DATE: 20220804
COURT FILE NO.: CV-12-18610
COURT FILE NO.: CV-13-19389
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COURT FILE NO.: CV-12-18610
BETTY JO LYNN ALGRA, personally and as Estate Trustee of The Estate of Danny Monteiro, deceased, MARISSA MONTEIRO, SIERRA LYNN LOUISE ALGRA and AUSTIN HANK JAMES ALGRA, all minors, by their Litigation Guardian Betty Jo Lynn Algra
Plaintiffs
– and –
PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as represented by the Minister of Fisheries and Oceans, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the Minister of Transportation for the Province of Ontario, and THE CORPORATION OF THE TOWN OF LEAMINGTON
Defendants
Myron Shulgan, Q.C. for the Plaintiffs
Dallas J. Lee for the Defendant by CounterClaim, The Estate of Danny Monteiro
Larry J. Abey for the Defendant, Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie.
Stewart Phillips for the Defendant Her Majesty the Queen in Right of Canada
Giovanna Asaro for the Defendant Her Majesty the Queen in Right of Ontario
Alex Szalkai for the Defendant The Corporation of the Town of Leamington
AND BETWEEN:
COURT FILE NO.: CV-13-19389
DANIELLE FELTHAM
Plaintiff
– and –
PAUL M. MINGAY, The Litigation Administrator of THE ESTATE OF ANDREW COMRIE, THE ESTATE OF DANNY MONTEIRO, ATTORNEY GENERAL OF CANADA, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and THE CORPORATION OF THE MUNICIPALITY OF LEAMINGTON
Defendants
Greg Monforton for the Plaintiff
Larry Abey for the Defendant, Paul M. Mingay, The Litigation Administrator of the Estate of Andrew Comrie
Stewart Phillips for the Defendant Attorney General of Canada
Giovanna Asaro for the Defendant Her Majesty the Queen in Right of Ontario
Alex Szalkai for the Defendant The Corporation of the Municipality of Leamington
HEARD: October 12, 13, 14, 15 and 18, 2021
RULING ON SUMMARY JUDGMENT MOTIONS
MUNROE J.
[1] These are negligence actions arising out of the same fatal boating accident. Three people died. The two survivors brought separate actions against the estates of two of the deceased and three levels of government.
[2] Before me are motions and cross-motions for summary judgment. All parties seek summary judgment on liability and assert that there is no genuine issue on liability requiring a trial.
[3] The plaintiffs, Betty Jo Lynn Algra (“Algra”) and Danielle Feltham (“Feltham”) (collectively “the plaintiffs”), as well as a third person, Sarah Burns (“Burns”), were passengers in a pleasure boat that crashed into a breakwater south of Leamington Harbour (“harbour”) on June 5, 2011. Also, on board the vessel at the time of the accident were Danny Monteiro (“Monteiro”), the owner of the vessel, and Andrew Comrie (“Comrie”), the operator of the vessel at the time of the accident. Monteiro, Comrie, and Burns were killed. Algra and Feltham were injured.
[4] Algra brought the first action individually, in her capacity as Estate Trustee for the Monteiro Estate, and as the Litigation Guardian for the three minor children of her and Monteiro, her common law spouse. She brought this action against the Comrie Estate and against three levels of government: the Attorney General of Canada as Represented by the Minister of Fisheries and Oceans (“Canada”), Her Majesty the Queen in Right of Ontario, as Represented by the Minister of Transportation for the Province of Ontario (“Ontario”), and the Corporation of the Municipality of Leamington (“Leamington”). Although Algra did not bring an action against the estate of her spouse, Monteiro, the Monteiro Estate was brought into the action by the counterclaims of all four defendants: the Comrie Estate, Canada, Ontario, and Leamington. All defendants, as well as the counterclaim defendant, the Monteiro Estate, crossclaimed against the others for contribution and indemnity.
[5] The second action was commenced by Feltham against the Comrie Estate, the Monteiro Estate, Canada, Ontario, and Leamington. All defendants crossclaimed against the others for contribution and indemnity.
I. Overview
[6] Shortly before the midnight hour of June 5, 2011, a 23-foot powerboat (“the vessel”) struck the breakwater south of the harbour of Leamington, Ontario. At the time of the collision, there were five persons on board the vessel. Comrie was operating the vessel. The owner of the vessel, Monteiro, was standing beside Comrie. Algra, Feltham, and Burns were passengers. Monteiro, Comrie, and Burns died. Algra and Feltham survived.
II. The Parties
A. Betty Jo Lynn Algra
[7] Algra, born September 17, 1974, was 37 years old at the time of the accident. She was the common law spouse of Monteiro. At the time of the accident, they had three minor children: Marissa Monteiro, born July 2, 2009, age two; Sierra Lynn Louise Algra, born December 15, 2003, age seven; and Austin Hank James Algra, born June 2, 2002, age nine (“the children”). The children lived with both parents in Leamington.
B. Danielle Feltham
[8] Feltham, born March 27, 1980, was 30 years old at the time of the accident. She lived in Fort McMurray, Alberta, with her husband and one child. She was best friends with Burns who was dating Comrie.
C. Danny Monteiro
[9] Monteiro was born on April 3, 1979 and died on June 5, 2011. He was 32 years old at the time of his death. As noted above, at the time of the accident, he lived with his spouse, Algra, and their three minor children in Leamington.
D. Andrew Comrie
[10] Comrie was born on November 19, 1977 and died on June 5, 2011. He was 34 years old at the time of his death. He lived in Leamington. He was dating Burns.
E. Canada
[11] Canada is a named defendant. The Canadian Coast Guard (“CCG”) is an agency within the Department of Fisheries and Oceans Canada. The CCG is the agency responsible for providing aids to navigation in Canadian waters. At the time of the accident, there were two aids to navigation on the breakwater, one on each end of the breakwater.
F. Ontario
[12] Ontario is a named defendant. At the time of the accident, Ontario owned the breakwater.
G. Leamington
[13] Leamington is a named defendant. Leamington owned and operated the Leamington Municipal Marina (“marina”) located in the harbour. This included sodium vapour lights in and around the harbour at the time of the accident.
III. History of the Proceedings
A. Algra
[14] Algra first brought her Statement of Claim issued November 2, 2012. She brought this action personally, as Estate Trustee for the Monteiro Estate, and as Litigation Guardian for her three minor children. A Fresh as Amended Statement of Claim was allowed on April 13, 2016.
[15] Algra alleges that the named defendants – the Comrie Estate, Canada, Ontario, and Leamington – are jointly and severally liable for injuries and losses caused as a result of their negligence.
[16] All defendants – the Comrie Estate, Canada, Ontario, and Leamington – filed Statements of Defence, crossclaims, and counterclaims. Subsequently, all defendants filed Statements of Defence, crossclaims, and counterclaims to the Fresh as Amended Statement of Claim. All denied liability. The crossclaims were against the other defendants for contribution and indemnity. The counterclaims were against the Monteiro Estate for contribution and indemnity. The Monteiro Estate filed its Statement of Defence and crossclaims denying liability and seeking contribution and indemnity from the defendants.
[17] On February 24, 2017, Algra filed her motion for summary judgment on liability. Subsequently, all defendants filed their cross-motions for summary judgment on liability. All parties declared that there was no genuine issue on liability requiring a trial.
B. Feltham
[18] Feltham brought her Statement of Claim issued May 16, 2013. A Fresh as Amended Statement of Claim was allowed on April 13, 2016.
[19] Feltham alleges that the named defendants – the Comrie Estate, the Monteiro Estate, Canada, Ontario, and Leamington – are jointly and severally liable for injuries and losses caused as a result of their negligence.
[20] All defendants – the Comrie Estate, the Monteiro Estate, Canada, Ontario, and Leamington – filed Statements of Defence, crossclaims, and counterclaims. Subsequently, all defendants filed Statements of Defence, crossclaims, and counterclaims to the Fresh as Amended Statement of Claim. All denied liability. The crossclaims were against the other defendants for contribution and indemnity.
[21] On October 10, 2017, Feltham filed her motion for summary judgment on liability. Subsequently, all defendants filed their cross-motions for summary judgment on liability. All parties declared that there was no genuine issue on liability requiring a trial.
C. Consolidation
[22] On consent, King J. entered an order on May 9, 2017, directing that the actions be tried at the same time or, alternatively, one immediately after the other.
[23] Algra’s initial summary judgment return date in April 2017 was adjourned to December 2017 to enable the consolidation of the motions.
[24] In September 2017, Pomerance J. was named case management judge. Through numerous case conferences, timetables, expert reports, motions, cross-examinations on affidavits, and summary judgment scheduled dates, the summary judgment motions and the related r. 21 motions were heard by me over five days commencing on October 6, 2021. Ruling was reserved. These are my rulings and reasons.
IV. Facts
[25] Most facts are uncontested.[^1] The few contested facts will be identified and resolved.
A. Setting
[26] The waters off the town of Leamington and its harbour are the setting. Leamington is a small town located on the north shore of Lake Erie immediately west of Point Pelee. Below is a photograph of the harbour, the breakwater, and Lake Erie viewed from the north looking toward the south.[^2]
1. The breakwater
[27] An outer breakwater[^3] lies in Lake Erie approximately 450 metres south of Leamington. It was designed to provide protection to the harbour and is placed south of the harbour entrance stretching east and west. It is approximately 300 metres long and approximately seven metres wide at the water line. This long, narrow breakwater has a light on each end: amber on the west end and green on the east end. The breakwater is made of large, irregularly shaped stone boulders. The water depth near the breakwater is two-and-a-half to three metres.
2. The harbour
[28] The harbour services both commercial and pleasure vessels. It consists of a pier, two inner breakwaters, and a marina for pleasure boats.
[29] The pier extends approximately 570 metres into Lake Erie. It has a driveway for vehicle traffic to its end. A structure on the pier formerly housed a restaurant. The east side of the pier is the docking facility for the ferry service to Pelee Island.
[30] The marina is located to the immediate east of the pier. It is a large facility that consists of hundreds of slips for pleasure vessels, a fuel dock, a boat launching ramp, and parking for vehicles and boat trailers.
[31] The marina and the east side of the pier are protected by two inner breakwaters both lying in an east-west direction. The westerly one connects with the pier and proceeds roughly east ending after approximately one quarter of the total length of the marina. The second breakwater is north of the first breakwater and also runs east extending to the end of the marina. This breakwater placement provides a protected entrance and exit to the marina proceeding in an east-west manner.
