Miles v. Corporation of the County of Elgin et al., 2020 ONSC 6014

COURT FILE NO.: 1311/17

DATE: 2020/10/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TANYA MILES[^1] and SHANNON MILES

Plaintiffs

– and –

CORPORATION OF THE COUNTY OF ELGIN and WALMSLEY BROS. LIMITED

Defendants

Ryan Steiner and Madelaine Hoffard, for the Plaintiffs

Kieran C. Dickson, for the Defendants

HEARD: March 2-6, 2020

JUSTICE I.F. Leach

Overview

[1] By way of overview, broadly outlining the circumstances giving rise to this dispute:

a. This action stems from an incident alleged to have occurred on June 29, 2015, when the plaintiffs were operating their two motorcycles in a southbound direction on a roadway maintained by the defendant Corporation of the County of Elgin, hereinafter referred to as “Elgin County” or simply “the county”.

b. At the time, the roadway in question was being serviced, through the application of new asphalt, by the defendant Walmsley Bros. Limited, (hereinafter referred to as “Walmsley Brothers”), which had been hired by Elgin County to perform that work.

c. The plaintiffs allege that:

i. when travelling in their southbound lane on the relevant roadway, the plaintiffs approached a construction zone where Walmsley Brothers progressively was applying new asphalt in that lane;

ii. before reaching the portion of their southbound lane in which the new asphalt had been and was being applied, (which prevented them from proceeding further in that lane in any event), the plaintiffs were directed by a construction worker to stop and wait for a time while traffic in the oncoming northbound lane was allowed to proceed past the construction area;

iii. after traffic in the oncoming northbound lane had been halted for a time, further south along the road, the plaintiffs then were directed, by the construction worker, to proceed into the normally northbound traffic lane, where fresh asphalt had yet to be applied; and

iv. after travelling a distance in the normally northbound traffic lane, past freshly applied asphalt in their original southbound lane of travel, the plaintiffs then were directed, by another construction worker, to proceed back into their original southbound lane of travel, onto an area where fresh asphalt had been applied.

d. It is said that an accident, resulting in injuries to the plaintiff Tanya MacLean, occurred when she attempted, in accordance with directions received from that second construction worker, to proceed on her motorcycle from the normally northbound traffic lane and its “old” pavement up and over the lip of freshly applied asphalt in the plaintiffs’ original southbound lane of travel, which was at a higher elevation because of the fresh asphalt application. Those injuries in turn were said to have caused pecuniary and non-pecuniary damages to Ms MacLean, and further damages sustained by the plaintiff Shannon Miles, (Ms MacLean’s husband at the time of the accident), pursuant to the Family Law Act, R.S.O. 1990, c.F.3.

[2] Following service of the plaintiffs’ statement of claim, Elgin County initially proceeded independently with the filing of a defence pleading; i.e., delivery of a statement of defence and crossclaim that denied the plaintiff’s claims and advanced a crossclaim against the defendant Walmsley Brothers. However, the two defendants subsequently agreed to proceed by way of a joint defence; i.e., with Elgin County and Walmsley Brothers jointly filing a statement of defence that superseded the original defence pleading filed by Elgin County alone.

[3] The two defendants also jointly filed a jury notice. However, during the judicial pretrial conference for this matter, it was agreed by all concerned that the matter should proceed by way of a judge alone trial. On consent, a formal order accordingly was made, at the outset of the trial before me, striking the jury notice.

[4] At the outset of trial, I also was advised that the parties commendably had reached an agreement on an appropriate assessment of damages sustained by the plaintiffs; i.e., $325,000.00. That amount was said to reflect appropriate adjustments for the plaintiffs’ receipt of collateral benefits, and to include a component of prejudgment interest. It nevertheless did not include or reflect any costs or disbursements that might be awarded.[^2]

[5] The trial before me accordingly was focused entirely on issues relating to liability. In that regard:

a. The parties generally agreed that such liability issues would turn on my factual findings and application of the Municipal Act, 2001, S.O. 2001, c.25, (vis-à-vis Elgin County), the Occupiers’ Liability Act, R.S.O. 1990, c.O.2, (vis-à-vis Walmsley Brothers), and/or the Negligence Act, R.S.O. 1990, c.N.1.

b. The plaintiffs allege that the defendants breached duties owed in that regard, and/or were otherwise negligent, in turn causing the damages sustained by the plaintiffs.

c. The defendants deny any breach of duties that may have been owed to the plaintiffs, and say that any damages or loss sustained by the plaintiffs were caused by the negligence of Tanya MacLean.

[6] Before considering such arguments, I turn next to more detailed consideration of the evidence and underlying facts.

Evidence – General comments

[7] During the course of the trial, I received oral testimony from the following witnesses:

a. Ms MacLean, the principal and first named plaintiff;

b. Hailee Stone, a niece of Ms MacLean, and a passenger on Ms MacLean’s motorcycle at the time of the underlying accident;

c. Mr Miles, the second named plaintiff;

d. Gordon Inglis, a witness called by the plaintiffs, who was qualified and accepted as an expert permitted to provide opinion evidence in relation to motorcycle mechanics and motorcycle operation;[^3]

e. Glenn Walmsley, the president of Walmsley Brothers, who was also acting as road foreman in relation to the relevant roadwork being carried out by Walmsley Brothers at the time of the underlying accident;

f. Chris Walmsley, who is a grandson of a founder of Walmsley Brothers, the son of Glenn Walmsley, an employee of Walmsley Brothers, and one of the individuals acting as a “flagger”, (i.e., a type of construction worker responsible for controlling the flow of traffic in and around an active worksite on public roads), in relation to the relevant roadwork being carried out by Walmsley Brothers at the time of the underlying accident;

g. Ian Albert, another employee of Walmsley Brothers, and another individual who was acting as a flagger in relation to the relevant roadwork being carried out by Walmsley Brothers at the time of the underlying accident; and

h. Peter Dutchak, the deputy director of engineering for Elgin County.

[8] All of those witnesses were presented for examination, cross-examination and re-examination.

[9] I also was presented with numerous exhibits, including the following:

a. a printed extract from the “The Official Ministry of Transportation (MTO) Motorcycle Handbook” dealing with “Driving on Dangerous Surfaces”, including text and a corresponding diagram instructing motorcycle operators on how to cross railroad tracks, streetcar tracks and other uneven surfaces, (such as pavement seams or gravel shoulders), running parallel to a motorcycle’s path of travel;

b. a document brief of the plaintiffs, which includes:

i. numerous photographs of the accident scene and Ms MacLean’s damaged motorcycle taken by Mr Miles on the day of the accident;

ii. short video segments, recorded by Mr Miles, briefly showing the accident location on the day of the accident, and the condition of Ms MacLean’s damaged motorcycle a few days after the accident;

iii. numerous photographs of the relevant section of roadway, (including the accident scene), and of Ms MacLean’s damaged motorcycle, taken by Clayton Watters, (the director of engineering for Elgin County), on the day of the accident; and

iv. a print out of weather data compiled by the Government of Canada in relation to the area around London, Ontario, on the day of the accident;[^4]

c. a copy of a “Request for Tender” issued by Elgin County on January 29, 2015, in relation to “Hot Mix Asphalt Paving Contract No. 6220-15A”, which includes:

i. references to work to be done on a 1.3km segment of “Richmond Road”, “between Calton and John Wise Line”, in respect of which the contractor awarded the work would be asked to “Supply and Place HL-4 Hot Mix Asphalt Paving (50mm)” [original underlining and round brackets] and “Mill End Joints”; and

ii. stipulations regarding “maintenance of traffic, access and sign requirements”;

d. a copy of a contract, (“Contract No. 6220-15A”), entered into between Elgin County and Walmsley Brothers on March 17, 2018; and

e. a copy of a general “Traffic Control Checklist and Protection Plan”, (without completion of contemplated indications for date, time and location), prepared by Walmsley Brothers.[^5]

[10] My description of the evidence presented at trial, and references to that evidence, undoubtedly will not expressly address all aspects of the evidence admitted for my consideration. However, all of that evidence certainly was considered and examined closely.

Evidence – General background findings of fact

[11] As one would expect in a trial of this nature, there were a number of important areas of disagreement and conflicting evidence, and I will return to those later in these reasons.

[12] Before doing so, I nevertheless think it helpful to provide an outline of numerous underlying events, and corresponding factual findings I have made, in relation to matters that seemed agreed, not the subject of conflicting evidence, and/or not seriously disputed.

[13] Those findings of fact include the following:

a. Elgin County has jurisdiction over approximately 700 kilometers of roadway. Part of its responsibility in that regard, (overseen by its engineering department), is to ensure that roads within the county are maintained to provincial standards, directly and/or by monitoring the activities of local municipal partners. That includes responsibility for road expansions and improvements, and all associated construction activities.

b. One of the areas of roadway within the county’s maintenance jurisdiction is “Richmond Road”, (otherwise known as “County Road number 43”), which runs in a general north-south direction through the hamlet of Richmond. It is formally described as a “two-lane rural collector” road, reflecting its roadside environment and operational classification.

c. Each year, Elgin County makes arrangements for the asphalt paving of approximately 30-50km of roadway within its jurisdiction. It does so by inviting, through the county’s procurement policy, competitive bids from qualified asphalt paving contractors in response to specification tender packages. At the end of each bidding period, tendered bids are opened and the relevant contract is awarded to the qualified paving contractor submitting the lowest price. With the exception of one year, Walmsley Brothers was the successful bidding contractor in relation to all of the county’s paving projects over the 25-year period prior to trial. It also routinely did paving work for Elgin County before that period.

d. Walmsley Brothers has been operating an asphalt paving business since 1956, and its daily operations now focus mostly on the paving of county and township roads; i.e., as opposed to the paving of larger highways, which it used to do occasionally. It currently employs approximately 35 people from year to year, and its paving operations may be described generally as follows:

i. It makes its own asphalt at a plant located in Putnam, Ontario; i.e., a village approximately 12 miles east of the city of London. At the plant, Walmsley Brothers mixes the components of asphalt; i.e., sand, crushed stone and a liquid asphalt cement or tar. In particular, the sand and stone are heated in a dryer to a temperature of approximately 325 degrees Fahrenheit before being mixed with the liquid tar, which is kept at a temperature between 300-325 degrees Fahrenheit.

ii. There are different grades of asphalt, reflecting variations in components, (such as the size of the crushed stone employed), and which are used for different purposes. For example, asphalt forming the “base” of a paved road applied directly over underlying gravel would use courser stone, and has an “HL8” designation. Asphalt used for paving the “top coat” of roads is mixed with a different type of stone, (e.g., stone chips varying from ¼ inches to 5/8 inches in size), and has designations such as “HL3” and “HL4”. The “HL” stands for “Hot Laid”.

iii. As most of the work done by Walmsley Brothers involves the application of asphalt overlaid on existing roads, the courser stone designations do not frequently come into play from its perspective. For example, the paving work done by Walmsley Brothers for Elgin County usually involves the application of “H4” asphalt.

iv. Once mixed, the relevant liquid asphalt is loaded into a dump truck, at a probable temperature of approximately 325 to 315 degrees Fahrenheit, and transported to the particular road worksite. By the time the asphalt reaches the road worksite, where it is initially dumped into the hopper of a “paver” machine, it usually will have cooled to a temperature of 305 to 300 degrees Fahrenheit.

v. The paving machine, including the “screed” located to its rear, is a complex unit with numerous computerized components that carry out the initial application of liquid asphalt onto the road at a certain desired and programmed thickness or depth. At the risk of over-simplification:

1. An augur and conveyor systems moves liquid asphalt from the paver’s hopper back to the “screed”.

2. The “screed” flattens the liquid asphalt out, and lays it on the road to a programmed thickness/depth specification. At that point, (i.e., when the liquid asphalt is coming out the back of the screed), the asphalt will have cooled to a temperature of approximately 285 to 280 degrees Fahrenheit.[^6] The screed also has vibrators that perform an initial compaction of the asphalt.

3. The alignment of the paver’s movement along the road is monitored and controlled by a piece of equipment called a “ski”, which keeps the side of the paver running alongside the centre line of the road.

4. Although the paver stops occasionally for short periods lasting approximately four to five minutes, (while dump trucks periodically are hooked up to put more asphalt into its hopper), it otherwise keeps moving forward at the rate of 40 to 70 feet per minute, and usually at the slower pace of 40 feet per minute.

5. Once the paver and screed have performed and passed over the initial application of asphalt, that asphalt has been achieved a compaction of approximately 86 percent.

vi. The paving machine is then followed by a succession of three rollers, the cumulative effect of which generally will give the newly applied asphalt a compaction of approximately 93 to 96 percent, while simultaneously compressing the newly applied asphalt from its initial thickness, when it comes out of the screed, to the desired final/ultimate thickness of the newly applied asphalt.[^7] The remaining percentage of voids within the asphalt, (i.e., short of total compaction), is intentionally left to allow for some degree of expansion and contraction of the asphalt with changing temperatures, so that it does not disintegrate over time.

vii. The first roller to work on the newly applied asphalt, after passage of the paver and its screed, is known as a “breakdown roller”; i.e., a double drum steel roller, weighing approximately 10-14 tons, that is approximately 52 inches wide. In a standard road lane approximately 12 feet wide, the breakdown roller completes its rolling of the newly applied asphalt by making three parallel and slightly overlapping passes, (i.e., typically making the first pass next to the road’s centre line, before completing a pass down the centre of the lane, followed by a pass next to the lane’s road shoulder), such that all areas of the newly laid asphalt are traversed by the breakdown roller just once. The edges of the breakdown roller usually extend slightly, (e.g., approximately three inches), over the edges of the newly applied asphalt at each side. The operator of the breakdown roller also tries to stay very close to the paver at all times; i.e., within 100 feet of the paver and its screed. The work of the breakdown roller, when completed, brings the newly aid asphalt to a state of approximately 90 percent compaction, and lowers the elevation of the newly aid asphalt by approximately one quarter of an inch across its surface, which then has a somewhat “sandy texture”. By that point, the temperature of the newly laid asphalt has dropped to a temperature of approximately 260 degrees Fahrenheit.

viii. The second roller to work on the new asphalt, after passage of the paver and breakdown roller, is a known as a “rubber tire roller”.[^8] It is the heaviest of the three rollers, weighing 30 tons. It has wide rubber tires, (three on the front and four on the back), with no tread on them, that are positioned in a somewhat staggered configuration. Their rolling surfaces have a combined width of approximately eight feet, or perhaps a couple of inches more than that. The rubber tire roller will pass continuously back and forth across the newly laid asphalt, in what Glenn Walmsley described as a “soft part of the operation [that] actually kneads the asphalt together just like dough”, until it has “almost a shine to it”. At that point, the newly laid asphalt essentially has been compacted as much as it is going to be during the paving operation, (again, to a density of 93 to 96 percent), and its temperature has dropped to a probable range of 190 to 180 degrees Fahrenheit. The surface area of the newly laid asphalt nevertheless still will have marks or “ripples” on it, left by the rubber tire roller’s movements; marks that are addressed by the next and final stage of the rolling operation.

ix. The third and final roller to work on the new asphalt, after passage of the paver, breakdown roller and rubber tire roller, is known as the “finishing roller”. It has characteristics similar to the “breakdown roller”, (i.e., a double drum steel roller weighing approximately 10-14 tons, with a rolling width of approximately 52 inches), but is labelled differently because of its function. Again, that function is to address and effectively remove, by a further flattening of the new asphalt surface, the marks or “ripples” left on the new asphalt by the back and forth movements of the rubber tire roller. After the rubber tire roller has completed its work, the operator of the following finishing roller will deliberately wait, for periods “upwards of almost an hour”, for the newly laid asphalt to cool and harden further, to reduce the likelihood of the finishing roller leaving its own marks on the asphalt as it completes its work.[^9] To assist in the determination of when the finishing roller should embark on its work, with such considerations in mind, the operator of the finishing roller carries a piece of equipment known as a “heat gun”; i.e., a device he can use to “shoot the temperature all the way across the road” to ascertain the current temperature of the newly laid asphalt ahead. The finishing roller cannot embark on its work too soon, (i.e., while the temperature is so hot that it is still malleable to the point where the finishing roller will leave its own marks), but also cannot delay its work too long, past the point where the new asphalt has cooled and hardened to a state where the finishing roller is incapable of easily removing marks left by the rubber tire roller. Within the Walmsley Brothers paving operation, it is standard practice for operators of the finishing roller to attempt completion of their work when the new asphalt has cooled to a range between 180 and 160 degrees Fahrenheit and, in any event, before the asphalt cools to a temperature of 145 degrees Fahrenheit. Within that temperature range, the finishing roller passes over the new asphalt in a manner similar to that of the breakdown roller; i.e., three parallel passes along the length of the relevant portion of newly laid asphalt, with its rollers hanging over the edge of the newly laid asphalt by approximately three inches.

x. When all three rollers following the paver have completed their work, the initial depth/thickness of the newly laid asphalt, as it comes out of the paver’s screed, will have been reduced to the depth/thickness contemplated and required by the relevant paving contract.[^10]

e. In relation to the traffic control practices routinely employed by Walmsley Brothers in relation to its paving operations:

i. With very rare exceptions, (e.g., situations combining paving operations with construction work involving the installation of public works running across but under a particular road),[^11] Walmsley Brother generally does not close “two lane roads” completely to traffic while it carries out its paving operations. It instead closes and paves only one lane of the road at a time, using the remaining open lane to allow passage of traffic in alternating periods of “one way” traffic flow, regulated by two flaggers, through that open lane.

ii. The method of such traffic direction routinely employed by Walmsley Brothers does not position the two flaggers at static locations beyond each end of the area where new asphalt is to be applied. Both flaggers instead reposition themselves progressively, (although not in tandem or otherwise in the same manner), as the paving work is being done. In particular:

1. One flagger, (the “lead flagger”), initially is positioned approximately 400 feet ahead of the paver, and then continuously tries to maintain that constant distance ahead of the paver as it moves forward along the road, laying asphalt behind it.

