



COURT OF APPEAL FOR ONTARIO

CITATION: Lloyd v. Bush, 2017 ONCA 252

DATE: 20170328

DOCKET: C60080

Rouleau, van
    Rensburg and Miller JJ.A.

BETWEEN

Leslie Gail Lloyd and Jason Lloyd

Plaintiffs/Respondents

and

David P. Bush, 818601 Ontario Inc. c.o.b. as
    MacDonalds Propane,
T
he Corporation of the County of
    Lennox and Addington and The Corporation of the Town of Greater Napanee

Defendants/
Appellants

David G. Boghosian and
    Luciana I. Amaral, for the appellants

R. Steven Baldwin, for the
    respondents

Heard: October 27, 2016

On appeal from the  judgment of Justice Wolfram
    Tausendfreund of the Superior Court of Justice, dated February 6, 2015, with
    reasons reported at 2015 ONSC 761 and from his judgment dated August 5, 2015,
    with reasons reported at 2015 ONSC 5340.

Rouleau J.A.:

[1]

The appellants  The County of Lennox and Addington (the County) and The
    Corporation of the Town of Greater Napanee (Napanee or the Town)  appeal
    from the judgment finding them liable to the respondents for damages arising
    from a motor vehicle accident. The primary ground of appeal is that the trial
    judge erred in his finding of liability and, specifically, in his
    interpretation and application of the municipal defendants duty under the
Municipal
    Act, 2001
,

S.O.
    2001, c. 25 to clear roads of snow and ice during a snow event. The County is
    the owner of the road on which the accident occurred and the Town was
    responsible for its winter maintenance pursuant to a 1998 agreement between the
    appellants.

[2]

The trial judges award of damages for attendant care costs and the
    costs of the action are also under appeal. In their written submissions the
    appellants also raise allegations of apparent bias on the part of the trial
    judge but this ground of appeal was not pressed in oral argument.

[3]

This was the second trial of the matter. During the course of the first
    trial, the plaintiffs settled with the defendants David Bush and 818601 Ontario
    Inc. c.o.b. MacDonalds Propane and at the end of that trial, the claim against
    the municipal defendants was dismissed. On appeal from the first trial, this
    court ordered a new trial on the basis that the first trial judge demonstrated
    a reasonable apprehension of bias against the plaintiffs:
Lloyd v. Bush
,
    2012 ONCA 349, 110 O.R. (3d) 781.

A.

Facts

(1)

The accident

[4]

On the morning of January 3, 2003, the respondents Leslie and Jason
    Lloyd were at the rural home of Jasons parents on County Road #9 (CR9), also
    known as River Road. They had spent the night there after returning from a ski
    vacation the previous day. The home received a telephone call from one of
    Jasons sisters who had fallen ill at work in nearby Napanee. Leslie volunteered
    to pick up her sister-in-law and promptly left the home in her 2001 Hyundai
    Elantra. She intended to proceed into Napanee, which was about 4 km east along CR9.
    Leslie was an experienced driver and was familiar with the road.

[5]

Leslie had been driving for less than 30 seconds when she entered an
    S-curve portion of the road known locally as Rankins Corners, which was located
    some 400 metres east of her in-laws home on CR9. Entering Rankins Corners from
    the other direction was a commercial tank truck loaded with 20,000 pounds of propane
    driven by David Bush. He was in the process of making propane deliveries.

[6]

At approximately 10:35 a.m., Leslies vehicle collided with the propane
    truck in the eastern half of the S-curve. Leslie was severely injured and was
    left with permanent disabilities affecting her mobility, speech, dexterity,
    cognition and overall functioning. She has no recollection of the
    accident.

(a)

Evidence about the accident

[7]

The only eyewitness at trial with any memory of the collision itself was
    Mr. Bush.

[8]

Mr. Bush described the conditions as he drove toward Rankins Corners as
    consisting of heavy snowfall, with the road slippery and snow-covered at a
    depth of one to two inches. Though he could not see the centre line or fog
    lines, he attempted to stay in his lane by staying close to the guard rails to
    his right. He estimated that he was travelling at around 60-72 km/h, which was
    slower than the normal speed limit of 80 km/h but faster than the posted speed
    advisory for Rankins Corners of 60 km/h.

[9]

Mr. Bush testified that he first saw Leslies vehicle approaching as he
    proceeded into the east curve of Rankins Corners. He told the court that he saw
    Leslies vehicle lose control and begin to slide sideways into his lane and down
    the roads slight incline toward his truck, at a 180° angle. Mr. Bush did not
    see the vehicles angle correct itself from sideways to straight before impact.
    He testified that the front end of his truck struck the drivers side door of
    Leslies vehicle. After the collision, his truck came to a stop in the south
    ditch.

[10]

As I will explain below, although his testimony remained consistent, the
    expert evidence unanimously contradicted Mr. Bushs description of the moment
    of impact and his description was not accepted by the trial judge.

(b)

Evidence about the road conditions

[11]

Mr. Bush testified that he saw no indication that CR9 had been plowed,
    sanded or salted and he found the road to be snow covered and slippery after he
    got out of his truck.

[12]

Several truck drivers, a registered nurse, Jason Lloyd and his father
    attended at the scene soon after the collision and testified with respect to
    the condition of the road. The general consensus was that there had been
    moderate snowfall that morning but it had stopped by the time they arrived.
    They found the road to be snow covered with an inch or two of accumulation.
    Most considered the road to be slippery and did not notice any salt or sand on
    the road.

[13]

Evidence as to the condition of the road both before and after the
    accident was given by Brian Wayte. He was a neighbour of the Lloyds who lived
    in the middle of the S-curve at Rankins Corners. He testified that he was returning
    home from Napanee and travelling west on CR9 mid-morning on the day of the
    accident. The trial judge accepted Mr. Waytes testimony that, on that trip, he
    followed a plow that was plowing snow and depositing material onto CR9.
    Mr. Wayte told the court that in general the road was snow-covered but was
    bare in spots. At some point soon after he arrived home  the trial judge
    determined it was 15 to 20 minutes later  Mr. Wayte noticed from his driveway that
    an accident had occurred at Rankins Corners. He estimated that about an inch of
    snow had fallen between his return home and the time of the accident. He
    testified that it was snowing very heavily at the time of the accident and for
    a period of time afterwards but agreed that photographs of the scene appeared
    to show only minimal snow accumulation. Upon walking to the accident scene, he
    saw no sand or salt on the road but he did not find the road to be slippery.

[14]

Two OPP officers arrived at the scene within minutes after the
    collision. One testified that the road was snow covered and slippery. He saw no
    indication of plowing, salt or sand on the road but acknowledged that the newly
    fallen snow may have concealed such material from view. He estimated the total
    snow accumulation to be an inch or two at most. He took 13 photographs of the
    scene, which were tendered as evidence at trial. Another OPP officer who
    arrived at the same time likewise had no recollection of observing salt or sand
    and had reported the condition of the road as packed snow.

(c)

The municipal defendants evidence of winter maintenance activities

[15]

The Towns night patrolman, Bill Docteur, relied in his
    testimony on a copy of his diary from January 3, 2003. It indicated that he
    called the Public Works Foreman, Ron Vankoughnet, at 3:35 a.m. to advise that
    winter maintenance operations were needed.

