Miles v. Corporation of the County of Elgin et al

CITATION: Miles v. Corporation of the County of Elgin et al., 2020 ONSC 6014

COURT FILE NO.: 1311/17

DATE: 2020/10/05

ONTARIO

SUPERIOR COURT OF JUSTICE

)

BETWEEN:

TANYA MILES¹and SHANNON MILES

)

Ryan Steiner and Madelaine Hoffard, for the

Plaintiffs

– and –

Kieran C. Dickson, for the Defendants

CORPORATION OF THE COUNTY OF

ELGIN and WALMSLEY BROS.

LIMITED

Defendants

) HEARD: March 2-6, 2020

JUSTICE I.F. LEACH

Overview

[1]

By way of overview, broadly outlining the circumstances giving rise to this dispute:

a. This action stems from an incident alleged to have occurred on June 29, 2015, when

the plaintiffs were operating their two motorcycles in a southbound direction on a

roadway maintained by the defendant Corporation of the County of Elgin,

hereinafter referred to as “Elgin County” or simply “the county”.

1

By the time of trial, the once married plaintiffs had separated and divorced, and the former “Tanya Miles” had

reverted to use of her maiden name; i.e., “Tanya MacLean”. When the matter came before me, no steps had been

taken to amend the pleadings to reflect that name change. When I made inquiries in that regard, counsel confirmed

an intention to address that issue later, prior to any formal judgment being issued and entered. In the circumstances,

I hereinafter will refer to “Tanya Miles” as “Tanya MacLean” or “Ms MacLean”.

Page: 2

b. At the time, the roadway in question was being serviced, through the application of

new asphalt, by the defendant Walmsley Bros. Limited, (hereinafter referred to as

“Walmsley Brothers”), which had been hired by Elgin County to perform that work.

c. The plaintiffs allege that:

i. when travelling in their southbound lane on the relevant roadway, the

plaintiffs approached a construction zone where Walmsley Brothers

progressively was applying new asphalt in that lane;

ii. before reaching the portion of their southbound lane in which the new

asphalt had been and was being applied, (which prevented them from

proceeding further in that lane in any event), the plaintiffs were directed by

a construction worker to stop and wait for a time while traffic in the

oncoming northbound lane was allowed to proceed past the construction

area;

iii. after traffic in the oncoming northbound lane had been halted for a time,

further south along the road, the plaintiffs then were directed, by the

construction worker, to proceed into the normally northbound traffic lane,

where fresh asphalt had yet to be applied; and

iv. after travelling a distance in the normally northbound traffic lane, past

freshly applied asphalt in their original southbound lane of travel, the

plaintiffs then were directed, by another construction worker, to proceed

back into their original southbound lane of travel, onto an area where fresh

asphalt had been applied.

d. It is said that an accident, resulting in injuries to the plaintiff Tanya MacLean,

occurred when she attempted, in accordance with directions received from that

second construction worker, to proceed on her motorcycle from the normally

northbound traffic lane and its “old” pavement up and over the lip of freshly applied

asphalt in the plaintiffs’ original southbound lane of travel, which was at a higher

elevation because of the fresh asphalt application. Those injuries in turn were said

to have caused pecuniary and non-pecuniary damages to Ms MacLean, and further

damages sustained by the plaintiff Shannon Miles, (Ms MacLean’s husband at the

time of the accident), pursuant to the Family Law Act, R.S.O. 1990, c.F.3.

[2]

Following service of the plaintiffs’ statement of claim, Elgin County initially proceeded

independently with the filing of a defence pleading; i.e., delivery of a statement of defence

and crossclaim that denied the plaintiff’s claims and advanced a crossclaim against the

defendant Walmsley Brothers. However, the two defendants subsequently agreed to

proceed by way of a joint defence; i.e., with Elgin County and Walmsley Brothers jointly

filing a statement of defence that superseded the original defence pleading filed by Elgin

County alone.

Page: 3

[3]

[4]

The two defendants also jointly filed a jury notice. However, during the judicial pretrial

conference for this matter, it was agreed by all concerned that the matter should proceed

by way of a judge alone trial. On consent, a formal order accordingly was made, at the

outset of the trial before me, striking the jury notice.

At the outset of trial, I also was advised that the parties commendably had reached an

agreement on an appropriate assessment of damages sustained by the plaintiffs; i.e.,

$325,000.00. That amount was said to reflect appropriate adjustments for the plaintiffs’

receipt of collateral benefits, and to include a component of prejudgment interest. It

nevertheless did not include or reflect any costs or disbursements that might be awarded.²

[5]

The trial before me accordingly was focused entirely on issues relating to liability. In that

regard:

a. The parties generally agreed that such liability issues would turn on my factual

findings and application of the Municipal Act, 2001, S.O. 2001, c.25, (vis-à-vis

Elgin County), the Occupiers’ Liability Act, R.S.O. 1990, c.O.2, (vis-à-vis

Walmsley Brothers), and/or the Negligence Act, R.S.O. 1990, c.N.1.

b. The plaintiffs allege that the defendants breached duties owed in that regard, and/or

were otherwise negligent, in turn causing the damages sustained by the plaintiffs.

c. The defendants deny any breach of duties that may have been owed to the plaintiffs,

and say that any damages or loss sustained by the plaintiffs were caused by the

negligence of Tanya MacLean.

