging in depth at 10 foot increments from no depth at one end, to 1 inch, to 1.25 inches, to .75 inches, back to no depth (this was at 50 feet from the starting point). I will not recount his measurements in the westbound lanes. They were similar, but a bit deeper. Where he took the measurements every 10 feet, Mr. Morden tied a piece of binder twine onto the nylon string. He documented the measuring process with photos. Mr. Morden measured the length of the dip in the eastbound lanes as 50 feet long, and in the westbound lanes as 60 feet long. This differed significantly from Mr. Bigelow’s measurement of the length, an issue I will return to below.

[334] In addition to testifying about the measurements he took of the dip, Mr. Morden testified about observations he made of vehicles driving over the area of the dip during his two attendances at the scene.

[335] During his evidence, Mr. Morden gave evidence that when he attended at the scene in March and June 2005, he observed various vehicles travelling over the area of the dip. Mr. Morden testified that during his March 2005 attendance at the scene, he saw 50 or 60 vehicles travel over the dip. He estimated their speeds as varying from the speed limit of 80 km/h up to 120 or 125 km/h. To give a flavour of the guess-timating nature of his evidence, I note that about the 50 or 60 vehicles, he said, “I would bet 50 to 60 vehicles”. In relation to the speeds, he said, “just my guess would be anywhere from the speed limit up to 120-125 km/h”. He was asked about the movement of the vehicles as they travelled over the dip. He said they “probably” bounced a little as they went into or came out of the dip, but nothing serious. He said there was no side-to-side movement, and none of the cars braked. Mr. Morden gave similar evidence about his observations of vehicles driving over the dip when he attended the scene in June 2005. I note that Mr. Morden had no notes whatsoever of the speeds of any vehicles or of his observations of movement of the vehicles. He was prompted to give evidence about specific vehicles because they happened to be in some of the photos that he took of the scene.

[336] Mr. Morden also testified that he drove over the dip himself twice during his March 12, 2005 attendance at the scene: one at 80-85 km/h, and once at 120-125 km/h. He said that at 80-85 km/h he felt a little bounce going into the dip, and a little bounce coming out. He did not think it was a safety concern. He also said it felt safe at 120-125 km/h. At that speed, he felt a slight bounce, but no side-to-side or out of control movement. He testified that he drove through the dip two more times when he attended in June 2005, at the same speed, and with similar results. In cross-examination, Mr. Morden said he was driving a pick-up truck when he did his own drives over the area of the dip. His pick-up truck has a suspension that can take a half-ton load, and has all-wheel drive and traction control.

[337] I now consider my assessment of Mr. Morden’s evidence. I start with the observation that all of the other experts on this issue, Mr. Bigelow, Mr. Gilchrist, and Mr. Malone, agreed that using a total station to measure the dip, as Mr. Bigelow did, is an accurate and reliable method to measure the size and depth of the dip, and is a generally accepted methodology in the field. Each of the other experts had reservations about the accuracy of using a nail and string. And I share these reservations, for reasons I will explain.

[338] I have a number of concerns about the reliability of Mr. Morden’s string measurements of the dip, and some of them are inter-related with others. First, Mr. Morden’s measurement of the length of the dip is much shorter than Mr. Bigelow’s measurement. Mr. Morden measured the length of the dip in the eastbound lane was 50 feet (approximately 16.7 yards, or 15 metres). Mr. Bigelow measured it as 22 metres long (and his profile drawings show it to cover 27.5 metres). This is a significant difference in length. In light of the accuracy of measurements taken by total station by Mr. Bigelow, which I accept, I find that this supports the conclusion that Mr. Morden did not measure the full extent of the dip. This matters, because if he did not measure the full length of the dip, his measurements would not have captured the full depth as measured from the height at the real edges of the dip. Further, Mr. Morden’s own assessments of the length of the dip were inconsistent. In cross-examination he agreed that in a letter dated March 14, 2005 to then-counsel for Durham, he wrote that the dip was “about 26 yards long”. His explanation for this was that the March figure was an estimate. However, I note that the difference is quite significant.

[339] Second, Mr. Morden did not in his string measurements take into account the grade of the portions of the road surrounding the dip. As I have outlined above, the other experts had some disagreement about what the surrounding grade was, but all of them agreed that knowing the surrounding grade was relevant to considering the magnitude of the dip. Mr. Morden’s measurements failed to take into account or consider the surrounding grade.

[340] Third, Mr. Morden conceded in cross-examination that he took his measurements of the dip only 10 to 12 inches in from the shoulder of the road – thus, not in the portion of the road that a car would actually travel over in normal driving. Mr. Morden explained that because he was affixing a nail and string to the road, and he was not able to shut down the road, he could not measure in the travelled portion of the road. This differs from Mr. Bigelow’s method with the total station. Because Mr. Bigelow was not affixing anything to the road, even though the road was also open when he measured, if no cars were coming, he could (or the person working with him) briefly step into the road to take measurements in the travelled portion of the road. I find this factor to be a significant problem for the reliability of Mr. Morden’s measurements, because they do not represent measurements of the dip in the part of the road cars would ordinarily drive over.

[341] Fourth, I have concerns about Mr. Morden’s methodology using the string, in that there were a number of aspects of his methodology that he could not explain to the court in any detail. He was unable to say what kind of string he used, other than that it was nylon. He did not keep the string. I would expect that different types of string would have different properties in terms of stretch or sag. Because Mr. Morden does not know what type of string he used, this cannot be assessed.

