COURT OF APPEAL FOR ONTARIO

CITATION: Azzeh v. Legendre, 2017 ONCA 385

DATE: 20170512

DOCKET: C62433

Weiler, Benotto and Roberts JJ.A.

BETWEEN

Bayden
    Zachary Azzeh, (represented by his Litigation Guardian,

Ingrid
    Nancy Dion
)

Plaintiff (Respondent)

and

Roger Legendre and Susan Legendre

Defendants

and

Julia Neville

Third-Party

Stuart Zacharias and Nadia Marotta, for the appellant
    the City of Greater Sudbury

Gary Mazin, Supriya Sharma, Iman Ahsan and Herman Tse,
    for the respondent Bayden Zachary Azzeh

William G. Scott, for the proposed defendant, Wallbridge,
    Wallbridge

Heard: January 23, 2017

On appeal from the order of Justice Patricia C. Hennessy
    of the Superior Court of Justice, dated July 14, 2016, with reasons dated June
    16, 2016 and reported at 2016 ONSC 3937, 52 M.P.L.R. (5th) 173, and
    supplementary reasons dated July 14, 2016.

Weiler J.A.:

A.

Overview

[1]

Bayden Azzeh suffered brain injuries in a car accident in Sudbury on
    September 7, 2007. Bayden was 17 days old. His mother, Julia Neville, was
    driving the car. In 2014, Neville issued a statement of claim on Baydens
    behalf. The claim named the driver and the owner of the other vehicle involved
    in the accident as defendants.

[2]

In 2015, Baydens lawyers brought a motion to amend the pleadings to add
    the City of Sudbury, among others, as a defendant and to increase the amount of
    damages sought. The City unsuccessfully opposed the motion on two grounds:
    first, the claim against the City was statute-barred, as the two-year
    limitation period under the
Limitations Act, 2002
, S.O. 2002, c. 24,
    had elapsed; and second, the claim was barred because Bayden failed to give the
    City notice within ten days of the accident, as required under s. 44(10) of the
Municipal Act, 2001
, S.O. 2001, c. 25.

[3]

The City now appeals to this court.

[4]

For the reasons that follow, I would dismiss the Citys first ground of
    appeal and give effect to the second. Accordingly, I would allow the appeal,
    set aside the motion judges order, and order that the claim against the City be
    dismissed.

B.

background FACTS

[5]

Bayden and Neville were both injured in the car accident on September 7,
    2007. After the accident, Neville retained the firm of Wallbridge, Wallbridge
    to act on her and Baydens behalf. The contingency fee agreement is for both
    mother and son from the same accident.

[6]

Wallbridge issued a statement of claim on Nevilles behalf in April
    2008, and that claim was settled in August 2011. In October 2011, Neville made
    an application for statutory accident benefits for her son and signed the
    application as his guardian.

[7]

In June 2014, Wallbridge issued a statement of claim only against the
    driver and the owner of the other car, Roger Legendre and Susan Legendre, respectively.
    The claim was styled as follows:

Bayden Azzeh

(represented by his Litigation Guardian, JULIA NEVILLE)

[8]

Rule 7.02(2) in the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194, addresses the procedure applicable when a person brings a claim on behalf
    of a plaintiff with a disability. Rule 7.02(2)

states:

No person except the Childrens Lawyer or the Public
    Guardian and Trustee shall act as litigation guardian for a plaintiff or
    applicant who is under a disability until the person has filed an affidavit in
    which the person,

.

(g) states that he or she has no interest in the
    proceeding adverse to that of the person under disability; and

(h) acknowledges that he or she has been informed of
    his or her liability to pay personally any costs awarded against him or her or
    against the person under disability.

[9]

Julia Neville did not swear the affidavit required to be sworn by a
    litigation guardian as required by r. 7.02(2).
[1]

[10]

On May 25, 2015, Bayden changed lawyers to Mazin and Associates. Ingrid Nancy
    Dion, Baydens grandmother, swore an affidavit as litigation guardian on May
    29, 2015. On May 31, 2015, seven years after the accident, she gave notice to
    the City of a potential claim against it. On October 30, 2015, a court order
    named Dion as Baydens litigation guardian. Bayden then moved to amend his
    statement of claim to increase the amount of damages sought and to add multiple
    defendants. He sought to add his previous counsel (individually and as a firm);
    his parents (Julia Neville, who was driving the car, and Ihab Azzeh, who owned
    it); and the City, which was responsible for the intersection where the
    accident had taken place. The City opposed the motion on the basis that the two-year
    limitation period and the ten-day period for giving notice to the City had
    expired.

C.

the motion judges decision

[11]

The motion judge held that there was no prejudice to the City caused by
    adding it as a party to the action, as Baydens claim was about road design
    issues, not maintenance or inspection. The City had destroyed its maintenance
    records, but not its road design records.

[12]

The motion judge rejected the Citys submission that the action against
    it was statute-barred. Under s. 6 of the
Limitations Act, 2002
, the
    limitation period does not begin to run on the claim of a minor until the minor
    is represented by a litigation guardian in relation to the claim. The motion
    judge found that Bayden was not represented by a litigation guardian until June
    11, 2014 at the earliest (when the statement of claim was issued on behalf of
    Bayden against the driver and the owner of the car), so that is when the two-year
    limitation period under the
Limitations Act, 2002
began to run. Bayden
    had filed his motion within this period, and the action against the City was
    therefore not statute-barred.

[13]

The City also argued that Baydens claim against it was barred by the
Municipal
    Act, 2001
.

Under s. 44(10), no action shall be brought against a
    municipality for failure to keep a highway in a reasonable state of repair
    unless notice is given to the municipality within ten days of the occurrence of
    the injury. Under s. 44(12), lack of notice is no bar if there is a reasonable
    excuse and no prejudice to the municipality.

[14]

The motion judge held that the notice period under the
Municipal Act,
    2001
also did not run while Bayden was not represented by a litigation
    guardian. She then held that there was no evidence Neville had been appointed
    to do anything other than bring a claim against the named defendants; Neville
    was not obliged to consider other claims, for example against the City.
    Therefore, the ten-day notice period did not run during Nevilles appointment.
    The affidavit of appointment for Dion, however, granted broad authority to act
    in this action. The motion judge held that the ten-day notice period therefore
    began to run with Dions appointment. Dion had given timely notice to the City,
    so the notice requirement was satisfied. In the alternative, the motion judge
    noted that Baydens being a minor was a reasonable excuse under s. 44(12) of
    the
Municipal Act, 2001
.

[15]

On July 14, 2016, the motion judge issued supplementary reasons in
    response to an inquiry from counsel for the City as to whether she intended to
    make final determinations with respect to whether Baydens claim against the
    City was barred by the
Limitations Act, 2002
or the
Municipal Act,
    2001.
As no order had yet been taken out, the motion judge held that she
    still had jurisdiction to entertain counsels request for clarification. In
    effect, she held that her order was final.

[16]

The order issued and taken out on July 14, 2016 goes beyond amending the
    statement of claim to add the City as a party and increasing the prayer for
    relief. It grants declaratory relief and states:

THIS COURT ORDERS AND DECLARES that the Plaintiffs proposed
    claim, in the form attached here as Schedule A, is not barred by either the
Limitations
    Act, 2002
or the
Municipal Act, 2001
.

[Citations
    omitted.]

D.

positions of the parties

[17]

On appeal, the Citys primary argument is that the motion judge erred in
    holding that the claim against it was not statute-barred. It submits that, under
    the
Limitations Act, 2002
, a minor is represented in relation to a
    claim as soon as someone takes steps on the minors behalf in relation to the
    claim, not when a statement of claim is issued. The City submits that Bayden
    was represented far earlier than 2014. Neville was representing him when she
    signed the contingency fee agreement with the law firm Wallbridge and when she
    signed the application for statutory accident benefits on Baydens behalf. The
    limitation period had therefore expired by the time of this motion.

[18]

The City also argues that the motion judge erred in failing to apply a
    discoverability analysis. Section 8 of the
Limitations Act, 2002
provides that the limitation period begins to run against a minor when the
    litigation guardian knew or ought to have known sufficient facts on which to
    base allegations against a potential defendant.

[19]

Finally, the City argues the ten-day notice period under the
Municipal
    Act, 2001
began, at the latest, in June 2014 when Wallbridge issued a
    statement of claim in which Neville held herself out as Baydens litigation
    guardian; there is no basis for finding that it began only when Dion was
    appointed as litigation guardian. Bayden was represented by counsel, so there
    was no reasonable excuse for the delay.

[20]

Bayden and Wallbridge argue that a minor is not represented in relation
    to a claim until the representative has complied with the requirements of r. 7.02(2)
    of the
Rules of Civil Procedure
by swearing an affidavit consenting to
    act as litigation guardian. Because there is no evidence that Neville filed the
    affidavit required by r. 7.02(2), they argue she was not Baydens litigation
    guardian at all. Bayden was not represented by a litigation guardian until Dion
    was appointed in 2015. Neither the limitation period nor the notice period
    began to run until that time. In the alternative, they argue Bayden has a
    reasonable excuse for not giving notice within the ten days required under the
Municipal
    Act, 2001
,

as he was a minor.

E.

Issues

1.

Did the motion judge err in finding that the two-year limitation period
    under the
Limitations Act, 2002
did not bar the claim against the
    City?

2.

Did the motion judge err in finding that notice had been given to the City
    within the ten-day period set out in s. 44 of the
Municipal Act, 2001
?

3.

Did the motion judge err in finding that there was no prejudice to the
    City?

F.

jurisdiction

[21]

Before turning to the issues on appeal, a few comments respecting
    jurisdiction must be made.

[22]

Paragraph 1 of the order appealed from grants leave to amend the statement
    of claim to add the City and others as defendants. Granting leave to add party
    defendants is interlocutory:
Hunter v. Richardson
, 2013 ONCA 731,
    [2013] O.J. No. 5896.

[23]

Paragraph 2 of the order grants leave to increase the prayer for relief
    and make other amendments consistent with the addition of the defendants. Paragraph
    2 is also an interlocutory order:
Merling v. Southam Inc., et al.
(2000), 128 O.A.C. 261.

[24]

The declaration that the action is not statute-barred in paragraph 3 of
    the order deprives the defendants of substantive defences and is therefore
    final:
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).

