COURT FILE NO.: CV-03-568 (Belleville)

DATE: 20200206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLIE GAIL LLOYD AND JASON LLOYD

Plaintiffs

– and –

DAVID P. BUSH, 818601 ONTARIO INC., THE CORPORATION OF THE COUNTY OF LENNOX AND ADDINGTON, THE CORPORATION OF THE TOWN OF GREATER NAPANEE

Defendants

R. Steven Baldwin, for the Plaintiffs

David G. Boghosian and Matt Brown, for the Defendants, The Corporation of the County of Lennox and Addington, The Corporation of the Town of Greater Napanee

HEARD at Belleville: 29 and 30 April; 1, 13, 14, 15, 16, 22, 23, 24, 29 May 2019

REASONS FOR JUDGMENT

MEW J.

[1] Lennox and Addington County Road 9 (“CR9”) leads southwest from its intersection with County Road 8, just southeast of Napanee, towards Shermans Point, roughly following the direction of the Napanee River, and then loops back along the north shore of Hay Bay before once again meeting County Road 8. Drivers heading southwest from Napanee on CR9 – that segment of CR9 is also known as “River Road” - in the direction of Shermans Point encounter Rankins Corners (also referred to as “Rankins Corner” or “Rankin’s Corner”) 3.5 kilometres after leaving County Road 8. The alignment of the road at this point is described as an “S-curve”, curving to the left then the right for westbound traffic, with a modest uphill grade.

[2] Rankins Corners was the site of a collision which occurred at approximately 10:35 a.m. on 3 January 2003 between a 2001 Hyundai Elantra car driven by Leslie Lloyd and a 2001 Freightliner propane tanker driven by David Bush and owned by MacDonald’s Propane. Mr. Bush was in the process of making propane deliveries. His commercial tank truck had a capacity of 20,000 pounds and was carrying nearly a full load. It was a wintery day and snow ploughs had been out on county roads since the early morning.

[3] Leslie Lloyd was seriously injured as a result of the collision. Her damages have been assessed at $4,149,158.50 and were not in issue at this trial.

[4] The questions to be determined at this trial relate to the liability for the accident.

Procedural History

[5] This was the third trial between the parties. The Court of Appeal for Ontario set aside the judgments rendered after both of the first two trials and on each occasion remitted the case back to be heard by a different trial judge: Lloyd v. Bush (2012), 110 O.R. (3d) 781, 2012 ONCA 349 and Lloyd v. Bush, 2017 ONCA 252.

[6] David Bush and MacDonald’s Propane have settled with the plaintiffs. The remaining defendants are municipalities who respectively had jurisdiction over the road (Lennox and Addington) or were responsible for winter maintenance of the road (Greater Napanee). These defendants assert that they bear no responsibility for the collision. They say it was the fault of one or both of Leslie Lloyd and David Bush.

Evidence and Process at Trial

[7] Certain issues which featured in the second appeal judgment were not contended at the third trial. In particular it was not asserted that straight salt ought necessarily have been applied by the Town as part of its winter road maintenance activities on the day of the accident. Nor, as a result were issues of cost or the resources available to the Town in issue. Consequently, counsel for the parties were able to agree that the transcripts of the evidence of all non-expert witnesses who testified at the second trial in 2014 would stand as their evidence at this trial. It was also agreed that the transcripts of the 2014 testimony of two weather experts, Dr. James Young and Bryan Smith, would stand as their evidence at this trial.

[8] Ultimately, three witnesses – all experts – were called to testify in person at the third trial:

a. Darryl Schnarr (collision reconstruction – called by plaintiffs);

b. Russell Brownlee (winter road maintenance – called by plaintiffs);

c. Tim Leggett (accident reconstruction and winter maintenance practices – called by defendants).

[9] The parties also provided the court with a joint book of documents and agreed on the use to which the documents contained in that book could be put for evidentiary purposes.

[10] Additional exhibits were introduced and marked in the usual way.

[11] I am grateful to counsel for their cooperation and for their organisation of the transcripts, exhibits and aids to argument.

[12] At the end of the trial, the oral arguments of counsel were supplemented by substantial written submissions. Rather than reinvent the wheel, I make no apology for borrowing from these documents, when it has seemed to me to be appropriate to do so, as well as from the reasons of Rouleau J.A. in the second Lloyd v. Bush appeal.

Background Facts

[13] Leslie and Jason Lloyd had stayed the night of 2 January 2003 at the home of Mr. Lloyd’s parents on CR 9, which was located approximately 500 metres west of the collision point. Shortly before the accident, Ms. Lloyd left the residence to drive to Napanee where she was to pick up her sister-in-law, who had fallen ill at work.

[14] Ms. Lloyd, who was 25 years old at the time, was an experienced driver and was familiar with the road.

[15] While accounts vary as to the precise weather and road conditions at the time, there is no doubt that it had been snowing overnight. There had been winter road maintenance operations performed on local roads in the morning hours prior to the incident, although the degree and effect of those maintenance operations in the vicinity of Rankins Corners that morning is the subject of conflicting evidence.

[16] Less than 30 seconds into her journey, the eastbound vehicle of Ms. Lloyd collided with the westbound vehicle of Mr. Bush in the eastern half of the S-curve.

[17] Ms. Lloyd has no recollection of the accident.

[18] Both vehicles ended up in the ditch on the south side of CR9. The Hyundai was severely damaged and the jaws of life had to be used to extricate Ms. Lloyd, who was unconscious, from her vehicle.

[19] She suffered a severe brain injury resulting in cognitive impairments and partial left-sided paralysis as well as severe open fractures in both legs. She is not capable of employment and would require assisted living if she was not living with her family.

[20] David Bush was the only eye-witness to the accident.

[21] Others were on the scene soon afterwards. Bruce Desveaux, a local resident, was there within seconds – debris was still moving on the road and the rear wheel on the Lloyd vehicle was still spinning. Joanne Robins, a registered nurse stopped at the collision scene after having driven past the involved vehicles. She went to assist Ms. Lloyd.

[22] Marty Castle was driving a transport truck westbound on CR9 and came upon the accident scene. He shared a route between Toronto and Montreal with John Woodhead, who lived on CR9, west of Rankins Corners, and was on his way there. He saw people at the side of the road – one of whom he recognised to be Mr. Woolhead’s spouse - but decided not to stop at the scene because he was concerned that if he did there might be another accident. Instead, he carried on to Mr. Woolhead’s residence and told him what he had seen.

[23] Mr. Woolhead then went to the scene. By that time, the police were also there.

[24] Constables Paul Evans and Michael Ball of the Ontario Provincial Police were both in Napanee when they received a radio call at 10:38 a.m. They arrived at the scene in separate vehicles at 10:42.

[25] Vern Amey, the Road Superintendent for the Town of Greater Napanee, arrived at the scene before 11:00. While he came in his official capacity, he also lived at the corner of Fitchett Road and CR9, to the west of the accident location.

[26] Brian Wayte lived on CR9. The driveway to his property was located on the north side of CR9 at about the middle of the S-curve. He was going out in his truck when noticed a car stopped on the other side of the road when he got to the end of his driveway. Then he saw that there had been an accident.

[27] Both Mr. Amey and P.C. Ball had driven through Rankins Corners earlier that morning. And Mr. Wayte had returned to his home from Napanee shortly before the accident occurred.

[28] It was not until 1:42 p.m. that Constable Chris Prent, an OPP officer with special training in accident investigation, arrived on the scene.

[29] Evidence about the winter maintenance operations relevant to the incident was given by Mr. Amey, William Docteur (night patrolman), Ron Vankoughnet (Public Works Foreman), Don Vankoughnet (loader operator), Wayne Dixon and Doug Abrams (snow plough operators) and Stephen Roberts (Manager of Roads and Bridges).

[30] Other witnesses testified as to their observations of the conditions at Rankins Corners at various points that morning, including Ms. Lloyd’s husband, Jason Lloyd, and her in-laws, Arlene Lloyd and Sam Lloyd.

[31] The relevant local by-law governing winter maintenance was County Bylaw 264/97, which had been adopted by Town Bylaw 02-08.

Issues

[32] The parties are in broad agreement on the framing of the issues and questions to be determined:

a. The test applicable to the determination of liability of the municipal defendants

b. What were the conditions at Rankins Corners?

c. Did the conditions as Rankins Corners amount to a state of non-repair?

d. If so, did the non-repair cause the injury?

e. If applicable, did the Town take reasonable steps to prevent or correct the state of non-repair?

f. Liability and Contributory Negligence of David Bush and Leslie Lloyd

A: Liability – The Test

[33] Liability for municipal highway non-repair, including allegations of negligent winter maintenance, is governed by the provisions of Section 44 of the Municipal Act, 2001, S.O. 2001, c. 25, the relevant portions of which provide:

Maintenance

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

Liability

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

Defence

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

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

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

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

Regulations

(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.

[34] The allocation of the onus of proof in non-repair cases and the application of the test for liability was summarised by Rouleau J.A. in Lloyd v. Bush, 2017 ONCA 252, at paras. 62-64:

[62] In Fordham v. Dutton Dunwich, (Municipality), 2014 ONCA 891, [2014] 327 O.A.C. 302, at para. 26, Laskin J.A. set out the four-step test to be applied when a claim is made against a municipality for non-repair. It can be summarized as follows:

• Non-Repair: The plaintiff must prove the existence of a condition of nonrepair, that is, a road-based hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road, with a view to the circumstances including the “character and location” of the road.

