



COURT OF APPEAL FOR ONTARIO

CITATION: Belanger v. Sudbury (Regional Municipality), 2017
    ONCA 428

DATE: 20170526

DOCKET: C61442

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Lisa Marie Belanger, Craig Belanger,
Christine Belanger, Lori Belanger,
Aime
  Belanger, Gail Kennedy and John Laughlin

Respondents (Plaintiffs)

and

The
    Regional Municipality of Sudbury and The City
    of Greater Sudbury

Appellants (Defendants)

C. Kirk Boggs and David Litwin, for the appellant, The
    Regional Municipality of Sudbury

Paul J. Pape, Shantona Chaudhury, Jerome Morse and
    Joanna L. Nairn, for the respondents

Heard: May 10, 2017

On appeal from the judgment of Regional Senior Justice R.D.
    Gordon of the Superior Court of Justice, dated November 17, 2015, with reasons
    reported at 2015 ONSC 7071.

Cronk J.A.:

Introduction

[1]

This is a tragic case.  It involves whether a municipality complied with
    its statutory obligation to keep one of its roads in a reasonable state of
    repair.

[2]

On November 22, 2000, at approximately 11:15 a.m., then 20-year-old Lisa
    Marie Belanger was involved in a serious motor vehicle accident during a winter
    storm while she was driving southbound on Regional Road 35 (RR35), a two-lane
    Class 1 road, in the Regional Municipality of Sudbury (the Region).  Ms.
    Belangers car crossed the centre line of the highway and collided with an
    oncoming school bus.  She sustained catastrophic personal injuries in the
    collision from which she will suffer for the remainder of her life.

[3]

After the accident, the respondents, Ms. Belanger and her family members,
    sued the appellant Region and also the City of Greater Sudbury in negligence,
    claiming that they had failed to meet their obligations under s. 284(1) of the
Municipal
    Act
, R.S.O. 1990, c. M.45 (the Act), as then in force, to keep RR35 in a
    reasonable state of repair.

[4]

At trial, only liability was in issue.  The parties agreed that the
    appropriate quantum of damages was approximately $12 million.

[5]

The trial judge ruled in favour of the respondents, holding that the
    Region was 100% liable for the damages claimed.  He found that RR35 was snow
    covered and slippery at the time and location of the accident and that these
    conditions constituted a state of non-repair within the meaning of s. 284(1). 
    He also held that, but for these conditions, the accident would not have
    occurred and Ms. Belanger would not have sustained injury.

[6]

On the trial judges findings, RR35 was salted by one of the Regions road
    maintenance employees at about 7:15 a.m. on the day of the accident.  Both
    lanes of the road were also twice plowed about three hours later, sometime
    between 10:15 and 11:15 a.m.  However, by the time of this plowing, the 7:15
    a.m. salting had lost its effectiveness due to dilution caused by falling snow
    and a refreeze of the road had occurred.  As a result of the refreeze, the snow
    had already bonded to the asphalt of the road, rendering the plowing ineffective
    in clearing the road to bare pavement.  The southbound lane of RR35, in which
    Ms. Belanger was travelling, was only re-salted shortly after the accident,
    more than four hours after the initial 7:15 a.m. salting.

[7]

Before this court, the Region does not contest the trial judges
    threshold finding that RR35 was in a state of non-repair at the time of the
    accident, in particular, his finding that a refreeze of RR35 occurred, as
    described above.   Instead, it relies on the statutory defences to negligence
    set out in ss. 284(1.2) and 284(1.3) of the Act to avoid liability for the
    damages claimed.  At the time of the accident, those sections provided that a
    municipality was not liable for failing to keep a highway or bridge in a
    reasonable state of repair: i) if it did not know and could not reasonably
    have been expected to know about the state of repair of the highway or bridge
    (s. 284(1.2)); or ii) if it took reasonable steps to prevent the default from
    arising (s. 284(1.3)).

[8]

Relying on these statutory defences, the Region appeals from the trial
    judges liability findings.  It maintains that both defences were established
    at trial and the trial judge erred in holding to the contrary.  The Region also
    argues that the trial judge erred in his apportionment of liability by failing
    to find that Ms. Belanger was contributorily negligent in the circumstances.

Issues

[9]

The issues on appeal may be framed as follows:

(1)

Did
    the trial judge err in his treatment of the statutory defences in ss. 284(1.2)
    and 284(1.3) of the Act?

(2)

Did
    the trial judge err in his treatment of the Regions contributory negligence
    claim?