[25]

In general, where an order has both final and interlocutory aspects, the
    appeal lies to this court only from the final portion of the order:
Cole v.
    Hamilton (City)
(2002), 60 O.R. (3d) 284 (C.A.). Leave to appeal from the
    interlocutory portion must be obtained from the Divisional Court, at which
    point the appellant may move to have the appeals heard together in this court.

[26]

However, in
Lax v. Lax
(2004), 70 O.R. (3d) 520 (C.A.), the
    court heard the appeal from both the final and interlocutory aspects of an
    order where because the two issues are so interrelated  once the first issue
    was before this court, leave would inevitably have been granted on the second.
    That is the case here. Whether the City was properly added as a defendant
    depends on whether the action against it is statute-barred. Therefore, both
    aspects of the appeal were heard by this court.

[27]

I would just add that having regard to
Fram Elgin Mills 90 Inc. v.
    Romandale Farms Ltd.,
2016 ONCA 404, 131 O.R. (3d) 455, the motion judge
    did not have the power to make a final order on the motion to amend the
    pleading.

G.

RELEVANT STATUTORY PROVISIONS

(1)

Limitations Act, 2002

4. Unless this Act provides otherwise, a proceeding
    shall not be commenced in respect of a claim after the second anniversary of
    the day on which the claim was discovered.

6. The limitation period established by section 4
    does not run during any time in which the person with the claim,

(a) is a minor; and

(b) is not represented by a litigation guardian in
    relation to the claim.

8.
If a person is represented by a
    litigation guardian in relation to the claim, section 5 [relating to
    discoverability of the claim] applies as if the litigation guardian were the
    person with the claim.

(2)

Municipal Act,

2001

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.

(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.

(10)
No action shall be
    brought for the recovery of damages under subsection (2) unless, within 10 days
    after the occurrence of the injury, written notice of the claim and of the
    injury complained of has been served upon or sent by registered mail to,

(a) the clerk of the municipality; or

(b) if the claim is against two or more
    municipalities jointly responsible for the repair of the highway or bridge, the
    clerk of each of the municipalities.

(11)
Failure to give notice
    is not a bar to the action in the case of the death of the injured person as a
    result of the injury.

(12)
Failure to give notice
    or insufficiency of the notice is not a bar to the action if a judge finds that
    there is reasonable excuse for the want or the insufficiency of the notice and
    that the municipality is not prejudiced in its defence.

H.

Analysis

(1)

Did the motion judge err in finding that the two-year limitation period
    in the
Limitations Act, 2002
did not bar the claim against the City?

[28]

The motion judge held that Bayden was not represented by a litigation
    guardian until June 11, 2014 at the earliest, and that is when the two-year
    limitation period began to run. I would agree with her.

[29]

On appeal, the Citys primary argument is that the motion judge erred in
    finding that the claim against it was not statute-barred under the
Limitations
    Act, 2002
. The City submits a minor is represented in relation to a claim
    as soon as someone takes steps on the minors behalf in relation to the claim,
    not when a statement of claim is issued. Neville was representing Bayden when
    she signed the contingency fee agreement or, in any event, when she signed the
    application for statutory accident benefits in 2011. Neville knew, or ought to
    have known, of the claims against the City in 2011 at the latest. Thus, the
    City submits the limitation period had expired by the time this motion was
    brought.

[30]

I would reject the Citys submission. The
Limitations Act, 2002
contemplates a person with a claim and a person against whom the claim is made.
    Where the person with a claim is a minor, the Act requires that the minor be
    represented by a litigation guardian in relation to the claim. The word
    represented signifies that the litigation guardian may do anything in a
    proceeding that the party under a disability would ordinarily be required or
    authorized to do (r. 7.05(1)).
[2]
Where the litigation guardian enters into a solicitor and client relationship,
    the solicitor is the agent of the litigation guardian. The solicitor owes a
    fiduciary duty to the litigation guardian and acts on her behalf. The solicitor
    is therefore an extension of the litigation guardian  they are one and the
    same and allied in interest. This conclusion is supported by the requirement in
    rr. 7.05(3) and 15.01(1) of the
Rules of Civil Procedure
that a
    litigation guardian other than the Childrens Lawyer or the Public Guardian and
    Trustee must be represented by a lawyer.

[31]

Thus, Nevilles contingency fee agreement with Wallbridge did not result
    in Bayden being represented by a litigation guardian in relation to the claim.
    At that time, there had been no representation on behalf of Neville to anyone
    other than her solicitor.

[32]

In relation to the statutory accident benefits application, Neville
    simply signed as guardian, not as litigation guardian. She could equally have
    been signing as Baydens substitute decision maker or guardian under the
Substitute
    Decisions Act, 1992
, S.O. 1992, c. 30, or using the word guardian
    colloquially, as she is Baydens mother.

[33]

I would also reject Bayden and Wallbridges position that Bayden was not
    represented by a litigation guardian in relation to the claim when the
    statement of claim against the Legendre defendants was issued in June 2014.

[34]

Neville clearly held herself out or represented herself as Baydens
    litigation guardian to the Legendre defendants, who were the driver of the car and
    the owner of the car with whom she was involved in the accident. The fact that Neville
    did not file the affidavit a litigation guardian is required to file under
    r. 7.02(2) makes the proceeding an irregularity and not a nullity:
Gauthier
    v. Gauthier,
(1947) O.W.N. 1053; [1947] O.J. No. 342 (Ont. H.C.); see also
Salisbury v. Sun Life Assurance Co. of Canada
, 2013 ONCA 182, [2013]
    O.J. No. 1310. It would not make sense for the limitation period to be tolled
    simply because the person holding herself out as the litigation guardian had
    not filed the required affidavit under the Rules. It is within the litigation
    guardians power to file the affidavit or not. To allow the limitation period
    to toll on that basis would effectively make the limitation period unlimited
    because the litigation guardian could indefinitely delay filing the affidavit.

[35]

It appears Bayden may have both a claim against the Legendre defendants and
    a claim for negligence against Neville as the driver of the vehicle in which he
    was a passenger.
Thus, Neville has a conflict of interest in
    relation to those potential claims. Any benefit gained by Bayden in having a
    litigation guardian act for him would be detrimental to Nevilles case and vice
    versa. Neville could be forced to choose between her own interests and, as litigation
    guardian, those of Bayden.
As a result, Neville has a conflict of
    interest that would bar her from acting as Baydens litigation guardian in the
    context of his claims against the Legendre defendants and Neville herself (rr.
    7.02(2)(g) and 7.03(10)(i)(iii)).
[3]

[36]

However, Neville has no conflict of interest in relation to Baydens
    claim against the City.
Neville has no interest adverse to
    Baydens having a litigation guardian act for him against the City. In that
    context, unlike in his claims against her and the Legendre defendants, Neville
    would not be forced to choose between her own interests and those of Bayden. There
    was therefore nothing preventing her from carrying out her duties as his litigation
    guardian. N
evilles conflict of interest does not prevent the running of
    the two-year limitation period nor does it absolve her from discharging her
    responsibilities towards Bayden in his claim against the City. Further, Neville
    ought to have taken steps to have someone else act or be appointed as litigation
    guardian when the conflict in the other claims became apparent: see
Socha
    v. Peninsula Towing & Recovery Inc.,
2015 ONSC 5076, 127 O.R. (3d) 57,
    at para. 25.

[37]

I would also reject the submission that Neville only represented herself
    as Baydens litigation guardian to the Legendre defendants and that, as a
    result, time did not begin to run in respect of the claim against the City. The
    statement of claim is a public document. I also note that s. 6 of the
Limitations
    Act, 2002
does not speak to representation in relation to specific
    defendants; the representation by a litigation guardian is in relation to the
    claim. Time began to run under the
Limitations Act, 2002
on June 11,
    2014.

[38]

The limitation period ended on June 11, 2016. Bayden filed his motion to
    add parties, including the City, on September 15, 2015. Thus, I would agree
    with the motion judge that the motion was not statute-barred under the
Limitations
    Act, 2002.

(2)

Did the motion judge err in her application of the
Municipal Act,
    2001
?

[39]

Section 44(10) of the
Municipal Act, 2001
provides that
    no action shall be brought against a municipality for failure to keep a highway
    in a reasonable state of repair unless notice is given to the municipality
    within ten days of the occurrence of the injury. The notice requirement in s.
    44(10) is similar in character to a limitation period, although it is not
    strictly speaking a limitation period:
Patrick v. South West Middlesex
    (Municipality)
, 2017 ONSC 17,
[2017] O.J. No. 7, at para. 81. However, under s. 44(12), the action is not
    barred if there is a reasonable excuse for not giving notice and the
    municipality is not prejudiced in its defence.

[40]

I would hold that the ten-day notice period did not begin to run until
    Bayden had a litigation guardian, or, alternatively, that he had a reasonable
    excuse for not bringing the action until he had a litigation guardian
[4]
.
    However, as I have indicated above in discussing the
Limitations Act, 2002
issue, once Neville issued
    the statement of claim on Baydens behalf on June 11, 2014, time began to run
    and the motion judge erred in holding that it did not run because Neville
    failed to file the affidavit required under the
Rules of Civil Procedure
.

[41]

I now turn to the motion judges alternative holding that if
    Neville, as Baydens litigation guardian, was required to give notice to the
    City, she had a reasonable excuse for not doing so because Bayden was a minor
    and the policy of the law is to protect minors.

[42]

The plaintiff bears the onus of establishing a reasonable excuse:
Argue
    v. Tay (Township)
, 2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal
    refused [2013] S.C.C.A. No. 246. The words reasonable excuse are to be given
    a liberal interpretation because the municipality is protected by the
    requirement that it not be prejudiced in its defence.

[43]

In determining what constitutes a reasonable excuse, the words should be
    given their plain and ordinary meaning, and the court should consider all of
    the circumstances: see
Crinson
, at paras. 20-23; and
Seif
,
at paras. 26, 47. Those circumstances
    would include,
among other things
:
    whether the plaintiff was capable of forming the intention to sue the
    municipality within the notice period under s. 44(10), or had a representative
    whose responsibility it was to retain a lawyer and pursue all claims; the
    length of the delay before notice was given; and any explanation of the reason
    for the delay. Lack of awareness of the notice requirement, standing alone,
    does not constitute a reasonable excuse, but when considered in combination
    with other extenuating circumstances, a court may conclude a reasonable excuse
    exists: see
Crinson
, at para. 38; and
Seif
,

at para. 29 (per Hoy A.C.J.O., partly in
    dissent but not on this point).