[342] Further, Mr. Morden was asked in cross-examination about what steps he took to ensure that the string was not sagging. This is important to the accuracy of measuring with a string, because if the string is sagging, the distance from the string to the road at any particular point in the dip will be less than if the string is pulled taut. Mr. Morden testified that he just pulled the string as tight as he could, and looked at it and he could not see it sagging. But he did not use any special equipment to tighten the string, or use a level to check if it was straight. I note as well that Mr. Morden testified in cross-examination that this case was the only time he had used this string method of measuring, and he did not have any special training to carry it out.

[343] Fifth, a further problem with the reliability of Mr. Morden’s string measurements taken in June 2005, is that he agreed in cross-examination that in a letter he wrote dated March 14, 2005 to then-counsel for Durham Region that he then estimated the depth of the dip as “about 5-6 inches deep” (much closer to Mr. Bigelow’s measurement of the maximum depth). When asked about the difference between his March 2005 estimate of 5-6 inches deep, and his string measurements taken in June 2005 of a maximum of 1.25 inches deep in the eastbound lane, and 2.125 inches deep in the westbound lane, Mr. Morden said the 5-6 inches deep in the letter was just a guess. He also speculated about the road possibly moving due to frost and the depth of the dip being different in by June. While this could theoretically be possible, it is speculation, and there is no real factual foundation to draw this conclusion. Thus, the difference between Mr. Morden’s estimate of the depth of the dip in March 2005 and his string measurements in June 2005 also lead me to have concerns about the accuracy and reliability of his string measurements of the dip.

[344] I acknowledge that the previous provincial standard, M-100-2 (no longer in force at the time of the collision in this case) regarding depressions of greater than 50 mm over 3 metres refers to using a string line as one method of measuring a depression. However, the provincial or municipal standard is not determinative of either the standard of care, or of reliability of evidence in my assessing whether this dip constituted a state of non-repair. Further, while I accept that a string measurement might be done with some level of accuracy on a dip of approximately 3 metres of length, I have concerns about its reliability for the much larger dip in this case. As a matter of common sense, the issue of the string sagging would be a much bigger problem over 50 or 60 feet, than it would be over 3 metres (approximately 10 feet).

[345] I have outlined Mr. Bigelow’s methodology for measuring the dip using a total station machine. I find that Mr. Bigelow’s methodology is a more accurate and reliable method for measuring the dip than the string method used by Mr. Morden. I note that the other experts, Mr. Malone and Mr. Robinson, both accepted Mr. Bigelow’s measurements as accurate based on their expert opinions that using a total station was an accurate method to measure the dip. Thus, I accept Mr. Bigelow’s measurements over Mr. Morden’s. As outlined above, although I accept that Mr. Bigelow’s total station survey was accurate, I do not accept his conclusion about the general grade in the area of the dip.

[346] I turn then to Mr. Morden’s evidence that he observed a variety of vehicles travel over the dip at various speeds, and the reactions he observed of these vehicles as they traversed the dip.

[347] I do not find this evidence given by Mr. Morden to be reliable. Mr. Morden attended at the dip and took his measurements and made his observations in 2005. He conceded in cross-examination that he made no notes of his observations of vehicles traversing the dip – no notes of how many vehicles he observed, no notes of his estimates of the speeds he thought they were going, and no notes of his observations of any reaction or lack of reaction by the vehicles as they traversed the dip. Thus, his evidence before me was given 13 years later, based purely on memory, with no notes.

[348] I note as well that quite apart from issues of his recollection, Mr. Morden was basing any evidence he gave about speeds of vehicles on estimates, as he was not using any quantitative measuring device such as a radar gun. For example, at one point as he gave evidence about a particular vehicle he observed, he stated: “I just took a guess the vehicle was going 95 km/h”. In the circumstances, I do not accept that Mr. Morden’s evidence about the numbers of vehicles he saw traverse the dip, the speeds they were travelling at, and their reactions or lack of reaction to traversing the dip is reliable.

[349] I find that Mr. Morden’s evidence about his own experience driving over the dip in March and June 2005 in his truck is not of assistance in assessing whether the road was in a state of non-repair. Mr. Morden agreed he was driving a pick-up truck at the time he drove over the area of the dip. His pick-up truck had a suspension that can take a half-ton load, and had all-wheel drive and traction control. I do not find that driving over the dip in a pick-up truck is helpful to assessing how a four door sedan like Mr. Harris’ Lincoln would have reacted to going over the dip.

[350] For these reasons, I find most of the evidence given by Mr. Morden to be unreliable, or otherwise not of assistance.

[351] However, I do find that the photographs taken by Mr. Morden of the dip in March 2005 are helpful evidence to consider with the rest of the evidence in assessing whether the nature of the dip was such that it constituted a state of non-repair (the June photos focus more on his taking of the string measurements, and thus I find they are less helpful to visualize the dip). In particular, I find that the photos at Exhibit #2, Tab 39, photos 7, 8, 13 and 16, are helpful to visualize the dip. It is a visible dip in the road, but it is not a sharp or sudden drop in the road surface. The slope of the dip both down and back up appears to be a relatively gentle slope. However, I also caution myself that it is difficult from the photos to get a real sense of the length of the dip. The photos must, of course, be considered in the context of all of the evidence.

(ix) Evidence of Robert Gilchrist

[352] Robert Gilchrist was called as a witness by the plaintiffs. He is trained in as an engineer. He has specialized training traffic and transportation engineering. I qualified Mr. Gilchrist to provide expert evidence as an expert in traffic and transportation engineering, and in human factors related to traffic engineering.

