COURT OF APPEAL FOR ONTARIO

CITATION: Smith v. Safranyos, 2018 ONCA 760

DATE: 20180919

DOCKET: C63133 and C63175

Strathy C.J.O., Roberts and Paciocco JJ.A.

BETWEEN

Madeline Smith, Laura Smith, and Randy Smith,
    minors by their Litigation Guardian, Florence Smith, and Florence Smith
    personally, Thomas Smith, Thomas Smith Jr. and Madeline Smith, Edward Smith,
    Gladys Lianos, and George Lianos

Plaintiffs (Respondents)

and

Dawn Marie Safranyos
,
Daryl S. McHugh
,
    the
City of Hamilton
, and Cumis Insurance

Defendants (
Appellants
/
Respondent
)

AND BETWEEN

Alexandra Safranyos and Victoria Safranyos, both
    infants under the age of 18 years by their Litigation Guardian, Shelly Lalonde,
    and Shelly Lalonde personally and Cynthia Green

Plaintiffs (Respondents)

and

Dawn Marie Safranyos
,
Daryl S. McHugh
,
    and the
City of Hamilton

Defendants (
Appellants
/
Respondent
)

Barry A. Percival and Grant D. Bodnaryk, for the
    appellant, Daryl S. McHugh

David A. Zuber, James B. Tausendfreund and Marcella Smit,
    for the appellant, the City of Hamilton

Robert J. Hooper and Mary Grosso, for the respondents,
    Madeline Smith, Laura Smith, Randy Smith, Florence Smith, Thomas Smith, Thomas
    Smith Jr., Madeline Smith, Edward Smith, Gladys Lianos, and George Lianos (the
    Smith respondents)

M. Claire Wilkinson, for the respondents, Alexandra
    Safranyos, Victoria Safranyos, Shelly Lalonde, and Cynthia Green (the
    Safranyos respondents)

Jack F. Fitch and Ryan Khan, for the respondent, Dawn
    Marie Safranyos

Heard: March 27, 2018

On appeal from the judgment of Justice Kim A.
    Carpenter-Gunn of the Superior Court of Justice, dated December 7, 2016
    (unreported).

Paciocco J.A.:

OVERVIEW

[1]

On June 16, 2007, at 1:03 a.m., a horrendous two car collision occurred
    in the City of Hamilton at the intersection of Upper Centennial Parkway and
    Green Mountain Road. A vehicle operated by Ms. Dawn Safranyos, carrying four
    children, failed to yield the right of way upon entering Upper Centennial
    Parkway, a through highway, and was T-boned at highway speed by a vehicle
    operated by Mr. Daryl McHugh. Mr. McHugh had consumed alcohol and was exceeding
    the 70 kilometre per hour speed limit by at least 15 kilometres per hour. The
    occupants in Ms. Safranyoss vehicle were all seriously injured.

[2]

Lawsuits were brought on behalf of the injured children and their family
    members against Ms. Safranyos, Mr. McHugh, and the City of Hamilton
    (Hamilton). The basis for the claims against Ms. Safranyos and Mr. McHugh
    related to their alleged negligent manner of driving that played a role in
    causing the collision.

[3]

The claims against Hamilton were based on the allegation that non-repair
    of the intersection, given its design and condition, was a cause of the
    accident.

[4]

The claims against all three defendants were tried together, but the
    trial was bifurcated. Only the liability trial has so far been concluded. A
    damages trial has yet to be held.

[5]

The trial judge found each of the defendants liable. She apportioned liability
    at 50 percent to Ms. Safranyos, and 25 percent to each of Mr. McHugh and
    Hamilton.

[6]

Ms. Safranyos has not appealed the findings of liability or
    apportionment that affect her. Both Hamilton and Mr. McHugh appeal the findings
    of liability against them.

[7]

I would dismiss Hamiltons appeal. The trial judge applied the correct
    legal test in finding Hamilton to be liable for non-repair under the
Municipal
    Act, 2001
, S.O. 2001, c. 25, s. 44 (
Municipal Act
). She was
    also entitled, on the evidence before her, to find that this particular
    intersection was in a state of non-repair.

[8]

However, notwithstanding the deferential standard of review that applies
    to determinations of fact, I would allow Mr. McHughs appeal. In my view, the
    trial judge committed palpable and overriding errors in finding him liable. I
    would dismiss the action against him as I see no evidence upon which he could properly
    be found liable.

BACKGROUND

[9]

Upper Centennial Parkway is an arterial road running north and south
    with two lanes in each direction. Green Mountain Road is a local road with one
    lane in each direction. It runs east and west. The two roads intersect at a
    four-way intersection. In June 2007, stop signs only affected traffic entering
    the intersection from Green Mountain Road. There were no stop signs or traffic lights
    affecting drivers along Upper Centennial Parkway at the intersection. A
    drive-in theatre is located on the north side of Green Mountain Road, east of
    Upper Centennial Parkway.

[10]

On
    June 15, 2007, Ms. Safranyos drove the four minor plaintiffs to the drive-in
    theatre to watch two movies. They arrived at approximately 8:00 p.m. and left
    at approximately 1:00 a.m. on June 16, 2007 after the second movie ended. Ms.
    Safranyos turned onto Green Mountain Road, heading west towards Upper Centennial
    Parkway.

[11]

Wayne
    Jackson, a witness at trial who also attended the drive-in theatre that night,
    left the theatre at about the same time as Ms. Safranyos. He also intended to
    proceed through the Upper Centennial Parkway and Green Mountain Road intersection
    that night. His car was behind Ms. Safranyoss car, separated by one white BMW
    sedan, at the time of the accident. Mr. Jackson could look over the BMW and see
    Ms. Safranyoss car because he was driving a taller Chevrolet Suburban SUV.

[12]

At
    the same time, Mr. McHugh was driving northbound along Upper Centennial Parkway
    towards the intersection with Green Mountain Road in a Chevrolet Cavalier.
    Earlier that night, Mr. McHugh had attended a house party and consumed four to
    six beers between 9:45 p.m. and 11:30 p.m. Mr. McHugh was driving alone. His
    friend, Dillon Baker, who also attended the same house party that night, was
    driving behind him in a separate car. They left the house party at
    approximately the same time. It was unclear how far behind Mr. Baker was from
    Mr. McHugh  but he was not close enough to witness the accident. Mr. Baker,
    however, did arrive on the scene of the accident shortly after the accident
    occurred.

[13]

The
    speed limit on Upper Centennial Parkway heading northbound towards Green Mountain
    Road varies. The speed limit is 80 kilometres per hour for some distance, but
    80 metres from the intersection, it drops down to 70 kilometres per hour. Mr.
    McHugh was driving at least 85 kilometres per hour as he approached and entered
    the intersection that night.

[14]

There
    was evidence before the trial judge that according to the
Ontario Traffic
    Manual
(OTM), a Transport Association of Canada guideline for designing
    roads and road markings used by the City of Hamilton, given the speed limit on
    Upper Centennial Highway an intersection warning sign should be located 335
    metres from the intersection. The warning sign facing northbound traffic,
    including Mr. McHugh, was 125 metres from the intersection.

[15]

At
    approximately 1:03 a.m., Ms. Safranyos signalled to turn left to head
    southbound onto Upper Centennial Parkway. She stopped at the stop sign
    controlling westbound traffic on Green Mountain Road. She looked left once,
    concluded that it was safe to proceed, and then rolled towards the
    intersection. She did not stop at the intersection nor look left again to see
    that it was clear to continue. Ms. Safranyos accelerated into the intersection
    and was struck by Mr. McHugh.

[16]

Mr.
    McHugh testified that he was about three car lengths, or 18 metres, away from
    the intersection when Ms. Safranyos accelerated into his lane. Mr. Jackson
    testified that Mr. McHughs vehicle came out of nowhere. The trial judge
    found that Mr. McHugh was at least 125 metres away when Ms. Safranyos stopped
    at the stop sign.

THE CITY OF HAMILTON APPEAL

A.

Additional Relevant Facts and Reasons for Judgment

[17]

The
    non-repair claims against Hamilton, based on the statutory tort set out under
    the
Municipal Act
, s. 44, relate to the design and condition of the
    east side of the intersection as it existed on June 16, 2007.

[18]

The
    westbound stop sign Ms. Safranyos encountered on Green Mountain Road as she
    approached Upper Centennial Parkway was set 10 metres back from the eastern
    edge of the intersection. The stop line that was once painted at the eastern
    edge of the intersection was removed in a shave and pave in 2004 and had not been
    repainted by June 2007.