[6]

Before considering such arguments, I turn next to more detailed consideration of the

evidence and underlying facts.

Evidence – General comments

[7]

During the course of the trial, I received oral testimony from the following witnesses:

a. Ms MacLean, the principal and first named plaintiff;

b. Hailee Stone, a niece of Ms MacLean, and a passenger on Ms MacLean’s

motorcycle at the time of the underlying accident;

c. Mr Miles, the second named plaintiff;

2

Counsel provided no indication as to how such damages, if awarded, were to be apportioned between the two

plaintiffs.

Page: 4

d. Gordon Inglis, a witness called by the plaintiffs, who was qualified and accepted as

an expert permitted to provide opinion evidence in relation to motorcycle

mechanics and motorcycle operation;³

3

The reasons why Mr Inglis was qualified and accepted as an expert witness, pursuant to the criteria confirmed by

authorities such as R. v. Mohan, [1994] 2 S.C.R. 9, and R. v. Abbey, 2009 ONCA 624, were set forth in the extended

oral ruling I delivered during the trial, following a voir dire to determine whether or not Mr Inglis should be accepted

as an expert witness. For present purposes, (and for the benefit of those without immediate access to that voir dire

ruling and the evidence upon which it was based), I will note that Mr Inglis has acquired, through extensive personal

and business experience if not by way of formal education and academic professional qualification, special knowledge

and experience relating to motorcycle mechanics and operation going well beyond that of the trier of fact in relation

to such matters. Without limiting the generality of the foregoing:



Mr Inglis was born into a family of motorcycle enthusiasts, who translated that enthusiasm into a family

motorcycle sales and servicing business that has operated and grown over the course of successive

generations of the Inglis family.



By the time of trial, Mr Inglis was approximately 58 years old and had been riding and racing motorcycles

of various kinds for much of his life; e.g., riding a motorcycle for the first time at the age of eight, having his

own motorcycle by the age of nine, competing in nationally sanctioned motorcycle racing from the age of

ten onwards, and obtaining his motorcycle street licence on his 16^thbirthday. From his youth onwards, he

has never stopped riding motorcycles; e.g., operating his own motorcycle each day of the typical Ontario

riding season between April and October, (weather permitting), while also, in connection with his family

business, riding and testing all types of other motorcycles introduced and supplied by manufacturers and/or

being repaired for customers. From 1978 onwards, he has operated and raced motorcycles on a multitude of

different and uneven surfaces, including pavement, gravel, dirt, grass, alfalfa, sand and mud.



Mr Inglis similarly had many decades of mechanical experience and knowledge concerning motorcycles,

officially starting as an apprentice motorcycle mechanic at the age of 16, and thereafter becoming and

remaining a licensed motorcycle technician. For many, he ran the parts and full service department of the

extended family motorcycle business, (which currently has five franchises, including one that has operated

in London since 1978), and still oversees that department, (e.g., conducting extensive in-house training

programs), while generally managing the business.



In relation to motorcycle operation and training, Mr Inglis has been certified by the Canada Safety Council

as a training instructor for motorcycle riding programs, and provided such training for a time at Fanshawe

College, here in London, where he still oversees the various motorcycles used in the college’s training

programs. For the past 24 years, he also has served as a volunteer instructor in relation to motorcycle riding

and safety courses provided by a large motorcycle riders association that operates throughout North America.

Mr Inglis also routinely acts as a consultant for accident reconstruction services, law firms, police

departments and insurance companies in relation to the investigation of motorcycle accidents.

I should also note that, when accepting Mr Inglis as an expert qualified to provide opinion evidence in relation to

motorcycle mechanics and operation, I expressly did so without prejudice to the ability of defence counsel to raise

appropriate objections if specific proffered testimony from Mr Inglis strayed beyond the bounds of that defined

expertise, or the parameters of relevance and necessity. However, defence counsel thereafter raised few objections in

that regard.

Page: 5

e. Glenn Walmsley, the president of Walmsley Brothers, who was also acting as road

foreman in relation to the relevant roadwork being carried out by Walmsley

Brothers at the time of the underlying accident;

f. Chris Walmsley, who is a grandson of a founder of Walmsley Brothers, the son of

Glenn Walmsley, an employee of Walmsley Brothers, and one of the individuals

acting as a “flagger”, (i.e., a type of construction worker responsible for controlling

the flow of traffic in and around an active worksite on public roads), in relation to

the relevant roadwork being carried out by Walmsley Brothers at the time of the

underlying accident;

g. Ian Albert, another employee of Walmsley Brothers, and another individual who

was acting as a flagger in relation to the relevant roadwork being carried out by

Walmsley Brothers at the time of the underlying accident; and

h. Peter Dutchak, the deputy director of engineering for Elgin County.

[8]

[9]

All of those witnesses were presented for examination, cross-examination and re-

examination.

