



COURT OF APPEAL FOR ONTARIO

CITATION: Stamatopoulos v. Harris, 2022 ONCA 179

DATE: 20220303

DOCKET: C66776

Simmons, Harvison Young and Zarnett JJ.A.

BETWEEN

Stamatis
    (Steve) Stamatopoulos, Nikolaos Stamatopoulos, Christothea Stamatopoulos,
    Kyriakos Stamatopoulos and Stephanie Clarke

Plaintiffs (Appellants)

and

Richard J. Harris,
    The Regional Municipality of Durham
, Her Majesty the Queen in Right of the
    Province of Ontario, represented by the Minister of Transportation for the Province
    of Ontario and State Farm Insurance

Defendants (
Respondents
)

Allan Rouben, for the appellants

David G. Boghosian and Sachin Persaud, for the respondent, the Regional
    Municipality of Durham

Brian M. Bangay, for the respondent, Richard J. Harris

Heard: February 23, 2022 by video conference

On appeal from the
    judgment of Justice J. Copeland of the Superior Court of Justice, dated March
    6, 2019, with reasons at 2019 ONSC 603.

REASONS FOR DECISION

[1]

This is an appeal from a judgment dismissing an action
    against the Regional Municipality of Durham pursuant to s. 44 of the
Municipal
    Act, 2001,
S.O. 2001, c. 25, on the basis that it
    had failed to keep a roadway in a reasonable state of repair. The appellants
    commenced an action against Durham and the respondent, Mr. Harris, following a
    motor vehicle accident in November 2004. The appellant, Mr. Stamatopoulos, was
    a front seat passenger in a vehicle driven by Mr. Harris. The two men were travelling
    on the road around 8:30 p.m. when Mr. Harris lost control of the vehicle while driving
    over a depression or dip in the roadway. The vehicle rotated, left the roadway
    and travelled across the shoulder and into a ditch, where it hit a hydro pole.
    The vehicle travelled a further distance and collided, passenger side, into a
    group of trees and an embankment. Mr. Stamatopoulos suffered life altering
    injuries.

[2]

Mr. Harris conceded that he was negligent and
    that his driving was a cause of the collision. He reached a settlement with the
    appellants in 2010. However, he and the appellants alleged that the road where
    the collision occurred was in a state of non-repair, due to the dip in the
    road, and that this was also a cause of the collision. Damages were settled
    before the trial. The sole issues at trial were whether the respondent Durham
    was liable in negligence and, if so, what the apportionment of damages should
    be.

[3]

The trial judge found that the roadway was not in
    a state of non-repair. The appellants appeal from that finding. Mr. Harris
    appealed initially, but has since abandoned his appeal. He filed a factum only
    in relation to the costs award in the event the appellants were successful.

[4]

The appellants argue that the trial judge
    committed an extricable error of law in analyzing the question of whether the
    road was in a state of non-repair. This was the result of two related errors.
    To begin with, the appellants submit that the trial judge erred by measuring Durhams
    standard of care from the perspective of Mr. Harris rather than that of the
    ordinary reasonable driver.
Second, she compounded this
    error by adopting too low a standard for conduct that takes a driver outside of
    the scope of an ordinary reasonable driver. They argue that Mr. Harris
    negligence was not of such a magnitude to take him outside the scope of an
    ordinary reasonable driver
. Her approach, they submit, was contrary to the
    authorities, and distorted the proper analysis of the claim as set out in
Fordham
    v Dutton-Dunwich (Municipality)
, 2014 ONCA 891, 327
    O.A.C. 302, by conflating the question of the drivers manner of driving with
    the question of whether the road was in a state of non-repair.

[5]

We do not agree and dismiss the appeal for the
    following reasons.

[6]

There is no dispute that the applicable four-part
    test for establishing the statutory cause of action in negligence against a
    municipality was set out by this court in
Fordham
at para. 26:

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 plaintiffs driving caused or contributed to the plaintiffs
    injuries.