Discussion

[10]

In several recent cases, this court has considered the duty of a
    municipality regarding road maintenance and the statutory defences to a claim
    in negligence against a municipality based on its alleged non-repair of a road,
    including in winter storm conditions: see for example:
Lloyd v. Bush
,
    2017 ONCA 252;
Fordham v. Dutton-Dunwich (Municipality)
, 2014 ONCA
    891, 327 O.A.C. 302;
Frank v. Central Elgin (Municipality)
, 2010 ONCA
    574, O.J. No. 3736.  These cases confirm that proof of a state of non-repair,
    as in this case, is not in itself sufficient to establish a municipalitys
    liability for the alleged failure to meet its duty of road maintenance.  The
Lloyd
court explained, at para. 64:

Rather, a municipality will only be liable for failing to salt
    and/or sand and clear the road of snow where it had actual or constructive
    knowledge that road conditions created an unreasonable risk of harm to users of
    the highway, and where the municipality unreasonably neglected that risk. [Citations
    omitted.]

[11]

With this principle at the forefront, I turn to the Regions core submission
    that the trial judges liability findings are unsustainable.

(1)

Section 284(1.2) Statutory Defence

[12]

The trial judge held, at para. 105, that the Region:

[F]ailed to meet its maintenance quality standards when [RR35],
    in a winter storm event, was left without maintenance activity for over three
    hours.
That lack of maintenance activity resulted in
    snow-packed and slippery road conditions.  That those conditions could result
    ought to have been known by the employees of the [Region]
.  [Emphasis
    added.]

[13]

The Region attacks these key findings on several grounds.  It submits
    that the Region could not be held to reasonably have known about the risk of a refreeze
    at the site of the accident because: i) the accident location was not a hot
    spot, that is, the Region had no knowledge of any problems at this location in
    the past or on the day of the accident; ii) the accident site was also not a
    refreeze magnet, in the sense of presenting as being at any particular risk
    of a refreeze; iii) none of the Regions involved employees had any experience
    with a refreeze in the conditions that existed on the day of the accident; iv)
    the Regions road maintenance quality standards, which were not met in this
    case, are not determinative of the standard of care; and v) the trial judge
    made no finding that the Region could reasonably have known about the risk of a
    refreeze based on the maintenance activities it undertook on the day in
    question.

[14]

In my view, these submissions do not undercut the trial judges impugned
    finding that the s. 284(1.2) defence was not made out in this case.  As I will elaborate,
    it is my opinion that the trial judges factual findings, to which deference is
    owed by this court absent a showing of palpable and overriding error,
    essentially are dispositive of this ground of appeal.

[15]

Based on the evidence at trial that the trial judge accepted, he made
    the following critical findings:

A.    Regions Standards and Recommended
    Procedures

(1)

the
    Regions road maintenance quality standards for winter plowing, sanding and
    salting provided that, for Class 1 roads like RR35, coverage (either plowing
    or spreading) intervals shall not be greater than every
2
    hours
throughout the storm (emphasis in original) and Class 1 and 2
    roads were to have 
First Priority
 (emphasis in
    original);

(2)

the
    Ministry of Transportations coverage guidelines for Class 1 roads, as then in
    force, were substantially to the same effect;

(3)

the
    Regions recommended procedures for the salting of roads, streets and lanes stated
    in part:



2.  Spread salt before snow accumulates so that a brine
    sandwich develops.  This will prevent snow from sticking to the pavement,
    removal will be easier and bare pavement will result.

3.  Cover route as often as possible, but not before the
    first application has a chance to work (usually 1 hour); and

(4) the
    Regions winter road maintenance quality standards and recommended salting
    procedures were not met in this case.

B. 
    Weather Conditions

(5)   initially, before 7:00 a.m. on the morning of the accident, the
    weather forecast called for only light snow (0.5 cm); however, at 8:17 a.m. the
    forecast changed to anticipate heavier snow;

(6)   November
    22, 2000 was a bitterly cold day. At the time

of

the

accident,

the

temperature was about -11.6  Celsius,
    with heavy wind blowing from the north at approximately 25 kilometres per hour;
    and

(7)   the
    amount of precipitation increased throughout the morning.  Before 7:00 a.m.,
    only 0.5 cms of snow fell; however, between 8:00 a.m. and 11:00 a.m., the total
    snow accumulation was approximately 5 cms.

C.  Road Conditions

(8)   at the
    time of the accident, RR35 was in a treacherous, snow-packed and slippery
    condition.