3. Sodium vapour lighting
[32] In 2009, Leamington installed over 50 sodium vapour lights, at varying heights, in the park area of the marina.[^4] At night, these lights produce an orange glow.[^5]
4. Day – date – time
[33] The date of the event in question is Sunday, June 5, 2011. The time of the event was late evening, before midnight. The police estimate the time of the accident between 11:06 p.m. and 11:55 p.m. – from the time of a cell phone call between Monteiro and his brother Mike and the time of the first call to the police about a woman in distress.
5. Weather
[34] This was a beautiful late spring day and evening. The temperature was warm to cool. The sky was clear. The waters of Lake Erie were calm.
B. Boating Experience
[35] Both Comrie and Monteiro had extended boating experience: Comrie with sailboats and Monteiro with powerboats. Both lived in Leamington and boated from the marina; Comrie used his parents’ sailboat docked at the marina, and Monteiro used the marina’s boat ramps to launch his boats. Both boated at night. Both were familiar with the breakwater.
C. Preceding Events – June 5, 2011
[36] At the time of the accident, there were five persons on the vessel: Monteiro, Algra, Comrie, Burns, and Feltham. These five persons got together shortly before the accident. Prior to this joinder, they were in two groups: Monteiro and Algra in one and Comrie, Burns, and Feltham in the other. The friendship between Monteiro and Comrie, and their mutual love of boats, brought them together. A brief review of the activities of each is important.
1. Comrie – Burns – Feltham
[37] Comrie worked. Feltham was on vacation from Alberta. Burns, Comrie’s girlfriend, and Feltham were at Comrie’s Leamington home catching up – they were long-time best friends who had not seen each other for some time. Comrie came home late afternoon/early evening. Burns and Feltham were home. Comrie had an alcoholic drink in a water glass. Burns and Feltham split a beer. The three shared one half of a marijuana cigarette. The three left Comrie’s house at about 8:10 p.m. They walked to the marina and arrived about one-half hour later. The three boarded Comrie’s sailboat that was docked at the marina. They listened to music and talked.
2. Monteiro – Algra
[38] Monteiro and Algra trailered their boat to the marina and put it into the water. At about 4:00 p.m., they left by boat with Monteiro’s brother Mike and two other friends travelled west and anchored off Cedar Beach. There they met up with other friends in other boats. They drank and otherwise enjoyed themselves for a couple of hours. They returned to the marina. At the marina they parked their boat and went to Pelee Island on a friend’s boat. On the island, they went to a local tavern, had a drink and returned to the marina. By this time, the sun was going down.
D. “Quick Spin” and the Accident
[39] At the marina, Comrie saw his friend Monteiro in his new boat and wanted to see the new boat. Comrie got aboard Monteiro’s boat and spoke to Monteiro. This connection soon led to an expressed desire to take a “quick spin” on Monteiro’s new boat. All five persons left the marina on Monteiro’s boat. The sun was either down or setting. Monteiro drove the boat west and stopped in front of Seacliff Beach which is not far, next to Leamington Harbour. They were there for about ten to 15 minutes. A bottle of peach wine was produced from the small forward cabin and all were poured a drink. They decided to return and Comrie took over driving. Comrie and Monteiro were standing at the front console of the boat with Comrie at the wheel on the right and Monteiro on his left. The three women were seated on the back seat with Feltham in the middle, Algra on the left behind Monteiro, and Burns on the right behind Comrie. They went east, back toward the marina. It was dark.
[40] Comrie drove the boat in circles around the breakwater. After multiple turns, the vessel struck the breakwater at or near its western end causing the boat to ride up onto the rocks and roll over into the water upside down. Feltham and Algra managed to swim to the rocks and climb on to them. Both were injured, Algra with a broken leg. Both yelled for help in the darkness.
[41] The first reported female distress police call was at 11:55 p.m. Thereafter responding officers on boats rescued Algra and Feltham. Both were transported to the hospital.
E. Search
[42] In the early morning of June 6, 2011, the CCG participated in the search for the three unaccounted for parties in this accident. Captain Stacey Trombley participated in said search as the commanding officer of the CCG Ship “Cape Dundas”.[^6] She was contacted at approximately 12:55 a.m. on June 6, 2011 and was directed to the harbour area.[^7] The Cape Dundas arrived at the scene at about 2:30 a.m. and was assigned to search west of the west end of the breakwater.[^8] CCG found no one.
[43] Ontario Provincial Police (“OPP”) divers found the dead bodies of Monteiro, Comrie, and Burns later that morning. Burns was found inside the vessel. Monteiro and Comrie were recovered at the bottom of the lake near the west end of the breakwater.[^9]
F. Accident Investigation
[44] The OPP assigned two accident reconstructionists, Constable (“Cst.”) Robert Walker and Cst. Rich Bortolon, to conduct an accident investigation and to report thereon. They did so. Cst. Walker’s Collision Reconstruction Report, internally approved December 8, 2011, is part of the motion record.
[45] Constables Walker and Bortolon arrived at the scene in the early morning hours of June 6, 2011. They returned in daylight at about 8:00 a.m. for scene examination and photographs. The weather remained clear and the waters calm.
[46] At the very west end of the breakwater are large stone boulders surrounding a concrete base on which is affixed a pole containing a navigation light on the top. These far western boulders, including a submerged one, were examined and photographed. The submerged boulder was scraped with a small section broken away. The above-water boulders immediately to the east of the submerged boulder were placed in such a way as to form a “V” shape. Scrapings with red and white transfers were noted on inside of the boulders forming this “V” shape. (The hull of the vessel is predominantly white with a red horizontal stripe on its top.)
[47] Two deceased males were found resting on the lake bed to the west of the broken boulder. The vessel was located south of the west end of the breakwater with only a portion of its bow above water. The bow was sticking straight up with the balance of the boat under water. The boat was not in contact with the lake bed and was moving slowly.
[48] The vessel was pulled from the water, transferred to a local marine facility, and examined by the two constables.
[49] The vessel sustained “severe hull damage”. The hull was crushed in, cracked, and scraped starting at the bow and continuing along both sides of the hull. The bow tow hook, “one of the stronger points on the vessel”, was bent to the right. In the open compartment area, the two front seats were torn from the deck.
[50] The report made the following conclusions:
There were no reasons observed at the collision scene that would have prevented the operator of the [vessel] from observing the flashing warning marker located at the west end of the break wall. The lake conditions were not a contributing factor in this collision. The weather was not a factor in this collision.
Alcohol use was indicted by several witnesses and may have been a factor in this collision. At the time this report was written, I was not aware of the toxicology report for the operator of the [vessel].
Speed was not a factor in this collision. Driver error by the operator of the [vessel] was a factor in this collision. If he had taken notice of the properly functioning warning light on the west end of the break wall and avoided the wall, this collision could have been avoided.
It is my belief that this was an avoidable collision.
G. Intoxicants
[51] According to Feltham, Comrie ingested both alcohol and marijuana before operating the vessel. The Centre of Forensic Sciences (“CFS”) report dated August 10, 2011 confirmed this information. Femoral blood from Comrie was tested and revealed ethanol in the amount of 105 milligrams of alcohol in 100 millilitres of blood.[^10] Also detected in Comrie’s blood was tetrahydrocannabinol (“THC”), the primary psychoactive constituent of marijuana.
[52] With regard to these CFS readings, counsel for Algra and for Leamington retained separate forensic toxicologists: Algra (Joel Mayer) and Leamington (James Wigmore). Both experts agree that the blood alcohol concentration (“BAC”) at the time of the autopsy would be the same at the time of the crash.
[53] A BAC of 105 milligrams of alcohol in 100 millilitres of blood exceeds the legal limit to operate a vessel: s. 253(1)(b), Criminal Code of Canada, R.S.C. 1985, c. C-46.[^11]
H. Direction of Travel and Point of Impact
[54] The point of impact on the breakwater and the direction of travel at the time of the impact are contested. There are no known independent witnesses to the accident. The boat did not remain in contact with the breakwater; it ended up in the water and slowly drifted. The two survivors of the accident are not consistent on these issues. As a consequence, and in order to determine whether there is no genuine issue requiring a trial on these issues, I shall consider the evidence submitted by the parties and exercise my r. 20.04(2.1) powers under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”): weighing the evidence, evaluating credibility, and drawing reasonable inferences from the evidence.
1. Evidence of Feltham
[55] Feltham gave sworn evidence three times: Examination for Discovery on April 23, 2015 (Feltham Exam #1); Affidavit sworn November 7, 2017 (Feltham Affidavit); and Cross-Examination on Affidavit on January 9, 2019 (Feltham Exam #2). In addition, she was interviewed by OPP Cst. Mark Loop twice: June 6, 2011 and June 8, 2011.
[56] Feltham professed a “very strong memory” of that day.[^12] She knew no one on the boat except her best friend, Burns.[^13]
[57] The accident occurred on their way back to the marina with Comrie driving.[^14] The boat proceeded to travel southeast or east along the shore, then turned around going west.[^15] This travel was parallel to the shoreline.[^16] The boat made three to five such passes or turns.[^17] On the fifth pass, the boat struck the breakwater going east, while travelling along the shore.[^18] The boat’s travel direction was roughly parallel to the shore, not north.[^19] The travel direction did not change.[^20] The point of impact was the edge of the breakwater.[^21] The point of impact was not close to the centre of the breakwater.[^22] On impact, Feltham was thrown into the water. When Feltham emerged from the water, she was only 30 feet from the yellow light.[^23] Feltham described her feelings on emerging from under the water as anger: how could they not have seen this light – “it’s right in front of my face.”[^24]
[58] When Feltham initially emerged from under the water, she was under the boat.[^25] She was able to swim out from under the boat and then to the rocks of the breakwater.[^26] Algra was also in the water and swam to the breakwater.[^27] Feltham tried to help Algra get up on the rocks.[^28] Feltham left Algra on the rocks at that end and went to the other end of the breakwater, the end with the green light, looking for help.[^29]
[59] Feltham’s injuries included missing teeth and a chin cut requiring 14 stitches.[^30]
2. Evidence of Algra
[60] Algra gave sworn evidence three times: Examination for Discovery on April 21, 2015 (Algra Exam #1); Affidavit sworn November 6, 2017 (Algra Affidavit); and Cross-Examination on Affidavit on January 10, 2019 (Algra Exam #2). In addition, she was interviewed at the hospital by OPP Cst. Michael Scanlan shortly after the accident on June 6, 2011 at 1:58 a.m. (Scanlan interview) and by OPP Cst. Mark Loop at the hospital on June 7, 2011 at 11:45 a.m. (Loop interview).
