The Court of Appeal for Ontario has told the County of Simcoe to hit the road, in a decision published on Nov. 24.
Written by Justice David Doherty and agreed to by justices Ian Nordheimer and Jonathon George, the decision dismissed the county’s appeal of a $10.5-million court ruling against it last year that found the county negligent for failing to properly clear snow and ice from County Road 88, as part of a civil suit stemming from a collision on the road back in 2011.
“Certainly, Simcoe’s own procedures called for active ongoing surveillance and maintenance of the road. Unfortunately, that procedure was not followed,” Doherty said in the decision.
While they say the county and its insurers have acknowledged throughout the severity of injuries and damages resulting from the collision, the county’s insurance-appointed legal counsel, Evangelista Barristers and Solicitors, maintained their position that the county complied with its maintenance obligations and the applicable standard of care.
“While we disagree, we respect the recent findings of Ontario’s Court of Appeal that there were insufficient grounds to overturn the trial decision,” they said via email, indicating the county would not be seeking leave to appeal further.
Filed on Aug. 30, 2022, one of the county’s grounds for appeal claimed that in her July 29, 2022 decision, the trial judge, Justice Annette Casullo of the Superior Court of Justice, misunderstood the evidence of expert witness Tim Leggett, who testified about the adequacy of the county’s winter maintenance operations leading up to the collision.
“Even if the trial judge’s reasons confused, to some extent, the contents of Mr. Leggett’s pretrial report, and his testimony, that confusion was not material to either of the essential factual findings to which Mr. Leggett’s testimony was relevant,” Doherty said in the decision.
According to court documents, at about 10:30 p.m. on Jan. 12, 2011, after a snow storm earlier in the day, Melinda Wasylyk was travelling east and Darlene Wos was travelling west, both about halfway between Highway 400 and Sideroad 10, when Wasylyk lost control of her 2003 Ford Taurus. It began sliding forward while rotating counter clockwise and drifted into the westbound lane where the passenger side collided with the front of Wos’ 2002 Chevrolet Impala.
The court found both vehicles came to rest in the westbound lane and Wasylyk suffered “catastrophic” injuries.
“In my view, the connection between Simcoe County’s default and Ms. Wasylyk’s injures is obvious, and the plaintiffs, on a balance of probabilities, have established that the condition of non-repair on CR 88 caused Ms. Wasylyk’s injury,” Casullo said in last year’s ruling.
The county disputed this in their appeal, claiming Wasylyk was on the wrong side of the road when the collision occurred, and as such she needed to demonstrate she was not negligent — something they argued she couldn’t do based on witness claims that Wasylyk lost control of her vehicle twice within a 10-second period.
The county specifically took issue that Casullo did not consider evidence that Wasylyk took no steps to adjust her driving after the first loss of control to prevent a second.
However, Doherty disagreed with this argument.
“It does not follow from the failure to expressly refer to certain evidence, that the trial judge did not consider that evidence,” he said.
Court documents show, the testimony of Wasylyk’s loss of control came from Debbie Smith, who was driving in front of the Wasylyk’s vehicle and watching it through the rear-view mirror.
Doherty notes that while Casullo accepted the testimony that Wasylyk’s car swerved out of control twice in less than 10 seconds, she also expressed significant concerns about that testimony’s credibility and reliability.
According to Doherty, Casullo determined that Smith’s other claim that Wasylyk’s vehicle left the road was untrue, that Smith’s ability to watch Wasylyk in the mirror while also focusing on the road ahead was “significantly limited” in the dark with limited visibility, and that other aspects of her testimony were vague.
“It is not surprising, given the trial judge’s assessment of Ms. Smith’s evidence, that she was not prepared to make any detailed findings of fact based on that evidence,” Doherty said.
In her decision, Casullo instead relied on other evidence including the court finding Wasylyk was not impaired by drugs or alcohol, was wearing her seatbelt, did not have a cell phone at the time and was travelling 20 km/h slower than the posted speed limit.
According to police, Wasylyk was driving on all-season tires which were worn but met the standards set by Ontario's Ministry of Transportation.
“I find no error in the trial judge’s conclusion that the respondent (Wasylyk) was not contributorily negligent in the accident,” Doherty said.
While the county declined to answer the total amount their insurer will be required to pay as result, court records show the total amount of the case has increased by $700,000 to $11.2 million.
Court documents show the road was described by emergency personnel responding to the crash as slippery, with snow filling the shoulders and flowing into the road, in a section known for drifting snow hazards.
Despite that, the snowplow operator responsible for County Road 88 at the time, Gary Payne, was found to have left the route untreated for four to five hours — especially on the eastbound side, which was estimated to have gone un-plowed for eight hours between 2:30 p.m. and 10:30 p.m.
The court also found Payne had taken a three- to 3.5-hour break from 6 p.m. to 9 or 9:30 p.m., despite County Road 88 being considered a Class 1 highway, which take highest priority for snow clearing.
The county declined to answer questions about whether Payne faced any disciplinary actions or if he is still employed by the county.
“The county does not comment publicly on human resources matters or provide personal information regarding its employees,” Collin Matanowitsch, manager of public relations said via email.
The county and its counsel declined to answer directly if the county has implemented any changes to policies and/or procedures since the crash in 2011, to avoid a similar situation in future.
“Our clients at the County of Simcoe take the safety of its residents and communities very seriously. The County has in place a comprehensive winter maintenance program designed with the purpose to keep users of its roadways safe,” Evangelista Barristers and Solicitors said.