[16]

As I have said, the trial judge also addressed the road maintenance
    activities carried out by the Region on RR35 on the morning of the accident. 
    To repeat, he found that:

(1)

the
    relevant stretch of road on RR35 was salted by a Region employee at 7:15 a.m.
    on the day of the accident;

(2)

due
    to a series of unanticipated equipment failures, the road was not serviced
    again until between 10:15 a.m. and 11:15 a.m., when a Region employee twice plowed
    both the north and southbound lanes of RR35.  Plowing occurred in the
    southbound lane not later than 10:45 a.m.; and

(3)

re-salting
    of the bridge on the southbound lane of RR35, where the accident occurred, was
    not undertaken until shortly after 11:15 a.m., by which time the accident had
    already taken place.

[17]

The trial judges findings regarding the Regions RR35 road maintenance
    activities are amply supported by the record and are not contested.  They
    establish that from 7:15 a.m. to approximately 10:15 a.m.  a period of three
    hours  the Region failed to carry out any maintenance works on RR35,
    notwithstanding that snow continued to fall and it remained windy and bitterly
    cold.  Moreover, re-salting of the southbound lane of the road did not take
    place at any point prior to the accident.

[18]

The Region emphasizes that plowing of RR35 did occur between 10:15 a.m.
    and 11:15 a.m. (including, in the southbound lane, by no later than 10:45 a.m.)
    and that the trial judge found that, allowing for the time required to prepare
    the plow for use and for it to arrive at the starting point of its assigned
    route, the timing of the plowing was reasonable.

[19]

This is accurate.  However, the trial judge also accepted the evidence
    of the respondents winter road maintenance expert, Russell Brownlee, that the
    road surface and weather conditions after the application of salt on RR35 at
    7:15 a.m. were consistent with the risk of a refreeze and an accumulation and packing
    of snow on the road.

[20]

Mr. Brownlee further testified that the concept of a refreeze was well
    known in the winter maintenance industry, a fact that the Region did not
    contest at trial and does not contest now.  He gave the following evidence
    regarding the risk of a refreeze on RR35 in the conditions that existed on
    November 22, 2000:

The road temperatures experienced on November 22nd in the
    morning under cloudy skies or overcast skies would reduce the effectiveness of
    road salt on this particular day.  The reported wind speeds did have the
    potential to cause drifting snow, which would create an additional challenge,
    and these two things in combination with, along with the snow, the anticipated
    snowfall accumulation would make it a challenge to prevent a refreeze of the
    salt and snow brine on the roadway in, in, in [
sic
] combination with
    these things.

[21]

Mr. Brownlee also outlined the preventative steps necessary to avoid a
    refreeze.  He said that this required consistent and sequenced plowing and
    salting of a roadway.  Specifically, he testified that plowing should follow
    the salting of a road within half an hour to an hour, to clear the salt and
    melting snow from the road.  Salt should then be reapplied, and the
    salting/plowing sequence should continue until the snowfall stops and bare
    pavement conditions have been achieved.

[22]

According to Mr. Brownlee, in light of the prevailing weather and road
    conditions on the morning of the accident, this plowing and salting sequence on
    RR35 needed to be returned in a cycle that was continuous and consistent to
    reduce the likelihood of the road, the, the [
sic
] snow thats falling
    to pack on the roadway, to bond to the surface of the roadway, and for the
    roadway to, surface to refreeze.  He offered the opinion that, in this case:
    i) the Regions road maintenance operations were not properly staged to plow
    off the falling or blowing snow that was on the road surface in conjunction
    with the [timing of the original salt application]; ii) the mixture of the
    prevailing road temperatures, wind speed and snowfall on November 22, 2000
    would [have made] it a challenge to prevent a refreeze of the salt and snow
    brine on the roadway; and iii) the Region didnt get there in time and the
    salt was overwhelmed by the snowfall.

[23]

As I have indicated, the trial judge accepted Mr. Brownlees evidence on
    this critical issue.  He found, at paras. 50 and 57 of his reasons, that Mr.
    Brownlees explanation of a refreeze on RR35 best reflects what is likely to
    have happened on November 22, 2000 and why, notwithstanding the plowing that
    took place in the hour before the accident, the road remained snow covered and
    slippery.

[24]

The trial judge concluded that the Region ought to have known of the
    risk of a refreeze on RR35 and of the fact that the failure to meet its road
    maintenance quality standards for RR35 could lead to a state of non-repair.