[61] Comrie drove the boat on way back to the marina.[^31] Comrie circled the breakwater in clockwise direction.[^32] They were close to the breakwater and could see the rocks as they were circling.[^33] Then all of a sudden they hit without any screams or anything.[^34] Algra woke up under the water, under the boat.[^35] She swam to the rocks of the breakwater.[^36] Feltham was already on the rocks; Feltham helped lift Algra up on the rocks.[^37] Then Feltham went down the rocks yelling for help.[^38] Algra was bleeding heavily from a broken leg.[^39]
[62] To Cst. Scanlan, Algra said “all she could remember was hitting the rocks.”[^40] To Cst. Loop, Algra said she “[d]oesn’t remember the crash.”[^41] At her Examination for Discovery, Algra testified that the boat hit the breakwater at its western half from the south; it was heading north at the time.[^42] Later, Algra disagreed that the boat was heading southeasterly striking the west end of the breakwater; rather, it struck the south side of the breakwater somewhere east of the west end.[^43] Still later, Algra gave this evidence:
Q. …So do you actually remember anything after [Burns] standing up and going to talk to [Comrie]?
A. No, they … were already talking and that was it, I don’t remember anything after that.
Q. So do you actually know where the boat hit the breakwall?
A. No.
3. Scene
[63] The initial scene was the breakwater with a partially sunk boat nearby, two survivors on the breakwater, and three unrecovered deceased bodies.
[64] The first responders, Lieutenant (“Lt.”) Lanny Parent and Firefighter Shawn McKenzie, from the Leamington Fire Department (“LFD”), arrived at the breakwater on the LFD rescue vessel around 12:30 a.m. on June 6, 2011.[^44] They rescued Feltham from the east end of the breakwater and Algra from the west end of the breakwater.[^45] They saw the damaged bow of a vessel sticking up out of the water at the west end of the breakwater.[^46] Lt. Parent noted marks on the narrow end of the west side of the breakwater, south side.[^47] The weather was clear and the water was calm.[^48]
[65] The accident reconstructionists, Csts. Walker and Bortolon, were at the marina shortly after 4:00 a.m. on June 6, 2011.[^49] The bow of a vessel was sticking out of the water near the west end of the breakwater.[^50] The officers came back to land at about 5:10 a.m.[^51] The water was very calm and the skies were clear.[^52]
[66] The two officers returned to the scene shortly thereafter at about 8:00 a.m.[^53] They went out to collect evidence.[^54] Cst. Bortolon took photographs.[^55] The photographs are numbered.
[67] The rocks at the west end of the breakwater were examined and photographed. Paragraphs 42 and 43 above detail the examination of the reconstructionists. They identified a “V” shaped formation created by the placement of two large boulders, which is depicted in photographs 75, 77, and 78.[^56] The cracked boulder is below the “V” and depicted in photograph 76.[^57] In addition to the red and white scrapings, fibreglass shavings were noted in the same location, in the “V” formation.[^58] Also, a red marking, not paint and believed to be blood, was seen on the southern rock in the “V” formation on its southern side as pictured in photographs 66 and 78.[^59]
[68] The heavily damaged bow of the boat was pointing skyward out of the water not far from the west end of the breakwater.[^60] On-scene photographs 1-7, 9-14, and 69-70 show significant damage from the very bow, a bent tow hook, toward the rear, with scraping on both sides of the predominantly white hull including the red horizontal stripe at the top of the hull where it meets the deck. Indeed, beginning at the bow, the hull is separated from the hull.
4. Vessel
[69] The vessel sunk. After the boat was pulled from the water, the two officers examined and photographed it. Paragraphs 44 and 45 above detail this examination. The severe damage to the hull is depicted in photographs 22 – 27, 31 – 35, 40, and 65.
5. Reconstructionists’ conclusions
[70] In the “Collision Analysis” section, the author, Cst. Walker, concludes that the vessel was travelling in an easterly direction[^61] at “normal” speed when it collided with the west end of the breakwall. The collision caused the vessel to ride up into the boulder “V” shape and roll onto its right side. The vessel rolled off the south side of the breakwater and into the water upside down.[^62]
[71] In his synopsis attached to the Collision Reconstruction Report, Cst. Bortolon noted the vessel was travelling south to southeast when it struck the western edge of the breakwater. During his cross-examination, Cst. Bortolon reconciled this difference as follows:
Q. … And was it your opinion that the … vessel was travelling, as indicated [in the collision analysis], in an easterly direction on Lake Erie?
A. … I wrote in my notes southeasterly, but I think it depends on, if you look at that overhead view of the breakwall, exactly where north is. So it was definitely going east, southeast, I would say southeast before the collision.[^63]
[72] During his cross-examination, Cst. Walker testified that a southeasterly heading at the time of impact was more accurate than his report’s easterly heading.[^64] He agreed with the southeast direction of travel noted by Cst. Bortolon.[^65]
6. Findings
[73] I begin by stating the obvious: given the nature of this accident, which involved a moving boat on the water at night, it is impossible on the record evidence before me to provide an exact compass direction of travel of the vessel at impact. That does not mean, however, that a general direction of travel cannot be ascertained. It can.
[74] I find that the direction of travel of the vessel at the time of impact on the breakwater was east - southeast. I make this finding based on all the evidence I accept, taking specific note of the physical evidence at the scene including the positioning of the “V” rock formation, the location of Feltham and Algra in the water and climbing on the rocks, and the evidence of Feltham regarding the circling and the direction of travel.
[75] I further find that the place of impact was the western end of the breakwater on the south side. I make this finding based on all the evidence I accept making specific note of the physical evidence at the scene including
- The position of and damage to the “V” rock formation area;
- The red and white apparent paint scrapings at this location;
- The fibreglass shavings found at this location;
- The damage to the red and white hull of the fibreglass vessel;
- The location of Feltham and Algra in the water and climbing on the rocks;
- The apparent blood on the rock where the bleeding survivors climbed out of the water; and
- The evidence of Feltham regarding the location of the impact.
[76] With regard to Algra’s evidence on direction of travel and point of impact, I decline to give it any weight. According to Algra, the boat was heading north when it hit the south side of the breakwater somewhere east of its west end. First, the damage to the vessel does not appear to reflect a frontal hit on the breakwater. Rather, both sides of the hull were severely scraped. Second, there is no evidence of impact in an area of the breakwater other than at its very western end. Third, both survivors climbed out of the water at the west end as reflected by Algra’s place of rescue and the apparent blood mark on the rock in that area. Fourth, Algra was not consistent with her position of direction and point of impact ultimately concluding that she did not know where the boat hit the breakwall. And finally, Algra was seriously inconsistent with regard to the identification of the vessel’s driver on impact.
[77] According to both first responders, Firefighter McKenzie and LFD Lt. Parent, Algra told them that she was the driver of the vessel on impact.[^66] During her examinations, Algra testified that Comrie was driving,[^67] and denied she would say otherwise.[^68]
[78] Reviewed collectively, I have serious concerns about the reliability of Algra’s evidence at least concerning the impact and the events leading up to the impact. Consequently, I give no weight to her evidence on these issues.
[79] In sum, I find the point of impact was the very western end of the breakwater on its south side. I further find that the direction of travel of the vessel at the time of impact was east, southeast.
I. Speed
[80] How fast was the vessel travelling at the time it crashed into the breakwater? A precise answer is impossible again given the nature of this accident and the record evidence. There is no black box evidence providing the exact speed at the point of impact as is now common when dealing with other means of transportation. As a consequence, I search for reasonable inferences from the record evidence before me.
[81] Neither of the survivors are able to estimate the vessel speed at the time of impact. Algra testified that it was not an unusual speed, and that the speed was not a cause for concern.[^69] Feltham testified that the speed seemed normal, it did not feel dangerous, and the speed gave her no concerns.[^70]
[82] The reconstructionists were unable to put a number on the speed.[^71] They did draw conclusions based on the significant damage to the vessel’s hull and passenger compartment. The boat was going fast when it struck the rocks and came to a virtual stop.[^72] It took a lot of force to cause the damage seen.[^73] The boat was not going slowly.[^74]
[83] My findings with regard to speed at the time of the accident are necessarily general and not exact. The boat definitely was not moving slowly. The boat was going at a rate significant enough to propel a 23-foot boat, carrying five adults, up on the rocks before stopping and rolling over into the water. The crash sunk the vessel. The impact threw the boat’s occupants forward. The two mounted front chairs were torn from the deck. The front bow hook was bent. I conclude that the speed required to cause this type of damage was significant.
J. Visibility of Navigation Aids
[84] At the time of the accident, June 5, 2011, the breakwater had two navigation aids, namely two lights: one at the west end, an amber or yellow light, and one at the east end, a green light.
1. Visibility to those on the water that night
[85] It is a reasonable inference that neither the breakwater nor the amber light at the west end of the breakwater were seen by the occupants of the vessel before it ran into the breakwater. Although Algra recalls seeing the rocks of the breakwater as the boat circled the breakwater,[^75] neither survivor saw the yellow light until they were in the water.[^76] In this regard, however, it is important to remember the locations of the survivors. They could not see ahead of the vessel because they were seated on the back bench seat facing forward and behind the backs of two standing men, Comrie and Monteiro.[^77]
[86] Most importantly, the inference that no one saw immediate danger is reasonable; there was no reaction to any looming hazard before striking the rocks. Both survivors testified that before striking the rocks, there was no warning, no evasive action, no swerving, no reduction of speed, nothing.[^78] Thus, I find that neither Comrie nor Monteiro saw the breakwater or the amber light before the collision.