[44]

Bayden had a representative  Neville  who was capable of forming the
    intention to sue the municipality within the notice period, and she had
    retained a lawyer to pursue claims on his behalf. It was improper for the motion
    judge to ignore the effect of that circumstance. A litigation guardian is the
    legal representative of the person under a disability and, pursuant to r. 7.05(2),
    shall diligently attend to the interests of the person under disability and
    take all steps necessary for the protection of those interests. Further
, as I have indicated above in relation to the limitation period
    issue, Neville had no conflict of interest with respect to any lawsuit brought
    by Bayden against the City. Indeed, the success of such an action would reduce
    or eliminate Nevilles own liability. Thus, the motion judge erred in holding
    that Baydens right to bring an action against the City needed further protection
    and that this provided a reasonable excuse for not giving timely notice to the
    City.

[45]

The question before the motion judge was whether it was reasonable for
    Bayden, through his litigation guardian, not to have given notice until May 31,
    2015  almost a year after the date that Bayden was first represented by a
    litigation guardian. The lengthy period of delay affects both the
    reasonableness of the excuse and whether the municipality is prejudiced. It is
    a circumstance the motion judge was required to consider: see
Argue v. Tay
    (Township)
, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77, at para. 51, affirmed
    2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal refused [2013] S.C.C.A.
    No. 246; and
Bramer v. Hamilton (City)
, 2015 ONSC 713, 40 M.P.L.R.
    (5th) 150, at para. 101. She did not do so.

[46]

There is nothing in the record to suggest that by the time Neville acted
    as Baydens litigation guardian, on June 11, 2014, the extent of his injuries
    were unknown.

[47]

The City asserts in its factum, at para. 18:

There is no evidence that, at any time during the retainer of
    Wallbridge, any steps were taken to investigate a potential claim against the
    City. As Ms. Neville, testified, this never came up.

[48]

Wallbridges factum simply denies this paragraph.

[49]

Even if we were to accept the Citys assertion as a fact, it
    does not help Bayden. One possible explanation why suing the City never came up
    may be because, at the time, Neville made no complaint about the condition of
    the intersection as being a cause of the accident, and the City was not
    considered to be a proper defendant. On the other hand, if the City is a proper
    defendant, and Wallbridge, as the solicitor for the litigation guardian, either
    through ignorance or negligence failed to communicate the notice requirement to
    Neville and allowed the notice period to expire, then Wallbridge would likely
    have been negligent: see
Halsburys Laws of Canada
, Negligence and
    other Torts, (Toronto: LexisNexis Canada, 2016 Reissue), at HTO 95-96 and
    cases cited therein, including the statement that allowing the limitation
    period of a meritorious action to expire is solicitors negligence. See also:
614128
    Ontario Ltd. (O/A Trisan Construction) v. Bianchi
, 2016 ONSC 2450,
[2016] O.J. No. 1819,
    at para. 116,
Bates v. Ewachniuk
,
    2001 BCSC 71,

[2001] B.C.J. No.
92,

in relation to the statutory notice period under the
Municipal Act,
R.S.B.C.
    1979, c. 290;
Bourassa v. Temiskaming Shores (City)
, 2016 ONSC 1211,
    49 M.P.L.R. (5th) 226, at para. 65; and, more generally,
Jarbeau v. McLean
,
    2017 ONCA 115, [2017] O.J. No. 717, respecting suing a solicitor for loss of a
    chance.

[50]

The knowledge of an agent is ordinarily imputed to the principal because
    it is the duty of the agent to communicate that knowledge:
Durbin v.
    Monserat Investments Ltd.
(1978), 20 O.R. (2d) 181 (C.A.); and
Vescio
    v. Peterman
(1999), 45 O.R. (3d) 613

(C.A.).

See also by analogy s. 12(2) of the
Limitations Act,
    2002
, which states that a principal is deemed to have knowledge of any
    matter that an agent knew or ought to have known. As indicated above, even if
    solicitors negligence were to be established, that circumstance alone would
    not suffice to extend the statutory notice period

[51]

In summary, Bayden had a litigation guardian, Neville; she had no
    conflict of interest in relation to suing the City, and she had a good reason
    to try to limit her own potential liability by suing the City. The law firm which
    she retained to pursue claims on Baydens behalf, Wallbridge, did not sue the
    City. The only explanation in the record for not doing so is Nevilles evidence
    that, this never came up.

[52]

When there was a change of solicitors and a new litigation guardian, a
    motion was quickly brought to add the City as a party. However, almost a year
    had elapsed since the time Bayden first had a litigation guardian representing
    him. In all the circumstances, the notice to the City given by Baydens current
    litigation guardian, Dion, was out of time, and there was no reasonable excuse
    for the delay.

[53]

Having regard to my conclusion, it is not strictly necessary to deal
    with the issue of prejudice to the City for the purpose of disposing of this
    appeal. However, I will make some limited comments with a view to providing
    guidance in this regard.

[54]

The motion judge held that although the City had destroyed its
    maintenance records due to the passage of time, there was no prejudice to the
    City caused by adding it as a party to the action because Baydens claim was
    about road design issues, not maintenance or inspection. The City had not
    destroyed its road design records.

[55]

I would respectfully disagree that Baydens claim does not include
    maintenance or repair issues. In
The Queen v. Jennings et al.,
[1966]
    S.C.R. 532, the Supreme Court held that a municipalitys duty of repair
    includes erecting and maintaining proper signs. Baydens statement of claim against
    the City includes claims of failure or neglect to have adequate signs and
    lighting at the intersection; failure to warn motorists of the lack of illumination;
    and a claim that the City allowed the area to become an area of danger when
    they could have prevented same by the exercise of reasonable care and
    diligence, including modifications to the road and/or signs and/or lights. Just
    as the alleged failure to have proper signage is considered a repair issue, as
    it was in
Jennings,
so too it seems to me is a failure to have proper
    illumination. Thus, the claims against the City include claims for failing to
    keep the intersection in a reasonable state of repair.

[56]

While the passage of time is also a consideration with respect to
    prejudice, there is some indication in the record that the signage and lighting
    of the intersection are basically unchanged since the date of the accident. As
    it is unnecessary for me to resolve the issue of prejudice, I do not propose to
    comment further.

I.

Disposition

[57]

Accordingly, I would allow the appeal, set aside the order of the motion
    judge and order that the claim against the City be and is hereby dismissed.

J.

Costs

[58]

The City is entitled to its costs against the respondent before the
    motion judge and before us. The costs of the appeal are fixed by agreement of
    counsel at $15,000 inclusive of disbursements and all applicable taxes.

Karen M. Weiler J.A.

I agree. M.L. Benotto J.A

Roberts J.A.: (dissenting in part)

A.

Overview

[59]

I agree with my colleagues conclusion that the motion
    judges order should be set aside.  The respondent did not seek a declaration
    but only an interlocutory order to amend his pleadings, adding the City, among
    other parties, as a defendant.

[60]

I
    respectfully disagree, however, with my colleagues conclusion that the
    question of whether the City ought to be added as defendant requires a final
    determination of the limitation period issue under
s. 4 of the
Limitations
    Act
,
2002
, S.O. 2002, c. 24, or of the
notice period issue under ss. 44(10)
    and (12) of the
Municipal Act,
    2001
,
S.O.
    2001, c. 25.

[61]

As I
    shall explain, the respondent has met the low onus placed on him on a motion to
    amend a pleading.  The motion judge did not otherwise err in the exercise of
    her discretion by adding the City as a defendant. The limitation and notice
    period issues raised by the City ought to be left for final determination on a
    motion for that purpose or at trial.

[62]

Although
    I have determined that both the limitation and notice period issues should be
    left for future adjudication, I consider that the notice period issue is most
    obviously the one that ought to be decided on a fuller record after the
    exchange of pleadings. There is relatively limited jurisprudence as to what
    constitutes reasonable excuse. Moreover, the determination of reasonable
    excuse is more fact specific and not as clearly defined as the provisions
    under the
Limitations Act, 2002
.

[63]

Accordingly, I would allow the Citys appeal to the extent that I would
    grant it leave to plead the limitation and notice period defences under the
Limitations
    Act, 2002
, and the
Municipal Act, 2001
. I would otherwise dismiss
    the Citys appeal.

B.

Analysis

[64]

The motion judge erred in making a final
    determination with respect to the limitation and notice period issues under the
Limitations Act
, 2002
and the
Municipal Act, 2001
. This
    was a pleadings motion brought under rr. 26.01 and 5.04(2) of the
Rules of
    Civil Procedure
. This was not a motion to determine an issue of law before
    trial, nor was it a summary judgment motion.  No declaratory relief was
    requested. There was no trial of an issue. There were, however, credibility and
    factual issues that should have been left for final determination on a summary
    judgment motion or at trial.

[65]

On an amendment motion, the motion judge is not to decide the merits of
    the underlying action and proposed amendments:
Fram Elgin Mills 90 Inc. v.
    Romandale Farms Limited
, 2016 ONCA 404, 131 O.R. (3d) 455, at para. 36.
    As my colleague observes, an order adding a party defendant is ordinarily meant
    to be an interlocutory order that does not affect the parties substantive
    rights, because the litigation continues:
Fram
, at para. 28.

[66]

The motion judges conclusion that the respondents claim was not
    statute-barred by s. 4 of the
Limitations Act, 2002
, or s. 44(10) of the
Municipal Act, 2001
,
was made in the context of an amendment
    motion. It was therefore an error for the motion judge to make a final
    determination of the limitation and notice period issues.

[67]

In the present case, a rejection of the arguments put forward for
    not allowing the proposed amendments does not convert the overall nature of the
    respondents motion from an amendment motion into a r. 21.01(1)(a) motion:
Fram
,
    at para. 38.
[5]
The amendments are to be granted unless they would have been struck out under
    r. 21.01(1)(b) as disclosing no reasonable cause of action:
Fram
, at
    para. 31.  In allowing the amendment motion, the motion judge was only
    empowered to make a preliminary assessment about the tenability of the
    amendments:
Fram
, at para. 39.

