



COURT OF APPEAL FOR ONTARIO

CITATION: House v. Baird, 2017 ONCA 885

DATE: November 21, 2017

DOCKET: C60221

Feldman, Cronk and Miller JJ.A.

BETWEEN

Tyler House also known as Tylor House by his Litigation
    Guardian Gail House
, The Estate of Titus House, Gail House, and Titus House
    Jr.

Plaintiffs (
Appellant
/

Respondent by way of cross-appeal
)

and

Donald Baird
,
    Robert Scott Murray and
The Corporation of the Township
    of Wilmot

Defendants (
Respondents
/

Appellant by way of cross-appeal
)

Allan Rouben, for the appellant/respondent by way of
    cross-appeal

Daniel I. Reisler, for the respondent/appellant by way
    of cross-appeal Donald Baird

James H. Bennett, for the respondent The Corporation of
    the Township of Wilmot

Heard: April 11-12, 2017

On appeal from the judgment of Justice James Kent of the Superior
    Court of Justice, dated February 26, 2015.

Feldman J.A.:

A.

Introduction

[1]

On a winter night in 2009, the appellant House was driving his friend
    Bairds car in rural Ontario. Three other friends, including Baird, were
    passengers in the car. When House lost control of the car, it moved over into
    the oncoming lane at the same time as another car was approaching in that lane.
    The other car hit Houses car, killing one friend in the back seat and injuring
    House and his other two friends in the car.

[2]

In the action by House, the trial judge found House, as the driver, and
    the respondent Baird, as owner of the car, which had worn and defective tires, equally
    liable for causing the accident and for Houses injuries. The other driver,
    Murray, and the respondent municipality were absolved of any liability for the
    accident.

[3]

House appeals the decision of the trial judge on three issues: (i) the
    liability of the respondent municipality; (ii) the apportionment of fault as
    between himself as the driver and Baird as the owner of the car; and (iii) the
    failure of the trial judge to adjust the discount rate applicable to the
    damages calculation.

[4]

With respect to costs, the trial judge declined to give effect to an
    offer to settle by Baird, and made a modified
Sanderson
order requiring
    Baird to pay one half of the costs of the respondent municipality. The
    respondent Baird seeks leave to cross-appeal the costs disposition of the trial
    judge.

[5]

For the reasons that follow, I would dismiss Houses appeal on all three
    issues. I would also dismiss the application for leave to appeal costs.

B.

Facts

(1)

The accident

[6]

On the evening of February 25, 2009, four young men, long-time friends,
    drove west from Kitchener along Huron Road. The appellant, House, was the
    driver. The car, a 1992 Toyota Tercel, belonged to the respondent Baird, who
    was sitting in the back seat behind the driver. The other two passengers were
    Tomlinson in the front passenger seat and Samms in the back behind him.

[7]

In the Township of Wilmot, just west of the intersection with Pinehills
    Road, Huron Road takes a long descent leading to a dip in the road, then a
    crest, followed by a further descent.

[8]

Just after 9:00 p.m., Houses vehicle went out of control at or close to
    the crest. The rear of the vehicle swung forward, the vehicle slid sideways
    into the opposite lane and continued downhill in a westerly direction. At the
    same time, the respondent Murray was driving from the west in that lane. He saw
    Houses vehicle go out of control but was unable to avoid the collision. The
    front of Murrays vehicle hit the rear passenger side of Houses car, killing
    Samms and seriously injuring Baird and House and injuring Tomlinson, but less
    seriously.

(2)

The weather on the night of February 25

[9]

The forecast that evening was for a 40% chance of rain and snow, which Dr.
    James Young, an environmental consultant and weather specialist, said could be
    a mixture of rain and snow. There was no warning of freezing rain from
    Environment Canada and no forecast for sleet or freezing rain though, despite
    this, freezing rain could still occur. Dr. Young acknowledged there was a
    probability that freezing rain occurred at or near the accident scene less than
    one hour before the accident.

[10]

Baird
    said it was snowing quite a bit, the snow was mixed with rain and as the
    vehicle approached the scene of the accident, the snow was coming down heavily.
    However, according to Murray, it was snowing earlier in the evening, and later
    misting, but by the time of the accident it was no longer misting. While he
    said there was some slush on the road, he had turned off his windshield wipers
    and the temperature was above freezing.

[11]

Two
    nearby residents also described the weather that night. Peter Moir drove past
    the accident scene shortly after the crash and described the night as dark and
    wet with a misty rain. Lloyd Fretz said the weather that day was cold and wet.
    He saw lights at the accident scene, went out from his residence and noticed
    drizzling rain.

(3)

The road conditions on the night of February 25

[12]

The
    trial judge noted that, while Dr. Youngs evidence supported the probability
    that ice had formed at the accident scene prior to the crash, nobody was able
    to say with certainty that there was ice on the road at the point where the
    accident occurred.

[13]

Baird
    said he thought the vehicle must have been on ice, because it did not respond
    to Houses attempts at control. However, Murray said there was some, but not
    significant amounts of slush at the accident scene, and that he had no trouble
    coming to a full stop at a stop sign before the accident. He said he would have
    slowed down, had he had concerns about the road surface.

[14]

A
    number of police constables, firefighters and paramedics described the
    conditions in different ways. According to various first responders, the road
    was: quite slippery; fairly slippery; black ice; a little slippery; slush and
    ice covered; a little slick; icy; slippery on the way to scene; icy at the scene;
    and, slippery.