[353] Mr. Gilchrist testified about the importance of driver expectancy in road safety. In general, drivers experience difficulty when they are confronted with the unexpected. He testified that driver expectancy is a factor that is encompassed within the OTM (for example, providing warning signs to allow drivers to expect unusual road conditions).

[354] Mr. Gilchrist testified that in the context of the OTM, a road hazard is any location where the condition of a road or highway and its immediate environment tends or needs to be interpreted as a cause for extra caution by a driver, or a cause to modify speed or path of a vehicle by a driver.

[355] He further testified that a particular condition can constitute a hazard even if many drivers can successfully transverse the area. Success in traversing a particular area is dependent on both the roadway and the driver.

[356] Mr. Gilchrist testified that in assessing whether a particular condition is a road hazard, it is not sufficient to simply apply numerical criteria. In his opinion, one has to also apply common sense, in the sense that a particular condition might not meet a given numerical standard, but might still be objectively viewed as a hazard. He used the hypothetical example of a brick in the middle of a road (for example, that had fallen off a truck). If drivers see it, and drive around it, and there are no collisions, then looked at purely statistically, some might say the brick is not a hazard. But clearly a brick in the middle of a road poses a risk and is a hazard to traffic.

[357] Mr. Gilchrist relied on the Bigelow survey data in the opinions he provided about the depth of the dip. However, he calculated the general grade in the area that had to be accounted for in assessing the depth of the dip differently than Mr. Bigelow (and differently than Durham’s expert Mr. Malone). Mr. Gilchrist testified that the figure he used to calculate for the general downslope in the area when assessing the depth of the dip was -0.8% (in between that of Mr. Bigelow and Mr. Malone). He came to this figure using the slope of the road to the west of the dip (i.e., by projecting the slope of the road to the west of the dip over the area of the dip).

[358] However, Mr. Gilchrist noted, and this was explored further in cross-examination, that the manner in which he came up with the -0.8% grade (looking only at the slope of the road on the west side of the dip) had the effect that his projected line for the road in the absence of the dip did not line up with the actual road at the east end of the dip. He said that one of the reasons for this was that there was a difference in grade of about 0.5% between the west side of the dip and the east side of the dip (he did not say if this difference was upward or downward).

[359] Using the -0.8% downslope figure, and Mr. Bigelow’s survey data, Mr. Gilchrist calculated that the dip was 130 mm (13 cm) deep at its deepest point. Mr. Gilchrist was of the opinion, based on the Bigelow survey data, that the total length of the dip was close to 30 metres. He noted it ran from points 38 to 65 on the “chainage” measurements he used, which is 27 metres – very similar to the length found by Mr. Malone based on the Bigelow data. The deepest point, 13 cm deep, was about 20 metres along the dip moving from west to east.

[360] Mr. Gilchrist was very clear in his evidence that he did not believe it was appropriate to assess whether the dip breached the 50 mm over 3 metre standard by using ratios to assess the relative increase in depth over 3 metres within a longer distance. However, he agreed that the mathematical calculation, if one applied that approach to a 13 cm depth which happened over 20 metres, was an average of 19 mm of increased depression every 3 metres.

[361] Mr. Gilchrist was of the opinion that the 50 mm over 3 metre standard for depressions in the provincial and Durham Region standards did not apply to the depression at issue in this case, because its length greatly exceed 3 metres. In addition, Mr. Gilchrist testified that he disagreed with an approach to assessing the dip of notionally dividing it into 3 metre segments and assessing the change in depth over each 3 metre segment. In his view, proceeding this way risks not seeing the bigger picture.

[362] However, as the 50 mm over 3 metre standard was the closest existing standard, he engaged in the exercise of considering if the dip on RR 39 fell below that standard. He testified that there was one 3 metre increment where he found that the change in depth of the dip was approximately 50 mm (this was using the reference line of the -0.8% grade).

[363] Mr. Gilchrist testified that in his opinion the unsigned depression, because of its length and depth could surprise drivers as they traversed it, as it would cause a sudden change in the attitude and displacement of their vehicles. For this reason, he was of the opinion that it was a road hazard. In his opinion, to safely traverse the depression, a driver would need to at least take a firmer grip on the steering wheel. In order to take this step (more firmly gripping the steering wheel), a driver would need warning of the dip. In Mr. Gilchrist’s opinion, “bump” and “bump ahead” signs would be a relatively inexpensive way to accomplish this.

[364] Mr. Gilchrist provided the opinion that the dip and the absence of a warning sign was a material and contributing cause of Mr. Harris’ loss of control, because it denied Mr. Harris forewarning of the depression so that he could adjust his driving (for example, take a better grip on the steering wheel, or not be surprised).

[365] Mr. Gilchrist testified that in his opinion, the criteria in the OTM for the installation of “bump” and “bump ahead” signs are unreasonably restrictive. He also gave the opinion that the OTM criteria tend to be more oriented towards urban areas, rather than roads in rural areas, such as RR #39. I note than he did not give much explanation for this assertion.

[366] Mr. Gilchrist testified that in his view the OTM was not a complete guide to when signs were required, but rather set a minimum standard. He stated:

It [the OTM] is not a complete and perfect document. And in fact, what it is, is it’s a minimum standard, really. Our standards are minimum. And in the sense that enhancements to standards are always encouraged, larger curves, better signing, or whatever, is always considered a movement in the direction of roadway safety.

[367] In cross-examination, Mr. Gilchrist agreed that the OTM sets out three criteria as warranting “bump” and “bumps head” signs (those set out at paras. 288-289 above). He was then asked whether those were the standards for erecting “bump” and “bump” ahead signs, and he responded:

Those are the minimum limit standards that appear in this manual. They do not prevent a road authority from installing a bump sign at any time.