[16]

Mr. Vankoughnet testified that, after receiving the call
    from Mr. Docteur, he called his plow operators out for 4:00 a.m. and all 13
    operators reported on time. His notes indicated a temperature of -7°C at 4:30
    a.m. and light snow all day with a little wind. He expected the plows to have spread
    a 3:1 sand/salt mixture on the road. He relied on his experienced plow
    operators to determine the appropriate plowing measures and the amount of
    material to deposit onto the road. Mr. Vankoughnet also told the court he heard
    Vern Amey, the Towns Roads Superintendent, call Doug Abrams over the radio that
    morning to plow and sand CR9.

[17]

Vern Amey testified that the Town used a 3:1 sand/salt
    mixture on its rural roads, including CR9, due to the risk of refreeze arising
    from low traffic volumes (1,500 vehicles per day) combined with certain
    temperature and wind conditions and because that mixture had always worked in
    the past. He would have expected the assigned plow driver to have completed two
    return passes on CR9 before 10:00 a.m. that day. The policy the Town followed
    was to send plows out if there was snow accumulation between midnight and 4:00
    a.m. and to continue plowing until the snow was cleared. Hills and corners were
    considered hot spots. Mr. Amey also stated that he saw the road was
    snow-covered on his way to work at 6:00 a.m. and that he called Doug Abrams to
    plow and sand CR9 and Rankins Corners at that time. In his view, the Town far
    exceeded any minimum maintenance standards set by the province and received few
    complaints. Upon his arrival at the scene within 20 minutes of the accident, Mr.
    Amey recalled the road as being slippery and saw no signs of plowing, salt or
    sand. He acknowledged that he had failed in his duty to properly record the
    road conditions based on his first-hand experience on January 3, 2003.

[18]

Plow operator Wayne Dixon testified that CR9 was his regular plow route
    at the time of the accident. This was consistent with the evidence of Mr. Amey
    and Mr. Vankoughnet. A photocopy of Mr. Dixons diary was tendered as evidence
    and, though its content is unclear, it appears to indicate that he had sanded
    at 10:10 a.m. on the morning of the accident. Mr. Dixon testified that he made
    multiple passes over Rankins Corners that morning. He also testified that it
    was his practice to increase the amount of material being applied to the road
    when passing through Rankins Corners. It became clear, however, that he had no
    independent recollection of his activities that day and the trial judge
    declined to rely on his testimony.

[19]

Contrary to the evidence of the other Town employees, plow operator Doug
    Abrams insisted at trial that CR9 was in fact his regular route that morning
    and not Mr. Dixons. He kept no notes or diary. He testified that he recalled
    plowing Rankins Corners twice on the morning of January 3, 2003, and that he
    applied sand both ways to the area rather than just on passing one way because
    it was one of the bad spots. Passing through at around 6:00 a.m., he noticed
    no signs of prior winter maintenance activity, which he attributed to the
    ongoing snowfall.

[20]

Evidence was read in at trial from the examination for discovery of
    Stephen Roberts, the Countys Technical Co-ordinator of Roads and Bridges in
    2003. He stated that road maintenance responsibility transferred to the Town
    from the County in 1998 and that Rankins Corners was not identified as an area
    of any special concern at that time. He further stated that, prior to 1998, CR9
    was one of several higher priority roads in terms of the Countys winter
    maintenance needs.

(d)

The expert evidence

[21]

The plaintiffs accident reconstruction expert Thomas Prescott testified
    that, assuming Mr. Bushs observations of the collision were true, the accident
    was most likely caused by Leslie having made a sudden slight braking and/or
    steering manoeuver that caused her vehicle to slide. He opined that such a
    motion could have been made as a reaction to seeing the propane truck
    approaching and Leslies being uncertain of whether it was fully within its own
    lane. In Mr. Prescotts view, this was an offset head-on collision wherein
    the vehicles collided more or less head-on, at an angle of less than 10°, and two
    thirds to three quarters of Leslies vehicle struck the left front half of the
    propane truck.

[22]

The defendants accident reconstruction expert and expert on winter road
    maintenance practices and procedures, Timothy Leggett, did not believe that
    Leslies vehicle sliding was the cause of the collision. He agreed with Mr.
    Prescott that it was an offset frontal collision at little to no angle. For
    him, the fact that the vehicles met absolutely co-linear meant that the
    Leslies vehicle was likely not sliding sideways as Mr. Bush had purportedly observed
    because it would not have had time to straighten itself. Mr. Leggett offered no
    alternative theory as to what caused the collision.

[23]

Mr. Leggett also opined that the Towns purported plowing activities
    that day, which are summarized above, were impressive since a rural Class 4
    road such as CR9 would typically be plowed only once per day. He believed that
    the presence of an overnight patrolman exceeded normal maintenance practice standards
    on a road of that nature. He was sceptical that the application of salt would
    have achieved bare or centre-bare road conditions in the circumstances, though
    he agreed that if straight salt had been applied at 130 kg/km then the
    likelihood of centre-bare conditions would have been higher. Further, he told
    the court that sand is more readily available and much cheaper than salt
    and that the application of a sand/salt mixture on such a road was the norm
    at the time in many Ontario municipalities, with sand being used about ten
    times more than salt.

[24]

Daniel Doner was called by the plaintiffs to give expert opinion
    evidence on municipal winter road maintenance practices and procedures as of
    2003. In Mr. Doners view, the appropriate winter maintenance response to
    conditions that morning on Rankins Corners would have been to apply straight
    rock salt, which would have created a brine solution and led to bare or
    centre-bare conditions. Mr. Doner considered the Towns purported multiple
    passes over Rankins Corners to be inconsistent with the photographic evidence.

[25]

In cross-examination, Mr. Doner acknowledged his awareness of recent
    studies indicating that sand/salt mixture can be as effective as straight salt
    for improving traction and that this is a legitimate and appropriate practice
    adopted by many municipalities. He further acknowledged that, at the time his
    report was prepared, he lacked knowledge of other factors that would affect
    salts effectiveness and the possibility of achieving centre-bare conditions
    that morning, such as the amount of traffic, snow accumulation and sunlight.

[26]

At another point during his cross-examination, Mr. Doner was asked about
    the cost of salt per ton in 2003. Counsel for the plaintiffs objected on the
    basis that the municipal defendants did not raise financial considerations as
    an issue in their pleadings or expert reports. In the Towns submission, the
    financial impact of winter maintenance practices and the resources available to
    the Town were an inherent aspect of the test for liability and such facts did
    not have to be specifically pleaded in its statement of defence. Further, the
    statement of claim did not contain a specific plea that the municipal defendants
    negligence consisted of the failure to apply straight salt; the failure to use
    straight salt only became an issue when it was raised by the plaintiffs
    experts. The trial judge disallowed the question and made it clear that, because
    it was not raised in Mr. Doners examination in chief and was not pleaded in
    the statement of defence or raised in the defendants expert reports, the issue
    of the financial impact of applying straight salt to the roadways could not be touched
    upon.

[27]

The plaintiffs also called a professional engineer, David Bender, to
    give opinion evidence on winter maintenance treatment of roads by
    municipalities. He testified that the MTOs M700-C guideline recommended the
    application of salt given the conditions at the time. He shared Mr. Doners
    view that, had there been multiple passes over Rankins Corners as the Town
    purported, this should have led to bare or centre-bare conditions and one would
    have expected to have seen evidence of this in the photographs. Centre-bare
    conditions would have afforded improved traction and visibility and rendered
    that mornings collision unlikely. Like Mr. Doner, Mr. Bender acknowledged in
    cross-examination that spreading a sand/salt mixture after plowing is an
    appropriate practice used by many municipalities. He also acknowledged that factors
    other than temperature may impact salts effectiveness, such as sunlight and
    traffic volumes, and that he was not aware of the exact conditions on the road
    at the time.