[15]

Similarly,
    the nearby residents also offered differing descriptions. Mr. Moir said the
    road surface at the accident scene was wet but he did not recall slipping or
    sliding. Mr. Fretz said the road was slippery and icy and that every year
    someone slides into the ditch on Huron Road, but opined that the street could
    be driven safely, even in bad weather.

[16]

Chad
    Gravill, who lives nearby and, as a volunteer firefighter captain, attended at
    the scene, had coincidentally passed through the scene of the accident earlier
    in the evening. He said he had not experienced icing in that area before and,
    that night, drove his vehicle safely and without difficulty.

[17]

John
    Mondy, a regional road patroller, testified that he logged the following as
    conditions for other roads within two miles of the accident: track bare; bare
    and wet; bare and wet. These observations were made between 9:01 p.m. and 9:15
    p.m.

(4)

Events prior to the accident

(a)

Bairds worn tires

[18]

Bairds
    vehicle was a 1992 Toyota Tercel. The rear tires on the car were worn beyond
    acceptable limits. The front and rear tires were mismatched and over-inflated.
    According to a motor vehicle collision reconstruction expert, the condition of
    the rear tires meant that the vehicle had reduced traction and stability, and
    therefore reduced control. The expert said that the vehicle was not safe to be
    driven on anything but a clear, dry road. The trial judge noted that counsel
    for Baird virtually conceded that the tires on the vehicle may have
    contributed to Houses loss of control.

(b)

Distracted driving  Houses girlfriends pregnancy

[19]

Earlier
    that day, Houses 16-year old girlfriend had told him that she was pregnant
    with their child. House was upset about it and, according to Baird, he flipped
    out. The trial judge found that, while the evidence was unclear as to whether
    House and his girlfriend fought about whether she should have an abortion, the
    fact of the pregnancy was certainly on his mind that evening.

(c)

Distracted driving  marijuana

[20]

Baird
    testified that everyone in the car was smoking marijuana that evening. He said
    they each smoked three or four bowls. Baird said that Tomlinson, who was
    sitting in the front passenger seat, lit the pipe and held it to Houses mouth
    so that House could smoke the marijuana while he was driving. While Tomlinson
    denied that they had been smoking marijuana, it is clear that evidence was not
    accepted by the trial judge.

(5)

Winter road maintenance

[21]

Wilmot
    Township is a rural municipality with a population of approximately 13,000. It
    has no roads classified higher than Class 3, with 247.2 two-lane kilometers of
    similar and lower class roads. Huron Road is a Class 3 road. Wilmots roads
    department has a foreman/supervisor and seven full-time employees who operate
    seven plows and salters during the winter months. Those individuals normally
    work from 6 a.m. to 2 p.m. during the week, but would come in at other times if
    required by weather and road conditions.

[22]

After-hours,
    someone is on-call. That person goes on patrol if a weather event requires
    attention or a complaint or call is received from the police. The on-call
    operator monitors the weather from home after-hours. The person on-call would
    perform any work as needed or organize a crew to do so. Normally, the on-call
    operator would call the supervisor to discuss whether to call out staff.

[23]

On
    the night of February 25, Dave Tomlinson was on-call. Ordinarily, Wilmot
    receives weather forecasts four times a day at its operations centre. Tomlinson
    did not recall seeing a weather chart that day. Monitoring the weather from his
    home in Baden in Wilmot Township that evening, he noticed a brief snowfall a
    little after dinner. However, the snow was melting on contact; this left the
    surface slightly wet but he did not consider it a situation where he needed
    to patrol or contact any other operators.

[24]

At
    9:30 p.m., after being called by the police to come and close the road after
    the accident, Dave Tomlinson noted it was drizzling heavily, though not quite
    rain. Later that night, after midnight, he was called again by police for
    slippery conditions at the accident scene. By that point the temperature had
    dropped. Tomlinson found some slippery sections, including at the accident
    scene, and he applied salt that he was carrying in his vehicle.

(6)

Road maintenance standards

[25]

The
Minimum Maintenance Standards for Municipal Highways
, O. Reg. 239/02
    (MMS), enacted under the
Municipal Act
, 2001
, S.O. 2001, c.
    25 (the Act), sets out minimum standards of highway maintenance, which vary depending
    on the class of highway.

[26]

Highways
    are classified under the MMS according to their: (i) average annual daily
    traffic; and (ii) speed limit. The busiest highways with the highest speed
    limits would be Class 1. The least used highways with the lowest speed limits
    would be Class 6. Class 1 highways have the most stringent maintenance
    requirements, for example in terms of patrol frequency, clearing of snow and
    treatment of ice. The requirements are relaxed as the class number increases, and
    the MMS does not apply to Class 6 highways: see MMS, s. 2(3). As noted above, Huron
    Road was a Class 3 highway.

[27]

In
    the opinion of Neil Bigelow, a motor vehicle reconstruction expert called by
    House, an operator should have been patrolling the local roads to monitor the driving
    conditions and respond as necessary. Bigelow noted that the section of the road
    where the accident occurred featured a downhill grade and shading from trees,
    meaning it would not get as much heat as an unshaded, flat road. However,
    Bigelow conceded that a Class 3 road such as Huron would not receive the same
    service as a Class 1 road and that the MMS imposed no duty to patrol in the
    circumstances of this case.

[28]

Brian
    Malone was the expert called by Wilmot. He gave the opinion that Wilmots
    procedures were reasonable, conformed with the MMS and were consistent with
    those of other lower-tier rural municipalities (see para. 38 below). He noted
    that having an on-call operator after-hours was very common. Dave Tomlinsons
    decision to take no action was consistent with the forecast and his
    observations. Malone noted that the MMS imposed no requirement for winter
    patrolling. Rather, for Class 3 roads, the MMS required an icy roadway to be
    treated as soon as practicable and within eight hours after the town became
    aware of its icy state.