• Causation: The plaintiff must prove that the condition of non-repair caused the loss in question.

• Statutory Defences: If the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality. The municipality then bears the onus of proving that one of the three independently sufficient defences in s. 44(3) applies. These defences include proof that the municipality took reasonable steps to prevent the default from arising (s. 44(3)(b)).

• Contributory Negligence: If the municipality cannot establish any of the statutory defences, it will be found liable. The municipality can, however, still demonstrate that the plaintiff’s driving caused or contributed to his or her injuries.

[63] In considering these steps, Canadian courts have taken into account the difficult winter conditions that exist and the cost of clearing the roads of snow. The courts have emphasized that a municipality is not to be treated as an insurer of the safety of the users of its roads by imposing overly onerous maintenance obligations. Specifically, a municipality’s failure to salt or sand its roads does not automatically expose it to civil liability: “[t]he driving public cannot expect municipalities to keep the roads free and clear of snow and ice at all times during the winter” (Frank v. Central Elgin (Municipality), 2010 ONCA 574, [2010] O.J. No. 3736, at para. 7).

[64] In other words, proof of a state of non-repair is not in itself enough to establish liability. Rather, a municipality will only be liable for failing to salt and/or sand and clear the road of snow where it had actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway, and where the municipality unreasonably neglected that risk: see Frank, at paras. 7-11; Montani v. Matthews, 1996 CanLII 1387 (ON CA), [1996] 29 O.R. (3d) 257 (C.A.), at p. 270.

B: The Conditions at Rankins Corners

[35] The parties offer quite different perspectives of the conditions at Rankins Corners at the time of the accident.

[36] The plaintiffs submit that a fair analysis of the evidence leads to the conclusion that the road was snow-packed and slippery, with no signs of ploughing, sanding or salting.

[37] The defendants say that the best evidence is that there was less than 2.5 centimetres of partially loose and partially compacted snow on the road, quite likely slushy due to previous salt application.

[38] The sources of the evidence concerning the conditions at Rankins Corners can be divided into four groups:

a. Eye witnesses as to road and weather conditions;

b. Winter maintenance witnesses;

c. Weather experts;

d. Expert opinions on winter maintenance operations and expected road conditions.

Eye Witness Evidence

[39] As already noted, the eye witness evidence at this trial was given in 2014 at the second trial, over eleven years after the event. Unlike the judge at that trial, I have not seen or heard those witnesses. I have, however, made my own assessment of the evidence, based on the record before me, uninfluenced by the findings or impressions of the two previous trial judges.

[40] The only witness able to testify about conditions at the precise time of the accident, as well as the accident itself, was David Bush.

[41] Mr. Bush testified that it was snowing heavily at the time of the accident, so hard that he had his windshield wipers on medium and his windshield defrost on high. The road was snow-covered. He could not see the centre line or fog lines and was following the tracks in the road that had been made by other vehicles. He believed that he kept on his side of the road.

[42] Mr. Bush said his observation was that the road had not been ploughed, sanded or salted.

[43] He testified that he first saw Ms. Lloyd's vehicle approaching as he proceeded into the east curve of Rankins Corners. He saw her vehicle lose control and begin to slide sideways into his lane and down the road's slight incline toward his truck. Mr Bush testified that the front end of his truck struck the driver's side door of Ms. Lloyd's vehicle. After the collision, his truck came to a stop in the south ditch.

[44] When he got out of his truck following the collision Mr. Bush described the road as slippery underfoot.

[45] Bruce Desveaux was heading west on CR9, on his way home from work. He described the road as snow packed and slippery, however it was not, he said, snowing at the time of the accident. He testified that he had tried to wave down oncoming eastbound vehicles to warn them of what he described as “the treacherous … it was glare ice” conditions and that these vehicles momentarily broke traction before regaining control. He also said that while he did not see a windrow (a snow pile on the side of a road made by a snow plough), leading him to conclude that there had been no ploughing operations, there had been “no accumulation really” as a result of snowfall earlier in the day.

[46] Joanne Robbins also testified that it was not snowing when she arrived at the scene shortly after the accident. Although she said that there was no evidence of recent salting, sanding or ploughing, she said there was “goey, slimy crap” on the road. She had parked her car and then walked back to the accident site on the shoulder of CR9. She said that gravel could be seen on the shoulder.

[47] Marty Castle drove his tractor-trailer past the accident scene, but did not stop because he felt it would be unsafe to do so. He recalled CR9 as being snow covered. Line markings were not visible. He described the road as “slippery” and slowed his vehicle to 15-20 km/h as he approached Rankins Corners, which he knew to be a “very bad corner”, to avoid slipping or sliding. It appeared to him that CR9 had not received winter maintenance that morning prior to the collision. He did not observe any bare spots on the road at the time. He believed the temperature was “mild” – close to zero.

[48] John Woolhead arrived at the accident scene at around 11:00 a.m. He testified that CR9 was snow covered. The line markings on the road were not visible. Mr. Woolhead did not think the road had been ploughed, sanded or salted. However, he acknowledged that he could see dirt in the tire tracks of vehicles at the scene.

[49] Leslie Lloyd’s in-laws, Arlene Lloyd and Sam Lloyd, had passed through Rankins Corners between 6:00 a.m. and 6:10 earlier that morning. They said that the road was snow covered and had not been ploughed. Jason Lloyd was at the scene after the accident. He was principally concerned about his wife’s condition, but recalled that the road was snow covered.

[50] Vern Amey lived to the west of the accident location. He had driven through Rankins Corners at 6:10 a.m. and had observed a snow-covered road. The weather was “snowing and blowing”. He was sufficiently concerned about the snow on the road that he radioed Doug Abrams, a plough operator, to go out to Rankins Corners and plough it.

[51] After being notified about the accident, Mr. Amey drove from his office, taking CR9 to the accident location and arriving around 11:00. He testified that he found the road to be snow covered and saw no evidence of the application of salt or sand. The accumulation of snow on the ground at Rankins Corners was not above the sole of his shoes. He could scuff the snow with his boot down to the pavement. But he also observed that even to walk on the road was slippery if care was not taken.

[52] Brian Wayte’s home was located on the north side of CR9 at approximately the mid-point of the “S” curve that makes up Rankins Corners. He had gone in to Napanee earlier in the morning, at which time he said it was snowing and very windy. There were bare spots on the road, but snow was drifting across the road. He was in Napanee for about half an hour before returning home on CR9. It was still snowing and windy. He testified that he followed a snow plough westbound on CR9 from Centre Street (County Road 8) until he turned in to his driveway. He said that the plough was ploughing snow and depositing material on the road across both lanes (the left wheels of the plough being on or close to the centre line). As he pulled into his driveway, he described the road as having been scraped as bare as it could be. Once home, Mr. Wayte realised that he had forgotten to pick something up and testified that 20 minutes after his return he went out again, at which time he came upon the scene of the accident. By this time, he estimated that about an inch of new snow had accumulated. Mr. Wayte was challenged on how long he had been at home before going out again (in an earlier statement he had said he went out five minutes after his return). He spoke to Vern Amey at the scene (Mr. Amey subsequently recorded that Mr. Wayte had told him that he had followed the plough out and the road wasn’t bad then).

[53] Police Constable Michael Ball had passed through Rankins Corners at 5:45 a.m. on his way to work. He made a note that the roads “had some snow on them and were track bare in some areas”. At some later point that morning, P.C. Ball returned to his residence to see his children or grab something to eat, and then returned to Napanee, once more passing through Rankins Corners, possibly at around 10:30 a.m.. CR9 was covered in snow but he did not regard the conditions as treacherous. He had no recollection of observing a snow plough, salter or sander on this journey. Shortly after arriving back in Napanee, he and P.C. Evans received a call about the accident and proceeded immediately to the scene. P.C. Ball arrived at the scene at 10:38 a.m. CR9 was still snow covered as he proceeded to the scene. He travelled at speeds of up to 100 km/h without experiencing difficulties with traction or sliding. He has no recollection from that journey of CR9 having been ploughed, salted or sanded. In the Motor Vehicle Accident Report that he completed the following day, P.C. Ball recorded the condition of the road as “snow packed” and the environment as “snow”, by which he meant it was snowing.

[54] Police Constable Paul Evans also responded to the radio call concerning the accident. He had started his shift at 7:00 a.m. and had recorded the temperature at that time as -5 degrees, light snow, that 5-10 cm of snow was forecasted over the course of the day and that the roads were snow covered. He testified that the road was snow covered but estimated that there had been no significant accumulation of snow – “mere centimetres”, he said - between 8:00 a.m. and the time of the accident. He testified that he experienced some difficulty operating his vehicle – “I did have indications of my vehicle slipping” – but made no contemporaneous note of that. According to P.C. Evans, it was not snowing at the time of the accident.

[55] After transporting Mr. Bush to hospital, P.C. Evans returned to the scene to take a series of photographs between 11:52 a.m. and 12:14 p.m. These photographs were frequently referred to during the examination of witnesses and the parties’ submissions. Some additional snow had fallen at the scene between the time of the accident and the photographs being taken, as evidenced by what appears from the photographs to be a variable, but generally light, accumulation of snow on debris left on the road and on the damaged vehicles. A dark patch on the road in the middle of one of the photographs could have been caused by an idling police vehicle left at that location. P.C. Evans was unable to confirm whether darker material appearing in tire tracks was sand and if it was, whether sand had been tracked in by vehicles or applied to the road in that vicinity.