[19]

There
    was evidence before the trial judge that in 2000 the City of Hamilton prepared a
    pavement marking design for that intersection calling for a painted stop line
    on the eastern edge of the intersection, but not for the western edge of the
    intersection. There was also evidence presented that there are no records
    indicating that Hamilton reconsidered that design when they moved to an as
    required stop line policy in 2001, or after the shave and pave in 2004.

[20]

There
    is also a steel guardrail on the east side of Upper Centennial Parkway, south
    of Green Mountain Road, running up to the intersection. In addition, there are
    elevation changes, as Green Mountain Road rises to connect with Upper
    Centennial Parkway. Mr. McHugh was driving beside that guardrail as he
    approached the intersection, going northbound in the curb lane of Upper
    Centennial Parkway. There was evidence before the trial judge that, given the
    location of the guardrail and the elevation changes, approximately 25 metres
    from the intersection the headlights of oncoming northbound compact vehicles driving
    in the curb lane, such as Mr. McHughs Cavalier, can disappear from the view of
    westbound drivers such as Ms. Safranyos. The evidence was also to the effect
    that it is 25 metres from the intersection that drivers approaching an
    intersection will tend to look to their left for oncoming traffic,

[21]

In
    finding that Hamilton failed to keep the highway in proper repair, contrary to
    s. 44, the trial judge featured two specific but related shortcomings. First, she
    concluded that to be in a reasonable state of repair, Green Mountain Road
    required a painted stop line where it met Upper Centennial Parkway. Second, the
    sightlines for vehicles approaching the intersection were not appropriate and
    could not meet the reasonable state of repair standard. She held that together these
    breaches were causes of the accident, and she rejected Hamiltons attempt to
    defend the condition of the intersection.

[22]

As
    I detail below, in my view the trial judge was entitled to make a finding of non-repair
    relating to this specific intersection, in all of the circumstances. As
    indicated, the trial judge focused on two separate instances of non-repair. The
    evidence supporting the stop line non-repair is solid, but the foundation for
    finding non-repair based on the sightlines is not as concrete. It is clear from
    her decision, however, that the trial judge found that the sightline problems
    she identified enhanced the risks that the absence of a stop line presented to drivers
    exercising ordinary reasonable care. Put otherwise, although she featured these
    two issues in her decision, at base her finding was that the combined effect of
    these and other related factors rose to a level that goes beyond municipal
    discretion in intersection design and road markings, amounting to non-repair.

B.

Hamilton Appeal  Issues

[23]

Hamilton
    alleges that the trial judge committed errors of law, and errors of mixed fact
    and law. I have reordered Hamiltons grounds of appeal for convenience in this analysis:

(1)

Did the trial judge err in law by misapplying the reasonable driver
    standard when determining whether the intersection was in non-repair?

(2)

Did the trial judge err in law in finding that the absence of a stop line
    constituted a non-repair by:

a.

treating Ontario Traffic Manual guidelines as legally enforceable
    standards of civil liability; or

b.

improperly drawing adverse inferences and using Hamiltons policies in finding
    non-repair?

(3)

Did the trial judge commit a palpable and overriding error in finding
    that the sightlines constituted a non-repair?

(4)

Did the trial judge commit a palpable and overriding error in finding a
    causal link between the intersections non-repair and the accident?

[24]

I
    will describe the legal test for non-repair before analyzing these grounds of
    appeal, in turn.

C.

Hamilton Appeal  Analysis

[25]

The
Municipal Act
, s. 44, sets out the statutory obligation Hamilton was
    found to have breached. It provides:

Maintenance

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 or 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.

Regulations

(4) The Minister of Transportation may make regulations
    establishing minimum standards of repair for highways and bridges or any class
    of them.

General or specific

(5) The minimum standards may be general or specific in their
    application.

Adoption by reference

(6) A regulation made under subsection (4) may adopt by
    reference, in whole or in part, with such changes as the Minister of
    Transportation considers desirable, any code, standard or guideline, as it
    reads at the time the regulation is made or as it is amended from time to time,
    whether before or after the regulation is made.

[26]

In
Fordham v. Dutton-Dunwich (Municipality)
, 2014 ONCA 891, 70 M.V.R.
    (6th) 1, at para. 26, Laskin J.A. set out the four-step test that is to be
    applied in analyzing whether a municipality is liable under s. 44 of the
Municipal
    Act
:

1.

Non-repair
: The plaintiff must prove on a balance of
    probabilities that the municipality failed to keep the road in question in a
    reasonable state of repair.

2.

Causation
: The plaintiff must prove the non-repair caused the
    accident.

3.

Statutory Defences
: Proof of non-repair and causation establish
    a
prima facie
case of liability against a municipality. The
    municipality then has the onus of establishing that at least one of the three
    defences in s. 44(3) applies.

4.

Contributory Negligence
: A municipality that cannot establish any
    of the three defences in s. 44(3) will be found liable. The municipality can,
    however, show the plaintiffs driving caused or contributed to the plaintiffs
    injuries.

[27]

The
    first two steps of the four-step test  (1) determining whether the plaintiff
    has first proved non-repair, and (2) causation  resolve whether there is a
prima
    facie
case of liability.

[28]

If
    a
prima facie
case of liability is established, step three requires the
    municipality to establish, on a balance of probabilities, any statutory
    defences outlined in s. 44(3) that it seeks to rely on.

[29]

If
    no statutory defences apply, then at step four the municipality is entitled to
    attempt to show a plaintiffs contributory negligence. This fourth step is not
    material here, since no allegation of contributory negligence is made against
    the infant plaintiffs.

[30]

Hamilton,
    however, claims that the trial judge committed errors of law with respect to
    her analysis of the first three steps.

(1)

Did the trial judge misapply the test for non-repair?

[31]

Non-repair
    will be established if the plaintiff proves on a balance of probabilities that
    the municipality failed to keep the road in question in a reasonable state of
    repair:
Fordham
,

at para. 26. The applicable legal test is,
    was the road at the material time sufficiently in repair that those users of
    the road, exercising ordinary or reasonable care, could use it in safety:
Deering
    v. Scugog (Township)
, 2010 ONSC 5502, at para. 100, affirmed 2012 ONCA 386,
    leave to appeal from C.A. refused [2012] S.C.C.A. No. 351. In adopting the
Deering
standard of care test, Laskin J.A. elaborated in
Fordham
, at para.

28, that ordinary reasonable drivers are not perfect drivers; they make
    mistakes, but he cautioned, at para. 29, a municipalitys duty of reasonable
    repair does not extend to making its roads safer for negligent drivers.

[32]

There
    is no question that Ms. Safranyos was a negligent driver, and that she
    contravened s. 136(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8.
    Subsection 136(1) provides:

136 (1) Every driver or street car operator approaching a stop
    sign at an intersection,

a)

shall stop his or her vehicle or street car at a marked stop line or, if
    none, then immediately before entering the nearest crosswalk or, if none, then
    immediately before entering the intersection; and

b)

shall yield the right of way to traffic in the intersection or
    approaching the intersection on another highway so closely that to proceed would
    constitute an immediate hazard and, having so yielded the right of way, may
    proceed.

[33]

Building
    on this, Hamilton argues that the trial judge erred in law in misapplying the
    non-repair standard. It says that the trial judge ignored both of Laskin J.A.s
    admonitions. It urges that the trial judge found Hamilton liable because the
    road was not safe for negligent drivers such as Ms. Safranyos, and in finding
    that Ms. Safranyos was merely mistaken when she failed to stop at the entrance
    to the intersection after the stop sign.

[34]

I
    do not accept either argument.

[35]

The
    fact that Ms. Safranyos was negligent is not a bar to a non-repair finding. A
    non-repair action can succeed even where a negligent driver was the immediate
    cause of the accident. The courts in both
Deering
and
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, found municipalities to be
    liable to negligent drivers for non-repair. As long as road conditions that
    would imperil ordinary drivers constitute a but for cause of the accident, a
    liability finding against a municipality may be appropriate.

[36]

The
    trial judge clearly understood this:

·

She described the law correctly, that the state of the repair of
    the road hinges on an ordinary driver using reasonable care.

·

When making her non-repair findings she said on three separate
    occasions that the absence of a stop line and the impaired sightlines posed an
    unreasonable risk of harm to reasonable drivers.

·

She relied in her reasons on the impact that the alleged
    non-repairs would have for drivers generally, including:

o

that the absence of a stop line created ambiguity as to where a
    driver was required to stop and deceived drivers; and

o

that the visibility of vehicles on Upper Centennial Parkway to
    drivers on Green Mountain Road was partially obstructed.

