A detailed account of Melinda Wasylyk's accident and the legal battle that followed
This article was provided by Boland Romaine LLP
In May 2015, Ontario’s Minister of Transportation, Steven Del Duca, pledged to improve winter highway maintenance across the province after an Auditor General report found service levels had declined and available equipment for removing snow and ice from roads was insufficient. The Melinda Wasylyk trial — with the decision released on July 29, 2022, and affirmed on appeal on November 24, 2023 — exposed yet another example of negligent winter maintenance from that pre-2015 timeframe, this time at the regional level, leading to catastrophic injuries and tragedy.
The facts of Wasylyk v. County of Simcoe, 2022 ONSC 4458
On January 12, 2011, 18-year-old Melinda was driving home on a cold night from her first classes at nursing college. She was travelling on one of Simcoe County's busiest roads, CR88, which connects Hwy 400 to Bradford. It was a dark, straight, hilly road, with farmer’s fields on either side, faded fog lines and crumbling asphalt along its edges. As Melinda travelled eastbound on CR88, her vehicle lost traction, started to spin, crossed the centerline, and was hit broadside by an oncoming westbound driver. Melinda sustained catastrophic injuries so profound she was hospitalized for 1.5 years and in need of 24-hour care for the remainder of her life. Damages were agreed before trial at $16 million.
Tim Boland, Darcy Romaine, and Michael Hanton represented Melinda and her family at trial. After hearing from 21 witnesses, Justice A. Casullo found that CR88 was in a state of disrepair, that Simcoe failed to take appropriate steps to treat the roadway, and that the disrepair was the sole cause of the collision.
In discussing the trial team's challenge, Tim Boland noted: “Simcoe blamed Melinda entirely for the accident. It was an all-or-nothing contest between two competing theories of how Melinda’s accident occurred.” Such cases are particularly challenging, says Darcy Romaine, in that “the Municipal Act provides municipalities with the benefit of a number of statutory defences, any one of which, if successful, absolve them of liability.”
Simcoe claimed CR88 was not dangerous and that Melinda was an inattentive driver who drifted onto the shoulder of the road, lost control, overcorrected, and travelled into the oncoming lane. It pointed to spilled coffee, evident in the wreckage, and accounts of the radio playing loudly as indicators of her distraction.
Simcoe called an eyewitness, a driver ahead of Melinda, who testified at trial that the roadway was clear and that she had seen Melinda swerve onto the shoulder. Simcoe also retained a mechanical engineer to reconstruct the accident, who testified that the roads had to be dry to provide sufficient grip for the car to swerve across the road and that a slippery shoulder would account for the initial loss of control. The police reconstruction report, recalled Boland, relied heavily on the witness’s observations. Boland further explained how “Melinda’s severe brain injury posed an additional hurdle in proving liability, as she did not have any memory of the accident (or even six months prior), making her helpless to contradict Simcoe’s position. Another significant challenge for the trial team was that Simcoe’s handwritten maintenance logs suggested its plows had been actively treating the road at appropriate times before the collision. It retained a transportation engineer who testified that Simcoe’s operations were consistent with industry practice.”
Boland Romaine was the third law firm the Wasylyks had retained before the discovery stage. The team spent hundreds of hours pouring through records, reconstructing timelines, sourcing experts, and reviewing publicly available Simcoe records. Says Romaine, “One of the initial revelations they uncovered was a doubling of the route lengths at the evening shift change.” He explains that just before the evening rush hour, Simcoe went from five plow operators down to four, and rather than combining low-priority routes, it made the highest-priority route longer. Romaine explained how further analysis showed that every plow operator was doing something different. Some were sanding; some were salting; some were mixing sand and salt in different ratios; some were spreading lots of material; and some were spreading very little material and only applying it occasionally.
This disorganized system, explains Romaine, was not a prominent feature of the ultimate decision, as the trial was focused on the actions of the particular plow operator responsible for CR88 and whether he had maintained CR88 in the relevant time before the collision.
In establishing the presence of ice on the roadway, the court preferred the numerous accounts of firefighters and police officers called by Boland Romaine who were on the scene, made contemporaneous notes and remembered the glare on the road and the slipperiness of the conditions over the evidence of the witness who never walked upon the road surface and had thought the road was dry. The team also called a forensic photographer who, by adjusting exposure levels, could make visible reflections of headlights on the icy highway concealed by darkness. The evidence was controversial and handled carefully by the trial judge, being the first time in a civil lawsuit that such evidence was challenged and accepted. Read more on this here.