[29]

The
    trial judge preferred the evidence of Malone. Bigelows evidence would, in
    Malones view, impose a duty of ensuring driver safety. The trial judge
    observed that while this is a laudable aspiration, it is not a legal obligation.
    He concluded that Wilmot had in place an adequate system for winter road
    maintenance.

C.

Findings by the trial judge regarding the weather, the roads and
    Wilmots liability for the accident

(1)

The weather and the roads

[30]

Following
    his review of the evidence on these two issues, described above, the trial
    judge concluded: (i) that unanticipated ice formed on Huron Road at or near
    the scene of the collision less than one hour before the accident occurred and that
    the ice had melted or was melting into slush at the time of the accident; and (ii)
    regardless of whether a patch or patches of ice remained at the accident scene
    at the time of the collision, the condition on Huron Road was slippery, at
    least in spots.

(2)

Liability of Wilmot

[31]

The
    trial judge found that Wilmot had an adequate system for call-out for winter
    maintenance of its roads. Further, although the regional standards required
    that areas of concern be patrolled, the trial judge found that the evidence
    did not support a finding that the section of Huron Road where the accident occurred
    was an area of concern. Nor was the township required to conduct a regular
    patrol for speculative purposes. As a lower-tier rural municipality, Wilmot was
    not obliged to adhere to the same standards as a regional municipality or a
    provincial ministry. Finally, because the section of Huron Road where the
    accident occurred was not identified as highly dangerous, even if Tomlinson had
    conducted an evening patrol, he may not have been at the relevant spot within
    the hour before the accident to address any ice that may have been there.

[32]

The
    trial judge therefore concluded that there were too many what ifs to be able
    to find a breach of duty by the township or that any such breach caused the
    accident.

D.

The Appeal: Issues and analysis

(1)

Issue 1: Did the trial judge err in law by failing to find that Wilmot
    breached its statutory duty to keep Huron Road in a reasonable state of repair?

[33]

The
    appellant submits that the trial judge erred in his approach to the analysis of
    the standard of care of a municipality that is statutorily mandated by s. 44 of
    the Act, and thereby erred in law by failing to find that the municipality did
    not meet its statutory duty to keep Huron Road in a reasonable state of repair.

The law regarding winter road maintenance

[34]

Sections
    44(1) to 44(4) of the Act provide:

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.

[35]

The
    proper approach to applying s. 44 was set out in this courts decision in
Fordham
    v. Dutton-Dunwich (Municipality)
, 2014 ONCA 891, 327 O.A.C. 302, at para.
    26, as follows:

Case law has established a four-step test for analyzing this
    statutory cause of action against a municipality.

1.
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.

2.
Causation
: The plaintiff must prove the non-repair
    caused the accident.

3.
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.

4.
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. [Footnotes omitted.]

[36]

The
    determination that a road is in a state of non-repair is contextual and
    fact-driven. The context includes the character and location of the road: see
    the Act, s. 44(1); and
Lloyd v. Bush
, 2017 ONCA 252, 9 M.V.R. (7th)
    177, at para. 69. Maintenance standards are not as stringent for rural roads
    with low traffic volumes. As this court recently stated in
Lloyd
, at
    para. 70:

The jurisprudence is clear that a lower standard will apply
    with respect to the state of repair on a low-traffic rural roadway than on
    higher-traffic thoroughfares and highways. The character and population of the
    area are to be considered as well as the amount of traffic using the road.
    [Citations omitted.]

[37]

The
    concept of reasonableness is also inherent in the statutory defence in s.
    44(3)(b): [t]he steps to be taken by a municipality need only be within the
    range of what is reasonable in the circumstances: see
Lloyd
, at para.
    82. The issue is not whether something different or something more intensive
    could have been done  rather, the issue is whether the steps that the [municipality]
    did take were reasonable: see
Ondrade v. Toronto (City)
(2006), 23
    M.P.L.R. (4th) 111 (Ont. Sup. Ct.), at para. 67.

[38]

Ontario
    has three classes of municipalities: (i) single-tier; (ii) upper-tier; and
    (iii) lower-tier: see the Act, s. 1(1); and Ian Rogers,
The Law of Canadian
    Municipal Corporations
, loose-leaf, vol. 1, 2d ed. (Toronto: Thomson
    Reuters, 2017), at p. 21. An upper-tier municipality is comprised of and
    includes two or more lower-tier municipalities; a single-tier municipality is
    not part of an upper-tier municipality: see the Act, s. 1(1). The Township of
    Wilmot is a lower-tier municipality within the Regional Municipality of
    Waterloo, which is an upper-tier municipality.

[39]

For
    purposes of the MMS, every highway under the jurisdiction of a municipality is
    classified from Class 1 to Class 6, as described earlier, based on speed limit
    and traffic volume: see MMS, s. 1(2). Section 5(1) of the MMS relates to icy
    roadways and at the time of the accident provided:

5. (1) The minimum standard for treating icy roadways is,

(a) to deploy resources to treat an
    icy roadway as soon as practicable after becoming aware that the roadway is
    icy; and

(b) to treat the icy roadway within
    the time set out in the Table to this section after becoming aware that the
    roadway is icy.

[40]

The
    table referred to in s. 5(1)(b) lists 8 hours as corresponding to a Class 3
    highway. Therefore, for a Class 3 highway, such as Huron Road, s. 5(1)(b) would
    read to treat the icy roadway within 8 hours after becoming aware that the
    roadway is icy.