[56] Police Constable Chris Prent was called in as a technical collision investigator to investigate the accident. He arrived at the scene at 1:42 p.m. He described the road at that time as snow covered. He took various measurements and conducted drag sled testing to determine the co-efficient of friction, or slipperiness, of the road. He also inspected the vehicles. He subsequently returned to the scene on 6 January at which time he located gouge and scratch marks on the pavement.

Winter Maintenance Witnesses

[57] Before turning to the accounts provided by various witnesses concerning their observations and actions on and around 3 January 2003, some background.

[58] In 1988, operational responsibility for the maintenance of CR9 was transferred from the County of Lennox & Addington to the Town of Greater Napanee. The County had kept detailed records of each truck and snowplough operator, including the roads travelled by the plough, the quantity of material applied and odometer readings of the vehicles. Regrettably, similar records were not maintained by the Town after it took over.

[59] This lack of organised and consistent records maintained by the Town, coupled with major shortcomings in the reliability and provenance of records which were produced, adds significantly to the challenge of determining what road conditions were, and what winter maintenance operations took place, at the relevant times.

[60] To the extent that material was applied to the road on 3 January 2003, it was a 3:1 mixture of sand and salt respectively.

[61] William Docteur was the Town Road Patroller. His standing instructions were to call the Roads Foreman, Ron Vankoughnet, if there was, or was expected to be two or more inches of snow. At 3:35 a.m. he called Mr. Vankoughnet as the local roads were beginning to be covered with snow. Mr. Docteur had no independent recollection of conditions on 3 January. His notes record that at 7:00 a.m., as his shift ended, roads were snow covered with bare spots, the sanders were out, and the temperature was -6. Rankins Corners was not part of his patrol route.

[62] According to Vern Amey, the operator responsible for the plough route which included CR9 was Wayne Dixon. Having driven through Rankins Corners himself at 6:10 a.m., Mr. Amey said that he called another plough operator, Doug Abrams, to plough and sand the road because, if not treated, the road would become slippery. Mr. Amey’s evidence was that the road needed immediate attention.

[63] Doug Abrams testified that CR9, and in particular Rankins Corners, was part of his route. He testified that he ploughed, salted and sanded Rankins Corners going west at 5:30 a.m. and again going east at 6:00 a.m. He could not recall how much snow there was on the road that morning, but claims that by 6:00 a.m. Rankins Corner was ploughed and scraped to the asphalt with sand and salt applied. However, counsel for the defendants fairly concedes that what Mr. Abrams described as being part of his “regular route” was actually a special, or reserve, route which he worked on during the 2002/03 winter season only in certain weather events, when directed.

[64] Wayne Dixon testified that he ploughed, salted and sanded CR9 several times between 4:00 a.m. and the time of the accident, passing through Rankins Corners seven times (four times westbound and three times eastbound (applying material on two of those eastbound runs). He recalls that it was “snowing and blowing” as he drove into the depot to start work at 4:00 a.m.

[65] On his first run, Mr. Dixon went westbound on CR9 as far as Fitchett Road, ploughing and applying a salt/sand mix, passing through Rankins Corners as he went. He then turned around and ploughed, salted and sanded the same route, going eastbound.

[66] Next, Mr. Dixon went out again ploughing and applying salt and sand along CR9 westbound from the Napanee yard through Rankins Corners, going on to the north shoulder and pushing back snow off the shoulders, then at Fitchett Road moving back to the centre of the road and ploughing, salting and sanding to somewhere just beyond Shermans Point, where he ran out of material. He said he would have then returned to the yard, ploughing eastbound, and again passing through Rankins Corners, but not applying material.

[67] Mr. Dixon says he would then have made a third run, once again travelling through Rankins Corners, ploughing, salting and sanding it as he went, and would then continue without sanding/salting the rest of CR9, until he reached County Road 8 at the end of the south side of the loop. At that point he would turn around and plough, salt and sand up to the point that he had salted and sanded on his previous run. Although he would likely have run out of material before reaching Rankins Corners again, he would have had his plough down as he passed through eastbound.

[68] There was then a fourth run. Mr. Dixon said that he would once again have travelled westbound on CR9 through Rankins Corners, ploughing, salting and sanding. On this run, he would have applied material to each of five local roads on his route located west of Rankins Corners. He would then have returned to the yard eastbound through Rankins Corners, ploughing, salting and sanding as he went. He says that he arrived at the yard at 9:30 a.m.

[69] Mr. Dixon says he then had a quick coffee and was sent back out to CR9, ploughing, salting and sanding. He estimates that he went through Rankins Corners at 10:10 a.m. at which time, according to him, the road was snow covered. He says he continued on through the loop to County Road and then turned around to come back, eventually encountering a road closure.

[70] According to Mr. Dixon, the application of salt works quickly at the temperatures prevailing on 3 January 2003. Snow which is pushed to the side of the road by a plough in such conditions creates a windrow.

[71] Mr. Dixon was asked for an explanation for the condition of the road, as he described it, at 10:10 a.m.:

MR. BOGHOSIAN: Q. Do you have an explanation of why it was snow covered if you had been through there what appears to be something in the order five, six or more times earlier that morning?

A. Well, just the way the storm was, I guess. It was snowing and blowing and ...

Q. Are you satisfied you put down enough material on the road that morning?

A. Yes, I am.

[72] Mr. Dixon kept a diary of sorts. Some days he would write in it, other days he would forget. In his diary for 3 January 2003 he had notations “10-00 accident Rankins Corners” and “Approx time sanding 10.10 Am”. These were not contemporaneous notes. He explained that the time of 10-00 for the collision was what someone had told him and that 10:10 was his guess as to when he had last gone through Rankins Corners before the collision.

[73] Furthermore, in re-examination, Mr. Dixon was referred to a written statement that he had signed dated 14 February 2006. He acknowledged that he had used this statement to refresh his memory when testifying. That statement makes no reference to the road or weather conditions, save and except for a comment that, at 9:30 a.m. “[b]ecasue of the snow storm”, he was instructed to “load up and start my route all over again”.

[74] When he testified in 2014. Mr. Dixon also conceded that he had no independent memory of the events of 3 January 2003.

[75] As the Public Works Foreman, reporting to Vern Amey, Ronald Vankoughnet kept a winter maintenance diary. A copy of his diary entry for 3 January 2003 was produced. The original was no longer available by the time of the first trial. The diary entry makes reference to roads “in town” being covered and all trucks being called out at 4:00 a.m. and finishing up at 9:20 p.m. However, there is no mention of the accident. Another document, listing the activities of the winter road maintenance team, records that at 7:00 a.m. it was -7°, with Northeast wind and light snow.

[76] Mr. Vankoughnet kept a second diary. He described it as his “own personal diary” in which he records “all the accidents”. A photocopy of an entry for 3 January 2003 was produced. The original was not available. Mr. Vankoughnet has no idea where it went. The diary entry is written in the past tense and records that an accident occurred on CR9; that the roads were centre bare; that the accident occurred at Rankins Corners at 10:30 and involved a car and a propane truck. The diary entry also records that a Town sander had sanded the corner at 10:00 a.m. and that the driver was Wayne Dixon.

[77] Mr. Vankoughnet recalled that 3 January 2003 was light snow all day. He heard about the collision from Mr. Amey. He also said that he had heard Mr. Amey on a radio call to Mr. Abrams, but heard no discussion over the radio concerning Wayne Dixon’s whereabouts, given that it was Mr. Dixon’s route.

[78] Despite attending the scene of the accident in his official capacity as Road Superintendent, Vern Amey made no contemporaneous notes of his personal observations. He acknowledged that he should have. Instead, the following day he wrote up a note of the events of the date of the accident based on information he had been provided with by other people. He had a notation that Mr. Dixon had sanded the corner “for the second time” about 15 minutes before the accident. He also recorded that Brian Wayte had told him that he followed the plough out and the road was not bad then. And he noted “The roads were covering over just as fast as we were applying the material”.

[79] Asked why he did not record his own personal observations, Mr. Amey explained that he had been upset. He knew Ms. Lloyd personally. Despite Mr. Amey having been informed that Rankins Corners had been ploughed salted and sanded multiple times that morning, he took no steps to ask the operator or operators involved to record their actions of the day.

[80] Mr. Amey acknowledged that it was difficult to reconcile what he had been told by his operators with his own personal observations. He ultimately conceded that it was his job to investigate why his observations were so different from what he had been told. Yet he did not do so.

Weather Experts

[81] Dr. James Young and Bryan Smith, both retained by the Town, provided expert evidence on the weather conditions on 3 January 2003. Both of them based their opinions on records collected by local weather stations. According to Dr. Young, it started to snow at about midnight until 6:00 a.m. at .4 cm per hour, such that there was accumulation of 2.4 cm to 2.5 cm at 6:00 a.m. There was no snow between 6:00 a.m. and 10:00 a.m. At 10:00 am, it began snowing at .3 cm per hour. Accordingly, his opinion was that there would have been a total accumulation of 2.5 to 2.7 cm of snow at the time of the collision. The temperature was - 5.5 degrees at 7:00 a.m. rising to - 1 at the time of the accident.