·

She noted the failure of Hamilton to follow its own stop line
    policies.

·

She noted that all but one of the accidents that have occurred at
    the intersection involved drivers turning from Green Mountain Road.

[37]

Therefore,
    the trial judge did not misunderstand the law. The gauge she used was the
    proper one of whether the road was in a sufficient state of repair to be safe
    for drivers exercising ordinary or reasonable care.

[38]

Hamilton
    argues that even if she stated the law correctly, she applied it incorrectly.
    Hamilton contends that where there is a stop sign, a driver of ordinary
    reasonable care would comply with s. 136(1) and stop immediately again before
    entering the intersection, whether or not there is a painted stop line. In
    other words, any driver failing to stop immediately before entering the
    intersection is not a driver of ordinary reasonable care.

[39]

In
    support of this proposition, Hamilton cites
Kennerley v. Norfolk (County)
,
    [2005] O.J. No. 4782 (S.C.), at para. 14, which described the failure to stop
    immediately before entering an intersection as reckless conduct, or an act of
    folly. Hamilton also quotes the
dictum
from
Fordham
, at para.
    37, to the effect that drivers who ignore important traffic signals, such as
    stop signs, are not driving with reasonable care, and
Chaschuk (Hurlbert)
    v. Lebel
(1981), 12 M.V.R. 228 (Ont. C.A.), [1981] O.J. No. 157, at p.
    232, declaring that it may be negligent to miss a visible traffic signal that
    has only momentarily changed.

[40]

Hamilton
    then argues that since it is always negligent to fail to stop immediately
    before entering an intersection marked with a stop sign, only negligent drivers
    are put at risk by the absence of a painted stop line. Therefore a finding of
    non-repair based on the absence of a stop line is inappropriate given the
Fordham
decision.

[41]

In
    my view, Hamiltons argument is untenable. It would immunize municipalities
    from s. 44 liability, regardless of the character or quality of their stop
    signs and markings.

[42]

Its
    reasoning is also too simplistic. The question under s. 44 is the fact specific
    one of whether the road in question was sufficiently in repair at the material
    time that users exercising ordinary or reasonable care could use it in safety. Simply
    put, if an intersection is rendered unsafe for ordinary or reasonable drivers in
    whole or in part because of the placement or condition of stop signs and road
    markings, a municipality cannot avoid liability by relying on
Highway
    Traffic Act
, s. 136(1).

[43]

The
    law does not say otherwise. In none of the cases relied upon by Hamilton was
    there any issue with the integrity or adequacy of stop signals. In this case
    there was, and the trial judge applied the correct test for non-repair in
    coming to the decision she did.

[44]

The
    one place in her decision where the trial judge did exhibit confusion about the
    ordinary driver standard did not prejudice Hamilton. Specifically, after
    reviewing non-repair decisions the trial judge commented that [b]ased on the
    case law, Dawn Safranyos ought to be held to the standard of the ordinary
    driver using ordinary care. This does not reflect the law of non-repair. Given
    the trial judges conclusion that the conditions said to constitute non-repair
    posed an unreasonable risk to ordinary drivers, whether Ms. Safranyos met the
    standards of the ordinary driver using reasonable care was immaterial on the
    question of non-repair. She did not have to satisfy the standard of an ordinary
    driver using reasonable care for Hamilton to be liable so long as its
    non-repair was a but for cause of the accident, and posed an unreasonable
    safety risk to drivers who exercised reasonable care.

[45]

For
    this reason, the trial judges problematic characterization that Ms. Safranyos
    was mistaken in failing to stop is immaterial to the outcome of this appeal. Whether
    Ms. Safranyos was mistaken as the trial judge said here, or negligent as the
    trial judge said elsewhere, does not matter to Hamiltons non-repair liability.
    Ms. Sanfranyoss negligence only goes to the apportionment of liability.

[46]

I
    would therefore not give effect to Hamiltons claim that the trial judge applied
    the improper legal test for non-repair.

(2)

Did the trial judge err in law in finding that the absence of a stop line
    constituted a non-repair?

[47]

Hamilton
    argues that the trial judge committed two legal errors in finding that the
    absence of a stop line constituted a non-repair. First, Hamilton argues that
    the trial judge erred by treating the OTM as imposing a mandatory rule when the
    OTM provides guidelines, not standards of civil liability:
Fordham
, at
    paras. 51-53; and
Greenhalgh v. Douro-Dummer (Township)
, [2009] O.J.
    No. 5438 (S.C.), at paras. 66-68, affirmed 2012 ONCA 299. Second, Hamilton
    argues that the trial judge erred by relying on adverse inferences in finding a
    non-repair. In my view, the trial judge committed neither error.

(a)

Did the trial judge use OTM guidelines to define the standard of care?

[48]

The
    OTM, Book 11 guidelines entitled Markings and Delineation, at pp. 11 and 71, provide
    in relevant part:

The purpose of the Book is to promote uniformity of treatment
    in the design and installation of markings and delineation throughout Ontario.
    It is the practitioners fundamental responsibility to exercise professional
    engineering judgement on technical matters in the best interests of the public,
    including safety and cost-effectiveness. The following standard terminology
    will provide the user of this Book with guidance on what practices are
    recommended and when judgement can be applied:

Must
indicates a mandatory condition. Where
    must is used to described the design or application of the device, it is
    mandatory that these conditions be met in order to promote uniformity where
    delineation complements legally enforceable regulations

Should
indicates an advisory condition. Where
    the word should is used, the action is recommended but is not mandatory.
    Should is meant to suggest good practice in most situations and to recognize
    that there may be valid reasons not to take the recommended action.

[]

3.8 Intersections

[]

At both urban and rural intersections, a stop line (also called
    a stop bar)
must
be used to indicate the point at which a vehicle must
    stop in compliance with the STOP sign. A stop line must be a solid white
    retroreflective line between 30 cm and 60 cm wide

Where there is no pedestrian crosswalk, the stop line
must
be located between 1.25 m and 3 m upstream of the projected nearside edge of
    the intersecting road. At STOP signs where visibility is restricted, the stop
    line should be located so that the driver of the vehicle properly positioned
    behind the stop line has an adequate view of approaching cross traffic in both
    directions. The stop line should also be positioned with reference to the
    clearance needs of cross traffic and pedestrians

[Underlining added.]

[49]

The
    trial judge did not use OTM guidelines as if they established Hamiltons standard
    of care. She did not say that the guidelines were binding. Instead, she stated expressly
    that the O.T.M. book 11 is instructive of the standard of care, and emphasized
    in her concluding remarks that [t]he court is not simply relying on the O.T.M.
    in coming to its conclusion. Rather, the O.T.M. is one item combined with other
    cogent evidence that has guided the court when arriving at its conclusions.

[50]

When
    she noted that, according to OTM standards a stop line must be used, the
    trial judge was doing nothing more than what Howden J. did in
Deering
,
    at para. 243, by recognizing that where the OTM manual says must a court
    should ask whether there are compelling reasons not to follow that guideline. In
Fordham
, at paras. 52-53, Laskin J.A. quoted this proposition and
    explained that it did not apply in the case before him because the material
    guideline at issue in
Fordham
used the words should, not must.

[51]

Nor
    does the trial judges reasoning support the claim that she used the guidelines
    as mandatory directions prescribing the standard of care. The trial judge did
    not rely solely on the OTM guidelines in coming to her decision. She had other evidence
    supporting her non-repair finding, including opinions from three expert
    witnesses (Gerry Forbes, Robert Blankstein, and Robert Gilchrist) that a stop
    line ought to have been used, that the stop line disappeared in a shave and
    pave and was not repainted as it should have been in the ordinary course, as
    well as the adverse inferences that I am about to address.

(b)

Did the trial judge err by improperly using adverse inferences and
    Hamiltons policies in finding non-repair?

[52]

The
    trial judge used adverse inferences against Hamilton to support her non-repair
    finding relating to the absence of a stop line. Hamilton failed to call three
    witnesses who the trial judge concluded would have been uniquely placed to
    explain whether a stop line was required. These potential witnesses were also
    uniquely placed to assist in interpreting municipal documentation, including a
    Pavement Marking Design drawing that made a provision for a stop line at the
    westbound entrance to the Green Mountain Road and Upper Centennial Parkway intersection,
    as well as policy documents relating to road markings. One of the potential witnesses,
    Mr. Hart Solomon, was a traffic engineer who drafted the stop line policy.
    Another, Mr. Richard Galloway, authored the Pavement Marking Design document. And
    the third, Mr. Rick Walshaw, was a Hamilton employee who was involved in the
    preparation of the policy and design documents.