[87] This was a clear night with no wind or waves. According to Algra, the breakwater was visible as the boat circled it. Moreover, all the evidence before me shows that both breakwater lights were operational and clearly visible at the time. After the collision and her emergence from the water, Feltham saw the amber light on the breakwater and saw it was functioning.[^79] Indeed, to Feltham, the light was so obvious that she became angry because she could not understand why the light was not seen.[^80]
[88] After Feltham helped pull Algra out of the water at the west end of the breakwater near the amber light,[^81] Feltham made her way along the breakwater to the east end in an effort to get help.[^82] At the east end, there was a functioning green light brighter than the amber light.[^83]
[89] The first responders rescued Feltham from the east end of the breakwater,[^84] and Algra from the west end of the breakwater.[^85] The first responders saw the lights on both ends of the breakwater and noted that they were operational.[^86]
[90] The two collision reconstructionists, Csts. Walker and Bortolon, could see the lights when they went out to the scene at about 4:30 a.m.[^87] Both also testified that they could see both lights from the shore.[^88]
[91] CCG Captain Trombley participated in the early morning search effort from about 2:30 a.m. until about 10:00 a.m. Regarding the visibility of the light at the west end of the breakwater, she swore: “I observed that the yellow/amber flashing light of the [west light] was working and visible from my vessel throughout the night.”[^89]
2. Interference from the sodium vapour lights
[92] Did the orange glow from the marina’s sodium vapour lights interfere with the visibility of the navigation lights?
[93] Neither survivor saw the breakwater lights before the accident.[^90] Feltham testified that on their last pass before the collision, she saw the lights of Leamington and the harbour to her left; the boat was not heading in that direction.[^91]
[94] CCG Captain Trombley, in her affidavit, stated:
With regard to the background lighting in the Leamington Harbour, on the night of June 5 – 6, 2011, any vessel travelling in an easterly or south-easterly direction towards the narrow far western end of the outer breakwater would have had no difficulty observing the [west end] light as the Leamington Harbour/Marina lights would not have been in the background.
[95] Approximately one month after the accident, on July 7, 2011, Gary Greer and Eric Ashby, CCG’s Aids to Navigation Program officers,[^92] conducted an on-water assessment of the navigation aids on the breakwater “to investigate background lighting reportedly interfering with the Canadian Coast Guard’s lighted aids to navigation at the outer breakwater.”[^93]
[96] Included in the report was the following:
The west end outer breakwater yellow flashing light was weak and below the intensity of the east end green flashing light. It was difficult to find from all seaward directions, particularly from positions where the harbour’s bright yellow lighting framed the background. There were also three or four bright lights interfering from the shoreline to the east.[^94]
[97] In his subsequent affidavit, Mr. Ashby explained that at the time of his July 7, 2011 assessment, he was not aware of the direction of travel of the vessel at the time of its impact with the breakwater:[^95] “Our focus was on what a recreational boater or small craft operator would see as they navigated toward the background lights in the harbour and as to the effect of that lighting on the CCG Aids to Navigation.”[^96]
[98] Mr. Ashby further averred:
As visibility was clear on the night of the accident and the vessel was headed in a south-east direction it would have put the Leamington Harbour/Marina lights beside it to the left, not ahead. Accordingly, the yellow flashing light … should have been visible from 3.68 [nautical miles] as there is little to no background lighting when viewed from that direction.[^97]
[99] Mr. Ashby responded to the report of the plaintiffs’ expert, Kevin Quinn, that focused on the Greer and Ashby Report concerning the background lighting.[^98] Specifically, at p. 4, para. 8, Mr. Ashby averred:
“Seaward”, in context of our July 7, 2011 report, means when viewed from out in the lake to the south or southwest. It does not mean when viewed from the NW of the outer breakwater Navigation Aids which would have been toward “seaward”.
The “three to four bright lights” refer to the white lights on the east side of the marina area, not to the sparsely lit area further east of the marina where there is generally only low intensity residential lighting. From west looking east there are few and only dim background lights from cottages and homes almost one nautical mile behind the west outer yellow light….
Also from the west looking east, the marina lights would have been on the observer’s left and not behind the lights on the outer breakwater. [Emphasis in original.]
[100] Then, at p. 7, para. 10, Mr. Ashby swore:
[T]he intent of the phrase “from all seaward directions” refers to something viewed in the direction of the shore from a position at sea. In this case, it would generally mean viewing northward or NE. When this observation was made Mr. Greer and I were south of the breakwater and facing north with the marina lights in the background.
[101] Finally, at p. 11, paras. 21-22, Mr. Ashby swore:
The post-crash report authored by Gary Greer and myself was prepared under the assumption that the crash vessel was on a heading from south to north, or on a related line of travel that would have placed the west end outer breakwater Aid … directly in line with the lights in the Leamington Harbour. The background lighting from the Marina area could only have been relevant in terms of negative effects on the Aids to Navigation if, and only if, the vessel was travelling toward those background lights.
If the vessel was travelling on a south-east … or easterly heading as indicated by the [accident reconstruction] Officers, then I fully agree with their findings that there would have been no observable indications at the collision scene that would have prevented the operators of that vessel from having seen the Navigation Aids on the outer breakwater.
3. Findings
[102] I find that the amber/yellow light at the west end of the breakwater was operational and clearly visible on the night in question. I make this finding based on all the evidence I accept making specific note of the evidence of Feltham, the first responders, the two collision reconstructionists, and Captain Trombley.
[103] I further find that the marina’s sodium vapour lights did not interfere with the visibility of the breakwater’s west end navigation light by the operators of the vessel before the collision. From the direction of travel of the vessel before impact, namely east/southeast, the vessel was not heading toward the sodium vapour lights. Those lights were to the left to the vessel and not in front of the vessel. As such, those lights did not impact or interfere with the ability to see the navigation light on the west end of the breakwater. I make this finding based on all of the evidence I accept making specific note of the evidence of Feltham, Captain Trombley, and Eric Ashby.[^99]
V. Summary Judgment
A. Legal Principles
[104] Rule 20.04(2) of the Rules provides, in pertinent part, that:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
[105] When is there no genuine issue requiring a trial? The Supreme Court of Canada answered this question in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[106] In determining whether there is no genuine issue requiring a trial, the court shall consider the evidence submitted by the parties: see r. 20.04(2.1).
[107] In addition, the court now has expanded powers in the summary judgment context. A court may weigh the evidence, evaluate credibility, and draw reasonable inferences from the evidence, unless it is in the “interest of justice” to exercise these powers only at trial: see r. 20.04(2.1).
[108] When is it against the “interest of justice” to use the new fact-finding powers? Again, the Supreme Court in Hryniak provides the answer, at para. 59:
In practice, whether it is against the “interest of justice” to use the new fact-finding powers will often coincide with whether there is a “genuine issue requiring a trial”. It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.
[109] The proper approach to a summary judgment motion is summarized in Hryniak, at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [Emphasis in original.]
[110] The moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. If established, the burden shifts to the responding party to prove that there is a real chance of succeeding, and that there is a genuine issue requiring a trial. Pursuant to r. 20.02(2), the responding party may not rest solely on allegations or denials, but must provide evidence showing that there is a genuine issue requiring a trial. Both parties must put their best foot forward.
B. Principles Applied
[111] I am satisfied that the liability issues on this case are appropriate for summary judgment. I am of the view that the motions for summary judgment on the liability issues provide a proportionate, more expeditious, and less expensive means to achieve a just result.
[112] Moreover, all parties indicate that they wish to have the liability issues dealt with in a summary manner. All parties have essentially agreed that the motions for summary judgment on the liability issues is an appropriate vehicle in this case. I agree.
VI. Issues
[113] Liability for the losses of the plaintiffs is the issue before me on these motions. There are five defendants for which liability is asserted: Comrie, Monteiro, Canada, Ontario, and Leamington. Each must be examined separately; no two positions are identical.
[114] If liability is found against more than one defendant, the issue of apportionment must be addressed.
A. Issue One: Is Comrie Liable for the Losses of the Plaintiffs?
[115] Comrie was the operator of a moving vessel at the time it struck a stationary object, a breakwater.
1. Positions of the Parties
[116] All plaintiffs, together with Canada, Ontario, and Leamington, argued that Comrie breached his duty to ensure the safety of the passengers of the vessel he was operating by driving the boat into the breakwater, thereby causing serious injury and loss of life. Although Comrie was an experienced boater in the Leamington area and was knowledgeable of the breakwater, on the night in question he failed to keep a proper lookout, was driving too fast under the circumstances, and was driving with unlawful blood alcohol.
[117] Although not conceding liability, Comrie focused on emphasizing the liability of Monteiro as the master of the vessel.
2. Legal Principles
applicable law
[118] The applicable law for tortious liability for collisions in Canadian waters is Canadian maritime law: Whitbread v. Walley, 1990 CanLII 33 (SCC), [1990] 3 S.C.R. 1273 (“Whitbread”), at pp. 1297, 1299-1300.
[119] The Canada Shipping Act, 2001, S.C. 2001, c. 26, and the rules promulgated thereunder, the Collision Regulations, C.R.C., c. 1416, provide the principal legislation governing the safety of boating in Canada.
liability standard
[120] In Whitbread, the Supreme Court stated, at pp. 1295-1296: “[T]he existence and extent of [tortious liability for collisions during the course of navigation] falls to be determined according to a standard of ‘good seamanship’ which is in turn assessed by reference to navigational ‘rules of the road’ that have long been codified as ‘collision regulations’”.
[121] A helpful summary of the standard of liability for maritime collisions is found in Aldo Chircop et al, Canadian Maritime Law, 2nd ed. (Toronto: Irwin Law Inc., 2016), at p. 1073:
Liability for a maritime tort is engaged when there is (a) a failure under the general principles of negligence to exercise due nautical skill and prudence in the navigation or management of a ship or (b) a violation of the rules of navigation as established by custom or stature, which contributes to the cause of the collision. The actions under scrutiny are those of the ordinary, not the extraordinary seaman. Causation between the offending act and injury or loss must be established to found liability. There must be negligence and not simply error of judgment. The consequence of culpable behaviour is to give rise to a right of action by those suffering the loss against those that caused the loss.
[122] Thus, and adjusted to the maritime context, there are three elements for the tort of negligence:
- the defendant owed the plaintiff a legal duty of care;
- the defendant breached that duty of care; and
- the plaintiff suffered damages as a result of the defendant’s breach.
See Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 44.
[123] The pertinent provisions of the Canada Shipping Act, 2001 are as follows:
2 Definitions
master means the person in command and charge of a vessel.
4 Regulations
The Governor in Council may, on the recommendation of the Minister of Transport, make regulations prescribing anything that may be prescribe under section 2.
6 Objectives
The objectives of this Act are to
(b) promote safety in…recreational boating;
(i) establish an effective inspection and enforcement program.
9 Role of Minister of Transport
Except as otherwise provided in this Act, the Minister of Transport is responsible for the administration of this Act.
