Voisin v. Corporation of the County of Oxford, 2022 ONSC 4912
COURT FILE NO.: 41/18
DATE: 2022-08-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CARA VOISIN
Plaintiff
– and –
CORPORATION OF THE COUNTY OF OXFORD, PERMANENT PAVING LTD., and COCO PAVING INC.
Defendants
COUNSEL:
Randy Knight and Rachel Andrews, counsel, for the Plaintiff
Kieran Dickson, counsel, for the Defendants the Corporation of the County of Oxford and Permanent Paving Ltd.
HEARD: June 3, 6 and 9, 2022 at Woodstock
REASONS FOR JUDGMENT
HEENEY J.:
[1] This case involves a trip and fall accident, that occurred in Otterville, Ontario on August 7, 2016. It occurred at night while the plaintiff was crossing Main St., which was in the midst of a construction project, whereby the top 50 mm layer of asphalt had been removed by a milling machine, to be later repaved with new asphalt. The plaintiff tripped on the 50 mm height differential that was created where Main St. intersected a side street, and fell forward, breaking her arm. I will frequently refer to this height differential as the “lip” in these reasons, for ease of reference.
[2] The case largely turns on whether the defendants had a duty to “ramp” that lip at the site of the accident, which would have smoothed out the transition from the milled surface of Main St. to the paved surface of the side street, known as Pine St.
[3] Damages have been agreed upon at $75,000 inclusive of damages, prejudgment interest and OHIP’s subrogated claim. The issue before this court is liability.
[4] The defendant Coco Paving Inc. did not participate in this trial because the plaintiff’s claim against it, as well as all cross-claims by or against it, were dismissed on consent on June 7, 2019.
[5] As to the two remaining defendants, I was concerned about the fact that they are represented by the same counsel, and that there was a potential for a conflict of interest. For example, if I found that the defendant Permanent Paving Ltd. (“Permanent”) was negligent by failing to do a particular act, and that same act was required to be done by virtue of the contract between Permanent and the defendant Corporation of the County of Oxford (“Oxford”), Oxford might be able to claim indemnity from Permanent for any damages it was liable for. This concern was answered by counsel’s assurance that, irrespective of findings of this court, Oxford is not taking the position that there was a breach of contract by Permanent. Accordingly, if either party is found to be liable, it is agreed that both defendants would be jointly and severally liable in the same amount, and there will be no need to apportion liability as between the defendants. I will proceed on that basis.
OVERVIEW:
[6] The plaintiff resides in Otterville, a small village in Oxford County. Her house is on Main St., which is the main arterial road that traverses Otterville from east to west. In June of 2016 she received a letter advising her that Main St. was going to be resurfaced during the summer. This involves a large, noisy machine chewing up (“milling”) the surface of the existing asphalt, removing the top 50 mm. Within one to three weeks thereafter, a new layer (“lift”) of asphalt is applied, bringing the road back to its original elevation.
[7] During the evening of August 7, 2016, the plaintiff walked across Main St. to meet her friend, Matthew Finch, to take his dog for a walk. This was a regular routine for them, as much as several times each week. Mr. Finch also lived on Main St., but on the south side of the road, while the plaintiff lived on the north side. At this point in time, the entire length of Main St. had been milled, but had yet to be repaved. Accordingly, the plaintiff walked across the milled surface of Main St. to get to Mr. Finch’s house.
[8] They went for a walk around Otterville, walking along Main St. at times, and along other streets running parallel to Main St. at other times, eventually making their way past the waterfall to the west end of Main St. on the north side. Given that they had started on the south side, the plaintiff must have crossed Main St. again at some point during their walk.
[9] Some time between 10 p.m. (on the plaintiff’s evidence) and 11 p.m. or 12 a.m. (on Mr. Finch’s evidence), they found themselves walking west on the sidewalk along the north side of Main St., and stopped across from where Pine St. meets Main St. This is a “T” intersection, so that Pine St. begins at Main St. and runs south. They crossed the road, heading toward the south-east corner of the intersection. The top 50 mm of Main St. had been milled away, so they were walking on the milled surface as they crossed (although the plaintiff professes to have no memory of this). The plaintiff was either walking behind Mr. Finch (on her evidence) or was being followed by him (on his evidence), but they were involved in a conversation as they walked. As will be discussed below, she was not watching where she was going, nor where her feet were stepping as she crossed.
[10] As the plaintiff reached the south-east corner of the intersection, she caught her toe on the lip that traversed Pine St. from east to west, fell forward and broke her arm. She did not see the lip as she approached the place where she fell, nor did she see any warning signs. The intersection is lit by one streetlight only, located at the north-west corner of the intersection, and it was quite dark.
[11] After receiving medical treatment, the plaintiff and Mr. Finch returned the next day to the intersection and took photographs. They show that the edge of the lip that she tripped on was marked with orange paint hash marks, spaced out from one side of Pine St. to the other, and a “Bump” sign was placed at the south-west corner of the intersection. Although she saw neither the paint marks nor the sign the night before, she has no reason to believe that they were not there, and both sides have proceeded on the assumption that the photographs, taken the next day, represent the state of the intersection when the fall occurred.