[82] Brian Smith testified that between 3.5 and 5.5 cm of snow fell in between midnight and 10:30 a.m. A temperature range of -5° to -7° applied to the entire geographical area on the morning of the accident. While snow fell at an average rate of 0.5 cm an hour over the course of the morning up to the time of the accident, and could generally characterised as light snow, the snowfall was not steady and would have varied from time to time that morning. Mr. Smith testified that the wind from 10:00 -11:00 a.m. was from the east at 20 km/h, gusting to 35 km/h, and 30-35 km/h between 9:00 and 10:00 a.m. He opined that the wind velocity that morning would have caused blowing or drifting snow (the Kingston weather station recorded indicated drifting snow at that location that morning).

Winter Road Maintenance Experts

[83] More will be said about the Town’s winter roads maintenance records in the discussion later in these reasons of the reasonableness of the Town’s ploughing, salting and sanding activities on 3 January 2003. Suffice it to say at this juncture that the experts disagreed on whether the Town’s record keeping in 2003 was in accordance with industry standards. Certainly, it was significantly inferior to the County’s record keeping prior to 1998.

[84] In the face of the contradictory accounts of what was or was not done and the observations of eyewitnesses, the absence of records makes the task of trying to ascertain what operations were performed, and what the condition of the road at Rankins Corners was, particularly challenging.

[85] Despite his view that the lack of record-keeping by the Town would not have been unusual in 2003, the defendants’ expert Tim Leggett agreed that the failure of Mr. Amey to record his personal observations of the absence of evidence of ploughing, sorting and sanding at the time of the collision was unacceptable.

[86] Russell Brownlee, one of the plaintiffs’ experts, expressed the opinion that if Mr. Dixon had carried out the operations that he claimed to, he would have expected there to have been bare or centre bare conditions at the time of the accident.

[87] But he also agreed that there were reports of intermittent heavy periods of snow, and that snowfall rates can be highly variable from one place to another.

[88] The application of salt can create what the expert witnesses described as a “brine sandwich” whereby ice or packed snow is separated from the roadway by a layer of brine which removes the ice bond from the road which can then be cleared by a plough. The amount volume of salt that would have been laid down by the defendants if their operations had been carried out in the manner described by Mr. Dixon would have been more than adequate in all of the circumstances to achieve this.

[89] That said, in the absence of temperatures at which salt ceases to be effective for melting snow – minus 12 according to Mr. Brownlee – sand would have made little or no contribution towards the Town’s objective of achieving a bare roadway.

[90] Mr. Leggett pointed out that each pass by a snow plough would have removed previously applied salt and sand and that this, coupled with occasional bursts of heavy snowfall, such as may have happened shortly before the accident, could explain the snow-covered state of the road observed by a number of the eye witnesses. However he, too, agreed that if the road had been treated by the Town the way the Town said it had been, he would have expected to see spots of bare pavement.

Discussion

[91] I have concluded that I can place very little weight on the evidence of Wayne Dixon or Doug Abrams. Neither of them had an independent recollection of the events of 3 January 2003 by the time that they testified 11 years later. Neither of them could point to adequate or contemporaneous records made by them or by anyone else to assist their recollections.

[92] I do not regard as reliable the note made by Mr. Dixon, after the event, and based on what he had been told, concerning the application of sand at 10:10 a.m.

[93] If both of these gentlemen were to be believed, Rankins Corners would have been ploughed, salted and sanded multiple times in the six hours preceding the accident. Even allowing for the possibility of intermittently heavy periods of snow that morning, I accept the evidence of those witnesses, including the two experts on winter maintenance, who testified that, if Mr. Dixon and/or Mr. Abrams had actually done what they said they did, there would have been clearly visible evidence of the application of sand and the removal of snow.

[94] Rouleau J.A.’s summary, at para. 12 of the second appeal decision (2017 ONCA 252), of the evidence of a number of the witnesses about conditions soon after the collision accords with my own view of the evidence:

[12] Several truck drivers, a registered nurse, Jason Lloyd and his father attended at the scene soon after the collision and testified with respect to the condition of the road. The general consensus was that there had been moderate snowfall that morning but it had stopped by the time they arrived. They found the road to be snow covered with an inch or two of accumulation. Most considered the road to be slippery and did not notice any salt or sand on the road.

[95] Of the other witnesses, the outlier is Brian Wayte. As the defendants point out, Mr. Wayte is a disinterested party in this litigation. He was firm in his evidence that, perhaps as little as 15 to 20 minutes before the accident, he had followed a westbound snow plough on CR9 which was depositing material and clearing snow. There had been bare spots on the road but, also, drifting snow. But when he went out again, there was perhaps an inch of new snow and it was snowing “very heavily” at the time of the accident and for some time thereafter. Although he was challenged on the length of time that he was at home before he turned around and went back to Napanee, and on which direction the wind was blowing, Mr. Wayte appears to have been unshaken on his core evidence concerning the ploughing operations that he had observed and the condition of the road. Yet he also agreed that the photographs taken by P.C. Evans appeared to show minimal snow accumulation. And while he did not find the road to be slippery when he walked to the scene of the accident, he saw no salt or sand either.

[96] Mr. Amey was the Road Superintendent. He was on the scene within half an hour of the accident. If anyone would be expected to have paid particular attention to the condition of the road, and indications of whether or not there had been winter road maintenance, it would be Mr. Amey. Whereas other witnesses would not necessarily be looking for evidence of the presence of salt or sand, Mr. Amey would have. His evidence was that the road was snow covered – albeit to a depth that did not go above the sole of his shoes – but with no evidence of the application of salt or sand. Mr. Amey confirms that he spoke to Mr. Wayte at the scene and that Mr. Wayte told him about having followed a plough, perhaps as little as an hour earlier. And, in due course, Mr. Amey became aware of the claims by Mr. Dixon and Mr. Abrams that they had ploughed, salted and sanded at Rankins Corners in the hours immediately preceding the accident.

[97] It is puzzling in the extreme that Mr. Amey made no effort to try and reconcile what he observed personally with what he had been told by Messrs. Wayte, Dixon and Abrams.

[98] The two police officers who were on site within a very few minutes of the accident described the road as snow covered, one of them describing “packed snow”, the other saying that the accumulation had not been significant. P.C. Ball has no recollection of observing that CR9 had been ploughed, salted or sanded. P.C. Evans testified that at the time he was at the scene, there was no indication that the road had been ploughed. He did experience some slipping of his vehicle en route to the accident scene. He never observed salt or sand on the roadway.

[99] Mr. Bush described the road as snow-covered. His evidence was that he saw no indication that CR9 had been ploughed, sanded or salted. After the accident, when he alighted from his truck, he found it slippery underfoot.

[100] Two professional drivers, Mr. Castle and Mr. Woolhead, did not see evidence of winter road maintenance either. And Mr. Castle described the road as “slippery” and adjusted his speed accordingly as he approached Rankins Corners.

[101] The photographs taken by P.C. Evans do provide some support for the defendants’ contention that there was evidence of melting caused by the presence of past applications of salt (they say that footsteps would not bare the road down to the pavement without salt having been present to create slush that would lead to this effect) and of sand in wheel tracks, footprints and in the bare spot caused by the heating of an idling vehicle in photographs).

[102] Nor is there any serious indication that ice was present. And although P.C. Prent measured a coefficient of friction, many hours after the accident, that would be suggestive of a very slippery road, there is good reason, which I will discuss below, to question the accuracy and validity of his finding in that regard.

[103] That said, as I have already indicated, I also accept the evidence of witnesses who testified that if salt and sand had been applied, one would have expected to have seen bare spots or the formation of the brine solution.

[104] The preponderance of the evidence suggests that at the time of the accident, there was a covering of snow. This could arguably have obscured evidence of winter maintenance operations, particularly the visible presence of sand. But Mr. Amey, in particular, would have been alert to the issue of winter maintenance, and would surely have paid particular attention to any evidence of ploughing, salting or sanding. Yet his evidence is that he saw no evidence of the presence of salt or sand.

[105] In the face of contradictory evidence about whether/when the road had been ploughed, salted and sanded, and by whom, I prefer the evidence of the two officers who were on the scene within minutes of the accident as well as the personal observations of Mr. Amey. The lack of any independent recollection by Messrs. Dixon and Abrams, coupled with the unreliability of the Town’s records leaves me unable to conclude that the winter maintenance operations which they claim to have conducted were, in fact, performed. In that regard, I specifically accept the evidence of the plaintiffs’ expert that if Mr. Dixon had done what he claimed to have, there would have been bare or centre bare conditions at the time of the accident. Yet that is not what anyone other than Mr. Wayte (to some extent) observed.

[106] Ultimately, the conditions were such that two vehicles, travelling on a snow-covered, somewhat slippery road, the centre line and fog lines of which were obscured, collided head-on when the Lloyd vehicle experienced an apparent sudden loss of control.

C: Did the Conditions at Rankins Corners Amount to a State of Disrepair?

[107] It is trite to say that in Canadian winters, snow and ice will accumulate on roads. It will often do so before measures can reasonably be taken to remove it or mitigate its effects. Accordingly, the mere presence of snow or ice will often not give rise to a state of disrepair. Public authorities are not insurers of the safety of the users of public roads.

[108] Lack of visibility of a centre line and fog lines during a snowstorm event will rarely if ever constitute a state of non-repair as it is an ordinary and expected circumstance during a snowfall event in Ontario that reasonable motorists need to adjust to. In particular, “[r]ural roads, by their nature, are susceptible to the development of adverse conditions, to which drivers must adjust, and the condition of repair for a rural road … does not normally impose a high standard on a municipality”: McLeod v. General Motors of Canada Ltd. 2014 ONSC 134 at para. 52.