2. The other flagger, (the “rear flagger”), initially is positioned approximately 150-200 feet behind the point where the paver begins to apply new asphalt, before also moving along the roadway, approximately 150-200 feet to the rear of where the finishing roller has completed its work. Unlike the lead flagger, (whose forward progress along the roadway generally is continuous, matching the generally continuous forward movement of the paver), the rear flagger moves forward in stages; i.e., to positions temporarily fixed to the rear of the successive areas along the roadway where the finishing roller is doing its work, not in a continuous movement forward along the roadway, but in a manner requiring a number of back and forth passes along portions of the roadway. As the paving of a portion of the roadway may take approximately 3½ to 4 hours to complete, (i.e., allowing time for the paver and three successive rollers to finish their work in a given area), the rear flagger effectively may remain in the same initial position, (i.e., 150-200 feet to the rear of where asphalt initially is applied), for that time, before moving forward along the road. As Glenn Walmsley put it, the flagger practice adopted by Walmsley brothers is such that “the rear flagger is always kind of at the mercy of what the finishing roller has done, just to where he stands”.

iii. As far as directing traffic onto and over freshly applied asphalt is concerned, Walmsley Brothers and its flaggers essentially operate on a general premise that once the finishing roller has completed its work, the freshly applied asphalt is capable of sustaining the passage of traffic onto and over it without doing damage to the new asphalt or causing other problems, including any problems encountered by motorists transitioning onto the new asphalt.[^12] While the rear flagger accordingly will maintain a minimum distance of approximately 150 feet behind the portion of newly applied asphalt being worked on by the finishing roller, (i.e., to allow that finishing roller room to travel and manoeuvre beyond that portion, to line up its passes over that portion), the rear flagger otherwise generally will move forward progressively in stages behind the ongoing paving operation to points where oncoming traffic, driving past the paver and rollers, is redirected by the rear flagger into its original traffic lane, onto the newly applied asphalt. In that regard:

1. Particular incremental decisions about when the rear flagger should move forward with the paving operation, and precisely where the rear flagger should take up a new position, generally are left to the individual judgment of the particular person acting as rear flagger.

2. The operator of the finishing roller has some input in that regard, insofar as that operator will give the rear flagger “heck” if the rear flagger takes up a position too close to the area of new asphalt being worked on by the finishing roller, leaving insufficient room behind that aspect of the paving operation, and traffic stopped or passing around the paving operation, for the finishing roller to perform its work; i.e., including its necessary approaches to the area of new asphalt on which it is working. Occasionally, the operator of the finishing roller also will give the rear flagger a specific warning as to the existence of any “soft spot”, “ hot spot”, “thick spot” or “anything like that”, and an indication to “stay back” accordingly.

3. Apart from those particular concerns, however, the rear flagger generally makes decisions about when and where to move forward, and whether it is safe for traffic to “make the move over” into the lane where new asphalt has been laid, based on whether the finishing roller has moved far enough forward; i.e., consistent with the general belief of Walmsley Brothers that new asphalt, in respect of which the finishing roller has completed its work, is sufficiently cooled and hardened/set that it is ready to receive traffic safely and without the prospect of any damage to the completed work. Without limiting the generality of the foregoing:

a. There is no temperature reading of the finished new asphalt taken by the rear flagger before that flagger directs traffic onto such finished new asphalt.

b. Nor is there any fixed period of time rear flaggers allow to pass, after completion of the finishing roller’s work, before directing traffic onto new asphalt.

c. While Walmsley Brothers likes to minimize the distance between the lead flagger and rear flagger, (for the reasons noted below), and therefore similarly minimize the distance between the paver and the rear flagger, the distance between the paver and the rear flagger is not a guiding consideration. If the finishing roller takes longer to complete its work on a particular area of new asphalt, delaying forward progress of the rear flagger as the paver continues to move forward, the distance between the paver and the rear flagger will increase accordingly.

iv. There apparently is no government recommendation or approval relating to that system of progressive rear flagger movement adopted and followed by Walmsley Brothers.[^13] However, Walmsley Brothers says it has developed and adhered to that system, and uses it on almost every day on every one of its jobs,[^14] for a number of reasons that include the following:

1. It enhances safety by facilitating, where possible, the preservation of clear sight lines between the lead and rear flaggers, in turn facilitating their co-ordination of one-way traffic flow around and past the ongoing paving operation.[^15]

2. It enhances safety by reducing the possibility of traffic entering the roadway from lateral access points (such as driveways) between the lead and rear flaggers, thereby potentially disrupting the one-way flow of traffic between the two flaggers.[^16]

3. It reduces public inconvenience and resulting upset,[^17] and enhances safety, by minimizing traffic delay, traffic lines ups, (along with the corresponding possibility of rear end collisions), and opportunities for vehicles to accelerate too quickly between the flaggers; something which drivers are said to do if the distance between the rear and lead flaggers becomes too extended.[^18]

f. On January 29, 2015, Elgin County solicited closed bids for contemplated road paving work to be done within the county in 2015; i.e., by issuing a document, noted above, entitled “REQUEST FOR TENDER – HOT MIX ASPHALT PAVING – Contract No. 6220-15A”. In that regard:

i. The indicated work to be done included a number of tasks to be performed in relation to a 1.3km stretch of “Richmond Road – between Calton and John Wise Line”; i.e., a stretch of Richmond Road to the north of the hamlet of Richmond. In particular, the contractor successfully bidding on the paving contract would be required, inter alia, to “Supply and Place HL-4 Hot Mix Asphalt Paving (50 mm)” in relation to that particular area of roadway.[^19] Elgin County apparently has always specified and required the use of HL4 asphalt in relation to the road resurfacing work performed by Walmsley Brothers.

ii. The tender also indicated that the contractor successfully bidding on the paving contract would have to follow certain “MAINTENANCE OF TRAFFIC, ACCESS AND SIGN REQUIREMENTS”. In particular:

1. The contractor was to provide, erect and maintain construction signs in accordance with provisions of the contract.

2. During execution of the projects covered by the contract, the contractor was “to maintain two (2) lanes of traffic at all times except for short durations, to facilitate the completion of specific items of work when one (1) lane will be permitted”.[^20]

3. The contractor was required to maintain “traffic control personnel” at “both ends of the one (1) lane section at all times to direct the movement of traffic, with strict compliance to the standards outlined in the ‘Ontario Traffic Manual – Book 7’ Temporary Conditions”.[^21] In that regard, the tender also specified that “Yield to Oncoming Traffic Signs” would not be permitted, and that “traffic control methods and equipment [would] be strictly enforced”.[^22]

g. On March 17, 2015, a warden of Elgin County sent a letter to Glenn Walmsley, indicating that Walmsley Brothers was the contractor selected to perform the work contemplated by two tendered contracts, including Contract No. 6220-15A.

h. The resulting formal contract between Elgin County and Walmsley brothers was signed by Glenn Walmsley on behalf of Walmsley Brothers on March 20, 2015, and by a representative of Elgin County on April 7, 2016. Amongst other things, the contract indicated that the contracted work was to begin no sooner than May 19, 2015, and to be completed no later than August 28, 2015. At some point, Elgin County also provided Walmsley Brothers with more detailed “ITEM DESCRIPTIONS” relating to the work to be done. One of them, (“ITEM #3), attached to a copy of the contract filed as Exhibit 4, read as follows:

ITEM #3 – Road 43 (Richmond Road) will be resurfaced between Calton and John Wise Line, being a total length of 1.3km. This section of road will be “Cold In-Place Recycled by others prior to resurfacing work, therefore the scheduling of this work shall coincide (sic) and follow recycling activities. Granular pre-shouldering is required prior to paving operations. The entire length will be resurfaced with 50mm of HL4 Hot Mix Asphalt, plus gravel shouldering.

i. On June 29, 2015, Walmsley Brothers began its paving operations for that day by completing paving work for Elgin County at a location two or three miles south of Richmond Road; i.e., at a location where paving work had been started the day before. Once that work was finished, Walmsley Brothers had “a couple of hours” left in its work day to carry out further paving work, and accordingly moved its operations on to the area of Richmond Road between Calton and John Wise Line. Walmsley Brothers commenced its paving work there at approximately 11am, starting in the southbound lane of traffic and heading north. In that regard:

i. It was not disputed by Walmsley Brothers that, during that particular construction project, it had immediate responsibility for the maintenance and condition of the section of Richmond Road being worked on.

ii. The relevant section of Richmond Road already had been the subject of the contemplated preparatory work done by another company. In particular, a minimum of three weeks before Walmsley Brothers attended at the site, that other company had performed what is known in the industry as a “cold in-place recycle”; i.e., a process whereby the existing asphalt surface of a road is lifted, milled/ground up into pieces less than an inch, mixed with a liquid emulsion or “asphalt cement” spray, and then put back into a paver for reapplication, (i.e., laying and compaction), on the same area of road. That process leaves a “mat” road surface which “looks like a bad paving job; i.e., with a rough texture that can be driven on, and is therefore capable of handling traffic, but which nevertheless has to be covered or “resurfaced” with a top coat of fresh asphalt before the arrival of winter weather.

iii. The written plan for traffic protection prepared by Walmsley Brothers, and used in relation to the paving work to be done on that relevant section of Richmond Road, was marked as Exhibit 5 in the trial. In that regard:

1. The document, entitled “TRAFFIC CONTROL CHECKLIST AND PROTECTION PLAN”, actually does not refer to Richmond Road. Although the form itself contemplates the insertion of a specific date, time and location of the relevant work to which the Plan supposedly applied, all of that information was left blank. This reflects a reality, (indicated by Glenn Walmsley in cross-examination), that Walmsley Brothers actually used the document as a “generic” plan in relation to many of its individual paving projects; i.e., simply keeping a copy of that unchanging document in Glenn Walmsley’s truck.[^23] Walmsley Brothers apparently has not felt it necessary to alter that generic written plan for any particular paving project.

2. The second page of the document includes a diagram, essentially taken from Book 7 of the Ontario Traffic Manual, depicting a road with two immediately adjacent lanes of travel, (i.e., one dedicated to traffic travelling in each direction), with indications of where signage is to be placed, and where flaggers are to stand, in relation to a work area depicted by a black rectangle in one of the two lanes of traffic.[^24]

3. The flaggers working on the Richmond Road paving project were not given or shown that particular Traffic Control Checklist and Protection Plan document. Nor were they given any other written instructions for the Richmond Road paving project.

4. Nor did Glenn Walmsley, (as the road foreman of the project), nor anyone else, provide those flaggers with any other form of specific, special or unusual directions in relation to the Richmond Road paving project.

5. Walmsley Brothers instead relied on the training the flaggers would have received from completion of a formal “TC7” course, (which was believed to have included reference to the diagram incorporated into the “generic” Traffic Control Checklist and Protection Plan used in relation to the project), and the individual experience and judgment of the flaggers when it came to determinations of where they should position themselves, and when they should move.

iv. On the day in question, Walmsley Brothers had three employees working as flaggers at its road construction sites; i.e., Chris Walmsley, Ian Albert and Jamie Henshaw, who would “spell each other off” in rotation. In particular, two of those flaggers were actively engaged in flagging at any given time, (i.e., with one acting as a lead flagger positioned ahead of the paver, and one acting as a rear flagger to the rear of the paver and rollers), while the third took a break between flagging shifts.

v. When Walmsley commenced its paving work in the southbound lane of Richmond Road that day, its rear flagger initially was positioned 150-200 feet to the south of the initial new paving “joint”, (i.e., the line across the southbound lane that marked the beginning of where new asphalt was being applied by Walmsley Brothers in the southbound lane of Richmond Road), to allow sufficient room for the rollers to move south beyond that joint, (a joint effectively marking the southern terminus of the new asphalt), when completing their work. The lead flagger initially was positioned approximately 400 to 500 feet north of that initial new paving joint, and thereafter generally maintained a distance approximately 400 feet ahead of the paver.

vi. When paving of Richmond Road began that day, southbound traffic, directed temporarily into the normally northbound traffic lane, initially was able drive around all of the new asphalt, before being directed back into the normal southbound lane. However, from the perspective of Walmsley Brothers, it was contemplated from the outset of the paving operation on Richmond Road that vehicles travelling southbound, through the construction area and past the oncoming paver and rollers, eventually would be directed to merge onto the new asphalt; i.e., once the rear flagger had moved further north along the road, past the point where application of the new asphalt had begun.

vii. Walmsley Brothers began laying new asphalt in the southbound lane of Richmond Road at approximately 11:00am, and then continued paving that southbound lane by moving progressively north, following its usual practices described above.

j. Shortly before 2:30pm that day, (i.e., June 29, 2015), Tanya MacLean, her niece Hailee Stone, and her husband Shannon Miles were travelling southbound on Richmond Road on two motorcycles, (one being operated by Ms Maclean with her niece Hailee as a passenger, and the other being operated by Mr Miles who was riding solo), and approached that Richmond Road worksite from the north. At the time:

i. Ms MacLean and Mr Miles had been a couple for approximately 11 years, and had been married for approximately eight years.

ii. Operation of motorcycles was an activity that the couple had taken up and pursued together. In particular:

1. In or about May of 2012, (i.e. approximately three years before the accident), Ms MacLean and Mr Miles completed the education, training and licencing required by the province of Ontario to operate motorcycles, working through that process at the same time.

2. That licensing process moves forward in stages, starting with a written “knowledge test” designed to confirm that those taking the test have educated themselves about the fundamentals of safe and proper motorcycle operation. To assist in that process, the Ministry of Transportation publishes an “Official … Motorcycle Handbook”, containing such information. As noted above, that official handbook includes a section providing information about “Driving on dangerous surfaces”. In that regard:

a. The section includes the following commentary: “When you want to cross railroad or streetcar tracks that run parallel to your path, cross at a distinct angle (no less than 45 degrees) to prevent getting stuck in the tracks or losing control. Do not try to edge across the tracks or brake heavily. Do the same thing when crossing uneven surfaces such as a pavement seams (sic) or a gravel shoulder.”

b. That commentary is accompanied by a diagram depicting the lane of a street or road, with railway or streetcar tracks running down the centre of the lane, and a motorcyclist in that lane transitioning from one side of the tracks to the other by taking a path that crosses the tracks at an angle of approximately 45 degrees.

c. That commentary and diagram represent the full and complete extent of all official written instruction and training provided to motorcyclists licenced by the province of Ontario.

d. Ms MacLean and Mr Miles both reviewed, studied and digested that particular commentary and diagram in the course of preparing for the “knowledge test” described above.

3. Ms MacLean and Mr Miles then wrote and passed the Ministry of Transportation’s “knowledge test” at the same time, resulting in their each being given an “M1” or “beginners” licence to operate motorcycles. That licence has a number of restrictions, including prohibitions on such licence holders operating motorcycles on highways, at night, or with a passenger.

4. Prior to attempting the next required test in the staged licencing process, (i.e., an “on-vehicle” test that had to be passed before receipt of an “M2” motorcycle licence), Ms MacLean and Mr Miles then both completed an intensive training course on motorcycle operation offered by the “Learning Curves” organization. In that regard:

a. The course began with an initial full day verbal discussion with very experienced motorcycle operators discussing motorcycle operation, and included instruction on what prudent motorcyclists should do in numerous different fact scenarios and weather conditions.

b. The second day of instruction involved detailed instruction regarding all the components of a motorcycle, and sitting/riding on the motorcycle without its engine being engaged as it was pushed by learning partners, as trainees were taken through various turns, “figure eights” and other scenarios to provide an understanding of how a motorcycle would feel and operate during such manoeuvres. Trainees then were provided with further instruction as they progressed through various scenarios and activities riding motorcycles with running engines engaged in first gear, (i.e., at slow speeds), before progressing to further motorcycle operation in second gear. Ms MacLean was entirely comfortable operating her motorcycle at such speeds.

c. On the third day of instruction, trainees progressed to further training and testing while they rode motorcycles with running engines and fully engaged gearing. They were taken through courses mimicking, (e.g., through the placement of numerous pylons), streets, roads and lane positions. They also were required to perform “time trials”, completing various courses in a manner that was neither too fast nor too slow.

d. While such courses involved going over a number of “speed bumps”, none of that further practical training involved any further instruction or exercises relating to crossing parallel elevation changes, such as a raised asphalt lip or unstable surface. In other words, after completion of the Learning Curves training course, the commentary and diagram from the official MTO motorcycle handbook, described above, still represented the only instruction received by Ms MacLean and Mr Miles in that regard.

5. Before the end of 2012, Ms MacLean and Mr Miles then both took and passed the “on-vehicle” or “road” test required to obtain an Ontario M2 motorcycle licence; a licence which permits its holders to operate motorcycles on public highways, and/or with a passenger.

6. The couple also purchased motorcycles of their own; i.e., with Ms MacLean initially acquiring a Suzuki Boulevard 650 vehicle,[^25] and Mr Miles acquiring a Suzuki Boulevard M50 vehicle.