[368] Although Mr. Gilchrist maintained in cross-examination that the OTM was a “minimum standard”, he acknowledged that the forward to Book 6 of the OTM (which deals with warning signs) includes the following statement (Exhibit #23):

The Ontario Traffic Manual is directed to its primary users, traffic practitioners. The OTM incorporates the current best practices in the Province of Ontario. The interpretations, recommendations and guidelines in the Ontario Traffic Manual are intended to provide an understanding of traffic operations and they cover a broad range of traffic situations encountered in practice. They are based on many factors which may determine the specific design and operational effectiveness of traffic control systems. However, no manual can cover all contingencies or all cases encountered in the field. Therefore, field experience and knowledge of application are essential in deciding what to do in the absence of specific direction from the Manual itself and in overriding any recommendations in this manual. [Emphasis added.]

[369] Mr. Gilchrist also agreed that Book 6 of the OTM, and Book 1 of the OTM, in various places caution about the need for consistency in the application of traffic control devices and signs in order to retain public credibility. Insufficient warning signs may leave road users unprepared for hazards, while over-signing or exaggerated signing may result in complacency or disrespect for signs such that they tend to lose their authority (see Exhibits #22 and 23).

[370] In one of his supplementary reports, Mr. Gilchrist did a number of drives over the dip in July 2017. I note that this was almost 13 years after the collision, and after the 2005 repair of the dip. I am unable to find that the dimensions of the dip in 2017 were the same as in 2004. In any event, Mr. Gilchrist testified about the results of these drive-throughs with the accelerometer. Although there were changes in the relative force of gravity on the vehicle as it drove over the dip, the results show that at no time did it become unweighted or was the effect of going through the dip greater than the force of gravity. He agreed in cross-examination that for that reason the conditions in Book 6 of the OTM for “bump” and “bump ahead” signs of hazardous discomfort to passengers or causing a shifting of cargo were not met.

[371] Mr. Gilchrist testified that the hydro guide pole that the vehicle struck was in the clear zone of RR 39. He testified that utility poles located in clear zones account for about 10% of fatal crashes involving fixed objects. For this reason utility poles are serious objects to be dealt with in considering roadside safety.

[372] He testified that options to make roads safer in relation to fixed objects in a clear zone include: removing the object from the clear zone; making the object “crash-friendly”, for example with a frangible base; or installing a barrier such as a guard rail to prevent vehicles from leaving the road and hitting the object.

[373] Mr. Gilchrist agreed in cross-examination the Ontario Roadside Safety Manual (“RSM”), which Mr. Gilchrist referenced in his report in relation to clear zones, recognizes that some risk may be acceptable, depending on the accident history near a particular roadside issue, and the probability of future accidents:

The suitability of the risk acceptance alternative is a function of accident history and the possibility of future accidents. The accident history should consider multiple years of run-off-the-road impacts with the hazard in question. Unfortunately, we do not have a fully satisfactory basis to evaluate the possibility of future accidents. In the final analysis, this judgment must be made on the basis of personal knowledge and professional assessment of the hazard, the roadway, site and traffic conditions.

See Exhibit #23, section 1.4, which was put to Mr. Gilchrist in cross-examination.

[374] In considering the effect of speed as a causal factor in the collision, Mr. Gilchrist testified that it is common in Ontario for drivers to exceed the speed limit by a moderate amount, either intentionally or inadvertently. Because the portion of RR 39 where the collision occurred was straight, Mr. Harris could have expected to proceed through the area safely at a speed that exceeded the speed limit.

[375] In cross-examination, Mr. Gilchrist was asked questions relating to the need for caution on a rural road at night and Mr. Harris’ evidence that he was going 100 km/h (20 km/h over the limit). He was asked if the 100 km/h that Mr. Harris said he was travelling was excessive. Mr. Gilchrist agreed that Mr. Harris’ speed was imprudent. But he said that “I don’t think people would universally say that.” He said maybe 4-5% of drivers might travel that fast (on this type of road).

[376] Mr. Gilchrist also testified that assuming Mr. Harris only had one hand on the steering wheel and was holding a bottle of pop at the time he traversed the dip, he would consider that to be imprudent. But Mr. Gilchrist noted that had there been a warning sign, Mr. Harris could have put down the pop and taken a firm grip on the wheel.

[377] Mr. Gilchrist was also of the opinion that the tests of Mr. Macklem and the police driving through the dip at speeds over the limit were not representative of the experience of Mr. Harris, because in those cases the drivers knew the dip was there and could prepare and adjust for it.

[378] I have concerns about the reliability of a number of aspects of Mr. Gilchrist’s evidence. In general, I find Mr. Malone’s evidence (summarized below) to be more persuasive.

[379] I find that the gap that existed at the east end of the dip using Mr. Gilchrist’s grade figure of -0.8% leads me to have concerns about the use of this figure for the general grade in the area. The fact that this gap existed in the methodology of assessing the dip used by Mr. Gilchrist, but that it did not in fact exist in the real road, leads me to have concerns about the reliability of the ‑0.8% general grade used by Mr. Gilchrist, and his methodology. In simple terms, the effect of this gap is that Mr. Gilchrist’s calculations do not accord with the real state of the road based on the Bigelow survey.

[380] Further, to the extent that Mr. Gilchrist relied in his evidence on the original “unsettled” roadway to measure down and assess the depth of the dip, in my view this is not a way to measure the depth of the dip that reflects the real effect driving over the dip would have on a vehicle. A vehicle approaching the dip on the actual road would not be driving on the height of original unsettled road. Rather, it would be driving on the height of the actual road as it existed, settled, in November 2004 (and accepting that the Bigelow 2005 measurements are reasonably similar to the state of the road in November 2004). Thus, the relevant height of the road in assessing how deep the dip was is the actual height/elevation of the road surrounding the dip at the time of the collision (again, using the 2005 Bigelow measurements as reasonably similar to the road’s state in November 2004).