125 The definitions in this section apply in this Part
aid to navigation means a buoy, beacon, lighthouse, landmark, radio aid to marine navigation or any other structure or device installed, built or maintained in or on water or on land for the purpose of assisting with marine navigation.
128 Aids to Navigation
All aids to navigation acquired, installed, built or maintained…at the expense of the Government of Canada…are under the control and management of the Minister.
136 Regulations – Minister of Transport
(1) The Governor in Council may, on the recommendation of the Minister of Transport, make regulations
(e) respecting aids to navigation in Canadian waters;
(f) regulating…the navigation…of vessels for the purposes of promoting the safe and efficient navigation of vessels…;
(g) respecting the safety of persons on Canadian waters for the purposes of sporting, recreational or public events or activities;
[124] The pertinent provisions of the Collision Regulations are as follows:
3 Application
(1) [T]hese Regulations apply in respect of…(b) every pleasure craft…located in Canadian waters ….
4 Compliance
The following persons shall ensure that the applicable requirements of sections 5 and 6 and of the Rules set out in Schedule 1 are met:
(a) …the master of a Canadian vessel;
(b) the owner,…and the operator of a pleasure craft…and the person in charge of a pleasure craft….
SCHEDULE 1
Rule 4 Application
Rules in this Section apply in any condition of visibility.
Rule 5 Look-out
Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.
Rule 6 Safe Speed – International
Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped with in a distance appropriate to the prevailing circumstances and conditions.
In determining a safe speed the following factors shall be among those taken into account:
(a) By all vessels:
(i) the state of visibility,
(iii) the manoeuvrability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions,
(iv) at night the presence of background light such as from shore lights or from back scatter of her own lights,
(v) …the proximity of navigational hazards,
Rule 7 Risk of Collision
(a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.
Rule 8 Action to Avoid Collision
(a) Any action to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.
(e) If necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.
[125] Non-compliance with the Collision Regulations is evidence of negligence: Conrad v. Snair, 1995 NSCA 204, 131 D.L.R. (4th) 129.
Presumption of Negligence
[126] There is a recognized rebuttable presumption of negligence on the part of the operators of a moving vessel when it strikes a fixed or stationary object: Harbour Commissioners of Montreal v. Albert M. Marshall (The) (1908), 12 Ex. C.R. 78, at para. 14; Clark v. Kona Winds Yacht Charters Ltd., [1990] F.C.J. No. 470, at p. 2.
[127] At the time of the accident, on June 5, 2011, it was a criminal offence to operate a vessel with elevated blood alcohol. More specifically, s. 253(1)(b) of the Criminal Code provided, in pertinent part:
Every one commits an offence who operates a … vessel … (b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
3. Principles Applied
[128] The breakwater and its west-end light were there to be seen if Comrie was looking. But he was not; that is clear. I echo Feltham’s anguish and anger on emerging from the water: “how could they not see this light!”
[129] Comrie was the operator of a moving vessel at the time it struck a stationary object, the breakwater. Five persons were on board at the time it struck the breakwater at a speed significant enough to propel this vessel, a 23-foot powerboat carrying five adults, up onto the rocks before stopping and rolling over into the water. Three of the five persons died in the accident, including Comrie. The other two – Algra and Feltham – sustained serious injuries from the accident.
[130] Only the element of breach requires analysis. It is clear and has not been challenged that the operator of a vessel owes a duty of care to the passengers in the vessel. It too is obvious that the accident caused the losses – the deaths and the injuries. This leaves the questions of whether Comrie breached his duty to his passengers and, if so, whether said breach or breaches caused the accident.
[131] I start with the presumption of negligence. As the operator of the vessel, Comrie struck the breakwater, a fixed object. There was no reasoned effort to rebut this presumption.
[132] Further, there was non-compliance with the Collision Regulations that provides evidence of negligence.
[133] First, Comrie failed to maintain a proper look-out appropriate to the circumstances. He was circling the breakwater but, at least at the time of the collision, he lost sight of the breakwater and its west-end light. This was a grave lapse in good seamanship and contrary to Rule 5 of the Collision Regulations.
[134] Second, Comrie was not operating the vessel at a safe speed when traveling at night, close to a hazard, namely the breakwater, and especially after losing sight of the breakwater before he struck it. This was contrary to good seamanship and Rule 6 of the Collision Regulations. When Comrie lost sight of the breakwater and its west-end light, it was incumbent upon him to slow down immediately until he regained sight of both. He did not do so in contravention of Rule 8(e) of the Collision Regulations.
[135] Further, Comrie was unlawfully operating the vessel with an unlawful blood alcohol level.
[136] In sum, Comrie’s actions and inactions leading up to the collision with the breakwater were clearly in breach of his duty, good seamanship, multiple rules of the Collision Regulations, and the Criminal Code. These breaches were a cause of the accident. Comrie was clearly negligent and is liable to the plaintiffs for the losses caused by the accident.
B. Issue Two: Is Monteiro Liable for the Losses of the Plaintiffs?
[137] Monteiro was the master of the vessel at the time it struck the breakwater.
1. Positions of the Parties
[138] Comrie, together with Canada, Ontario, and Leamington, argued that Monteiro, as master and owner of the vessel, breached his duty to ensure the safety of the passengers of the vessel thereby causing serious injury and loss of life. Although Monteiro was an experienced boater in the Leamington area and was knowledgeable of the breakwater, on the night in question he failed to keep a proper lookout, and permitted Comrie to drive too fast under the circumstances.
[139] Monteiro focused on the liability of Comrie as the operator of the vessel.
2. Legal Principles
[140] The master is the person in command and charge of a vessel: s. 2, Canada Shipping Act, 2001.
[141] The master and owner of a vessel shall ensure compliance with ss. 5 and 6 of the Collision Regulations and the Rules set out in Schedule 1: s. 4, Collision Regulations.
[142] The master of a vessel is responsible for the safety of the vessel and of the persons on board the vessel: s. 109(1), Canada Shipping Act, 2001.
3. Principles Applied
[143] It is uncontested that Monteiro was the owner and master of the vessel. At the request of his friend, Comrie, Monteiro turned the physical operation of the vessel over to him part way through this nighttime “spin” outside the harbour. This allowance, however, did not relieve Monteiro of his duties and responsibilities as owner and master of the vessel to those on board the vessel. Those duties and responsibilities remained. As stated by Captain Kevin Quinn, the plaintiffs’ expert:
Monteiro was still very much in command of his boat even though he was not at the wheel. You don’t have to be steering to be in command.[^100]
Monteiro was the Owner of the vessel and therefore the responsible party, however he elected to have Comrie take the con of the vessel, ie steering. It would be our opinion that he didn’t give up command but rather let Comrie steer the vessel under his command.[^101]
[144] Moreover, Monteiro did not retire to a secondary portion of the vessel but remained standing right next to Comrie as Comrie steered the vessel.
[145] Monteiro was responsible for the safety of the persons on board his vessel. Included in this responsibility and duty was to ensure compliance with Rules 5 and 6 of the Collision Regulations. He breached his duties, and but for these breaches the losses to the plaintiffs would not have occurred.
[146] I repeat, in abbreviated form, the same analysis on Comrie’s liability.
[147] As the master of the vessel, the vessel under his command struck the breakwater, a fixed object. From this a presumption of negligence arises. There was no reasoned effort to rebut this presumption.
[148] There was non-compliance with the Collision Regulations, which constitutes evidence of negligence.
[149] First, Monteiro failed to maintain a proper look-out appropriate to the circumstances. Monteiro was very familiar with the area including the breakwater. The vessel circled the breakwater but, at least at the time of the collision, Monteiro lost sight of the breakwater and its west-end light. This was a grave lapse in good seamanship and contrary to Rule 5 of the Collision Regulations.
[150] Second, the vessel was not operating at a safe speed when traveling at night, close to a hazard, namely the breakwater, and especially after losing sight of the breakwater before the vessel struck it. This was contrary to good seamanship and Rule 6 of the Collision Regulations. When Monteiro lost sight of the breakwater and its west-end light, it was incumbent upon him to slow the vessel down immediately until the sight of both was regained. This was a serious lapse of good seamanship.
[151] In sum, Monteiro’s actions and inactions leading up to the collision with the breakwater were clearly in breach of his duty, good seamanship, and multiple rules of the Collision Regulations. These breaches were a cause of the accident. Monteiro was clearly negligent and is liable to the plaintiffs for the losses caused by the accident.
C. Issue Three: Is Canada Liable for the Losses of the Plaintiffs?
[152] Canada, as represented by the Minister of Fisheries and Oceans, is a named defendant. The CCG is an agency within the Department of Fisheries and Oceans Canada. The CCG is the agency responsible for providing aids to navigation in Canadian waters. At the time of the accident, there were two aids to navigation on the breakwater, one on each end of the breakwater.
1. Positions of the Parties
a. Plaintiffs
[153] The plaintiffs asserted that Canada had a positive duty to promote safe navigation of vessels in Canadian waters and to protect the safety and well-being of mariners navigating vessels in Canadian waters. According to the plaintiffs, Canada failed to fulfill these duties.
[154] Canada failed to investigate and thereafter increase the intensity of the navigational aids on the breakwater in spite of its knowledge of previous night collisions by boaters into the same breakwater. The navigational aids on the breakwater were not of sufficient intensity to properly warn boaters of the breakwater at night. Canada’s liability arises primarily from this failure to act with this duty and this knowledge.
[155] The plaintiffs argued the existence of a duty of care of Canada through both the Canada Shipping Act, 2001 and the CCG and the Navigable Waters Protection Act, R.S., 1985, c N-22, and the Navigable Waters Protection Program (“NWPP”).
[156] According to plaintiffs, Canada had a duty to maintain properly illuminated navigation lights on the breakwater for the safety of boaters, knew the existing illumination was insufficient, and did nothing.
[157] Although conceding Canada is not solely responsible for the tragic collision on June 5, 2011, Canada shares responsibility for being a cause of the losses on that night.
b. Canada
[158] Canada denied any responsibility for the accident. The navigation lights on the breakwater were not a factor – they neither caused nor contributed to the crash. The lights made no difference in the facts of this case; Comrie and Monteiro were not paying attention.