7. The couple thereafter rode their motorcycles as often as possible, (weather and work schedules permitting), frequently together, sometimes with others, (e.g., with Ms MacLean joining a “ladies riding club” in 2012), and sometimes on their own. In that regard:

a. While they occasionally made “little” 20-30 minute rides “back and forth” to nearby destinations, their typical rides lasted at least 60-90 minutes, and sometimes “all the way up to a day of riding”. Their rides usually involved preferred travel on “back” or “country” roads between London and destinations such as Sarnia, various port towns along the north shore of Lake Erie, and other smaller communities.

b. Ms MacLean also road her motorcycle to and from work, whenever possible, and occasionally made longer motorcycle trips; e.g., while participating in charity fundraising rides co-ordinated by her ladies’ motorcycle riding club, repeatedly travelling to and from distant destination such as Wasaga Beach.

c. In October of 2014, Ms MacLean also purchased and started riding a second motorcycle, (i.e., a Triumph Speedmaster), which she acquired in Windsor and drove back to London on the 401 highway. The vehicle is a “cruiser type bike”, (i.e., sitting “a little higher up off the ground for a more comfortable ride”), with a 750cc engine, and has an elongated seat designed for two people, with the passenger portion of the seat being three to four inches higher than the driver’s portion of the seat. By June of 2015, Ms MacLean’s use of that second motorcycle had included at least a dozen longer trips, and she felt very comfortable with its use.

d. When riding their motorcycles together, Ms MacLean and Mr Miles routinely and consistently following a standard practice whereby Ms MacLean would travel in the “left tire track” of their lane, (i.e., the area of a lane the left side tires of cars and trucks normally would use), while Mr Miles would travel in the “right tire track” of their lane, (i.e., the area of the lane which the right side wheels of cars and trucks normally would use), with Mr Miles travelling approximately seven to eight feet behind Ms MacLean such that the two motorcycles were not being operated “side by side” but in a somewhat “staggered” fashion. They consistently rode in that configuration as a safety practice, in accordance with the training they had received, as travelling in that manner made the two riders more visible to other traffic.

8. By June 29, 2015, Ms MacLean had acquired a significant level of comfort and confidence by operating her two motorcycles over a cumulative distance of approximately 20,000 to 25,000 kilometers, during which:

a. she almost invariably encountered and safely traversed, without any struggle or difficulty, standard raised and rounded curb entrances to her right while stopping at homes, certain parking lots, coffee shops, gas stations and similar places of business;

b. she frequently operated her motorcycle with passengers, such as her cousin, nephew and nieces - including Hailee Stone, who often travelled with Ms MacLean on longer rides, (perhaps as many as 10, lasting one to two hours), to and from communities such as Delaware and Port Stanley; and

c. she had never lost control, fallen off her motorcycle, or been involved in any accidents.

iii. Earlier that day, (i.e., on June 29, 2015, Ms MacLean and Mr Miles had decided to travel on their motorcycles, with Hailee, from London to Port Burwell and back. In that regard:

1. The trip was intended to be another bonding experience with Hailee, who would ride as a passenger with her aunt.

2. Ms MacLean chose to operate her Triumph Speedmaster motorcycle that day.

3. Throughout her motorcycle riding that day, (which began at approximately 10am), Ms MacLean wore leather boots, blue jeans, an “armoured” jacket, (i.e., a jacket with protective layers on the inside, extra padding covering the elbows, shoulder pads, and a “back plate” covering and protecting the spinal area), and a helmet. Hailee and Mr Miles similarly were wearing jackets, gloves and helmets.

4. The route of travel selected by Ms MacLean and Mr Miles passed through Aylmer, (where the couple and Hailee stopped at approximately 12pm for a break, stretch and refreshments), before continuing further east, and then further south along County Road 43 or “Richmond Road”. Ms MacLean and Mr Miles were familiar with that particular road, as they found it to be a “terrific” road for motorcycle driving, (e.g., with hills, alternating straight sections and curves, but few potholes), and had travelled along it several times as one of their “favourites”.

iv. As Ms MacLean and Mr Miles approached the Walmsley Brothers worksite on Richmond Road, they were operating their two motorcycles in their standard safety configuration; i.e., with Ms MacLean and Hailee generally travelling approximately seven to eight feet ahead of Mr Miles, in the “left tire track” of their southbound lane, and with Mr Miles traveling to the rear in the “right tire track” of that southbound lane.

k. The accident giving rise to this litigation then occurred, in the disputed circumstances addressed below, as Ms MacLean, Hailee and Mr Stone attempted to proceed south on Richmond Road around and/or past the Walmsley Brothers work site, in accordance with the instructions of the operation’s flaggers. At the time of the accident, the relevant paving project on Richmond Road was still underway; i.e., with the paver and rollers still proceeding northbound in the southbound lane.

l. It was not disputed that the accident occurred to the west of a fenced cemetery on the east side of Richmond Road, in the area where photos taken after the accident showed an area of fresh asphalt that had been displaced into the northbound lane from the eastern edge or “lip” of fresh asphalt that ran approximately in line with the centre of the road.[^26]

m. Ms MacLean and Hailee were both injured in the accident; e.g., with Ms MacLean’s injuries including an upper proximal humerus fracture, in respect of which she began experiencing severe pain. They received immediate assistance from individuals present at the scene, (including Mr Miles and a woman who emerged from a nearby vehicle and identified herself as a trauma nurse), while waiting for the arrival of emergency response vehicles that eventually include an ambulance, a number of trucks from the fire department, and the police.

n. When those emergency response vehicles progressively arrived on scene, the ambulance drove, at least in part, up onto the new asphalt in the southbound lane, near the scene of the accident. Ms MacLean and Hailee then were transported to hospital together, in the ambulance.

o. Mr Miles remained in the vicinity for a short time thereafter, removing Ms MacLean’s motorcycle from the road, and obtaining permission from a local resident to store Ms MacLean’s damaged motorcycle temporarily in a nearby garage. He then returned to the accident scene briefly, where he took some photographs of the area where the accident had occurred.

p. Although Ms MacLean and Mr Miles enjoyed a harmonious marriage prior the accident, their relationship began to deteriorate as a result of Ms MacLean’s resulting physical incapacities and associated mental health issues. Eventually, Ms MacLean elected to terminate the relationship. She and Mr Miles no longer have any regular contact, although they occasionally exchange text messages and greetings at their common workplace.

[14] Those factual findings provide an underlying narrative framing the more sensitive areas of dispute between the parties.

Evidence – Additional and conflicting evidence

[15] Those sensitive areas of dispute include, in particular, the state of the relevant roadway at the time of the underlying accident, the appropriateness of how it was being managed/controlled, and the manner in which the accident happened.

[16] In that regard, the testimony provided by Ms MacLean included the following additional indications:

a. When she, Hailee and Mr Miles approached the worksite in the southbound lane, she saw large machinery operating ahead of her in that lane, and it was “very clear”, from the smells and activity, that the lane ahead of her was receiving “fresh new pavement”. The noise level in the area was very high; perhaps an “eight out of ten”, with 10 being the loudest. There was no machinery in the northbound lane, which retained its older paving but also had a significant amount of loose gravel in the area towards the east shoulder of the roadway

b. As their path forward was blocked, Ms MacLean says she, Hailee and Mr Miles “pulled up” to the worksite and stopped in the southbound lane, where a “first flag man” instructed them to wait, with no other stopped southbound traffic ahead of them in the southbound lane. After a three-to-five-minute wait, the same initially encountered flagger communicated, (in a verbal fashion),[^27] that they were free to go and were to proceed forward, (i.e., southbound), using what was normally the northbound lane of traffic.

c. Ms MacLean says that she, Hailee and Mr Miles then transitioned into the normally northbound lane of traffic on Richmond Road, with no other southbound traffic ahead of them, and with her motorcycle once again taking the lead and travelling towards the left side of the lane while Mr Miles followed a short distance behind, travelling towards the right side of the lane. However, Ms MacLean made what she described as a “very slight” adjustment to their usual configuration, insofar as she intentionally drove slightly to the right of the standard “left tire track”, (viewed from her perspective), to avoid the surplus of loose gravel near the east shoulder of the road on the “old” pavement.

d. As they proceeded south in the normally northbound lane of the road, in their standard but slightly adjusted “staggered” configuration, and with Ms MacLean taking the lead:

i. Ms MacLean was travelling in first gear, at a speed of approximately 15-20 kilometers, and had no difficulty controlling her motorcycle on the old and hard pavement.

ii. There were no traffic cones or other barriers separating traffic in the northbound lane from the construction work being done in the southbound lane, or preventing traffic from transitioning from the northbound lane into the southbound lane.

iii. Ms MacLean recalled seeing, to her right, “very big machinery” operating in the southbound lane, in a manner that seemed “very close to the centre of the road”.

iv. Although Ms MacLean generally was focused on what was in front of her, (e.g., not paying much attention to what the various paving machines were doing in the southbound lane as she road past them), she could see, to her right, that the southbound lane had received an application of “freshly paved black asphalt”, “much darker” than the old asphalt, resulting in a change of elevation between the two lanes of the road; i.e., such that the freshly paved area of the southbound lane now was higher than the “old” pavement in the northbound lane. It appeared to Ms MacLean that the transition between the two elevations was in a generally uniform configuration, insofar as the area of transition was aligned down the approximate centre of the road, along which there was an angled slope or incline of rough or “jagged” asphalt with “juts”, (i.e., a slope or incline of fresh new asphalt with a surface that had not been flattened), leading up from the old pavement to the edge or “lip” of the rolled and apparently “flat” and “smooth” upper surface of the freshly applied asphalt, which did not appear to have any tire marks on it. Ms MacLean estimated that the transitional slope of fresh asphalt, (i.e., what others might describe as the “hypotenuse” of the slope), was perhaps five inches in length.

e. Ms MacLean says they proceeded southbound, in the normally northbound lane of the road, without any southbound traffic ahead of them, and past the paving machines on her right, until she encountered a second and different “flag man” who required them to stop, “prior to the end of the construction zone”, to the west of a fenced cemetery area. That second flagger then provided some form of “physical cue” that the motorcycles were to transition back into a freshly paved area of the southbound lane, over the slope/angle of asphalt which had not been flattened/smoothed and the edge or “lip” of the flattened surface at the top of the new asphalt. In that regard:

i. Ms MacLean candidly could not recall with certainty whether or not the relevant flagger was holding a sign saying “STOP”, but believes he was. In any event, she was sure the directions and cues provided by that second flagger were visual and non-verbal.

ii. She recalled the second flagger requiring them “to stop and wait for a period of time”, before he directed them into the southbound lane, in an area where there was freshly paved asphalt.

iii. In the area where the second flag man was directing her to transition from the “old” pavement in the northbound lane onto the freshly paved asphalt of the southbound lane, there were no signs, (e.g., signs indicating the presence of a “bump” or “uneven lane”), warning of the change in elevation between the lower “old” asphalt and the higher freshly paved asphalt. Ms MacLean admittedly could see the rough asphalt slope and new asphalt “lip” in that area, and that the appearance of the transitional slope and “lip” of new asphalt in that area generally resembled that along the centre of the road in the work area where the old pavement met the new asphalt. (In particular, when the second flagger instructed her to transition back into the southbound lane, there were no splatters of fresh asphalt on the old pavement, as depicted in photographs of the relevant transition location taken after the accident.) However, when she was being directed by the second flagger to proceed past him and over the relevant asphalt lip area into the southbound lane, Ms MacLean could not tell whether the asphalt in that particular “lip” area was hard or soft.

f. Ms MacLean says that, in response to the second flagger’s direction, she turned her motorcycle to the right and approached the asphalt lip at an estimated “45 degree angle”, or “possibly slightly greater than that”, as she recalled trying to make the turn “as tight as possible”; i.e., so that she was heading “more into the lip” rather than “less” into it. When asked to compare her angle of approach to that depicted in the diagram from the official MTO motorcycle handbook noted above, (i.e., depicting the recommended manner of transitioning over tracks or other uneven surfaces running parallel to a path of travel), Ms MacLean felt she had approached her transition of the asphalt lip using a “very, very similar” angle of approach.

g. Ms MacLean testified that she approached the relevant transition area of the asphalt lip at an estimated speed of approximately 15-20kph,[^28] and that the front wheel of her motorcycle went up and over the edge of the lip without incident, without the front tire feeling “sluggish” in any way, and without her encountering any problems controlling her motorcycle. However, when the back wheel of her motorcycle hit the asphalt lip, it did not make the transition up and over that lip, and instead began to slide to the left; i.e., such that the rear of her motorcycle effectively was continuing to move south along the roadway. Ms MacLean had never encountered such a situation before. However, she responded by:

i. doing her best to turn the front wheel of her motorcycle to the left, (i.e., “into” the direction of her motorcycle’s rear wheel slide), so that both parts of her motorcycle would continue to move in the same southerly direction, thereby preserving stability; and

ii. applying a slight increase in throttle, (although she had not done anything before then to change her speed while transitioning over the asphalt lip), in an effort to help the rear wheel of her motorcycle make it over the asphalt lip and change in elevation.

h. According to Ms MacLean, the rear tire of her motorcycle then did “catch” at some point and make it “up and over” the lip of the asphalt, after a few seconds, but did so in an exceptionally sudden and fast manner, during which she found herself unable to make steering adjustments sufficient to align her motorcycle “with the trajectory of the road”. Her motorcycle instead swerved “back and forth” in a “severe” and “violent” manner, “to the right and to the left”, without her having any ability to recover control. Although she attempted with difficulty to hold onto the motorcycle handlebars with all her strength, the forces proved too much for her, and she was “thrown” or “ejected” violently from the vehicle, “into the air”. She remembered being “airborne” before the sound of her helmet hitting the pavement and finally coming to a stop. She also recalled her niece Hailee having been ejected from the motorcycle a short time later; i.e., with a distinct memory of looking up from the ground to see Hailee’s full body in the air, before Hailee then landed on very close to where Ms MacLean was looking up at her; in a manner whereby Ms MacLean felt able to sit up, gather Hailee into her arms, and brace her impact. At the time, Ms MacLean had no awareness of where her motorcycle had gone or “landed”, apart from knowing that it had not landed on or near them.

i. Ms MacLean testified that, as she lay on the new asphalt, trying to remain calm for Hailee’s sake, she could feel its heat “burning through [her] clothes”. The woman who identified herself as a trauma nurse instructed Ms MacLean to not move. However, Ms MacLean responded with an indication that it was impossible for her to remain where she was, as the new asphalt was “exceptionally hot” and “burning [her] skin” through her clothing.

[17] Testimony provided by Hailee Stone included the following additional indications:

a. On the day of the underlying accident, Hailee was 14, and had been a passenger on her aunt’s motorcycle at least 10 times. It seemed to Hailee that her aunt was a “really good” and “careful” motorcycle driver, and Hailee felt quite comfortable riding with her.

b. When the accident occurred, she, Ms MacLean and her uncle Mr Miles were on their way to Port Burwell for ice cream, after having stopped at a coffee shop along the way. While traveling, her aunt was riding to the left of their lane, “closer to the middle of the road”, while her uncle was riding to the right side of their lane, “closer to the curb”.

c. Hailee candidly indicated that she did not know the name of the road they were travelling on when the accident happened. However, she recalled encountering a construction zone, where workers “were putting new asphalt onto the road” in their lane of travel. In that regard:

i. Hailee recalled that, as they approached the construction zone, a “construction man” directed them into “the other lane that still had the old asphalt”, although she admittedly could not recall precisely how that was done, or what the “construction man” may have been holding.

ii. Hailee also recalled that, as they proceeded into and along the other lane, passing new asphalt on their right, her aunt Tanya was “in front of the line” of traffic moving forward in their lane. Her aunt also was once again driving to the left of the lane they now were in, while her uncle drove to the right of that lane behind them, without any issues. As for their speed, Hailee says they were travelling at a “slower pace because it was a construction zone”. When pressed for a numerical estimate of their speed at the time, Hailee indicated they were traveling at 15kph.

iii. While proceeding forward in that “other lane”, Hailee could see the new asphalt that had been applied in the lane to her right, that it was “a lot darker” than the old pavement, (to the extent of being “pretty much black”), and that it was “raised above the regular asphalt”, with an edge that “wasn’t smooth” but “jagged”. She could tell “exactly” where the edge of that new asphalt was along the middle of the road.

d. Hailee testified that another worker, (whose description and precise actions Hailee admittedly could not remember), then directed them “onto the new asphalt”. In that regard:

i. Hailee says her aunt approached the edge of the new asphalt “approximately like a 45-degree angle”; “not going straight onto it” and not like it was “across” from them, but “somewhere in the middle”. According to Hailee, her aunt also approached the new asphalt without any perceptible change in speed; i.e., at the same “pretty constant” speed at which they had been travelling past the lane with the new asphalt. Hailee did not hear anything that sounded like her aunt’s motorcycle engine “revving” or accelerating as her aunt approached the new asphalt.

ii. Hailee says that, “once the front tire was over” the edge of the new asphalt, and “the back tire connected” with it, her aunt’s motorcycle “started losing control”, with everything becoming “bumpy” and “chaotic”, as they “couldn’t get over with the second tire”, which was sliding along the edge of the new asphalt. She recalled the motorcycle “swaying out of control”. In particular, she recalled both of her aunt’s arms extended forward, gripping the handlebars with her elbows out at square angles, trying to control the motorcycle, (as its balance went “back and forth”, to the left and then to the right), before her aunt was then “ejected” or “thrown off the bike”, leaving Hailee alone on the motorcycle.

iii. Hailee says that, when she found herself alone on the motorcycle for a short time, she was in shock and did not know what to do before she herself then was similarly “thrown off the bike”. She recalled then landing partly on her knees and partly “on top of” her aunt, (who was already lying on the fresh asphalt), before rolling off and laying beside her. Her aunt’s motorcycle did not fall on either of them, and Hailee firmly rejected suggestions that it had simply “tipped over” because the edge of the new asphalt was approached at the wrong angle.

e. Hailee testified that, while laying on the fresh asphalt immediately after the accident, it felt hot. She says it was also “sticky and wet”, such that it damaged her jeans by “ripping through” them, (e.g., at both knees), and coating them “all over” with asphalt.

f. Hailee says she generally was in a state of shock after the accident, and that her uncle had to help her up from the asphalt before the ambulance came and took both her and her aunt to hospital.