[381] As I outlined above, Mr. Gilchrist was of the view that in any event, the 50 mm over 3 metre standard was not particularly helpful in assessing this dip, which was much longer. I agree that quantitative measures alone are not sufficient to assess whether the dip constituted a state of non-repair. However, I do not accept Mr. Gilchrist’s conclusion that the depression was a hazard based on more qualitative assessments.

[382] His evidence on this issue was essentially that the dip could cause a sudden change in attitude and displacement of vehicles as drivers traversed it, and for this reason, it was a hazard and should be signed. His evidence was that a sign would at least allow a driver to take a firmer grip of the steering wheel. I do not accept Mr. Gilchrist’s evidence that the dip was a hazard and should have been signed primarily for two reasons. First, his evidence on this issue does not sufficiently account for the evidence before the court that traversing the dip did not cause problems for drivers at reasonable speeds, and the lengthy absence of a collision history on this portion of RR 39. Second, his evidence regarding the need for signs does not accord with both the OTM, and the evidence of the other experts, that use of road signs is a balance, and overuse of signs poses risks, as does underuse of signs.

[383] On the first point, in my view, Mr. Gilchrist’s conclusion that the depression was a hazard is not consistent with the weight of the evidence of the civilians, the evidence of the police drive throughs over the dip, and the absence of a collision history at that location on RR 39. In my view, the weight of the evidence before the court is that the dip did not pose problems for drivers going at reasonable speeds – ordinary reasonable drivers.

[384] Which brings me to my second concern about Mr. Gilchrist’s opinion that signs were required. I do not have difficulty with Mr. Gilchrist’s evidence that driver expectancy is important. However, on the whole, I found that his evidence about signage essentially followed a principle of “more signs are better”, on the theory that more signs give drivers more information. However, I find that this evidence by Mr. Gilchrist is inconsistent with the OTM, and with the other experts, that oversigning poses risks to drivers, just as undersigning does. Based on all the evidence, I find that implementation of road signs is a balance. Too few signs will result in drivers being inadequately warned of what they are approaching. But too many signs will lead to complacency and to drivers not taking warning signs seriously. For these reasons, I do not accept Mr. Gilchrist’s evidence that the depression on RR 39, which I find did not pose a risk to ordinary reasonable drivers, should have been signed.

[385] I also have some concern that Mr. Gilchrist’s evidence in relation to Mr. Harris’ speed gives unwarranted weight to Mr. Harris’ subjective expectations, rather than considering the ordinary reasonable driver, which is what the law requires be used as the yardstick for assessing if a road is in a state of non-repair. Although Mr. Gilchrist agreed in cross-examination that Mr. Harris’ speed of 100 km/h was imprudent, he went on to say, “I don’t think people would universally say that.” Further, in his evidence in examination-in-chief, he testified that because RR 39 was straight in the area where the collision occurred, Mr. Harris could have expected to proceed through the area safely in excess of the speed limit. In my view, this evidence misses the point, legally speaking. The issue is not Mr. Harris’ subjective expectation, nor is it that some drivers might think 100 km/h was a suitable speed in that area. The issue is whether 100 km/h was a speed a reasonable driver would travel in that area, where the speed limit was 80 km/h. In my view, a reasonable driver would not travel 100 km/h in that location.

[386] I also do not accept that Mr. Gilchrist’s example of a hypothetical brick in the road is helpful in conceptualizing whether the depression on RR 39 is a hazard. While superficially attractive, in my view it is very different from the situation in this case, both in terms of the nature of the alleged hazard, and in terms of realistically taking into account the long history of an absence of collisions on RR 39 in the area of the dip.

[387] On the first point, a brick sitting on the travelled portion of the road is relatively small in terms of the whole road surface, and in Mr. Gilchrist’s hypothetical, was posited as something drivers could drive around to avoid it. That is different than the evidence involving the dip in this case, which I find shows it extended at least across the eastbound lane (the area that concerns us for this case). A driver on eastbound RR 39 could not have driven around the dip.

[388] On the second point, in Mr. Gilchrist’s hypothetical example of the brick, we have no evidentiary foundation of the brick sitting in the road for an extended period of time, and no driver hitting it. It strikes me that it is very unlikely that a brick could sit on a road for an extended period of time and have no-one hit it (or remove it). Certainly not over a period of years similar to the number of years for which it is an agreed fact that there were no collisions attributable to the depression at issue on RR 39.

[389] By contrast, it is an agreed fact in this case that that there were no motor vehicle accidents attributable to the depression in the road on RR 39 forming the subject matter of this action from June 1993 up to February 2017, identified in the DRPS records, except for the single motor vehicle collision involving Mr. Harris and Mr. Stamatopoulos that is the subject matter of this action.[^9] All of the experts agreed, and the case law supports, that the presence or absence of accident history in an area is a relevant factor in assessing if a road is in a state of non-repair. I find that Mr. Gilchrist’s hypothetical brick example unwarrantedly minimizes the importance of an absence of collision history.

[390] I accept Mr. Gilchrist’s evidence that the hydro guide pole was in the clear zone. However, for reasons I explain below in my conclusions on liability, in considering the evidence as a whole, I do not accept that the location of the pole constituted a state of non-repair.