I also was presented with numerous exhibits, including the following:

a. a printed extract from the “The Official Ministry of Transportation (MTO)

Motorcycle Handbook” dealing with “Driving on Dangerous Surfaces”, including

text and a corresponding diagram instructing motorcycle operators on how to cross

railroad tracks, streetcar tracks and other uneven surfaces, (such as pavement seams

or gravel shoulders), running parallel to a motorcycle’s path of travel;

b. a document brief of the plaintiffs, which includes:

i. numerous photographs of the accident scene and Ms MacLean’s damaged

motorcycle taken by Mr Miles on the day of the accident;

ii. short video segments, recorded by Mr Miles, briefly showing the accident

location on the day of the accident, and the condition of Ms MacLean’s

damaged motorcycle a few days after the accident;

iii. numerous photographs of the relevant section of roadway, (including the

accident scene), and of Ms MacLean’s damaged motorcycle, taken by

Clayton Watters, (the director of engineering for Elgin County), on the day

of the accident; and

Page: 6

iv. a print out of weather data compiled by the Government of Canada in

relation to the area around London, Ontario, on the day of the accident;⁴

c. a copy of a “Request for Tender” issued by Elgin County on January 29, 2015, in

relation to “Hot Mix Asphalt Paving Contract No. 6220-15A”, which includes:

i. references to work to be done on a 1.3km segment of “Richmond Road”,

“between Calton and John Wise Line”, in respect of which the contractor

awarded the work would be asked to “Supply and Place HL-4 Hot Mix

Asphalt Paving (50mm)” [original underlining and round brackets] and

“Mill End Joints”; and

ii. stipulations regarding “maintenance of traffic, access and sign

requirements”;

d. a copy of a contract, (“Contract No. 6220-15A”), entered into between Elgin

County and Walmsley Brothers on March 17, 2018; and

e. a copy of a general “Traffic Control Checklist and Protection Plan”, (without

completion of contemplated indications for date, time and location), prepared by

Walmsley Brothers.⁵

[10] My description of the evidence presented at trial, and references to that evidence,

undoubtedly will not expressly address all aspects of the evidence admitted for my

consideration. However, all of that evidence certainly was considered and examined

closely.

Evidence – General background findings of fact

4

In circumstances addressed on the record during the course of the trial, (but by way of brief explanation for what

otherwise might seem to be missing content in relation to Exhibit 2 as filed), the original version of the brief tendered

as an exhibit by plaintiff counsel included various medical records, the admission of which was the subject of a

sustained objection by defence counsel, based on relevance and hearsay concerns. In the result, Tabs 4 and 6-9 of the

original brief were removed before it was admitted as an exhibit in its amended form.

⁵This list of exhibits does not include items that were marked only as exhibits for identification and never made

exhibits per se; e.g., enlarged copies of certain photographs forming part of numbered exhibits, (to which plaintiff

counsel made reference), and other documents. In that regard, I note in particular Exhibit “D” for identification; i.e.,

a document entitled “Handbook for Construction Traffic Control Persons”, apparently prepared by the Infrastructure

Health & Safety Association, or “IHSA”. Although presented to witnesses and discussed by them during the course

of testimony, no witness was capable of properly identifying the document in a manner sufficient to make it a formal

numbered substantive exhibit without mutual consent of the parties. Glenn Walmsley initially indicated a belief that

he had that ability, (resulting in the item initially being marked as Exhibit 6), but then indicated that he was mistaken,

and actually could not identify the document, (resulting in the marking of the document as a numbered exhibit being

reversed).

Page: 7

[11] As one would expect in a trial of this nature, there were a number of important areas of

disagreement and conflicting evidence, and I will return to those later in these reasons.

[12] Before doing so, I nevertheless think it helpful to provide an outline of numerous

underlying events, and corresponding factual findings I have made, in relation to matters

that seemed agreed, not the subject of conflicting evidence, and/or not seriously disputed.

[13] Those findings of fact include the following:

a. Elgin County has jurisdiction over approximately 700 kilometers of roadway. Part

of its responsibility in that regard, (overseen by its engineering department), is to

ensure that roads within the county are maintained to provincial standards, directly

and/or by monitoring the activities of local municipal partners. That includes

responsibility for road expansions and improvements, and all associated

construction activities.

b. One of the areas of roadway within the county’s maintenance jurisdiction is

“Richmond Road”, (otherwise known as “County Road number 43”), which runs

in a general north-south direction through the hamlet of Richmond. It is formally

described as a “two-lane rural collector” road, reflecting its roadside environment

and operational classification.

c. Each year, Elgin County makes arrangements for the asphalt paving of

approximately 30-50km of roadway within its jurisdiction. It does so by inviting,

through the county’s procurement policy, competitive bids from qualified asphalt

paving contractors in response to specification tender packages. At the end of each

bidding period, tendered bids are opened and the relevant contract is awarded to the

qualified paving contractor submitting the lowest price. With the exception of one

year, Walmsley Brothers was the successful bidding contractor in relation to all of

the county’s paving projects over the 25-year period prior to trial. It also routinely

did paving work for Elgin County before that period.

d. Walmsley Brothers has been operating an asphalt paving business since 1956, and

its daily operations now focus mostly on the paving of county and township roads;

i.e., as opposed to the paving of larger highways, which it used to do occasionally.