[28]

A forensic meteorologist, Dr. James Young, gave evidence with respect to
    the weather conditions on January 3, 2003. He estimated that over the period
    from midnight until the time of the accident at 10:35 a.m. between 2.5 and 2.7
    cm of snow had accumulated on the roads surface, and that about 0.5 cm fell
    between 10:00 a.m. and 11:00 a.m. He opined that if the Towns purported
    maintenance activities had taken place there would have been more visible
    presence of sand.

[29]

A second weather expert, Bryan Smith, gave substantially similar
    evidence. On the basis of the weather experts testimony and that of the many
    eyewitnesses, the trial judge determined that the air temperature rose from
    -8°C at midnight to -5°C at 10:30 a.m. and that the road temperature was in the
    range of -5°C to -1°C at 10:30 a.m.

(2)

The respondents damages

[30]

The trial judge heard from numerous witnesses with respect to the
    damages Leslie suffered as a result of the collision. One such witness was a
    medical doctor specializing in rehabilitation who testified as to the
    permanence of Leslies injuries, her functional disabilities and their
    long-term implications, and her past and ongoing treatment needs.

[31]

A number of family members and Leslie herself also testified to the
    effect of the accident on her personality, lifestyle and social life.

[32]

The court also heard testimony from future care consultants for both the
    plaintiffs and the defendants as to Leslies ongoing need for speech language
    therapy, her need for a cellular telephone, and evidence on home renovation
    costs. There was also evidence from economic consultants retained by both
    parties with respect to loss of income.

B.

The Decision Below

[33]

The trial judge acknowledged that the appellants liability, if any, was
    to be determined in accordance with s. 44 of the
Municipal Act
,
2001
.
    In accordance with the relevant jurisprudence, he was to determine whether a condition
    of non-repair existed. This was a question of fact assessed from the
    standpoint of a reasonable and prudent driver in the circumstances. If the
    plaintiffs demonstrated that a condition of non-repair existed, the trial judge
    was to determine whether the condition of non-repair caused or contributed to the
    accident and, if so, the onus then shifted to the municipality to show that it
    undertook reasonable efforts to maintain CR9 that morning.

(1)

The trial judges summary of the evidence

[34]

The trial judge then summarized the maintenance activities the Town had
    performed on January 3, 2003.

[35]

He found Wayne Dixons evidence as to his plowing activities that day to
    be of no assistance because he kept no notes and had no independent memory of
    his activity on that day. The judge, however, makes no mention of Exhibit 45
    which appears to be a photocopied page from a note or diary attributed to Mr. Dixon,
    which states among other things: approximate time sand 10:10 a.m. The failure
    to make a specific reference to it may be due to the trial judge having
    concluded that, based on Mr. Dixons testimony, the document was of little
    value.

[36]

The trial judge also determined that little weight could be placed on
    Doug Abrams evidence due to his lack of notes and the contradictions between
    his testimony and that of the other Town employees with respect to whether CR9
    was his regular route and not Mr. Dixons.

[37]

Though Vern Amey testified that he expected Mr. Dixon to have completed
    two return plow runs on CR9 that morning, the trial judge determined that he
    had no reliable evidence that this actually occurred. He found that the only
    clear evidence on plow operations that morning was that at or about 10:00 a.m.
    the witness Mr. Wayte followed a plow westerly on CR9.

[38]

The trial judge then summarized his findings with respect to the condition
    of CR9 that morning. He found that light snow started to fall after midnight
    until about 10:30 a.m. at about 0.5 cm/hour. The air temperature was as low as
    -8°C during the night and rose to about -5°C by the time of the accident. In
    various portions of his reasons, he describes the total snow accumulation as
    being in the range of 3  5 cm (para. 141), in the range of 2.5  5 cm (para.
    53) and in the range of 2  5 cm (para. 146).

[39]

The trial judge then referred to the evidence indicating that there were
    no obvious signs of recent plowing, salting and/or sanding activity, and that
    several witnesses considered the road to be slippery. He did not, however,
    explain how this evidence is to be reconciled with his finding that a truck had
    plowed and deposited material onto CR9 at or about 10:00 a.m.

[40]

The trial judge noted that Rankins Corners had a posted speed advisory
    of 60 km/h due to its alignment as an S-Curve. He also referenced the
    evidence of Stephen Roberts, who testified that, before it turned
    responsibility for winter maintenance over to the Town, when the County was
    responsible for winter maintenance it viewed curves such as this one as a hot
    spot requiring special winter maintenance practices. The trial judge then
    noted that, although the Town held meetings each fall regarding hot spots,
    there was no evidence to indicate whether Rankins Corners was included for such
    special attention by the Town or, if so, what that might have entailed.

(2)

The trial judges analysis of whether a condition of non-repair existed

[41]

The trial judge then addressed whether Rankins Corners was in a state of
    non-repair. That section of his analysis begins with the following:

Based on the evidence of Vern Amey and Ron Vankoughnet, I find
    that the Town plowed and applied a 3:1 mixture of sand/salt to Cty Rd 9 both
    ways on two separate occasions between 4:00 a.m. and the time of the accident.

He then stated that he accepted Mr. Waytes evidence
    of a plow passing westerly on CR9 at around 10:00 a.m.

[42]

However, the trial judge then expressed the view that the evidence that
    the plow passed twice in both directions and applying a sand/salt mixture was difficult
    to reconcile with the absence of visual evidence of windrows, the modest or
    marginal amount of sand noted by the witnesses, and the apparent absence of
    evidence that salt had created a brine solution or bare spots on Rankins Corners.

[43]

The trial judge noted that Napanee used a 3:1 mixture of sand and salt
    for its county roads including CR9. He then stated that the reason Napanee
    advanced for this decision is that county roads are not all paved and that a
    sand/salt mixture is far more appropriate and effective for non-paved roads.

[44]

Next, the trial judge observed that, because Rankins Corners was a hot
    spot, certain additional or other measures of winter maintenance were or
    could have been applied by the Town to address the special needs of that
    portion of the road. He determined that the circumstances, namely light snow
    and temperatures between -8°C and -5°C, were ideal for the application of
    straight salt and that this would have created centre-bare conditions resulting
    in better visibility and traction for passing vehicles.

[45]

The trial judge found that, at the time of the accident, Rankins Corners
    was snow covered and slippery and that the line markings on the road were not
    visible. He concluded this section of his reasons with a reference to the case
    of
Giuliani v. Halton
, 2010 ONSC
    4630, [2010] O.J. No. 3674, affirmed, 2011 ONCA 812, 346 D.L.R. (4th) 120,
    leave to appeal refused (2012), 303 O.A.C. 392 (note),
and a
    finding that, as in
Giuliani
, snow accumulation in the range of 2  5
    cm in Rankins Corners presented a hazard to the users of the road and as such,
    Rankins Corners fell into a state of disrepair that morning.

[46]

Although there is no express finding to this effect, it appears that the
    trial judge considered that Rankins Corners was in a state of non-repair because
    it was not centre-bare during this snow event.

[47]

The trial judge found that the Town failed to show that it undertook
    reasonable efforts to address a condition of non-repair, and this despite the fact
    that the maintenance exceeded what was required under by-law 2649/97 for the
    County. As explained by the trial judge, the by-law set a far more relaxed
    standard for winter maintenance than the Town in fact followed. The Towns
    policy was to continue plowing until the snow was cleared.