As for whether Melinda lost control on the shoulder or the road surface, Boland Romaine called a responding engineer who showed multiple computer-modelled scenarios in which Melinda’s vehicle could have lost traction and reached the same resting position without travelling onto the shoulder but who testified that there was insufficient roadway evidence to establish which scenario was the one that occurred. This, says Boland, was a challenging position, as the plaintiff has the burden of proof, and the plaintiff’s engineers could not, by math alone, establish which scenario was most likely.
The case, says Boland, is also of evidentiary significance for highlighting the dangers of over-reliance on computer models when there is insufficient data. Justice Casullo rejected the PC Crash scenarios from both sides’ experts, finding that such models were limited without knowing Melinda’s speed, steering inputs, or braking inputs and without skid or gauge marks on the road to suggest her direction of travel. Her Honour concluded: “It appears to the court that the data could be manipulated to render a simulation that fit within either expert’s reconstruction theory.”
Justice Casullo, instead, relied on admissions developed in the cross-examination of Simcoe’s police witness, who had also walked the scene. He agreed that with the ambulance gurney marks still visible in the collision scene photos hours after the collision, had Melinda’s vehicle gone onto the shoulder, it would have left even more extensive markings, and none were present. He also agreed that for a vehicle to get onto the shoulder, it would have to cross over a strip of ice that lined the roadway. Given that the police reconstructionists could not find such tire marks on the shoulder after a thorough search, Justice Casullo concluded that Melinda’s loss of control occurred on the slippery roadway.
As for Simcoe’s maintenance efforts, under cross-examination, its road patroller acknowledged that he instructed all plows to be out servicing roads. The plaintiffs were able to establish that the plow operator responsible for CR88 had remained in the yard for over three hours instead of servicing the road at critical times as expected and had left the eastbound lane unattended for 8 hours, over which time traffic would have compacted and polished the snow that was blowing across the roadway. Although the plow operator claimed his records were contemporaneous and showed that he had serviced CR88 three times, with his last pass occurring minutes before the collision, any claim that he had sanded CR88 moments before the collision was contradicted by the observations of first responders who did not see any sand on the road; the admission of Simcoe’s patroller who did not observe any sand in the police photographs; and, the testimony of the independent witness who had no recollection of seeing a plow pass by in the oncoming lane.
Simcoe appealed and argued that the trial decision had several palpable and overriding errors. The plaintiffs’ appeal team included Tom Curry, Derek Knoke, Tim Boland, Darcy Romaine, and Michael Connolly. Writing for a unanimous OCA, Justice Doherty rejected all of Simcoe’s grounds of appeal. Although the plaintiffs’ winter maintenance expert tendered several theories for how the ice formed (i.e. refreeze and snow compaction), Justice Doherty reinforced that a plaintiff need not prove the cause of the disrepair to establish liability against a road authority: “...the two explanations for the icing of the road are not mutually exclusive, or even inconsistent with each other...It was not necessary to establish that the road was in a state of disrepair to demonstrate how it became icy...”
The appeal decision supports the high deference accorded to a trial judge’s allocation of fault. Simcoe referred the Court of Appeal to several trial decisions in which contributory negligence had been found against drivers who initially lost control but failed to adjust their driving to the conditions. Justice Doherty did not find that those cases provided a reason to interfere with Justice Casullo’s decision: “The loss of control twice in a short time span could reasonably be viewed as evidence of just how slippery and hazardous the road was at the relevant time and place... Findings of negligence or contributory negligence turn on the evidence of the particular case and, more importantly, the assessment of that evidence by the trier of fact who heard the evidence.” After concluding that the evidence of the only eyewitness to the accident “provided little assistance” as to the time Melinda had to react after her first loss of control or what steps she took in response, the Court of Appeal found no palpable and overriding error in Justice Casullo’s findings.
Boland Romaine Personal Injury Lawyers is one of Ontario’s most respected personal injury firms with over 40 years of trial experience. Voted as one of the top 10 personal injury firms by Canadian Lawyer Magazine, Boland Romaine’s lawyers have represented the province’s most vulnerable injured victims in court and won. Trial experience will protect the injured if negotiations break down. A lawyer for the injured needs the fortitude to say “no” to unreasonable offers and the commitment and the skill to take the injured person to trial.
Knowing the importance of trial experience is important. Many personal injury lawyers imply that they have it when they don’t. They may state that they “appear” at various court levels, but that doesn’t mean they went to trial. They may say they “fight” or that they are “tough,” but if they have never gone to trial for their clients in the past, what exactly did they fight, and just how tough are they?
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