2. Additional Facts
[159] To resolve this issue, additional facts are necessary. Again, most are uncontested.
a. Aids to Navigation on the Breakwater
[160] At the time of the accident, the breakwater had two navigation aids, namely two lights: one at the west end, an amber or yellow light, and the other at the east end, a green light.
b. Prior Crashes into the Breakwater
[161] The following are the known crashes by pleasure boats into the breakwater at night:
- July 5, 2002: the OPP Collision Report states that the vessel was travelling at a high rate of speed from the south to the north when it struck the breakwater, flying over the breakwater and ejecting two occupants who died; a third occupant survived with serious injuries;
- July 22, 2007: multiple injuries; and
- May 1, 2010: Mike Monteiro, the brother of the deceased owner of the vessel in question, Danny Monteiro, was aboard this vessel and was injured in the accident; according to him, the vessel was travelling from the south to the north, namely from Pelee Island to Leamingon Harbour.[^102]
c. Communications/Actions after Prior Crashes
(i) July 22, 2007 Crash
[162] By letter dated July 23, 2007, from then-Leamington Mayor John Adams to the Ministry of Transportation (Ontario) (“Ministry”), after advising the Ministry of the two boating accidents at the breakwater, and of hearing from boaters that the breakwater is difficult to see at night, Mayor Adams asked the Ministry to investigate the possibility of illuminating the breakwater to assist boaters.
[163] Regional Director Brian L. Peltier of the Ministry responded to the letter of Mayor Adams on August 17, 2007. He advised the mayor:
The existing navigation lights on the breakwater are compliant with Transportation Canada’s rule and regulation. However as you are aware, we will be rehabilitating the ministry’s Leamington dock in 2008. We will review the illumination of the breakwater and implement any changes needed on that contract in 2008.
(ii) CCG Service Review
[164] In January 2010, the CCG conducted a service review of all of the navigation aids in and around the harbour including those on the breakwater. The ensuing report recommended the increase of the intensity of both of the east and west breakwater lights to meet the night time visual perception requirement of 2.2 nautical miles.
[165] In August 2009, the lanterns on the breakwater were replaced to meet the recommended increase in light intensity.[^103]
(iii) May 1, 2010 Crash
[166] By letter dated May 10, 2010, from then-Leamington Mayor John Adams to the Ministry, after advising the Ministry of another boating accident at the breakwater, Mayor Adams expressed his concern over the condition of the breakwater and said it was in need of repair. He advised that the middle of the breakwater was “sunken” so that it appeared there was no breakwater.
[167] Following initial denials of maintenance/repair responsibility, on August 18, 2010, in a letter to the NWPP, Kevin Boudreau, Area Contracts Engineer for the Ministry, acknowledged that Ontario, as the “owner” of the breakwater, was responsible for its maintenance and repair. Further, Mr. Boudreau stated, “we understand that your department will investigate the breakwater and provide us with any details of deficiencies that may exist.”
[168] On April 12, 2011, NWPP officers, Wayne Atkins and Sue MacDonald-Simcox attended the harbour to inspect completed work on the inner ferry dock/breakwaters and to “look at the out breakwater and ascertain whether we could identify any structural issues.”[^104]
[169] The NWPP officers were “unable to get a good look” at the breakwater because they did not have a “proper” boat. They needed to “return at a later date with a boat in order to more thoroughly inspect the outer breakwater.”[^105]
d. Post-Crash Investigations
[170] On June 7, 2011, then-Mayor John Paterson sent the following letter to the Minister of Transportation:
My predecessor, John Adams forwarded correspondence to your Ministry on July 23, 2007, and on June 10, 2010 (copies attached) requesting that steps be taken to review the integrity and illumination of the break wall off the Leamington pier. The aforementioned requests have not resulted in any improvement to the break wall structure or lighting. These requests were made as a result of a number of accidents and fatalities as a result of vessels hitting the break wall.
I regret to advise you that during the early morning hours of June 6, 2011, there was another tragedy as a result of one of our boaters hitting the outer break wall adjacent to the Leamington pier. I have been advised by our area boaters that the wall is difficult to see in the day because it has failed in some areas and more difficult to see in the evening because the navigation lights blend in with the lights from the municipality. I have received numerous complaints recently from both local and transient boaters that this matter requires immediate attention.
The most recent tragedy in Leamington has again resulted in me having to forward correspondence to your Ministry to review the condition of the outer break wall.
We have yet to have any positive response to our correspondence, and therefore, I would ask you personally to review this matter immediately and take appropriate action.
(i) NWPP Leamington Harbour Inspection Report
[171] On June 15, 2011, two NWPP officers inspected the breakwater both during the day and at night. Their report, entitled “Leamington Harbour Inspection Report”, was dated June 30, 2011. It contains a qualification: “This report does not provide a technical assessment of the navigational aids. [That is the function of the CCG.][^106]”
[172] The report documented the following pertinent nighttime observations:
- at four nautical miles … [t]he flashing yellow aid to navigation on the outer breakwater is not visible;
- at one nautical mile away from the outer breakwater (travelling from the south west) – finally located the flashing yellow – but was unable to locate it again until the vessel was 0.2 nautical miles [370.4 metres] away [from] the outer breakwater;
- the flashing yellow light on outer breakwater blends into the back scatter of the sodium vapour lighting on any angle when approaching from the west or south of the harbour;
- at 0.2 nautical miles [370.4 metres] from the outer breakwater saw a vague outline of the breakwater. Yellow is visible but the flash characteristics make it difficult to maintain visual while looking for the breakwater; and
- at 0.1 nautical mile [185.2 metres] detect the outer breakwater in its entirety. Yellow flashing navigation aid is visible.
[173] The findings regarding the navigational issues included 1) the back scatter from the sodium vapour lights “made it difficult to locate and maintain position of the yellow flashing aid to navigation on the west side of the outer breakwater”; 2) the flashing light characteristics “make it extremely difficult to locate while navigating combined with the backscatter of the sodium vapour lighting”; and 3) at night, while operating at approximately nine knots with a proper lookout unable to detect the breakwater until within 0.2 nautical miles [370.4 metres] of the breakwater.
[174] Included in the recommendations to the Ministry of Transportation are the following:
- remove the breakwater;
- place three or more quick flashing white lights, evenly spaced, between the yellow and green lights on the breakwater;
- conduct programs to increase awareness of the aids to navigation system and the Collision Regulations;
- work with Leamington to look for options to reduce the effects on navigation of the sodium vapor lights; and
- work with the CCG to look for options to improve the existing light characteristics of the lights on the breakwater.
(ii) CCG ATN Leamington Observations and Recommendations
[175] This report was reviewed above in the section on interference from the sodium vapour lights.
e. Post-Crash Changes to the Breakwater
[176] A number of changes to the breakwater have been made since the June 5, 2011 accident. These include:
- the installation of five additional lights along the breakwater;[^107]
- the increased intensity of both the yellow and green lights;[^108] and
- the installation of flood lights.[^109]
3. Additional Legal Principles
To resolve this issue, additional principles are necessary to consider.
Navigable Waters Protection Act, R.S.C., 1985, C. N-22[^110]
2 Definitions
Minister means the Minister of Transport
vessel includes every description of ship, boat or craft of any kind …
work includes
(a) any man-made structure, device or thing, whether temporary or permanent, that may interfere with navigation ….
2.1 Binding on Her Majesty
This Act is binding on Her Majesty in right of Canada or a province.
5 Approval of works
(1) No work shall be built or placed in, on, over, under, through or across any navigable water without the Minister’s prior approval of the work, its site and the plans for it.
(2) If the Minister considers that the work would substantially interfere with navigation, the Minister may impose any terms and conditions on the approval that the Minister considers appropriate ….
(3) If the Minister considers that the work would interfere, other than substantially, with navigation, the Minister may impose any terms and conditions on the approval that the Minister considers appropriate ….
Causation
[177] Proof of negligence alone does not make a defendant liable for a loss. A plaintiff also must establish that a defendant’s negligence, or breach of a standard of care, caused the loss: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 (“Clements”), at para. 6.
[178] The test for causation is commonly known as the “but for” test. The “but for” test was articulated by the Supreme Court in Clements, at para. 8:
The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis in original.]
[179] The “but for” test continues to apply when there are multiple defendants alleged to have caused the same loss. As stated by the Supreme Court in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para. 17:
It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. There will frequently be a myriad of other background events which were necessary preconditions to the injury occurring. … As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence. [Emphasis in original.]
Prior Accidents
[180] Evidence of a previous accident at the same location may be relevant to show the dangerousness of said location: Sims v. Grand Trunk R.W. Co., [1907] 9 O.W.R. 469, at paras. 15-17.
Post-Accident Remedial Measures
[181] Remedial measures taken after an accident cannot be used as an admission of liability, nor can they be the basis for a finding of liability; but they can be considered as evidence of what was reasonable in the circumstances and whether a defendant took reasonable care: Sandhu v. Wellington Place Apartments, 2008 ONCA 215, 234 O.A.C. 200, at paras. 51-63; Teglas v. City of Brantford, 2020 ONSC 7408, at para. 97.
4. Principles Applied
[182] I agree with counsel for Canada. Causation resolves this issue.
[183] In her factum, at para. 129, Feltham articulates Canada’s duty to provide aids to navigation as follows:
This includes ensuring that the aids to navigation were sufficiently intense to perform their purpose, which is to warn mariners of the presence of the breakwater so they can safely navigate around same. … The sole purpose of the navigation aids was to alert mariners to the hazard posed by the breakwater and if they were not detectible by mariners, then they failed to fulfill their purpose.
[184] According to the plaintiffs, Canada breached its duty by its failure to act, namely to increase the intensity of the breakwater lights, the aids to navigation.[^111]
[185] I am not considering a hypothetical case of a non-resident mariner approaching the harbour from the south and striking the breakwater. I am dealing with these particular mariners on this particular night.
[186] This is not a case exhibiting the need to alert mariners of the presence of the breakwater. These mariners – Comrie and Monteiro – knew of the immediate presence of the breakwater both from their extended boating experience in Leamington and from their intentional circling of the breakwater multiple times sufficiently close so Algra could see the rocks. The breakwater and the lights on the breakwater were visible and there to be seen by Comrie and Monteiro. I find that by circling the breakwater multiple times, Comrie and Monteiro knew they were circling the breakwater.
[187] This is not a case raising a question of the visibility of the two lights on the breakwater either because of the direction of travel – toward Leamington’s sodium vapour lights – or because of the distance from the breakwater. Comrie and Monteiro were not approaching the breakwater from a distance out in the lake; they were circling it close enough for a passenger to see its rocks. The lights were operational and clearly visible to Comrie and Monteiro. And the direction of travel was from the east/southeast eliminating any interference by the marina’s lights. The lights and the breakwater were there to be seen by Comrie and Monteiro, if they were looking.
