



COURT OF APPEAL FOR ONTARIO

CITATION:
Greenhalgh v. Douro-Dummer
    (Township), 2012 ONCA 299

DATE: 20120508

DOCKET: C51534

Blair, Lang and Hoy JJ.A.

BETWEEN

Jessica Darlene  Greenhalgh, Gary Greenhalgh, Eileen Greenhalgh
, and Robyn LaDuke, Lee LaDuke, Diane LaDuke and Aaron LaDuke

Plaintiffs (Appellants)

and

The Corporation for  the Township of Douro-Dummer
and Henry Weidner

Defendants (Respondent)

Paul J. Pape and Nicolas M. Rouleau, for the appellants

David G. Boghosian, Sachin Persaud, Avril Allen and Shaneka Taylor, for the respondent

Heard and released orally: April 27, 2012

On appeal from the judgment of Justice Peter Lauwers of
    the Superior Court of Justice, dated December 17, 2009.

ENDORSEMENT

[1]

Jessica Greenhalgh and her parents, Gary Greenhalgh and Eileen Greenhalgh,
    appeal from the judgment of Lauwers J. of December 17, 2009, which dismissed
    the appellants claims for damages arising from the events that befell the
    appellant, Jessica Greenhalgh, on January 14, 2000.

[2]

On that evening, Ms. Greenhalgh, then 18, and her friend, Robyn LaDuke,
    then 20, went on what the trial judge referred as a form of back road tour by
    car, in the rural area in which they lived, in minus 20 degree weather.  They
    frequently went on those back road adventures.  They headed down Rusaw Lane, a
    little used public road, which dead-ends after 1.4 km at a wide, turnaround
    area.  They had been on Rusaw Lane before. Indeed, on a prior back-road
    adventure, Ms.Greenhalgh, Ms. LaDuke and two of their friends, went all the
    way down Rusaw [Lane] and ended up gettin stuck on a boulder on one of the pathways
    running off of the turnaround.

[3]

On the evening of January 14, 2000, Ms. Greenhalgh and Ms. LaDuke proceeded
    along a narrow, lane running off the turnaround area.  They made a sharp right
    turn onto another laneway known as Weidner Lane.  Ultimately, their car became
    stuck on a hydro right-of-way which they accessed from Weidner Lane.

[4]

Sometime later, they abandoned the car and set off by foot, leaving
    empty alcohol bottles behind. Ms. Greenhalgh wore no coat, mittens or hat. 
    There were blankets and other warm clothing in the car. She lost her unlaced boots
    and proceeded bare foot. By the time that they were discovered the next
    morning, Ms. Greenhalgh and Ms. LaDuke had suffered severe injuries from
    frostbite.  Ms. Greenhalgh eventually lost both legs at mid-calf and parts of
    four fingers on each hand.

[5]

The respondent Township had jurisdiction over Rusaw Lane and was under a
    statutory duty of care to keep it in a reasonable state of repair.  Signage is
    an element of repair.

[6]

The appellants argue that the trial judge made three errors in
    dismissing their claims.

(i)      First, he
    erred in  concluding that the Townships failure to post No Exit signs at the
    entry to Rusaw Lane and a checkerboard sign, signifying that Rusaw Lane
    ended, at the turnaround point did not breach the standard of care;

(ii)      Second,
    he erred in finding that, in any event, the failure to post these signs did not
    cause the injuries sustained by Ms. Greenhalgh; and

(iii)     Third, he
    erred in his application of the discount rate in the calculation of damages he
    undertook in the event he was found to have erred in finding that the Township
    had no liability to the appellants.

[7]

In our view, the appeal fails on the issues of the breach of standard of
    care and causation.

[8]

The trial judge conducted a thorough and rigorous review of the
    evidence.  He made a clear finding that there were no conditions upon or
    adjacent to the highway that are potentially dangerous to the road users at
    the end of, or immediately beyond the end, of Rusaw Lane that would not have
    been apparent to a reasonable driver (whether or not experienced) and
    accordingly required an advance warning.

[9]

There was ample evidence on the record to support this finding and we
    see no palpable or overriding error on the part of the trial judge in arriving
    at it.  The turnaround was obviously designed to permit a driver to turn around
    at the roads end with ease. The appellants own expert noted the sharp turn
    that Ms. Greenhalgh and Ms. LaDuke had to make to access Weidner Lane, and the
    changes in the roads surface. The narrow, bumpy, single-lane laneway that Ms.
    Greenhalgh and Ms. LaDuke proceeded down clearly differed from the
    well-maintained, two-lane Rusaw Lane.

[10]

The
    trial judge also made a clear finding that Ms. Greenhalgh and Ms. LaDuke would
    have paid no heed to No Exit signs posted at the intersection of Rusaw Lane
    and County Road 40 or to a checkerboard sign at the end of Rusaw Lane.  They
    would have continued on their adventure in any event.  Again, there was ample
    evidence on the record to support this inference, which underpins the trial
    judges conclusion on the causation issue.  There was no palpable and
    overriding error.

[11]

In
    the result, the appeal must be dismissed.  Given the foregoing, it is not
    necessary for us to address the third issue of the discount rate raised by the
    appellants.

[12]

The
    respondent Township shall be entitled to its costs of the appeal fixed in the
    total amount of $40,000, inclusive of disbursements and taxes, payable as to
    $38,750 by the appellant, Jessica Greenhalgh, and as to $1,250, jointly and
    severely, by the appellants Gary and Eileen Greenhalgh.

R.A. Blair J.A.

S.E. Lang J.A.

Alexandra Hoy
    J.A.