[25]

The Region takes aim, especially, at the trial judges treatment of the
    evidence of the Regions maintenance employees who testified that they had never
    experienced a refreeze in winter conditions equivalent to those that applied to
    RR35 on the morning of the accident.  The Region argues that, based on this
    evidence, the Regions employees could not be held to have known or be expected
    to have known of the potential for a refreeze on RR35 in the conditions that
    existed on the day of the accident.

[26]

The trial judge dealt expressly with this argument.  He stated, at para.
    101:

I have difficulty with the position of the Defendant on this
    point for three reasons.  First, a close examination of the evidence of those
    three foremen indicates that although they had not experienced a refreeze in
    similar winter conditions they had not been posed the question in the context
    of their having been no further winter maintenance on the road for over three
    and [a] half hours.  Secondly, the employees of the Defendant knew the
    maintenance standards and knew the standards were designed to prevent a
    situation of non-repair.  They should have easily been able to adduce [
sic
]
    that failure to meet those standards could result in non-repair even if they
    did not appreciate the precise reason.  Thirdly, the evidence of Mr. Brownlee,
    the Plaintiffs expert, was that the refreeze principle is well known in the
    winter road maintenance industry.

[27]

The Region contends that this reasoning reflects errors of both fact and
    law and furnishes no basis for fixing the Region with actual or constructive
    knowledge of the risk of a refreeze on that part of RR35 where the accident
    occurred.

[28]

I disagree for several reasons.

[29]

First, the trial judge was entitled to accept Mr. Brownlees expert evidence
    notwithstanding the evidence of the Regions employees, and to conclude, as he
    did, that the Regions employees ought to have known of the risk of a refreeze
    on RR35 due to the snow-packed, slippery and salt and snow brine conditions on
    the road.  It is undisputed that the risk of road refreezes during winter storm
    events is well known in the road maintenance industry.  The Region, through its
    employees, therefore must be taken to have known of this risk, a proposition
    that the Region does not generally dispute.  Representatives of the Region
    certainly knew that RR35 had not been re-salted and they knew of the prevailing
    weather and road conditions during the morning of the accident, which, in
    combination, could trigger a refreeze if proper and timely maintenance works
    were not carried out.  Yet, contrary to the Regions standards and procedures,
    no re-salting of RR35 was undertaken within the two hours following the first
    salting at 7:15 a.m.

[30]

Recall, in this regard, that the Regions standards and procedures
    contemplated maintenance works in circumstances that could trigger a refreeze. 
    They provided: i) for the spreading of salt before snow accumulated in order to
    prevent snow from sticking to the pavement and to facilitate snow removal; ii)
    the intervals between road maintenance activities (plowing or spreading) during
    a winter storm were to be no greater than every two hours; iii) Class 1 roads
    were to be assigned maintenance priority; and iv) roads were to be covered by
    maintenance activities as often as possible during a snow event.

[31]

In the case of RR35, these standards and procedures were not followed. 
    As set out above, Mr. Brownlee testified that, in the prevailing conditions, a
    refreeze of RR35 was not only possible, but it would be a challenge to
    prevent it.

[32]

In these circumstances, I agree with the respondents submission that the
    fact that the Regions employees had never experienced a refreeze in the past
    in the type of conditions that existed on the morning of the accident does not
    mean that they should have been unaware of the risk of a refreeze in similar
    conditions.  It was open to the trial judge, on the evidence, to find that they
    reasonably ought to have known of this risk.

[33]

Second, the Region submits that the trial judge erred by treating a
    breach of the Regions standards and procedures, as occurred here, as
    tantamount to a breach of the standard of care applicable to the Regions
    statutory duty to keep RR35 in a reasonable state of repair.

[34]

I do not read the trial judges reasons in the manner urged by the
    Region.  The knowledge of the Regions employees that the applicable standards
    and procedures were designed to prevent the occurrence of a state of highway
    non-repair, and that they had not been met on the day in question, was only one
    factor considered by the trial judge in concluding that the Regions employees
    reasonably ought to have known of the risk of a refreeze on RR35.

[35]

The fact of non-compliance with the Regions applicable winter road standards
    and procedures was a relevant and necessary consideration.  And the trial judge
    did not indicate that the Regions failure to comply with these standards and
    procedures established a breach of the standard of care.  Rather, his finding
    that the Regions employees ought to have known of the risk of a refreeze on
    RR35 was based on the particular facts and circumstances of this case,
    including the Regions failure to adhere to its own standards and procedures,
    Mr. Brownlees evidence about the well-known phenomenon of refreeze and the
    steps necessary to prevent it, and the weather and road conditions on the day
    of the accident.