[391] I was also concerned at points in Mr. Gilchrist’s evidence that he tended towards becoming an advocate for the plaintiffs’ case, rather than objectively considering the evidence. For example, for the first time in his examination-in-chief, he asserted a position that was not in any of his reports, which was that the 50 mm over 3 metre standard for assessing road depressions (i.e., both the provincial and Durham standard) was itself an unsafe standard because a vehicle traversing a dip of that magnitude would become airborne. One would have expected, given the issues he was asked to opine on, that if he was of the opinion that the 50 mm over 3 metre standard was unsafe, he would have said so in one of his reports.

[392] Another example is that a number of his drawings in his reports had quite exaggerated vertical scales. The effect of this was to make the dip look much deeper on first inspection of these documents than a diagram where the vertical and horizontal scales were closer to matching would show. I acknowledge, as Mr. Gilchrist testified, that the scales were marked on all of his diagrams, so he was not trying to hide the scales. But in my view it shows a tendency to present the evidence in a manner that exaggerates the magnitude of the dip in the road.

[393] A further example is that Mr. Gilchrist was cross-examined about a hypothetical set of circumstances that involved assuming that Mr. Harris had travelled RR 39 a number of times before and was aware of the dip. In response, before responding to the facts he was asked to assume in the hypothetical, Mr. Gilchrist said: “I’m not convinced that he would have remembered the dip on the occasion he was approaching it on the night of the collision”. With respect, Mr. Gilchrist has no way of reading Mr. Harris’ mind. I find that again here Mr. Gilchrist was not approaching his task as an expert objectively, but became an advocate for the plaintiffs’ case.

(x) Evidence of Brian Malone

[394] Brian Malone was called as a witness by Durham Region. He is trained in as an engineer. He has specialized training in transportation engineering, including road safety, road design and traffic engineering. I qualified Mr. Malone to provide expert evidence as a professional engineer, with specializations in transportation and traffic engineering, and human factors related to transportation and traffic engineering.

[395] As noted above, Mr. Malone accepted the total station measurements of the dip taken by Mr. Bigelow in July 2005. The difference between his opinion and those of Mr. Bigelow and Mr. Gilchrist relates to what grade figure to use to account for the downgrade from west to east when calculating the depth of the dip. In addition, Mr. Malone differed from Mr. Gilchrist about how to apply the 50 mm over 3 metres standard for depressions to a longer dip such as the one in this case.

[396] Mr. Malone testified that in order to assess the depth or sharpness of the dip on RR 39, it was necessary to factor out the surrounding changes in grade in the area. As noted above, all of the experts agreed that there was a need to do a calculation to remove the effect of the overall downgrade in the area. But they disagreed about what figure should be used for the overall grade.

[397] Mr. Malone was of the opinion that the grade that mattered (i.e., the grade figure that should be factored out) should be determined by drawing a straight line between the two ends of the dip, and then assessing the depth of the dip in terms of how far it fell below that line (at various points along the length of the dip). Assessing the overall grade in the area in that manner, Mr. Malone calculated that the overall downslope from west to east was just under -1.0% (-.94 or -.95%). Thus, he disagreed with the approach of Mr. Bigelow of using a downgrade of -0.5%. He also disagreed with Mr. Gilchrist’s approach of using a slope of -0.8% based on a projection of the original unsettled roadway.

[398] Mr. Malone understood that Mr. Bigelow’s road grade of -0.5% (from west to east) was based on points at opposite ends a longer distance (the 280 metres of his whole survey) of points far outside the dip. By contrast, Mr. Malone’s road grade was based on using the two ends of the dip. Mr. Malone testified (as did Mr. Bigelow) that within the 280 metres that Mr. Bigelow used to calculate the grade, the grade likely varied within that distance. Thus, it was possible to have an overall grade of -0.5% over 280 metres, but to have a grade of closer to -1.0% in the area of the dip.

[399] Using the general grade in the area of just under -1.0%, Mr. Malone found that the maximum depth of the dip in the left tire track was 108 mm (approximately 11 cm), and the maximum depth in the right tire track was 104 mm (approximately 10.5 cm). I note that the calculations that result from Mr. Malone’s approach to the grade are the same as the corrected calculations in diagrams 8 and 9 of Exhibit #6 (filed during the evidence of Mr. Bigelow). These maximum depths of approximately 11 cm were the bottom of the dip within its total length of 27.5 metres.

[400] In addition, Mr. Malone did calculations to look at the sharpness of the change of individual segments within the dip. He compared these calculations to the sharpness, measured as a percentage slope of the 50 mm over 3 metres standard. If a depression in the road is 50 mm over 3 metres, then it is a downward slope of -3.33% (if conceptualized as down for 1.5 metres distance and back up for 1.5 metres distance). In his calculations looking at individual segments of the dip on RR 39, the most severe slope he found was -2.41% (between points 42 and 43 in the left tire track), that is, a less steep slope than 50 mm over 3 metres. The most severe slope within the right tire track was -2.22% (between points 34 and 33). None of the slopes he found using this method met or exceed -3.33% (which corresponds to the 50 mm over 3 metres standard).

[401] Mr. Malone testified about the application of the provincial standard (MQS-102) and the Durham Region standard that both reference depressions of 50 mm over distances of 3 metres. Mr. Malone testified that the 50 mm over 3 metres standard can be applied to dips longer than 3 metres. But is must be done so recognizing that the standard is designed to assess the sharpness of a dip or depression. That is, the 3 metre length criteria in the standard is relevant in order to assess the sharpness of the decline in elevation. A change in elevation will be sufficiently abrupt to breach the standard if is 50 mm or more over a distance of 3 metres or less. If the change in elevation is 50 mm, but takes place over a longer distance than 3 metres, then it may not meet the criteria. If a depression is longer than 3 metres, and deeper than 50 mm, it may meet the criteria to breach the standards (depending on the depth and length). Or if the depression is uneven, and goes up and down, individual segments of the depression may breach the standard.