[109] The generally applicable principles are summarised by Rouleau J.A. at paras. 69-71 of the second appeal (2017 ONCA 252):

[69] When considering whether a road is in a state of non-repair, a court must analyze all of the surrounding circumstances. What is deemed to be a reasonable state of repair will depend on the facts of each case. According to the plain wording of s. 44(1), the circumstances that must be considered in determining the reasonably applicable standard of repair includes the character and location of the roadway.

[70] The jurisprudence is clear that a lower standard will apply with respect to the state of repair on a low-traffic rural roadway than on higher-traffic thoroughfares and highways. The character and population of the area are to be considered as well as the amount of traffic using the road: see Ian Rogers, The Law of Canadian Municipal Corporations, loose-leaf (2016-Rel. 9), 2nd ed. (Toronto: Thomson Reuters Canada Ltd., 2009), at para. 235.32.

[71] As noted above, for a road to be in a state of non-repair, it must present a hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road in the circumstances. As explained in Docherty (Litigation guardian of) v. Lauzon, 2010 ONSC 1006, [2010] O.J. No. 5017, “non-repair” is a relative concept and the condition of repair for a rural road does not impose a high standard on a municipality. Rural roadways are, “by their nature, susceptible to the development of adverse conditions. Therefore, drivers have to adjust to these conditions” (para. 206).

[110] The character and location of CR9 at Rankins Corners can be divined from a combination of the witness evidence, the applicable bylaw, provincial standards and local considerations.

[111] According to the Minimum Maintenance Standards (“MMS”) found in Ontario regulation 239/02 made under the Municipal Act, 2001, CR9 was a Class 3 road, described by Rouleau J.A. as “a rural and relatively low-traffic two-lane roadway”. According to the MMS, the Town was required to commence ploughing/sanding operations as soon as it became aware that snow accumulation had reached eight centimetres. None of the evidence of road or weather conditions on 3 January 2003 suggests that snow accumulation had reached that level at the time of the accident.

[112] The Town also had in place a By-Law 02-08, which in turn required the Town to provide maintenance services on County roads at least equal to the minimum standards specified in County By-Law No. 2649/97. That bylaw classified the segment of CR9 which includes Rankins Corners as a Class M11 road. With respect to snow accumulation, section 2.3 of the bylaw required the commencement of winter maintenance operations within a desired “lag time” of four hours of the accumulation of 10 centimetres of snow (and a maximum lag time of eight hours).

[113] Mr. Amey’s understanding of the effect of the MMS and the bylaw was that the Town had to commence ploughing/sanding operations as soon as it became aware that the accumulation of snow had reached eight centimetres.

[114] P.C. Prent measured the grade of the road from west to east to be 1% (although when he testified, he acknowledged that this was an error; according to his raw data, there was a 9 cm rise over 5 metres, which would reflect a grade of 1.8%). He measured the super elevation from south to north (the banking to assist vehicles to take the curve faster without leaving the roadway) to be 3%.

[115] Despite its rural location and a relatively low volume of traffic – 1,202 vehicles per day according to Mr. Roberts - Rankins Corners had been specifically identified as requiring special attention because it was known to be hazardous if snow was on the road. It was one of several “hot spots” which received better treatment than straight segments of the road. With the speed limit of 80 km/h and traffic volume exceeding 1000 vehicles per day, Rankins Corners was, relatively speaking, a high priority location for the Town’s winter road maintenance operations.

[116] Wayne Dixon’s evidence was that he would turn up his spreader a notch or two when passing through Rankins Corners. Whenever he passed through Rankins Corners he would be ploughing and, if he still had material left to apply, would spread material on the return as well as the outbound leg of his runs.

[117] As already noted, on the morning of the collision Mr. Amey had driven through Rankins Corners at 6:00 a.m. on his way to work. He says he called in Doug Abrams to plough, salt and sand, because the road was snow covered. In his view it needed immediate attention and, if not salted and sanded, would become slippery.

[118] For the reasons already discussed, it cannot be said, with a reasonable degree of confidence, what was done by way of winter roads maintenance that morning. There is no reason to doubt that that all of the Town’s road crews were out from 4:00 a.m. onwards, as claimed by the Town. In particular, I accept that Mr. Dixon was out ploughing. Indeed, at 4:45 a.m. Mr. Amey had been aware of a beeping horn and a blue flashing light near his house which would be consistent with Mr. Dixon turning around after his first run.

[119] However, it cannot be said with confidence whether any special attention was paid to Rankins Corners. If one accepts the evidence of Mr. Amey as to the conditions he observed at 6:00 a.m., Rankins Corners was in need of special attention at that time. It seems to me unlikely, having regard to all of the available evidence, that Mr. Abrams was involved with Rankins Corners at all that morning – let alone, as he claims, between 5:30 a.m. and 6:00 a.m. - and it is difficult to square the evidence of Mr. Dixon with the apparent absence of evidence of winter road maintenance activities at Rankins Corners observed by number of the witnesses who were there at, or shortly after the accident occurred.

[120] Whether there is an unreasonable risk of harm is to be judged from the standpoint of a reasonable and prudent driver. No duty of care is owed to negligent drivers. As Howden J. observed in Deering v Scugog (Township), 2010 ONSC 5502, at para. 155:

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

[121] The onus of establishing state of non-repair rests with the plaintiffs. The extent to which there may have been maintenance done is not dispositive of whether or not there was a state of non-repair. However, evidence of maintenance operations having taken place will usually make the plaintiffs’ task harder.

[122] In the present case, as previously discussed, the evidence of what maintenance operations were, in fact, performed is, in many respects, unsatisfactory.

[123] This would be an appropriate juncture to address the following submission made by the defendants in their written argument:

210. If the mere presence of snow on a road during an ongoing storm constituted a state of non-repair on a Class 3 road, the Court of Appeal would not have sent that issue back for a third trial on that issue (as it did), as there clearly was snow on the road at the time of this accident. The suggestion that a state of non-repair exists when a minor depth of obviously visible snow cover is on a road in the middle of a snowfall event (as opposed to ice or black ice which are far less easy to observe and therefore react to in terms of driving behaviour) is offensive to common sense as this is a very normal and expected occurrence during Ontario winters.

[124] I would observe that the Court of Appeal in fact found that there was “some support” for the conclusion of the trial judge (at the second trial) as to the existence of a state of non-repair. However, the trial judge’s conclusion was said to have been based on a faulty assessment of the nature and character of CR9 and of whether it presented an unreasonable risk of harm to a reasonable driver in all of the circumstances: 2017 ONCA 252 at para. 76.

[125] While there was not, by reference to typical winter conditions in Eastern Ontario, a significant accumulation of snow at Rankins Corners, there was sufficient evidence to support a conclusion that, on a balance of probabilities, at the time of the accident, Rankins Corners was in a state of non-repair. In particular:

a. The accident occurred at a “hot spot” which was known to be hazardous in winter conditions.

b. A specific concern about the condition of Rankins Corners had been expressed by the Road Supervisor just four and a half hours prior to the accident occurring. He felt that the road needed immediate attention. It takes no great leap to infer from such evidence that the condition of the road at that time, as Mr. Amey saw things, posed an unreasonable risk of harm to reasonable drivers.

c. Despite that concern, it cannot be said with confidence that this concern had been adequately responded to before the accident occurred.

d. It was the evidence of some – but not all - witnesses that, shortly after the accident, conditions were slippery and that there was no evidence of winter maintenance operations, including ploughing salting or sanding.

e. Mr. Amey’s evidence that upon his arrival at the scene less than 30 minutes after the accident he saw no evidence of the application of salt or sand.

f. P.C. Evans saw no indication that the road had been ploughed, salted or sanded.

[126] While I accept that Mr. Wayte had no reason to be anything other than an impartial witness, his evidence, that he followed a snow plough which was ploughing snow and depositing material on the road across both lanes westbound on CR9 from Centre Street until he turned in to his driveway, cannot be reconciled with the evidence of the witnesses referenced in the preceding paragraph.

[127] In short, the cumulative result of the foregoing is that I find that the plaintiffs have met their burden of establishing that the road condition at the time of the accident was hazardous and presented an unreasonable risk of harm to prudent road-users.

D: Did the Non-Repair Cause the Injury?

[128] The plaintiffs must establish that the state of non-repair caused or contributed to the accident.

[129] Reference already been made to the evidence of David Bush. He first observed Ms. Lloyd’s vehicle apparently driving under control, which was then followed by a sudden loss of control.

[130] At trial he said that he could not be certain that, as he proceeded westbound on CR9, he stayed within his own lane of travel because he could not see the lines on the road. Yet he also said that he was confident that he was in his own lane of travel at the time of the collision.

[131] The two police officers who attended immediately after the accident testified that each lane of travel was demarcated by the wheel tracks of prior vehicles such that there was little difficulty ascertaining each lane of travel.

[132] Mr. Bush testified that he was travelling at 45 to 50 mph (64-72 km/h), which would have been slightly in excess of the 60 km/h advisory speed limit For Rankins Corners.

[133] There were gouges and scratches 60 cm to 104 cm inside the centre line of the westbound lane (the defendants argue that, taking the width of the non-deflated left tire of the Lloyd vehicle into account, the point of impact would have been at least 120 cm into the westbound lane depending on which part of the undercarriage of the vehicle caused the scratch marks).

[134] Because of the road conditions, there is no physical evidence by way of skid marks or otherwise of whether the Lloyd vehicle braked immediately before the collision. The experts disagree on the question of whether Ms. Lloyd would have applied her brakes and if she did, what the effect of doing so would have been.