[12] At trial, the plaintiff called Russell Brownlee from True North Safety Group (“TNS”) as her expert witness. He is a Transportation Safety Engineer with over 26 years experience in the areas of road user safety, pedestrian and cycling safety, transportation engineering and transportation planning. His conclusions, arising from his oral testimony, coupled with his report dated February 2, 2021 and his reply report dated March 29, 2022, both of which have been filed as evidence, may be summarized as follows:
The plaintiff tripped and fell on the 50 mm lip that resulted from Main St.’s surface being milled down so that it was lower than the undisturbed asphalt surface of Pine St.;
She was crossing Main St. at an appropriate and uncontrolled crossing location, that was in accordance with the rules of the road and the Highway Traffic Act;
The height differential exceeded prevailing standards for walking surfaces and represented a significant hazard to motorcyclists, bicyclists and pedestrians;
The orange dash marks would have poor contrast and visibility in dark conditions, and there was no warning sign at the south-east corner where the plaintiff tripped and fell (although there was a Bump sign at the south-west corner);
Industry good practice and the contract between Oxford and Permanent required marking, signing and ramping of these transitions, which Permanent failed to properly do;
The likelihood of a trip and fall would have been significantly reduced if proper marking, signing and ramping had been done.
[13] The defendants called two expert witnesses, Dewan Karim and Dr. Adam Campbell, both of whom are associated with 30 Forensic Engineering, and who, along with Samantha Bennet, authored a report dated August 13, 2021 and a reply report dated May 16, 2022, which have been filed as evidence. Mr. Karim is a forensic engineer in the collision reconstruction group at 30 Forensic Engineering, and has been focussing on transportation engineering, planning and traffic safety issues since 2000. The defendants’ other expert witness is Dr. Adam Campbell, who was qualified, on consent, as a specialist in human factors in pedestrian behaviour. I should note that the expertise of all of the expert witnesses was conceded by opposing counsel.
[14] The conclusions of the defence experts, arising from their testimony and their reports, may be summarized as follows:
The location of the trip and fall was not part of a designated pedestrian route. Pedestrians were expected to walk along the sidewalks provided along both sides of Main St., and only cross at designated crossing locations;
The 50 mm height of the lip was not in the direction of vehicle travel on Main St. The pavement edge did not require temporary ramping per OPSS and MMS standards;
There was sufficient illumination available, based on the roadway classification and assumed pedestrian volumes, and the lip was clearly marked with orange pavement markings at the location of the fall, which provided sufficient warning to pedestrians and contrast with the pavement edge;
There was sufficient illumination for the plaintiff to observe the lip throughout her entire travel to the location of the fall, even if it had not been demarcated with orange paint. It was therefore expected that she would have observed the lip, and adapted her gait to avoid contact with it, or selected an alternative route to avoid the area;
They disagree that the location of the fall was a foreseeable pedestrian crossing and that the lip was on a pedestrian pathway. The location was not an uncontrolled pedestrian crossing, the pavement markings provided enough contrast to see the pavement edge, and there were no temporary ramping requirements per OTM Book 7;
The TNS report did not conduct a lighting assessment or a human factors analysis to determine the extent of illumination needed for pedestrians to observe the lip. Thus, it underestimated the extent of visibility and overestimated the likelihood of contact with the lip;
They disagreed with TNS’s conclusion that the lip would have poor contrast and visibility in dark conditions, as this is in conflict with the measured illumination at the location, and human factors research regarding transition visibility and pedestrian behaviour.
[15] The defence also called Andrew Gibb, who has been president of Permanent since its incorporation in 1997. 60 to 80% of their work involves road rehabilitation for local municipalities. He testified that, in his experience, ramping was only required at the easterly and westerly ends of Main St., where the lip crossed the road perpendicular to the flow of traffic. At those locations, a 2 to 3 m temporary asphalt ramp is put down after milling, so that motorists won’t experience a sudden jolt when they cross the lip. He said that neither his company nor, to his knowledge, his competitors, ramp the milled edges that run longitudinally along the road under construction, since adding a 2 to 3 m asphalt ramp to either side of the road would amount to temporarily repaving about 40% of the whole surface of the road that had just been milled.
BASIS OF LIABILITY:
[16] The source of potential liability for Oxford flows from s. 44 of the Municipal Act, 2001, S.O. 2001 c. 25. The portions of that section relevant to this case provide as follows:
44 (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) it took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
(5) The minimum standards may be general or specific in their application.
(6) A regulation made under subsection (4) may adopt by reference, in whole or in part, with such changes as the Minister of Transportation considers desirable, any code, standard or guideline, as it reads at the time the regulation is made or as it is amended from time to time, whether before or after the regulation is made.
