



COURT OF APPEAL FOR ONTARIO

CITATION:
Deering v. Scugog
    (Township), 2012 ONCA 386

DATE: 20120607

DOCKET: C52880

Goudge, MacPherson and Cronk JJ.A.

BETWEEN

Shannon Deering, Tony Deering and Deborah Deering

Plaintiffs/ Respondents

and

Corporation of the Township
    of Scugog, Corporation of the City of Oshawa
, Miller Paving Limited,
    Primmum Insurance Company and Totten Sims Hubicki Associates (1997) Limited

Defendants/
Appellants

BETWEEN

Erica Deering, Anthony Deering, Anthony Deering
    and Deborah Deering

Plaintiffs/ Respondents

and

Corporation of the Township
    of Scugog, Corporation of the City of Oshawa
, The Regional Municipality
    of Durham, Miller Paving Limited, Shannon Deering and  Primmum Insurance
    Company and Totten Sims Hubicki Associates (1997) Limited

Defendants/
Appellants

Steven Stieber, for the appellants

Paul Pape and Shantona Chaudhury, for the respondents
    Alexander Heroux, Erica Deering and Shannon Deering

Patrick Ho, for the respondent Shannon Deering

Heard: June 4, 2012

On appeal from the judgment of Justice Peter H. Howden of
    the Superior Court of Justice, dated October 5, 2010.

ENDORSEMENT

[1]

On August 10, 2004, Shannon Deering, age 19, was driving to a movie
    theatre in Whitby with her younger sister, Erica, and three friends. They were
    travelling on an unlit, hilly rural road. As she neared the crest of a hill,
    Shannon was momentarily blinded by the headlights of an oncoming vehicle.
    Thinking that the oncoming vehicle was coming right at her, she steered right,
    lost control, oversteered left trying to stay on the road, and veered into a
    ditch. The car rolled twice and hit a rock culvert. Shannon and Erica were
    rendered quadriplegic; the other three passengers were also injured.

[2]

Four of the five injured parties sued several defendants, including the
    Corporation of the City of Oshawa and the Corporation of the Township of Scugog
    (the municipalities).

[3]

Following a 17-day trial, Howden J. released a judgment on October 5,
    2010 apportioning liability for the accident at 1/3 for Shannon and 2/3 for
    Oshawa and Scugog.

[4]

The municipalities appeal. They contend that they were not at fault at
    all for the accident and, accordingly, they seek an order dismissing the
    plaintiffs claims against them.

[5]

The cross-appellants Shannon Deering, Erica Deering and Alexander Heroux
    also appeal. They seek a reapportionment of fault at 10 per cent for Shannon
    and 90 per cent for the municipalities.

[6]

The damages portion of the trial has not taken place.

A.

The municipalities appeal

[7]

The municipalities contend that the trial judge erred in concluding that
    the road was in a state of non-repair and that, but for this non-repair and Shannons
    own contributing negligence in the manner of driving, the accident would not
    have occurred.

[8]

We do not accept this submission. Although the municipalities frame
    their argument in terms of legal errors made by the trial judge, in reality the
    trial judges legal conclusions flowed from a series of factual findings that
    were amply supported by the evidence. The core of those factual findings
    included:

·

The road had a unique feature, an accident hill, that presented
    an unusual and dangerous deflection of light that might lead even an ordinary,
    reasonable driver in the westbound lane to believe that eastbound traffic was
    in their lane as eastbound traffic crested the hill;

·

The road was unlit;

·

The speed limit was unposted and excessive such that even a
    driver going at or slightly under the speed limit would not have sufficient
    time to react to oncoming traffic;

·

There was no centre line on the road; and

·

The road was excessively narrow in light of the above factors.

[9]

Put simply, at the crest of the subject hill, even a prudent driver
    facing nighttime eastbound traffic would have only seconds to react to an
    apparently directly oncoming car on a narrow, unlit, unmarked and unsigned
    rural road. Accordingly, the trial judges finding that the road was in a state
    of non-repair and his conclusion that the municipalities were at fault for the
    non-repair were entirely reasonable.

[10]

The
    municipalities also contend that the trial judge erred in his apportionment of
    fault. They say that he minimized the seriousness of Shannons driving
    misconduct (speeding on an unfamiliar, unmarked, hilly unlit rural road) and
    ascribed too much responsibility to the municipalities for the state of
    non-repair of the road.

[11]

We
    disagree. A trial judges apportionment of fault among various tortfeasors is
    entitled to substantial deference: see
Giuliani v. Halton (Regional
    Municipality)
, 2011 ONCA 812, at para. 46.

[12]

The
    trial judge carefully and comprehensively reviewed Shannons conduct and that
    of the municipalities. We can see no basis for interfering with his ultimate
    conclusion that the greater degree of fault lies with the defendants.

B.

The cross-appeal

[13]

The
    cross-appellants concede that Shannon was negligent in speeding. They accept
    that as she approached the hill in question, Shannon was driving at 90 km/hr on
    a road where the speed limit was 80 km/hr. Moreover, they acknowledge that she
    was speeding at night on a hilly, unlit, unmarked and unfamiliar road. However,
    they submit that Shannons driving amounted to a momentary lapse in judgment;
    that she was an inexperienced driver, not a street racer. In support of this
    position, they also point out that the trial judge found that if the
    municipalities had provided proper signage and pavement marking to alert
    drivers to the need for caution, Shannon would probably have decreased her
    speed and avoided the accident. The cross-appellants also rely on the trial
    judges observation that even at a speed of 70 km/hr, a reasonable driver would
    have lost control. Based on these findings, the appellants contend that
    Shannons conduct did not cause the accident, but, rather, merely contributed
    to her injuries. Her apportioned fault, they say, should therefore be less than
    one-third.

[14]

We
    do not accept this submission. The trial judge found that Shannon was paying
    no attention to her speedometer as she drove on August 10, 2004, that she
    overdrove her headlights and lost control of her car and, generally, that she
    was essentially oblivious to the need for caution given the road conditions
    confronting her.

[15]

Accepting
    these findings, as we do, and recalling again the case law, cited above,
    directing appellate deference to a trial judges decision about the
    apportionment of fault among multiple tortfeasors, we can see no basis for
    interfering with the trial judges assignment of 1/3 liability to Shannon in
    this case.

C.

DISPOSITION

[16]

The
    appeal and cross-appeal are dismissed. Although success is divided, the issues on the appeal were more substantial than those on the cross-appeal. The respondents are entitled to their costs fixed at $50,000 inclusive of disbursements and applicable taxes. No costs to Mr. Ho.

S.T.
    Goudge J.A.

J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