[36]

At the end of the day, the trial judge held that the Regions employees
    reasonably ought to have been expected to know of the emergence of conditions
    on RR35 giving rise to the risk of a refreeze, conditions that were caused by
    the Regions failure to employ the plowing and salting sequence of preventative
    maintenance works outlined by Mr. Brownlee and contemplated by the Regions own
    standards and procedures.  In my view, this holding is unassailable.  It is
    fatal to the Regions s. 284(1.2) defence.

(2)

Section 284(1.3) Statutory Defence

[37]

Relying on this courts decision in
Lloyd
, the Region argues that
    the trial judge erred in his consideration of its s. 284(1.3) reasonable
    steps defence by failing to consider the reasonableness of the maintenance
    steps actually undertaken by the Region on RR35 on the morning of the accident,
    instead focusing on the steps that the Region could have taken in the
    circumstances.  The Region says that the trial judge, like the trial judge in
Lloyd
,
    impermissibly concentrated his reasonableness analysis on the results of the
    Regions efforts, rather than evaluating whether the Region had acted
    reasonably in all the circumstances.

[38]

I would reject this argument.

[39]

As in this case,
Lloyd
involved a statutory reasonable steps
    defence advanced by a municipality in relation to its road maintenance work
    during a winter snow event.  The
Lloyd
court held that the trial judge
    in that case, when evaluating the municipalitys statutory defence, erred by
    focusing on whether the existing state of roadway non-repair had been corrected
    by the municipality, rather than on the reasonableness of the steps that were actually
    taken by the municipality.
Lloyd
holds that what the trial judge
    should have done was to focus on the evidence about the municipalitys response
    to the relevant snow event.  However, the trial judges reasons in
Lloyd
contained no clear findings as to what the municipality had done, and virtually
    no analysis or discussion of the reasonableness of its response in light of all
    the relevant circumstances:
Lloyd
, at paras. 79, 85 and 86.  On this
    ground, among others, this court concluded that the trial judges rejection in
Lloyd
of the municipalitys statutory defence could not stand.

[40]

That is not this case.  Here, in my view, the trial judges reasons
    clearly indicate that he appreciated the requirement that he assess the
    reasonableness of the road maintenance works actually performed by the Region
    on the day in question and that he undertook this analysis.

[41]

Unlike the trial judge in
Lloyd
, the trial judge made specific
    findings about the nature and timing of the Regions road maintenance
    activities on RR35 and elsewhere in the Region on the day of the accident.  I
    have described his findings concerning RR35 earlier in these reasons.

[42]

The trial judge also identified the arguments advanced by the
    respondents in support of their assertion that the steps taken by the Region to
    maintain RR35 were unreasonable.  He addressed each of those arguments in turn,
    and the Regions responses to them, in his reasons.

[43]

The trial judge was entitled to structure his reasonableness analysis
    under s. 284(1.3) to respond to the case run at trial, including the arguments
    advanced by the parties.  His reasons confirm, contrary to the Regions
    submission, that he did undertake the requisite analysis whether the steps
    actually taken by the Region were reasonable in all the circumstances.  Having
    listed the maintenance works that he found the Region had undertaken on RR35,
    the respondents arguments on the reasonableness of those works in the
    circumstances, and the Regions responses, the trial judge devoted 36
    paragraphs of his reasons to the question whether the Regions efforts were
    reasonable.

[44]

In so doing, the trial judge addressed: i) the amount of loose snow
    accumulation on RR35; ii) whether the Regions road maintenance work crews
    failed to meet the two-hour return time for maintenance on RR35 contemplated
    under the Regions road maintenance quality standards; iii) whether the
    Regions efforts to meet the two hour return period by the [salt] spreader [were]
    reasonable; iv) the availability and use by the Region of spare equipment; v)
    whether there was a failure to communicate by the Regions employees, as the
    respondents alleged; and vi) whether the Region had failed to adequately patrol
    its roads on the day of the accident.  The trial judge made specific factual
    findings in respect of each of these issues, some favouring the Region and
    others favouring the respondents.

[45]

In view of this analysis by the trial judge, I do not think this case
    mirrors
Lloyd
in the manner asserted by the Region.  That the trial
    judge in this case might have structured his reasons in another fashion, or
    made different factual findings more helpful to the Region, is irrelevant.  It
    is not the function of this court to re-try the case or, absent reversible
    error, to second-guess the trial judges factual findings.  The important point
    is whether the trial judge considered, as he was obliged to do, the
    reasonableness of the maintenance works in fact carried out by the Region on RR35. 
    In my opinion, his reasons demonstrate that he did so.