[48]

The trial judge further found that special maintenance procedures had
    not been applied to Rankins Corners and that the plowing activity that was
    carried out was inadequate for that location. What was required was the
    application of straight salt in addition to a greater than normal application
    of sand/salt mixture, and this, he found, would likely not have been a
    meaningful financial burden for the Town or an altering change to its
    established winter maintenance operation.

(3)

The trial judges causation analysis

[49]

The trial judge then went on to consider whether the condition of
    non-repair caused or contributed to Leslies injuries and damages. He
    determined that, on the evidence, her car was one-half to two-thirds over the
    centre line at the time of impact and that the left wheels of Mr. Bushs truck
    were either on or partially over the centre line.

[50]

The trial judge found that Leslies position on the road was caused by a
    sudden loss of control, created by a steering movement made in reaction to her
    seeing the propane truck and her being unable to tell where it was in relation
    to the centre line due to the light colour of the truck and the visual absence
    of the centre and fog lines. The snow packed state of the road was such that a
    marginal adjustment of steering would likely have been enough to cause her
    vehicle to start sliding. He reiterated that, as noted above, the collision
    would likely have been avoided if the Town had applied special maintenance
    procedures to create centre-bare conditions in Rankins Corners. For this reason,
    he found that the Town caused at least in part the collision of the
    Plaintiffs vehicle with the Bush truck.

[51]

He concluded this section of his analysis by finding that the plaintiffs
    had established that the condition of non-repair of CR9 caused or contributed
    to Leslies injuries and to the respondents damages.

(4)

Contributory negligence

[52]

The trial judge found that Mr. Bush was partially liable for the
    accident as he ought to have slowed down to be sure that he was on the proper
    side of the road. His position on or across the centre line formed a visual
    obstacle that caused Leslie to react by braking or turning the steering wheel,
    which in turn caused Leslies vehicle to slide into the propane truck.

[53]

The trial judge then found that, because Leslie lost control of her
    vehicle and crossed the centre line, she would also share in the apportionment
    of fault. He concluded that liability should be shared at 60% for the municipal
    defendants, 30% for the Mr. Bush and his propane company and 10% for Leslie.

(5)

Damages

[54]

The trial judge assessed damages inclusive of general damages, damages
    under the
Family Law Act
, R.S.O. 1990, c. F.3, s. 61,

loss of
    income, future care needs and future costs of attendant care in the total
    amount in excess of $4 million, which he then reduced to 60% to reflect his
    apportionment of liability. I need only summarize the trial judges findings
    with respect to the future attendant care costs of $2 million, as this is the
    only aspect of the damages award that is under appeal.

[55]

The trial judge found that, because of her medical condition, Leslie
    should not be left alone during the night and that even during the day she
    required regular care. He concluded, therefore, that nighttime attendant care
    and some attendant care during the day were required.

[56]

As to the cost of this care, the trial judge accepted the plaintiffs
    expert evidence that the present value of the required care was $1,871,163
    (based on $13 per hour) if the care was to be provided by Leslies spouse Jason
    and was $4,066,181 (based on $25 per hour) if it was to be provided by a
    third-party agency. The trial judge then assessed the appropriate figure as
    being $2 million based on the need for two hours per day of care, as well as eight
    hours of nighttime care to be provided by Jason. This figure also included an
    amount for the contingency that Jason may not be available to Leslie for the
    balance of her life based on any number of reasons, such as marriage breakup or
    untimely death.

(6)

Costs

[57]

Finally, the trial judge awarded the respondents costs of the trial, as
    well as costs and disbursements for the first trial in accordance with this
    courts 2012 order, in the amount of $750,000 inclusive of HST and
    disbursements of $167,937.

C.

Issues

[58]

The appellants raise several grounds of appeal. They submit that the
    trial judge:

1)

erred in his analysis and application of the test for determining a
    Towns liability pursuant to s. 44 of the
Municipal Act, 2001
;

2)

erred in his determination of contributory negligence;

3)

exhibited bias against the appellant;

4)

erred in his assessment of the attendant care damages; and

5)

erred in his assessment of the trial costs.

[59]

As I will explain, I need only deal with issues 1, 3 and 4 to dispose of
    this appeal. In my view, the appeal should be allowed in part and a new trial must
    be ordered on the issue of the appellants liability.

D.

analysis

(1)

The test for liability pursuant to s. 44 of the
Municipal
    Act, 2001

[60]

The central issue at trial was determining whether the appellants had
    any liability for the accident pursuant to s. 44 of the
Municipal Act, 2001
.

[61]

Section 44 of the
Municipal Act, 2001
sets out the duty of a municipality
    with respect to road maintenance. It provides as follows:

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.

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.

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.

[62]

In
Fordham v. Dutton Dunwich
,
(Municipality)
, 2014
    ONCA 891, [2014] 327 O.A.C. 302, at para. 26, Laskin J.A. set out the four-step
    test to be applied when a claim is made against a municipality for non-repair.
    It can be summarized as follows:

·

Non-Repair
: The plaintiff must prove
    the existence of a condition of non-repair, that is, a road-based hazard that
    poses an unreasonable risk of harm to ordinary, non-negligent users of the
    road, with a view to the circumstances including the character and location
    of the road.

·

Causation
: The plaintiff must prove
    that the condition of non-repair caused the loss in question.

·

Statutory Defences
: If the plaintiff
    has proven both non-repair and causation, a
prima facie
case is made out
    against the municipality. The municipality then bears the onus of proving that
    one of the three independently sufficient defences in s. 44(3) applies. These
    defences include proof that the municipality took reasonable steps to prevent
    the default from arising (s. 44(3)(b)).

·

Contributory Negligence
: If the
    municipality cannot establish any of the statutory defences, it will be found
    liable. The municipality can, however, still demonstrate that the plaintiffs
    driving caused or contributed to his or her injuries.

[63]

In considering these steps, Canadian courts have taken into account the
    difficult winter conditions that exist and the cost of clearing the roads of
    snow. The courts have emphasized that a municipality is not to be treated as an
    insurer of the safety of the users of its roads by imposing overly onerous
    maintenance obligations. Specifically, a municipalitys failure to salt or sand
    its roads does not automatically expose it to civil liability: [t]he driving
    public cannot expect municipalities to keep the roads free and clear of snow
    and ice at all times during the winter (
Frank v. Central Elgin
    (Municipality)
, 2010 ONCA 574, [2010] O.J. No. 3736, at para. 7).

[64]

In other words, proof of a state of non-repair is not in itself enough
    to establish liability. 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: see
Frank,
at paras. 7-11;
Montani v. Matthews
,
    [1996] 29 O.R. (3d) 257 (C.A.), at p. 270.

(2)

Was the road in a state of non-repair?

[65]

The trial judges central findings as to both the state of non-repair
    and the reasonableness of the appellants response are set out in paras. 160
    and 161 of his written reasons. Those paragraphs read as follows:

There is no evidence that Rankins Corners received any such
    winter maintenance special procedures. The plowing activity that was carried
    out, I find, was inadequate for Rankins Corners. A 3:1 mixture of sand/salt may
    well have been adequate for the Towns road system generally, but not that day
    for Rankins Corners. The Town readily could have spread straight salt through
    Rankins Corners plus a greater than normal application of sand/salt, all
    confined to a hot spot such as Rankins Corners.  Such added focus for
    one or more of its road hot spots would likely not have been a meaningful
    financial burden for the Town or an altering change to its established winter
    maintenance operation. It would, however, likely have led to a centre-bare
    condition, according to the opinion of Messrs. Doner and Bender, which I
    accept. That would have made the centre-line visible and have provided traction
    to the left tires of vehicles proceeding in either direction.