[402] Mr. Malone was also of the view that the 50 mm over 3 metres provincial and regional standards could be read together with the portions of the OTM about road distortions and when “bump” and “bump ahead” signs are required, which focus on criteria based on what happens if a depression is sufficiently sharp to meet the three criteria for those signs.

[403] He noted that the dip at issue in this case was over a much longer distance than 3 metres, in the range of 27 metres long. When he reviewed the elevation changes found in the Bigelow survey (accounting for the downgrade west to east of just under -1.0%), he did not find a change in depth within the dip of 50 mm over a distance of 3 metres. In his opinion the depression did not breach either the provincial standard or the Durham Region standard for depressions. In coming to this conclusion he considered both the depth and length of the dip as a whole, and also the change in depth of smaller segments within the dip.

[404] In Mr. Malone’s view, based on the reports of Mr. Bigelow and Mr. Gilchrist that he reviewed, their conclusions that the dip in RR 39 breached the 50 mm over 3 metres standard failed to consider the factor of the relative sharpness (or abruptness) or lack of sharpness of the elevation change in the dip. Mr. Malone’s opinion was that the elevation changes in the dip were not sufficiently sharp to breach the 50 mm over 3 metre standard because they were spread over such a long distance.

[405] Mr. Malone agreed in cross-examination that the dip in RR 39 was a “distortion” in the road, in the sense that it was a change from the way the pavement surface was when it was originally installed.

[406] In relation to signage, Mr. Malone testified that the OTM is the prevailing guidance in Ontario for installation of signs, signals, and markings on roads. Book 6 of the OTM addressed warning signs. He referenced the portions of Book 6 in relation to “bump” and “bump ahead” signs extracted above at paras. 288-289.

[407] In considering the guidance in Book 6 of the OTM, Mr. Malone noted that the three criteria for installing “bump” and “bump ahead” signs are if the bump or depression is sufficient to cause hazardous discomfort to passengers, shifting of cargo, or to deflect a vehicle from its intended course when traversed at the posted speed limit.

[408] He noted that “sharp change” is not defined in that portion of the OTM, but that it should be understood in relation to the three listed criteria. That is, the change has to be sufficiently abrupt to cause one of the three criteria. A gradual depression will not cause any of the three criteria. Thus, Mr. Malone testified that in considering whether a change in the profile of a roadway is a “sharp change”, one has to consider not only the depth of the change, but the distance over which the change happens.

[409] The term “hazardous discomfort” is also not defined in that portion of Book 6. Mr. Malone testified that in his opinion it is beyond just “discomfort”, and more than just feeling something as you drive over the bump or depression. The way he applies the criteria of “hazardous discomfort”, and teaches it when he teaches, is as being something that can create physical injury or has the potential to create harm, such as causing a person in the vehicle to hit their head.

[410] Mr. Malone testified that one of the objects of the OTM is to encourage uniformity and consistency in how road signs, signals, and markings are applied. For this reason, warning signs should be used in a consistent manner, so that drivers are given consistent guidance as they traverse the provincial network of roads. Warning signs should not be overused, because doing so breeds disrespect for signs on the part of motorists. If this happens, it causes a loss of the ability of a signs to change the behaviour of drivers. In other words, overuse of signs diminishes the value of signs when they are really needed. I note that Mr. Malone’s evidence in this regard is consistent with the introduction to Book 6 of the OTM, which I have extracted above at paras. 290-294.

[411] Mr. Malone agreed in cross-examination that no manual can cover all contingencies, and that to some extent road authorities must exercise their judgment.

[412] Because of the need for consistency, Mr. Malone testified that it is a fundamental principle of the OTM that road signs are not to be used unless the conditions for a particular type of sign are met.

[413] Mr. Malone disagreed with the opinion expressed by Mr. Gilchrist that the OTM criteria for “bump” and “bump ahead” signs are unduly restrictive.

[414] In cross-examination, Mr. Malone agreed with the definitions of hazard in Book 1, Appendix C of the OTM, which include the following:

A hazard is any object, condition, or situation that tends to produce an accident when drivers fail to respond successfully. . .

Any location where the condition of the highway or its immediate environment needs to be interpreted as cause for extra caution or a cause to modify speed or path significantly should be considered as a highway condition hazard. [Emphasis in original.]

[415] He also agreed that drivers should be warned of hazards.

[416] Mr. Malone testified that the criteria for “bump” and “bump ahead” signs were not met by the dip in RR 39 in the eastbound lane as it existed in November 2004 (based on the Bigelow survey data taken in July 2005). In his opinion, the evidence supported that there was a depression which one could feel driving over at the speed limit it, but not to a sufficient degree to sufficient to meet the three criteria in Book 6 of the OTM for those signs.

[417] Mr. Malone agreed in cross-examination that a depression in a road might not be obvious to a driver at night, especially on an unlit road.

[418] Mr. Malone was asked in cross-examination about Mr. Gilchrist’s tests driving over the dip (as it existed in 2017) with the accelerometer. Mr. Malone testified that as he understood the results that Mr. Gilchrist reported using the accelerometer, the forces of driving through the dip would not be sufficient to cause shifting cargo (one of the criteria for “bump” and “bump ahead” signs), because none of the results exceeded the force of gravity (i.e., none of the results would cause cargo to become unweighted).