It currently employs approximately 35 people from year to year, and its paving

operations may be described generally as follows:

i. It makes its own asphalt at a plant located in Putnam, Ontario; i.e., a village

approximately 12 miles east of the city of London. At the plant, Walmsley

Brothers mixes the components of asphalt; i.e., sand, crushed stone and a

liquid asphalt cement or tar. In particular, the sand and stone are heated in

a dryer to a temperature of approximately 325 degrees Fahrenheit before

being mixed with the liquid tar, which is kept at a temperature between 300-

325 degrees Fahrenheit.

Page: 8

ii. There are different grades of asphalt, reflecting variations in components,

(such as the size of the crushed stone employed), and which are used for

different purposes. For example, asphalt forming the “base” of a paved road

applied directly over underlying gravel would use courser stone, and has an

“HL8” designation. Asphalt used for paving the “top coat” of roads is

mixed with a different type of stone, (e.g., stone chips varying from ¼

inches to 5/8 inches in size), and has designations such as “HL3” and

“HL4”. The “HL” stands for “Hot Laid”.

iii. As most of the work done by Walmsley Brothers involves the application

of asphalt overlaid on existing roads, the courser stone designations do not

frequently come into play from its perspective. For example, the paving

work done by Walmsley Brothers for Elgin County usually involves the

application of “H4” asphalt.

iv. Once mixed, the relevant liquid asphalt is loaded into a dump truck, at a

probable temperature of approximately 325 to 315 degrees Fahrenheit, and

transported to the particular road worksite. By the time the asphalt reaches

the road worksite, where it is initially dumped into the hopper of a “paver”

machine, it usually will have cooled to a temperature of 305 to 300 degrees

Fahrenheit.

v. The paving machine, including the “screed” located to its rear, is a complex

unit with numerous computerized components that carry out the initial

application of liquid asphalt onto the road at a certain desired and

programmed thickness or depth. At the risk of over-simplification:

1. An augur and conveyor systems moves liquid asphalt from the

paver’s hopper back to the “screed”.

2. The “screed” flattens the liquid asphalt out, and lays it on the road

to a programmed thickness/depth specification. At that point, (i.e.,

when the liquid asphalt is coming out the back of the screed), the

asphalt will have cooled to a temperature of approximately 285 to

280 degrees Fahrenheit.⁶The screed also has vibrators that perform

an initial compaction of the asphalt.

3. The alignment of the paver’s movement along the road is monitored

and controlled by a piece of equipment called a “ski”, which keeps

the side of the paver running alongside the centre line of the road.

⁶Maintaining such high temperatures of the liquid asphalt, until it exits the screed, is very important. In particular, if

the liquid asphalt has cooled too much before that point, the applied asphalt is liable to start “tearing”, in turn pulling

the screed downwards, creating “scrubbing” marks on the surface of the asphalt.

Page: 9

4. Although the paver stops occasionally for short periods lasting

approximately four to five minutes, (while dump trucks periodically

are hooked up to put more asphalt into its hopper), it otherwise keeps

moving forward at the rate of 40 to 70 feet per minute, and usually

at the slower pace of 40 feet per minute.

5. Once the paver and screed have performed and passed over the

initial application of asphalt, that asphalt has been achieved a

compaction of approximately 86 percent.

vi. The paving machine is then followed by a succession of three rollers, the

cumulative effect of which generally will give the newly applied asphalt a

compaction of approximately 93 to 96 percent, while simultaneously

compressing the newly applied asphalt from its initial thickness, when it

comes out of the screed, to the desired final/ultimate thickness of the newly

applied asphalt.⁷The remaining percentage of voids within the asphalt,

(i.e., short of total compaction), is intentionally left to allow for some degree

of expansion and contraction of the asphalt with changing temperatures, so

that it does not disintegrate over time.

vii. The first roller to work on the newly applied asphalt, after passage of the

paver and its screed, is known as a “breakdown roller”; i.e., a double drum

steel roller, weighing approximately 10-14 tons, that is approximately 52

inches wide. In a standard road lane approximately 12 feet wide, the

breakdown roller completes its rolling of the newly applied asphalt by

making three parallel and slightly overlapping passes, (i.e., typically

making the first pass next to the road’s centre line, before completing a pass

down the centre of the lane, followed by a pass next to the lane’s road

shoulder), such that all areas of the newly laid asphalt are traversed by the

breakdown roller just once. The edges of the breakdown roller usually

extend slightly, (e.g., approximately three inches), over the edges of the

newly applied asphalt at each side. The operator of the breakdown roller

also tries to stay very close to the paver at all times; i.e., within 100 feet of

the paver and its screed. The work of the breakdown roller, when

completed, brings the newly aid asphalt to a state of approximately 90

percent compaction, and lowers the elevation of the newly aid asphalt by

approximately one quarter of an inch across its surface, which then has a

somewhat “sandy texture”. By that point, the temperature of the newly laid

asphalt has dropped to a temperature of approximately 260 degrees

Fahrenheit.

⁷For example, if a particularly paving contract called for application of a top coat of new asphalt two inches thick, the

liquid asphalt coming out of the paver’s screed would have a depth/thickness of approximately 2 and three eighths of

an inch, which would progressively flattened by the succession of rollers to a final depth/thickness of two inches.