[68]

The motion judge erred in effectively addressing the limitation
    and notice period issues as if this were not a pleadings motion but rather a
    motion for judgment on the limitation and notice period defences, which had not
    yet been pleaded:
Tran v. University of Western Ontario
, 2016 ONCA
    978, [2016] O.J. No. 6645, at para. 21.

[69]

This court has cautioned against the practice of challenging a
    claim based on a limitation defence where the proposed defendant has yet to
    deliver a statement of defence, because a court cannot gain a complete picture
    of the issues in a case without reading all of the pleadings. The claimant is
    entitled to reply to a statement of defence and to put before the court further
    facts, for example, on the question of the discoverability of the claim.  It
    would only be at that point that the issue of discoverability would be fully
    joined.  (See:
Tran
, at paras. 19 to 21;
Metropolitan Toronto
    Condominium Corporation No. 1352 v. Newport Beach Development Inc.
, 2012
    ONCA 850, 113 O.R. (3d) 673, at para. 115;
Greatrek Trust S.A./Inc. v.
    Aurelian Resources Inc.
, [2009] O.J. No. 611 (S.C.J.), at
    para. 18.)

[70]

Parties on an amendment motion are not expected to put their best foot
    forward, as they would on a motion for summary judgment. As a result, the
    evidentiary burden on the moving party in an amendment motion, even to add
    parties after the expiry of a limitation period, is low:
Pepper v. Zellers
    Inc.
(2006),
83 O.R. (3d) 648
(C.A.),
    at para. 14.

[71]

In
Collins
, at paras. 8-9, this court reviewed the case law
    dealing with amendments to a statement of claim where it was alleged that the
    limitation period had expired. This court concluded that, for the most part,
    the decisions canvassed stand for the principle that a motion to add a new
    party after the alleged expiry of a limitation period should in the normal
    course be considered based on the allegations in the proposed amended pleading
    without the need to consider an evidentiary record on the limitation issue.
    This court went on to explain that this is different from a motion for summary
    judgment to dismiss a claim based on the expiry of a limitation period. In the
    latter case, the court is making a final rather than an interlocutory decision.

[72]

As I noted earlier, the notice period issue under the
Municipal Act
,
    2001
gives rise to myriad credibility issues and issues of fact.
    Specifically, pursuant to s. 44(12) of the Act, the questions as to whether the
    respondent had reasonable excuse for the delay in giving the requisite ten-day
    notice under s. 44(10) of the Act, and whether the City has suffered prejudice
    in its defence, require determination on a summary judgment motion or at trial.

[73]

It is noteworthy in that regard that the City argues that it cannot be
    predicted at this early stage that the Citys duly purged records could have no
    relevance to the issue of prejudice. I agree. The Citys submission
    demonstrates that the issue of prejudice requires determination on a summary
    judgment motion or at a trial.

[74]

The same is true with respect to the issue of whether the respondent has
    a reasonable excuse for the delay in giving notice to the City. I disagree with
    the Citys assertion that there was nothing on the record that could be
    considered for the purpose of determining whether there were live issues that
    merit consideration on a summary judgment motion or at trial with respect to
    the issue of reasonable excuse.

[75]

What constitutes reasonable excuse for not giving the required ten-day
    notice is to be given a broad and liberal interpretation and, where the City is
    not prejudiced by the delay, a modest excuse may be sufficient to justify the
    late notice:
Fremeau v. Toronto (City)
,
    [2009] O.J. No. 2391 (S.C.J.), at para. 24
.  The court should consider
    all of the circumstances: see
Crinson v. Toronto
(City)
, 2010 ONCA 44
, 100 O.R. (3d) 366, at paras.
    20-23;
Seif v. Toronto (City)
, 2015 ONCA 321, 125 O.R. (3d) 481, at
    paras. 26 and 47. It is also important to note that the types of circumstances
    that will amount to a reasonable excuse have not been exhaustively defined or
    catalogued.

[76]

While the motion judge emphasized the absolute need to give primacy to
    the protection of minors as part of the reasonable excuse for not giving notice,
    she also indicated that this was not the only factor on which she determined that
    there was a reasonable excuse. In her view, it was one factor among other
    things that could constitute a reasonable excuse. I agree with the motion
    judge that it is of significance to the issue of reasonable excuse that the
    complex circumstances of this case involve a catastrophically impaired infant
    who was entirely dependent on others to properly assert his claims and that
    they may not have adequately represented him. As a result, it is all the more
    important that Baydens potential claims not be foreclosed prematurely,
    especially in the absence of settled pleadings and a full record.

[77]

I am satisfied that there are issues of fact and credibility relevant to
    the questions of reasonable excuse and prejudice that remain to be determined.
    Some of these issues, which may be expanded upon, include the following:

i.

Whether
    the respondent was capable of forming the intention to sue the municipality
    within the notice period under s. 44(10) of the
Municipal Act, 2001
.
    Relevant to this issue are the catastrophic injuries suffered by the respondent
    and his very young age.

ii.

Whether the respondent
    had a representative whose responsibility it was to retain a lawyer and pursue
    all possible claims. First, given her own injuries, could Ms. Neville properly
    represent Bayden? She had herself suffered a brain injury as a result of the
    accident and was experiencing pain and struggling when she originally retained
    a solicitor.  Second, could she properly represent Bayden because of her
    conflict of interest?  From the outset, Baydens mother was in a conflict
    position with respect to her sons claims because she was the driver of the
    vehicle in which Bayden was injured.  Moreover, could she meet the requirements
    of r. 7.02(2)(g) of the
Rules of Civil Procedure
that she had no
    interest in the proceeding adverse to that of the person under disability or
    could act as litigation guardian for all of Baydens claims, including the
    claim against the City, given that his claims would be against her, as well as
    against the City? These questions raise issues that are still to be determined.

iii.

The alleged negligence of
    Wallbridge gives rise to the following issues: whether the law firm failed to
    consider and advise Ms. Neville of Baydens potential claims, including a
    possible claim against the City; whether the law firm was in a conflict of
    interest in purporting to represent both Bayden and his mother; and whether the
    law firm was negligent in the settlement of Ms. Nevilles claim.

iv.

As already mentioned, whether the
    Citys duly purged records could have relevance to the issue that it suffered
    prejudice to its defence.

v.

Whether the respondent
    will be able to rebut the presumption of prejudice caused by the delay in this
    case because of the Citys ability to access other sources of information about
    the accidents circumstances, such as, timely photographs of the scene.

vi.

Whether there will be an
    explanation for the long delay in giving notice, evidence of which was not
    advanced on the pleadings motion because it was a pleadings motion. Additional
    explanations may be forthcoming should a summary judgment motion be brought or
    at trial.

[78]

As my colleague notes, the length
    of the delay is a relevant consideration when examining reasonable excuse:
Argue
    v. Tay (Township)
, 2012 ONSC 4622, 1 M.P.L.R. (5th) 77, at para. 51,
    affirmed 2013 ONCA 247, 10 M.P.L.R. (5th) 11, leave to appeal refused [2013]
    S.C.C.A. No. 246
. However, it is important to
    keep in mind that the length of delay, by itself, is not necessarily
    dispositive of whether there is reasonable excuse for the delay. The amount of
    delay that is acceptable has not been firmly established by the courts but
    depends on all of the other relevant circumstances of the particular case:
Delahaye
    v. Toronto (City)
, 2011 ONSC 5031, [2011]
    O.J. No. 4006, at paras. 37-38.

[79]

While any of the factors enumerated above, taken individually, may not
    be sufficient to constitute reasonable excuse on a summary judgment motion or
    at trial, in combination they may be enough to overcome the lengthy delay in
    this case and serve as reasonable excuse for the respondents failure to give
    the City notice within ten days of the commencement of the action in 2014:
Crinson
,
    at paras. 19 and 38;
Seif
,

at paras. 26-27, and 29 (per Hoy
    A.C.J.O., partly in dissent but not on this point). These were not issues that
    the motion judge was required to finally decide. It is sufficient for the
    purposes of the amendment motion that these issues give rise to issues of fact
    and credibility, which merit consideration on a summary judgment motion or at
    trial.

[80]

The motion judge exercised her discretion under rr. 5.04(2) and 26.01 of
    the
Rules of Civil Procedure
to permit a pleadings amendment to add
    the City to the respondents action.  In making that determination, the motion
    judge could not finally decide the limitation and notice period issues in
    favour of the respondent. She could only assess whether the amendments are
    tenable, whether there is sufficient evidence on the notice period issue to
    permit the amendments at this preliminary stage of the litigation, and whether
    the record gives rise to credibility issues and issues of fact that merit
    consideration on a motion for summary judgment or at trial.

[81]

In my view, the low threshold was met in this case. I see no error in
    the motion judges exercise of her discretion to allow the amendments.

C.

Disposition

[82]

Accordingly, I would allow the appeal to the extent of granting leave to
    the appellant to plead limitation and notice period defences under the
Limitations
    Act, 2002
and the
Municipal Act, 2001
. The appeal should
    otherwise be dismissed.

D.

Costs

[83]

The City was successful in its alternative relief on appeal and is
    entitled to costs against the respondent in the amount of $7,500. I would not
    overturn the costs awarded to the respondent on the motion below because the
    City was not successful in the main focus of its appeal to overturn the order adding
    it as a party defendant.

Released: L.R. May 12, 2017

L.B. Roberts J.A.

[1]
Counsel before the motion judge and before this court argued on the basis that
    Julia Neville did not swear the affidavit required and the appeal is disposed
    of on that basis.

[2]
A litigation guardian is an officer of the court and is a representative of a
    party, but is not a party to the proceedings: see
Lucas v. Coupal
, [1931] 1 D.L.R. 391
    (Ont. H.C.); and
Poulin v. Nadon
,
    [1950] 2 D.L.R. 303 (Ont. C.A.).

[3]
This conflict of interest would also prevent the same lawyer from acting for
    both Neville and Bayden unless they provided fully informed and voluntary
    consent  likely after both Neville and Bayden (through a litigation guardian
    other than Neville) had obtained independent legal advice: Law Society of Upper
    Canada,
Rules of Professional Conduct
,

r. 3.4-2.