[18] Testimony provided by Mr Miles included the following additional indications:

a. He recalled encountering a signed construction zone as he, Ms MacLean and Hailee were heading south on Richmond Road. After passing the initial signage in that regard, and continuing in their lane for approximately three to five minutes, the southbound lane ahead of them was closed, and the subject of construction work that obviously included the laying of new asphalt.[^29]

b. One of the construction workers directed them to come to a stop with the sign he was holding, while also making eye contact with them. They then waited were they were, in the southbound lane and without any other southbound vehicles in line ahead of them, for approximately five to ten minutes as oncoming traffic continued to use the northbound lane; the only lane which remained open.

c. The same construction worker - once again facing Ms MacLean, Hailee and Mr Miles - then directed them to proceed into the northbound lane, using the sign he was still holding in one hand, and making a sweeping gesture with his other arm towards the left lane in front of them; i.e., into the normally northbound lane of traffic, which still had its “old” pavement.

d. Mr Miles says that, as they proceeded south in the northbound lane of the road:

i. The asphalt in the northbound lane was “old”, “smooth”, and “nothing out of the ordinary”.

ii. There was no southbound traffic in front of them.

iii. He and Ms MacLean once again were driving in the staggered configuration they always assumed; i.e., with her motorcycle in the lead, and with Mr Miles following on his motorcycle approximately six to seven feet to the right and rear of Ms McLean’s motorcycle. They were keeping the same distance between them and therefore travelling at the same speed; a speed which Mr Miles says was approximately 15-20 kph, such that Mr Miles was travelling in second gear.

iv. He could see, a few feet away from where he was riding, that the construction crew already had laid what appeared to be “brand new asphalt” in the southbound lane, (apparently along the length of the construction zone they were passing), and that the new asphalt was “fresh”, “really black”, and “raised up” higher than the elevation of the “old” pavement in the northbound lane. When asked to estimate the extent of that vertical elevation, Mr Miles said it was “about three to four inches higher” than the “old” asphalt.

v. Mr Miles could see that the new asphalt in the southbound lane appeared “smooth on top”, without any tire grooves, but that the “side” of it, (i.e., at its eastern limits, generally running relatively straight along the centre line of the road), “was all jagged” in a “pretty much uniform” way, without any visible marks, damage or deformities. He could not tell at the time, (i.e., while travelling south in the northbound lane), whether the new asphalt was soft or hardened. However, he could tell “exactly where the new asphalt started” at its eastern edge, as the new asphalt at that edge was “pretty much black” and obviously different from the “old grey colour” of the “beat up asphalt” in the lane they were using.

e. Mr Miles testified that there then came a point where they could proceed no further south in the northbound lane, although they had not yet reached the end of the construction zone and newly applied asphalt in the southbound lane. In particular, after travelling “a bit down the road” in the southbound lane, past all the construction equipment working in the southbound lane, and to an area beside a cemetery on the east side of the road and approximately 20 yards before the point where the new asphalt visibly came to an end, (i.e., south of which the surface of the southbound lane was only “old” pavement similar to that in the northbound lane, such that the two lanes remained at the same elevation south of that point), they encountered a second “flag person”. That second flagger was:

i. “holding the [northbound] traffic back”, (with a northbound truck stopped approximately 10-15 feet behind him to the south, waiting to proceed), effectively making it impossible for the two motorcycles to keep travelling forward in the northbound lane;

ii. not requiring them to stop; and

iii. directing them, (by using one arm to give directions while holding a sign in his other hand), “to cross over through the construction zone onto the new asphalt”.

f. Mr Miles testified that, in his view, there was nothing at the time that would have prevented the second flagger from positioning himself further south along the roadway, and south of the southern terminus of the new asphalt in particular, such that southbound traffic could have transitioned back into the southbound lane without having to transition onto the new asphalt.

g. Mr Miles also says that, in the area where the second flagger was directing them to transition from the “old” pavement in the northbound lane onto the freshly paved asphalt of the southbound lane, there were no signs, (e.g., signs indicating the presence of a “bump” or “uneven lane”), warning of the change in elevation between the lower “old” asphalt and the higher freshly paved asphalt. Nor did the second flagger speak with them, or provide them with any warning or instruction, about the edge or lip of the new asphalt. To Mr Miles’ knowledge, neither he nor Ms MacLean had ever encountered an asphalt edge or lip like that before.

h. According to Mr Miles, when Ms MacLean then attempted to transition into the southbound lane onto the new asphalt as directed by the second flagger, and therefore over the edge or lip of the new asphalt near the centre of the road:

i. Ms MacLean did not slow down or speed up, but was proceeding at the same 15-20kph speed, which looked to be a “good speed” for the cross over from Mr Miles’ perspective.

ii. Ms MacLean also approached the indicated “cross over” point onto the new asphalt at “around a 45-degree angle”, (i.e., “probably … on the 40-45 degree angle” and “probably about a 45 degree angle”), a line which “looked good” to Mr Miles, and similar to the angle depicted in the official MTO motorcycle handbook diagram accompanying directions on how to cross uneven surfaces running parallel to the path of travel.

iii. When Ms MacLean approached the new asphalt edge or lip on her motorcycle, her front wheel went “up and over the lip” without difficulty. However, at the moment when her back wheel hit the lip, Ms MacLean’s motorcycle immediately slowed as its rear wheel “started to spin” on the new asphalt, apparently because it “lost traction” and “wasn’t gripping” at that point. At the same time, the rear wheel of Ms MacLean’s motorcycle also “started to slide out to the left along the edge of the asphalt”, in a “sort of jumpy slicing slide”, during which the lip of the asphalt was being “shaved all the way down” along the approximately four-to-six-foot length of the slide; i.e., progressing “from right to left” as one looked at the asphalt lip from the east. Throughout that process of the rear tire of Ms MacLean’s motorcycle trying to gain sufficient traction on the new asphalt lip, (to make it up and onto the elevated southbound lane), fresh “shredded” asphalt was “being kicked back” and “shot out the back” by the rear wheel. In particular, the rear wheel “just kept spitting it all out”, initially towards Mr Miles and then “straight across the road” as the spinning rear tire slid from right to left along the edge of the new asphalt.

iv. Mr Miles testified that, although the two wheels of Ms MacLean’s motorcycle initially were aligned in the same direction, such that the motorcycle was “straight” when Ms MacLean attempted to transition over the new asphalt lip, the sliding of its rear tire to the left increased to the point where Ms MacLean visibly was obliged to “correct” the situation with her front tire by “turning into the slide”; i.e., in an effort to keep her motorcycle stable. In particular:

1. Although the two wheels initially were aligned in the same direction as Ms MacLean attempted to cross the asphalt lip at an angle, their alignment changed as Ms MacLean’s rear tire was spinning up against the edge or lip of the new asphalt, trying to gain traction.

2. As noted above, the rear tire of Ms MacLean’s motorcycle, as it was spinning along that asphalt edge or lip, began moving to the left; i.e., further south along the roadway. Mr Miles says he then saw Ms MacLean turn the front wheel of her motorcycle to the left, (i.e., “into” the same southerly direction in which the rear wheel was sliding and moving down the road), in an apparent effort to allow both the rear and front of her motorcycle to both keep moving in the same direction, thereby maintaining stability. In the process, however, the motorcycle’s two wheels went from being aligned in the same direction to progressively assuming what Mr Miles described as an “L” or perhaps even a “V” configuration.

3. Mr Miles says that change of alignment between the rear and front wheels of Ms MacLean’s motorcycle became more pronounced as the spinning rear wheel slid to the left, progressively changing from being at an acute angle to the edge of the new asphalt to being almost perpendicular to that edge, in turn requiring Ms MacLean to turn her front wheel more and more to the left in an effort to keep both ends of her motorcycle moving along the road in the same southerly direction.

v. Mr Miles testified that, as the rear wheel of Ms MacLean’s motorcycle was in contact with and trying to make it over the asphalt lip, he also heard Ms MacLean “rev” her engine, (i.e., by “getting on the throttle to give it a bit more gas”), apparently “to give it more power because she was losing traction trying to get up over the lip”.[^30] Mr Miles clearly recalled Ms MacLean doing that only after the rear wheel of her motorcycle came into contact with the edge of the new asphalt and started spinning, as an apparent reaction to that happening.

vi. Mr Miles testified that the slide of Ms MacLean’s rear tire to the left, along the asphalt lip, then came to an abrupt end when the motorcycle’s spinning rear tire, reaching an almost perpendicular alignment with the edge of the new asphalt, created a bit of a trough or hole in the new asphalt it was displacing and suddenly “grabbed” and “gripped” the new asphalt; i.e., that the rear tire suddenly “really took traction” as it simultaneously “took a chunk” or “nice section” out of the new asphalt. At that point, Mr Miles says, when the motorcycle’s rear tire “dug in”, it then “basically skipped up onto the new asphalt”, propelling the motorcycle “up and over” the asphalt lip. By that point, however, Ms MacLean’s motorcycle was “off-centre”, (e.g., because Ms MacLean’s front wheel was turned to the left, into the slide), such that Ms MacLean’s motorcycle then “bucked”. In particular, Mr Miles says, when the rear tire of Ms MacLean’s motorcycle suddenly gained traction, it effectively tried to force the motorcycle forward at a time when its front wheel was turned significantly to the left; i.e. at a time when the front wheel was turned sideways, and therefore could not easily be pushed sideways in the direction the rear wheel was facing. At that point, Mr Miles says, the motorcycle’s front shock absorbers “compressed down”, such that “the front end went down” with them while “the back end came up”, “almost like a catapult”.

vii. It was at that point, Mr Miles says, that Ms MacLean went into the air and “off the bike to the left”, (i.e., over her motorcycle’s handlebars to the left of its front windscreen), hitting the new asphalt before rolling to a stop, facing upward. Hailee then went off the motorcycle as well, landing on her side to the right of Ms MacLean. The motorcycle itself then continued on its own without any riders for a short distance, as it “sort of speed wobbled to the right”, approximately three to four feet further north on the new asphalt from the area where Ms MacLean and Hailee had landed. It then “toppled” down onto the new asphalt, where it “dug in”, leaving marks and displaced asphalt similar to that which Ms MacLean’s rear tire had displaced from the edge or lip of the new asphalt.[^31] In that regard, Mr Miles indicated a belief, during the course of his testimony, that the motorcycle fell down on to its right side.

viii. Mr Miles says that, after witnessing what happened to Ms MacLean and Hailee, he stopped and used his motorcycle’s kickstand to park it on the new asphalt, without having any memory of how he himself made his way onto that new asphalt – although he admittedly did so without losing control of his motorcycle. He then recalled struggling to remove his helmet as someone ran past him to his left, rushing to help Ms MacLean and Hailee.

ix. According to Mr Miles, when he finally got his helmet off, he too “ran up” to where his wife and niece were lying on the new asphalt. As the person who ran past him was attending primarily to Ms MacLean, he focused on Hailee and tried to make sure she was okay until the “EMT” and fire department responders arrived on scene. He recalled that, during that time, his wife was asking about Hailee, and both his wife and Hailee were complaining about the heat from the road; i.e., saying that the new asphalt they were lying on was too hot.

x. As noted above, Mr Miles then remained in the vicinity of the accident scene for a short time after his wife and niece had been taken away by ambulance. In that regard:

1. Mr Miles recalled looking at Ms Maclean’s motorcycle somewhat quickly, as he retrieved and pushed it to the garage of a nearby resident who kindly had offered to store it until it could be retrieved. However, even during that cursory inspection, he could tell that the bike was “messed up”; e.g., with a scratched up windscreen, and asphalt “on” and “all over the bike” such that “it was not rideable”.

2. He also stopped to examine and take some photographs of the accident scene and, in particular, the area where the rear tire of Ms MacLean’s motorcycle had tried to make its way over the edge or lip of the new asphalt.

3. When he returned to his own motorcycle, parked on the new asphalt, he found that it was “sort of leaning to the left” as its kickstand had “sunk into the asphalt”.

xi. Mr Miles testified that, as he was moving on foot across the rolled surface of the new asphalt, (which was a lighter colour than the darker asphalt lip), he found it to be “really soft and sticky”, and that it stuck to his boots as he was walking. He says the darker or “black” asphalt found long the lip of the new asphalt, and displaced from that lip by the rear wheel of Ms MacLean’s motorcycle, was also soft and sticky. However, the rolled and lighter coloured top surface of the new asphalt was “not as soft as the black” asphalt at its edge, or the loose asphalt displaced from that edge.

xii. Mr Miles says he thereafter made arrangements to have Ms MacLean’s damaged motorcycle moved/carried on a flatbed truck from its temporary storage near the accident scene to “Inglis Cycles” in London; i.e., the motorcycle sales and servicing centre in London from which he had purchased his motorcycle, and which he and Ms MacLean used to service their motorcycles. Once Ms MacLean’s motorcycle was there, Mr Miles used the opportunity, (approximately four to six days after the accident, when he got time off work), to examine it more closely, and to take photographs and a short video of its damaged condition. In that regard:

1. He noted in particular that the damage included:

a. asphalt “everywhere” throughout, along and underneath the motorcycle’s frame and undercarriage, inside its fenders, on its chain, and on its wheels - particularly around its rear wheel;

b. the indicator or turn signal being “smacked” and “marked up”; and

c. areas around the handlebar, gearing, levers, cables and a broken off footrest connector being “just embedded with tar and asphalt”.

2. Mr Miles found, in particular, that the asphalt-covered levers were incapable of turning or other movement, and that the asphalt covering them was “still sticky and pliable”.

[19] Testimony provided by Glenn Walmsley included the following indications:

a. Mr Walmsley confirmed that, on the day in question, Walmsley Brothers was following its usual practice of leaving particular incremental decisions about when the rear flagger should move forward with the paving operation, and precisely where the rear flagger should take up a new position, to what he felt was the “educated judgment” of the particular person acting as rear flagger.

b. Mr Walmsley also confirmed that, during the Richmond Road paving project, such decisions by the rear flagger would have been guided primarily by the progress of the finishing roller in completing its work on areas of new asphalt. In particular, although the operator of the finishing roller might give occasional specific warnings of a particular “soft spot”, “hot spot” or “thick spot” during other paving operations, Mr Walmsley indicated there were no such areas of concern or associated warnings when Richmond Road was being paved, as it was “just a two-inch” layer of new asphalt being applied over an existing and generally uniform layer of existing asphalt, which generally did not give rise to such concerns.

c. Mr Walmsley indicated his expectation that, in relation to a paving project having a length of 1.3km, (i.e., the length of the required Richmond Road paving project), he would expect the operation’s rear flagger to start from a position south of where the new asphalt began to be laid in the southbound lane, and then move forward behind the paving operation, (i.e., moving to the north), “two to three times” - and “probably three times” - during the course of the operation.

d. However, Mr Walmsley admittedly was not present at the precise location of the accident for a number of hours before the accident occurred there, as he remained with the moving paver, which had passed the accident location well before the accident occurred. Nor did he personally observe the movement and positions of the rear flagger while the paving operation progressed prior to the accident.

e. For similar reasons, Mr Walmsley also admittedly did not witness the accident giving rise to this litigation. When it occurred, he was still at the job site on Richmond Road, but he also was still working up near the paver – which is his usual position during paving operations. He admittedly was not informed of the accident until some time after it happened. In that regard, he frankly could not recall precisely how the accident was brought to his attention, but believes he probably heard news of the accident come across the radios which he and other employees of Walmsley Brothers carry.

f. After learning of the accident, Mr Walmsley got into his pickup truck, (then parked near the location of the still moving paver), and drove south along Richmond Road, in the normally northbound lane of traffic, back to where the accident apparently had happened. Mr Walmsley initially could not recall how far the paver had progressed north from the location of the accident at that point; i.e., by the time he learned of the accident and left the paver to drive back to the scene of the accident in order to see what may have happened in that regard. However, he then recalled that the paver was approximately two-thirds of the way through the paving project at that point, and approximately 500-600 meters north of where the accident apparently had taken place.[^32]

g. Mr Walmsley says that, by the time he got to the apparent location of the accident, (which Mr Walmsley estimated to be approximately 125-150 metres north of where Walmsley Brothers had started to lay new asphalt in the southbound lane), there were “two ladies”, involved in the accident, “already off the shoulder into the grass, sitting down”, and the paving operation’s rear flagger, (Mr Albert), was positioned at a location south of where Walmsley Brothers had started its paving in the southbound lane of Richmond Road that day. Mr Walmsley says he saw only one motorcycle near the scene, parked on its kickstand, and assumed that was the motorcycle that had been involved in the accident – although he also admittedly was focused on “the ladies” at that point, as he was worried about possible injuries.

h. At trial, Mr Walmsley initially estimated that the new asphalt in the area where the accident apparently had occurred had been laid approximately 3½ to 4 hours earlier. In the course of cross-examination, however, he reduced that estimate to approximately three hours; i.e., on the basis the paving of Richmond Road had started at approximately 11:00am, that it would have taken approximately 30 minutes for the paver to reach the area of the southbound lane where the accident seemed to have occurred, and it was his understanding that the accident had occurred around 2:30pm. In the course of further cross-examination, (and after being taken to his earlier sworn evidence during oral discovery that the relevant area of new asphalt had been laid only “a couple of hours” earlier), Mr Walmsley then lowered his estimate again, acknowledging that the new asphalt could have been laid “maybe 2 ½ to 3 hours” earlier.

i. Although he admittedly had not seen the finishing roller complete its work in the relevant area, Mr Walmsley thought that work probably had been finished “at least” an hour earlier, based on his experience that the operator of the finishing roller normally did not start work on a newly laid area of asphalt for least 90-120 minutes after the new asphalt had been placed on the road.

j. According to Mr Walmsley, when he was making his observations about the condition of the road near the accident scene, on the day of the accident, he noticed marks on the road where the motorcycle had “dug into the pavement” and left marks where it appeared the motorcycle had fallen, as well as “tire imprints from the ambulance”. However, he says he never noticed the “sprayed” and “loose” asphalt depicted in the accident scene photos, (which apparently had been displaced from the eastern edge of the new asphalt and into the normally northbound lane of Richmond Road), despite his having driven past the location of that displaced asphalt; i.e., before he then “cut” across and over the new asphalt to park his vehicle on the west shoulder of the road near the grass, south of where the accident apparently had happened. In that regard, Mr Walmsley emphasized that he did not walk to the centre of the road near the accident scene.

k. According to Mr Walmsley, although the attending ambulance drove onto the new asphalt, where it parked for a time, the attending vehicles from the fire department remained parked off the east shoulder of Richmond Road; i.e., such that they did not cross onto or over the new asphalt in the southbound lane.