[17] In Fordham (Litigation guardian of) v. Dutton-Dunwich (Municipality), 2014 ONCA 891 at para. 26, Laskin J.A., speaking for the court, set out the four-step test for analyzing this statutory cause of action:
Case law has established a four-step test for analyzing this statutory cause of action against a municipality.
Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.
Causation: The plaintiff must prove the “non-repair” caused the accident.
Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries.
[18] Counsel for the defendants has stipulated that the defendants are not relying upon the statutory defences in s. 44(3). I agree with counsel’s view that those defences are clearly intended to address an inadvertent state of disrepair as opposed to an intentionally constructed element, as in the case at bar.
[19] Accordingly, I will analyze Oxford’s liability by considering steps one, two and four.
[20] Potential liability for Permanent flows from the Occupier’s Liability Act, R.S.O. 1990, c. 0.2. Section 3(1) provides as follows:
3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
[21] Permanent is an “occupier” by virtue of the definition of that term in s. 1, which includes “a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises”. As the general contractor on this construction project, Permanent had control over, and responsibility for, the condition of the road during construction, and the activities carried thereon.
[22] Counsel for the defence concedes that Permanent and Oxford both owed a duty of care to the plaintiff under the statutes that apply to them.
[23] Both statutes incorporate the concept of reasonableness. For Oxford, it has a duty to keep the road in a reasonable state of repair. For Permanent, it must take reasonable care to see that persons entering onto the road are reasonably safe.
WAS THE ROAD IN A REASONABLE STATE OF REPAIR?
[24] In MacMaster (Litigation Guardian of) v. York (Regional Municipality), [1997] O.J. No. 39, at para. 95, E. Macdonald J. cited, with approval, the following classic description of the standard of repair to which municipalities are bound:
Mr. Brown referred me to certain passages which appear in Thomson Rogers on Municipal Liability, Canada Law Book Inc. at p. 42.
V. Non-Repair
The classic statement regarding the standard of repair to which municipalities are bound to maintain their roadways was made by Armour C.J., who said they must be kept "in such a reasonable state of repair that those requiring to use the road may, using ordinary care, pass to and fro upon it in safety". That test has since been adopted in many decisions. Variations of the test include references to the character of the road and the locality through which it passes, the requirements of the traffic on it, the season of the year and climatic conditions, the type of roadway and the extent of improvement on it. Another statement of general principle was that made by Sir Charles Fitzpatrick C.J.: "A municipal corporation is not an insurer of travellers using its streets; its duty is to use reasonable care to keep its streets in a reasonably safe condition for ordinary travel by persons exercising ordinary care for their own safety."
A statutory duty to keep roads in repair creates a positive, or affirmative, duty which is the source of the duty to inspect (subject to a bona fide policy decision not to inspect), for the purpose of seeking out and remedying conditions of non-repair. The municipality must actively take steps to prevent disrepair from arising.
Whether or not there is a condition of non-repair is a question of fact in each case depending upon all the surrounding circumstances, but the courts have been increasingly liberal in the interpretation of what constitutes non-repair. A municipality is not, however, to be treated as an insurer of the safety of those using its streets and highways. Its obligation is not absolute but rather involves a duty to take reasonable action. It cannot be expected to make all of its roads passable at all times and in all weather conditions. Any liability will be based on negligence principles, and the evidence must be examined in its entirety to determine whether the duty to reasonably maintain the highway was discharged.
[25] In cases of this nature, court frequently consider relevant traffic manuals in determining the standard of care, such as the Ontario Traffic Manual (“OTM”) and the Minimum Maintenance Standards for Municipal Highways (“MMS”). However, they are guidelines, and are not determinative of the standard of care: see Fordham (supra) at para. 53. Similarly, the contract between the municipality and the contractor may inform the standard of care, but once again is not determinative: see Harrington v. Sangha, [2011] B.C.J. No. 1473 at para. 142.
[26] In the case at bar, much of the focus of the trial was on the terms of the contract between Permanent and Oxford, and specifically on the duty to temporarily ramp. In the Supplementary Specifications section of the contract, the contract incorporated O.P.S.S. 510 “with the following exceptions and amendments”, which are pertinent to the road milling operation in question:
After the milling is complete, the Contractor will place and compact temporary cold patch or hot mix asphalt against all on-road edges to a distance of 2 meters from the cut edge. The Contractor will mark all on-road edges with bump signs and will maintain the bump signs and temporary ramps until final asphalt is placed to match the adjacent elevations.
[27] The plaintiff’s expert, Mr. Brownlee, interpreted that to mean exactly what it says: all on-road edges, which includes the lateral edges at the easterly and westerly ends of Main St., but also includes longitudinal edges along the sides of the road, including the edge that traversed the entrance to Pine St. The defendant’s expert, Mr. Karim, interpreted it to mean only the lateral edges at either end of Main St., which crossed the east/west flow of traffic on Main St. In his opinion, it did not include any edges along the sides of Main St.