[188] Accepting that Canada had a duty to increase the intensity of the breakwater lights and assuming that Canada’s failure to do so was a breach of that duty, from what evidence do the plaintiffs establish causation that “but for” this failure, the accident would not have occurred?
[189] Considering the record evidence before me, in my view, the plaintiffs have not shown on a balance of probabilities that “but for” this failure to increase the intensity of the navigation lights on the breakwater, the accident would not have occurred. Simply put, the lack of increased light intensity of the breakwater aids to navigation neither caused nor contributed to the accident in this case. Comrie and Monteiro knew the breakwater was there. For reasons unknown, they just were not paying attention and were going too fast so close to the breakwater at night.
[190] In sum, Canada is not liable to the plaintiffs for the losses caused by the accident.
D. Issue Four: Is Ontario Liable for the Losses of the Plaintiffs?
[191] At the time of the accident, Ontario owned the breakwater.
1. Positions of the Parties
a. Plaintiffs
[192] The plaintiffs asserted that Ontario had both a common law and a statutory duty to ensure that their property, the breakwater, was reasonably safe. The breakwater is an inherently dangerous hazard to mariners, and Ontario had the duty to sufficiently illuminate it to reduce the hazard. Ontario was on notice of this dangerous condition. Nevertheless, Ontario breached its duty by failing to provide adequate illumination to the breakwater. This breach was a cause of the accident; “but for” this failure to provide added illumination to the breakwater, the accident would not have occurred.
[193] The plaintiffs argue the existence of a statutory duty from Ontario’s Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
b. Ontario
[194] Ontario argued that Ontario’s Occupiers’ Liability Act does not apply to this marine accident. Further, assuming a duty and breach of a duty are found, the causation element has not been established. The lack of added illumination to this breakwater on that night was not a factor in the accident; it neither caused nor contributed to the accident. Comrie and Monteiro were solely to blame for the accident.
2. Principles Applied
[195] I first address the issue of statutory liability. The plaintiffs assert liability pursuant to the provincial Occupiers’ Liability Act. Ontario contests the applicability of said provincial statute to this marine accident.
[196] As reviewed earlier, federal maritime law generally controls marine accidents. With regard to the provincial Occupiers’ Liability Act and marine accidents, this was addressed by the Court of Appeal for Ontario in Ordon Estate v. Grail (1996), 1996 CanLII 3060 (ON CA), 30 O.R. (3d) 643 (C.A.). At para. 100, the court stated,
The question … remains whether [the Occupiers’ Liability Act] can be applied to an accident which happened on a body of inland water. We do not think that it can.
[197] The court went on to note that common law principles of negligence law in the maritime context still applied.
[198] This decision was affirmed by the Supreme Court, but the issue of the applicability of the Occupiers’ Liability Act was not addressed: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437 (“Ordon Estate”), at paras. 38, 141.
[199] I now turn my attention to the issue of Ontario’s liability. I reach the same conclusion that I did on the issue of Canada’s liability for the same reasons articulated above. Considering the record evidence before me, in my view, the plaintiffs have not shown on a balance of probabilities that “but for” this failure to increase the illumination on the breakwater this accident would not have occurred. Simply put, the lack of increased illumination on the breakwater neither caused nor contributed to the accident in this case. Comrie and Monteiro knew the breakwater was there. For reasons unknown, they just were not paying attention and were going too fast so close to the breakwater at night.
[200] It is important to repeat that the case before me does not concern a boater from Sandusky, Ohio, who crossed Lake Erie and approached the unfamiliar harbour at Leamington from the south at night striking the breakwater. That presents a very different scenario which may result in a different conclusion. Rather, the boaters here were locals who knew the presence of the breakwater and knew the very close proximity of the breakwater that night as they circled it multiple times. The breakwater was visible to Comrie and Monteiro, if they were paying proper attention. Quite negligently, they were not paying attention while travelling at an unsafe speed so close to the breakwater.
[201] In sum, Ontario is not liable to the plaintiffs for the losses caused by the accident.
D. Issue Five: Is Leamington Liable for the Losses of the Plaintiffs?
[202] At the time of the accident, Leamington owned and operated the harbour including the sodium vapour lights.
1. Positions of the Parties
a. Plaintiffs
[203] The plaintiffs asserted that Leamington breached its common law duty to ensure that their property, namely the sodium vapour lights in the marina (“lights”), was reasonably safe for boaters entering Leamington’s harbour. More particularly, the plaintiffs allege 1) that Leamington failed to secure the approval of the federal Minister of Transport prior to the installation of the marina lights, and 2) that Leamington, by installing and maintaining these lights, impaired the ability of mariners to see the breakwater and its navigation aids. These breaches were a contributing cause of the accident.
b. Leamington
[204] Leamington argued that Navigable Waters Protection Act does not apply to the marina’s lights.
[205] Further, assuming the existence of a duty and breach of a duty by the installing and maintaining the lights, the causation element has not been established. Given the direction of travel, the marina’s sodium vapour lights neither caused nor contributed to the accident. On the facts of this case, they did not interfere with the ability of Comrie or Monteiro to see the breakwater or its navigation aids.
2. Principles Applied
[206] The Navigable Waters Protection Act does not apply to the marina’s sodium vapour lights. Minister approval must be sought for any structure that is “built or placed in, on, over, under, through or across any navigable water”: s. 5(1), Navigable Waters Protection Act. It is uncontested that these lights were on shore, in the marina. By the statute’s language, it does not apply here.
[207] With regard to the common law negligence claim, it fails too. At the time of impact, the direction of travel of the vessel was east/southeast. From this direction, the marina’s sodium vapour lights were to the vessel’s left and did not interfere with the ability of Comrie or Monteiro to see the breakwater and its navigational aids. As a consequence, the plaintiffs have failed to establish, on a balance of probabilities, that “but for” the presence of these sodium vapour lights the accident would not have happened. As a matter of fact, these lights played no role in this accident.
[208] Leamington is not liable to the plaintiffs for the losses caused by the accident.
Issue Six: Apportionment of Liability
[209] The losses of the plaintiffs were caused by the negligence of two persons, Comrie and Monteiro. Their liability must be apportioned.
1. Additional Legal Principles
[210] The Marine Liability Act, S.C. 2001, c. 6, provides, in pertinent part, as follows:
Part 2 – Apportionment of Liability
16 Application to this Part
This Part applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law ….
17(1) Apportionment based on degree of fault
Where loss is caused by the fault or neglect of two or more persons …, their liability is proportionate to the degree to which they are respectively at fault or neglect and, if it is not possible to determine different degrees of fault or neglect, their liability is equal.
17(2) Joint and several liability
[T]he persons … that are at fault or neglect are jointly and severally liable to the persons … suffering the loss but, as between themselves, they are liable to make contribution to each other or to indemnify each other in the degree to which they are respectively at fault or neglect.
[211] The above-quoted provisions of the Marine Liability Act are identical to marine common law: Ordon Estate, at paras. 118-119.
2. Principles Applied
[212] Submissions on this issue were sparse. Counsel for Comrie argued that Monteiro’s blameworthiness exceeded that of Comrie.
[213] My assessment differs. I must look at the blameworthiness of these two men, not the degree to which their respective faults caused the losses. In this effort, I must consider their respective conduct within the context of all the circumstances.
[214] Comrie was the operator. Monteiro was the master. Monteiro let Comrie take the helm of the vessel but was standing beside Comrie at all times. Both owed identical duties to the injured persons. Both breached identical provisions of the Collision Regulations.
[215] Taking all the record evidence into consideration, I apportion the liability equally: 50 percent to Comrie and 50 percent to Monteiro.
Conclusion
[216] This is a tragic boating accident case that left death and injury. Negligence actions were brought alleging liability for the accident losses against the estates of two of the deceased and three levels of government. Before me are multiple motions for summary judgment on the liability issues.
[217] This is a classic case for summary judgment on the liability issues: whether or not any or all of the five defendants are liable for the accident losses. No party suggests a trial is necessary on the liability issues. All rely on the same evidence.
[218] There is no genuine issue requiring a trial with regard to the liability issues. On the evidentiary record, I find as follows:
- The Estate of Andrew Comrie is liable to the plaintiffs for the losses caused by the accident;
- The Estate of Danny Monteiro is liable to the plaintiffs for the losses caused by the accident;
- Her Majesty the Queen in Right of Canada is not liable to the plaintiffs for the losses caused by the accident;
- Her Majesty the Queen in Right of Ontario is not liable to the plaintiffs for the losses caused by the accident;
- The Corporation of the Municipality of Leamington is not liable to the plaintiffs for the losses caused by the accident; and
- The apportionment of the liability of the Estate of Andrew Comrie and the Estate of Danny Monteiro is equal, 50 percent each.
[219] For the foregoing reasons, the court orders as follows:
In Court File No. CV-12-18610, the plaintiffs’ motion for summary judgment on the liability issues against the Estate of Andrew Comrie is granted; this defendant is liable for the losses caused by the boating accident on June 5, 2011;
In Court File No. CV-12-18610, the plaintiffs’ motion for summary judgment on the liability issues against Her Majesty the Queen in right of Canada is dismissed; the motion for summary judgment brought by Her Majesty the Queen in right of Canada in this action is granted; with regard to this defendant, this action and any cross-claims against this defendant are dismissed;
In Court File No. CV-12-18610, the plaintiffs’ motion for summary judgment on the liability issues against Her Majesty the Queen in right of Ontario is dismissed; the motion for summary judgment brought by Her Majesty the Queen in right of Ontario in this action is granted; with regard to this defendant, this action and any cross-claims against this defendant are dismissed;
In Court File No. CV-12-18610, the plaintiffs’ motion for summary judgment on the liability issues against The Corporation of the Municipality of Leamington is dismissed; the motion for summary judgment brought by The Corporation of the Municipality of Leamington in this action is granted; with regard to this defendant, this action and any cross-claims against this defendant are dismissed;
In Court File No. CV-13-19389, the plaintiff’s motion for summary judgment on the liability issues against the Estate of Andrew Comrie and against the Estate of Danny Monteiro is granted; these two defendants are jointly and severally liable for the losses caused by the boating accident on June 5, 2011;
In Court File No. CV-13-19389, the plaintiff’s motion for summary judgment on the liability issues against Her Majesty the Queen in right of Canada is dismissed; the motion for summary judgment brought by Her Majesty the Queen in right of Canada in this action is granted; with regard to this defendant, this action and any cross-claims against this defendant are dismissed;
In Court File No. CV-13-19389, the plaintiff’s motion for summary judgment on the liability issues against Her Majesty the Queen in right of Ontario is dismissed; the motion for summary judgment brought by Her Majesty the Queen in right of Ontario in this action is granted; with regard to this defendant, this action and any cross-claims against this defendant are dismissed;
In Court File No. CV-13-19389, the plaintiff’s motion for summary judgment on the liability issues against The Corporation of the Municipality of Leamington is dismissed; the motion for summary judgment brought by The Corporation of the Municipality of Leamington in this action is granted; with regard to this defendant, this action and any cross-claims against this defendant are dismissed;
A trial on the issue of damages shall be held as soon as possible.