[20] Testimony provided by Chris Walmsley included the following indications:[^33]

a. He began working for Walmsley Brothers in 2004, spending an initial year employed as a “weigh man” at the company’s asphalt plant before moving on to road paving operations as a flagger in 2005. At the time of the accident in June of 2015, he was still working primarily as a flagger, although he had begun training on the rollers. At the time of trial, he was working as a “screw man”; i.e., working on the sides of the paver to monitor and control the thickness and width of asphalt it puts down.

b. Chris recalled that his training as a flagger had included an initial written test, (which he took and passed before becoming a flagger), and subsequent completion of “traffic control program” training undertaken in or around 2009. The latter involved a degree of classroom training offered somewhere in London, followed by the taking and passing of a standardized test; a test apparently developed by others, but administered in the Walmsley Brothers office by one of its employees.

c. Chris confirmed that, on the day of the accident, (i.e., June 29, 2015), he was working at the site of the Richmond Road paving project, and was one of the flaggers responsible for directing traffic. He testified that there was nothing unusual in the way Walmsley Brothers was spreading and compacting asphalt that day. Although he knew his father had a “generic” traffic protection plan in his pickup truck, it was not provided to the flaggers, and they received no specific instruction in relation to how flagging should be done in relation to the Richmond Road project. All flagging decisions, (including when to move forwards and how far to move forward), were simply left to the judgment of the flaggers. In that regard, he and the other flaggers intended to follow the company’s usual practice of moving the rear flagger forward as the finishing roller completed its work, directing traffic onto the new asphalt.

d. Chris testified that, at the time of the accident, he was taking a break from acting as a flagger, (while the other two flaggers continued to work), and was sitting in the driver’s seat of a pick-up truck, “just resting [his] legs” and “having a snack”. The truck was parked facing south, in a small parking area next to a fenced cemetery on the east side of Richmond Road. In the result:

i. Chris also was facing south, with the ongoing paving operation in the southbound lane somewhere behind him.

ii. The position of his vehicle and seating placed him near to the cemetery fence. The edge of the newly laid asphalt, running down the centre of the road, was located to the west and to his right.

iii. At the very least, Chris was separated from the eastern edge of the newly laid asphalt by the width of the truck in which he was sitting, and the width of the normally northbound lane of traffic.

e. Chris testified that, as he was sitting in his truck facing south, he nevertheless was able to see traffic coming from the north by looking to his right across the interior of his pick-up truck, and seeing the reflected images in a large mirror positioned on the right/passenger side of the vehicle. He says he was looking at those reflected images because there was “nothing else to do”.

f. According to Chris, while he was doing that, (i.e., looking into the mirror on the right/passenger side mirror of his truck), he saw a “line of traffic coming up” from the north, including a motorcycle driving south in the northbound lane. He testified that he was “kind of … staring at her”, (i.e., the female operator of that motorcycle), because:

i. he “could tell she was a little hesitant”, insofar as it “seemed like she slowed down” and was “coming up” while going “pretty slow”; and

ii. she was riding “really close to the joint”, (i.e., “basically right next to the lip” of the new asphalt, in a “basically parallel” fashion to that lip and “between three and six inches away” from it), and with such a small angle of approach, that he:

1. “thought she was going to wipe out before she actually did”;

2. “remembered thinking she was going to fall before she actually did”;

3. “thought she was going to fall before she actually did”;

4. “was obviously concerned how she was approaching it”;

5. was “going to look because [he] was concerned she could flip”; and

6. was “concerned, like, she was going to tip it, ‘cause, just the way she was approaching it”.

g. Chris nevertheless admittedly did not see the motorcycle’s wheels come into contact with the asphalt lip, how the motorcycle operated once its wheels touched the asphalt lip, or how the motorcycle “went up or how it landed exactly” when it reached and tried to go up onto the new asphalt. Nor did he see whether or not the wheels of the motorcycle created any displaced asphalt or “spray pattern” when they touched the asphalt lip.

h. Chris initially indicated that he could not remember how the motorcycle “tipped over”, or whether he had actually seen that happen, before then testifying that he actually “didn’t see that” either. When asked why he had referred to the motorcycle “tipping over”, and for further information in that regard, Chris repeatedly indicated that he had “talked to Ian”; i.e., Ian Albert, the rear flagger who directed Ms MacLean onto the new asphalt.

i. Chris initially testified that he had a memory of seeing the motorcycle driver “going down on her side”, and her passenger, (whom he assumed to be the driver’s daughter), landing partially on top of the driver, breaking the passenger’s fall to some extent. In cross-examination, however, Chris acknowledged that his only “definite” memory was that of seeing “the daughter laying on top of the mom”; i.e., as opposed to actually seeing them fall.

j. By way of possible explanation for his incomplete memory, Chris acknowledged that there was a period of time between his seeing the motorcycle’s approach and seeing its driver and passenger having fallen; i.e., such that he admittedly did not see “100 percent” of what happened between “when she came up” along the road from the north and “when she fell down”.

k. Chris admittedly could not remember exactly what he did when he got out of his truck after the accident, but said that he was “walking all around” the area, and “would have walked probably right over” the area where the accident happened. He testified that, when doing so, he had no concerns about the compaction or hardness of the asphalt, and its readiness to be used by vehicles. However, he also said that he had no memory of seeing or looking at the asphalt that had been displaced from the asphalt lip and sprayed into the northbound lane of the road.

l. Chris recalled an ambulance arriving at the scene after the accident, along with members of the fire department and the police. However, the police did not ask him for any statement, and he did not volunteer to provide any statement to them.

m. Chris also recalled seeing the other motorcyclist, (i.e., Mr Miles), taking photographs of the accident scene.

[21] Testimony provided by Mr Albert included the following indications:

a. He began working for Walmsley Brothers in the summer of 2008, and has continued to work for the company seasonally, (i.e., usually from May until November, depending on the weather), since that time. By the time of the underlying accident in 2015, he had been working for the company exclusively as a flagger. By the time of trial, he was working as an operator of the company’s “rubber tire” roller.

b. Mr Albert confirmed that, on the day of the accident, (i.e., June 29, 2015), he was one of the flaggers working on the Richmond Road paving project being carried out by Walmsley Brothers. In that regard:

i. He was wearing a “hard hat”, an orange shirt with reflective tape, and full length “cargo pants” with reflective tape, while holding a sign saying “STOP” on one side and “SLOW” on the other.

ii. He and the other flaggers also were equipped with radios, allowing them to communicate with each other from a distance.

iii. He confirmed that he was not provided with any traffic protection plan for the Richmond Road paving project, (although he knew his supervisor/foreman was supposed to have one), and that he did not receive any written or verbal instructions in relation to flagging that particular project.

iv. He instead confirmed that the “general plan” he and the other flaggers had for directing traffic on that particular paving job was simply to “kind of do what [they] did every day”, that nothing “was being done differently that day from the ordinary routine”, and that “everything was normal”. In particular:

1. While paving was proceeding in one closed lane of the road, they would take turns sending traffic through the lane that remained open.

2. The lead flagger would move forward continuously ahead of the paving equipment, “to give room for the paver and their trucks and everything”.

3. The rear flagger would move forward from time to time, but not in a manner that maintained a constant distance from the lead flagger, who was moving forward continuously and occasionally “a lot more” than the rear flagger. In that regard:

a. Mr Albert said that he determined when he should move forward as a rear flagger, based on his own judgment and discretion.

b. Mr Albert understood that the purpose of the rear flagger moving forward was to promote safety, (e.g., by helping to maintain direct sight lines between the lead and rear flagger, which in turn helped to alert flaggers to the possibility of additional vehicles entering the road at points in between them), and “to help speed up the whole process” by minimizing traffic delay as much as possible.

c. Mr Albert says that, as a rear flagger, he would wait for the finishing roller to complete its work on an area of asphalt and then move forward, directing traffic onto such new asphalt if/as necessary. In doing so, he admittedly did nothing to personally test the new asphalt in any way to ascertain whether it was safe for traffic to travel onto and over it, and instead assumed certain things in that regard. In particular, he had an understanding and “rough idea” that such asphalt was hard and safe for vehicles to use after the rollers had compacted it. Indeed, he initially indicated a belief that vehicles could travel safely onto and over new asphalt “as soon as it came out of the paver”, (although they would “make marks on it”), as he thought it would be “solid enough” to drive on without a vehicle “sinking in”, and he had seen emergency vehicles like police cars and ambulances drive over freshly laid asphalt in the past. However, he then indicated that, to be safe, it was “preferable” that vehicles not drive on freshly laid asphalt “until after it was finished being rolled”.

4. Mr Albert had no memory of that practice or system, (i.e., in relation a rear flagger moving forward and directing traffic onto fresh asphalt soon after the rollers had finished their work), being part of the formal safety booklet or testing he reviewed and completed when he became a flagger. Nor could he recall having received any other formal instruction in that regard. He believes he may simply have followed the example of somebody at Walmsley Brothers “kind of showing [him] the ropes” when he started working as a flagger.

c. At the time of the underlying accident, Mr Albert was acting as the rear flagger on the project, and positioned towards the south end of the paving project as the paver moved progressively north in the southbound lane. In that regard:

i. Mr Albert testified that approximately half a kilometre, (i.e., 500 meters), of the southbound lane had been paved prior to the accident.

ii. According to Mr Albert, when the accident occurred, he had moved forward (i.e., north) along Richmond Road, to a location approximately 50 meters north of the point where Walmsley Brothers had started applying new asphalt in the southbound lane. The new asphalt in the southbound lane to the west of his new location had been on the road for at least two and possibly three hours by that point, and had been compacted by the paver and all three rollers such that there was no further work to be done in that area.

iii. Mr Albert said that he had moved forward to that location because there was a hill, and he “wanted to be up over that hill so [he] could see oncoming traffic”.

iv. Mr Albert testified that, to stop northbound traffic and facilitate/direct the passage of southbound traffic, he then stepped from a position on the east shoulder of the road into the open lane of traffic, (i.e., the normally northbound lane of Richmond Road), with his handheld sign indicating “STOP” to the south and “SLOW to the north. In particular, he says he physically moved into the lane:

1. to stop northbound vehicles approaching from the south, (gradually bringing two or three vehicles to a stop, and their formation of a line to the south); and

2. so that southbound traffic being directed into the northbound lane and past the paving operation would be able to see him when they approached, at which point he would direct them to merge back into the southbound lane, and onto the new asphalt, by a sweeping pointing gesture made with his left arm and hand as he continued to hold his SLOW/STOP sign with his other hand.

d. Mr Albert testified that, at approximately 2:00pm, he saw two southbound motorcycles approaching him in what was normally the northbound lane of Richmond Road, as he was standing in that lane. He says that, when he first saw or noticed the two motorcycles coming towards him, they were approximately 200 meters away. The first motorcycle had two persons on it, and the second motorcycle was following behind the first in an alignment he otherwise could not recall. Nor could he recall the distance between Ms MacLean’s motorcycle and the edge of the new asphalt, or the speed at which she was travelling, when he first saw her.

e. According to Mr Albert, the two motorcycles were not the leading southbound vehicles travelling towards him at the time, but were instead following behind other southbound vehicles.

f. Mr Albert testified that, when the motorcycles approached him, he directed Ms MacLean back into the southbound lane, (and onto the new asphalt in that lane), by “just kind of pointing her to the southbound lane”.

g. In response, Mr Albert says, Ms MacLean “started to slow down and slowly drift towards … the lip” of the new asphalt, “near the centre line of the road”. In particular, he says, when Ms MacLean saw him and his “SLOW” sign, she started to slow down to a speed of approximately 10 to 15 kilometers per hour, and approached or “drifted” – in what he described as a “slow casual drift” - towards the centre line of the road, without any noticeable turning of her front wheel.

h. According to Mr Albert, Ms MacLean approached the edge of the new asphalt in a manner that was “pretty close to parallel” to the edge of the new asphalt, at what he personally thought was “very little angle”. In that regard, Mr Albert noted that he himself rode a motorcycle, and thought the appropriate angle to approach the relevant change in surface height would be “probably 45” or “maybe even a 30” degree angle. However, he says Ms MacLean’s angle of approach was less than that, which caused him concern; i.e., as she was “running parallel with a raised surface”, making him feel that her “tires weren’t going to catch”, and that “something was going to give” at some point.

i. Mr Albert says Ms MacLean appeared to hesitate as she slowed down, and “eventually drifted over” such that she was riding “along the edge” of the new asphalt, until she reached a location approximately 10 meters in front of him. At that point, Mr Albert says, the front tire of Ms MacLean’s motorcycle then “caught” on the edge of the new asphalt and suddenly “jerked to the right”, without Mr Albert being able to say if it was forced to the right after it “caught” on the edge of the new asphalt, or if it was deliberately turned to the right by Ms MacLean. In any event, Mr Albert says, that catching of the motorcycle’s front tire on the new asphalt then caused it to go “up onto the ledge” and “up onto the asphalt”, and the motorcycle’s rear tire to “bounce up” onto the new asphalt as well, at which point Ms MacLean “went over” on her left side.[^34] Mr Albert said that entire process happened “like, almost like instantly, like”. In that regard, Mr Albert denied seeing the rear tire of Ms MacLean’s motorcycle slide to the left along the asphalt lip, or spray any asphalt out behind it.

j. However, Mr Albert testified that he did see the “second motorcycle”, (i.e., the one operated by Mr Miles), approach and pass over the transition onto the new asphalt without any difficulty. In particular, according to Mr Albert, Mr Miles slowed his motorcycle down as well, made a “little jaunt” to the left before turning his front wheel back to the right so that it was “angled towards” the new asphalt, (i.e., that Mr Miles first turned to the left before he then turned back to the right), prior to making it up onto the new asphalt without any hesitation or difficulty.

k. Mr Albert says that he “rushed over” to see if Ms MacLean was okay after the accident. Although he admittedly had no memory of going onto the new asphalt, he testified that the area of new asphalt where Ms MacLean fell had been compacted, that he did not have any concerns about its hardness, and that it was ready for vehicle use. In that regard, he says he did not see any asphalt sprayed out into the northbound lane from the edge of the new asphalt on the day of the accident.

l. Mr Albert recalled that someone in a nearby car called “911” for emergency services, and that he and the other flaggers then stopped the flow of traffic through the construction zone “for a short time while the ambulance and paramedics were all there”.

[22] Finally, testimony provided by Mr Dutchak included the following indications:

a. At the time of trial, he had been an employee of Elgin County for approximately 25 years, during which he progressively served as an engineering technologist, technical services officer and manager of road infrastructure before assuming his role as the county’s deputy director of engineering; a position he had held for 12 years.

b. In addition to providing and/or confirming evidence relating to such matters as the county’s responsibility for maintaining Richmond Road, the nature of that road, and the manner in which Elgin County came to entrust completion of the relevant paving project to Walmsley Brothers, (outlined in the undisputed facts set forth earlier), Mr Dutchak testified that, subject to the parameters of the contract, the county generally left operations within paving construction zones, including movement of flaggers, up to Walmsley Brothers. It purposely did not provide Walmsley Brothers with any specific instructions about such matters. Nor did Walmsley Brothers provide the county with a copy of its traffic protection plans.[^35]

c. Mr Dutchak said the County nevertheless did have a general expectation that vehicles would be driving on newly placed asphalt, within construction zones, “once it’s ready for traffic”. He said the county had no concerns in that regard because a contractor like Walmsley Brothers had an economic incentive not to open such a road before it was ready for traffic. In particular, Mr Dutchak emphasized that:

i. if a road “wasn’t ready to handle traffic, it could be potentially damaged”, creating a “defect that would fall outside the contract requirements and specifications”;

ii. if a road was damaged, a contractor accordingly “would be responsible for remedying that defect”, and otherwise “would be penalized if the end result did not meet the specifications”, by the county not paying for such work; and

iii. from the county’s perspective, there accordingly would be “no advantage for a contractor to allow the road to be open prematurely”.

d. Mr Dutchak admittedly was not present at the construction site on Richmond Road when the accident happened. Nor was he able to attend the site that afternoon after learning, (from a member of his staff who happened to be working near the construction zone, collecting asphalt “tickets” from the drivers of trucks dumping loads of asphalts into the paver), that the accident had occurred. Mr Dutchak accordingly was unable to offer any direct testimony concerning the mechanics of the accident, or the state of the road at the time of the accident or shortly thereafter.

e. However, after learning of the accident, Mr Dutchak immediately notified his supervisor Mr Watters, who agreed to attend the site that afternoon and take the photographs now found at Tab 4 of Exhibit 2. Mr Dutchak had the opportunity to review those photographs the day after they were taken, Based on those photographs, Mr Dutchak testified during his examination in chief at trial that:

i. he had no concerns about the manner in which Richmond Road was being paved;

ii. he did notice the “debris” or “loose aggregate” that had been “dislodged from the mat at a specific location” where the accident apparently had occurred, which was “very different from the rest of the road edge”;

iii. he also noticed “some marring of the pavement around that site”, and felt “there had to be something significant occur to mar the surface of the mat in that fashion”;

iv. he nevertheless had no concerns about what he saw in terms of the new asphalt, because it “was consistent with what [he had] seen for many years with the paving operation” of Walmsley Brothers;

v. he similarly had no concerns about the amount of compaction of the new asphalt; and

vi. he accordingly did not have any concerns about “the suitability of the new asphalt for vehicular use”.[^36]

f. Mr Dutchak testified that a “bump” sign would not have been required, in the circumstances, to alert motorists to the fact they would be crossing over the raised edge of new asphalt; i.e., because such signs were intended to signal possible transfer hazards as a vehicle was moving forward. However, he acknowledged that an “uneven lane” sign could have been used to assist motorists in identifying a “potential longitudinal hazard” created by the edge of new asphalt they were being asked to go over, when being directed back into the southbound lane.