[41]

The
    Region of Waterloo also has a Winter Maintenance Policy and Procedures (WMPP),
    providing for specific measures to maintain the function of the road network in
    the winter. The WMPP defines Concern Area as:

Locations identified by the municipality that traditionally
    require winter maintenance in addition to or outside of normal winter
    maintenance applications. These areas can include but are not limited to bridge
    decks, shaded areas, steep vertical grades and tight horizontal curves.

The appellants argument

[42]

The
    appellant puts forth a number of arguments as to how the trial judge erred in
    failing to hold Wilmot liable: (i) by not deciding whether the road was in a
    state of disrepair, he failed to properly analyze the towns liability; (ii) he
    placed undue reliance on Wilmots status as a lower-tier municipality; (iii) he
    erred by failing to find that a patrol was called for; (iv) he erred by relying
    on the MMS; (v) he erred by applying an unduly low standard of care to Wilmot;
    and (vi) he erred by stating that nobody was able to say with certainty that
    there was ice on the road and, in any event, a finding that there was ice on
    the road was not necessary to ground liability.

[43]

When
    taken together, the appellants arguments amount to a claim that the trial
    judge failed to apply the proper legal test, failed in his application of the
    applicable legal principles to the facts, and made erroneous findings of facts.

Analysis

[44]

The
    trial judge instructed himself, based on
Fordham
, that a
    municipalitys duty of repair is limited to maintaining its roads to enable
    ordinary drivers exercising reasonable care to use the roads safely: see
Fordham
,
    at paras. 28-30. He quoted the proper approach to analyzing and applying s. 44
    from
Fordham
, referred to the MMS and reviewed a number of relevant cases,
    including:
Greer (Litigation guardian) v. Kurtz
, [2008] O.J. No. 2185
    (Sup. Ct.), affd 2009 ONCA 865;
The Queen (Can.) v. Saskatchewan Wheat
    Pool
, [1983] 1 S.C.R. 205;
Ferguson v. Brant (County)
, 2013 ONSC
    435, 7 M.P.L.R. (5th) 118;
Frank v. Central Elgin (Municipality)
, 2010
    ONCA 574, 268 O.A.C. 85;
Montani v. Matthews
(1996), 29 O.R. (3d) 257
    (C.A.), leave to appeal refused, [1996] S.C.C.A. No. 395;
MacMillan v.
    Ontario (Minister of Transportation & Communications)
(2001), 24
    M.V.R. (4th) 15 (Ont. C.A.), leave to appeal refused, [2001] S.C.C.A. No. 348;
Bisoukis
    v. Brampton (City)
(1999), 46 O.R. (3d) 417 (C.A.), leave to appeal
    refused, [2000] S.C.C.A. No. 52;
Thornhill (Litigation guardian) v. Shadid
(2008), 289 D.L.R. (4th) 396 (Ont. Sup. Ct.);
Giuliani v. Halton (Regional
    Municipality)
, 2011 ONCA 812, 286 O.A.C. 209, leave to appeal refused, [2012]
    S.C.C.A. No. 87.

[45]

Having
    reviewed the evidence in detail and made his findings of fact, the trial judge
    then applied those findings against the statutory standard and found that the
    municipality had not breached its duty of care.

[46]

The
    appellants first argument is that the trial judge erred by failing to make a
    finding as to whether the highway was in a state of non-repair. He submits that,
    without making that finding, the trial judge then failed to put the onus on the
    municipality to prove one of the three defences in s. 44(3).

[47]

I
    do not accept this submission. Based on the evidence he accepted, the trial
    judge made the factual findings that: (i) unanticipated ice had formed on the
    section of Huron Road at or near the accident scene less than one hour before
    the collision; (ii) the ice had melted or was melting into slush at the time of
    the accident; and (iii) the condition of the road was slippery. This amounts to
    a finding that the municipality failed to keep the road in a reasonable state
    of repair. Subject to the findings of contributory negligence, the trial judge
    proceeded on the basis that the slippery conditions caused or contributed to
    the accident.

[48]

The
    trial judge also determined whether Wilmot had established any of the three
    statutory defences under s. 44(3) of the Act. His conclusions amounted to a
    finding that Wilmot had met each of the three defences. First, it could not
    reasonably have known about the state of non-repair on Huron Road for two
    reasons: (i) the formation of ice was unanticipated by the weather forecast for
    that day; and (ii) the affected section of Huron Road was not an area of
    concern that the Township would have focused on for a patrol, had it been
    concerned about the weather. Second, the townships system for winter road
    maintenance was a reasonable one for a lower-tier municipality, and the steps
    taken by the township that night were in accordance with its system for winter
    road maintenance. And third, as the MMS for a Class 3 highway only required that
    a municipality treat an icy highway within eight hours of becoming aware that
    the highway was icy, Wilmot had met that standard.

[49]

The
    appellant argues that the municipality actually took no steps to maintain the
    road that night: it did not monitor the weather or go out on patrol. However,
    as the trial judge found, the municipality followed its system of from-home,
    after-hours monitoring by the on-call official. The trial judge noted that
    Tomlinson had completed a training course. He accepted the opinion of the
    expert Malone, who said that the actions of Tomlinson were reasonable in
    monitoring the snowfall and deciding there was no need for a patrol. These are
    findings of fact or mixed fact and law by the trial judge based on the
    evidence. There is no basis for this court to overturn those findings.