As did Murray J. in
Giuliani v. Halton
, at para. 151,
    I find that the snow accumulation in the range of 2  5 cm in Rankins Corners
    presented a hazard to the users of the road and as such, Rankins Corners fell
    into a state of disrepair that morning.

[66]

The appellants argue that the trial judge erred in finding that the road
    was in a state of non-repair. Specifically, they argue that CR9 is a Class 4
    road and that the trial judges decision imposes an unreasonably high standard
    of maintenance for such a class of road. The trial judges error is apparent,
    they say, from his reliance on
Giuliani
for the proposition that two
    to five cm of snow on a Class 4 road during a snowfall event constitutes a
    state of non-repair. In
Giuliani
, Murray J. was dealing with a
    different and much more highly trafficked road that, in the appellants
    submission, requires a greater degree of maintenance, including winter snow
    clearance. CR9 was a rural road with a much lower traffic volume and the
    provincial standards that apply to such roads only provide for plowing where
    there is an accumulation of eight cm of snow for a Class 3 road and ten cm of
    snow if it is a Class 4 road.

[67]

It appears that no evidence was led at trial nor is there documentary
    evidence in the record to confirm whether the subject portion of the road was
    properly classified as a Class 3 or Class 4 road on the date of the accident. County
    By-law 2941/03, which was passed just six weeks after the accident on February
    27, 2003, lists the entire length of CR9 as Class 4 but the authority of the
    County to so designate is unclear. CR9 was either a Class 4 road, which was assumed
    by the appellants expert and not challenged, or, based on my own review of the
    provincial regulations, a Class 3 road. In any event, it is clear that CR9 was
    a rural and relatively low-traffic two-lane roadway.

[68]

I consider the trial judges reliance in this case on
Giuliani
for
    the above proposition  namely that two to five cm of snow accumulation
    constitutes a state of non-repair  to be misplaced. First, that case involved
    a road covered with both hard-packed snow and ice. There is, however, nothing
    in the record to suggest that icy conditions were present on CR9 on the morning
    of January 3, 2003. Second, the trial judge ought to have specifically
    addressed the fact that CR9 was a lower-traffic two-lane rural road to which a
    lower standard of maintenance was applicable than the road in
Giuliani
,
    which was a principal thoroughfare designed for high traffic volumes and was classified
    by the Region in that case as a road requiring first priority treatment:
Giuliani
,
    at paras. 126 and 175.

[69]

When considering whether a road is in a state of non-repair, a court
    must analyze all of the surrounding circumstances. What is deemed to be a
    reasonable state of repair will depend on the facts of each case. According to
    the plain wording of s. 44(1), the circumstances that must be considered in
    determining the reasonably applicable standard of repair includes the character
    and location of the roadway.

[70]

The jurisprudence is clear that a lower standard will apply with respect
    to the state of repair on a low-traffic rural roadway than on higher-traffic thoroughfares
    and highways. The character and population of the area are to be considered as
    well as the amount of traffic using the road: see Ian Rogers,
The Law of
    Canadian Municipal Corporations
, loose-leaf (2016-Rel. 9), 2nd ed.
    (Toronto: Thomson Reuters Canada Ltd., 2009), at para. 235.32.

[71]

As noted above, for a road to be in a state of non-repair, it must
    present a hazard that poses an unreasonable risk of harm to ordinary,
    non-negligent users of the road in the circumstances. As explained in
Docherty
    (Litigation guardian of) v. Lauzon
, 2010 ONSC 1006, [2010] O.J. No. 5017, non-repair
    is a relative concept and the condition of repair for a rural road does not
    impose a high standard on a municipality. Rural roadways are, by their nature,
    susceptible to the development of adverse conditions. Therefore, drivers have
    to adjust to these conditions (para. 206).

[72]

No such analysis was carried out by the trial judge and his finding that
    Rankins Corners was in a state of non-repair must be set aside. Although the
    trial judge made other findings that provide some support for his conclusion, I
    cannot on this record be satisfied that, had he properly assessed the nature of
    the road and surrounding circumstances, he would necessarily have reached the
    same conclusion.

[73]

Among those other findings made by the trial judge is that Rankins
    Corners was a hot spot, meaning that the municipality recognized that it
    required special winter maintenance attention. Another is that, at the time of
    the accident, the road was very slippery.

[74]

The trial judge also rejected the suggestion that the municipalitys
    duty was necessarily limited to the minimum standards imposed by the province.
    He found that the appellants reasonably followed a policy of sending out plows
    if there was snow accumulation between midnight and 4:00 a.m. and to continue
    plowing until the snow was cleared.

[75]

I agree with the trial judge that mere compliance with minimum standards
    or guidelines is not, in itself, sufficient to avoid liability if there was an
    obvious deficiency or risk. The overriding question remains: in all of the
    circumstances, does the condition of the road pose an unreasonable risk of harm
    to reasonable drivers? See
Fordham
, at para. 53.

[76]

There is, therefore, some support for the trial judges conclusion as to
    the existence of a state of non-repair. It is, however, premised on a faulty
    assessment of the nature and character of the roadway in issue and of whether
    it presented an unreasonable risk of harm to a reasonable driver in all the
    circumstances.

[77]

It is difficult to ascertain what standard of non-repair the trial judge
    ultimately applied in this case, and it would be inappropriate for this court
    to make findings on the record as to the appropriate state of repair for CR9 at
    the time of the accident. As explained below, I have concluded that the trial
    judge committed other errors and that a new trial as to liability is necessary.
    For the purpose of the ensuing analysis I will assume without deciding that the
    trial judge correctly determined that Rankins Corners was in a state of non-repair
    at the time of the accident.

(3)

Did the town take reasonable steps to prevent or correct the state of
    non-repair?

[78]

The appellants argue that the trial judge committed several errors in
    his analysis of this issue. Specifically, the trial judge erred in failing to
    weigh all of the relevant circumstances, such as the condition of the road,
    financial considerations, and the fact that snow was still falling at the time
    of the accident. Further, the appellants argue that the trial judge prejudiced their
    defence by preventing cross-examination of the respondents expert as to the
    cost of applying straight salt rather than a salt/sand mix to roadways and in
    concluding that the Town ought to have applied straight salt as well as greater
    amounts of the sand/salt mixture.

[79]

In my view, the trial judges finding that the appellants did not take
    reasonable steps to prevent the state of non-repair at Rankins Corners from
    arising, or did not take reasonable steps to correct it, must be set aside. I
    reach this conclusion for several reasons. As I will explain, the trial judge
    erred:

1.

in focusing on whether the state of non-repair had in fact been
    corrected rather than on the reasonableness of the steps that were taken by the
    Town;

2.

by making conflicting findings as to the plowing and application of sand/salt
    mixture that was performed at Rankins Corners on that morning; and

3.

in concluding that, because the Town did not apply straight salt in
    addition to a greater amount of sand/salt mixture on Rankins Corners, the Town
    did not respond reasonably to the state of non-repair.