[53]

In
    substance, the adverse inferences the trial judge drew were that the evidence
    of these witnesses would not have been favourable to Hamilton, and that, in the
    absence of testimony from these witnesses to the contrary, the policy and road
    marking documents capable of being interpreted to support the need for a stop
    line at the intersection should be read as supporting the need for a stop line
    at the intersection.

[54]

Hamilton
    does not appear to take issue with the trial judges decision to draw adverse
    inferences against Hamilton for failing to call these witnesses. It argues,
    instead, that its policy documents and any adverse inferences were relevant
    only in evaluating Hamiltons statutory defences (step 3 of the
Fordham
test),
    and that the trial judge erred by using adverse inferences in proving a non-repair
    (step 1 of the
Fordham
test).

[55]

I
    do not agree. The analytical rigidity Hamilton seeks to impose on the proper
    use of the adverse inferences available to the trial judge and of Hamiltons
    policy documentation is not supported by law. The adverse inferences drawn
    logically supported the non-repair finding and were therefore relevant to it.
    Similarly, since the trial judge interpreted the policy documents as supporting
    the need for a stop line at the intersection, those documents were tantamount
    to admissions by Hamilton to that effect, and therefore relevant in finding
    non-repair.

[56]

I
    would reject this ground of appeal.

(3)

Did the trial judge commit a palpable and overriding error in finding
    that the sightlines constituted a non-repair?

[57]

The
    trial judge found that the sightlines at the intersection were not appropriate
    and constituted a state of non-repair. Hamilton argues that the trial judge
    erred as the conclusion is not supported by the evidence, or adequately
    explained. Hamilton also identifies what it says are specific palpable and
    overriding fact finding errors.

[58]

The
    first two objections  that the trial judges finding is unsupported and not
    adequately explained  can be addressed together. In my view, although the
    trial judge should have identified her factual sightline conclusions with much
    greater clarity, her conclusions are nevertheless discernible from the evidence
    she did accept.

[59]

Specifically,
    the trial judge found that westbound drivers on Green Mountain Road had
    partially obstructed sightlines of northbound traffic on Upper Centennial
    Parkway as they approached and arrived at the stop sign. She also found that
    drivers proceeding northbound on Upper Centennial Parkway would lose sight of westbound
    vehicles on Green Mountain Road as they were approaching the intersection,
    until they were 35 metres from the intersection. These findings, and the
    foundation for them, can be gleaned when reading the reasons for judgment as a
    whole.

[60]

To
    begin, it is clear that the trial judge found that westbound drivers on Green
    Mountain Road had unobstructed visibility of northbound vehicles travelling on
    Upper Centennial Parkway beginning when they were 5 metres away from the white
    fog line on the right hand side of the northbound curb lane on Upper Centennial
    Parkway. In other words, drivers who would stop before entering the
    intersection would have no problem seeing northbound traffic. The trial judge said
    that all of the experts agreed to this and she made no comments in her decision
    to suggest that she did not accept this evidence.

[61]

The
    sightline impairment evidence the trial judge accepted for drivers on Green
    Mountain Road relates to a partially obstructed sightline as they approach and
    arrive at the stop sign. She accepted the evidence of Mr. Forbes, who said that
    the guardrail on Upper Centennial Parkway is a visual obstruction for drivers
    on Green Mountain Road who are between 10 to 25 metres away from the
    intersection. Mr. Forbes testified that the road design of the intersection
    required that drivers turning from Green Mountain Road onto Upper Centennial
    Parkway have a 175 metre unobstructed sight distance. However, a driver stopped
    at the westbound stop sign on Green Mountain Road would only have a 47 metre
    sightline before the guardrail became an obstruction.

[62]

While
    the trial judge rejected the personal observations of Mr. Gilchrist, Mr.
    Gilchrist presented a photograph taken 25 metres from the intersection showing
    that headlights of northbound vehicles are not visible at that distance because
    of the guardrail. Thomas Klement, an expert witness called by Hamilton, agreed
    with this observation and it was evidently accepted by the trial judge. The
    trial judge also accepted the testimony of Mr. Forbes that the guardrail
    impaired sightlines for drivers travelling on Upper Centennial Parkway, of
    vehicles on Green Mountain Road. Instead of having the recommended 85 metres of
    sightline, Mr. McHugh did not have an unobstructed view of traffic on Green Mountain
    Road until he was 35 metres from the intersection.

[63]

Since
    these findings and the evidence in their support can fairly be extracted from
    the reasons, I do not accept Hamiltons claim that the trial judges finding
    that the sightline was obstructed is not transparent or supported by the
    evidence.

[64]

Nor
    do I accept the discrete palpable and overriding errors that Hamilton claims
    the trial judge made in determining sightlines.

[65]

She
    committed no error in rejecting the testimony of Mr. Klement. She found that Mr.
    Klement was unreliable because he did not respond to questions and was
    argumentative. She therefore gave little weight to his sightline evidence. That
    was her decision to make.

[66]

I
    do not accept Hamiltons claim that the trial judge misapprehended Ms. Safranyoss
    evidence about what she could see from the stop sign, and that she used Mr. Blanksteins
    evidence to find impaired sightlines from the stop sign. Ms. Safranyoss
    evidence that, from the stop sign, she could see lights coming from her left is
    not inconsistent with the finding of partially obstructed sightlines from the
    stop sign. Nor is there any indication in the decision that the trial judge
    relied upon the testimony of Mr. Blankstein in finding partially obstructed
    sightlines from the stop sign. She relied, as she was entitled to, on Mr.
    Forbess evidence.

[67]

Controversy
    nonetheless remains. It is not obvious that the trial judges partially
    obstructed sightline findings can properly, on their own, amount to a state of
    non-repair, as the trial judge found. I would not want to be taken as
    suggesting that they could on the evidence that was before the trial judge. Even
    if this is an error, however, it is not overriding because the trial judge also
    found that the impaired sightlines enhanced the risks posed by the absent stop
    line at this particular intersection, contributing to the risk this particular
    intersection presented to drivers exercising ordinary care.

[68]

Specifically,
    the trial judge said:

In summary, with respect to the two non-repair items, the
    stop line and the sightlines only, the lack of the stop line is the most
    significant non-repair in the case at bar. When it is combined with the
    inappropriate, non-repair sightlines the cumulative degree of these non-repairs
    and their risks are elevated.

[69]

Elsewhere,
    the trial judge expressed that changes in elevation also contributed to the
    risk posed by the absence of a stop line, given the sightline challenges, the
    placement of the stop sign, and the lighting conditions. She said:

The court finds the fact that the stop line was not present on
    Green Mountain Road created ambiguity as to where a driver was required to
    stop. The Court finds that at this particular intersection it is important to
    have a clear indication of where to bring your vehicle to a stop before
    entering the intersection. Of note, the elevation of Upper Centennial Parkway
    is higher than Green Mountain Road. There is a guardrail along the east side of
    Upper Centennial Parkway that partially obstructs sightlines of the
    intersection. In addition, there were no street lights along Upper Centennial
    except at the actual intersection.

[70]

In
    addition to her controversial finding that the sightlines on their own amount
    to non-repair, the trial judge therefore clearly found that together the sightlines
    and the absence of a stop line contribute to the non-repair of this particular
    intersection. She did not purport to make a declaration that a painted stop line
    is always required, or invariably needed when sightlines are impeded. Nor could
    she have. Her task was to make a fact-specific assessment on the evidence
    before her. In my view, there is no basis for interfering with the non-repair
    conclusion of the trial judge relating to this intersection. It was hers to
    make..

[71]

I
    would therefore dismiss Hamiltons ground of appeal relating to sightlines.

(4)

Did the trial judge err in her causation analysis?

[72]

Hamilton
    argues that the trial judge made palpable and overriding errors in applying the
    but for test of causation. It argues that the only proper inference from the
    evidence is that the accident would have happened in any event  regardless of
    any non-repair problems  because Ms. Safranyos saw the northbound vehicles,
    yet chose to pull out into the intersection in any event.

[73]

I
    disagree. Ms. Safranyoss evidence is that from the stop sign she could see
    northbound vehicles above the guardrail, and when she looked left from the
    stop sign she could see a light coming from a great distance away. She did not
    testify that she saw Mr. McHughs vehicle approaching and decided to pull out in
    front of it.