Page: 10

viii. The second roller to work on the new asphalt, after passage of the paver and

breakdown roller, is a known as a “rubber tire roller”.⁸It is the heaviest of

the three rollers, weighing 30 tons. It has wide rubber tires, (three on the

front and four on the back), with no tread on them, that are positioned in a

somewhat staggered configuration. Their rolling surfaces have a combined

width of approximately eight feet, or perhaps a couple of inches more than

that. The rubber tire roller will pass continuously back and forth across the

newly laid asphalt, in what Glenn Walmsley described as a “soft part of the

operation [that] actually kneads the asphalt together just like dough”, until

it has “almost a shine to it”. At that point, the newly laid asphalt essentially

has been compacted as much as it is going to be during the paving operation,

(again, to a density of 93 to 96 percent), and its temperature has dropped to

a probable range of 190 to 180 degrees Fahrenheit. The surface area of the

newly laid asphalt nevertheless still will have marks or “ripples” on it, left

by the rubber tire roller’s movements; marks that are addressed by the next

and final stage of the rolling operation.

ix. The third and final roller to work on the new asphalt, after passage of the

paver, breakdown roller and rubber tire roller, is known as the “finishing

roller”. It has characteristics similar to the “breakdown roller”, (i.e., a

double drum steel roller weighing approximately 10-14 tons, with a rolling

width of approximately 52 inches), but is labelled differently because of its

function. Again, that function is to address and effectively remove, by a

further flattening of the new asphalt surface, the marks or “ripples” left on

the new asphalt by the back and forth movements of the rubber tire roller.

After the rubber tire roller has completed its work, the operator of the

following finishing roller will deliberately wait, for periods “upwards of

almost an hour”, for the newly laid asphalt to cool and harden further, to

reduce the likelihood of the finishing roller leaving its own marks on the

asphalt as it completes its work.⁹To assist in the determination of when the

finishing roller should embark on its work, with such considerations in

mind, the operator of the finishing roller carries a piece of equipment known

as a “heat gun”; i.e., a device he can use to “shoot the temperature all the

way across the road” to ascertain the current temperature of the newly laid

asphalt ahead. The finishing roller cannot embark on its work too soon,

(i.e., while the temperature is so hot that it is still malleable to the point

where the finishing roller will leave its own marks), but also cannot delay

its work too long, past the point where the new asphalt has cooled and

hardened to a state where the finishing roller is incapable of easily removing

⁸Others in the paving industry refer to this as a “pneumatic roller”. However, within Walmsley Brothers, it usually

is referred to as a “rubber tire roller”.

⁹As Glenn Walmsley put it, in the course of his testimony, if the operator of the finishing roller “tried to roll it [the

new asphalt] right behind the rubber roller, he would leave his own marks in the road”.

Page: 11

marks left by the rubber tire roller. Within the Walmsley Brothers paving

operation, it is standard practice for operators of the finishing roller to

attempt completion of their work when the new asphalt has cooled to a range

between 180 and 160 degrees Fahrenheit and, in any event, before the

asphalt cools to a temperature of 145 degrees Fahrenheit. Within that

temperature range, the finishing roller passes over the new asphalt in a

manner similar to that of the breakdown roller; i.e., three parallel passes

along the length of the relevant portion of newly laid asphalt, with its rollers

hanging over the edge of the newly laid asphalt by approximately three

inches.

x. When all three rollers following the paver have completed their work, the

initial depth/thickness of the newly laid asphalt, as it comes out of the

paver’s screed, will have been reduced to the depth/thickness contemplated

and required by the relevant paving contract.¹⁰

e. In relation to the traffic control practices routinely employed by Walmsley Brothers

in relation to its paving operations:

i. With very rare exceptions, (e.g., situations combining paving operations

with construction work involving the installation of public works running

across but under a particular road),¹¹Walmsley Brother generally does not

close “two lane roads” completely to traffic while it carries out its paving

operations. It instead closes and paves only one lane of the road at a time,

using the remaining open lane to allow passage of traffic in alternating

periods of “one way” traffic flow, regulated by two flaggers, through that

open lane.

ii. The method of such traffic direction routinely employed by Walmsley

Brothers does not position the two flaggers at static locations beyond each

end of the area where new asphalt is to be applied. Both flaggers instead

reposition themselves progressively, (although not in tandem or otherwise

in the same manner), as the paving work is being done. In particular:

1. One flagger, (the “lead flagger”), initially is positioned

approximately 400 feet ahead of the paver, and then continuously

10

Generally, a completed “top coat” of new asphalt applied by Walmsley Brothers would have a consistent

depth/thickness along the entire length of the newly paid road, subject to variations/deflections created by the

underlying base asphalt or recycled operation carried out by others prior to the work done by Walmsley Brothers.

¹¹Glenn Walmsley estimated that full road closures, during paving work performed by Walmsley Brothers, occurred

once every ten years or so, and approximately one percent of the time. For the remaining 99 percent of the paving

work done by Walmsley Brothers, its operations only result in the closure of one of two normally available lanes of

traffic.

Page: 12

tries to maintain that constant distance ahead of the paver as it moves

forward along the road, laying asphalt behind it.