Costs
[220] If the parties are unable to resolve the issue of costs, the prevailing parties shall provide me with their outline of costs and submissions within 30 days of the date of the release of these reasons. All responses shall be served and submitted within 30 days of service of the costs submissions.
Kirk W. Munroe
Justice
Released: August 4, 2022
[^1]: I decline to review the reports and examinations of the proposed experts: Kevin Quinn, Eric Ashby, and Michael Vollmer. Except as specifically noted herein, I did not find them helpful or necessary to resolve the issues.
[^2]: Report of Captain Kevin F. Quinn dated April 18, 2019 (“Quinn Report”), at p. 11.
[^3]: This breakwater is called by many terms in this litigation: outer breakwater, breakwall, rocks, etc. For consistency and to avoid confusion, I will simply call it the breakwater.
[^4]: Leamington Harbour Inspection Report of Transport Canada dated June 30, 2011, at p. 5.
[^5]: Leamington Harbour Inspection Report of Transport Canada dated June 30, 2011, at p. 5.
[^6]: Affidavit of Stacey Trombley sworn October 18, 2017 (“Trombley Affidavit”), at para. 1.
[^7]: Trombley Affidavit, at para. 7.
[^8]: Trombley Affidavit, at paras. 9-10.
[^9]: OPP Homicide/Sudden Death Report of Cst. Loop dated June 6, 2011, at pp. 3-4; Collision Reconstruction Report, at p. 12.
[^10]: No comparable report was filed regarding Monteiro.
[^11]: This is the statute in force at the time of the accident, June 5, 2011.
[^12]: Feltham Exam #1, at p. 24.
[^13]: Feltham Exam #1, at p. 29.
[^14]: Feltham Exam #1, at p. 52.
[^15]: Feltham Exam #1, at pp. 54-55; Feltham Affidavit, at para. 20.
[^16]: Feltham Exam #1, at p. 55; Feltham Affidavit, at para. 20.
[^17]: Feltham Exam #1, at p. 56.
[^18]: Feltham Exam #1, at p. 57; Feltham Affidavit, at para. 20; Feltham Exam #2, at pp. 24-25.
[^19]: Feltham Exam #1, at p. 96.
[^20]: Feltham Exam #2, at pp. 24, 27.
[^21]: Feltham Exam #1, at p. 95; Feltham Exam #2, at p. 22.
[^22]: Feltham Exam #1, at p. 70.
[^23]: Feltham Exam #1, at p. 58.
[^24]: Feltham Exam #1, at p. 91.
[^25]: Feltham Exam #1, at p. 74.
[^26]: Feltham Exam #1, at pp. 74-75; Feltham Exam #2, at p. 7.
[^27]: Feltham Exam #1, at pp. 74-75.
[^28]: Feltham Exam #1, at p. 75.
[^29]: Feltham Exam #1, at pp. 75-77.
[^30]: Feltham Affidavit, at para. 9.
[^31]: Scanlan interview; Algra Exam #1, at p. 99; Algra #2, at p. 12.
[^32]: Algra Exam #1, at pp. 99, 122.
[^33]: Algra Exam #1, at pp. 122-123, 143-144.
[^34]: Algra Exam #1, at p. 101.
[^35]: Loop interview; Algra Exam #1, at p. 174.
[^36]: Algra Exam #1, at p. 175.
[^37]: Algra Exam #1, at p. 175.
[^38]: Algra Exam #1, at pp. 175-176.
[^39]: Loop interview; Algra Exam #1, at p. 176.
[^40]: Scanlan interview.
[^41]: Loop interview.
[^42]: Algra Exam #1, at pp. 116-117.
[^43]: Algra Exam #1, at pp. 146-147.
[^44]: Witness Statement of Lanny Parent (“Parent Statement”).
[^45]: Affidavit of Lanny Parent sworn November 16, 2017 (“Parent Affidavit”), at paras. 3-4.
[^46]: Parent Statement; Parent Affidavit, at para. 4; Cross Examination of Lanny Parent on January 8, 2019 (“Cross of Parent”), at p. 18.
[^47]: Cross of Parent, at p. 53.
[^48]: Cross of Parent, at p. 47.
[^49]: Collision Reconstruction Report, at p. 3; Cross Examination of Rich Bortolon on January 7, 2019 (“Cross of Bortolon”), at pp. 19, 102; Cross Examination of Robert Walker on February 21, 2019 (“Cross of Walker”), at p. 20.
[^50]: Cross of Walker, at pp. 21, 59, 101; Cross of Bortolon, at p. 62; Affidavit of Robert Walker sworn January 19, 2018, at para. 5.
[^51]: Cross of Bortolon, at p. 102.
[^52]: Cross of Walker, at p. 21.
[^53]: Cross of Bortolon, at pp. 20.
[^54]: Cross of Walker, at p. 26.
[^55]: Cross of Bortolon, at pp. 19-21 and 51-52.
[^56]: Cross of Walker, at pp. 50-51; Cross of Bortolon, at p. 74.
[^57]: Cross of Walker, at p. 49; Cross of Bortolon, at pp. 58-59.
[^58]: Cross of Bortolon, at pp. 55-57.
[^59]: Cross of Bortolon, at pp. 53, 58; Cross of Walker, at p. 52.
[^60]: Cross of Walker, at p. 59
[^61]: In his synopsis attached to the Collision Reconstruction Report, Cst. Bortolon noted the vessel was travelling south to southeast when it struck the breakwater.
[^62]: Collision Reconstruction Report, at p. 15.
[^63]: Cross of Bortolon, at p. 69.
[^64]: Cross of Walker, at p. 113.
[^65]: Cross of Walker, at pp. 49, 62.
[^66]: Cross Examination of Shawn McKenzie on January 8, 2019, at p. 25; Parent Statement; Parent Affidavit, at para. 5; Cross of Parent, at p. 40.
[^67]: Algra Exam #1, at p. 99; Algra Exam #2, at p. 12.
[^68]: Algra Exam #1, at p. 161.
[^69]: Algra Exam #1, at pp. 117, 126, 135.
[^70]: Feltham Exam #1, at pp. 48, 55-56, 82.
[^71]: Collision Reconstruction Report, at p. 14; Cross of Walker, at p. 45.
[^72]: Cross of Walker, at pp. 81-82.
[^73]: Cross of Walker, at p. 46.
[^74]: Cross on Bortolon, at pp. 66-67.
[^75]: Algra Exam #1, at pp. 122-123, 143-144.
[^76]: Algra Exam #1, at p. 144; Feltham Exam #1, at pp. 90-91.
[^77]: Feltham Exam #2, at p. 30.
[^78]: Algra Exam #1, at pp. 127-128; Feltham Exam #1, at pp. 72-73, 93.
[^79]: Feltham Exam #1, at pp. 72 and 90-91; Feltham Exam #2, at p. 27.
[^80]: Feltham Exam # 1 at pp. 90-91.
[^81]: Feltham Exam #1, at pp. 71, 77
[^82]: Feltham Exam #1, at pp. 75-76.
[^83]: Feltham Exam #1, at p. 76.
[^84]: Parent Affidavit, at para. 3.
[^85]: Parent Affidavit, at para. 4.
[^86]: Cross of Parent, at p. 49; Cross of McKenzie, at pp. 40-42.
[^87]: Cross of Walker, at pp. 68-69.
[^88]: Cross of Walker, at pp. 68-69; Cross of Bortolon, at p. 80.
[^89]: Trombley Affidavit, at para. 12.
[^90]: Algra #1, at p. 144; Feltham Exam #1, at pp. 100-101; Feltham Exam #2, at p. 27.
[^91]: Feltham Exam #1, at p. 89; Feltham Exam #2, at p. 29.
[^92]: Affidavit of Eric Ashby sworn October 17, 2019 (“Ashby Affidavit”).
[^93]: Report of Greer and Ashby dated July 7, 2011 entitled, “CCG ATN Leamington Observations and Recommendations”, at p. 111 (“Greer and Ashby Report”). The report itself is not paginated. The page numbers are from the Ashby Affidavit wherein the report was attached as Exhibit O.
[^94]: Greer and Ashby Report, at p. 112.
[^95]: Ashby Affidavit, at para. 54.
[^96]: Ashby Affidavit, at para. 54.
[^97]: Ashby Affidavit, at para. 59.
[^98]: Reply Affidavit of Eric Ashby sworn November 6, 2019 (“Ashby Reply Affidavit”).
[^99]: I specifically find Mr. Ashby’s explanation of his first report is reasonable and accept it as true.
[^100]: Quinn Report, at p. 19.
[^101]: Quinn Report, at p. 20. I accept Kevin Quinn as an expert on seamanship. I accept this opinion of his.
[^102]: Examination of Mike Monteiro on April 22, 2015, at pp. 63-64.
[^103]: Ashby Affidavit, at para. 43.
[^104]: Affidavit of Wayne H. Atkins sworn October 3, 2017, at paras. 3, 6, 7 (“Atkins Affidavit”).
[^105]: Atkins Affidavit, at para. 9.
[^106]: Leamington Harbour Inspection Report dated June 30, 2011, at p. 6.
[^107]: Examination of Ronan Oliver on April 10, 2015, at pp. 36-37.
[^108]: Cross Examination of Eric Ashby on January 12, 2021, at pp. 51-52.
[^109]: Ashby Cross, at pp. 84-86.
[^110]: This is the act in effect on the date of the accident, June 5, 2011.
[^111]: Feltham factum, at para. 156.