



COURT OF APPEAL FOR ONTARIO

CITATION: Chiocchio v. Hamilton (City), 2018 ONCA 762

DATE: 20180919

DOCKET: C63174

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Michael
    Chiocchio Sr. and Michael Chiocchio Jr. by his

Litigation Guardian
    Michael Chiocchio Sr.

Plaintiffs (Respondents)

and

Richard
    Ellis, Wendy Ellis and

The
    Corporation of the City of Hamilton

Defendants (
Appellant
)

Christopher I.R. Morrison and Joel Cormier, for the respondents

David Zuber and James Tausendfreund, for the appellant

Heard: June 18, 2018

On appeal from the judgment of Justice Antonio Skarica of
    the Superior Court of Justice, dated December 7, 2016, with reasons reported at
    2016 ONSC 7570, 4 M.V.R. 7th 55.

REASONS FOR DECISION

A.

introduction

[1]

Michael Chiocchio Sr. was rendered a quadriplegic following a motor
    vehicle accident that occurred on April 29, 2006, at the intersection of Brock
    Road and the 5th Concession West in a rural area of the City of Hamilton (the
    City).

[2]

The accident occurred when a westbound Buick sedan driven by Richard
    Ellis accelerated away from a stop sign on the 5th Concession West and T-boned
    the minivan northbound on Brock Road in which Mr. Chiocchio was a passenger. At
    the time of the accident, Mr. Ellis and his 10-year-old son (a backseat
    passenger in the car) were heading across Brock Road to the Flamborough
    Speedway, which was a short distance away on the 5th Concession West. Following
    the impact, the minivan rolled over and struck a pole.

[3]

Brock Road and the 5th Concession West are both two-lane roads. There
    was no stop sign governing the flow of northbound and southbound traffic on
    Brock Road. The posted speed limit on Brock Road was 80 kmph.

[4]

It is undisputed that the stop sign governing the flow of westbound
    traffic at the intersection was between 8.4 and 9.4
[1]
metres behind a faded stop line, painted in 2004, which in turn was between
    1.936 and 2.936 metres behind the easterly entrance to the intersection. (Put
    another way, the stop sign was between 10.336 and 12.336 metres from the east edge
    of Brock Road).

[5]

Counsel conceded that Mr. Ellis, the driver of the westbound vehicle,
    was negligent in entering the intersection when it was unsafe to do so.
    Although at trial Mr. Ellis claimed he stopped at a stop line, he could not
    recall where it was located and he made statements at the time of the accident
    that he stopped at the stop sign. The trial judge found that Mr. Ellis stopped
    at the stop sign, but then accelerated into the intersection without seeing the
    northbound vehicle, thus causing the collision. Mr. Ellis had no explanation
    for why he did not see the northbound vehicle.

[6]

Relying in part on expert testimony from Jason Young, a forensic
    engineer, the trial judge also found the Corporation of the City of Hamilton
    breached its duty to keep the roadway in a reasonable state of repair by
    failing to repaint a faded stop line that was no longer effective in guiding
    drivers concerning where to stop. He concluded the City was thus 50%
    responsible for the accident. On the trial judge's findings, had Mr. Ellis
    stopped at the faded stop line, which the trial judge accepted was his usual
    practice, he would have been able to see 270 metres south on Brock Road and the
    accident would never have happened.

[7]

The City raises several issues on appeal. In our view, its
    argument that, in finding non-repair, the trial judge misapplied the ordinary
    reasonable driver standard is dispositive and it is unnecessary that we address
    the remaining grounds of appeal.

B.

A municipalitys duty of repair and the ordinary reasonable driver
    standard

[8]

Section 44 of the
Municipal Act
, S.O. 2001, c. 25, requires a
    municipality to keep highways under its jurisdiction in a state of repair that
    is reasonable in the circumstances, including the character and location of the
    highway.
[2]


[9]

In

Fordham v. Dutton-Dunwich (Municipality)
, 2014 ONCA
    891, 70 M.V.R. 6, at paras. 28-29, Laskin J.A. described the ordinary
    reasonable driver standard, the standard of care which governs a municipalitys
    duty of highway repair. As described by Laskin J.A., a municipality is required
    to prevent or remedy conditions on its roads that create an unreasonable risk
    of harm for ordinary drivers exercising reasonable care. Ordinary reasonable
    drivers are not perfect; they make mistakes. However, a municipality's duty
    does not extend to remedying conditions that pose a risk of harm only because
    of negligent driving.

C.

relevant provisions of the highway traffic act

[10]

The
    obligations of a driver approaching a stop sign are delineated by the
Highway
    Traffic Act
, R.S.O. 1990, c H.8 (HTA). Under s. 136(1) of the HTA, where
    there is no stop line or crosswalk, a driver who approaches a stop sign at an
    intersection is required to stop her vehicle immediately before entering the
    intersection. Under s. 136(1)(b), a driver who approaches a stop sign at an
    intersection shall yield the right of way to traffic in the intersection or
    approaching the intersection on another highway so closely that to proceed
    would constitute an immediate hazard.