[135] Although they disagreed on the angularity of the impact, both of the accident reconstruction experts, Mr. Schnarr and Mr. Leggett, described it as an “offset frontal collision”.

[136] Mr. Schnarr determined that the front of the Lloyd vehicle collided with the Bush vehicle at an angle of 5° to 10°, rotated anti-clockwise when viewed from above. He came to this conclusion after considering the finding of P.C Prent that the principal direction of force between the two vehicles was at 11 o’clock on a clock face, and found further support from his review of the photographs of damage to the vehicles and his analysis of crash testing by the Insurance Institute for Highway Safety of a 2001 Hyundai Elantra simulating a collision at 64.3 km/h against a deformable barrier with a 40% overlap.

[137] Mr. Leggett, on the other hand, concluded that either there was no angulation, or it was impossible to make a determination as to the extent, if any, of angulation. The defendants also criticise as plainly wrong P.C. Prent’s 11 o’clock finding of angulation, which would equate to 27.5 degrees.

[138] The significance of the angulation, or principal direction of force, is that it is evidence of the extent to which there was loss of traction on the part of the Lloyd vehicle due to the condition of the road. Mr. Leggett’s conclusion is that neither vehicle experienced any notable yaw at the time of the impact, implying that there was sufficient traction and, hence, that the presence of snow had no impact on the directional loss of control of the Lloyd vehicle.

[139] Mr. Schnarr’s opinion was based, in part, on the coefficient of friction measured by P.C. Prent. Mr. Leggett had concerns about whether P.C. Prent obtained an accurate picture. His testing was done six to seven hours after the accident. Different snow and temperature conditions as well as the fact that P.C. Prent dragged the sled up the gradient may have resulted in a coefficient of friction measurement that would suggest the road was more slippery than it actually was at the time of the accident. Mr. Leggett testified that, even given the same snow conditions, friction levels reduce dramatically as temperatures move from -5C as they were at the time of the accident toward 0C over the course of 3 January following the accident up to the time of P.C. Prent's measurements. Mr. Leggett felt that the value of 0.25 recorded by P.C. Prent was at the lower end of the scale. Mr. Schnarr acknowledged that a drag test performed on level ground and at the time closer to the moment of impact would yield a more accurate result.

[140] I agree with the defendants’ submission that P.C. Prent’s coefficient of friction measurement cannot safely be relied on. In all likelihood there was a greater degree of friction available than the value of 0.25 provided by P.C. Prent.

[141] Mr. Schnarr prepared a number of simulations of what might have happened at the time of the accident using a software program called “PC Crash”. Multiple variables can be inputted into the program and these variables can be adjusted to produce different simulations.

[142] I should add that Mr. Schnarr was not alone in using PC Crash. The defendants had retained Joe Correira as an expert witness to assist the court in determining liability for the accident and, in particular to comment on Mr. Schnarr’s report. Mr. Correira’s report was served late and was the subject of a robustly contested motion concerning its admissibility: see Lloyd v. Bush, 2019 ONSC 2981.

[143] The defendants produced data relating to a number of PC Crash simulations that had been run by Mr. Correira. And, indeed, it was Mr. Correira who had initially referenced the IIHS Crash Test which Mr. Schnarr then made reference to in his oral testimony (and a copy of the video recording of the Crash Test was filed as an exhibit). Mr. Schnarr also commented on some of Mr. Correira’s simulations during the course of his testimony. It was only after Mr. Schnarr had testified that counsel for the defendants advised that Mr. Correira would not, in fact, be called to testify. This resulted in the somewhat unusual situation of an expert having testified about the work of another expert who did not, ultimately, testify himself.

[144] I found the simulations to be of limited assistance in determining possible driver action and, in particular, the possible apportionment of fault between Mr. Bush and Ms. Lloyd. This is primarily because of the number of variables, including the coefficient of friction, Mr. Schnarr having based his simulations on the co-efficient of friction value ascertained by P.C. Prent.

[145] Furthermore, despite multiple attempts between Mr. Schnarr and Mr. Correira to do so, none of the simulations were able to produce a result that coincided with the resting positions of the vehicles or, in the case of Mr. Schnarr’s simulations, that reproduced a secondary impact between the two vehicles that both Mr. Schnarr and Mr. Leggett agreed had occurred as the Lloyd vehicle rotated on its journey following the initial impact towards the ditch.

[146] Mr. Leggett testified that simulations using P.C. Crash are inappropriate for determining the mechanics of this accident. I tend to agree with him.

[147] A significant portion of the examinations of Messrs Schnarr and Leggett was devoted to the question of the angularity of impact, which would be suggestive of any loss of traction on the part of the Lloyd vehicle. Each was reluctant to concede any ground. Mr. Leggett did, however, agree that if Ms. Lloyd had braked with a degree of force that exceeded the coefficient of friction, she would lose directional stability.

[148] Photographs of the vehicle damage were compared with the IIHS Crash Test. Mr. Leggett would not concede, unreasonably in my view, that the photographs showed that the front hood of the Lloyd vehicle was displaced rearward and toward the passenger side (which, according to Mr. Schnarr, would be consistent with his angulation theory. While I would accept that the perspective of the photographs could be misleading, Mr. Leggett’s unwillingness to recognise the other possibility, that the photographs, which not only Mr. Schnarr but also P.C. Prent had relied upon to form their conclusions, could be supportive of angulation, detracted from the weight of his opinion on the issue of angulation.

[149] I find that there is greater support for the opinion of Mr. Schnarr, who concluded that there was angulation of between 5° to 10°, to that of Mr. Leggett. Mr. Schnarr’s opinion is consistent the findings of P.C. Prent, a reasonable interpretation of the photographs of damage to the Lloyd vehicle and the IIHS Crash Test.

[150] While there were, as I will discuss, other causes, I conclude that the condition of non-repair at Rankins Corners at the time of the accident was at least a contributing factor to the accident.

E: Did the Town Take Reasonable Steps to Prevent or Correct the State of Non-Repair?

[151] I agree that with the following statement in the defendants’ written closing submissions (at para. 193):

There is no doubt that the Town had a good winter maintenance program which, if carried out, was far more than reasonable for a Class 3 road, and, in particular, for the "hot spot" nature of the curves through Rankin's Corner. The only real question is whether the maintenance was carried out in the morning leading up to the accident.

[152] The Town has the onus of proving that it took reasonable steps to prevent or correct the state of non-repair.

[153] The defendants assert that, by virtue of s. 44(3)(c) of the Municipal Act, compliance with the MMS affords a complete defence to claims relating to road conditions for which standards are set out in the MMS.

[154] As I understand the effect of this submission, if Rankins Corners received winter maintenance in the form of ploughing, salting and sanding at least once on the morning of 3 January, the defendants say that they would have met (indeed, exceeded) the MMS.

[155] In Giuliani v. Halton (Municipality) (2011) 346 D.L.R. (4th) 120, 2011 ONCA 812, O’Connor A.C.J.O. stated, at para. 22:

[T]he purpose of minimum standards is to provide a municipality with a defence even if it would be otherwise liable under the provisions of s. 44. Thus, if a municipality complies with the minimum standards, it is not liable even though it did not maintain a highway in a state of repair that is reasonable in the circumstances, knew or ought to reasonably have known of the faulty state of repair, and did not take steps to prevent the default. To use the common law language, a municipality is not liable for negligently failing to maintain a highway if it complied with the minimum standards that applied to its failure.

[156] However, as the Court in Giuliani went on to explain, the defence afforded by s. 44(3)(c) of the Municipal Act requires the application of the MMS to both the highway and to the alleged default: Giuliani, at para. 36.

[157] Section 4 of the MMS sets standards for clearing snow accumulation; section 5 deals with icy roadways. In the case of continuing snow accumulation, there is no debate that once 8 cm of snow had accumulated on CR9, the Town would have been required to deploy resources to clear the snow as soon as practicable. It is not asserted that the defendants were in breach of the minimum standards set out in either of those two provisions.

[158] The Court of Appeal in Giuliani unequivocally stated (at para. 39) that the MMS did not establish a minimum standard to address the accumulation of less than 5 cm of snow (which was the applicable snow accumulation that would have engaged the MMS in that case) on a highway.

[159] In the present case, as in Giuliani, the municipality had its own performance standards to address the problem of accumulating snow on roadways.

[160] Reference has already been made to County By-Law 2649/97, which the Township agreed to follow in the performance of maintenance services on County Roads, which classified the segment of CR9 through Rankins Corners as a “Class M11” road. Section 2.1 of By-Law No. 2649/97 set a standard that when accumulated snow/ice on the travelled surface of the road impedes the ability of vehicles to travel at 70% of the minimum ambient travel speeds, such speeds. should be restored within a defined lag time. The applicable lag time is defined as the period of time between the end of the storm condition and when the road surface can sustain the ambient speed. On M11 roads, the lag time was twelve hours, meaning that the Town had twelve hours after the end of the storm to restore road conditions that would allow an ambient speed of at least 70% of the posted speed limit (i.e. approximately 60 km/h on CR9).

[161] With respect to snow accumulation, Section 2.3 of By-Law 2649/97 provided that winter maintenance operations did not have to commence on an Ml1 class road like the segment of CR9 through Rankins Corners until up to 10 cm of snow was on the roadway, with a desired lag time of four hours and a maximum of eight hours to address any such accumulation.