[28] As already noted, Mr. Gibb was also of the view that he was only obligated to ramp the ends, but not the sides, of the road, and has never ramped the sides in all of his years of doing road rehabilitation. He also stated, and I agree, that it would be entirely impractical to require the contractor to ramp both sides of the entire length of the road to a width of 2 m on each side. Having just completed milling away 50 mm of the asphalt, the contractor would, in effect, be required on this interpretation to repave about 40% of the entire road’s surface with temporary asphalt, all of which would have to be removed before final resurfacing.
[29] On a careful reading of the contract, I disagree with both experts, and conclude that the proper interpretation falls between their two positions, for the reasons that follow.
[30] To begin with, the obligation to ramp only applies to all on-road edges. Mr. Brownlee’s interpretation would have the obligation to ramp apply to all edges, and render the qualifying words “on-road” superfluous. These qualifying words are there for a reason, and I infer that some, but not all, edges must be ramped.
[31] Clearly, “on-road” edges must be ramped. So what does that term mean? In my view, its meaning can be seen by examining the entire paragraph, so as to put that term in context.
[32] The natural meaning of the words “on-road” suggests that the edge must be entirely on the road, which is to say that there must be a road on both the upper and lower sides of the edge. This would cover both ends of Main St., which everyone agrees must be ramped, since there is a road on both sides of the edge.
[33] Presumably the converse to on-road edges is off-road edges, which would apply where there is a road on one side of the edge, but not on the other. This would exclude the longitudinal edges running between the milled surface of Main St. and the curbs and gutters that run along Main St. from the requirement to ramp. It would not, however, exclude the longitudinal edge running across Pine St., because there is a travelled road on both sides of the edge. The intersection with Pine St. would, on this analysis, be an “on-road” edge, since there is a road on the lower side of the edge (the milled surface of Main St.) as well as on the higher side of the edge (the undisturbed pavement of Pine St.).
[34] This interpretation accords with the rest of the paragraph. The contract does not just require ramping, but also requires that on-road edges be marked with bump signs. It is common ground that the purpose of bump signs is to warn users of the road that they are about to encounter an abrupt change in the elevation of the road, so that they can exercise appropriate caution. Both ends of Main St. were ramped, and both ends were marked with bump signs at the location of the edge, as well as “Bump Ahead” signs, which are located some distance back from the edge, to give more advanced warning.
[35] Pine St. was, in fact, marked with a bump sign. It was placed at the south-west corner of the intersection, which is precisely where anyone turning on to Pine St. from Main St. would enter that road. That is also precisely where any such user would encounter the abrupt change in elevation that the bump sign is designed to warn against, and ramping is designed to ameliorate.
[36] The contract goes on to require that the contractor “maintain the bump signs and temporary ramps until final asphalt is placed to match the adjacent pavement elevations” (emphasis added). This is entirely consistent with the interpretation of “on-road edges” to mean edges where there is road pavement on both sides of the edge. This would require the contractor to maintain the bump sign and temporary ramping across the entrance to Pine St. until final asphalt is placed on Main St. to match the adjacent pavement elevations on Pine St.
[37] I therefore interpret the contract to mean that Permanent was required to place temporary ramping along the lip where Main St. intersects Pine St., to mark that lip with a bump sign, and to maintain both until final asphalt was placed such that the surface of Main St. matched the adjacent pavement elevations on Pine St. Permanent did mark the lip with a bump sign and painted hash marks, but did not place temporary ramping. I conclude that Permanent breached the contract in that regard.
[38] That does not, however, necessarily mean that the standard of care applicable to this civil proceeding was breached. While the contract specifications are one factor to be considered, they are not determinative. All surrounding circumstances must be considered in determining whether the road was in a state of disrepair, by reason of the failure to ramp the entrance to Pine St., or for any other reason.
[39] Among other things, the use of the road in question must be considered, and the impact of an un-ramped edge on the risk of harm to such users.
[40] Mr. Brownlee cited OTM Book 7 to illustrate the situations where a bump sign (TC-15) should be utilized, which can offer some guidance into the need for ramps as well, since both are intended to reduce the hazard of an abrupt change in elevation:
The TC-15 sign must be used to give warning of a sharp change in the profile of the road that is sufficiently abrupt to create a hazardous discomfort to passengers, to cause shifting of cargo or to deflect a vehicle from its intended course when the bump is crossed at the posted speed.
[41] Main St. and Pine St. are regularly used by cars and trucks. Hitting an un-ramped 50 mm lip would, obviously, cause some discomfort and surprise to someone in such a vehicle, but is unlikely to deflect the vehicle from its path. However, the users of these roads also include those riding a motorcycle or a bicycle (which also falls within the definition of a “vehicle” in the Highway Traffic Act), as well as pedestrians. Mr. Brownlee’s evidence is that striking an un-ramped 50 mm lip could redirect, destabilize or unseat a motorcyclist, bicyclist or person using an assistive or mobility device, such as a wheelchair, mobility scooter, cane or walker. I accept that evidence.