[74]

The
    trial judge had ample evidence that this intersection was confusing, even to
    drivers of ordinary care. She was entitled, in the circumstances, to accept Ms.
    Safranyoss evidence that had there been a stop line she would have stopped
    there, just as she had at the stop sign. There is nothing inconsistent in the
    trial judges finding that, despite her negligence, Ms. Safranyos would have
    stopped had there been a stop line.

[75]

I
    would not give effect to Hamiltons causation appeal.

D.

Hamilton Appeal  Conclusion

[76]

For
    all of these reasons, I would dismiss Hamiltons appeal.

THE MCHUGH APPEAL

E.

Additional Relevant Facts and Reasons for Judgment

[77]

Three
    sets of factual findings are relevant to Mr. McHughs appeal. They are the
    findings related to Ms. Safranyoss liability, Mr. Jacksons evidence, and Mr.
    McHughs liability. I will discuss each in turn.

(1)

Findings related to Ms. Safranyoss liability

[78]

The
    trial judges material findings relating to Ms. Safranyoss role in the
    accident are brief.

[79]

She
    found that Ms. Safranyos made a stop at the stop sign located 10 metres back
    from the intersection, looked to her left [the direction Mr. McHugh was coming
    from] and did not look to her left again before proceeding into the
    intersection.

[80]

Early
    in her reasons for judgment, the trial judge recorded her prior ruling under
    the
Evidence Act
, R.S.O. 1990, c. E.23, s. 22.1, in which she admitted
    into evidence essential facts derived from Ms. Safranyoss related provincial
    offence prosecution. Those facts included that Ms. Safranyos was a servient
    driver, that Mr. McHugh had the right-of-way, and that [i]n entering the
    intersection, Safranyos created an immediate hazard.

[81]

The
    trial judge did not refer overtly to this evidence elsewhere in her reasons for
    judgment, other than to note in her Conclusion that the court considered its
    previous ruling under s. 22.1 of the
Evidence Act
.

[82]

The
    trial judge made no other material factual findings relating either to Ms. Safranyos
    or to her operation of her vehicle before finding her to be 50 percent
    responsible for the accident for her inattention to traffic when she failed to
    yield the right-of-way and her lack of awareness when she turned onto Upper
    Centennial Parkway from Green Mountain Road.

(2)

Findings relating to Mr. Jacksons evidence

[83]

Mr.
    Jackson was the only independent witness to the collision to testify. He had
    been at the same drive-in theatre that the occupants of Ms. Safranyoss vehicle
    attended, and followed the same route from the drive-in that Ms. Safranyos did.
    At the material time, Mr. Jacksons vehicle was two vehicles behind Ms.
    Safranyoss vehicle.

[84]

Mr.
    Jackson described heavy traffic on Green Mountain Road leaving the drive-in
    theatre, and that cars were bumper-to-bumper right up to the Green Mountain
    Road and Upper Centennial Parkway intersection. He testified at trial that all
    the cars were I guess, stopping at the stop sign at one point because there
    was so much traffic. However, he also accepted during cross-examination that
    he made a previous statement in August 2008 that he was certain [Ms.
    Safranyoss vehicle] did not come to a full stop at the stop sign before making
    [its] left-turn, [Ms. Safranyoss vehicle] followed the car ahead of [it] that
    also made a left-turn.

[85]

I
    believe a fair reading of Mr. Jacksons evidence to be that he was uncertain
    whether Ms. Safranyos stopped at the stop sign, but the traffic was bumper to
    bumper at the intersection and he believed that everyone had to at least come
    to a rolling stop to allow the cars ahead of them to enter Upper Centennial
    Parkway.

[86]

He
    recalled that Ms. Safranyoss vehicle was signaling to make a left turn as it
    approached the Upper Centennial Parkway, a turn that would require the vehicle to
    cross the two northbound lanes of Upper Centennial Parkway before entering the southbound
    lanes.

[87]

Mr.
    Jackson testified that there was little traffic on Upper Centennial Parkway so
    everyone was just going at the intersection. So, the car in front of [Ms.
    Safranyoss vehicle] came to the intersection and then she went, and then right
    after that car went, [Ms. Safranyoss vehicle] went right, right behind it. He
    said that Ms. Safranyoss vehicle did not stop at the intersection.

[88]

He
    testified:

She stepped on the gas quite quick to get out into the
    intersection, and it was almost like she was avoiding something because she
    went so fast. She slightly turned to the left and then thats when the accident
    happened, I seen the other car at the last second. [] I only seen it like a
    split-second. As she was pulling out, I looked to the left and then thats when
    it happened. Came out of nowhere. [] I would say by the time she hit the
    intersection where the first lane hits, she was going at least 10, 15 somewhere
    around there, kilometres.

[89]

Yet
    the trial judge summarized Mr. Jacksons evidence in less than 9 lines in her reasons.
    The only information included in her summary of his evidence that is material
    to Ms. Safranyoss or Mr. McHughs role in the collision was this:

He testified that when the Safranyos vehicle pulled out in the
    intersection he saw the other car at the last second and that the vehicle came
    out of nowhere from the left.

[90]

The
    trial judge did not refer to Mr. Jacksons other evidence in explaining her conclusions,
    other than to note that Mr. Jackson saw a vehicle enter the intersection
    immediately ahead of Ms. Safranyoss vehicle, which Mr. McHugh did not notice.

(3)

Findings relating to Mr. McHughs liability

[91]

The
    trial judge found Mr. McHugh to be 25 percent responsible for the accident,
    concluding:

His alcohol consumption, which affected his reaction and
    perception time, his speed, his inattention, and the fact that he had a last
    clear chance to avoid a collision were causes of this accident.

[92]

I
    pause here to note that Mr. McHugh interprets the trial judges reference to
    last clear chance as an application of the now rejected, last clear chance
    doctrine, where liability [was] apportioned to a much greater degree to the
    party who had the last opportunity to avoid the loss:
The Treaty Group
    Inc. v. Drake International Inc
., 2007 ONCA 450, 86 O.R. (3d) 366, at
    para. 28. Had the trial judge used the last clear chance doctrine instead of
    the but for test of causation reaffirmed in
Ediger (Guardian ad litem of)
    v. Johnston
, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 28, I would agree
    with Mr. McHugh that she had committed an error of law. It seems plain to me,
    however, that she did not apply the last clear chance doctrine. Had she
    applied that doctrine she would have apportioned much greater liability to Mr.
    McHugh than Ms. Safranyos. In my view, the trial judge instead used the term
    last clear chance when examining whether Mr. McHugh could have avoided the
    collision if he had been driving in a prudent fashion.

[93]

Returning
    to the trial judges findings, I recognize that the findings in respect of Mr.
    McHugh work together. It is nonetheless helpful to identify the trial judges
    findings relating to each component of her conclusion, beginning with her
    findings relating to speed, then alcohol consumption, then inattention, then
    last clear chance or opportunity to avoid the collision, and finally, reaction
    and perception time.

(a)

Speed

[94]

Eighty
    metres from the location of the accident, the speed limit on the Upper
    Centennial Parkway dropped from 80 kilometres per hour to 70 kilometres per
    hour. Mr. McHugh admitted that he did not alter his speed in response. Although
    his precise speed was never determined, Mr. McHugh admitted that he was travelling
    at a minimum of 80 kilometres an hour as the accident unfolded. His friend who
    was driving behind him, Mr. Baker, admitted that they were driving about 5
    kilometres per hour over the speed limit along Upper Centennial Parkway. This
    led the trial judge to conclude that Mr. McHugh was speeding at the time of the
    accident, going at least 85 kilometres an hour at the time of impact. She
    found that this speed was a cause of the accident.

[95]

She
    explained:

If Mr. McHugh was driving the speed limit, in all probability
    the second half of the Safranyos vehicle would have passed through the curb
    lane before Mr. McHugh arrived at the intersection. Accordingly, no accident
    would have happened.

(b)

Mr. McHughs alcohol consumption

[96]

It
    was not contested that Mr. McHugh had been at a party with friends, including
    Mr. Baker, where he consumed alcohol. Mr. McHugh testified that he had two
    beers at the party. Mr. Baker said it was two or three. The trial judge did not
    believe this evidence about the amount of Mr. McHughs alcohol consumption.

[97]

Instead,
    the trial judge accepted the opinion of expert toxicologist George
    Kupferschmidt that based on subsequent blood alcohol readings taken from Mr.
    McHugh, his blood alcohol level at the time of the accident, 1:03 a.m., was likely
    between 66 and 82 milligrams of alcohol in 100 millilitres of blood. This
    reflected the consumption of between four and six beers. Indeed, this level of
    alcohol consumption was supported by the four empty Moosehead beer bottles (two
    of which had Coors Light caps on them) that the police found inside Mr.
    McHughs vehicle after the accident.