[162] Stephen Roberts, the Manager of Roads and Bridges, testified that if a road was snow packed, the municipality would want to get the snow off the road as quickly as possible (as resources would permit). That standard, and the general practices of the Town, operated independently of the MMS, and exceeded what was provided for in By-Law No. 2649/97.

[163] And, as already described, Rankins Corners was regarded as a “hot spot” requiring special attention.

[164] If there was any doubt about the defences afforded by s. 44(3), it was surely resolved by Rouleau J.A. who stated, at para 75 of the second appeal decision, that “mere compliance with minimum standards or guidelines is not, in itself, sufficient to avoid liability if there was an obvious deficiency or risk”.

[165] By the same token, where, as in the present case, a municipality has standards which either exceed, or are not addressed by the MMS, compliance with such standards will not necessarily lead to the avoidance of liability. And non-compliance will not automatically result in a finding of liability. Rather, as Rouleau J.A. observed in the second appeal at para. 69, “[w]hat is deemed to be a reasonable state of repair will depend on the facts of each case”.

[166] In addressing the question of whether the defendants took reasonable steps to prevent or correct the state of non-repair at Rankins Corners, a significant challenge is determining what steps were, in fact taken.

[167] That said, there are a number of findings which can be confidently made from evidence that was either not challenged at all, or was not seriously in dispute:

a. The amount of salt contained in the 3:1 sand/salt mix that was applied was appropriate (although the plaintiffs argue that the application of sand was not required in the conditions that existed on 3 January and that had salt alone been applied, the Town’s resources would have been more efficiently used).

b. The Town’s trucks had been properly and effectively loaded with material at the commencement of operations on 3 January (i.e. not so far in advance of the commencement of operations that the efficacy of the material could be compromised).

c. All of the Town’s ploughs, including Mr. Dixon’s, were mobilised at around 4:00 a.m.

[168] I have also accepted that Mr. Dixon did an initial run westbound along CR9 (Mr. Amey’s evidence that he had been aware of a beeping horn and a blue flashing light near his house at 4:45 a.m. being consistent with Mr. Dixon turning round after his first run).

[169] After that the picture becomes less clear. I have already stated my conclusion that Mr. Abrams did not respond to Mr. Amey’s request for ploughing and that Mr. Dixon’s evidence of his subsequent trips through Rankins Corners is difficult to square with the observations of other witnesses.

[170] Again, as already discussed, it was the opinion of both Mr. Brownlee and Mr. Leggett that if the Town had carried out the maintenance activities on CR9 as claimed, there would have been spots of bare pavement.

[171] Against this background of uncertainty as to what was done, when it was done and by whom, the issue of the Town’s records assumes particular significance.

[172] Mr. Brownlee testified that up until 1998, when the County was responsible for winter road maintenance operations on CR9, records were kept which were substantially compliant with the applicable standard of record keeping. That standard would include notes about the instructions given to operators and timesheets, completed contemporaneously by operators, recording when they come in to work, when they were dispatched, what their instructions were and what maintenance they performed (including the route taken). The diary records kept by key Town employees did not meet this standard. Mr. Brownlee was critical of Mr. Amey’s diary entry, written on 4 January, which made no reference to his personal observations at 6:00 a.m. on 3 January when he drove through Rankins Corners, of calling Mr. Abrams, of attending the accident scene at 11:00 a.m., or of any of his personal observations at the scene including that he had seen no evidence of ploughing, salting or sanding.

[173] Mr. Leggatt acknowledged that he had seen better record-keeping, but felt that the Town’s practices were “probably average”. He said that in 2003 record-keeping by municipalities was “quite poor”. In cross-examination, however, he acknowledged being unaware of the County’s superior record-keeping up until 1998. The data from GPS technology that is ubiquitous now was not available in 2003.

[174] It is important when dealing with an event that occurred a long time ago – seventeen years now – not to impose today’s standards of performance when assessing the evidence of what occurred. But it is safe to say that even in 2003, claims against municipalities for winter road maintenance were nothing new. Nor, as evidenced by the County’s practices, was proper record keeping.

[175] The plaintiffs – after noting that to the extent that records were produced, the originals were missing or lost - argue that the lack of records lead to one of two conclusions. Either the Town did not perform the purported maintenance operations, or the operations were performed in such a cursory and inept fashion as to be the same as not performing the operations.

[176] Certainly, the inadequacy of such records, coupled with the evidence of the Town employees and the experts, Messrs. Brownlee and Leggett, that the conditions on 3 January 2003 amounted to a light snow event for which routine winter maintenance procedures would have removed some, if not most, of the snow from the road prior to the accident, cannot be reconciled with the eye witness testimony of a snow covered, untreated and slippery road condition.

[177] Hampered by the lack of records or other reliable evidence that the work it claims was done was actually undertaken, I conclude the Town has not met its burden of proving that it took reasonable steps to correct the state of non-repair.

F: Liability and Contributory Negligence of David Bush and Leslie Lloyd

[178] The propane tanker truck driven by Mr. Bush was carrying close to its capacity of 20,000 pounds. He estimated that he was travelling at around 40-45 m.p.h. (64-72 km/h), which was slower than the normal speed limit of 80 km/h, but faster than the posted speed advisory for Rankins Corners of 60 km/h.

[179] Mr. Bush testified that he first saw Ms. Lloyd's vehicle approaching as he proceeded into the east curve of Rankins Corners. He said that he saw her vehicle lose control and begin to slide sideways into his lane and down the road's slight incline toward his truck, at a 180° angle. Mr. Bush did not see the Lloyd vehicle's angle correct itself from sideways to straight before impact. He claims that he had no opportunity to steer his vehicle to avoid the collision. He believed that the front end of his truck struck the driver's side door of the Lloyd vehicle but was uncertain about whether the angle of impact was the same angle as he observed at when the Lloyd vehicle first lost control as the car. He hit his brakes very heavily and recalls being thrown to the floor of the truck by the impact (he was not wearing a seat belt).

[180] Mr. Bush said that he saw Ms. Lloyd’s face through what he thought was the driver’s side window of her vehicle before the collision occurred. Both experts agree that this could not have happened as described.

[181] Ms. Lloyd had driven only 400 metres or so from her in-laws’ house when the accident occurred. She had already negotiated the western half of the S-curve of Rankins Corners. The accident occurring in the western half of the S-curve where the downgrade was in the easterly direction. She was familiar with the road and was a relatively experienced driver having regard to her age at the time.

[182] Mr. Schnarr’s opinion was that Ms. Lloyd was travelling at a speed of 20-40 km/h at the moment of impact and that prior to that she had braked. He estimated her pre-braking speed to be between 45 km/h and 62 km/h.

[183] Mr. Leggett challenged the assumption that Ms. Lloyd braked before the impact. While he acknowledged that he could not definitively say that Mr. Schnarr’s speed estimates were wrong, his opinion was that the data provided was insufficient to make a confident estimate. Nor did Mr. Schnarr’s reports explain the basis for his speed estimates. That said, Mr. Leggett did not believe that speed alone would account for Ms. Lloyd’s loss of control. He agreed with the statement in the Ontario Driver’s Handbook that most skids are caused by a failure to react in time and adjust to road conditions.

[184] According to Mr. Leggett, if a vehicle such as Ms. Lloyd’s was doing 50 km/h, it should have followed the curve path to the right; if was doing 70 or 80 km/hr there would be a curve path with the driver’s side leading yaw, into the oncoming lane.

[185] Both Mr. Schnarr and Mr. Leggett accept that the the gouges and scratches located by P.C. Prent 60 cm to 104 cm inside the centre line of the westbound lane, most probably represent the point of impact of the two vehicles.

[186] P.C. Prent recorded that the Hyundai was 1.43 metres wide. However, published data consulted by Mr. Schnarr states the Hyundai’s width at 1.72 metres mirror-to-mirror.

[187] Mr. Scharr’s opinion is that the gouge mark 60 cm from the centre line represents the maximal point of impact and that the origin of the gouge would have been the mid-line of the Lloyd vehicle. Mr. Leggett’s opinion was that the gouge was more likely to have been effected by a light part of the car and that the Lloyd vehicle was more than 105 cm into the westbound lane – perhaps as much as 120 cm if the width of the non-deflated left tire of the Lloyd vehicle is taken into account.

[188] There is support in the limited evidence available for the views of both experts concerning the point of impact. What is clear is that most, if not all of the Hyundai had entered the westbound lane when the impact occurred.

[189] The driver’s side of the Bush vehicle was, according to Mr. Leggett, “close” or “very close” to the centre line.

[190] P.C. Prent examined the Lloyd vehicle and found that the windshield wiper setting was at the highest possible speed, the fan was on at the highest heat setting and was set on front windshield defrost. Mr. Bush, who had been driving for two and a half to three hours at the time of the accident, had his wipers set on medium and defroster on high,

Liability of David Bush

[191] The defendants argue that if it is found that Ms. Lloyd lost control of her vehicle, Mr. Bush should be found 25% to 33.3% responsible for the accident.

[192] By his own admission, Mr. Bush was exceeding the speed advisory of 60 km/h for Rankins Corners, which is based on clear weather and road conditions.

[193] Both as he approached Rankins Corners and for some time before that, he had experienced difficulty ascertaining where the centre of the road was. He was clearly travelling too fast for the conditions. Had he been driving properly, he could have braked sooner or more effectively once he realised that Ms. Lloyds had lost control of her vehicle. Mr. Leggett testified that the damage to the Lloyd vehicle would have been less severe had Mr. Bush been travelling at a more appropriate speed.

