September 27, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Smith v. Safranyos, 2018 ONCA 760 (CanLII)
Date of Decision: Sept 19, 2018
Heard Before: Strathy C.J.O., Roberts and Paciocco JJ.A.
On appeal from the judgment of Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, dated December 7, 2016 (unreported).
LIABILITY: injured party claims municipality is negligent on the allegation that non-repair of the intersection, given its design and condition caused the accident; municipality found liable for non-repair of the intersection under the Municipal Act
On June 16, 2007, at 1:03 a.m., a horrendous two car collision occurred. A car operated by Ms. Dawn Safranyos, carrying four children, failed to yield the right of way upon entering Upper Centennial Parkway, a through highway, and was “T-boned” at highway speed by Mr. McHugh who had consumed alcohol and was exceeding the speed limit by at least 15 kilometres per hour. Everyone in Ms. Safranyos car was seriously injured.
Lawsuits were brought on behalf of the injured children and their family members against Ms. Safranyos and Mr. McHugh relating to their alleged negligent manner of driving that played a role in causing the collision, and the City of Hamilton on the allegation that non-repair of the intersection, given its design and condition, was a cause of the accident.
The claims against all three defendants were tried together, but the trial was bifurcated. Only the liability trial has so far been concluded. A damages trial has yet to be held.
The trial judge found each of the defendants liable. She apportioned liability at 50 percent to Ms. Safranyos, and 25 percent to each of Mr. McHugh and Hamilton. Ms. Safranyos has not appealed the findings of liability or apportionment that affect her. Both Hamilton and Mr. McHugh appeal the findings of liability against them.
Hamilton’s appeal is dismissed. The trial judge applied the correct legal test in finding Hamilton to be liable for non-repair under the Municipal Act, 2001, S.O. 2001, c. 25, s. 44 (“Municipal Act”). She was also entitled, on the evidence before her, to find that this particular intersection was in a state of non-repair.
Mr. McHugh’s appeal is allowed as the trial judge committed palpable and overriding errors in finding him liable. The Action against him is dismissed as there is no evidence upon which he could properly be found liable.
Upper Centennial Parkway is an arterial road running north and south with two lanes in each direction. Green Mountain Road is a local road with one lane in each direction. It runs east and west. The two roads intersect at a four-way intersection. In June 2007, stop signs only affected traffic entering the intersection from Green Mountain Road. There were no stop signs or traffic lights affecting drivers along Upper Centennial Parkway at the intersection. A drive-in theatre is located on the north side of Green Mountain Road, east of Upper Centennial Parkway.
On June 15, 2007, Ms. Safranyos drove the four minor plaintiffs to the drive-in theatre to watch two movies. After the second movie ended. Ms. Safranyos turned onto Green Mountain Road, heading west towards Upper Centennial Parkway.
The trial judge found that Mr. McHugh was at least 125 metres away when Ms. Safranyos stopped at the stop sign. He was travelling at least 15 km/hr faster than the posted limit when he struck Ms. Safranyos.
THE CITY OF HAMILTON APPEAL
The non-repair claims against Hamilton, based on the statutory tort set out under the Municipal Act, s. 44, relate to the design and condition of the east side of the intersection as it existed on June 16, 2007. The westbound stop sign Ms. Safranyos encountered on Green Mountain Road as she approached Upper Centennial Parkway was set 10 metres back from the eastern edge of the intersection. The stop line that was once painted at the eastern edge of the intersection was removed in a “shave and pave” in 2004 and had not been repainted by June 2007.
There was evidence before the trial judge that in 2000 the City of Hamilton prepared a pavement marking design for that intersection calling for a painted stop line on the eastern edge of the intersection, but not for the western edge of the intersection. There was also evidence presented that there are no records indicating that Hamilton reconsidered that design when they moved to an “as required” stop line policy in 2001, or after the “shave and pave” in 2004.
There is also a steel guardrail on the east side of Upper Centennial Parkway, south of Green Mountain Road, running up to the intersection. In addition, there are elevation changes, as Green Mountain Road rises to connect with Upper Centennial Parkway. Mr. McHugh was driving beside that guardrail as he approached the intersection, going northbound in the curb lane of Upper Centennial Parkway. There was evidence before the trial judge that, given the location of the guardrail and the elevation changes, approximately 25 metres from the intersection the headlights of oncoming northbound compact vehicles driving in the curb lane, such as Mr. McHugh’s Cavalier, can disappear from the view of westbound drivers such as Ms. Safranyos. The evidence was also to the effect that it is 25 metres from the intersection that drivers approaching an intersection will tend to look to their left for oncoming traffic,
In finding that Hamilton failed to keep the highway in proper repair, contrary to s. 44, the trial judge featured two specific but related shortcomings. First, she concluded that to be in a reasonable state of repair, Green Mountain Road required a painted stop line where it met Upper Centennial Parkway. Second, the sightlines for vehicles approaching the intersection were not appropriate and could not meet the reasonable state of repair standard. She held that together “these breaches were causes” of the accident, and she rejected Hamilton’s attempt to defend the condition of the intersection.
In the appellant court’s view the trial judge was entitled to make a finding of non-repair relating to this specific intersection, in all of the circumstances. As indicated, the trial judge focused on two separate instances of non-repair. The evidence supporting the stop line non-repair is solid, but the foundation for finding non-repair based on the sightlines is not as concrete. It is clear from her decision, however, that the trial judge found that the sightline problems she identified enhanced the risks that the absence of a stop line presented to drivers exercising ordinary reasonable care. Put otherwise, although she featured these two issues in her decision, at base her finding was that the combined effect of these and other related factors rose to a level that goes beyond municipal discretion in intersection design and road markings, amounting to non-repair.
B. HAMILTON APPEAL – ISSUES
Hamilton alleges that the trial judge committed errors of law, and errors of mixed fact and law Hamilton’s grounds of appeal:
- Did the trial judge err in law by misapplying the reasonable driver standard when determining whether the intersection was in non-repair?
- Did the trial judge err in law in finding that the absence of a stop line constituted a non-repair by:
- treating Ontario Traffic Manual guidelines as legally enforceable standards of civil liability; or
- improperly drawing adverse inferences and using Hamilton’s policies in finding non-repair?
- Did the trial judge commit a palpable and overriding error in finding that the sightlines constituted a non-repair?
- Did the trial judge commit a palpable and overriding error in finding a causal link between the intersection’s non-repair and the accident?
The Appellant Court judge noted that pursuant to the Municipal Act, 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, and that 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.