2. The other flagger, (the “rear flagger”), initially is positioned

approximately 150-200 feet behind the point where the paver begins

to apply new asphalt, before also moving along the roadway,

approximately 150-200 feet to the rear of where the finishing roller

has completed its work. Unlike the lead flagger, (whose forward

progress along the roadway generally is continuous, matching the

generally continuous forward movement of the paver), the rear

flagger moves forward in stages; i.e., to positions temporarily fixed

to the rear of the successive areas along the roadway where the

finishing roller is doing its work, not in a continuous movement

forward along the roadway, but in a manner requiring a number of

back and forth passes along portions of the roadway. As the paving

of a portion of the roadway may take approximately 3½ to 4 hours

to complete, (i.e., allowing time for the paver and three successive

rollers to finish their work in a given area), the rear flagger

effectively may remain in the same initial position, (i.e., 150-200

feet to the rear of where asphalt initially is applied), for that time,

before moving forward along the road. As Glenn Walmsley put it,

the flagger practice adopted by Walmsley brothers is such that “the

rear flagger is always kind of at the mercy of what the finishing

roller has done, just to where he stands”.

iii. As far as directing traffic onto and over freshly applied asphalt is concerned,

Walmsley Brothers and its flaggers essentially operate on a general premise

that once the finishing roller has completed its work, the freshly applied

asphalt is capable of sustaining the passage of traffic onto and over it

without doing damage to the new asphalt or causing other problems,

including any problems encountered by motorists transitioning onto the new

asphalt.¹²While the rear flagger accordingly will maintain a minimum

distance of approximately 150 feet behind the portion of newly applied

asphalt being worked on by the finishing roller, (i.e., to allow that finishing

roller room to travel and manoeuvre beyond that portion, to line up its

passes over that portion), the rear flagger otherwise generally will move

forward progressively in stages behind the ongoing paving operation to

points where oncoming traffic, driving past the paver and rollers, is

¹²That premise was reflected repeatedly in the testimony of Glenn Walmsley, who indicated, for example, that “once

the finishing roller’s gone over it, it would sustain traffic no problem”, and that “by the time the finishing roller is

done with it, it’s safe enough”. However, it was echoed in the testimony of Chris Walmsley, who indicated his

understanding that traffic “can drive up on” new asphalt safely, and be directed onto that new asphalt by flaggers,

once the finishing roller has “done rolling” it. Similarly, Ian Albert indicated, in various ways, his understanding that

it was appropriate to send traffic onto new asphalt “shortly after the finish (sic) roller has rolled it completely”.

Page: 13

redirected by the rear flagger into its original traffic lane, onto the newly

applied asphalt. In that regard:

1. Particular incremental decisions about when the rear flagger should

move forward with the paving operation, and precisely where the

rear flagger should take up a new position, generally are left to the

individual judgment of the particular person acting as rear flagger.

2. The operator of the finishing roller has some input in that regard,

insofar as that operator will give the rear flagger “heck” if the rear

flagger takes up a position too close to the area of new asphalt being

worked on by the finishing roller, leaving insufficient room behind

that aspect of the paving operation, and traffic stopped or passing

around the paving operation, for the finishing roller to perform its

work; i.e., including its necessary approaches to the area of new

asphalt on which it is working. Occasionally, the operator of the

finishing roller also will give the rear flagger a specific warning as

to the existence of any “soft spot”, “ hot spot”, “thick spot” or

“anything like that”, and an indication to “stay back” accordingly.

3. Apart from those particular concerns, however, the rear flagger

generally makes decisions about when and where to move forward,

and whether it is safe for traffic to “make the move over” into the

lane where new asphalt has been laid, based on whether the finishing

roller has moved far enough forward; i.e., consistent with the

general belief of Walmsley Brothers that new asphalt, in respect of

which the finishing roller has completed its work, is sufficiently

cooled and hardened/set that it is ready to receive traffic safely and

without the prospect of any damage to the completed work. Without

limiting the generality of the foregoing:

a. There is no temperature reading of the finished new asphalt

taken by the rear flagger before that flagger directs traffic

onto such finished new asphalt.

b. Nor is there any fixed period of time rear flaggers allow to

pass, after completion of the finishing roller’s work, before

directing traffic onto new asphalt.

c. While Walmsley Brothers likes to minimize the distance

between the lead flagger and rear flagger, (for the reasons

noted below), and therefore similarly minimize the distance

between the paver and the rear flagger, the distance between

the paver and the rear flagger is not a guiding consideration.

If the finishing roller takes longer to complete its work on a

particular area of new asphalt, delaying forward progress of

Page: 14

the rear flagger as the paver continues to move forward, the

distance between the paver and the rear flagger will increase

accordingly.

iv. There apparently is no government recommendation or approval relating to

that system of progressive rear flagger movement adopted and followed by

Walmsley Brothers.¹³However, Walmsley Brothers says it has developed

and adhered to that system, and uses it on almost every day on every one of

its jobs,¹⁴for a number of reasons that include the following:

1. It enhances safety by facilitating, where possible, the preservation

of clear sight lines between the lead and rear flaggers, in turn

facilitating their co-ordination of one-way traffic flow around and

past the ongoing paving operation.¹⁵

2. It enhances safety by reducing the possibility of traffic entering the

roadway from lateral access points (such as driveways) between the

lead and rear flaggers, thereby potentially disrupting the one-way

flow of traffic between the two flaggers.¹⁶

3. It reduces public inconvenience and resulting upset,¹⁷and enhances

safety, by minimizing traffic delay, traffic lines ups, (along with the

corresponding possibility of rear end collisions), and opportunities

for vehicles to accelerate too quickly between the flaggers;

¹³In the course of his testimony, Glenn Walmsley indicated a belief that there was no “jurisdiction from the Ministry

on that”, and that adoption of such a system was “up to the individual contractor to do”. In his words: “We do it

because that’s what’s worked with us for years”.