[98]

In
    her Findings Based on Analysis, the trial judge said:

It is significant to note that Mr. McHugh would have been
    impaired according to the
Highway Traffic Act
of 0.05 blood alcohol
    level. As well, the high level of the alcohol readings would have seen Mr.
    McHugh convicted of impaired driving under the
Criminal Code
had he
    been charged following this accident.

[99]

In
    her reasons for judgment, the trial judge summarized Mr. Kupferschmidts
    evidence to the effect that persons with blood alcohol levels of 0.05 or higher
    may be a hazard on the road. She recapped his testimony that such blood
    alcohol levels may impair faculties required in the operation of a motor
    vehicle, and there was a high possibility that a person with a blood alcohol
    level between 0.05 and 0.1 percent would display impairments.

[100]

She made the
    following related findings in her Findings Based on Analysis:

Mr. McHughs alcohol consumption, inability to perceive or
    react in time to the Safranyos vehicle were clearly factors that partially
    caused this accident. That is, the court finds it is highly possible that
    alcohol impaired his abilities in terms of perception and reaction time. This
    fact may be logically inferred from the evidence. The court finds the
    plaintiffs have met their burden of proof about this discrete issue.

(c)

Inattention

[101]

The trial judge
    did not say a great deal about her inattention finding. She did not provide a
    discrete discussion about inattention. However, as I have already mentioned,
    she did say that it was of note that Mr. McHugh did not see the vehicle that
    Mr. Jackson described as having pulled onto the road immediately ahead of Ms. Safranyoss
    vehicle.

(d)

Opportunity to avoid the collision

[102]

The trial judge
    found that even though Ms. Safanyoss vehicle pulled into his path, Mr. McHugh could
    have avoided the collision if he had been driving prudently. She based that
    conclusion largely on the distance she found Mr. McHugh to have been from Ms. Safranyoss
    vehicle at the material times.

[103]

Mr. McHugh estimated
    that he was eight to ten car lengths away from the intersection when he first
    saw Ms. Safranyoss vehicle, and three car lengths away when it entered the
    intersection. Based on the uncontested evidence that a car length is approximately
    6 metres, this meant that Mr. McHugh was 48 to 60 metres away from the
    intersection when he first saw Ms. Safranyoss vehicle.

[104]

The trial judge
    rejected this evidence. She found that Mr. McHugh was approximately 125 metres
    away from the intersection when he first observed the Safranyos vehicle, which
    looked as if it was stopped at the time. This distance finding was based on Mr.
    McHughs testimony that when he returned to the accident scene with his
    therapist, he estimated that he was near a warning sign when he first saw Ms.
    Safranyoss vehicle. It was uncontroverted that the warning sign was 125 metres
    from the centre line of Green Mountain Road at the intersection. Thus on the
    trial judges finding, Mr. McHughs distance from Ms. Safranyoss vehicle when
    he first saw it was just under 21 car lengths.

[105]

With respect to
    Mr. McHughs distance when Ms. Safranyoss vehicle entered the intersection, the
    trial judge said:

The court does not accept the evidence of Mr. McHugh that he
    only noticed Ms. Safranyos move from the stop sign when he was just three car
    lengths away from the intersection. The court finds he underestimated that distance
    just as he underestimated his consumption of alcohol.

(e)

Reaction and perception time

[106]

The trial judge
    linked Mr. McHughs reaction and perception time to his alcohol consumption and
    speed. Referring to Mr. McHughs claim that he did not see Ms. Safranyoss
    vehicle move into the intersection until he was three car lengths away, she
    said:

If, and I underscore the word if, he did in fact only see her
    when he was three car lengths as was his evidence, it was because of his
    alcohol that he had consumed and his excessive speed. These two factors
    affected his perception of the Safranyos vehicle moving and affected his
    reaction time. That is, Mr. McHugh did not notice Ms. Safranyos move from a stopped
    position until it was too late. As Mr. Kupferschmidt indicated, 100
    milliseconds of delayed reaction can be the difference of 2.6 seconds.

[107]

Earlier in her reasons
    the trial judge had previously summarized Mr. Kupferschmidts evidence this
    way: Mr. Kupferschmidt indicated 100 milliseconds of delayed reaction can be
    the difference of 2.6 seconds.

F.

McHugh Appeal  The Issues and the Standard of Review

[108]

Mr. McHugh has
    raised a number of grounds of appeal. Since I would allow the appeal on some of
    these grounds I will not address them all. I will address only the following
    issues:

(1)

Did the trial judge err in finding that Mr. McHugh could have avoided the
    collision?

(2)

Did the trial judge err in finding that the collision would not have
    occurred if Mr. McHugh had been travelling at the speed limit?

(3)

Did the trial judge misuse the evidence about Mr. McHughs intoxication?

[109]

In my view, each
    of these alleged errors involve questions of fact. The appropriate standard for
    appellate review of questions of fact is well-settled and not in dispute. An
    appellate court should not interfere with a finding of fact unless the trial
    judge made a palpable and overriding error:
Housen
, at para. 10. That
    is, an error that is obvious, plain to see, or clear, and one that is
    sufficiently significant to vitiate the challenged finding of fact:
Wilk v.
    Arbour
, 2017 ONCA 21, 135 O.R. (3d) 708, at para. 18.

G.

McHugh Appeal  Analysis

(1)

Did the trial judge err in finding that Mr. McHugh could have avoided
    the collision?

[110]

The trial judge committed a palpable and overriding error in finding
    that Mr. McHugh could have avoided the collision if he was not negligent.
    Taking the evidence of vehicle location, travel times, and ordinary reaction
    times at its highest, and applying simple mathematics, Mr. McHugh could not
    have avoided the accident regardless of whether he breached the standard of
    care of an ordinary driver. Even leaving this aside, the trial judge failed to
    undertake an adequate examination of how the accident occurred in determining
    whether Mr. McHugh could have avoided the collision.

[111]

I will begin
    with the evidence relating to the material location and movements of Mr.
    McHughs vehicle. As indicated, the
trial judge found that on
    the totality of the evidence Mr. McHugh was approximately 125 metres away from
    the intersection when he first observed the Safranyos vehicle.

[112]

Mr. Forbes, the expert whose evidence the trial judge accepted in
    terms of stop lines, human factors, and sight lines, testified that a vehicle
    travelling at 80 kilometres an hour would travel 22.2 metres per second.
The
    trial judge found that Mr. McHugh was travelling in excess of 85 kilometres per
    hour. Naturally, if that was so Mr. McHughs vehicle would travel more than
    22.2 metres per second.

[113]

Applying simple
    mathematics, even employing the conservative speed of 80 kilometres per hour
    used in Mr. Forbes testimony, it would have taken Mr. McHugh about 5.6 seconds
    to travel the 125 metres from the warning sign to the point of collision near
    the centre line of Green Mountain Road.

[114]

The trial judge
    accepted that Ms. Safranyoss vehicle had stopped at the stop sign, 10 metres
    from the entrance to the intersection. She also found that Ms. Safranyos was
    just leaving the stop sign when Mr. McHugh first observed her vehicle from 125
    metres, or slightly more than 5 seconds of travel time, away. Mr. Forbess
    evidence was that it would have taken Ms. Safranyos between 3.5 to 5.6 seconds
    to travel the 14 metres from the stopped position to the point of collision, 4
    metres into the intersection.

[115]

Ms. Safranyos
    therefore entered the intersection either immediately before, or at the same
    time that Mr. McHugh arrived at the intersection. Taking the evidence at its
    highest, he was less than 3 seconds away from the point of the collision when
    she did so. The fact that she made it only 4 metres into the intersection
    before the collision reinforces how close Mr. McHugh must have been when this occurred,
    and how brief his opportunity to react was.
[1]

[116]

The trial judge
    received reaction time evidence from three expert witnesses.
The
    range of reaction times for ordinary drivers was between 1.3 and 2.5 seconds. Even
    if Mr. McHugh reacted more quickly than most ordinary drivers, in my view it is
    unrealistic to expect that he could have reacted and then taken effective
    action to avoid the collision, since he had nowhere to go. The collision
    occurred as Ms. Safranyoss vehicle straddled both northbound lanes directly in
    front of Mr. McHugh.

[117]

There was also other evidence supporting the conclusion that Mr.
    McHugh could not have avoided the collision that the trial judge failed to
    consider. For example, Mr. Forbes testified that if Mr. McHughs vehicle was
    travelling at 80 kilometres an hour, Ms. Safranyoss vehicle should not have
    entered the intersection if Mr. McHugh was 135 metres away. Moreover, Mr.
    Jackson said that it was only a split second from the time Ms. Safranyos
    entered the intersection until the collision.

