Law Times

Page 12 November 26, 2018 • Law Times www.lawtimesnews.com Hamilton crash cases lead to different results BY MICHAEL MCKIERNAN For Law Times T he Supreme Court of Canada should step in to clear up the confu- sion created by two re- cent Ontario Court of Appeal judgments that arrived at oppo- site conclusions on a municipal- ity's liability for roadway non- repair, according to lawyers. On Sept. 19, the three-judge panel in Chiocchio v. Hamilton (City) overturned a trial judge's finding that the city was 50-per- cent responsible for a crash that paralyzed a man due to its fail- ure to repaint a faded stop line. But in the Smith v. Safranyos decision released on the same day, a separate appeal court pan- el upheld a trial judge's decision to find the same city 25-per-cent liable for the plaintiffs' injuries for non-repair at an intersection under Ontario's Municipal Act. Chiocchio's lawyer, Michael Smitiuch, says his client intends to seek leave to appeal his case to the nation's top court. "He was obviously very dis- appointed with the decision. His needs are significant and they will remain so for the rest of his life," Smitiuch says. "There was a potentially conf licting decision released on the same day and, from our perspective, this is a case which raises fundamental issues about road safety in Cana- da and could potentially impact all drivers across the country." James Tausendfreund, of litigation boutique Zuber and Company LLP, who acted for the City of Hamilton in both ap- peals, wasn't able to comment on the prospect of a further appeal of the Safranyos verdict, but he says his client was happy with the Chiocchio decision. "This is a tragic case in which the plaintiff suffered horrendous injuries, but going in, we really believed the lower court's find- ing of liability on behalf of the city was problematic," he says. "I think the Court of Appeal's decision in Chiocchio sends an important message that in cases where it is alleged that a municipality in Ontario allowed dangerous road conditions to exist, the court at first instance must conduct a rig- orous analysis of how that condi- tion actually played a role in the circumstances of the accident." "When you look more closely at how the accident actually oc- curred here, the absence of the stop line really had no effect," Tausendfreund adds. Despite the difference in the results, he says, there was enough to distinguish the two appeal cases from one another. "I wouldn't say they were in- consistent because of the specific factual findings in the Chioc- chio case," Tausendfreund says, pointing to the Court of Ap- peal's comments about sightline issues overlooked by the trial judge in that matter. The Chiocchio case dates back to a 2006 accident that left Michael Chiocchio Sr. with dev- astating injuries. He was the pas- senger in a van travelling north on a rural road that was T-boned by another driver crossing the lanes from an intersection while heading west. Only the east-west traffic was controlled by a stop sign, but the sign was set back more than 10 metres from the intersection and more than eight metres be- hind a faded stop line. The defendant driver admit- ted negligence for his failure to stop again when he reached the intersection to check that the way was clear, but the trial judge split his liability equally with the city, ruling it had breached its duty to keep the roadway in a reason- able state of repair by failing to repaint the faded stop line. Had the defendant stopped there, the judge found he would have seen the oncoming van contain- ing Chiocchio and the accident would never have happened. But the appeal court panel re- viewing the decision found that the trial judge had misapplied the "ordinary reasonable driver" standard that covers municipali- ties' duty of repair. "A municipality's duty does not extend to remedying con- ditions that pose a risk of harm only because of negligent driv- ing," the unanimous panel wrote, adding that the trial judge erred by ignoring evidence that drivers stopped at the stop sign would have their view of south- bound traffic entirely obscured by a house at the corner of the intersection. Since no ordinary reasonable driver would enter the intersec- tion directly from the stop sign without stopping again where they could see traffic in both di- rections, the intersection could not be found to pose an unrea- sonable risk of harm, the appeal court panel concluded, dismiss- ing the action against Hamilton. In Safranyos, the plaintiffs were the passengers in a car that pulled out from a set-back stop sign into an intersection the driver thought was clear. According to the decision, they were seriously injured when the car was T-boned by a speeding vehicle driven by a man who had consumed alcohol. This time, the faded stop line closer to the intersection had been partially removed in a "shave and pave" operation three years before the 2007 accident. A trial judge apportioned 50-per-cent liability to the mother of the plaintiffs, who was driving their car, and 25 per cent to the speeding driver who hit them. A further 25 per cent of the blame went to the City of Ham- ilton for non-repair due to its failure to repaint the stop line and to maintain appropriate sightlines for vehicles approach- ing the intersection. Although the appeal court took issue with the trial judge's suggestion that the inadequate sightlines alone could amount to non-repair, they added that FOCUS Michael Smitiuch says a recent case in which he acted raises fundamental issues about road safety in Canada and could potentially impact all drivers across the country. See Strikingly, page 13 I think the decisions are inconsistent, and given how similar the underlying facts were, it's hard to understand how they could have come to opposite conclusions. George Wray TheCannabisChannel.ca THE CANNABIS CHANNEL.ca C C What are the implications of the Cannabis Act? 7JTJUUIFXFCTJUFUIBUQSPWJEFTSFMJBCMF OFXTBOBMZTJTFYQFSUTBOESFTPVSDFTGPS QSPGFTTJPOBMTMPPLJOHGPSBOTXFSTȋXIFUIFS UIFZȎSFEFBMJOHXJUIDBOOBCJTJOUIF XPSLQMBDFJOUFSQSFUJOHMFHJTMBUJPO NBOBHJOH."USBOTBDUJPOTPSOBJMJOHEPXO JOUFMMFDUVBMQSPQFSUZSJHIUT Untitled-2 1 2018-11-22 12:42 PM Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit www.canadianlawyermag.com/newswire-subscribe THE LATEST NEWS THE BEST COMMENTARY DELIVERED WEEKLY FOR READING ON ANY DEVICE

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