[50]

The
    appellants second argument is that the trial judge put undue emphasis on the
    fact that Wilmot is a lower-tier municipality with Class 3 roads, when the
    problem was that Tomlinson did not monitor the weather reports or conduct a
    patrol. Again, I would not give effect to this argument. As stated above, the
    trial judge accepted that Tomlinson acted in accordance with Wilmots system
    for after-hours monitoring, and that the system was a reasonable one. In any
    event, the weather event that occurred was unanticipated, and therefore there
    was no basis to find that any failure to monitor weather reports was causative
    of the decision not to patrol.

[51]

The
    appellants third argument is that the trial judge erred by finding that a
    patrol was not called for. He submits that the relevant area of Huron Road was
    shaded and has a downhill grade, which are two of the factors identified in the
    WMPP of the region that could lead a municipality to identify an area as an
    area of concern. However, there was no evidence that the municipality had so
    identified this area. Again, the appellant is effectively asking this court to
    reassess the evidence and reverse a factual finding by the trial judge.

[52]

The
    fourth argument is that the trial judge erred by considering the MMS, which the
    appellant says was not applicable in this case. He relies on this courts
    decision in
Giuliani
, where the court held that in the circumstances
    of that case, the icy road clearance time limits in the MMS did not apply. I
    would reject this argument. The
Giuliani
case involved an issue of anticipating
    the formation of ice. In that case, ice had not yet formed, but the findings of
    default by the municipality were based on the failure to take reasonable steps
    to avoid the formation of ice: see
Giuliani
, at para. 32. In this
    case, there was a finding that there was unanticipated ice. Therefore, had Wilmot
    known of that ice formation, it would have had the obligation to clear the ice
    within eight hours. However, the accident occurred before it learned about the
    ice formation.

[53]

The
    fifth argument is that the trial judge applied an unduly low standard of care
    by stating that the municipality does not have a duty to ensure driver safety.
    He made no such error. In considering the
Fordham
test, this court in
Lloyd
,
    at para. 63, stated:

In considering these steps, Canadian courts have taken into
    account the difficult winter conditions that exist and the cost of clearing the
    roads of snow.
The courts have emphasized
    that a municipality is not to be treated as an insurer of the safety of the
    users of its roads
by imposing overly onerous maintenance obligations.
    Specifically, a municipality's failure to salt or sand its roads does not
    automatically expose it to civil liability: the driving public cannot expect
    municipalities to keep the roads free and clear of snow and ice at all times
    during the winter. [Citations omitted and emphasis added.]

[54]

The
    appellants final argument is that the trial judge erred by saying that no one
    could say there was ice on the road, when in fact, Baird did say that they were
    on ice at the time of the accident. I would not give effect to this argument
    either. First, the trial judge referred to this evidence by Baird, so he was
    well aware of it. In any event, the action against the municipality failed, not
    because non-repair had not been proved, but because Wilmot met its onus to
    establish the statutory defences after the trial judge found there was
    non-repair.

[55]

In
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, the seminal
    case from the Supreme Court on standards of review, the underlying issue concerned
    the responsibility of a municipality to maintain roads. Justice Iacobucci and
    Justice Major, in a joint opinion for the majority, at para. 56, stated that in
    such cases, absent errors of law, significant deference is to be accorded to
    the trial judge:

[T]he narrowly defined scope of appellate review dictates that
    a trial judge should not be found to have misapprehended or ignored evidence,
    or come to the wrong conclusions merely because the appellate court diverges in
    the inferences it draws from the evidence and chooses to emphasize some
    portions of the evidence over others. As we are of the view that the trial
    judge committed no error of law in finding that the municipality breached its
    standard of care, we are also respectfully of the view that our colleague's
    re-assessment of the evidence on this issue is an unjustified interference with
    the findings of the trial judge, based on a difference of opinion concerning
    the inferences to be drawn from the evidence and the proper weight to be placed
    on different portions of the evidence. [Citations omitted.]

[56]

In
    this case, the trial judge made no error of law, conducted a thorough review of
    the evidence and made reasonable findings. His analysis is entitled to
    deference.

(2)

Issue 2: Did the trial judge err by assessing contributory negligence on
    the part of the appellant at 50%?

[57]

Having
    found that the municipality bore no liability for the appellants damages, the
    trial judges approach to contribution was to first assess whether Baird, as
    vehicle owner, had any responsibility for the collision, and then whether House
    had any responsibility.

[58]

The
    Waterloo Regional Police inspection report regarding the Baird vehicle was made
    an exhibit at trial. It indicated that the rear tires on the vehicle were worn
    beyond acceptable limits and were on wear bars. The front and rear tires were
    mismatched and over-inflated: the front tires were Tiger Paws and the rear tires
    were Merit tires; the pressure on both front tires was 40 psi, while the
    pressure on the rear left tire was 50 psi. The pressure on the rear right tire
    could not be measured as that tire had been cut in the accident. The
    manufacturers recommended pressure was 35 psi for all four tires.

[59]

The
    trial judge accepted the evidence of Neil Bigelow, the motor vehicle collision
    reconstruction expert. His opinion was that because the tires were so worn and
    over-inflated, the Baird vehicle was not safe to be driven on anything but a
    clear, dry road. The condition of the rear tires would cause reduced traction
    and stability and reduced capacity for control. Further, in his opinion, tires
    worn to the wear bars would not meet Ontario safety standards.

[60]

Baird
    also called an expert to address the tire issue. Although he opined that there
    was not enough information to determine whether the poor tires were a cause of
    the accident, he conceded that because tires with poor tread have only 50-70%
    of the friction of a new tire, that would increase the risk of the rear tires
    sliding.