(a)

The reasonableness of the steps taken

[80]

The trial judge not only found that an accumulation of two to five centimetres
    of snow presented a state of non-repair at Rankins Corners, but he also went on
    to find that Rankins Corners ought to have been centre-bare such that the
    centre line would have been visible and vehicles would have had increased traction
    to their left tires when negotiating the curve. For this condition to have been
    achieved, the trial judge determined that the municipality would have had to apply
    straight salt and greater amounts of sand/salt mixture to that portion of the
    road. Its failure to do so, in his view, constituted an unreasonable response
    to the state of non-repair.

[81]

The trial judge was clearly focused on what, in theory, the Town would
    have had to have done in order to have prevented or corrected the state of
    non-repair before the accident occurred, rather than on the reasonableness of
    the Towns response to the state of non-repair in the circumstances. In my
    view, however, the fact that whatever actions the Town took did not ultimately achieve
    the goal of centre-bare pavement or non-slippery road conditions at Rankins
    Corners before the collision occurred is not determinative of whether the
    actions the Town took were reasonable. Given unlimited resources, any town might
    be able to keep its roads centre-bare even in the middle of the worst snow
    storm. That, however, is not the standard to be met.

[82]

The trial judge properly referenced but does not appear to have applied
Ondrade
    v. Toronto (City)
, [2006] O.J. No. 1769 (S.C.J.) where it is noted at
    para. 65 that s. 44(3)(b) of the
Municipal Act, 2001
speaks to action
    rather than to result. In other words, the
Municipal Act, 2001
does
    not create a regime of absolute liability. The steps to be taken by a
    municipality need only be within the range of what is reasonable in the
    circumstances.

[83]

The trial judge may well have been correct that, if straight salt and
    additional sand/salt mixture had been applied to Rankins Corners, the road would
    have been centre-bare at the time of the accident. However, while the goal of
    any maintenance activity is obviously to correct the non-repair, the focus of
    the analysis must be on the reasonableness of the steps taken in all of the
    circumstances.

[84]

The circumstances here include the fact that this was a rural road and
    at the time of the accident Mr. Bush, the only eyewitness with any recall of
    the events, testified that as he approached Rankin Corners it was snowing
    heavily. Neither of these points was addressed by the trial judge in his
    analysis or in his summary of winter conditions at para. 142.

[85]

The trial judges focus ought to have been on the evidence related to
    the Towns response to the snow event. That evidence, some of which the trial
    judge did refer to, includes the following:

1)

The
    Towns overnight patrolman, Bill Docteur, was patrolling and inspecting the
    roads very early in the morning of January 3, 2003. Recognizing the potential for
    hazardous conditions, as found by the trial judge, he called the public works
    foreman, Ron Vankoughnet, at 3:35 a.m. to advise that winter maintenance
    operations were required;

2)

Ron Vankoughnet called plow operators out for 4 a.m. and all thirteen operators
    reported for duty;

3)

Each plow operator was assigned a specific route and, as found by the
    trial judge, CR9 was Wayne Dixons regular route;

4)

One of the Towns snowplows passed through Rankins Corners at about 10
    a.m., plowing snow and depositing material onto the road;

5)

The Town followed a practice of applying 3:1 sand/salt mix to its rural roads;

6)

CR9 was a rural road to which lesser  maintenance standards were
    applicable during a snowfall event based on the MTOs winter maintenance
    classifications and the Countys By-laws;

7)

All three experts on road maintenance who testified at trial agreed that
    a sand/salt mixture is widely used by many municipalities in Ontario as well as
    by the MTO;

8)

The Towns plow drivers were experienced and would know to apply
    additional amounts of sand/salt mixture to hot spots such as Rankins Corners.
    Although the trial judge did not accept the evidence of either Mr. Dixon or Mr.
    Abrams as to their specific activities on that particular day, both testified
    that it was their normal practice to apply an increased amount of sand/salt
    mixture to Rankins Corners.

[86]

The trial judges conclusion that the Town failed to show that it undertook
    reasonable efforts to address the condition of non-repair which prevailed at
    the time of the accident at Rankins Corners rests, almost exclusively, on the
    fact that Rankins Corners was a hot spot and his finding that, had both straight
    salt and additional sand/salt mixture been applied, the road at Rankins Corners
    would have been centre-bare. In other words, because he accepted evidence that the
    application of straight salt as well as additional sand/salt mixture would have
    remedied the state of non-repair, the trial judge concluded that this was the
    response required for the Town to avoid liability. As I will explain, he
    reached this conclusion without making clear findings as to what the Town in
    fact did that morning and there is virtually no analysis or discussion as to
    the reasonableness of the Towns response in light of all the relevant
    circumstances.

(b)

How many times did the Town plow and apply sand/salt mix to Rankins
    Corners before the accident?

[87]

A significant factor in assessing the reasonableness of the Towns
    response to the snow event is the frequency with which it plowed and applied
    material to Rankins Corners. At trial, this was a hotly disputed issue.

[88]

The Town led evidence suggesting several applications of sand/salt
    mixture to Rankins Corners but the trial judge was clearly reluctant to accept
    that evidence, as the Towns key witnesses had little or no independent
    recollection of their actions on the relevant day.

[89]

At least one finding is clear. The trial judge accepted Brian Waytes evidence
    that a plow depositing material had passed through Rankins Corners at about 10:00
    a.m. that morning. A second finding relied on by the appellants is the trial
    judges finding that [b]ased on the evidence of Vern Amey and Ron Vankoughnet,
    I find that the Town plowed and applied a 3:1 mixture of sand/salt to [CR9]
    both ways on two separate occasions between 4:00 a.m. and the time of the
    accident. This level of maintenance is, the appellants argue, well beyond what
    was necessary to satisfy the requirements of s. 44 of the
Municipal Act,
    2001
.

[90]

In the course of oral submissions, however, the respondents raised for
    the first time the suggestion that this latter, critical part of the trial
    judges reasons contains a typographical error. In the respondents view, the word
    cannot was erroneously omitted and the second finding should properly read:
    based on the evidence of Vern Amey and Ron Vankoughnet, I
cannot
find that the Town plowed and applied a 3:1
    mixture of sand/salt to CR9 both ways on two separate occasions between 4:00
    a.m. and the time of the accident.
Counsel for
    the respondents argued in oral submissions that only this version is consistent
    with the trial judges other findings of fact and assessment of the witnesses credibility
    and reliability.

[91]

It is impossible for this court to know with certainty whether this second
    finding contains a typographical error. Given comments made by the trial judge
    in other parts of his reasons, wherein he states that the suggestion of two
    passes in both directions is difficult to reconcile with the visual absence of
    any signs of windrows and that he has no reliable evidence that Wayne Dixon
    made two runs on CR9 that morning, it is quite possible that this in fact was a
    typographical error. We are, however, left to guess as to his finding about how
    many times Rankins Corners was plowed and material deposited at that location.

(c)

Was the application of both straight salt and a greater amount of sand/salt
    mixture required?

[92]

The trial judge found that the application of a sand/salt mixture was
    not an adequate response to the state of non-repair that existed at Rankins
    Corners that day. In his view, what was required for the Towns hot spots including
    Rankins Corners was straight salt plus a greater than normal application of
    sand/salt mixture. This finding that straight salt was required is central to
    the trial judges finding of negligence. He concluded that the mandatory
    application of straight salt was reasonable as it would likely not have been a
    meaningful financial burden for the Town or an altering change to its established
    winter maintenance operation. Had the application of straight salt been performed,
    he stated, it would likely have led to a centre-bare condition, according to
    the opinions of Messrs. Doner and Bender, which I accept.