[46]

I find further support for this conclusion in the trial judges
    reference, at para. 17, to this courts decision in
Frank
.  The trial
    judge quoted from para. 7 of that decision, in which the
Frank
court
    confirmed that s. 284 of the Act does not impose on a municipality a duty to
    repair every adverse road condition and that municipalities ought not to be
    turned into insurers of the safety of the driving public by imposing overly
    onerous maintenance obligations.  The trial judge thus appreciated that the
    operative standard under s. 284(1.3) of the Act for assessing a municipalitys
    road maintenance works is one of reasonableness, not perfection:
Frank
,
    at para. 12.

[47]

I note that
Frank
also holds, at para. 10, that a
    municipalitys duty of repair arises in any situation where road conditions
    create an unreasonable risk of harm to users of the highway.  The
Frank
court states, at para. 12: W]here winter road conditions give rise to an
    unreasonable risk of harm, a municipality must show that it took reasonable
    steps to eliminate or reduce the damage within a reasonable time after it
    became aware of the danger.  This was the central issue at trial in respect of
    the Regions s. 284(1.3) defence.  And it is this inquiry that, in my opinion,
    the trial judge addressed.

[48]

It is true that, in the course of his reasonable steps analysis, the
    trial judge considered those steps that he concluded were available to the
    Region and that, if undertaken, might have averted the development of road
    conditions on RR35 that were ripe for a refreeze.  He held that the Region
    failed either: i) to assign a salt spreader to salt RR35 in a timely fashion; or
    ii) to require that one of its available road maintenance contractors, Mr.
    Edward Marynuk, drop salt on RR35 when he passed through the accident area
    approximately one hour prior to the accident while en route to his assigned
    maintenance route.  The trial judge concluded, at para. 105, that if either
    action had been taken, RR35 would not have been in the treacherous condition
    it was [in] when the accident occurred and it is likely that the accident would
    not have occurred at all.

[49]

The Region argues that, in considering these additional or alternate
    steps, the trial judge erred in law and misdirected himself.  The Region
    submits that, in order to establish its s. 284(1.3) defence, it was required to
    prove only that the steps it took to prevent a state of non-repair on RR35 were
    reasonable, and not that it took all reasonable steps to do so.  In support of
    this submission, the Region renews its argument that the trial judge erred by
    asking whether the Region could have acted differently, rather than assessing
    whether the Region acted reasonably in the circumstances it faced.

[50]

Again, I disagree.

[51]

In considering this argument, it is important to bear in mind that,
    under s. 284(1.3) of the Act, the Region bore the onus of establishing the
    defence that it advanced, namely, that the steps it took on the morning of
    November 22, 2000 to prevent a state of non-repair from arising on RR35 were
    reasonable: see for example,
Fordham
, at para. 26.

[52]

As I have explained, the trial judges finding that those steps were not
    reasonable in all the circumstances was not anchored solely in his
    consideration of the alternate or additional steps available to the Region.  He
    conducted a detailed analysis whether the actual steps undertaken by the Region
    were in fact reasonable and concluded that, in several material respects, they
    were not.  He thus held, in effect, that the Region had failed to meet its onus
    to establish the s. 284(1.3) statutory defence.  His findings in this regard are
    supported by the evidence and, consequently, they attract deference from a
    reviewing court unless they are tainted by palpable and overriding error.  No
    such error has been demonstrated by the Region.

[53]

I note also that the Region failed to call any evidence at trial to
    contradict Mr. Brownlees opinion regarding the maintenance works required to
    avoid a refreeze.  Nor did it lead expert evidence that its failure to meet its
    own road maintenance quality standards and recommended salting procedures was
    unavoidable in the circumstances on account of its numerous equipment
    breakdowns or other factors.

[54]

The critical undisputed facts remain that the Region failed to re-salt
    RR35 after the 7:15 a.m. salt application, until after the accident had
    occurred, and its plowing of the road was ineffective due to the road
    conditions it had allowed to develop.  The trial judge reviewed in detail the
    evidence about whether it was reasonably possible for the Region to have
    re-salted before 11:15 a.m. on the day of the accident.  He made two important findings
    in this regard.

[55]

First, he held that, on the state of the evidentiary record, he was
    unable to find that one of the Regions spare salt spreaders, Unit R-136, was
    unavailable for use on RR35 before the road was plowed.  This is significant because
    the trial judge also found that, if Unit R-136 had been mobilized to service
    RR35, its operator could have passed over the scene of the accident, depositing
    salt in the southbound lane of the road, at about 10:30 a.m.  This would have
    permitted the salt to begin to work on the road and the fallen snow before plowing
    took place in advance of the accident.