[61]

The
    trial judge noted that counsel for Baird virtually conceded that the tires
    may have contributed to the loss of control of the vehicle; however, his
    position was that the bulk of the fault lay with the appellant, who was driving
    too fast and lost control.

[62]

The
    trial judge concluded that the condition of the tires created a risk of loss of
    control, especially on a snowy, slushy or icy roadway, and particularly if the
    driver was driving too fast for the conditions. Therefore, Baird bore some
    responsibility for the collision and for the appellants damages.

[63]

Turning
    to the appellant, the trial judge considered his responsibility for the
    collision and for the damages he suffered, based on three possible factors: (i)
    excessive speed; (ii) distracted driving (including both his emotional state because
    of his girlfriends pregnancy and his marijuana usage); and (iii) failure to
    wear a seatbelt.

[64]

Baird
    and Tomlinson testified about the appellants speed. Baird said he thought the
    appellant was driving at approximately 80 km/h, while both said that the
    appellant was driving safely before the accident. The trial judge noted that Murray
    did not lose control of his vehicle and had been able to stop without incident
    at a stop sign before the accident. Using air bag data from the respondent
    Murrays vehicle, the evidence disclosed that Murray was travelling at 80 to 82
    km/h before he braked 1.3 seconds before the impact and that the application of
    the brakes caused the vehicle to slow to a speed of 51 km/h at the impact. The
    collision reconstructionist with the Waterloo police attributed the collision
    to driver inexperience and road conditions. Bigelow, the accident
    reconstruction expert, also gave his opinion about the cause of the accident.
    He blamed the unsafe tires and the fact that House was likely driving above the
    80 km/h speed limit just prior to losing control of his vehicle.

[65]

Based
    on this evidence as well as the fact of the accident, the trial judge concluded
    that there was some evidence that the appellant was driving over the 80 km/h
    speed limit and that it was clear that he did not adjust his speed for the
    conditions. Speed was a factor in the accident and the appellant therefore bore
    some responsibility for it on that basis.

[66]

On
    the distracted driving issues, the trial judge concluded that the fresh news of
    his girlfriends pregnancy was certainly on the appellants mind on the evening
    of the accident. Because the appellant was focused on this news and smoking marijuana
    during the drive, the trial judge concluded that he was probably distracted
    from driving and bore responsibility for the accident on that basis as well.

[67]

Despite
    some evidence that House was not wearing a seatbelt, on balance, the trial
    judge was not convinced that House did not have his seatbelt fastened.
    Therefore, failure to wear a seatbelt was not a contributing cause of the
    damages the appellant suffered.

[68]

Turning
    to the issue of apportionment, the trial judge found that it was not possible
    to determine to what degree the defective tires, the distracted driving and the
    speeding contributed causally to the accident. He therefore applied s. 4 of the
Negligence Act
, R.S.O. 1990, c. N.1, which provides that where it is
    not practicable to determine the respective degrees of fault or negligence
    between parties, then the parties are deemed to be equally at fault or
    negligent.

[69]

The
    appellant submits that the finding that he was 50% responsible amounted to
    speculation that he was speeding in the face of evidence to the contrary, and
    that the trial judges concerns about marijuana use and the appellants state
    of mind over the pregnancy were not based on evidence. He submits that the 50%
    allocation should be set aside and reduced to 15-20%, or another amount as the court
    may direct.

[70]

I
    would not give effect to this submission. There was clearly evidence, including
    the action taken by Murray to brake when he saw the appellants car, from which
    the trial judge could infer that the appellant was negligent in failing to
    adjust his speed for the conditions, and that he was upset about the pregnancy.
    There was direct evidence that he smoked multiple pipe bowls of marijuana while
    driving.

[71]

Section
    4 of the
Negligence Act
was enacted to be used in the circumstances
    that arose here, where it would not be practicable for the trial judge to
    determine the respective degrees of responsibility for the accident and for the
    damages House suffered as a result. His decision to apply that section and
    apportion liability on a 50/50 basis discloses no error.

[72]

As
    this court held in
Giuliani
, at para 46:

An appellate court ought not to vary an apportionment of
    negligence at trial except in very strong and exceptional circumstances, unless
    an error in law was made or there has been a misapprehension of some material
    fact: see
Ingles v. Tutkaluk Construction Ltd
.
, 2000 SCC 12,
    [2000] 1 S.C.R. 298, at para. 57;
Bow Valley Husky (Bermuda) Ltd. v. Saint
    John Shipbuilding Ltd
.
, [1997] 3 S.C.R. 1210, at paras. 78 to 80.

(3)

Issue 3: Did the trial judge err by failing to give effect to the expert
    evidence and not applying a lower discount rate than the one provided by Rule
    53.09 of the
Rules of Civil Procedure
?

[73]

Rule
    53.09 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, provides:

53.09 (1) The discount rate to be used in determining the
    amount of an award in respect of future pecuniary damages, to the extent that
    it reflects the difference between estimated investment and price inflation
    rates, is,

(a) for the 15-year period that
    follows the start of the trial, the greater of,

(i) the average of the value for
    the last Wednesday in each month of the real rate of interest on long-term
    Government of Canada real return bonds (Series V121808, formerly Series
    B113911), as published in the Bank of Canadas
Weekly Financial Statistics
for the period starting on March 1 and ending on August 31 in the year before
    the year in which the trial begins, less ½ per cent and rounded to the nearest
    1/10 per cent, and

(ii) zero; and

(b) for any later period covered by
    the award, 2.5 per cent per year for each year in that period.