[93]

There are several problems with the trial judges finding that straight
    salt ought necessarily to have been applied. First, he reached this conclusion
    based on a finding that the use of straight salt would not likely have imposed
    a meaningful financial burden on the Town. However, as noted above, when in
    cross-examination of the respondents expert the appellants sought to explore
    the cost to the Town of using salt rather than a sand/salt mixture, the trial
    judge refused to allow the question. He ruled that because the cost of using
    salt was not pleaded by the municipal defendants in their statement of defence,
    and because it was not set out in their experts report, it could not be
    raised. He went on to say that he would be surprised if any municipality were
    to take the position that its too costly to adequately maintain the roads, so
    we just let our citizens slip and slide all over the roads.

[94]

In my view, the trial judges ruling was incorrect. In an action against
    a municipality for non-repair of a road, the resources of the municipality and
    the cost of the proposed measures can be relevant considerations.

[95]

Whether a municipalitys actions are reasonable or not depends in part
    on the resources that were available to the municipality. In considering
    whether reasonable efforts have been made to keep the road in a state of
    repair, regard must be had to a number of factors including the means available
    to the municipality:
Foley v. Township of East Flamborough
(1898), 29 O.R. 139, at p. 141, reversed in (1899) 26
    O.A.R. 43 (C.A.) but not on this point; see also
Groves et al.
    v. The County of Wentworth
, [1939]
    O.R. 138 (C.A.), per Robertson C.J.O.


[96]

In Ian Rogers,
The Law of Canadian Municipal Corporations
, at
    235.32, the author writes:

In considering whether reasonable efforts have been made to
    keep a road in repair, it seems that the means available to the [municipal] corporation
    must be taken into account.  It is not bound to use the most expensive methods
    of road building and repairing and its duty is subject to a limitation as to
    its financial resources.  This does not mean that the complainant must show
    that the municipality is financially able to perform its duty; the question of
    expense is merely an element in excuse.  Nor does it mean that a municipality
    may plead expense as a conclusive reason for omitting to perform its duty.
    [Citations omitted.]

[97]

As noted by Anglin J. in his concurring reasons in
Hastings (County)
    v. Clinton
, [1924] S.C.R. 195, financial constraints will not in
    themselves justify a municipalitys failure to take steps to correct a state of
    non-repair for a particular road. Financial considerations are, however,
    plainly recognized as one factor to be considered and weighed among others when
    assessing whether a municipalitys efforts to maintain a road were reasonable in
    the circumstances. For example, in
Restoule v. Strong (Township)
, [1999]
    O.J. No. 2979 (C.A.), this court expressly recognized that financial
    constraints are a relevant factor in the analysis, though not in itself
    determinative or to be overemphasized to the exclusion of other relevant
    factors. As Borins J.A. wrote, at para. 17:

Although the authorities seem clear that financial constraints
    represent a factor to be considered by the court in determining liability for
    non-repair of a highway, they represent only one of many factors to be
    considered.

[98]

I note further that, in this case, the statement of claim does not
    contain a specific plea that the alleged negligence was the failure to apply
    straight salt. There was, therefore, no reason for the appellants to have specifically
    pled in their defence that applying straight salt would have imposed an
    unreasonable financial burden on them.

[99]

In my view, the trial judges failure to admit evidence of the financial
    impact of applying straight salt therefore constitutes reversible error, when viewed
    in combination with his conclusion that applying straight salt to one or more
    of the Towns hot spots such as Rankins Corners would not have imposed any
    meaningful financial burden on the Town.

[100]

Moreover, I note
    that the trial judge made his finding that applying straight salt as well as a
    greater amount of sand/salt mixture would not likely have imposed a meaningful
    burden on the municipality despite the testimony of the appellants expert, Mr.
    Leggett. In the course of his evidence, he indicated not only that sand is much
    more readily available than salt, but also that it is much cheaper. This
    portion of Mr. Leggetts testimony does not appear to have been challenged in
    cross-examination and there is no evidence in the record suggesting otherwise.

[101]

As for the trial
    judges suggestion that the required straight salt would be applied only to
    hot spots, while Mr. Doner described how salt is dropped via a chute as
    opposed to being applied with a spinner as in the case of sand, there is no
    discussion in the evidence as to the number of such hot spots nor how straight
    salt could be applied to these hot spots without requiring the appellants to
    use additional trucks loaded with straight salt and to have those trucks travel
    the same roads as the trucks carrying the sand/salt mixture. Nor is there
    evidence as to the attendant costs for this given the judges ruling.

[102]

The trial judge
    also erred in his characterization of the Towns evidence as to why it did not apply
    straight salt on CR9 and its other county roads. As noted earlier, the trial
    judge described the Towns explanation as being that county roads are not all
    paved and that a sand/salt mixture is far more appropriate and effective for
    non-paved roads. This, however, was not the reason advanced by the Town at
    trial. Rather, as the trial judge noted earlier in his reasons, according to
    the evidence of the Towns Roads Superintendent the Towns reasons for not applying
    straight salt were, first, the risk of refreeze in light of the roads
    relatively low traffic volumes and, second, the fact that a sand/salt mixture
    had always worked in the past.

[103]

Finally, the
    trial judge explained that he found support for his conclusion that the failure
    to apply straight salt was negligent in the evidence of the plaintiffs two
    experts, Messrs. Doner and Bender. Although these experts did testify that
    using straight salt likely would have resulted in centre-bare conditions, in
    cross-examination both admitted that, at the time they prepared their reports
    expressing their views, they lacked knowledge of facts relevant to assessing
    the salts effectiveness in the circumstances. These facts include the traffic
    volumes on the road as well as the amount of sunlight and how much snow was
    present on the road at the time. Both agreed that the application of a sand/salt
    mixture is an acceptable and widely used approach to winter maintenance of such
    roads, although one expert felt it was not necessarily the most reasonable or
    practical. The trial judges failure to acknowledge and address this evidence
    in his analysis lends further support to the appellants submission that, in
    concluding that the application of straight salt was necessarily required in
    these circumstances, the trial judge misapprehended the evidence.

(4)

The appropriate remedy

[104]

Ordering a new
    trial is never desirable. It is especially undesirable in this case, where the
    judgment under appeal is the product of a second trial, the first decision
    having been set aside because of a reasonable apprehension of bias on the part
    of the first trial judge.

[105]

In my view,
    however, a new trial on the issue of liability is required. I find myself
    unable to make the substitute findings necessary to resolve the claim, both as
    to the applicable standard of repair for CR9 in light of all the circumstances and
    the reasonableness of the Towns response to the state of non-repair, if indeed
    such a state of non-repair existed at the time. Those findings depend at least
    in part on an assessment of the reasonableness of using a sand/salt mixture
    rather than straight salt given considerations such as the cost differential
    and the resources that were available to the Town. The trial judges ruling
    prevented the appellants from exploring this issue with the respondents
    experts and eliciting their response as to how this might affect their opinion.
    It also precluded fully exploring or leading evidence as to the cost of using straight
    salt in the course of the appellants case.