[118]

In my view, on the evidence before the trial judge, it could not properly
    be found on the balance of probabilities that Mr. McHugh could have avoided the
    collision regardless of whether he was speeding or not.

[119]

Indeed, the
    trial judges entire approach to the causation issue was fatally flawed because
    she failed to make a finding as to how the accident actually occurred. Without
    paying close regard to the movement of Ms. Safranyoss vehicle, she was in no
    position to determine whether Mr. McHugh could have avoided the collision. Yet
    the trial judges evaluation of the movements of Ms. Safranyoss vehicle was
    not only brief, but clipped or superficial. There was much more to be
    considered than the sole finding she made that Ms. Safranyos stopped at the
    stop sign, 10 metres from the intersection, looked to her left, and did not
    look to her left again, failing to yield the right of way.

[120]

For example, Ms.
    Safranyos testified that when she looked left from the stop sign she saw lights
    coming. Yet she never looked left again. The trial judge made no attempt to
    consider the role that this played in the accident, including in assessing Mr.
    McHughs responsibility.

[121]

Ms. Safranyos
    testified that she initially intended to turn left but because the traffic was
    unbelievable, decided to turn right. Yet the evidence of Mr. Jackson and the
    position of Ms. Safranyoss vehicle at the time of the collision suggest that
    she was turning left. The trial judge did not address this either.

[122]

Mr. Jackson gave
    a detailed description of the movements of Ms. Safranyoss vehicle, including
    that everyone was just going to get onto the highway, that Ms. Safranyoss
    vehicle followed onto the highway right behind the car ahead of it, that she
    stepped on the gas quite quick to get out into the intersection, and that it
    was almost like she was avoiding something she was going so fast. Mr. Jackson
    estimated that by the time she got to the intersection, Ms. Safranyos was going
    10 to 15 kilometres an hour. The trial judge made no findings relating to this
    evidence, which, if credited, depicts a sudden, hurried, and aggressive entry
    by Ms. Safranyos into Mr. McHughs lane.

[123]

I appreciate
    that it was for the trier of fact to make what she would of the evidence. The
    inferences were for her. The difficulty, however, is that none of the
    considerable evidence supporting Mr. McHughs claim that he did not have time
    to react was considered by the trial judge in finding that Mr. McHugh had the
    last clear chance to avoid the accident, and she failed to engage in a
    sufficient evaluation of how the accident occurred. In my view, she erred in
    failing to do so.

(2)

Did the trial judge err in finding that the collision would not have
    occurred if Mr. McHugh had been travelling at the speed limit?

[124]

Mr. McHugh
    argues that the trial judge misapplied the law in finding that the collision
    would not have occurred if Mr. McHugh had been travelling at the speed limit.
    He takes issue, specifically, with her causation finding that, [i]f Mr. McHugh
    was driving the speed limit, in all probability the second half of the
    Safranyos vehicle would have passed through the curb lane before Mr. McHugh
    arrived at the intersection. Accordingly, no accident would have happened.

[125]

Mr. McHugh
    describes her thinking as the butterfly effect, a reference to the theory
    that a minute factor can, cumulatively with other circumstances, produce a very
    large and unforeseeable effect. His point, as I take it, is that the trial
    judge relied upon the minute consideration of the role that Mr. McHughs speed
    played in determining his location at the time Ms. Safranyos drove her vehicle
    into the intersection, and then assigned blame for the accident on Mr. McHugh
    because of the location where his speed happened to take him. I agree that this
    was the trial judges reasoning. I also agree that this causation theory does
    not satisfy the but for test of causation.

[126]

The but for
    test for causation was reaffirmed in
Ediger
, at para. 28:

That is, the plaintiff must show on a balance of probabilities
    that but for the defendants negligent act, the injury would not have
    occurred [] Inherent in the phrase but for is the requirement that the
    defendants negligence was necessary to bring about the injury  in other words
    that the injury would not have occurred without the defendants negligence

[Citations omitted.]

[127]

I would make two
    points. First, as this passage demonstrates, the required link is between the
    negligent act and the injury. In assigning causation, attention must
    therefore be paid to what makes conduct negligent. Speeding is negligent not
    because of the geographical location speed brings one to. It is negligent
    because of the inherent risks, such as reduced reaction time or loss of control
    of a vehicle that speed can produce. The injury must be linked to the negligent
    act of speeding and the inherent risks emanating from the negligence itself.
    The coincidence that, without the speed one vehicle was travelling, two
    vehicles would not have arrived at the same location, is not enough.

[128]

Second,
    causation requires substantial connection between the injury and the
    defendants conduct:
Resurfice Corp. v. Hanke
, 2007 SCC 7, [2007] 1
    S.C.R. 333, at para. 23;
Clements (Litigation Guardian of) v. Clements
,
    2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 20-21 and 28; and
Sacks v. Ross
,
    2017 ONCA 773, 417 D.L.R. (4th) 387, at para. 118, with application for leave
    to appeal dismissed by the S.C.C. (2018 CarswellOnt 10678), June 28, 2018. In
Clements
,
    at para. 28, the manifestation of this limit was described by McLachlin C.J. as
    a robust and common sense application of the but for test of causation. In
    my view, finding causation based on the coincidental location a speeding
    vehicle happens to arrive at is not a robust and common sense application of
    the but for test.

[129]

However, the
    trial judge did not rely solely on this causation theory. She also concluded
    that Mr. McHughs speed contributed to his failure to react. This is a proper
    speed-based causation finding. The trial judges butterfly effect causation
    error is not, therefore, an overriding error. Nevertheless, as I explained
    above, on the evidence the trial judge accepted regarding distance and speed,
    Mr. McHugh could not have avoided the collision regardless of whether he was
    speeding or not. The speed at which McHugh was driving cannot be a but for
    cause of the accident if the collision was unavoidable even for drivers
    exercising reasonable care.

(3)

Did the trial judge misuse the evidence about Mr. McHughs intoxication?

[130]

The trial judge misused
    Mr. Kupferschmidts expert alcohol impairment opinion evidence in two respects.
    First, she reasoned that Mr. McHugh was impaired without a sufficient
    evidentiary basis. Second, she misinterpreted the effect that alcohol
    impairment would have on a drivers perception to reaction time.

(a)

Mr. McHughs purported impairment

[131]

Mr. McHugh urges
    that the trial judges findings of impairment are not supported by the
    evidence. I agree. Her findings are not supported by the evidence, and she made
    erroneous conclusions about the legal impact of the blood alcohol evidence. I
    will begin with this latter point.

[132]

The trial judge
    relied upon Mr. Kupferschmidts calculation of Mr. McHughs blood alcohol range
     66 to 82 milligrams of alcohol in 100 millilitres of blood  to conclude that
    Mr. McHugh would have been impaired according to the
Highway Traffic Act
of 0.05 blood alcohol level and that, if charged criminally he would have been
    convicted based on his blood alcohol readings of impaired driving. Neither of
    these conclusions was available to the trial judge.

[133]

First, the
    question before her was a factual one  whether Mr. McHughs ability to operate
    a motor vehicle was impaired by alcohol. That factual question is to be
    determined on the evidence, not by legislated levels of tolerance for blood
    alcohol.

[134]

Second, the
    trial judges use of the legislation betrays a material misunderstanding of
    these provisions and their application.

[135]

The trial
    judges conclusion that Mr. McHugh would have been convicted of impaired
    driving based on his blood alcohol readings is wrong in law. The evidence was
    that Mr. McHughs blood alcohol level straddled the legal limit of 80
    milligrams. In other words, it may have been over the 0.08 blood alcohol level
    or it may have been under 0.08, depending on where in the experts range it
    actually fell. The possibility that blood alcohol is actually under the 0.08
    level can raise a reasonable doubt in appropriate straddle cases:
R. v.
    Ibanescu
, 2013 SCC 31, [2013] 2 S.C.R. 400; and
R. v. Roberts
,
    2018 ONCA 411, at paras. 111-13. An important consideration is the extent to
    which the range exceeds the legal limit:
R. v. Gibson
, 2008 SCC 16,
    [2008] 1 S.C.R. 397, at para. 73. Mr. McHughs range falls predominantly below
    the legal limit. The trial judges claim that he would have been convicted if
    he had been criminally charged is therefore highly questionable.