[4]

In interpreting a statute there is a presumption
    of reasonableness: see Ruth Sullivan,
Statutory Interpretation
, 3d ed.
    (Toronto: Irwin Law, 2016), at pp. 222, 236. It is also presumed that the
    legislature does not intend unjust or inequitable results to flow from its
    enactments, and judicial interpretations should be adopted which avoid such
    results:
Ontario v. Canadian Pacific Ltd.
, [1995] 2 S.C.R. 1031, at
    para. 65. An interpretation of the
Municipal Act, 2001
which ignores the
    suspension of time due to the incapacity of a minor would not be in harmony
    with the
Limitations Act, 2002
and would therefore be contrary to
"the principle of
    interpretation that presumes a harmony, coherence, and consistency between
    statutes dealing with the same subject matter":

R. v. Ulybel Enterprises Ltd.
,
2001 SCC 56, [2001] 2 S.C.R. 867
, at para.
    52.
In relation to the related
    issue of discoverability of an injury and the running of a notice period,

the
    Supreme Courts decision in
Montreal (City) v. Vaillancourt,
[1977] 2 S.C.R.
    849, at 856-57 is arguably authority for the proposition that the notice period
    does not begin to run until the date of discovery. That said, in Ontario, the
    issue of discoverability is dealt with under s. 44(12) as a question of
    reasonable excuse:
Crinson v. Toronto (City)
, 2010 ONCA 44, 100 O.R.
    (3d) 366;
Seif v. Toronto (City)
, 2015 ONCA 321, 125 O.R. (3d) 481
.

[5]
Interestingly, and in contrast to the present case, in
Ball v. Donais
(1993), 13 O.R. (3d) 322 (C.A.), a case referenced by this court in
Fram
,
    the parties had singled out the limitation period issue for resolution in a
    motion brought under r. 21.01(1)(a).  In
Ball
, the defendant had brought
    a motion under r. 21.01(1)(a) for the final determination before trial of the
    legal issue raised in the pleadings as to whether the limitation period had
    expired.  This court concluded that the motion judge had finally determined the
    issue in favour of the respondent plaintiff that the limitation period had not
    expired.


COURT OF APPEAL FOR ONTARIO

CITATION: Belanger v. Sudbury (Regional Municipality), 2017
    ONCA 428

DATE: 20170526

DOCKET: C61442

Strathy C.J.O., Cronk and Pepall JJ.A.

BETWEEN

Lisa Marie Belanger, Craig Belanger,
Christine Belanger, Lori Belanger,
Aime
  Belanger, Gail Kennedy and John Laughlin

Respondents (Plaintiffs)

and

The
    Regional Municipality of Sudbury and The City
    of Greater Sudbury

Appellants (Defendants)

C. Kirk Boggs and David Litwin, for the appellant, The
    Regional Municipality of Sudbury

Paul J. Pape, Shantona Chaudhury, Jerome Morse and
    Joanna L. Nairn, for the respondents

Heard: May 10, 2017

On appeal from the judgment of Regional Senior Justice R.D.
    Gordon of the Superior Court of Justice, dated November 17, 2015, with reasons
    reported at 2015 ONSC 7071.

Cronk J.A.:

Introduction

[1]

This is a tragic case.  It involves whether a municipality complied with
    its statutory obligation to keep one of its roads in a reasonable state of
    repair.

[2]

On November 22, 2000, at approximately 11:15 a.m., then 20-year-old Lisa
    Marie Belanger was involved in a serious motor vehicle accident during a winter
    storm while she was driving southbound on Regional Road 35 (RR35), a two-lane
    Class 1 road, in the Regional Municipality of Sudbury (the Region).  Ms.
    Belangers car crossed the centre line of the highway and collided with an
    oncoming school bus.  She sustained catastrophic personal injuries in the
    collision from which she will suffer for the remainder of her life.

[3]

After the accident, the respondents, Ms. Belanger and her family members,
    sued the appellant Region and also the City of Greater Sudbury in negligence,
    claiming that they had failed to meet their obligations under s. 284(1) of the
Municipal
    Act
, R.S.O. 1990, c. M.45 (the Act), as then in force, to keep RR35 in a
    reasonable state of repair.

[4]

At trial, only liability was in issue.  The parties agreed that the
    appropriate quantum of damages was approximately $12 million.

[5]

The trial judge ruled in favour of the respondents, holding that the
    Region was 100% liable for the damages claimed.  He found that RR35 was snow
    covered and slippery at the time and location of the accident and that these
    conditions constituted a state of non-repair within the meaning of s. 284(1).
    He also held that, but for these conditions, the accident would not have
    occurred and Ms. Belanger would not have sustained injury.

[6]

On the trial judges findings, RR35 was salted by one of the Regions road
    maintenance employees at about 7:15 a.m. on the day of the accident.  Both
    lanes of the road were also twice plowed about three hours later, sometime
    between 10:15 and 11:15 a.m.  However, by the time of this plowing, the 7:15
    a.m. salting had lost its effectiveness due to dilution caused by falling snow
    and a refreeze of the road had occurred.  As a result of the refreeze, the snow
    had already bonded to the asphalt of the road, rendering the plowing ineffective
    in clearing the road to bare pavement.  The southbound lane of RR35, in which
    Ms. Belanger was travelling, was only re-salted shortly after the accident,
    more than four hours after the initial 7:15 a.m. salting.

[7]

Before this court, the Region does not contest the trial judges
    threshold finding that RR35 was in a state of non-repair at the time of the
    accident, in particular, his finding that a refreeze of RR35 occurred, as
    described above.   Instead, it relies on the statutory defences to negligence
    set out in ss. 284(1.2) and 284(1.3) of the Act to avoid liability for the
    damages claimed.  At the time of the accident, those sections provided that a
    municipality was not liable for failing to keep a highway or bridge in a
    reasonable state of repair: i) if it did not know and could not reasonably
    have been expected to know about the state of repair of the highway or bridge
    (s. 284(1.2)); or ii) if it took reasonable steps to prevent the default from
    arising (s. 284(1.3)).

[8]

Relying on these statutory defences, the Region appeals from the trial
    judges liability findings.  It maintains that both defences were established
    at trial and the trial judge erred in holding to the contrary.  The Region also
    argues that the trial judge erred in his apportionment of liability by failing
    to find that Ms. Belanger was contributorily negligent in the circumstances.

Issues

[9]

The issues on appeal may be framed as follows:

(1)

Did
    the trial judge err in his treatment of the statutory defences in ss. 284(1.2)
    and 284(1.3) of the Act?

(2)

Did
    the trial judge err in his treatment of the Regions contributory negligence
    claim?

Discussion

[10]

In several recent cases, this court has considered the duty of a
    municipality regarding road maintenance and the statutory defences to a claim
    in negligence against a municipality based on its alleged non-repair of a road,
    including in winter storm conditions: see for example:
Lloyd v. Bush
,
    2017 ONCA 252;
Fordham v. Dutton-Dunwich (Municipality)
, 2014 ONCA
    891, 327 O.A.C. 302;
Frank v. Central Elgin (Municipality)
, 2010 ONCA
    574, O.J. No. 3736.  These cases confirm that proof of a state of non-repair,
    as in this case, is not in itself sufficient to establish a municipalitys
    liability for the alleged failure to meet its duty of road maintenance.  The
Lloyd
court explained, at para. 64:

Rather, a municipality will only be liable for failing to salt
    and/or sand and clear the road of snow where it had actual or constructive
    knowledge that road conditions created an unreasonable risk of harm to users of
    the highway, and where the municipality unreasonably neglected that risk. [Citations
    omitted.]

[11]

With this principle at the forefront, I turn to the Regions core submission
    that the trial judges liability findings are unsustainable.

(1)

Section 284(1.2) Statutory Defence

[12]

The trial judge held, at para. 105, that the Region:

[F]ailed to meet its maintenance quality standards when [RR35],
    in a winter storm event, was left without maintenance activity for over three
    hours.
That lack of maintenance activity resulted in
    snow-packed and slippery road conditions.  That those conditions could result
    ought to have been known by the employees of the [Region]
.  [Emphasis
    added.]

[13]

The Region attacks these key findings on several grounds.  It submits
    that the Region could not be held to reasonably have known about the risk of a refreeze
    at the site of the accident because: i) the accident location was not a hot
    spot, that is, the Region had no knowledge of any problems at this location in
    the past or on the day of the accident; ii) the accident site was also not a
    refreeze magnet, in the sense of presenting as being at any particular risk
    of a refreeze; iii) none of the Regions involved employees had any experience
    with a refreeze in the conditions that existed on the day of the accident; iv)
    the Regions road maintenance quality standards, which were not met in this
    case, are not determinative of the standard of care; and v) the trial judge
    made no finding that the Region could reasonably have known about the risk of a
    refreeze based on the maintenance activities it undertook on the day in
    question.

[14]

In my view, these submissions do not undercut the trial judges impugned
    finding that the s. 284(1.2) defence was not made out in this case.  As I will elaborate,
    it is my opinion that the trial judges factual findings, to which deference is
    owed by this court absent a showing of palpable and overriding error,
    essentially are dispositive of this ground of appeal.

[15]

Based on the evidence at trial that the trial judge accepted, he made
    the following critical findings:

A.    Regions Standards and Recommended
    Procedures

(1)

the
    Regions road maintenance quality standards for winter plowing, sanding and
    salting provided that, for Class 1 roads like RR35, coverage (either plowing
    or spreading) intervals shall not be greater than every
2
    hours
throughout the storm (emphasis in original) and Class 1 and 2
    roads were to have
First Priority
 (emphasis in
    original);

(2)

the
    Ministry of Transportations coverage guidelines for Class 1 roads, as then in
    force, were substantially to the same effect;

(3)

the
    Regions recommended procedures for the salting of roads, streets and lanes stated
    in part:

2.  Spread salt before snow accumulates so that a brine
    sandwich develops.  This will prevent snow from sticking to the pavement,
    removal will be easier and bare pavement will result.

3.  Cover route as often as possible, but not before the
    first application has a chance to work (usually 1 hour); and

(4) the
    Regions winter road maintenance quality standards and recommended salting
    procedures were not met in this case.

B.
    Weather Conditions

(5)   initially, before 7:00 a.m. on the morning of the accident, the
    weather forecast called for only light snow (0.5 cm); however, at 8:17 a.m. the
    forecast changed to anticipate heavier snow;

(6)   November
    22, 2000 was a bitterly cold day. At the time

of

the

accident,

the

temperature was about -11.6  Celsius,
    with heavy wind blowing from the north at approximately 25 kilometres per hour;
    and

(7)   the
    amount of precipitation increased throughout the morning.  Before 7:00 a.m.,
    only 0.5 cms of snow fell; however, between 8:00 a.m. and 11:00 a.m., the total
    snow accumulation was approximately 5 cms.