[42] No-one disputes that the lips at either end of Main St. needed to be signed and ramped, because traffic travelling on Main St. crosses the lip at right angles. However, the same applies to traffic turning on to Pine St.. Such traffic also crosses that lip at right angles, once the turn is commenced. It is argued by the defence that traffic turning on to Pine St. would likely be moving at a slower speed than traffic travelling in a linear fashion down Main St. That is probably true. However, the need for ramping on Pine St. is arguably higher than it is on Main St., because signage and other markings, such as painted hash marks, are less effective at warning oncoming motorists of the change in elevation.
[43] I arrive at that conclusion for two reasons. First, the lips at either end of Main St. have the advantage of both bump signs and bump ahead signs to warn motorists. The lip on Pine St. has only the bump sign, located right at the site of the lip. A bump ahead sign would make no sense in this situation, because it could only be placed on Main St. This would be confusing to the motoring public, because it would suggest that a bump is a short distance ahead, when in fact the bump would only be encountered if the driver is about to make a turn. The photographs show that the bump sign is facing in a northerly direction. Thus, it would be facing sideways as someone approached Pine St., and would only be directly facing a driver turning on to Pine St. at the last instant, as the turn is commenced.
[44] Secondly, the orange paint hash marks on the edge of the lip were placed as an additional warning of the presence of the lip. But for a motorcyclist or bicyclist who is approaching the intersection from either direction, these paint marks would not be in their direct line of sight as they drove on Main St., because they would be parallel to the direction of travel. Those marks would not be in their direct line of sight until the last instant, when that person actually began to turn the corner.
[45] I conclude that, given the inherent inadequacies of signage and paint markings to warn such motorists that an abrupt change in elevation will be encountered if they make a turn, the need to ramp that lip is enhanced.
[46] Users of this road also includes pedestrians, such as the plaintiff. The degree and manner in which pedestrians could reasonably be expected to use the road, at the location of the trip and fall, was the subject of disagreement between the experts Mr. Brownlee and Mr. Karim.
[47] Mr. Brownlee characterized the surrounding neighbourhood as urban in nature. There are residential houses on all four corners and on both sides of Main St. Main St. has sidewalks running on both sides of the road for its entire length, as well as curbs and gutters, on-street parking and grassed boulevards. He emphasized that, while the Official Plan designated Otterville as a “rural settlement”, transportation practitioners look to the predominant characteristics of the surrounding land. This is reflected in “The Geometric Design Guide for Canadian Roads” (the “TAC Guide”), which provides as follows:
The terms “rural” and “urban” refer to the predominant characteristics of the adjacent land use and not only to jurisdictional boundaries or features of typical cross sections.
[48] Mr. Karim described the neighbourhood as rural, based entirely on its designation in the Official Plan. However, he conceded in cross-examination that it was an error to do so, and one does need to consider the character of the surrounding neighbourhood. This was only one of many errors in his report that were identified by Mr. Brownlee, and conceded by Mr. Karim in cross-examination.
[49] Mr. Brownlee testified that in this location, with sidewalks on both sides of Main St. and the other features described above, we would expect pedestrians to travel between houses, to and from their cars parked on the roadway, to and from places of business and worship, and so on. In Otterville there are no controlled crossings provided, and therefore people are required to make uncontrolled crossings. Thus, it is necessary to look for locations where people would be brought to edge of road for that purpose.
[50] He described the path taken by the plaintiff, from the north side of Main St. to the south-east corner of Pine St., to be an appropriate location for an uncontrolled crossing, and one that was consistent with motorist expectations. She was crossing to the east side of Pine St., where she would be walking down the left side of the roadway if she chose to continue south. That is consistent with the requirements of s. 179(1) of the Highway Traffic Act. Since Pine St. does not have sidewalks, anyone walking south on that street would be required and expected to walk down the east side of the road, facing traffic.
[51] Mr. Karim disagreed. He stated that the location of the trip and fall was not part of a designated pedestrian route. Pedestrians were expected to walk along the sidewalks provided on both sides of Main St., and to cross only at designated crossing locations.
[52] The problem with that opinion is that there are no designated crossing locations within the entire village of Otterville. As pointed out by Mr. Brownlee, the closest controlled crossing to the west is 5 km away, and the closest one to the east is 2.6 km away. Transportation practitioners should design and maintain their transportation systems to accommodate expected uncontrolled crossing locations, where no controlled crossings exist. Given the urban nature of the neighbourhood in question, he was of the view that uncontrolled pedestrian crossings would be expected, and were along a foreseeable pedestrian path.