[419] In addition, he noted that Mr. Macklem of the Durham Region Road Maintenance Department indicated that the region had not received any complaints about the location. He noted that there was no history of collisions at this location. He noted the test drives done by the police as part of their investigation at various speeds. Those test drives showed no loss of control driving over the dip. At 120 km/h, the police noted they were “somewhat uncomfortable”, but as he read the police notes, this was because they were concerned about travelling at higher speeds with the road not closed and driveways nearby.

[420] In relation to the location of the hydro guide pole, Mr. Malone testified that the roadside safety manual of the MTO addresses issues of objects adjacent to toads that may constitute hazards. In relation to new roads, it can be used to avoid roadside hazards as a matter of design. In relation to existing roads, it does not require that every road with a roadside hazard be remediated. Rather, it provides guidance as to how to assess and possibly address issues in existing roads.

[421] Mr. Malone’s opinion was that the roadside safety manual does not require that all objects in clear zones of roads must be removed or fenced-off with a barrier or guard rail. Rather, it provides guidelines to assess potential hazards on the roadside, and make decisions about possible improvements.

[422] Mr. Malone testified that in deciding whether to remove or (for example) fence-off an object in the clear zone of a roadside, a road authority should consider factors such as: where the object is located, the nature of the object, what is the potential for the object to pose a risk to drivers, and what is the collision history in the area of the object. These factors allow a road authority to assess the risk of a particular object being hit be a vehicle. If there is no collision history in the area where an object is located, it reduces the priority of that object for remediation. In the context of limited resources, road authorities must assign priority to repair or remediation work.

[423] In this location on RR 39, there was a single pole on the south side of the road (near the eastbound lane), and a row of poles on the north side. The pole was 3 metres from the travelled portion of the road. The clear zone for this portion of RR 39 was 4 metres, so the pole was located in the clear zone. There was no collision history in the area. The pole posed some risk, but in his view it was not an unusual risk. Mr. Malone was of the opinion that the authorities should assess whether to do anything about the pole when they were doing other work on the road.

[424] Mr. Malone was cross-examined about whether he was aware of Durham Region roads staff taking any steps to measure the dip (i.e., apart from Mr. Watson and Mr. Macklem driving over it, which did not involve measurement). He said he was not aware of any information that anyone from the Durham road maintenance department measured the dip. He further agreed that the Engineering and Traffic Departments of Durham Region would have had the capacity to measure the dip. He also agreed that Miller Paving (which he agreed is a large and sophisticated company, and which did the November 2005 repair of the dip) would have been capable of measuring the dip.

[425] I accept most of Mr. Malone’s evidence, and generally find his evidence to be more persuasive than that of Mr. Gilchrist and Mr. Bigelow (although as noted, I accept that Mr. Bigelow’s total station survey of the dip was accurately conducted). The one area where I have reservations about Mr. Malone’s evidence is the utility of assessing 3 metre segments within the dip using the 50 mm over 3 metres standard. I address this issue further below in my conclusions on whether the road was in a state of non-repair.

[426] I accept Mr. Malone’s opinion that the grade that should be used to remove the effect of the downslope in the area when assessing the depth of the dip is just under -1.0% (-0.94%). I will return to this point in my conclusion on the issue of liability.

[427] I accept Mr. Malone’s evidence on this point because I find that it more accurately reflects the actual grade near the dip, and because it more accurately reflects what the Harris vehicle would actually have experienced (i.e., the level of road it would have been driving on) as it approached the dip.

[428] As Mr. Malone testified, which I accept, within the 280 metres over which Mr. Bigelow got his lower -0.5% grade figure, there could be variations in the grade. Mr. Bigelow agreed with this point as well in cross-examination. Thus, I find that Mr. Malone’s grade of just under -1.0% based on considering the elevation at either end of the dip is more representative of the grade near the dip, than is the average grade taken over a much bigger area by Mr. Bigelow. I find that assessing the depth of the dip by doing the calculations to remove a slightly less than -1.0% downslope in the area provides a more representative assessment of the actual depth of the dip.

[429] I further find that Mr. Malone’s approach is more probative of the effect that the dip would actually have had on the Harris vehicle as it approached the dip, since it is based on the actual height of the surface of the road at both the start of the dip, and at the end of the dip (driving eastbound).

[430] For these reasons, I accept Mr. Malone’s evidence that the maximum depth of the dip was 105-108 mm (just under 11 cm), over a distance of 27.5 metres.

[431] I also accept Mr. Malone’s opinion that the dip did not breach the 50 mm over 3 metre standard (I will discuss more in my ultimate conclusions on whether the road was in a state of non-repair the relevance of the “50 over 3” standard to the issue of liability). I have some reservations about the portion of his analysis that looked at the dip in 3 metre increments. I worry that this approach risks losing the forest for the trees when one is considering a depression much longer than 3 metres. But I accept his overall conclusion that given the 27.5 metre length of the dip, and its 11 cm depth at its deepest point, it did not breach the 50 mm over 3 metre provincial or Durham standard.

[432] I accept Mr. Malone’s evidence that the nature of the dip on RR 39 did not meet the OTM criteria to require “bump” and “bump ahead” signs. I prefer Mr. Malone’s evidence to that of Mr. Bigelow and Mr. Gilchrist on this issue. As I noted above, Mr. Bigelow’s evidence on this issue was conclusory and made no reference to the applicable guidance in the OTM. As noted above, I find that Mr. Gilchrist’s evidence suffers from the flaw of being based on the notion that more signs are always better, and always erring on the side of caution in sign installation. But this is contrary to the guidance