[23] I will comment more specifically on some of this additional evidence from these various witnesses in the course of my analysis below.

[24] Before doing so, however, I pause to outline legislation and general principles applicable to determination of such disputes.

General principles

[25] As noted above, the parties generally agreed that the liability determinations to be made in this case would turn in large measure on application of the Municipal Act, 2001, supra, the Occupiers’ Liability Act, supra, and/or the Negligence Act, supra.

[26] There also was no dispute that application of such legislation involved consideration of causation, as that concept has been developed by our courts.

[27] Before proceeding further, I therefore pause to note various legislative provisions and principles governing such matters.

MUNICIPAL ACT, 2001

[28] In relation to the Municipal Act, 2001, supra, courts generally must be mindful of the general statutory scheme and corresponding analytical framework applicable to a case of this nature.[^37] In that regard:

a. Section 44 of the Municipal Act, 2001, supra, sets out the statutory scheme pursuant to which a municipality[^38] is required to maintain highways under its jurisdiction, and the consequences for default when damages ensue.[^39]

b. Subsection 44(1) defines the duty, and reads in part as follows: “The municipality that has jurisdiction over a highway … shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway”.

c. A correlative of the duty to keep such a highway in a “state of repair” means the duty is breached if the highway is in a state or condition of “disrepair” or “non-repair”. However, while s.44(1) is mandatory, it incorporates the concept of reasonableness. A municipality is only required to keep the road in a state of repair that is “reasonable in the circumstances”.

d. Subsection 44(2) creates legal liability for default in complying with s.44(1), and reads as follows: “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.”

e. As liability attaches to a specific default, it accordingly is necessary, in determining whether a municipality is liable, to identify the default or defaults that are said to have fallen below the “reasonableness in the circumstances” test set out in s.44(1). In that regard, a specific condition of non-repair of the roadway can involve any aspect of the road[^40].

f. However, s.44(2) clearly incorporates a causation requirement, and the corresponding need for causation analysis. A municipality is liable only for damages sustained by a person “because of the default”; i.e., in relation to defaults which cause damages.

g. Subsection 44(3) then goes on to set out three possible defences to liability of a municipality under ss.44(1) and 44(2) of the Municipal Act, 2001, supra, and reads in part as follows:[^41]

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

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

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

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

h. The three subparagraphs of s.44(3) are disjunctive, such that a municipality will not be liable if any one of the three defences applies.[^42]

i. Subsection 44(4) of the Act then confers authority on the Minister of Transportation to establish the minimum standards referred to in s.44(3)(c), and reads in part as follows: “The Minister of Transportation may make regulations establishing minimum standards of repair for highways … or any class of them”.

j. Subsection 44(5) makes it clear that those minimum standards “may be general or specific in their application”.

k. The onus is on a claimant to prove, on a balance of probabilities, that a road was in a state of disrepair at the time of an accident, and that the specified non-repair was the cause of the accident in question.[^43]

l. Once those two requirements have been met, (suggesting prima facie liability),[^44] the onus then shifts to a municipality to establish, on a balance of probabilities, that liability for the state of disrepair and resulting accident is negated by application of one or more of the statutory defences outlined in s.44(3) of the Municipal Act, 2001, supra.[^45]

m. As noted above, s.44(2) of the Act expressly preserves the ability of municipalities to temper any liability on their part through application of the Negligence Act, supra. In that regard, the defendant bears the usual onus of proving, on a balance of probabilities, any alleged contributory negligence on the part of the plaintiff.

[29] Reflecting the provisions of section 44 of the Municipal Act, 2001, supra, case law has established a four-step test for analyzing this statutory cause of action against a municipality:

a. 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.

b. Causation: The plaintiff must prove that the “non-repair” caused the accident.

c. 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, on a balance of probabilities, that at least one of the three defences in s.44(3) of Act applies.

d. Contributory Negligence: A municipality that cannot establish any of the three defences in s.44(3) will be found liable. However, the municipality may then attempt to establish that the plaintiff’s driving caused or contributed to the plaintiff’s injuries.[^46]

[30] Not surprisingly, concepts inherent in a municipality’s duty to keep a highway in a “state of repair” that is “reasonable in the circumstances” have been the subject of considerable judicial consideration and elaboration over the years.

[31] Additional principles and observations, guiding interpretation and application of the above provisions of the Municipal Act, 2001, supra, include the following:

a. In relation to road maintenance, municipalities are not insurers of the safety of the travelling public, and their obligation is not absolute.[^47] The standard of care required of a municipality, to fulfill its duty under s.44(1) of the Municipal Act, 2001, supra, is to keep a road only “in such a reasonable state of repair that those requiring to use it may, exercising ordinary care, travel upon it in safety”.[^48] In determining whether a municipality failed to keep the road in question in a reasonable state of repair, the applicable legal test accordingly is whether the relevant road, at the relevant material time, was sufficiently in repair that users of the road, exercising ordinary or reasonable care, could use it in safety.[^49]

b. It is important to emphasize that a municipality’s duty of repair is limited to ensuring that its roads can be driven safely by “ordinary drivers” exercising reasonable care.[^50] The term “ordinary drivers” includes those of average driving ability, and not simply model drivers who are perfect or prescient, especially perceptive, or gifted with exceptionally fast reflexes. It includes the ordinary driver who is of average intelligence, pays attention, and uses caution when conditions warrant, but is human and sometimes makes mistakes.[^51] Care nevertheless must be taken not to press the allowance for ordinary drivers making mistakes too far, so as to negate the principle that municipalities are not insurers; a municipality has no duty to keep its roads safe for those who drive negligently.[^52] Again, the standard of care of road authorities rests on the notion of the ordinary motorist driving without negligence.[^53] The “ordinary driver”, exercising ordinary care, does not include those who do not pay attention, drive at excessive speeds, or who are otherwise negligent.[^54] The “ordinary driver” is expected to adjust his or her behavior according to the nature of the roadway and driving conditions, and such adjustments may include driving below the speed limit.[^55] Moreover, the “ordinary driver” is one with the skill and care expected of a reasonable driver, “from the general driving pool”, at the time and place in question, and not some more limited pool of drivers having limited experience or qualifications comparable to a specific plaintiff.[^56]

c. While a municipality has no duty to keep its road safe for those who drive negligently, it also must be remembered that contributory negligence of a particular claimant does not negate the possibility of a municipality having breached its statutory duties of road repair in a way that also caused a particular accident. In particular:

i. It is wrong and bad law to confuse the issue of contributory negligence with consideration of an ordinary motorist’s ability to proceed through a section of road safely, using due care.[^57]

ii. Contributory negligence is not a bar to a finding of non-repair, (i.e., that a municipality failed to keep the road in question in a reasonable state of repair), and a “non-repair” action relying on the Municipal Act, 2001, supra, can succeed even where a negligent driver was the immediate cause of the underlying accident. As long as road conditions that would imperil ordinary drivers constitute a “but for” cause of the accident, a liability finding against a municipality may be appropriate.[^58]

d. Each case dealing with alleged breach of a municipality’s statutory duties of road maintenance and repair is significantly dependent on its own facts. In assessing what is “reasonable in the circumstances”, it is important to keep in mind the particular characteristics of the road in question. There cannot be a universal standard of care for all roads within a municipality. To the contrary, the applicable standards of care will be relative, different and diverse; what is a reasonable state of repair is a question of fact, depending upon all the surrounding circumstances.[^59] Regard must be had to such matters as the locality in which the road is situated, (e.g., whether in a city, town, village, or township), the situation and character/composition of the road therein, the road’s history, whether its use is required by many or by few, the number of roads to be kept in repair by the municipality, the means at the municipality’s disposal for that purpose, and the requirements of the public.[^60]

e. Past cases certainly have held that the duty requires a municipality to take remedial steps when it knows or ought to know of a “highly special” and “highly dangerous” situation at a certain location on the highway that “creates a risk of serious and imminent harm to motorists”; a situation without which the highway would be quite passable and usable for traffic to persons reasonably using it.[^61] However, it should be remembered that the general negligence standard applies. A municipality’s duty of repair arises not just in a “highly special dangerous situation at a certain location in the highway” but in any situation where road conditions create an unreasonable risk of harm to users of the highway. The former is simply a subset of the latter.[^62]

f. A municipality’s duty of repair includes an obligation to erect and maintain proper signs, and where hazards are hidden or not readily apparent to users of the road, a municipality may have a duty to install warning signs. However, a municipality’s duty to install signs 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. Municipalities owe no duty to warn of hazards that present an unreasonable risk of harm only to drivers who do not drive with reasonable care.[^63] Moreover, it must also be remembered that, depending on the particular facts of a case, the presence or absence of signs may or may not have been a cause of the underlying accident.[^64]

[32] While the potential liability of Elgin County in this litigation clearly needs to be addressed by the above legislative provisions and principles, the parties acknowledge that the potential independent liability of Walmsley Brothers needs to be approached on a different basis, (i.e., as Walmsley Brothers is clearly not a municipal corporation), even if the resulting standards of liability may turn out to be quite similar.

OCCUPIERS’ LIABILITY ACT

[33] In that regard, the parties to this litigation were agreed that the liability of Walmsley Brothers was capable of being addressed and assessed by reference to the Occupiers’ Liability Act, supra, and the general principles which our courts have emphasized in relation to matters governed by that legislation. I accordingly will turn to a consideration of those legislative provisions and principles shortly.

[34] Before doing so, I nevertheless think it necessary to address an alternative submission made by counsel for the plaintiffs, suggesting that the liability of Walmsley Brothers also was capable of being addressed on the basis of common law principles of negligence. In that regard:

a. Plaintiff counsel drew my attention to our Court of Appeal’s decision in Moral v. Fermar Paving Ltd., 2011 ONCA 577, which involved a claim against a Regional Municipality and a paving company, in relation to a single vehicle accident that occurred in an area of curving roadway where the surface of the roadway recently had been the subject of work involving the application of new asphalt and a foam surface treatment. The vehicle left the roadway in that area, resulting in an collision with a nearby telephone pole and death of the driver. The Court of Appeal intervened to set aside the trial judge’s finding of liability against both defendants, indicating that the trial judge had failed to apply the proper and required standard of care analysis, and that the accident actually had been caused by the driver speeding and ignoring posted road sign warnings. In the course of its analysis, the Court of Appeal differentiated between determinations of potential liability of the Regional Municipality, based on the Municipal Act, 2001, supra, and determinations of potential liability of the paving company, which were said to be governed by a duty of care to the driver that “was a common law duty, not a statutory duty”.[^65] In relation to that common law duty, our Court of Appeal then indicated that the applicable and appropriate standard of care was that described by the Supreme Court of Canada in Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201, at paragraph 28; i.e., indicating that “conduct is negligent if it creates an objectively unreasonable risk of harm”, such that “to avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances”, with “the measure of what is reasonable” depending on “the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or costs which would be incurred to prevent the injury”, as well as “external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards”.

b. In Morsi v. Fermar Paving Ltd., supra, our Court of Appeal makes no mention whatsoever of the Occupiers’ Liability Act, supra, which might suggest on its face that the liability of contractors, in relation to claims relating to work done by contractors on public highways, should always be approached by application of general common law principles of negligence rather than the legislative scheme established by the Occupiers’ Liability Act,, supra. In my view, however, such a reading of the case is inappropriate and too simplistic, as it ignores other important considerations. Without limiting the generality of the foregoing:

i. The Legislature has indicated, albeit in a somewhat indirect fashion, that the Occupiers’ Liability Act, supra, may apply to a public highway or road if the legislated definitions of “occupier” and “premises” are satisfied on the facts of any particular case. In particular, while s.10(1) makes it clear that the legislation generally binds the Crown, s.10(2) of the legislation then provides that the Act “does not apply to the Crown or to any municipal corporation where the Crown or the municipal corporation is an occupier of a public highway or a public road”. [Emphasis added.] In my view, there would have been no need for the Legislature to enact that s.10(2) exemption, and negate its application to the Crown and municipal corporations in such circumstances, if it did not contemplate potential application of the Occupiers’ Liability Act, supra, in relation to all others who might be characterized as an “occupier” of a “public highway “ or “public road”.

ii. I note that our Court of Appeal, in Cochrane v. North York (City), 1989 CarswellOnt 4942 (C.A.), expressly indicated that satisfaction of the legislated definitions of “occupier” and “premises”, set forth in the Occupier’s Liability Act, supra, could make a party an “occupier” of a public highway within the meaning of the legislation.

iii. Our appellate courts repeatedly have held that, where particular fact situations are governed by the Occupiers’ Liability Act, supra, “it was the clear intention of the Act to replace, refine and harmonize the common law duty of care owed by occupiers of premises to visitors on those premises”.[^66] [Emphasis added.] In particular, that legislative intention is evident from section 2 of the legislation, (outlined in further detail below), making it clear that the provisions of the Act, (subject to certain indicated limitations), were to “apply in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining his liability in law in respect of dangers to persons entering on the premises”. [Emphasis added.]

iv. In my view, the inescapable conclusion is that, contrary to suggestions made by plaintiff counsel in this case, duties imposed by the common law of negligence and duties imposed by the Occupiers’ Liability Act, supra, are not capable of being applied in the alternative in situations where the latter applies. In particular, although that Act can never apply to the Crown or municipal corporations in relation to a public highway or roadway, where the circumstances prevailing at the time of a particular accident warrant a conclusion that an involved contractor was an “occupier” of such a public highway or roadway, (either of which would be “lands” capable of satisfying the definition of “premises” in the Occupiers’ Liability Act, supra), the common law of negligence otherwise applicable to determination of the contractor’s liability is displaced by the legislated scheme set forth in the Occupiers’ Liability Act, supra.

v. In Morsi v. Fermar Paving, supra, there is no reference to the Occupiers Liability Act, supra, but also nothing to indicate any suggestion having been made, to the trial judge or Court of Appeal, that liability of the relevant contractor should be determined by anything other than the common law of negligence. Moreover, that approach arguably was consistent with the particular facts underlying that case, where the relevant contractor apparently had completed its work on the relevant roadway before the accident; i.e., in circumstances where the contractor accordingly was no longer “in physical possession” of the roadway, no longer had “responsibility for and control over the condition” of the roadway “or the activities carried on there”, or “control over persons allowed to enter” the roadway. In other words, the situation at the time of the relevant accident in Morsi v. Fermar Paving, supra, was such that the relevant contractor arguably had ceased to be an “occupier” of the relevant roadway, according to the definition set forth in the Occupiers’ Liability Act, supra. In such circumstances, there arguably was no basis for application of that legislation, in a manner displacing the common law of negligence otherwise applicable to determining the potential liability of the relevant contractor.

c. In my view, the situation in the case before me is clearly distinguishable, in that regard, from that which existed in Morsi v. Fermar Paving, supra. In particular, at the time of the underlying accident in this case:

i. The relevant stretch of roadway clearly was a form of “lands”, and therefore “premises” within the broad definition of that term set forth in the Occupiers’ Liability Act, supra.

ii. Walmsley Brothers was still on site, and in my view in “physical possession” of the relevant stretch of roadway, with immediate “responsibility for and control over the condition” of that stretch of roadway. In any event, Walmsley Brothers unquestionably had “control over persons allowed to enter” that stretch of roadway, insofar as Walmsley Brothers was using its employees to halt traffic approaching that stretch of roadway, and allowing traffic to use that roadway only in accordance with the directions, (given through signs, gestures and/or words), being given by employees of Walmsley Brothers. Walmsley Brothers therefore also was an “occupier” of the relevant “premises” at the time of the accident underlying this litigation.

iii. The potential liability of Walmsley Brothers for the underlying accident accordingly is governed by the provisions of the Occupiers’ Liability Act, supra; provisions which, in the circumstances, displace application of the common law of negligence as far as Walmsley Brothers is concerned.[^67]

[35] In my view, the parties in this litigation accordingly were correct in their assessment that the potential liability of Elgin County is governed primarily by the Municipal Act, 2001, supra, and the potential liability of Walmsley Brothers is governed primarily by the Occupiers’ Liability Act, supra.