D.

the trial judges reasons

[11]

In
    his analysis of the non-repair issue, the trial judge recited the reasonable
    driver standard and acknowledged that an ordinary driver exercising reasonable
    care would be aware of s. 136 of the HTA.

[12]

However,
    based on certain evidence from Mr. Young, he concluded that, on the facts of
    this case, the safe zone (the green zone) for proceeding into the
    intersection could be anywhere from six to eight metres from the roadway. A driver
    stopped possibly as close as 7 metres from the edge of the roadway, but
    certainly 8.5 metres or more, would be in a danger zone (the red zone) and
    not have an adequate sight line. According to the trial judge, absent a proper
    stop line, a reasonable driver would not know how to judge where to stop:

Put simply, a person stopped eight
    metres back would be in the safe green zone but a person stopped 8.5 metres
    back would be in the dangerous red zone. How would an ordinary driver using reasonable
    care know how to make this judgment?

[13]

After
    noting that the faded stop line was no longer effective, in contravention of
    the guidelines set out in the Ontario Traffic Manual, and deprived drivers of
    an important guide as to where to stop, the trial judge re-iterated this point
    at para. 222 of his judgment:

Without a stop line, drivers had
    to exercise their judgment as to where to stop safely. An ordinary reasonable
    driver stopping eight metres back from the intersection was in the green zone
    of safety and could proceed into the intersection safely; the same ordinary
    reasonable driver stopping 8.5 metres back from the intersection was in the red
    zone of dangerousness and could not proceed into the intersection safely.

[14]

Based
    on the evidence of Mr. Young, the trial judge also noted that the Ontario
    Traffic Manual did not provide clear guidance on where drivers should stop in
    the absence of a stop line or crosswalk (the manual Mr. Young was actually
    referring to was the Ministry of Transportation Drivers Handbook). The text of
    the Manual states that the driver is to stop at the edge of the intersection
    while the accompanying diagram shows drivers stopped at stop signs just back
    from the intersection.

[15]

The
    trial judge therefore concluded that the City was negligent in failing to paint
    and maintain the stop line.

E.

discussion

[16]

The
    City argues that the trial judge erred in applying the ordinary reasonable
    driver standard.  The City contends that although the trial judge recognized
    that an ordinary reasonable driver would be aware of s. 136 of the HTA, he
    proceeded with his analysis on the erroneous premise that an ordinary
    reasonable driver would not comply with that section.

[17]

We
    do not accept this argument. As set out in
Fordham
, the ordinary reasonable
    driver standard is that of ordinary drivers exercising reasonable care who nevertheless
    sometimes make mistakes.

[18]

Nonetheless,
    in our view, the trial judge erred in applying the ordinary reasonable driver
    standard. Mr. Youngs red zone and green zone evidence was focused on
    sightlines for the intersection for northbound traffic. However, the question in
    this case was not whether an ordinary reasonable driver could be expected to
    know the exact length of the safe stopping distance in relation to northbound
    traffic (i.e., that if they stopped eight meters back from the intersection they
    would have adequate sightlines for northbound, traffic but if they stopped 8.5
    meters back they would not). Rather, the question was whether, in the absence
    of a stop line, the intersection posed an unreasonable risk of harm for
    ordinary drivers exercising reasonable care who sometimes make mistakes.

[19]

In
    our view, the trial judge erred by ignoring the fact that although drivers
    stopped at (or near) the stop sign would have had a 150-metre view of
    northbound traffic, their view of southbound traffic would be completely
    obscured by a house at the northeast corner of the intersection. The only clear
    evidence concerning southbound traffic was that, at the stop sign (where the
    trial judge found Mr. Ellis stopped), the sightline for southbound traffic was
    totally obscured by a house at the northeast corner of the intersection 
    whereas, at the faded stop line, the southbound sightline was completely clear.
    There was no evidence at trial concerning what, if any, sightline of southbound
    traffic was available at, for example, the northeastern corner of the green
    zone. Ordinary reasonable drivers would not stop their cars in a location where
    their view of oncoming traffic from one direction would be completely obscured and
    then proceed into the intersection without stopping again. They would know to come
    closer to the intersection before stopping initially or before stopping again,
    in order to have a clear view of traffic from both directions.

[20]

In
Kennerley v. Norfolk (County)
(2005), 16 M.P.L.R. (4th)
    286
(Ont. S.C.), Killeen J. held, at para. 14, that it was an act
    of folly for a driver to stop 11.4 meters before an intersection without a
    stop line and proceed into that intersection without looking again.

[21]

Similarly,
    there can be no doubt that drivers who stop in a position where their view of
    one line of oncoming traffic is completely obscured  and do not stop again
    before entering the intersection  fall well below the standard of an ordinary reasonable
    driver and are negligent. They are not simply drivers exercising reasonable
    care who have made a mistake.

[22]

The
    only clear evidence in this case was that to gain a clear sightline of
    southbound traffic, drivers had to pull up to the vicinity of the faded stop
    line.