[53] I prefer the evidence of Mr. Brownlee. Given the existence of sidewalks along both sides of Main St., which invite pedestrians to move about, and the general characteristics of the neighbourhood, it is not reasonable to expect that those pedestrians would always stay on their own side of Main St., and would not cross over to the other side unless they were prepared to make a round trip of many kilometers on foot in either direction. I accept his opinion that pedestrian crossings at this location were reasonably foreseeable, and that Oxford would need to take that into account in meeting its duty to keep the roadway in a reasonable state of repair.
[54] The conclusion that this location is a foreseeable pedestrian path is reinforced by considering how the sidewalk and curb have been constructed at the south-east corner of Pine St. Both experts agree that there is an unmarked crosswalk that runs in an east/west direction across Pine St., effectively connecting the sidewalks at either end of the intersection. The photographs show that the sidewalk and curb at the south-east corner of Pine St. are ramped downward where they meet Pine St., to provide a smooth transition to the pavement surface for anyone crossing Pine St. However, the photographs also show that this ramping down of the sidewalk and curb runs in an arc, around the entire corner. As a result, someone crossing Main St. in a north/south direction, to or from this location, would similarly be afforded a smooth transition from the sidewalk to the surface of Main St., which is consistent with it being a foreseeable pedestrian path. I should note that this point was not raised or commented upon by the experts, but it is obvious from looking at the photographs that have been filed.
[55] Given the reasonable expectation of pedestrian traffic at this location, did the lip at the south-east corner of Pine St. present a hazard that needed to be protected against?
[56] According to the defence experts’ report, research indicates that, while walking, pedestrians’ feet clear the ground by only .5 inches, on average, with the majority of the population clearing the ground by at least .25 inches. Since a 50 mm lip is about 2 inches in height, it follows that the lip in question is more than sufficient to cause an inadvertent pedestrian to trip and fall.
[57] Mr. Brownlee referred to the MMS, which provides standards for the maintenance of walking surfaces constructed for pedestrian usage. He acknowledged that the MMS is applicable to public sidewalks, but nevertheless provides some guidance regarding what height differentials are considered to be hazards along a pedestrian path. These standards provide that if a surface discontinuity in a sidewalk exceeds 2 cm, it is considered to be a deficiency in need of remedial action.
[58] While a road is not a sidewalk, and these standards have no direct application, they do support the conclusion that a surface discontinuity that is 5 cm in height, fully 2 ½ times the height that the MMS have deemed to require remediation, constitutes a hazard for pedestrians when found on a foreseeable pedestrian path.
[59] Another factor to be considered is the season. This road work was taking place during the summer, when one would expect people in this part of the world to be enjoying the outdoors more than at any other time in the year. Thus, pedestrian traffic would be expected to be at its peak, which creates a correspondingly higher duty to take reasonable steps to ensure the safety of those pedestrians.
[60] The last area that I will consider in this analysis is the street lighting at this intersection. It is lit by a single light standard, located at the north-west corner of the intersection. This is as far away from the south-east corner where the plaintiff tripped and fell as one can get, while still remaining within the boundaries of the intersection. One would expect the illumination to be at its lowest at the south-east corner, and that proved to be the case, through the measurements taken by Dr. Campbell.
[61] The experts disagreed as to whether the TAC guidelines for illumination applied to this intersection and, if they did, whether they had been met. Mr. Karim took the position that Main St. was located in a rural settlement area, such that there is no streetlight illumination required except at key locations. Mr. Brownlee, the plaintiff’s expert, opined that the intersection was located on an arterial road in an urban area, where the County had determined that there was a need for partial illumination, so the guidelines did apply.
[62] In cross-examination, Mr. Karim conceded that he failed to consider the characteristics of the surrounding land, and relied solely on the Official Plan designation in concluding that this was a rural road. Ultimately, he conceded that the TAC guidelines would apply, if warranted.
[63] As to whether they had been met, the measurements taken at 63 locations within the intersection showed that the average illumination levels were 10.3 lux, which exceeded the TAC guideline of 9 lux. However, the TAC guidelines also provide for a minimum uniformity ratio of illumination within the intersection of 3 to 1. Based on the measurements taken by the defence, Mr. Brownlee calculated the uniformity ratio to be 20 to 1, which is well below the standards. The defence did their mathematical calculations differently, and arrived at a uniformity ration of 8 to 1, which is still well below the standard.
[64] While all of that is interesting, it seems to me that the most important information arising from this evidence is that the illumination level at the site of the trip and fall was only 0.6 lux. This is well below the standard for average illumination of 9 lux, and confirms that this corner of the intersection was poorly lit.
[65] The defence report included a photograph, Figure 5, of the south-east corner of the intersection at night. The text of the report referred to this photograph as supporting the conclusion that all aspects of the roadway, sidewalk, curbs, roadway demarcations and transitions between surfaces were visible. I disagree. The photograph shows a faint outline of the curb, a white line across the intersection, and a white fence in the background, but the rest of the intersection is black, with virtually no other features of the intersection visible.