[56]

The trial judges appreciation of the sufficiency of the evidence
    regarding the availability of Unit R-136 attracts deference from this court. 
    The Regions complaint that the trial judge failed to draw a logical,
    inescapable and common sense inference that Unit R-136 was not available
    for use on RR35 at the material time cannot succeed.  In effect, the Region
    invites this court to engage in speculation regarding the availability of Unit
    R-136 and criticizes the trial judge for properly declining to do so.  The
    reality is that the Region failed to establish at trial the whereabouts of Unit
    R-136 during the relevant time period and, hence, that it was unavailable to be
    deployed to re-salt RR35.

[57]

Second, as I have already mentioned, the trial judge found as a fact
    that Mr. Marynuk, one of the Regions contractors, was on RR35 in the area of
    the accident scene at approximately 10:15 a.m., when re-salting of the road
    could have been accomplished.  On the trial judges findings, Mr. Marynuks
    machine had a full load of salt and his use of it on RR35, if he had been
    ordered to do so, would not have required his diversion from his assigned,
    regular route  he was passing through the accident scene in any event.

[58]

Yet, the responsible Region foreman failed to direct Mr. Marynuk that
    RR35 required servicing and that he should use some of his salt load on RR35
    while en route to his assigned destination.  Indeed, at the appeal hearing, the
    Region was unable to point to evidence of any communications among the
    responsible Region employees between 7:15 a.m. and 11:15 a.m. on November 22,
    2000 regarding the road conditions on RR35 and its need for servicing, or the
    potential risk of a refreeze of the road.

[59]

The evidence concerning the additional or alternate road maintenance
    steps available to the Region, in my opinion, properly informed the trial
    judges analysis of the reasonableness of the steps taken by the Region to
    prevent the build-up of conditions on RR35 that could lead to a refreeze. 
    Further, in considering what the Region could have done, the trial judge was
    responding directly to the Regions argument at trial that, given the number of
    unanticipated equipment breakdowns it had experienced on November 22, it had
    taken all reasonable, available steps in the circumstances and it could not
    have done any more.  The trial judge cannot be faulted for coming to grips with
    an argument advanced by the Region in defence of its conduct.

[60]

I make these final comments concerning the Regions attack on the trial
    judges findings regarding Mr. Marynuks potential re-salting of RR35.  The
    Region submits that the trial judges impugned findings regarding the potential
    re-salting of RR35 by Mr. Marynuk fail to recognize that other, similar roads
    in the area of RR35 were subject to the same weather conditions on November 22,
    2000 and also required servicing on an equal priority basis.

[61]

There are two difficulties with this submission.  First, as I have said,
    the trial judge found that the use by Mr. Marynuk of his spreader to re-salt
    RR35 would not have required that he be diverted from his assigned route.  It
    simply required timely communications between the Regions foreman and Mr.
    Marynuk.  This did not occur.

[62]

Second, unlike RR35, the adjacent routes in question do not appear to
    have required urgent re-salting.  The first salting route, S11, was Mr.
    Marynuks assigned route for maintenance work.  He was en route to S11, to salt
    it for the first time that day, when he travelled over the area of the accident
    scene.  Hence, the risk of a refreeze due to ineffective early salting of S11
    did not arise.  RR35 forms part of another salting route, S4.  Portions of S4
    had been salted during the morning of November 22.  Unlike RR35, these other
    portions of S4 were also plowed at a time that permitted removal of the
    salt/snow brine that had developed on the route.  As a result, no risk of a refreeze
    arose concerning the S4 route either, except with respect to RR35.

[63]

Thus, for varying reasons, neither of these other roads presented the
    same risk of a refreeze or emergent hazard as applied to RR35 during the
    relevant period on the day of the accident.

[64]

In my view, it therefore cannot be said that this is a case involving
    the allocation by the Region of reduced resources to multiple and competing,
    potential hazards of equal priority.  Rather, it is a case where the Region
    failed to recognize, but reasonably ought to have known of, the risk of a refreeze
    on RR35 due to its failure to re-salt the road on a timely basis. 
    Consequently, the Region failed to respond to that risk in a reasonable fashion
    under all the circumstances.  Since the Region failed to undertake
any
responsive road salting activities for more than
    four hours after its initial salting of RR35, this is also not a case where, as
    in
Ondrade v. Toronto (City)
, 2006 O.J. No. 1769 (S.C.J.), a case
    cited by the Region, its actions may be regarded as falling within a range of
    reasonable responses to the risk of harm to users of the highway that emerged
    on RR35 during the morning of the accident.