¹⁴According to Glenn Walmsley, Walmsley Brothers departs from the practice only in relation to “very short” paving

jobs, in which case the lead and rear flaggers will remain in static positions ahead and to the rear of the contemplated

paving area, respectively. Chris Walmsley said the practice was used on “basically every job [they] do”, and that it

had been that way ever since he began flagging.

¹⁵In that regard, Glenn Walmsley acknowledge “it would be nice” if that could be done, “in normal circumstances”,

but that is not always possible because of “hills and curves and what have you”. However, the two flaggers are

equipped with “walkie talkies” to enable voice communication between them in any event.

¹⁶As Glenn Walmsley put it, reducing the distance between flaggers thereby enhances safety because people are less

likely to be “running into each other”.

¹⁷Defence witnesses referred to such potential upset, (i.e., upset caused by traffic delays and line ups), at various times

during the course of testimony. For example, Glenn Walmsley, when explaining why roads worked on by Walmsley

Brothers were not closed completely, mentioned not only the country’s expectation that work would be done with the

least amount of public inconvenience, but the fact Walmsley Brothers “already got the public mad at us anyway”. Ian

Albert emphasized that “no one wants to be delayed”, and that “no one wants to be held up in line for any amount of

time”, so he and the other flaggers would speed up the traffic flow even “by a minute or 30 seconds” if they could, in

order to decrease the likelihood of their “getting yelled at or flipped off”.

Page: 15

something which drivers are said to do if the distance between the

rear and lead flaggers becomes too extended.¹⁸

f. On January 29, 2015, Elgin County solicited closed bids for contemplated road

paving work to be done within the county in 2015; i.e., by issuing a document,

noted above, entitled “REQUEST FOR TENDER – HOT MIX ASPHALT

PAVING – Contract No. 6220-15A”. In that regard:

i. The indicated work to be done included a number of tasks to be performed

in relation to a 1.3km stretch of “Richmond Road – between Calton and

John Wise Line”; i.e., a stretch of Richmond Road to the north of the hamlet

of Richmond. In particular, the contractor successfully bidding on the

paving contract would be required, inter alia, to “Supply and Place HL-4

Hot Mix Asphalt Paving (50 mm)” in relation to that particular area of

roadway.¹⁹Elgin County apparently has always specified and required the

use of HL4 asphalt in relation to the road resurfacing work performed by

Walmsley Brothers.

ii. The tender also indicated that the contractor successfully bidding on the

paving contract would have to follow certain “MAINTENANCE OF

TRAFFIC, ACCESS AND SIGN REQUIREMENTS”. In particular:

1. The contractor was to provide, erect and maintain construction signs

in accordance with provisions of the contract.

2. During execution of the projects covered by the contract, the

contractor was “to maintain two (2) lanes of traffic at all times

except for short durations, to facilitate the completion of specific

items of work when one (1) lane will be permitted”.²⁰

18

In that regard, Glenn Walmsley noted that, if the distance between flaggers becomes too extended, traffic

approaching the ongoing paving operation from the rear can “get up to 80kph”, (i.e., the regular posted speed limit on

most such roads), by the time it reaches the paver and the area where Walmsley Brothers is trying to pave the road.

Walmsley Brothers has found that reducing the distance between flaggers helps to keep the traffic moving at a slower

pace through the construction zone.

¹⁹Again, the underlying and round brackets are found in the original document.

²⁰In his testimony, Mr Dutchak emphasized that Elgin County “goes out of its way to keep roads open during all types

of projects, if possible”. Doing so is important to ensure the uninterrupted passage of emergency vehicles, (from

various police, fire and ambulance services), vehicles associated with the agricultural community, (which is very

important in Elgin County), and access to local properties. It accordingly is typical for a road being paved in Elgin

County to be kept open in some fashion. “Hot mix resurfacing” is generally a “mobile operation” or “rolling

operation” which allows for that; i.e., by the closing of lanes in succession, as the work moves along, instead of closing

a road completely within a construction area. Even in situations where the nature of work inherently requires complete

closure of a specific section of roadway, (e.g., for replacement of a bridge), some kind of temporary bypass usually

will be created to minimize traffic detours.