[66] However, Dr. Campbell’s research indicated that a pedestrian paying the usual amount of attention only needs about 0.2 lux to see a transition that is 30 mm tall. The transition in question here is higher than that. He was, therefore, of the view that there was sufficient light for the plaintiff to have detected the change in elevation from at least 3 m away throughout her approach to the south-east corner of the intersection. This evidence was not challenged, and I accept it.
[67] Considering all of the above, one can fairly say that the lip at the site of the trip and fall was poorly lit, but was still visible to an approaching pedestrian. Accordingly, despite the fact that the uniformity ratio was below the TAC standard, I do not give the evidence regarding the state of streetlighting much weight in determining whether the intersection was in a reasonable state of repair.
[68] However, taking into consideration all of the other factors discussed above, I am satisfied, on a balance of probabilities, that Oxford failed to keep the road at the location of the trip and fall in a reasonable state of repair. Permanent had a contractual obligation to ramp all on-road edges, and I have found the lip across Pine St. to be an on-road edge. Creating a height differential of 50 mm represented a significant hazard to motorcyclists and bicyclists turning on to Pine St. Visual warnings in the form of painted hash marks and a bump sign were inherently inadequate to protect against this hazard, as discussed above, such that further protective measures, specifically ramping, were necessary. The 50 mm lip also represented a significant trip hazard for pedestrians using what I have found to be a foreseeable pedestrian path. Ramping was reasonably necessary to ameliorate that hazard.
[69] Having concluded that ramping was reasonably necessary, I am not concluding that a ramp 2 m in width was required to put the roadway into a reasonable state of repair. That is what the contract required, but the contract does not define the applicable standard of care. Ramping that was considerably narrower in width would probably have been sufficient to reasonably ameliorate the state of disrepair.
[70] For example, the OPSS.PROV 510 provides standards for temporarily ramping longitudinal lips that are left, where pavement has not been removed for the full width of the road by the end of the day. It provides for a horizontal/vertical slope of only 10:1, which is far less than the 120:1 slope required for transverse lips. This standard does not apply to the project under consideration in this case, because it is a provincial standard. Nevertheless, it does shed some light on what slope might be adequate in somewhat analogous circumstances. A 10:1 slope on the edge of Pine St. would result in a ramp that was 500 mm in width, which is slightly less than 20 inches. A ramp in that range would be reasonable, in that it would serve to completely eliminate the lip, and thereby remove the tripping hazard, but would not represent an unduly onerous burden on the contractor.
CAUSATION:
[71] The plaintiff has the burden of proving that the non-repair caused her to trip and fall. It is a “but-for” analysis. If she would not have tripped and fallen but for the presence of the lip, then causation will have been proven. It does not have to have been the sole cause of the accident. Any contributory negligence on the part of the plaintiff will have to be taken into account, but later in the analysis.
[72] The plaintiff testified that, as she approached the south-east corner of the intersection, she tripped and fell. She did not see the lip at the time, but did see it subsequently, and determined that it was the lip that she had tripped over. Mr. Finch testified that he was walking behind the plaintiff, and “absolutely” saw her catch her toe on the lip and trip forward. I accept this evidence, and conclude that the plaintiff tripped over the 50 mm lip that had been created by Permanent across the entrance to Pine St.
[73] The state of non-repair at this location was the lack of a ramp along the lip. Had a ramp been in place, it would have completely eliminated the lip. This would have removed the pavement edge over which the plaintiff tripped. But for the lack of a ramp, the trip and fall would not have occurred.
[74] I am satisfied that causation has been proven. The defence made no submissions to the contrary. Indeed, in closing submissions, defence counsel stated that there is no question that the edge was there, and that it caused the tripping.
CONTRIBUTORY NEGLIGENCE:
[75] The plaintiff has a duty to take reasonable care for her own safety. I am satisfied that she did not, largely based upon her own testimony. She testified that:
She was aware that the surface of Main St. was going to be removed when she received notification to that effect in June, 2016;
She lives on Main St., and observed the milling operation on the road in front of her house, and saw that the top layer of asphalt had been removed;
She crossed the road on foot on almost a daily basis, saw that the road was “rough”, and that you had to step down the height of the missing asphalt to cross;
She wasn’t really looking at the road before she started to cross. She and Mr. Finch were just “walking and talking”;
As she walked she was not paying attention to the surface where her feet were;
She was not watching where she was placing her feet as she crossed, but was “looking straight ahead and enjoying the conversation”;
She has no recollection of looking down to see where she was walking.
[76] To be clear, she testified that, while she was aware of the milling of the road at the east end of Main St. where she lived, she did not recall noticing that the west end of Main St., where she crossed the road to the corner of Pine St., had been milled. She testified that she was not paying attention to the surface of the road as she crossed, and did not remember it being rough underfoot. I have difficulty with this evidence. The evidence is clear that the surface of the road, after milling, was rough and pebbled. This should have been perfectly obvious to her, given that she was wearing “ballet slippers” with a thin sole. As to her failure to notice that Main St. at the westerly end was milled just like the road in front of her house, this is not credible, given that much of her walk that night took place on the sidewalk just a few feet from Main St., where the rough condition of it could not fail to be noticed. Furthermore, when she began her cross at Pine St., she would have had to step down the height of the pavement that had been removed, just as she did when she frequently crossed the road in front of her own house.