[194] While Mr. Bush was clear in his evidence that he hit the brakes and the clutch, braking heavily but claiming not to have lost directional control of his vehicle, Mr. Leggett, who noted that the Freightliner was equipped with anti-lock brakes, questioned whether, based on the mechanics of the collision and in particular the occurrence of a secondary impact between the vehicles as the Hyundai span out, Mr. Bush did in fact brake at all.

[195] Suffice it to say that while it is easy with the benefit of reflection to criticise a driver’s judgment made in an emergent situation – in this case Mr. Bush’s stated decision to brake hard and not take evasive action - I find that Mr. Bush was negligent in his operation of his vehicle. He was travelling at an excessive rate of speed for the conditions at Rankins Corners and his failure to take any effective evasive action was likely a reflection of his excessive speed.

Contributory Negligence of Leslie Lloyd

[196] Mr. Bush expressed the view that when he first saw the Lloyd vehicle it was going a “little fast” for the conditions. But he agreed this was speculation on his part and could not say whether or not the Lloyd vehicle was going faster than he was. It otherwise appeared to be travelling normally and under control.

[197] While there was much speculation as to how fast Ms. Lloyd was travelling and whether she braked, and, if so, how heavily, the only witness to her speed and the actions of her vehicle is Mr. Bush. In that regard, he acknowledged that in speculating that she was travelling a “little fast” for the conditions, he was trying to find a reason for why she would suddenly lose control.

[198] The defendants, supported by Mr. Leggett, argue that if the occurrence of heavy snowfall and blowing snow affecting driving and road conditions right around the time of the accident is rejected as an explanation for the wiper and defroster settings in the Lloyd vehicle at the time of the accident, the only other reasonable explanation for the accident would be that Ms. Lloyd's visibility was obstructed due to snow and/or frost on the front windshield of the Lloyd vehicle. The Lloyd car had been left outside, exposed to the elements, overnight on 2-3 January. It had been snowing since midnight. The temperature had been as cold as -8°C, and remained well below zero up to the time of the accident. front windshield would have been covered with snow and frost. The accident occurred very soon after Ms. Lloyd’s journey had begun. She had left her in-laws’ house in a hurry in response to a call regarding a relative's medical emergency. Accordingly, the defendants argue that is likely that she started off that morning without clearing her windshield, expecting it would clear as she drove the low traffic road with which she was so familiar; however, on this occasion, she misjudged the curve which she was unable to see due to the obstructed windshield and errantly drove straight into the oncoming lane of traffic.

[199] I do not accept that theory of the accident. It is pure speculation. Mr. Bush, who had been out for hours, also had his defroster on high and his wipers at a medium setting.

[200] As a general principle, when a driver crosses the centre line of a road and an accident occurs, there is a rebuttable presumption of negligence on the part of that driver: El Dali v. Panjalingam (2013), 113 O.R. (3d) 721, 2013 ONCA 24 at paras. 17-19.

[201] The defendants argue that in cases involving roadway winter maintenance, contributory negligence on the part of the driver is typically assessed in the range of 50%, even absent findings that the plaintiff failed to keep a proper look-out, reacted inappropriately, or otherwise misjudged the situation.

[202] My reading of the cases cited by the defendants in support of that proposition reveals no general principle to that effect, although a number of them did result in a finding of 50% liability on the driver of the vehicle involved.

[203] In Guiliani, the trial judge explicitly found that the plaintiff was going too quickly in “very slippery” conditions. 50% contributory negligence was assessed against the plaintiff: Giuliani v. Halton (Regional Municipality), 2010 ONSC 4630, at paras. 170-173.

[204] In Ferguson v. Brant (County), 2013 ONSC 435, there was a finding that if the plaintiff, a G2 licence holder driving in his first winter as such, had been a more experienced driver, he would have been driving more slowly for the road conditions and alignment. He was held 45% contributorily negligent.

[205] In Montani, the trial judge apportioned liability equally between the driver of the car that the plaintiff was a passenger in and the Province which was held to have breached its statutory obligation to keep the highway in repair. The Ministry’s appeal was unsuccessful. However, the reasons of the trial judge are not available and the appeal judgments of Osborne J.A. (dissenting) and Moldaver J.A. offer no insight as to the trial judge’s finding vis-à-vis the defendant driver.

[206] I would also observe that in Thornhill v Shadid (2008), 2008 CanLII 3404 (ON SC), 289 D.L.R. (4th) 396 (Ont. SCJ), one of the cases referred to in argument by the plaintiffs, the apportionment between the defendant municipality and the at-fault driver was 50-50.

[207] The plaintiffs argue that the decision of the Court of Appeal in Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428 is authority for the proposition that a municipality will be 100% liable to a person losing control and crossing the centre line to collide with an oncoming vehicle on a road rendered slippery as a result of lack of effective winter maintenance.

[208] In Belanger, the trial judge found that the plaintiff had suddenly and without explanation lost control of her vehicle and that this loss of control and her inability to regain complete control of her car once it began to fishtail on the road, would not have occurred but for the slippery road conditions. Cronk J.A. went on to note, at para. 67, the trial judge’s finding that “in the absence of some evidence of an overt decision, action or adjustment” by the plaintiff that would have caused her to lose control of her vehicle, her loss of control was “as consistent with [the] normal and safe operation of her vehicle as it [was] with some act of negligence on her part”.

[209] Cronk J.A. continued, at para. 72:

There was no evidence at trial of any action or omission attributable to Ms. Belanger that caused her car to cross the centre line of the highway. Nor, as the trial judge noted … was there any suggestion that she engaged in “any deliberate maneuver that could be construed as unusual or dangerous”. There was also no evidence that Ms. Belanger was inattentive to or distracted from her driving, or that the condition of her car contributed in any way to the accident. The trial judge also found that she was not driving at an excessive speed. And several other drivers at or near the scene testified that they, too, had experienced difficulties controlling their cars due to the slippery road conditions.

[210] The appellant municipality did not challenge any of these findings by the trial judge, and his conclusion that the municipality was 100% liable for the plaintiffs’ damages of approximately $12 million was, accordingly, upheld.

[211] I find myself unable to replicate the affirmative findings of fact by the trial judge in Belanger that had the effect of rebutting the presumption of contributory negligence on the part of the plaintiff in that case. In the present case the only eye-witness evidence of the accident itself comes from Mr. Bush. While he agrees that his evidence about Ms. Bush’s speed is speculative if Ms. Lloyd had in fact been travelling the lower end of the pre-impact speed range suggested by Mr. Schnarr, Mr. Brush might have observed that. By contrast, the evidence of Mr. Leggett leaves it open to conclude that Ms. Lloyd’s speed could have been a factor, albeit not her speed alone.

[212] Asked by counsel for the plaintiffs what options would have been available to Ms. Lloyd if, for example, she believed that the Freightliner was going to interfere with her path of travel, Mr. Leggett said:

… the first response by the driver is to steer to the right to return to the correct side of the road or if oncoming is in your lane, for example, to provide a larger berth, by steering onto the shoulder. So that would be the expected first response. And potentially braking as well, at a light degree, to allow the approach speed to reduce, which would provide a greater margin of safety and extend the timeframe for which the steering could take place.

[213] It was suggested that the angle of the wheels on the Lloyd vehicle after it came to a definitive rest was possibly evidence of an evasive manoeuvre by Ms. Lloyd. But another explanation would be that the tires were pushed in that direction during the incident of the collision. In the absence of any definitive evidence that Ms. Lloyd steered her car towards the shoulder or applied her brakes, coupled with the plausible possibility that her speed may not have been appropriate to the circumstances, I cannot with confidence find that the evidence is wholly consistent with the normal and safe operation of her vehicle. Accordingly, the plaintiffs have not, in my view, rebutted the presumption of contributory negligence.

Apportionment of Liability

[214] I make the following apportionment of damages:

a. The municipal defendants 50%

b. David Bush and MacDonald’s Propane 33%

c. Leslie Lloyd 17%

Disposition

[215] There will be judgment for the plaintiffs in accordance with these reasons, with the assessed damages and any applicable interest thereon allocated in accordance with the apportionment of liability.

Costs

[216] Subject to any offers of settlement, other agreements that I am unaware of, or submissions to the contrary, I am presumptively of the view that the plaintiffs are entitled to their costs of this trial on a partial indemnity scale. I note, also, that the Court of Appeal remitted the issue of costs of the second trial to be determined at this trial.

[217] Should the parties not be able to resolve the issue of costs, costs submissions should be filed with the trial coordinator at Belleville as follows:

(a) by the plaintiffs within 21 days of the release of these reasons;

(b) responding submissions within 14 days thereafter.

Submissions should not exceed ten pages in length in total (i.e. in respect of all costs claimed) and should be accompanied by the parties’ Bill of Costs. Copies of any offers to settle or other agreements material to the issue of costs should also be provided.

Mew J.

Released: 6 February 2020

COURT FILE NO.: CV-03-568 (Belleville)

DATE: 20200206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLIE GAIL LLOYD AND JASON LLOYD

Plaintiffs

– and –

DAVID P. BUSH, 818601 ONTARIO INC., THE CORPORATION OF THE COUNTY OF LENNOX AND ADDINGTON, THE CORPORATION OF THE TOWN OF GREATER NAPANEE

Defendants

REASONS FOR JUDGMENT

Mew J.

Released: 6 February 2020