[74]

The
    purpose of applying a discount rate to a lump sum damages award for future
    pecuniary damages was explained by the Supreme Court of Canada in
Townsend
    v. Kroppmanns
, 2004 SCC 10, [2004] 1 S.C.R. 315, at para. 5:

Compensation aims at restoring the victim to the position that
    person would have been in had no loss been incurred. Compensation is awarded in
    the form of a lump sum payment. The dollar amount received for future costs is
    actually lower than projected costs because it is assumed that the amount paid
    will be invested and will earn income before being used for future needs. The
    same reasoning applies for loss of future income. The victim is awarded a lower
    amount for income than that person would have actually earned at a future date.
    In other words, the amounts are discounted to reflect the present value of the
    expenses incurred or the income earned at a future date, taking inflation
    adjustments into consideration. The purpose of the discount rate is thus to
    insure that victims will be fully compensated but that defendants will not be
    called on to overpay. In British Columbia, to avoid courts' having to hear
    expert evidence in every case in order to determine the appropriate discount
    rate, s. 56 of the
Law and Equity Act
, R.S.B.C. 1996, c. 253, which
    was added in 1981 (S.B.C. 1981, c. 10, s. 30), authorizes the Chief Justice of
    the British Columbia Supreme Court to set the discount rate. Pursuant to the
Law
    and Equity Regulation
, B.C. Reg. 352/81, which was adopted pursuant to s.
    56 of the Act, the Chief Justice has fixed the discount rate at 2 1/2 percent
    for future earnings and 3 1/2 percent for future costs.

[75]

In
    Ontario, the discount rate is provided by Rule 53.09 of the
Rules of Civil
    Procedure
, and is reconsidered from time to time by the Civil Rules
    Committee in order to maintain its accuracy and reliability. While the discount
    rate is fixed by regulation in British Columbia, in Ontario, the parties are
    entitled to lead expert evidence and, on the basis of that evidence, to ask the
    trial judge to impose a different discount rate than the one found in the Rule.
    In
Sandhu v. Wellington Place Apartments
, 2008 ONCA 215, 234 O.A.C.
    200, at para. 145, this court stated:

To the extent that a plaintiff believes that r. 53.09(1) does
    not accurately convert the cost of specific expenses to be incurred in the
    future into present-day dollars because the costs for those expense[s] are
    increasing at a rate faster than the estimated long-term inflation rate, that
    is a factor that affects the quantum of the award for the specific expenses and
    is an issue that should be raised at trial.
[1]


[76]

Dr.
    Peter Coyte, a health care economist expert called by the appellant, testified
    that certain health care costs have historically risen at a greater rate than
    the Consumer Price Index, and that four categories of future health care costs
    included in the appellants damages award would continue to rise by 1.1%
    annually over that rate.

[77]

He
    therefore opined that applying the Rule 53.09 discount rate would be unfair to the
    appellant in respect of those future health care costs, and that a lower rate (i.e.,
    negative 0.8% instead of 0.3% for the first 15 years and 1.4% instead of 2.5%
    thereafter) should be applied to the following four categories of those costs:
    attendant care; costs of regulated health care professionals; medication; and
    future transitional services by regulated health care professionals.

[78]

The
    trial judge acknowledged the logic and political reality of the expert
    opinion. However, he declined to apply it for two reasons: (i) it would have
    the effect of increasing the award by millions; and (ii) he preferred to rely
    on the stability and predictability of the Rule, believing it to be
    inappropriate to adjust the discount rate in individual cases.

[79]

The
    appellant submits that the trial judge erred by accepting the logic of the
    evidence of the expert but declining to act on it. He argues that the established
    basis for tort damages, namely, the principle of restoring him to the position
    he would have been in but for the loss, outweighs the need to apply the Rule to
    maintain stability in its application.

[80]

On
    my reading of his reasons, while he saw the logic of the experts analysis, the
    trial judge did not fully accept his evidence, and was not prepared to act on
    it. That is the prerogative of a trial judge. There is no basis to interfere.

E.

The Cross-Appeal: Costs Disposition

(1)

Costs reasons of the trial judge

[81]

The
    trial judge gave separate reasons for awarding costs. Wilmot was entitled to
    its costs on the partial indemnity scale, as it was completely successful.

[82]

The
    appellant obtained a judgment against Baird in the amount of $1,405,439.10 (after
    the 50% apportionment and a reduction for a settlement with Murray). Baird
    argued that the appellant was only entitled to his costs up to the date of
    Bairds offer to settle, because the appellant would have been better off had
    he accepted Wilmots offer to settle together with Bairds offer, which was an
    offer to settle with all parties (i.e., House, Baird and Samms) for his policy
    limit of $1 million, to be apportioned in accordance with an agreement or with the
    judgment. The appellant did not accept the offer and argued that he could not
    know whether he would have been better off because the amount of the Baird
    offer could not be determined.

[83]

The
    trial judge rejected Bairds argument. He agreed with the appellant that he was
    not obliged to accept an uncertain offer. The trial judge also rejected the
    submission that the appellants costs against Baird should be reduced by 50%
    because of the finding of 50/50 liability for the accident. The trial judge
    therefore awarded full partial indemnity costs to the appellant against Baird
    based on his finding that the amount of the judgment exceeded the offer.

[84]

The
    appellant had sued Wilmot and lost, while Baird had cross-claimed against
    Wilmot and also lost. The appellant therefore asked the trial judge to make a
Sanderson
order requiring Baird to pay Wilmots costs. Based on the fact that Baird did
    not actively pursue his cross-claim against Wilmot, the trial judge determined
    that the appropriate order was for Baird to pay one half of Wilmots costs and for
    the appellant to pay one half.