[77] It may be that her failure to remember these things is attributable to the fact that the accident occurred 6 years ago. In any event, I am satisfied that if she did not notice the fact that Main St. had been milled at the location where she crossed, she should have noticed.
[78] Her failure to watch where she was going, and what she was stepping on as she crossed the road, is aggravated by the surrounding circumstances. This was not a stroll down a sidewalk on a sunny afternoon. This was a construction zone that she knew, or ought to have known, she was walking across. It was nighttime, it was dark out and the streetlighting was poor. As a result, she had a duty to be more vigilant than had she been taking a stroll in ideal conditions.
[79] I have already referred to the unchallenged evidence of Dr. Campbell that a pedestrian paying the usual amount of attention would have been able to see the lip, even with the poor lighting conditions at that corner of the intersection. But for her failure to keep a proper lookout as to where she was walking, what she was walking on, and what was ahead, the trip and fall would not have happened. I find her to be contributorily negligent.
[80] Assessing the degree of her contribution is a difficult task, and I take guidance from other similar cases. Counsel for the defence has filed a number of authorities to consider.
[81] In Lytle v. Toronto (City), [2004] O.J. No. 1570 (S.C.J.), the plaintiff tripped over pipes that had been strewn on the sidewalk. She was found to be 25% contributorily negligent for failing to keep “a critical eye out for her surroundings”.
[82] In Henhawk v. Brantford (City), [2005] O.J. No. 5140 (S.C.J.), the plaintiff tripped on a 3-inch curb in a parking garage. It was a sunny day and there was nothing obstructing her view. The curb “was visible upon reasonable vigilance”. Contributory negligence was assessed at 33%.
[83] In Lopez v. Toronto (City), 2013 ONSC 848, the plaintiff slipped and fell on a patch of ice. The ice was sufficiently visible from at least 5 ft away and he reasonably ought to have seen it. Contributory negligence was assessed at 50%.
[84] In Teigland v. Killarney Gardens Housing Co-operative, 2001 BCSC 811, 2001 B.C.S.C. 811, the plaintiff tripped over a speed bump in a parking garage. She was found to have been walking too quickly and proceeding without paying attention. Her footwear was in disrepair, which also contributed to the accident. Her contributory negligence was assessed at 35%.
[85] While it was a combination of the negligence of the defendants and the plaintiff that caused the accident, I am of the view that the defendants must bear the larger share of liability, since this was a hazard that they intentionally created. However, for reasons already given, the plaintiff herself bears significant responsibility for what happened. Given that she was crossing a known construction zone at night in poor lighting conditions, she should have been keeping a close eye on where she was going.
[86] I assess her contributory negligence at 35%.
LIABILITY UNDER THE OCCUPIER’S LIABILITY ACT:
[87] Given the position taken by the defendants, as already noted, it is not necessary to spend much time on this issue, since the findings I have made are sufficient on their own to result in a finding of joint and several liability on the part of both defendants. Nevertheless, something must be said about this aspect of the case.
[88] Permanent owed a duty to the plaintiff to take reasonable care to see that she, and other persons entering onto the road, were reasonably safe. By intentionally creating a 50 mm lip of pavement as a result of its construction activities, and then failing to protect and eliminate that trip hazard by means of a ramp of some kind, Permanent breached that duty of care. The steps that Permanent did take, by posting a bump sign and painting hash marks on the edge, were insufficient, for reasons already given, and failed to meet the standard of reasonableness.
[89] The negligence of Permanent caused the accident, since but for the failure to ramp and essentially eliminate the lip, the plaintiff would not have tripped and fallen.
[90] The plaintiff was, however, also negligent, in that she failed to take reasonable care for her own safety, by maintaining the vigilance that was reasonably expected of her in the circumstances. I have already assessed her degree of fault at 35%.
CONCLUSION:
[91] To conclude, I find the defendants jointly and severally liable for the accident, to the extent of 65% of the plaintiff’s damages. I find the plaintiff contributorily negligent to the extent of 35%.
[92] Since damages have been agreed upon in the amount of $75,000, the plaintiff shall have judgment against both defendants, jointly and severally, in the net amount of $48,750, inclusive of damages, prejudgment interest and OHIP’s subrogated claim.
[93] The only remaining issue is costs. I encourage the parties to resolve this issue and avoid incurring further legal costs. It is clear that a great deal has been spent already on what is, relatively speaking, a comparatively modest claim. If costs cannot be resolved, I will accept brief written submissions from the plaintiff within 15 days, with the defendants’ response within 10 days thereafter, and any reply within 5 days thereafter.
[94] Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.
Mr. Justice T. A. Heeney
Released: August 26, 2022