C.  Road Conditions

(8)   at the
    time of the accident, RR35 was in a treacherous, snow-packed and slippery
    condition.

[16]

As I have said, the trial judge also addressed the road maintenance
    activities carried out by the Region on RR35 on the morning of the accident.
    To repeat, he found that:

(1)

the
    relevant stretch of road on RR35 was salted by a Region employee at 7:15 a.m.
    on the day of the accident;

(2)

due
    to a series of unanticipated equipment failures, the road was not serviced
    again until between 10:15 a.m. and 11:15 a.m., when a Region employee twice plowed
    both the north and southbound lanes of RR35.  Plowing occurred in the
    southbound lane not later than 10:45 a.m.; and

(3)

re-salting
    of the bridge on the southbound lane of RR35, where the accident occurred, was
    not undertaken until shortly after 11:15 a.m., by which time the accident had
    already taken place.

[17]

The trial judges findings regarding the Regions RR35 road maintenance
    activities are amply supported by the record and are not contested.  They
    establish that from 7:15 a.m. to approximately 10:15 a.m.  a period of three
    hours  the Region failed to carry out any maintenance works on RR35,
    notwithstanding that snow continued to fall and it remained windy and bitterly
    cold.  Moreover, re-salting of the southbound lane of the road did not take
    place at any point prior to the accident.

[18]

The Region emphasizes that plowing of RR35 did occur between 10:15 a.m.
    and 11:15 a.m. (including, in the southbound lane, by no later than 10:45 a.m.)
    and that the trial judge found that, allowing for the time required to prepare
    the plow for use and for it to arrive at the starting point of its assigned
    route, the timing of the plowing was reasonable.

[19]

This is accurate.  However, the trial judge also accepted the evidence
    of the respondents winter road maintenance expert, Russell Brownlee, that the
    road surface and weather conditions after the application of salt on RR35 at
    7:15 a.m. were consistent with the risk of a refreeze and an accumulation and packing
    of snow on the road.

[20]

Mr. Brownlee further testified that the concept of a refreeze was well
    known in the winter maintenance industry, a fact that the Region did not
    contest at trial and does not contest now.  He gave the following evidence
    regarding the risk of a refreeze on RR35 in the conditions that existed on
    November 22, 2000:

The road temperatures experienced on November 22nd in the
    morning under cloudy skies or overcast skies would reduce the effectiveness of
    road salt on this particular day.  The reported wind speeds did have the
    potential to cause drifting snow, which would create an additional challenge,
    and these two things in combination with, along with the snow, the anticipated
    snowfall accumulation would make it a challenge to prevent a refreeze of the
    salt and snow brine on the roadway in, in, in [
sic
] combination with
    these things.

[21]

Mr. Brownlee also outlined the preventative steps necessary to avoid a
    refreeze.  He said that this required consistent and sequenced plowing and
    salting of a roadway.  Specifically, he testified that plowing should follow
    the salting of a road within half an hour to an hour, to clear the salt and
    melting snow from the road.  Salt should then be reapplied, and the
    salting/plowing sequence should continue until the snowfall stops and bare
    pavement conditions have been achieved.

[22]

According to Mr. Brownlee, in light of the prevailing weather and road
    conditions on the morning of the accident, this plowing and salting sequence on
    RR35 needed to be returned in a cycle that was continuous and consistent to
    reduce the likelihood of the road, the, the [
sic
] snow thats falling
    to pack on the roadway, to bond to the surface of the roadway, and for the
    roadway to, surface to refreeze.  He offered the opinion that, in this case:
    i) the Regions road maintenance operations were not properly staged to plow
    off the falling or blowing snow that was on the road surface in conjunction
    with the [timing of the original salt application]; ii) the mixture of the
    prevailing road temperatures, wind speed and snowfall on November 22, 2000
    would [have made] it a challenge to prevent a refreeze of the salt and snow
    brine on the roadway; and iii) the Region didnt get there in time and the
    salt was overwhelmed by the snowfall.

[23]

As I have indicated, the trial judge accepted Mr. Brownlees evidence on
    this critical issue.  He found, at paras. 50 and 57 of his reasons, that Mr.
    Brownlees explanation of a refreeze on RR35 best reflects what is likely to
    have happened on November 22, 2000 and why, notwithstanding the plowing that
    took place in the hour before the accident, the road remained snow covered and
    slippery.

[24]

The trial judge concluded that the Region ought to have known of the
    risk of a refreeze on RR35 and of the fact that the failure to meet its road
    maintenance quality standards for RR35 could lead to a state of non-repair.

[25]

The Region takes aim, especially, at the trial judges treatment of the
    evidence of the Regions maintenance employees who testified that they had never
    experienced a refreeze in winter conditions equivalent to those that applied to
    RR35 on the morning of the accident.  The Region argues that, based on this
    evidence, the Regions employees could not be held to have known or be expected
    to have known of the potential for a refreeze on RR35 in the conditions that
    existed on the day of the accident.

[26]

The trial judge dealt expressly with this argument.  He stated, at para.
    101:

I have difficulty with the position of the Defendant on this
    point for three reasons.  First, a close examination of the evidence of those
    three foremen indicates that although they had not experienced a refreeze in
    similar winter conditions they had not been posed the question in the context
    of their having been no further winter maintenance on the road for over three
    and [a] half hours.  Secondly, the employees of the Defendant knew the
    maintenance standards and knew the standards were designed to prevent a
    situation of non-repair.  They should have easily been able to adduce [
sic
]
    that failure to meet those standards could result in non-repair even if they
    did not appreciate the precise reason.  Thirdly, the evidence of Mr. Brownlee,
    the Plaintiffs expert, was that the refreeze principle is well known in the
    winter road maintenance industry.

[27]

The Region contends that this reasoning reflects errors of both fact and
    law and furnishes no basis for fixing the Region with actual or constructive
    knowledge of the risk of a refreeze on that part of RR35 where the accident
    occurred.

[28]

I disagree for several reasons.

[29]

First, the trial judge was entitled to accept Mr. Brownlees expert evidence
    notwithstanding the evidence of the Regions employees, and to conclude, as he
    did, that the Regions employees ought to have known of the risk of a refreeze
    on RR35 due to the snow-packed, slippery and salt and snow brine conditions on
    the road.  It is undisputed that the risk of road refreezes during winter storm
    events is well known in the road maintenance industry.  The Region, through its
    employees, therefore must be taken to have known of this risk, a proposition
    that the Region does not generally dispute.  Representatives of the Region
    certainly knew that RR35 had not been re-salted and they knew of the prevailing
    weather and road conditions during the morning of the accident, which, in
    combination, could trigger a refreeze if proper and timely maintenance works
    were not carried out.  Yet, contrary to the Regions standards and procedures,
    no re-salting of RR35 was undertaken within the two hours following the first
    salting at 7:15 a.m.

[30]

Recall, in this regard, that the Regions standards and procedures
    contemplated maintenance works in circumstances that could trigger a refreeze.
    They provided: i) for the spreading of salt before snow accumulated in order to
    prevent snow from sticking to the pavement and to facilitate snow removal; ii)
    the intervals between road maintenance activities (plowing or spreading) during
    a winter storm were to be no greater than every two hours; iii) Class 1 roads
    were to be assigned maintenance priority; and iv) roads were to be covered by
    maintenance activities as often as possible during a snow event.

[31]

In the case of RR35, these standards and procedures were not followed.
    As set out above, Mr. Brownlee testified that, in the prevailing conditions, a
    refreeze of RR35 was not only possible, but it would be a challenge to
    prevent it.

[32]

In these circumstances, I agree with the respondents submission that the
    fact that the Regions employees had never experienced a refreeze in the past
    in the type of conditions that existed on the morning of the accident does not
    mean that they should have been unaware of the risk of a refreeze in similar
    conditions.  It was open to the trial judge, on the evidence, to find that they
    reasonably ought to have known of this risk.

[33]

Second, the Region submits that the trial judge erred by treating a
    breach of the Regions standards and procedures, as occurred here, as
    tantamount to a breach of the standard of care applicable to the Regions
    statutory duty to keep RR35 in a reasonable state of repair.

[34]

I do not read the trial judges reasons in the manner urged by the
    Region.  The knowledge of the Regions employees that the applicable standards
    and procedures were designed to prevent the occurrence of a state of highway
    non-repair, and that they had not been met on the day in question, was only one
    factor considered by the trial judge in concluding that the Regions employees
    reasonably ought to have known of the risk of a refreeze on RR35.

[35]

The fact of non-compliance with the Regions applicable winter road standards
    and procedures was a relevant and necessary consideration.  And the trial judge
    did not indicate that the Regions failure to comply with these standards and
    procedures established a breach of the standard of care.  Rather, his finding
    that the Regions employees ought to have known of the risk of a refreeze on
    RR35 was based on the particular facts and circumstances of this case,
    including the Regions failure to adhere to its own standards and procedures,
    Mr. Brownlees evidence about the well-known phenomenon of refreeze and the
    steps necessary to prevent it, and the weather and road conditions on the day
    of the accident.

[36]

At the end of the day, the trial judge held that the Regions employees
    reasonably ought to have been expected to know of the emergence of conditions
    on RR35 giving rise to the risk of a refreeze, conditions that were caused by
    the Regions failure to employ the plowing and salting sequence of preventative
    maintenance works outlined by Mr. Brownlee and contemplated by the Regions own
    standards and procedures.  In my view, this holding is unassailable.  It is
    fatal to the Regions s. 284(1.2) defence.

(2)

Section 284(1.3) Statutory Defence

[37]

Relying on this courts decision in
Lloyd
, the Region argues that
    the trial judge erred in his consideration of its s. 284(1.3) reasonable
    steps defence by failing to consider the reasonableness of the maintenance
    steps actually undertaken by the Region on RR35 on the morning of the accident,
    instead focusing on the steps that the Region could have taken in the
    circumstances.  The Region says that the trial judge, like the trial judge in
Lloyd
,
    impermissibly concentrated his reasonableness analysis on the results of the
    Regions efforts, rather than evaluating whether the Region had acted
    reasonably in all the circumstances.

[38]

I would reject this argument.