[106]

Moreover, in the
    trial judges reasons, there is also no clear finding as to how many times
    Rankins Corners was plowed and material was deposited. We know only that it was
    done at least once at about 10:00 a.m. We are left to speculate as to whether
    there was or was not any additional plowing and sand/salt application. The
    trial judge did write at para. 145 that the Town plowed and applied a 3:1
    mixture of sand/salt to [CR9] both ways on two separate occasions between 4:00
    a.m. and the time of the accident but the respondents argued in oral
    submissions, plausibly, that this was a typographical error. Even assuming there
    was in fact no additional plowing beyond the one pass at around 10:00 a.m., we
    are nonetheless left to speculate as to how the trial judge reconciled his
    finding that Rankins Corners was plowed and a sand/salt mixture was spread
    there at about 10:00 a.m. with the evidence that there were no obvious windrows
    and that little sand or salt was visible to those who attended soon after the
    accident occurred at 10:35 a.m. This discrepancy may be due to the fact that, at
    the time of the accident, it was snowing very heavily as indicated in Mr.
    Waytes testimony. Mr. Bush similarly described the weather conditions as consisting
    of heavy snowfall. In that case, if in fact it had been snowing very heavily
    at the time of the accident, this would need to be considered in assessing the
    Towns alleged negligence and the issue of causation.

[107]

These necessary
    findings will have to be made in a new trial.

(5)

Reasonable apprehension of bias

[108]

The appellants
    argue that the trial judge exhibited bias against them and that this bias was
    apparent from the very first day of trial. On that day, the trial judge sparred
    with the appellants counsel during opening statements regarding the
    established legal principles that should be applied by the trial judge in this
    case. These principles included consideration of the character of the road,
    traffic volumes and the like, as these all would have an impact on the extent
    of the duty resting on the municipality to maintain the roads. In the course of
    these exchanges, the trial judges response was to ask counsel: So we potentially
    throw users of such a road, on a January 2nd, under the bus?
[1]

[109]

In the appellants
    submission, the trial judges negative conduct toward the appellants escalated over
    the course of the trial and included unwarranted, aggressive, threatening and intimidating
    interventions, including banging his fist on the desk and making comments such
    as too bad, so sad when the appellants counsel took issue with rulings that
    were unfavourable to the appellants.

[110]

Further, the
    appellants maintain that the trial judge refused to allow highly material
    evidence sought to be tendered by the appellants on critical issues such as the
    budgetary impact of applying straight salt versus a sand/salt mixture, the
    significance of the Lloyd vehicle having been equipped with winter tires and
    the MTOs standards for winter maintenance.

[111]

Finally, the
    appellants submit that there were numerous interjections by the trial judge
    during their cross-examination of the plaintiffs witnesses, which, in the
    appellants view, were made to derail the flow and effect of these
    cross-examinations. No similar interventions were made when the respondents
    counsel was cross-examining the appellants witnesses.

[112]

The test for
    reasonable apprehension of bias has recently been summarized by the Supreme
    Court of Canada in
Yukon Francophone School Board, Education Area No. 23 v.
    Yukon (Attorney General)
, 2015 SCC 25, [2015] 2 S.C.R. 282. The court cited
    the classic, undisputed test as follows, at para. 20:

what would an informed person, viewing the matter realistically
    and practically  and having thought the matter through  conclude? Would he
    think that it is more likely than not that [the decision-maker], whether
    consciously or unconsciously, would not decide fairly?

[113]

Judges are
    afforded a strong presumption of impartiality that is not easily displaced (
Yukon
,
    at para. 25;
Cojocaru v. British Columbia Womens Hospital and Health
    Centre
, 2013 SCC 30, [2013] 2 S.C.R. 357, at para. 22). However, as the
    court noted in
Yukon
, the presumption of a trial judges impartiality
    can be rebutted by the trial judges conduct, particularly by the manner and
    frequency of his or her interventions.

[114]

A review of the trial
    transcript in this case confirms that the trial judges interventions were, on
    occasion, unduly aggressive and disrupted the flow of the appellants
    cross-examination of the respondents witnesses. The trial judges choice of
    words when dealing with the appellants counsel was in some cases unnecessarily
    harsh and he appears to have subjected factual challenges made by the
    appellants to greater scrutiny than those advanced by the respondents. This is
    certainly unfortunate, particularly in light of the fact that this was a
    retrial, the first trial having been set aside for a reasonable apprehension of
    bias. However, in my view, the interventions and comments do not, taken alone
    or together with the other concerns raised by the appellants, displace the
    presumption of impartiality.

[115]

I have reached
    this conclusion even though I do acknowledge that at least one of the trial
    judges evidentiary rulings made against the appellants did prejudice the
    appellants. As noted earlier, I have found that the trial judge erred in
    preventing the appellants from cross-examining the respondents expert as to
    the financial cost of using straight salt. In
Yukon
, the court
    expressed particular concern about situations where there are both procedural
    rulings made against a party and problematic comments by the trial judge to
    that party including unnecessary interventions. While these issues are to some
    extent present here, I consider that the ruling made against the appellant was
    simply an error made in good faith and not the result of a bias against the
    appellants.

(6)

Future attendant care costs

[116]

The only aspect
    of the damages calculation challenged on appeal is the amount awarded for future
    attendant care costs.

[117]

The appellants
    argue that the trial judge found that Leslie required attendant and supervisory
    care of eight hours per night plus two hours per day for a total of 3,650 hours
    per year. The trial judge also found that the appropriate rate for the services
    was $13 per hour. Having determined that this was the required care and the accurate
    cost of that care, the trial judge then simply awarded a round sum of $2
    million dollars in future attendant care damages, a figure that, according to
    the appellants, bears no relation to the trial judges finding of determined
    need.

[118]

In the
    appellants submission, if the economic loss experts present value
    calculations are used, the 3,650 hours per year translate into an award of $1,447,708,
    which is the correct amount and $552,292 less than the amount awarded.

[119]

I would not give
    effect to this submission. The trial judge did, as the appellants submit, find
    that 3,650 hours per year of attendant care at $13 per hour was appropriate. I
    also accept that, using the experts figures, the hours necessary at the rates
    specified would produce the present value figure of $1,447,708. The trial
    judge, however, determined that there were contingencies that ought to be
    factored into his award. Specifically, the trial judge was concerned that, for
    various reasons, such as marriage break-up or untimely death, Leslies husband Jason
    might not be available to care for Leslie for the balance of her life.

[120]

The low rate of
    $13 per hour was premised on Jason providing the night time attendant care.
    Should a private agency be required to provide that care, the rate specified by
    the expert was significantly higher, that is, $25 per hour.

[121]

While one might
    disagree with the magnitude of the adjustment made by the trial judge for
    contingencies, his decision in this regard is not unreasonable. It is entitled
    to deference and I see no basis to interfere.

E.

conclusion

[122]

In conclusion,
    therefore, I would not interfere with the trial judges assessment of damages
    but would set aside the trial judges finding of liability and order a new
    trial on that issue as well as the issues that flow therefrom, such as
    causation and contributory negligence. I would also set aside the trial judges
    award of costs and remit the costs issue to be determined at a new trial.

[123]

With respect to
    the costs of the appeal, I would award the appellants their costs on a partial
    indemnity basis. The parties had agreed to an all-inclusive figure of $35,000
    to the successful party. This, however, was based on one or other of the
    parties being entirely successful. There has, to a degree, been mixed success. Should
    the parties not be able to resolve the issue of costs, I would ask the parties
    to make brief written submissions on the issue, not to exceed two pages. The
    appellants are to provide their submissions within ten days hereof and the
    respondents their submissions within seven days thereafter.

Paul Rouleau J.A.

I agree K. van
    Rensburg J.A.

I agree B.W. Miller
    J.A.

Released: March 28, 2017





[1]
For clarity, I note that the accident in fact occurred on January 3, 2003.