[36] In relation to the Occupiers’ Liability Act, supra:

a. The Act generally establishes and sets out the duty of care owed by occupiers of premises to persons who come onto those premises, with section 1 of the legislation:

i. defining “premises” so as to include “lands and structures, or either of them”; and

ii. defining “occupier” so as to include a party “who is in physical possession of premises” or “who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises”.[^68]

b. One of the principal purposes of the Occupiers’ Liability Act, supra, was to replace the “somewhat obtuse" common law relating to occupiers’ liability by a generalized duty of care based on the “neighbour” principle set down in Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.).[^69] In that regard:

i. Pursuant to section 3(1) of the Act, an occupier of premises now generally owes “a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises … are reasonably safe while on the premises”, and where circumstances warrant, that requires positive action on the part of occupiers to make their premises reasonably safe.

ii. Of necessity, that statutory duty on occupiers is framed quite generally.

iii. The duty to take reasonable care in the circumstances to make the premises safe does not change, but the factors relevant to an assessment of what constitutes reasonable care necessarily will be very specific to each fact situation. They may include, among other things, factors such as the following: weather; the time of year; the size, nature and use of the particular area where an accident occurred; and the cost of preventative measures.[^70]

c. While the statute creates a positive obligation upon occupiers to take reasonably necessary care to keep those who come on to their premises reasonably safe, it does not create a presumption of negligence arising from the fact of injury. The overall onus of proof remains on a plaintiff to prove, on a balance of probabilities, that a defendant occupier failed to meet the standard of reasonable care. In particular, where a plaintiff is injured on premises, he or she must still be able to pinpoint some act or failure to act on the part of the occupier, which caused the injury complained of, before liability can be established.[^71]

d. In fulfilling its statutory duty, it is not incumbent on a defendant occupier to guard against every possible accident that might occur. The applicable standard of care is one of reasonableness; a standard that is not absolute, and which requires neither perfection effectively transforming an occupier into an “insurer”, (e.g., by essentially requiring an occupier to remove every possibility of danger or sanitize an environment to a degree negating all inherent risk), nor unrealistic or impractical precautions against known risks. An occupier’s failure to meet the required standard of care accordingly is not established merely because a hazard or risk of harm is present. What is required is a balancing of what may be a reasonable course of conduct against the potential for harm; i.e., to ensure that occupiers do not breach the required standard of care by creating or failing to address an objectively unreasonable risk of harm. Moreover, in discharging its duty to make premises reasonably safe, an occupier is only required to exercise care against dangers that are sufficiently probable to be included in the category of reasonably foreseeable contingencies. Where there is a known danger, the occupier must have a reasonable system in place to ensure that users of a property will be reasonably safe from experiencing an accident because of such conditions.[^72]

e. In particular, a defendant occupier may refute any suggested breach of the statutory duty, and/or demonstrate the taking of reasonable care appropriate in the circumstances, by showing that it had a reasonable plan or scheme in place, (for example, to address possible safety concerns and minimize hazards by inspection, maintenance and monitoring), that was being followed at all relevant times. In that regard:

i. The plan need not be foolproof, or reduced to writing, so long as it is reasonable under all the circumstances.

ii. If evidence of compliance with such a plan or scheme at a specific time is lacking, a defendant occupier may establish routine compliance with the scheme or plan, from which the court may infer observance at the time in question.

iii. Conversely, a disorganized system involving multiple actors, poor communication, a lack of vigilance to ensure that such concerns are being properly attended to, and/or which allows for inappropriate delays in addressing problems and hazards, may not provide an adequate defence.

iv. While the overall onus remains on the plaintiff to prove his or her case, it is not up to the plaintiff to negative such a potential defence. It is up to the defendant to call evidence in support of such a defence.[^73]

f. The existence of customary practices which are unreasonable in themselves, or which are not otherwise acceptable to the courts, in no way ousts the duty of care owed by occupiers under s.3(1) of the Occupiers’ Liability Act, supra.[^74]

g. Pursuant to s.3(2) of the Occupiers’ Liability Act, supra, an occupier’s general statutory duty of care applies whether the danger is caused by the condition of the premises, or by an activity being carried on at the premises.

h. Pursuant to s.3(3) of the Occupiers’ Liability Act, supra, the duty also applies “except insofar as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty”. For example, an occupier may wish to put part of his property “off limits” rather than to make it safe, and in certain circumstances, that might be considered reasonable. Where no such effort has been made, however, the exceptions to an occupier’s statutory duty of care “will be few and narrow”.[^75] Moreover:

i. Although s.4(1) of the Act also includes provisions indicating that an occupier’s duty of care “does not apply in respect of risks willingly assumed by the person who enters on the premises”, this is viewed by courts as an embodiment of “the volenti doctrine”, and given a similarly narrow interpretation and application.

ii. While the defence operates as a complete bar to recovery, it was intended to be “a very narrow exception” to the occupier’s statutory duty of care, and only arises “where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant’s part”.[^76]

i. Pursuant to subsections 5(1) and 5(2) of the Occupier’s Liability Act, supra:

i. the duty of an occupier under the Act, or the occupier’s liability for breach of such a duty, may not be restricted or excluded by any contract to which the person to whom the duty is owed is not a party, whether or not the occupier is bound by the contract to permit such person to enter or use the premises; and

ii. barring express contractual provisions to the contrary, a contract may not have the effect of making an occupier, who has taken reasonable care, liable to any person not a party to the contract for dangers due to the faulty execution of any work of construction, maintenance or repair, or other like operation by persons other than the occupier, employees of the occupier and persons acting under the occupier’s direction and control.

j. Pursuant to subsection 6(1) of the Occupiers’ Liability Act, supra, where damage to any person is caused by the negligence of an independent contractor employed by an occupier, the occupier is not on that account liable:

i. if in all the circumstances the occupier acted reasonably in entrusting the work to the independent contractor;

ii. if the occupier took such steps the occupier reasonably ought to have taken in order to be satisfied that the contractor was competent, and that the work was being properly done; and

iii. if it was reasonable that the work performed by the independent contractor should have been undertaken.

k. However, pursuant to subsection 9(1) of the Occupier’s Liability Act, supra, nothing in the Act relieves an occupier of premises, in any particular case, from “any higher liability or any duty to show a higher standard of care that in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons”.[^77]

l. Pursuant to s.9(3) of the Occupiers’ Liability Act, supra, Ontario’s Negligence Act, supra, applies to causes of action governed by the Occupiers’ Liability Act, supra.

NEGLIGENCE ACT

[37] The Municipal Act, 2001, supra, and the Occupiers’ Liability Act, supra, accordingly both cross-reference the Negligence Act, supra, and confirm its continued relevance in situations otherwise governed by those two other Acts.

[38] Amongst the provisions found within the Negligence Act, supra:

a. Section 1 provides that “Where damages have been caused or contributed to by the fault or neglect of two or more persons, the court shall determine the degree in which each of such persons is at fault or negligent, and, where two or more persons are found at fault or negligent, they are jointly and severally liable to the person suffering loss or damage for such fault or negligence, but as between themselves, in the absence of any contract express or implied, each is liable to make contribution and indemnify each other in the degree in which they are respectively found to be at fault or negligent”;

b. Section 3 provides that “In any action for damages that is founded upon the fault or negligence of the defendant, if fault or negligence is found on the part of the plaintiff that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligence found against the parties respectively”; and

c. Section 4 provides that “If it is not practicable to determine the respective degree of fault or negligence as between any parties to an action, such parties shall be deemed to be equally at fault or negligent.”

[39] The “last clear chance” doctrine, whereby liability between multiple parties causing or contributing to an accident previously was apportioned to a much greater degree to the party who had the last opportunity to avoid a loss, has been rejected.[^78]

[40] As for contributory negligence of a plaintiff, the possibility of which is addressed by section 3 of the Negligence Act, supra, general principles include the following:

a. When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued. All that is necessary to establish such a defence is to prove to the satisfaction of the trier that the injured party did not, in his or her own interest, take reasonable care of himself or herself, and thereby contributed, by that want of care, to his or her own injury or loss. When contributory negligence is set up as a shield against a defendant’s obligation to satisfy the whole of a plaintiff’s claim, the principle involved is that, where a person is part author of his or her own injury, he or she cannot call on the other party to compensate him or her in full. The result is that the injured party recovers less than full compensation for his or her injuries.[^79]

b. Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. In particular, just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence only if he or she ought reasonably to have foreseen that, if he or she did not act as a reasonable, prudent person, he or she might be hurt himself or herself; and in his or her reckonings, he or she must take into account the possibility of others being careless.[^80]

c. Contributory negligence can arise in three ways:

i. a plaintiff’s negligence may have been a cause of the accident, in the sense that his or her acts or omissions contributed to the sequence of events leading to the accident;

ii. although the plaintiff’s negligence may not have been a cause of an accident, the plaintiff may have put himself or herself in a position of foreseeable harm; and

iii. a plaintiff may have failed to take precautionary measures in the face of foreseeable danger.[^81]

d. In relation to the first type of contributory negligence, (i.e., where it is alleged that a plaintiff’s negligence was a cause of the accident), a finding of contributory negligence does not require that the plaintiff’s negligence was the only cause of the relevant accident. However, the plaintiff’s negligence must have been a proximate or effective cause of the accident. In particular, if the plaintiff was negligent, but that negligence did not in fact cause or contribute to causation of the accident or damage to the plaintiff, there should be no finding of contributory negligence.[^82]

e. The burden of proving contributory negligence on the part of a plaintiff, and that any such contributory negligence caused damages for which a defendant otherwise might be wholly responsible, lies on the defendant alleging contributory negligence.[^83]

[41] In assessing the possibility of contributory negligence on the part of plaintiffs advancing claims governed by the Municipal Act, 2001, supra, courts have considered factors such as those, noted above, which distinguish negligent drivers from ordinary drivers; e.g., failure to exercise ordinary care, failure to pay attention, and failure to use caution and adjust behaviour according to the nature of the roadway and driving conditions, including failure to drive at appropriate speeds.[^84]

[42] In assessing the possibility of contributory negligence on the part of plaintiffs advancing claims governed by the Occupiers’ Liability Act, supra, courts have considered factors such as:

a. whether the plaintiff knew or ought to have known of the possibility of a hazard existing at the location in question, having regard to prevailing conditions;

b. whether the prevailing circumstances, (such as lighting or the absence of obstructions or other distractions), would have permitted an ordinary person, paying reasonable attention, to notice the presence of the relevant unsafe condition;

c. whether the plaintiff failed to keep a proper lookout and exercise proper caution, or had his or her attention focused elsewhere;

d. whether the plaintiff failed to adjust his or her pace to allow for the presence or possibility of the relevant unsafe condition;

e. whether the plaintiff was impaired owing to the ingestion of medications or alcohol; and

f. whether the plaintiff exercised appropriate care in the choice of clothing/equipment.[^85]

[43] The burden of proving any such contributory negligence, and its causation of the damages for which the defendant otherwise might be wholly responsible, lies on the defendant.

CAUSATION

[44] The elements of a claim to be proven by a plaintiff in a tort action generally include causation; i.e., proof on a balance of probabilities that a defendant’s impugned conduct actually caused the loss complained of.[^86]

[45] Moreover, as already noted to some extent above, causation forms a necessary component of any finding of liability pursuant to the Municipal Act, 2001, supra, the Occupiers’ Liability Act, supra, and/or findings of possible joint and/or contributory negligence pursuant to the Negligence Act, supra. In particular:

a. In relation to claims governed by the Municipal Act, 2001, supra, even if a claimant succeeds in establishing the existence of a “default” in a road’s “state of repair” at the time of an accident, such a claimant must still satisfy his or her onus of establishing causation, as required by s.44(2) of the Municipal Act, 2001, supra. If such a default exists but did not cause the accident or the resulting losses experienced by a claimant, no liability can attach to the municipality even if it otherwise is to blame for allowing and/or not taking adequate measures to remedy the default.

b. In relation to claims governed by the Occupiers’ Liability Act, supra, the legislation expressly indicates that it was enacted to modify and replace the rules of common law governing the duty of care owed by occupiers; i.e., as opposed to any modification of the common law requirement of a claimant having to prove that his or her damages were caused by a defendant before the imposition of liability for such damages. Moreover, the legislation expressly refers to that causation requirement in s.6(1), when focusing on situations “where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier”. In the result, it is not surprising that many authorities have emphasized the proof of causation is an essential component of any successful claim advanced pursuant to the Occupiers’ Liability Act, supra.[^87]

c. As noted above, in relation to application of the Negligence Act, supra:

i. section 1 of that legislation requires the court to make assessments of joint liability for negligence “where damages have been caused or contributed to by the fault or neglect of two or more persons”; and

ii. section 3 of that legislation requires the court to apportion damages in any action for damages founded upon the fault or negligence of the defendant “if fault or negligence is found on the part of the plaintiff that contributed to the damages”. [Emphasis added.]

[46] Causation is not implicit in identification of a failing on the part of a defendant, and the mere fact of an accident having occurred. There must be a finding of causation connecting the two, in the manner required by law.[^88]

[47] Similarly, as noted above, there can be no finding of contributory negligence, reducing a plaintiff’s recovery of damages, unless a defendant proves that the plaintiff’s negligent conduct caused or contributed to the plaintiff’s injuries or loss.[^89]

[48] Pursuant to authorities such as Snell v. Farrell, 1990 70 (SCC), [1990] 2 S.C.R. 311, Athey v. Leoni, 1996 183 (SCC), [1996] 3 S.C.R. 458, Resurface Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, and Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181:

a. The basic test for determining causation generally is the “but for” test. The party with the burden of proving causation must show, on a balance of probabilities, that “but for” the impugned conduct of the at-fault party, the relevant injuries/damages would not have occurred. Inherent in the phrase “but for” is the requirement that the impugned conduct was necessary to bring about the relevant injury/damages; in other words, that the injury would not have occurred without the impugned conduct. This is a factual inquiry. If the party with the burden of proving causation does not establish that on a balance of probabilities, having regard to all the evidence, his or her claim against the party who committed the impugned conduct, (including a claim of contributory negligence), fails.

b. Determining whether the relevant injury/damages would have occurred without the impugned conduct is essentially a practical question of fact, and the “but for” causation test must be applied in a “robust common sense fashion” In particular, there is no need for scientific evidence of the precise contribution the impugned conduct made to the injuries/damages.

c. In special circumstances, the law has recognized exceptions to the basic “but for” causation test and applied a “material contribution” test instead; i.e., in special circumstances where application of a “but for” approach would offend basic notions of fairness and justice, because circumstances beyond a plaintiff’s control make satisfaction of the “but for” test impossible to satisfy. In particular, a party with the burden of establishing causation may succeed by showing that the relevant impugned conduct “materially contributed” to risk of the relevant injury/damages where:

i. the party with the burden of proving causation has established that the loss would not have occurred “but for” the impugned conduct of two or more parties, each possibly in fact responsible for the loss; and

ii. the party with the burden of proving causation, through no fault of his, her or its own, is unable to show that any one of the possible at fault parties in fact was a necessary “but for” cause of the injury/damages because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.[^90]

[49] In relation to required determinations of causation in the present case, neither counsel for the plaintiffs nor counsel for the defendants submitted that this was a case involving special circumstances sufficient to warrant, on an exceptional basis, application of the “material contribution” test rather than the “but for” test. I agree that this case presents no such special circumstances.

Analysis

[50] With all of the above legislative provisions and principles in mind, I turn, finally, to their application on the particular facts of this case.

[51] It may be helpful for me to state at the outset of my analysis that, for the reasons that follow, I have found:

a. that the plaintiffs have satisfied their onus of establishing, on a balance of probabilities, that Elgin County is liable for having breached its duty owed under s.44(1) of the Municipal Act, 2001, supra, to keep the relevant roadway in a state of repair that was reasonable in the particular circumstances of this case, in turn causing the damages sustained by the plaintiffs;

b. that the plaintiffs have satisfied their onus of establishing, on a balance of probabilities, that Walmsley Brothers is liable for having breached its duty owed under s.3(1) of the Occupiers’ Liability Act, supra, to take such care as was reasonable, in all the circumstances of this case, to see that persons entering on the relevant section of roadway would be reasonably safe while on that relevant section of the roadway, in turn causing the damages sustained by the plaintiffs; and

c. that the defendants have not satisfied their onus of establishing, on a balance of probabilities, that the plaintiff was contributorily negligent in any manner that caused the damages sustained by the plaintiffs.

[52] I will return later, in the course of these reasons, to state more expressly my findings in relation to the required steps of the analysis leading to the above conclusions.

[53] For now, I begin by outlining numerous considerations and additional incidental findings which factored into my decisions in relation to each of those steps, many if not most of which are common to each required chain of analysis and reasoning. They include the following:

a. The defendants placed considerable emphasis on the extent to which the new asphalt applied to the road may have been compacted; i.e., with its density being increased, and internal voids being decreased, through the application of intense compression brought about by the application of extremely heavy rolling weights. For example, Glenn Walmsley in particular expressed the view that, once the asphalt applied by Walmsley Brothers had attained its maximum compaction after the rubber tire roller had completed its work, the asphalt also was “as “hard as it can be”. Similarly, when asked about the hardness of the road, and whether new asphalt would become harder over time, Ian Albert initially responded by saying no, and emphasizing that new asphalt was “only going to compact so much”; i.e., effectively equating the extent of new asphalt’s compaction with the extent to which it was hard. However, I think it worth noting and emphasizing that, as a matter of common sense if not basic physics, and as demonstrated by the evidence in this case, compaction alone is not necessarily synonymous with a substance being solid and hard. In particular, the evidence in this case made it absolutely clear, (as Glenn Walmsley himself acknowledged during cross-examination), that solidification and hardening of asphalt is affected not only by compaction but also, to a significant extent, on the rate at which asphalt is allowed to progressively cool from its original high mixing temperature that reduces its combined components to a dense but essentially liquid form.[^91] In particular:

i. That is why asphalt has to be applied before it falls below a certain temperature, and why the timing of steps like the final rolling of asphalt, after initial extensive compactions, are calibrated to be performed between certain temperatures when the asphalt has cooled to but not below certain temperatures.

ii. As Glenn Walmsley emphasized in his testimony, newly applied asphalt has reached its maximum compaction, (i.e., 93-96 percent), after the second and heaviest roller has completed its work, at which point the asphalt has cooled further from a temperature of approximately 240 degrees, when the second roller commences its work, to a temperature of 190 or 180 degrees when the second roller completes its job. However, at that point, the asphalt may have reached its maximum compaction, but it has still not completely solidified and hardened. To the contrary:

1. It clearly remains somewhat malleable at that point, despite having reached its maximum compaction, as there otherwise self-evidently would be no point in then applying finishing rollers to smooth out marks and “ripples” left in the asphalt’s surface after the second roller has completed its work.

