The Supreme Court of Canada should step in to clear up the confusion created by two recent Ontario Court of Appeal judgments that arrived at opposite conclusions on a municipality’s liability for roadway non-repair, according to lawyers.
The Supreme Court of Canada should step in to clear up the confusion created by two recent Ontario Court of Appeal judgments that arrived at opposite conclusions on a municipality’s liability for roadway non-repair, according to lawyers.
On Sept. 19, the three-judge panel in Chiocchio v. Hamilton (City) overturned a trial judge’s finding that the city was 50-per-cent responsible for a crash that paralyzed a man due to its failure to repaint a faded stop line.
But in the Smith v. Safranyos decision released on the same day, a separate appeal court panel upheld a trial judge’s decision to find the same city 25-per-cent liable for the plaintiffs’ injuries for non-repair at an intersection under Ontario’s Municipal Act.
Chiocchio’s lawyer, Michael Smitiuch, says his client intends to seek leave to appeal his case to the nation’s top court.
“He was obviously very disappointed with the decision. His needs are significant and they will remain so for the rest of his life,” Smitiuch says. “There was a potentially conflicting decision released on the same day and, from our perspective, this is a case which raises fundamental issues about road safety in Canada and could potentially impact all drivers across the country.”
James Tausendfreund, of litigation boutique Zuber and Company LLP, who acted for the City of Hamilton in both appeals, wasn’t able to comment on the prospect of a further appeal of the Safranyos verdict, but he says his client was happy with the Chiocchio decision.
“This is a tragic case in which the plaintiff suffered horrendous injuries, but going in, we really believed the lower court’s finding of liability on behalf of the city was problematic,” he says. “I think the Court of Appeal’s decision in Chiocchio sends an important message that in cases where it is alleged that a municipality in Ontario allowed dangerous road conditions to exist, the court at first instance must conduct a rigorous analysis of how that condition actually played a role in the circumstances of the accident.”
“When you look more closely at how the accident actually occurred here, the absence of the stop line really had no effect,” Tausendfreund adds.
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Despite the difference in the results, he says, there was enough to distinguish the two appeal cases from one another.
“I wouldn’t say they were inconsistent because of the specific factual findings in the Chiocchio case,” Tausendfreund says, pointing to the Court of Appeal’s comments about sightline issues overlooked by the trial judge in that matter.
The Chiocchio case dates back to a 2006 accident that left Michael Chiocchio Sr. with devastating injuries. He was the passenger in a van travelling north on a rural road that was T-boned by another driver crossing the lanes from an intersection while heading west.
Only the east-west traffic was controlled by a stop sign, but the sign was set back more than 10 metres from the intersection and more than eight metres behind a faded stop line.
The defendant driver admitted negligence for his failure to stop again when he reached the intersection to check that the way was clear, but the trial judge split his liability equally with the city, ruling it had breached its duty to keep the roadway in a reasonable state of repair by failing to repaint the faded stop line. Had the defendant stopped there, the judge found he would have seen the oncoming van containing Chiocchio and the accident would never have happened.
But the appeal court panel reviewing the decision found that the trial judge had misapplied the “ordinary reasonable driver” standard that covers municipalities’ duty of repair.
“A municipality’s duty does not extend to remedying conditions that pose a risk of harm only because of negligent driving,” the unanimous panel wrote, adding that the trial judge erred by ignoring evidence that drivers stopped at the stop sign would have their view of southbound traffic entirely obscured by a house at the corner of the intersection.
Since no ordinary reasonable driver would enter the intersection directly from the stop sign without stopping again where they could see traffic in both directions, the intersection could not be found to pose an unreasonable risk of harm, the appeal court panel concluded, dismissing the action against Hamilton.
In Safranyos, the plaintiffs were the passengers in a car that pulled out from a set-back stop sign into an intersection the driver thought was clear. According to the decision, they were seriously injured when the car was T-boned by a speeding vehicle driven by a man who had consumed alcohol.
This time, the faded stop line closer to the intersection had been partially removed in a “shave and pave” operation three years before the 2007 accident.
A trial judge apportioned 50-per-cent liability to the mother of the plaintiffs, who was driving their car, and 25 per cent to the speeding driver who hit them.
A further 25 per cent of the blame went to the City of Hamilton for non-repair due to its failure to repaint the stop line and to maintain appropriate sightlines for vehicles approaching the intersection.
Although the appeal court took issue with the trial judge’s suggestion that the inadequate sightlines alone could amount to non-repair, they added that she “clearly found that together the sightlines and the absence of a stop line contribute to the non-repair of this particular intersection.”
“In my view, there is no basis for interfering with the nonrepair conclusion of the trial judge relating to this intersection. It was hers to make,” added Appeal Court Justice David Paciocco for the unanimous panel.
Even if a distinction can be drawn between the facts in the two cases, says Tom Macmillan, a lawyer with Rogers Partners LLP in Toronto, it’s a “pretty thin” one that offers little help for those facing similar situations in future.
“It’s hard to be certain about how a court would rule,” he says.
If the Supreme Court were to take the case, he says, it would also give the nation’s top court an opportunity to look at the relationship between alcohol impairment, excess speed and causation.
“These are things that are fought a lot about in our business,” Macmillan says.
George Wray, a partner in the Toronto office of Borden Ladner Gervais LLP, says the fact patterns of the cases, which each involved negligent drivers pulling into intersections with removed or faded stop lines in Hamilton, Ont., were strikingly similar.
“I think the decisions are inconsistent, and given how similar the underlying facts were, it’s hard to understand how they could have come to opposite conclusions,” says Wray, who was not involved in either case but who frequently defends public sector clients as part of his insurance law practice.
“I’m not sure what we’re supposed to understand from their guidance, and it makes it very difficult to advise clients on what to expect from the appellate court in the future,” he adds.
“This needs to be addressed further by the Supreme Court of Canada, particularly on the issue of a municipality’s obligation to a negligent driver.”
The appeal panel in Safranyos found the trial judge misapprehended evidence about the alleged impairment of the driver who hit the plaintiffs’ car and overturned the decision to find him partly liable.
“Absent the trial judge’s errors in the assessment of the evidence relating to Mr. McHugh, it cannot be said on the balance of probabilities that Mr. McHugh could have avoided the collision had he been driving prudently,” the panel concluded. “It, therefore, cannot be said that Mr. McHugh’s negligence caused or contributed to the collision.”