[39]

As in this case,
Lloyd
involved a statutory reasonable steps
    defence advanced by a municipality in relation to its road maintenance work
    during a winter snow event.  The
Lloyd
court held that the trial judge
    in that case, when evaluating the municipalitys statutory defence, erred by
    focusing on whether the existing state of roadway non-repair had been corrected
    by the municipality, rather than on the reasonableness of the steps that were actually
    taken by the municipality.
Lloyd
holds that what the trial judge
    should have done was to focus on the evidence about the municipalitys response
    to the relevant snow event.  However, the trial judges reasons in
Lloyd
contained no clear findings as to what the municipality had done, and virtually
    no analysis or discussion of the reasonableness of its response in light of all
    the relevant circumstances:
Lloyd
, at paras. 79, 85 and 86.  On this
    ground, among others, this court concluded that the trial judges rejection in
Lloyd
of the municipalitys statutory defence could not stand.

[40]

That is not this case.  Here, in my view, the trial judges reasons
    clearly indicate that he appreciated the requirement that he assess the
    reasonableness of the road maintenance works actually performed by the Region
    on the day in question and that he undertook this analysis.

[41]

Unlike the trial judge in
Lloyd
, the trial judge made specific
    findings about the nature and timing of the Regions road maintenance
    activities on RR35 and elsewhere in the Region on the day of the accident.  I
    have described his findings concerning RR35 earlier in these reasons.

[42]

The trial judge also identified the arguments advanced by the
    respondents in support of their assertion that the steps taken by the Region to
    maintain RR35 were unreasonable.  He addressed each of those arguments in turn,
    and the Regions responses to them, in his reasons.

[43]

The trial judge was entitled to structure his reasonableness analysis
    under s. 284(1.3) to respond to the case run at trial, including the arguments
    advanced by the parties.  His reasons confirm, contrary to the Regions
    submission, that he did undertake the requisite analysis whether the steps
    actually taken by the Region were reasonable in all the circumstances.  Having
    listed the maintenance works that he found the Region had undertaken on RR35,
    the respondents arguments on the reasonableness of those works in the
    circumstances, and the Regions responses, the trial judge devoted 36
    paragraphs of his reasons to the question whether the Regions efforts were
    reasonable.

[44]

In so doing, the trial judge addressed: i) the amount of loose snow
    accumulation on RR35; ii) whether the Regions road maintenance work crews
    failed to meet the two-hour return time for maintenance on RR35 contemplated
    under the Regions road maintenance quality standards; iii) whether the
    Regions efforts to meet the two hour return period by the [salt] spreader [were]
    reasonable; iv) the availability and use by the Region of spare equipment; v)
    whether there was a failure to communicate by the Regions employees, as the
    respondents alleged; and vi) whether the Region had failed to adequately patrol
    its roads on the day of the accident.  The trial judge made specific factual
    findings in respect of each of these issues, some favouring the Region and
    others favouring the respondents.

[45]

In view of this analysis by the trial judge, I do not think this case
    mirrors
Lloyd
in the manner asserted by the Region.  That the trial
    judge in this case might have structured his reasons in another fashion, or
    made different factual findings more helpful to the Region, is irrelevant.  It
    is not the function of this court to re-try the case or, absent reversible
    error, to second-guess the trial judges factual findings.  The important point
    is whether the trial judge considered, as he was obliged to do, the
    reasonableness of the maintenance works in fact carried out by the Region on RR35.
    In my opinion, his reasons demonstrate that he did so.

[46]

I find further support for this conclusion in the trial judges
    reference, at para. 17, to this courts decision in
Frank
.  The trial
    judge quoted from para. 7 of that decision, in which the
Frank
court
    confirmed that s. 284 of the Act does not impose on a municipality a duty to
    repair every adverse road condition and that municipalities ought not to be
    turned into insurers of the safety of the driving public by imposing overly
    onerous maintenance obligations.  The trial judge thus appreciated that the
    operative standard under s. 284(1.3) of the Act for assessing a municipalitys
    road maintenance works is one of reasonableness, not perfection:
Frank
,
    at para. 12.

[47]

I note that
Frank
also holds, at para. 10, that a
    municipalitys duty of repair arises in any situation where road conditions
    create an unreasonable risk of harm to users of the highway.  The
Frank
court states, at para. 12: W]here winter road conditions give rise to an
    unreasonable risk of harm, a municipality must show that it took reasonable
    steps to eliminate or reduce the damage within a reasonable time after it
    became aware of the danger.  This was the central issue at trial in respect of
    the Regions s. 284(1.3) defence.  And it is this inquiry that, in my opinion,
    the trial judge addressed.

[48]

It is true that, in the course of his reasonable steps analysis, the
    trial judge considered those steps that he concluded were available to the
    Region and that, if undertaken, might have averted the development of road
    conditions on RR35 that were ripe for a refreeze.  He held that the Region
    failed either: i) to assign a salt spreader to salt RR35 in a timely fashion; or
    ii) to require that one of its available road maintenance contractors, Mr.
    Edward Marynuk, drop salt on RR35 when he passed through the accident area
    approximately one hour prior to the accident while en route to his assigned
    maintenance route.  The trial judge concluded, at para. 105, that if either
    action had been taken, RR35 would not have been in the treacherous condition
    it was [in] when the accident occurred and it is likely that the accident would
    not have occurred at all.

[49]

The Region argues that, in considering these additional or alternate
    steps, the trial judge erred in law and misdirected himself.  The Region
    submits that, in order to establish its s. 284(1.3) defence, it was required to
    prove only that the steps it took to prevent a state of non-repair on RR35 were
    reasonable, and not that it took all reasonable steps to do so.  In support of
    this submission, the Region renews its argument that the trial judge erred by
    asking whether the Region could have acted differently, rather than assessing
    whether the Region acted reasonably in the circumstances it faced.

[50]

Again, I disagree.

[51]

In considering this argument, it is important to bear in mind that,
    under s. 284(1.3) of the Act, the Region bore the onus of establishing the
    defence that it advanced, namely, that the steps it took on the morning of
    November 22, 2000 to prevent a state of non-repair from arising on RR35 were
    reasonable: see for example,
Fordham
, at para. 26.

[52]

As I have explained, the trial judges finding that those steps were not
    reasonable in all the circumstances was not anchored solely in his
    consideration of the alternate or additional steps available to the Region.  He
    conducted a detailed analysis whether the actual steps undertaken by the Region
    were in fact reasonable and concluded that, in several material respects, they
    were not.  He thus held, in effect, that the Region had failed to meet its onus
    to establish the s. 284(1.3) statutory defence.  His findings in this regard are
    supported by the evidence and, consequently, they attract deference from a
    reviewing court unless they are tainted by palpable and overriding error.  No
    such error has been demonstrated by the Region.

[53]

I note also that the Region failed to call any evidence at trial to
    contradict Mr. Brownlees opinion regarding the maintenance works required to
    avoid a refreeze.  Nor did it lead expert evidence that its failure to meet its
    own road maintenance quality standards and recommended salting procedures was
    unavoidable in the circumstances on account of its numerous equipment
    breakdowns or other factors.

[54]

The critical undisputed facts remain that the Region failed to re-salt
    RR35 after the 7:15 a.m. salt application, until after the accident had
    occurred, and its plowing of the road was ineffective due to the road
    conditions it had allowed to develop.  The trial judge reviewed in detail the
    evidence about whether it was reasonably possible for the Region to have
    re-salted before 11:15 a.m. on the day of the accident.  He made two important findings
    in this regard.

[55]

First, he held that, on the state of the evidentiary record, he was
    unable to find that one of the Regions spare salt spreaders, Unit R-136, was
    unavailable for use on RR35 before the road was plowed.  This is significant because
    the trial judge also found that, if Unit R-136 had been mobilized to service
    RR35, its operator could have passed over the scene of the accident, depositing
    salt in the southbound lane of the road, at about 10:30 a.m.  This would have
    permitted the salt to begin to work on the road and the fallen snow before plowing
    took place in advance of the accident.

[56]

The trial judges appreciation of the sufficiency of the evidence
    regarding the availability of Unit R-136 attracts deference from this court.
    The Regions complaint that the trial judge failed to draw a logical,
    inescapable and common sense inference that Unit R-136 was not available
    for use on RR35 at the material time cannot succeed.  In effect, the Region
    invites this court to engage in speculation regarding the availability of Unit
    R-136 and criticizes the trial judge for properly declining to do so.  The
    reality is that the Region failed to establish at trial the whereabouts of Unit
    R-136 during the relevant time period and, hence, that it was unavailable to be
    deployed to re-salt RR35.

[57]

Second, as I have already mentioned, the trial judge found as a fact
    that Mr. Marynuk, one of the Regions contractors, was on RR35 in the area of
    the accident scene at approximately 10:15 a.m., when re-salting of the road
    could have been accomplished.  On the trial judges findings, Mr. Marynuks
    machine had a full load of salt and his use of it on RR35, if he had been
    ordered to do so, would not have required his diversion from his assigned,
    regular route  he was passing through the accident scene in any event.

[58]

Yet, the responsible Region foreman failed to direct Mr. Marynuk that
    RR35 required servicing and that he should use some of his salt load on RR35
    while en route to his assigned destination.  Indeed, at the appeal hearing, the
    Region was unable to point to evidence of any communications among the
    responsible Region employees between 7:15 a.m. and 11:15 a.m. on November 22,
    2000 regarding the road conditions on RR35 and its need for servicing, or the
    potential risk of a refreeze of the road.

[59]

The evidence concerning the additional or alternate road maintenance
    steps available to the Region, in my opinion, properly informed the trial
    judges analysis of the reasonableness of the steps taken by the Region to
    prevent the build-up of conditions on RR35 that could lead to a refreeze.
    Further, in considering what the Region could have done, the trial judge was
    responding directly to the Regions argument at trial that, given the number of
    unanticipated equipment breakdowns it had experienced on November 22, it had
    taken all reasonable, available steps in the circumstances and it could not
    have done any more.  The trial judge cannot be faulted for coming to grips with
    an argument advanced by the Region in defence of its conduct.

[60]

I make these final comments concerning the Regions attack on the trial
    judges findings regarding Mr. Marynuks potential re-salting of RR35.  The
    Region submits that the trial judges impugned findings regarding the potential
    re-salting of RR35 by Mr. Marynuk fail to recognize that other, similar roads
    in the area of RR35 were subject to the same weather conditions on November 22,
    2000 and also required servicing on an equal priority basis.