[23]

Contrary
    to the reasoning of the trial judge, the obligation of reasonable drivers was
    not to determine whether they should stop 8 or 8.5 meters back from the intersection,
    so they would have an adequate sightline of northbound traffic. Rather  and
    particularly considered in the context of the obligation under s. 136 of the
    HTA to stop
immediately
before entering the intersection  it was to
    stop at a point close enough to the intersection so they would at least have
    sightlines in both directions. Drivers who fail to comply with the rules of the
    road established under the HTA and who also act in a manner that is contrary to
    common sense cannot meet the ordinary reasonable driver standard. The trial
    judge erred in failing to recognize that and in failing to recognize that the
    evidence in this case did not fully address the sightlines for southbound
    traffic  a necessary component to applying the ordinary reasonable driver
    standard on the facts of this case.

[24]

The
    evidence before the trial judge did not support the conclusion that the
    intersection at issue posed an unreasonable risk of harm to ordinary reasonable
    drivers. As we have said, even if they did not stop immediately before entering
    the intersections as required by the HTA, such drivers would bring their
    vehicles to a stop, or stop again, within a zone in which they had sightlines
    in both directions.

[25]

At
    the conclusion of the appeal hearing, counsel informed us that a case involving
    an ostensibly similar non-repair issue, Smith v. Safranyos, 2018 ONCA 760,
    had recently been heard by this court. No request to have the cases heard
    together had been made. The panels have now independently rejected the Citys
    argument that a city could not be liable for non-repair for failing to paint or
    maintain a stop line where a driver failed to comply with s. 136 of the HTA.
    The decisions in these cases are otherwise dependent on the unique facts of
    each case and the findings in the courts below.

[26]

In
    the circumstances, the appeal is allowed, the trial judge's finding that the
    City failed to keep the roadway in a reasonable state of repair is set aside
    and the action as against the City is dismissed. Costs of the appeal are to the
    appellant in the amount of $15,000.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.


Appendix A

Municipal Act
, S.O. 2001, c. 25

Maintenance

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.  2001, c. 25, s. 44 (1).

Liability

(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. 
    2001, c. 25, s. 44 (2).

Defence

(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.  2001, c. 25, s. 44 (3)

Regulations

(4)
The Minister of Transportation
    may make regulations establishing minimum standards of repair for highways and
    bridges or any class of them.  2001, c. 25, s. 44 (4).

General
    or specific

(5)
The minimum
    standards may be general or specific in their application.  2001, c. 25,
    s. 44 (5).

Adoption
    by reference

(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. 
    2001, c. 25, s. 44 (6).

(7)
Repealed: 
    2002, c. 24, Sched. B,
s. 25
.

Untravelled
    portions of highway

(8)
No action shall
    be brought against a municipality for damages caused by,

(a) the presence,
    absence or insufficiency of any wall, fence, rail or barrier along or on any
    highway; or

(b) any construction,
    obstruction or erection, or any siting or arrangement of any earth, rock, tree
    or other material or object adjacent to or on any untravelled portion of a
    highway, whether or not an obstruction is created due to the construction, siting
    or arrangement.  2001, c. 25, s. 44 (8).

Sidewalks

(9)
Except in case of
    gross negligence, a municipality is not liable for a personal injury caused by
    snow or ice on a sidewalk.  2001, c. 25, s. 44 (9).

Notice

(10)
No action shall
    be brought for the recovery of damages under subsection (2) unless, within 10
    days after the occurrence of the injury, written notice of the claim and of the
    injury complained of, including the date, time and location of the occurrence,
    has been served upon or sent by registered mail to,

(a) the clerk of the
    municipality; or

(b) if the claim is
    against two or more municipalities jointly responsible for the repair of the
    highway or bridge, the clerk of each of the municipalities.  2001, c. 25,
    s. 44 (10); 2017, c. 10, Sched. 1,
s. 4
.

Exception

(11)
Failure to give
    notice is not a bar to the action in the case of the death of the injured
    person as a result of the injury.  2001, c. 25, s. 44 (11).

Highway Traffic Act
, R.S.O. 1990, c H.8

136
(1)
Every driver or street car operator approaching a
    stop sign at an intersection,

(a) shall stop his or
    her vehicle or street car at a marked stop line or, if none, then immediately
    before entering the nearest crosswalk or, if none, then immediately before
    entering the intersection; and

(b) shall yield the
    right of way to traffic in the intersection or approaching the intersection on
    another highway so closely that to proceed would constitute an immediate hazard
    and, having so yielded the right of way, may proceed.





[1]
This range was the result of differing measurements by different experts. Jason
    Young, the expert called by the plaintiffs to give opinion evidence concerning
    human factors and road design factors that play a role in collisions, testified
    that he measured the distance between the faded stop and a new stop line by
    photographic analysis as being between two to three metres. Another expert
    measured the same distance as four metres, which Mr. Young considered
    reasonable.



[2]
The full text of all relevant statutory provisions is reproduced in Appendix
    A of these reasons.