(2)

Bairds cross-appeal regarding costs

[85]

Baird
    seeks leave to appeal both aspects of the costs order.

[86]

Leave
    to appeal costs will only be granted in obvious cases where the party seeking
    leave convinces the court there are strong grounds upon which the appellate
    court could find that the judge erred in exercising his discretion: see
Brad-Jay
    Investments Limited v. Village Developments Limited
(2006), 218 O.A.C. 315
    (C.A.), at para. 21; and quoted with approval in
McNaughton Automotive Limited
    v. Co-operators General Insurance Company
, 2008 ONCA 597, 95 O.R. (3d)
    365, at para. 24.

[87]

The
    Supreme Court confirmed the same principle in
Hamilton v. Open Window
    Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27, stating: [a]
    court should set aside a costs award on appeal only if the trial judge has made
    an error in principle or if the costs award is plainly wrong.

[88]

I
    see no such error in this case.

(a)

Offer to settle

[89]

The
    trial judge made no error in finding that Bairds offer to settle with three
    people for his policy limit was uncertain as to the actual amount being offered
    to the appellant. Uncertainty or lack of clarity in an offer may prevent a
    party from meeting its burden to show that the judgment obtained was as favourable
    as the offer, or more or less favourable, as the case may be: see
Rooney
    (Litigation guardian) v. Graham
(2001), 53 O.R. (3d) 685 (C.A.), at para. 44.

[90]

In
    any event, the appellants judgment against Baird exceeds the full $1 million
    dollar policy limit and therefore exceeds the amount of the offer. Baird argues
    that the appellant is unlikely to collect more than the insurance proceeds from
    him, but this is disputed by the appellant. We cannot resolve this factual
    dispute. Nor would it provide any basis for this court to grant leave to appeal
    costs on this ground.

(b)

Sanderson
order

[91]

Baird
    submits that the trial judge erred in making the modified
Sanderson
order by failing to consider the factors set out by this court in
Moore
    (Litigation guardian) v. Wienecke
, 2008 ONCA 162, 90 O.R. (3d) 463, which he
    says would not have supported the order.

[92]

Applying
Moore
,
at para. 41, the threshold issue before a
Sanderson
order should be made is: was it reasonable for the plaintiff to join the
    several defendants in one action? The trial judge found that in this case it
    was reasonable for the appellant to sue both the municipality and Baird. The next
    step is to then consider the four factors that
Moore
, at paras. 45-50,
    identifies as being relevant to a trial judges exercise of discretion: (i)
    whether the defendants tried to blame each other; (ii) whether the unsuccessful
    defendant caused the successful defendant to be added as a party; (iii) whether
    the causes of action were independent of each other; and (iv) the plaintiffs ability
    to pay the costs. See also:
Paul M. Perell & John W.
    Morden,
The Law of Civil Procedure in Ontario
,
    3d ed. (Toronto: LexisNexis Canada, 2017), at pp. 937-938.

[93]

In
    this case, the trial judge either explicitly considered, or was certainly aware
    of, these factors. While Bairds counsel did not actively try to implicate Wilmot
    in the conduct of the cross-claim, Baird maintained the cross-claim throughout,
    and had rejected Wilmots offer to contribute. The appellants causes of action
    against Baird and Wilmot were related, arising out of the same accident and
    relating to contribution to causation. Any award against the appellant would
    reduce his limited recovery and his ability to pay a costs award made against
    him.

[94]

Each
    of these factors, unlike in
Moore
, could support the decision to alleviate
    the burden on the appellant by making the unsuccessful defendant, Baird,
    responsible for the costs of the successful defendant, Wilmot. In this case,
    the trial judge took a very fair approach by reducing Bairds costs
    responsibility by half, to reflect counsels approach at trial of not aggressively
    trying to shift blame onto Wilmot. The
Moore
factors need not be
    applied mechanically and the exercise is a discretionary one: see
Moore
,
    at para. 45. In my view, the trial judge made no error and his decision should
    attract the deference of this court.

F.

Result

[95]

In
    the result, I would dismiss Houses appeal and Bairds cross-appeal for leave
    to appeal costs.

[96]

I
    would order costs of the appeal and cross-appeal in accordance with the
    agreement of counsel as follows: costs of the appeal payable by House to Wilmot
    in the amount of $30,000, inclusive of disbursements and HST; and costs of the
    cross-appeal payable by Baird to House in the amount of $7,500, inclusive of
    disbursements and HST.

Released: K.F. November 21, 2017

K. Feldman J.A.

I agree. E.A. Cronk J.A.

I agree. B.W. Miller J.A.





[1]

Previous case law from this court stated that the extent of
    the allowable expert evidence was limited to factors other than future
    investment and price inflation rates: see
Giannone v. Weinberg
(1989), 68 O.R. (2d) 767 (C.A.), at paras. 35-45, leave to appeal refused,
    [1989] S.C.C.A. No. 295;
Ligate v. Abick
(1996), 28 O.R. (3d) 1 (C.A.), at paras.18-29;
Martin v. Listowel
    Memorial Hospital
(2000), 51 O.R. (3d) 384 (C.A.), at
    paras. 55-74; and
Walker v. Ritchie
(2005), 197
    O.A.C. 81 (C.A.), at paras. 88-91, revd on other grounds, 2006 SCC 45, [2006]
    2 S.C.R. 428.