[61]

There are two difficulties with this submission.  First, as I have said,
    the trial judge found that the use by Mr. Marynuk of his spreader to re-salt
    RR35 would not have required that he be diverted from his assigned route.  It
    simply required timely communications between the Regions foreman and Mr.
    Marynuk.  This did not occur.

[62]

Second, unlike RR35, the adjacent routes in question do not appear to
    have required urgent re-salting.  The first salting route, S11, was Mr.
    Marynuks assigned route for maintenance work.  He was en route to S11, to salt
    it for the first time that day, when he travelled over the area of the accident
    scene.  Hence, the risk of a refreeze due to ineffective early salting of S11
    did not arise.  RR35 forms part of another salting route, S4.  Portions of S4
    had been salted during the morning of November 22.  Unlike RR35, these other
    portions of S4 were also plowed at a time that permitted removal of the
    salt/snow brine that had developed on the route.  As a result, no risk of a refreeze
    arose concerning the S4 route either, except with respect to RR35.

[63]

Thus, for varying reasons, neither of these other roads presented the
    same risk of a refreeze or emergent hazard as applied to RR35 during the
    relevant period on the day of the accident.

[64]

In my view, it therefore cannot be said that this is a case involving
    the allocation by the Region of reduced resources to multiple and competing,
    potential hazards of equal priority.  Rather, it is a case where the Region
    failed to recognize, but reasonably ought to have known of, the risk of a refreeze
    on RR35 due to its failure to re-salt the road on a timely basis.
    Consequently, the Region failed to respond to that risk in a reasonable fashion
    under all the circumstances.  Since the Region failed to undertake
any
responsive road salting activities for more than
    four hours after its initial salting of RR35, this is also not a case where, as
    in
Ondrade v. Toronto (City)
, 2006 O.J. No. 1769 (S.C.J.), a case
    cited by the Region, its actions may be regarded as falling within a range of
    reasonable responses to the risk of harm to users of the highway that emerged
    on RR35 during the morning of the accident.

[65]

For these reasons, I see no basis for appellate interference with the
    trial judges treatment of the Regions s. 284(1.3) defence.

(3)

Contributory Negligence

[66]

The trial judge made two key findings concerning the Regions claim that
    Ms. Belanger was negligent.  First, he found, at para. 61, that Ms. Belanger sudden[ly]
    and without explanation lost control of her vehicle and that this loss of
    control and her inability to regain complete control of her car once it began
    to fishtail on the road, would not have occurred but for the slippery road
    conditions on RR35.

[67]

Second, given the slippery road conditions, he further found, at para.
    111, that in the absence of some evidence of an overt decision, action or
    adjustment by Ms. Belanger that would cause her to lose control of her
    vehicle, her loss of control was as consistent with [the] normal and safe
    operation of her vehicle as it [was] with some act of negligence on her part.

[68]

The Region argues that these findings are fatally flawed because the
    trial judge failed to appreciate that, as a matter of law, a presumption of
    negligence applied as against Ms. Belanger because her vehicle crossed the
    centre line of the road: see
El Dali v. Panjalingam
, 2013 ONCA 24,
    113 O.R. (3d) 721, at paras. 17-18.  This error, the Region says, led the trial
    judge to further err by concluding that the Region bore the onus to prove Ms.
    Belangers negligence when, as a matter of law, Ms. Belanger bore the onus of
    rebutting the presumption of negligence.

[69]

I would not accede to this submission in this case.

[70]

As the Region points out, the trial judge does not refer expressly to
    the presumption of negligence in his reasons.  However, while it might have
    been preferable if he had done so, the record reveals that the Regions
    invocation of the presumption was specifically addressed at trial.  In his
    closing submissions, the Regions counsel dealt in some detail with the
    Regions allegation of contributory negligence, including the operation of the
    presumption.  He stated with reference to the presumption: That presumption is
    not rebutted here (for example, because the crossing of the line occurred in
    the course of a loss of control).

[71]

In light of this submission, there can be no doubt that the trial judge
    was aware of the Regions reliance on the presumption.  Moreover, the Region
    appears to have acknowledged that if it was established that Ms. Belanger
    crossed the centre line of the roadway in the course of a loss of control of
    her vehicle, this would suffice to rebut the presumption of negligence.  And this
    is precisely what the trial judge found had occurred.  It is implicit in his finding
    that he considered the presumption and found that Ms. Belanger had lost control
    of her car.  As the Region had acknowledged in its closing argument, this was
    sufficient to rebut the presumption on the facts.

[72]

I am satisfied, in any event, that the presumption was rebutted in this
    case.  There was no evidence at trial of any action or omission attributable to
    Ms. Belanger that caused her car to cross the centre line of the highway.  Nor,
    as the trial judge noted at para. 108, was there any suggestion that she engaged
    in any deliberate maneuver that could be construed as unusual or dangerous.
    There was also no evidence that Ms. Belanger was inattentive to or distracted
    from her driving, or that the condition of her car contributed in any way to
    the accident.  The trial judge also found that she was not driving at an excessive
    speed.  And several other drivers at or near the scene testified that they,
    too, had experienced difficulties controlling their cars due to the slippery
    road conditions.  Notably, none of these findings is challenged by the Region.
    Finally, while the Region stresses that Ms. Belanger did not have snow tires on
    her car, other drivers at the accident scene similarly had chosen to use
    non-snow tires on their vehicles.

[73]

In these circumstances, and on this evidentiary record, I am unable to
    conclude that the trial judge erred in his consideration of the Regions
    contributory negligence claim against Ms. Belanger.  When his reasons are read
    in the context of the case advanced and argued by the Region, I conclude that
    the trial judge fairly considered this claim, the evidence bearing upon it, and
    the application of the presumption of negligence. Accordingly, there is no
    basis for appellate interference with his apportionment of liability.

[74]

This ground of appeal, therefore, also fails.

Disposition

[75]

For the reasons given, I would dismiss the appeal.  The respondents
    shall deliver their brief written costs submissions to the Registrar of this
    court within 14 days of the release of these reasons.  The Region shall deliver
    its brief responding costs submissions within 14 days thereafter.

Released:

MAY 26 2017                                    E.A.
    Cronk J.A.

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

I
    agree S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bentivoglio v. Groupe Brigil Construction, 2017
    ONCA 413

DATE: 20170523

DOCKET: C61864

LaForme, van Rensburg and Huscroft JJ.A.

BETWEEN

Michael
    Steven Bentivoglio O/A Mikes Heating, Air Conditioning &

General
    Contracting

Plaintiff

and

Le Groupe Brigil
    Construction, a Division of 6095186 Canada Inc., and 3223701 Canada Inc.
,
    and Caisse Desjardins de Hull

Defendants (
Respondents
)

and

Genivar Inc.

Third
    Party (Respondent/Appellant

on
    Cross-Appeal)

and

Mastron Mechanical
    Contracting Limited, Mastron Mechanical Contracting (1988) Limited, SJDM
    Holdings Ltd.
, and Michael Steven Bentivoglio O/A Mikes Heating, Air
    Conditioning & General Contracting

Fourth Parties (
Appellants
)

Craig O'Brien, for the appellants, Mastron Mechanical
    Contracting Limited, Mastron Mechanical Contracting (1988) Limited and SJDM
    Holdings Ltd.

Howard Borlack and James M. Brown, for the respondent,
    Genivar Inc.

Gabriel Poliguin, for the respondents, Le Groupe Brigil
    Construction, a Division of 6095186 Canada Inc., and 3223701 Canada Inc.

Heard: May 16, 2017

On appeal from the order of Justice W.D. Newton of the Superior
    Court of Justice, dated February 18, 2016.

REASONS FOR DECISION

[1]

Genivar moved for an order dismissing the third party claim, or in the
    alternative granting leave to continue its fourth party claim against Mastron.
    The basis for the motion to dismiss was that the defendant Brigil had not
    obtained leave to commence the third party claim under the
Construction
    Lien Act
. Mastron argued the fourth party claim should be dismissed
    because it too had been commenced without leave.

[2]

The motion judge refused to dismiss the third and fourth party claims.
    In doing so, he held that an order by Hackland J. dated December 10, 2013 was
    intended to continue the proceedings  under the ordinary track,  and, as
    such, the proceedings continued to be governed by the
Rules of Civil
    Procedure
. He granted leave
nunc pro tunc
to Genivar to issue its
    fourth party claim against Mastron. Mastron appeals.

[3]

Mastron argues that the motion judge erred in granting leave
nunc
    pro tunc
to commence the fourth party claim. It contends that the matter
    was proceeding under the
Construction Lien Act
, and that it was an
    error for the motion judge to grant leave
nunc pro tunc
because the
    two year limitation period for commencement of the fourth party claim by the
    third party had expired before leave was sought.

[4]

The appeal is dismissed. In our view, the motion judge correctly found
    that the intention of the order of Hackland J.  made on consent of Genivar
    was to continue the action on the ordinary track.

[5]

After disposing of the lien claim
    entirely, the order of Hackland J.
did not expressly state whether the
    remainder of the action would continue under the ordinary track, but

merely that the third party claim would
survive
.
    The third party claim sought damages for breach of contract and negligence in
    addition to contribution and indemnity.

[6]

Since only claims for contribution and indemnity are permitted in
    construction lien third party proceedings under s. 56 of the
Construction
    Lien Act,
a third party claim that asserts other claims can only proceed
    on the ordinary track. As a practical matter, the third party claim here could
    only
survive
 in proceedings on the ordinary track. Accordingly,
    the motion judge adopted the only reasonable interpretation that could be given
    to the order of Hackland J.

[7]

In the result, the decision to allow Genivar to continue the fourth
    party claim was correct. We note however that, since the third party
    proceedings continued on the ordinary track, there was no need for the
nunc
    pro tunc
order for leave.

[8]

In light of the conclusion that the action had moved to the ordinary
    track at the time the fourth party proceedings were commenced, it is
    unnecessary to address Mastrons other arguments.

[9]

Pursuant to the agreement of the parties, Genivar is awarded costs of
    the appeal in the amount of $20,000; Brigil is awarded costs of $13,000. Each
    amount is inclusive of disbursements and HST.

H.S.
    LaForme J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.