[65]

For these reasons, I see no basis for appellate interference with the
    trial judges treatment of the Regions s. 284(1.3) defence.

(3)

Contributory Negligence

[66]

The trial judge made two key findings concerning the Regions claim that
    Ms. Belanger was negligent.  First, he found, at para. 61, that Ms. Belanger sudden[ly]
    and without explanation lost control of her vehicle and that this loss of
    control and her inability to regain complete control of her car once it began
    to fishtail on the road, would not have occurred but for the slippery road
    conditions on RR35.

[67]

Second, given the slippery road conditions, he further found, at para.
    111, that in the absence of some evidence of an overt decision, action or
    adjustment by Ms. Belanger that would cause her to lose control of her
    vehicle, her loss of control was as consistent with [the] normal and safe
    operation of her vehicle as it [was] with some act of negligence on her part.

[68]

The Region argues that these findings are fatally flawed because the
    trial judge failed to appreciate that, as a matter of law, a presumption of
    negligence applied as against Ms. Belanger because her vehicle crossed the
    centre line of the road: see
El Dali v. Panjalingam
, 2013 ONCA 24,
    113 O.R. (3d) 721, at paras. 17-18.  This error, the Region says, led the trial
    judge to further err by concluding that the Region bore the onus to prove Ms.
    Belangers negligence when, as a matter of law, Ms. Belanger bore the onus of
    rebutting the presumption of negligence.

[69]

I would not accede to this submission in this case.

[70]

As the Region points out, the trial judge does not refer expressly to
    the presumption of negligence in his reasons.  However, while it might have
    been preferable if he had done so, the record reveals that the Regions
    invocation of the presumption was specifically addressed at trial.  In his
    closing submissions, the Regions counsel dealt in some detail with the
    Regions allegation of contributory negligence, including the operation of the
    presumption.  He stated with reference to the presumption: That presumption is
    not rebutted here (for example, because the crossing of the line occurred in
    the course of a loss of control).

[71]

In light of this submission, there can be no doubt that the trial judge
    was aware of the Regions reliance on the presumption.  Moreover, the Region
    appears to have acknowledged that if it was established that Ms. Belanger
    crossed the centre line of the roadway in the course of a loss of control of
    her vehicle, this would suffice to rebut the presumption of negligence.  And this
    is precisely what the trial judge found had occurred.  It is implicit in his finding
    that he considered the presumption and found that Ms. Belanger had lost control
    of her car.  As the Region had acknowledged in its closing argument, this was
    sufficient to rebut the presumption on the facts.

[72]

I am satisfied, in any event, that the presumption was rebutted in this
    case.  There was no evidence at trial of any action or omission attributable to
    Ms. Belanger that caused her car to cross the centre line of the highway.  Nor,
    as the trial judge noted at para. 108, was there any suggestion that she engaged
    in any deliberate maneuver that could be construed as unusual or dangerous. 
    There was also no evidence that Ms. Belanger was inattentive to or distracted
    from her driving, or that the condition of her car contributed in any way to
    the accident.  The trial judge also found that she was not driving at an excessive
    speed.  And several other drivers at or near the scene testified that they,
    too, had experienced difficulties controlling their cars due to the slippery
    road conditions.  Notably, none of these findings is challenged by the Region. 
    Finally, while the Region stresses that Ms. Belanger did not have snow tires on
    her car, other drivers at the accident scene similarly had chosen to use
    non-snow tires on their vehicles.

[73]

In these circumstances, and on this evidentiary record, I am unable to
    conclude that the trial judge erred in his consideration of the Regions
    contributory negligence claim against Ms. Belanger.  When his reasons are read
    in the context of the case advanced and argued by the Region, I conclude that
    the trial judge fairly considered this claim, the evidence bearing upon it, and
    the application of the presumption of negligence. Accordingly, there is no
    basis for appellate interference with his apportionment of liability.

[74]

This ground of appeal, therefore, also fails.

Disposition

[75]

For the reasons given, I would dismiss the appeal.  The respondents
    shall deliver their brief written costs submissions to the Registrar of this
    court within 14 days of the release of these reasons.  The Region shall deliver
    its brief responding costs submissions within 14 days thereafter.

Released:

MAY 26 2017                                    E.A.
    Cronk J.A.

GRS                                                  I
    agree G.R. Strathy C.J.O.

I
    agree S.E. Pepall J.A.