2. Indeed, as Glenn Walmsley also emphasized, the asphalt is so soft and malleable at that point, (i.e., when the second roller has completed its work and the asphalt has reached its maximum compaction), that the operator of the finishing roller has to wait “upwards of almost an hour”, after completion of the second roller’s work, for the asphalt to cool and harden further; i.e., “until the temperature gets low enough so that he [the operator of the finishing roller] doesn’t leave his own marks in it”. As noted above, the operator of the finishing roller, using a heat gun, therefore aims to perform his finishing work when the asphalt has cooled to temperatures between 180 and 145 degrees, and ideally between 180 and 160 degrees, or 175 degrees in particular; i.e., when the asphalt is still hot enough to manipulate, but cool and solid enough to resist marking as easily.

iii. For his part, Chris Walmsley similarly acknowledged, in cross-examination, that time affects the firmness of new and compacted asphalt to some degree; e.g., in terms of whether objects on such new asphalt will sink into it or leave marks.

iv. Similarly, Ian Albert acknowledged in cross-examination that new asphalt remains malleable after the compaction process has been completed, and that malleability will still be reducing over time as the temperature of the new asphalt continues to cool down. As he put it: “So like, as it cools, it sets up”, and “Like, if we just paved the road a few hours before, it’s going to be a bit softer than the road that’s been there for 20 years”.[^92] In that regard, Mr Albert noted that the cooling and progressive hardness of new asphalt is also affected by the weather; e.g., as a bright sunny day, (such as that depicted in the photographic evidence), could also add heat to the new asphalt.

v. In my view, the above information is significant not only to demonstrate the lack of any precise equivalence between compaction and hardening, but also to demonstrate that the paving process used by Walmsley Brothers creates the possibility and in my view probability of an asphalt “temperature zone” where the paving process may have been completed, up to and including final passage of the finishing roller, but the asphalt still has not cooled to the point where it is no longer malleable. In particular:

1. According to Glenn Walmsley’s evidence, the asphalt remains sufficiently soft and malleable for the finishing roller to complete its work as long as the asphalt’s temperature has not dropped below 145 degrees.

2. If the finishing roller embarks on its work as soon as possible after the second roller has completed its work, when the temperature has dropped to just 180 degrees, the finishing roller might very well complete its work well before the temperature has dropped to 145 degrees. Indeed, Glenn Walmsley indicated that the finishing roller ideally will complete its work before the asphalt temperatures drops below 160 degrees. In other words, that is the desired practice objective of Walmsley Brothers, and therefore the practice it is likely to follow.

3. In effect, that leaves the distinct possibility and in my view probability that the asphalt will remain somewhat malleable for some time after the finishing roller completes its work, and certainly at least until it cools further to a temperature of 145 degrees.

4. That reality in turn means that, if flaggers at the rear of the paving operation also make a routine practice of directing traffic onto new asphalt as soon as the finishing roller has completed its work, (e.g., in accordance with their common practice and belief that the asphalt has hardened completely at that point), they probably will be directing traffic onto asphalt that may have reached its maximum compaction, but which has not yet completely solidified and hardened because it has not had sufficient time to cool sufficiently to make that happen.

5. In my view, the probability of that happening obviously would be enhanced in situations where, as in this case, weather conditions were more conducive to the asphalt retaining its heat for a longer period of time. In that regard:

a. The relevant paving operation in this case occurred on a day in late June.

b. The undisputed testimony of Ms MacLean indicated that the weather on the day of the accident was “beautiful” and “sunny”.

c. The undisputed testimony of Mr Miles indicated that the weather on the day of the accident was “nice”, with conditions being a “little overcast” in the morning, but clearing such that things “warmed up” in the afternoon. In that regard, Mr Miles estimated that the weather in the area where they were riding had warmed to somewhere “in the mid-twenties”, Celsius, when the accident occurred.

d. The testimony of Ms MacLean and Mr Miles in that regard is supported by the photographs taken that day, shortly after the accident, showing sunshine and very pronounced shadows, with no precipitation. It is also supported by the objective government weather data for the London area on the day of the accident, indicating that the temperature that day rose steadily between 4:00am and 1:00pm, by which time it had reached a temperature of more than 23 degrees Celsius; a temperature that generally was sustained past 2:00pm and therefore up until a short time before the accident.[^93]

e. In my view, all of these conditions made it more likely that the newly applied asphalt laid down by Walmsley Brothers on Richmond Road would not have cooled to the point of being solid and hard immediately after the finishing roller had completed its work

6. As noted above, systems designed to keep roads in a state of repair such they are reasonably safe for ordinary drivers traversing them with reasonable care need not be perfect and eliminate all possible risks, and systems used by occupiers to fulfil their duty of taking reasonable care to make their premises reasonably safe for those entering onto them need not be foolproof. However, the traffic control system adopted by Walmsley Brothers effectively incorporated a situation whereby passing motorists, including the ordinary drivers of motorcycles, probably would be directed to transition onto asphalt that had attained maximum compaction but was not yet hard and solid. Moreover, in situations where the paving operation was at a stage where traffic was being directed to transition from an open lane with original pavement into and onto a lane with freshly applied asphalt, passing motorists, including the ordinary drivers of motorcycles, probably would be directed to transition over a raised/elevated edge or lip of fresh asphalt that was not yet solid and hard.

7. In that regard, I say “probably” because a particular situation might involve prevailing conditions, (e.g., colder weather or intermittent rain), wherein freshly applied asphalt might cool more rapidly. Similarly, if the finishing roller delayed carrying out its work such that the work was completed when the freshly applied asphalt already had cooled to a temperature close to 145 degrees Fahrenheit, or the rear flagger happened to delay moving forward and directing traffic onto freshly applied asphalt for a longer period of time after the finishing roller completed its work, the fresh asphalt may have an opportunity to cool to the point where it is solid and hard before traffic is directed onto it. As with all cases of this nature, (i.e., involving potential liability pursuant to the Municipal Act, 2001, supra, or the Occupiers’ Liability Act, supra), each situation needs to be examined by focusing on the particular circumstances that prevailed at the time of an underlying accident.

b. Moreover, as a matter of common sense, I think compaction of the newly applied asphalt inherently would have been less, to at least some degree, at the outer edge of the new asphalt running along the centre of Richmond Road. In particular:

i. Compaction of the asphalt was accomplished by the force of compression exerted when the new asphalt was trapped between the solid base below and the application of heavy rolling weights above, with asphalt located away from the edges, abutting other asphalt being compressed at the same time, realistically having “nowhere to go”; i.e., such that its density through the application of such pressures could only increase.

ii. However, at the very edge of the asphalt, where the outer edge or lip of the top of the asphalt effectively was being created, the asphalt being compressed between the solid base below and heavy rollers being applied above did have somewhere else to go; i.e., as it was free to move laterally/horizontally outwards, to some extent, in the direction of the road’s normally northbound traffic lane.

iii. In response to my questions about that, Glenn Walmsley indicated his belief that there would be very little difference between the level of asphalt compaction in the middle of a paving job and at its edges, based on his understanding of compaction testing done by “consultants and the government”, who use a “nuclear machine” that is set on asphalt to test compaction at various intervals to determine what level of compaction is being achieved during paving operations. However:

1. Mr Walmsley also noted that such machines are incapable of operating at the “very outside edge” of paved asphalt, and measuring the density of new asphalt at that precise location. Such machines must instead rely on a density average, generated by testing density over a six-to-eight-inch width near to that outer edge. In my view, that limitation has significance in a case such as this, which effectively turns in large measure on the solidity, hardness and corresponding stability of the very eastern edge of the new asphalt Ms MacLean’s motorcycle wheels were trying to traverse.

2. Mr Walmsley also noted, during the course of his testimony, that asphalt at the edges of the layer of asphalt laid down by the paver and the screed is in fact pushed horizontally out to the sides by one to two inches as the rollers pass over the edges of the newly laid asphalt. Again, in my view it self-evidently does that because it can; i.e., because it effectively meets no lateral resistance as it is being compressed from above, and therefore moves outwards to the “open” side, creating the slopes of rough and obviously less compressed new asphalt depicted in the accident scene photographs. In the circumstances, and as a matter of common sense, I think it naturally follows that the asphalt at the very edge of the newly laid asphalt’s surface area inevitably will have been under less compression force, and therefore have been compressed less, (despite that area having been passed over by all of the rollers), than newly laid asphalt located further away from the edges and closer to the centre of the newly paved lane.

3. On any view, (and as acknowledged by Glenn Walmsley during the course of cross-examination), the slope of rough asphalt running along the road’s centre line, rising up to but below the flattened and smoothed elevated surface of the new asphalt, remained below the rollers, (even to the extent they may have been overhanging the edge of new asphalt’s elevated top surface), and therefore actually received no direct compression, flattening or smoothing force from those rollers.

c. On a related note, it seems to me that a proper assessment of whether the asphalt lip or edge constituted a failure by Elgin County to keep the road in a reasonable state of repair, (as required by the Municipal Act, 2001, supra), or a failure by Walmsley Brothers as an occupier of the road to take reasonably necessary care to keep those coming on to it reasonably safe, (as required by the Occupiers’ Liability Act, supra), requires proper consideration of the significant differences between motorcycles and other motor vehicles. In that regard:

i. Motorcycle operators clearly are some of the “ordinary drivers” who may need to travel on a public highway in safety, exercising reasonable care.

ii. As reflected in numerous court decisions, certain road conditions realistically may pose dangers to motorcycles that are not faced by other motor vehicles, or comparatively greater hazards for motorcycles, having regard to their fundamentally different nature and characteristics; dangers which defendants charged with responsibility for roads must consider and take into account when taking steps to ensure that such roads are reasonably safe.[^94] Such realities certainly were highlighted by the evidence in this case. For example:

1. To state the obvious, (but as understandably emphasized directly and indirectly by a number of witnesses in this case), motorcycles have only two wheels, and are therefore inherently less stable than vehicles having four or more vehicles. The latter can slow or indeed come to a complete stop without any danger of falling to one side or the other, and therefore without creating the corresponding risk of resulting potential injuries to their operators or passengers. Motorcycles require sustained forward momentum to maintain balance, and accordingly become increasingly unstable if surface conditions inhibit their ability to keep moving forward at a minimum speed.

2. On a related but less obvious note, but equally important to the stability of a motorcycle in contrast to vehicles having four or more wheels, is the reality that motorcycles typically have only one power driven wheel to ensure forward propulsion, whereas other vehicles usually have two or more powered wheels capable of ensuring forward propulsion. When a motorcycle crosses a raised elevation at an angle, it accordingly depends entirely, (at least in the absence of significant forward momentum – which it is unlikely to have at slow speeds on a level road), on the ability of its one powered rear wheel to ensure forward propulsion sufficient to allow the motorcycle’s stable and safe transit over the elevation. If that one powered wheel is unable to supply propulsion when it reaches the point of transit over the elevation, there will be resulting instability of the motorcycle for the reasons mentioned in the preceding sub-paragraph. In contrast, a vehicle with four or more wheels, more than one of which is powered, is much less likely to be placed in a position where all of its powered wheels are simultaneously unable to provide forward propulsion at the point of transition over the elevation, unless all of the powered wheels reach the transition point simultaneously; e.g., by a vehicle with two powered wheels, positioned bilaterally, approaching a raised elevation at a right angle. In particular, a vehicle with two or more powered wheels, crossing an elevation transition point at an angle, almost certainly will have one of those powered wheels on a completely flat surface at any given time, capable of providing traction to push and/or pull the vehicle over the elevation transition point; i.e., depending on whether the vehicle has bilateral front wheel drive, bilateral rear wheel drive, or four wheel drive.

3. As emphasized by Mr Inglis in his expert testimony, and the photographs and video of Ms MacLean’s motorcycle, the tires of motorcycles have a fundamentally different design and operation than the tires of vehicles having four or more wheels. In particular:

a. The tires of cars and trucks have flat “profiles” and treads at their “bottom”, (i.e., along and around their outer circumference), reflecting the reality that such vehicles generally maintain a horizontal equilibrium as they travel along roadways and negotiate curves and turns. In other words, such vehicles generally do not roll significantly to the left or right during such curves and turns, but instead generally have four upright wheels riding along the ground at all times. Given that reality, it makes sense for the tires of such vehicles to have flat and level profiles around their outer circumference, maximizing the area of contact between each of the wheels and the road surface, in turn maximizing friction for braking and propulsion. A vehicle tire with a flat and level profile attempting to negotiate a raised surface edge or elevation accordingly will have contact points all along the edge of that raised elevation, to assist in providing traction to pull or push a vehicle over that edge.

b. In marked contrast, the safe operation of “single track” vehicles such as bicycles and motorcycles requires their operators to lean such vehicles to one side or the other as they round curves and turn corners, particularly at higher speeds. In the result, the profile of the outer circumference of motorcycle tires necessarily is rounded instead of being flat/level; i.e., such that there will always be a treaded tire in contact with the surface of a roadway, even as motorcycles necessarily, inevitably and routinely lean to the left or right. However, while the rounded nature of motorcycle tires thereby ensures the availability of tread contact between such “single track” vehicle tires and road surfaces, (e.g., to facilitate traction, braking and propulsion during curves and turns), it also means that the size of the “contact patch” or total area of contact between motorcycle tires and underlying surfaces over which they are passing will always be much smaller than the “contact patch” between such surfaces and the tires of vehicles having more than two wheels and tires with flat profiles and treads around their circumference. Indeed, while the contact patch of a tire with a flat profile and tread usually will approximate the entire width of the tire, Mr Inglis says the contact patch between a motorcycle tire and a flat surface normally will be no more than approximately 50 percent of the motorcycle tire’s width.

c. Moreover, when a motorcycle attempts to pass over the edge of a raised elevation, the point or points of contact between a motorcycle’s rounded tires and underlying surfaces effectively will be reduced to an even smaller, narrower and more concentrated area or areas, which has considerable significance. In particular:

i. If the elevated edge is sufficiently high, there inevitably will be a point during a motorcycle wheel’s transit over such an elevated edge where much of the motorcycle’s tire effectively is suspended above and separated from the surface below; i.e., by a “bridge” effectively formed between the last remaining contact point on the lower surface elevation and the lead contact point at the edge of the higher surface elevation, leaving a “gap of air” below the intervening portion of the tire.

ii. While that phenomenon may occur to some extent in relation to the flattened/level tire tread profiles of vehicles with more than two wheels, its significance becomes heightened and much more pronounced in relation to motorcycles, which not only have rounded tires but only one powered wheel, (i.e., the rear wheel), capable of providing the motorcycle with necessary forward momentum to sustain stability. That rear wheel must succeed in gaining sufficient traction if the motorcycle is to keep moving forward, allowing its operator to prevent the motorcycle from falling to one side or the other.

iii. As Mr Inglis explained in his expert testimony, (which I accept), when the powered rear wheel of a motorcycle attempts to pass over a raised elevation, effectively creating the “bridge” effect noted above, suspending much of the rear tire’s normal contact surface between two small and concentrated points of contact between the tire and surfaces below, (i.e., the leading point of contact between the rear motorcycle tire and the trailing point of last contact between the rear motorcycle and the lower surface it is leaving), the primary point of contact surface and necessary traction becomes the relatively small and concentrated area of surface contact between the leading edge of the motorcycle’s rear tire and the point it reaches at the surface edge of the higher elevation.[^95] That in turn increases the importance of that elevated surface edge being hard and stable; i.e., in terms of ensuring the rear motorcycle tire’s ability to maintain traction sufficient to sustain forward movement and corresponding stability of the vehicle, while it transits over such a change in elevation. Such traction, and corresponding maintenance of a motorcycle’s forward momentum, is particularly important in situations where a motorcycle is travelling at slower speeds, which require greater operator input, (in terms of rider movement and balance adjustments), to keep a motorcycle stable without having to put his or her feet down on either side of the vehicle; something properly trained motorcycle operators ideally never do while their motorcycles are in motion.

4. Furthermore, riders of motorcycles self-evidently are exposed to greater risks of physical harm in the event of an accident, insofar as they are not surrounded by and restrained within a protective area of a vehicle.

iii. In my view, repeated assertions by defence witnesses that vehicles such as cars, transport trucks and emergency vehicles are able to safely transition onto freshly paved and elevated surfaces essentially minimize and/or ignore the ordinary but enhanced risks such new and raised asphalt surfaces may pose to motorcycle operators and passengers.

d. In my view, the physical evidence depicted in the photographs and video segments filed as exhibits deserves a great deal of weight in this case, as it is inherently objective and enables a number of significant inferences. Without limiting the generality of the foregoing:

i. Although the particular new asphalt driven over by Ms MacLean may have been compacted, it self-evidently was not solid and hard at the time of Ms MacLean’s accident nor shortly thereafter - and certainly did not have the hardness of finished asphalt, described by Glenn Walmsley, capable of having heavy transport trucks traverse it without leaving a mark. For example:

1. In my view, solid and hard asphalt would not splatter and disperse in clumps or gobs of various sizes along and from an approximate four-to-six-foot length of its outer edge or “lip”, (estimated on the basis of the testimony of Mr Miles, as well as the standard sized cigarette packet Mr Miles placed in the photographs taken of that area to provide an indication of scale), in the manner photographed at the point where Ms MacLean attempted to transition from the “old” pavement of the normally northbound traffic lane of Richmond Road to the recently applied asphalt in the normally southbound traffic lane of Richmond Road.

2. Similarly, in my view, a motorcycle falling on solid and hard asphalt would not result in obvious clusters of asphalt adhering to and to some extent encasing various components of that falling motorcycle, including one of its front turn indicators, part of its handlebars, and its gear mechanism.[^96] Forceful high impact collisions between vehicle components and solid/hard pavement normally result in scrapes and gouges, not marked and noticeable accumulations of asphalt adhering to and surrounding vehicle components. In that regard, I note that asphalt also adhered to softer, padded and flat areas of Ms MacLean’s motorcycle, (e.g., its leather seating), where the force of contact between the newly paved surface of the northbound lane and the falling motorcycle, “toppling” onto its side when its slowing forward momentum came to an end, inherently would have been blunted and/or cushioned. In my opinion, all of that documented asphalt adherence goes well beyond the sort of very temporary “tacky” surface paste quality Glenn Walmsley described, (i.e., a surface that, if touched by hand, would be “sticky” in a manner akin to touching masking tape, and possibly capable of leaving a “black stain”, but not capable of leaving asphalt sticking to one’s hand), when attempting to minimize the markings that might be made by freshly applied asphalt once the finishing roller had completed its work. Varying amounts of asphalt also adhered to the front and rear tire treads of Ms MacLean’s motorcycle.

3. Likewise, in my view, solid and hard pavement would not have exhibited numerous and obvious markings left on the freshly applied asphalt