[7]

First, we do not agree that the trial judge
    conflated Mr. Harris negligence with her finding that the road was not in a
    state of non-repair such that it would have presented a hazard to an ordinary
    reasonable driver. She summarized the factors that she considered in
    determining whether the road was in such a state of non-repair that it would
    have presented a hazard to an ordinary reasonable driver at para. 483 of her
    reasons:

In considering
    whether the dip in the road constituted a state of non-repair, I consider the
    following factors: the measurements of the length and depth of the dip,
    including the expert evidence that I accept (primarily that of Mr. Bigelow in
    terms of his survey, and Mr. Malone); the photos of the dip (primarily those
    taken by Mr. Bigelow, Mr. Morden, and Mr. Harris sister); the qualitative
    evidence of witnesses about driving over the dip, in particular the civilian
    witnesses and the police drive-throughs; the absence of an accident history at
    that location; and Mr. Harris manner of driving on the evening of the
    collision, including his excessive speed, and his distraction.

[8]

The trial judge then analyzed all of the factors
    other than Mr. Harris manner of driving. This included evidence that driving
    over the dip at and over the speed limit did not create problems. She concluded,
    at para. 495 of her reasons, on the basis of those factors that the road was
    not in a state of non-repair. She stated, [t]aking these factors together, I
    find that the plaintiffs have failed to persuade me on a balance of
    probabilities that the dip in the road constituted a state of non-repair. I am
    not persuaded that the dip posed an unreasonable risk to an ordinary reasonable
    driver. There was ample evidence to support this, including the qualitative
    evidence of witnesses who live in the area and knew the dip, the agreed fact that
    there had been no prior collisions identified at this site attributable to the
    depression since 1993, police evidence of runs conducted over the dip at
    various speeds up to 120 km per hour, applicable guidelines regarding road
    depressions, as well as guidelines regarding signage for road hazards.

[9]

Only after so concluding did the trial judge
    turn to Mr. Harris driving, and how his manner of driving related to whether
    the road was in a state of non-repair such as to create a risk to the ordinary
    reasonable driver. She made a finding of fact that Mr. Harris was driving 100 km
    per hour when he began to cross the dip, and that he was distracted as he had no
    hands on the wheel, having just opened a pop bottle. He was not an ordinary
    reasonable driver.

[10]

We do not accept the premise that, because the
    trial judge considered Mr. Harris manner of driving, she conflated the
    analysis. She did not reason that, because he was driving in a manner that was
    not that of an ordinary reasonable driver, the road was not in a state of
    non-repair. She began her analysis of this issue by setting out the
Fordham
test and focusing on the question of whether the dip in the road
    constituted a state of non-repair. Having found that it was not a risk to the
    ordinary reasonable driver, she considered Mr. Harris driving, and found that
    he was not driving as an ordinary reasonable driver, which was consistent with
    her finding on the state of the road. Had she found that Mr. Harris manner of
    driving was that of the ordinary reasonable driver, and an accident had still
    occurred, she would have had to reconsider whether the road posed a hazard to
    the ordinary reasonable driver.

[11]

We see no error in taking the manner of Mr.
    Harris driving into account as a part of the trial judges consideration of
    whether the road was in a state of non-repair. Read in context, this was simply
    one factor considered.

[12]

Nor do we do agree that the trial judge erred by
    adopting too low a standard (100 km) for conduct taking a driver beyond the
    scope of an ordinary reasonable driver. The appellants argue that this finding
    was unreasonable on the basis that a significant percentage of drivers travel
    the same stretch of road at speeds exceeding 90 km an hour and that this
    effectively immunizes the municipality from liability pursuant to s. 44 of the
    Act.

[13]

The trial judge found that the ordinary
    reasonable driver would not exceed the speed of 100 km per hour on that stretch
    of road. This was a finding of fact that she reached after a careful review of
    the evidence. We see no basis for interfering with this finding.

[14]

The appeal is dismissed. Costs are payable by the appellants to the
    respondent Durham in the amount of $40,000 inclusive of HST and disbursements.

Janet Simmons J.A.

A. Harvison Young
    J.A.

B. Zarnett J.A.