[136]

More
    importantly, even if Mr. McHugh could be convicted because of his blood alcohol
    range, the conviction would not be for impaired driving. The
Criminal Code
,
    R.S.C. 1985, c. C-46, has two relevant offences, impaired operation in s.
    253(1)(a), and operation over 80 in s. 253(1)(b). It is incorrect to equate
    proof of the latter offence as proof of the former. If it could be concluded
    that all persons having over 80 milligrams of alcohol in 100 millilitres of
    blood are impaired, then there would be no need for the over 80 offence.

[137]

Mr.
    Kupferschmidt gave evidence about the role of the over 80 offence. He explained
    that impairment can begin at levels as [
sic
] 50 and that most persons
    in our society have some form of impairment at 100, the level of 80 was deemed
    to be a reasonable compromise. Being over 80 does not, therefore, equate to
    impairment. The only factual conclusion that can be made if, while operating a
    motor vehicle a person had more than the criminal standard of 80 milligrams of
    alcohol in 100 millilitres of blood, or more than the regulatory, provincial
    blood alcohol standard of over 50 milligrams of alcohol in 100 millilitres of
    blood, is that their blood alcohol level exceeded those standards.

[138]

The trial judge
    therefore misused the law to verify her impairment conclusion in a fashion that
    is manifestly prejudicial.

[139]

In my view, her
    findings related to Mr. McHughs impairment were also based on a
    misapprehension of the evidence before her. Mr. Kupferschmidt imposed
    significant qualifications on his evidence. He could not offer an opinion on
    Mr. McHughs impairment because all he had were crudely quantified conclusions
    about the effects that alcohol can have on general populations. Those
    generalities about the effects alcohol tends to have at various blood alcohol
    levels  [impairment] can begin at levels of 50, persons may start to
    exhibit impairment at 50 milligrams percent, most persons have some
    impairment at 100, and the majority if not all would show signs of impairment
    at 100 milligrams per cent  were unlinked by any evidence to Mr. McHugh. That
    is why Mr. Kupferschmidt spoke in terms of possibilities. He cautioned that he
    could not be more definitive because [he] was not with Mr. McHugh. [He] did
    not see him that evening.

[140]

In my view, the
    trial judge misused this evidence. In effect, she reasoned that since the
    unspecified odds are that Mr. McHugh would be one of those people who has
    impaired faculties at the blood alcohol range he exhibited, he should be
    treated as impaired. This was not appropriate. The trial judge had no evidence
    before her about whether Mr. McHugh exhibited any physical signs of impairment,
    or any other indicia of impairment to ground her finding. Indeed, the police
    and hospital records taken on the night of the accident did not indicate that
    Mr. McHugh was impaired. Care has to be taken in using general probabilities as
    proof capable of forensic application in particular cases. In my view the trial
    judge did not properly understand the limits of the expert evidence.

[141]

This, in my
    view, was a palpable and overriding error. It undercut the integrity of a
    finding that was central to the holding that Mr. McHugh was at fault. It would
    have been appropriate for the trial judge to factor in alcohol consumption as a
    general consideration in assessing negligence even without clear evidence of
    impairment, but her misuse of legal alcohol driving standards had the effect of
    unfairly exaggerating the significance of the evidence of impairment.

(b)

The effect of alcohol impairment on perception to reaction time

[142]

The trial judge
    clearly misapprehended the evidence relating to the possible effects of alcohol
    impairment on the perception to reaction time of a motorist.

[143]

Mr.
    Kupferschmidt testified about the impact that alcohol consumption can have on
    reaction times. He read a select passage from a scientific study without
    particularizing the blood alcohol level he was referring to, and without
    identifying what degree of delayed reaction time alcohol can produce. That
    passage confirmed that [w]hen demonstrated experimentally statistically
    significant increases in complex reaction time may be measured as milliseconds
    (MS) changes. Mr. Kupferschmidt continued reading:

These increases in response time might therefore be
    misinterpreted as inconsequential. However, a 100 millisecond increase in
    overall reaction time at a driving speed of 100 kilometres per hour would
    result in an additional
2.8 metres
of distance travelled before a
    response is elicited.

[Emphasis added.]

[144]

The trial judge
    attempted to paraphrase this passage in summarizing Mr. Kupferschmidts
    evidence. She said Mr. Kupferschmidt indicated 100 milliseconds of delayed
    reaction can be the difference of
2.6 seconds
 (emphasis
    added). In my view, the 0.2 error (2.6 as opposed to 2.8) she made in repeating
    this evidence is not significant. The conversion of metres to seconds is.
    Recall that a vehicle travelling at 80 kilometres an hour travels 22.2 metres
    per second. Together, the trial judges misperception of Mr. Kupferschmidts
    testimony and the evidence of how far a vehicle would travel per second would
    suggest that for every 100 milliseconds of delayed reaction time, an impaired
    driver would travel close to 60 metres, or ten car lengths, before reacting.
    The passage Mr. Kupferschmidt read actually furnished a travelled distance per
    100 milliseconds of delayed reaction time of 2.2 metres, or about a third of a
    car length, if the driver was driving 80 kilometres per hour.

[145]

This proposition
    did not remain abstract. The trial judge linked her misperception of the
    evidence to Mr. McHugh in a passage which I have already quoted. It bears
    repeating here:

If, and I underscore the word if, he did in fact only see her
    when he was three car lengths as was his evidence, it was because of his
    alcohol that he had consumed and his excessive speed. These two factors
    affected his perception of the Safranyos vehicle moving and affected his reaction
    time. That is, Mr. McHugh did not notice Ms. Safranyos move from a stopped
    position until it was too late. As Mr. Kupferschmidt indicated, 100
    milliseconds of delayed reaction can be the difference of 2.6 seconds.

[146]

The trial judge
    took generic testimony that had been offered without any guidance on how many
    milliseconds of delayed reaction time alcohol tends to produce at any given
    blood alcohol level, converted that evidence from metres to seconds, and then
    relied on it as explaining why Mr. McHugh may not have observed Ms. Safranyoss
    vehicle until it was too late to react. As evidenced by the excerpt above, this
    misapprehension of the evidence was clearly a factor that led to the trial
    judges erroneous conclusion that Mr. McHugh could have avoided the collision.

[147]

As such, the
    trial judges findings on the effect of Mr. McHughs purported impairment is a
    palpable and overriding error. It created a grossly inaccurate image of the
    impact that alcohol has on reaction time and therefore distance travelled, which
    was crucial to the outcome of the trial.

H.

McHugh Appeal  Conclusion

[148]

I would
    therefore allow Mr. McHughs appeal. I would not order a new trial. On the
    uncontentious evidence presented at trial, the accident was caused by Ms.
    Safranyoss failure to stop her vehicle before entering the intersection, her
    failure to observe Mr. McHughs vehicle travelling northbound in the curb lane
    of Upper Centennial Parkway approximately 125 metres away and her failure to
    yield the right of way to that vehicle, coupled with the non-repair of the
    intersection. Absent the trial judges 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. It
    therefore cannot be said that Mr. McHughs negligence caused or contributed to
    the collision. I would dismiss the claim and cross-claims against Mr. McHugh.

I.

Costs

[149]

The parties may
    make written submissions on costs. With respect to docket C63133, Mr. McHugh
    shall file his submissions within 10 days of the release of these reasons and
    the respondents shall file their submissions within 10 days thereafter. With
    respect to docket C63175, the respondents shall file their submissions within
    10 days of the release of these reasons and Hamilton shall file its submissions
    within 10 days thereafter. None of the costs submissions shall exceed five
    pages in length, excluding costs outlines.

Released: GRS SEP 19 2018

David M. Paciocco J.A.

I agree. G.R. Strathy C.J.O.

I agree. L.B. Roberts J.A.

[1]

The material reaction time began when Ms. Safranyoss
    vehicle failed to yield. The trial judge did not find that Mr. McHugh should
    have anticipated that she might do so. Nor could the trial judge have made such
    a finding on the evidence before her. Mr. McHugh testified that he expected her
    to stop. Mr. Forbes
confirmed that theres an expectation that the
    vehicle on the side street will remain at a halt until theyve proceeded
    through. The law allows for this expectation. In
Ludolph and Ludolph v.
    Palmer and Phillips
, [1950] O.J. No. 487 (C.A.), Roach J.A. held that a
    driver with the right of way has no duty to reduce their speed in the
    expectation that someone may not yield the right of way. Certainly, unless
    there is reason to suspect that someone may not do so, a driver is entitled to
    assume that they will be given their right of way. The material question, then,
    is whether Mr. McHugh had time to react, and then take evasive action, after
    Ms. Safranyos failed to yield as he was approaching the intersection.