Page: 16

3. The contractor was required to maintain “traffic control personnel”

at “both ends of the one (1) lane section at all times to direct the

movement of traffic, with strict compliance to the standards outlined

in the ‘Ontario Traffic Manual – Book 7’ Temporary Conditions”.²¹

In that regard, the tender also specified that “Yield to Oncoming

Traffic Signs” would not be permitted, and that “traffic control

methods and equipment [would] be strictly enforced”.²²

g. On March 17, 2015, a warden of Elgin County sent a letter to Glenn Walmsley,

indicating that Walmsley Brothers was the contractor selected to perform the work

contemplated by two tendered contracts, including Contract No. 6220-15A.

h. The resulting formal contract between Elgin County and Walmsley brothers was

signed by Glenn Walmsley on behalf of Walmsley Brothers on March 20, 2015,

and by a representative of Elgin County on April 7, 2016. Amongst other things,

the contract indicated that the contracted work was to begin no sooner than May

19, 2015, and to be completed no later than August 28, 2015. At some point, Elgin

County also provided Walmsley Brothers with more detailed “ITEM

DESCRIPTIONS” relating to the work to be done. One of them, (“ITEM #3),

attached to a copy of the contract filed as Exhibit 4, read as follows:

ITEM #3 – Road 43 (Richmond Road) will be resurfaced between Calton

and John Wise Line, being a total length of 1.3km. This section of road will

be “Cold In-Place Recycled by others prior to resurfacing work, therefore

the scheduling of this work shall coincide (sic) and follow recycling

activities. Granular pre-shouldering is required prior to paving operations.

The entire length will be resurfaced with 50mm of HL4 Hot Mix Asphalt,

plus gravel shouldering.

i. On June 29, 2015, Walmsley Brothers began its paving operations for that day by

completing paving work for Elgin County at a location two or three miles south of

Richmond Road; i.e., at a location where paving work had been started the day

before. Once that work was finished, Walmsley Brothers had “a couple of hours”

left in its work day to carry out further paving work, and accordingly moved its

²¹In his testimony, Mr Dutchak explained that the “Ontario Traffic Manual” is actually a series of books relating to

signage along roadways. “Book 7” of the manual deals specifically with “temporary conditions”, and typically

conditions created by construction projects; e.g., providing instructions - which contractors are expected to follow -

in relation to matters such as what signs are to be placed where, the placement of barrels, and how to flag a road –

including situations where a third flag person might be required. “Book 7” apparently is quite “in-depth”, such that

contractors are not required to carry a “full blown office version” to work sites. Contractors instead usually carry a

“field companion manual”, as well as the traffic protection plan they are required to prepare, in conformity with Book

7, for each road construction project.

22

As emphasized by Mr Dutchak, such duties include the creation of a traffic control checklist and protection plan

that is “specific to the operations of the day” which a contractor is expecting to perform.

Page: 17

operations on to the area of Richmond Road between Calton and John Wise Line.

Walmsley Brothers commenced its paving work there at approximately 11am,

starting in the southbound lane of traffic and heading north. In that regard:

i. It was not disputed by Walmsley Brothers that, during that particular

construction project, it had immediate responsibility for the maintenance

and condition of the section of Richmond Road being worked on.

ii. The relevant section of Richmond Road already had been the subject of the

contemplated preparatory work done by another company. In particular, a

minimum of three weeks before Walmsley Brothers attended at the site, that

other company had performed what is known in the industry as a “cold in-

place recycle”; i.e., a process whereby the existing asphalt surface of a road

is lifted, milled/ground up into pieces less than an inch, mixed with a liquid

emulsion or “asphalt cement” spray, and then put back into a paver for

reapplication, (i.e., laying and compaction), on the same area of road. That

process leaves a “mat” road surface which “looks like a bad paving job; i.e.,

with a rough texture that can be driven on, and is therefore capable of

handling traffic, but which nevertheless has to be covered or “resurfaced”

with a top coat of fresh asphalt before the arrival of winter weather.

iii. The written plan for traffic protection prepared by Walmsley Brothers, and

used in relation to the paving work to be done on that relevant section of

Richmond Road, was marked as Exhibit 5 in the trial. In that regard:

1. The document, entitled “TRAFFIC CONTROL CHECKLIST AND

PROTECTION PLAN”, actually does not refer to Richmond Road.

Although the form itself contemplates the insertion of a specific

date, time and location of the relevant work to which the Plan

supposedly applied, all of that information was left blank. This

reflects a reality, (indicated by Glenn Walmsley in cross-

examination), that Walmsley Brothers actually used the document

as a “generic” plan in relation to many of its individual paving

projects; i.e., simply keeping a copy of that unchanging document

in Glenn Walmsley’s truck.²³Walmsley Brothers apparently has not

felt it necessary to alter that generic written plan for any particular

paving project.

²³As noted above, Mr Dutchak emphasized in his testimony that a paving contractor such as Walmsley Brothers was

to create a traffic control plan “specific to the operations of the day that they expect to perform”. However, according

to the testimony of Glenn Walmsley, his use of such a “generic” Traffic Control Checklist and Protection Plan was

approved by an unnamed represent of the Ministry of Labour; a person who was said to have approved use of the same

generic plan “for all locations” in Elgin County where Walmsley Brothers was doing paving work for the county,

because Walmsley Brothers was viewed as a “mobile job or mobile company or whatever”.

Page: 18

2. The second page of the document includes a diagram, essentially

taken from Book 7 of the Ontario Traffic Manual, depicting a road

with two immediately adjacent lanes of travel, (i.e., one dedicated

to traffic travelling in each direction), with indications of where

signage is to be placed, and where flaggers are to stand, in relation

to a work area depicted by a black rectangle in one of the two lanes

of traffic.²⁴

3. The flaggers working on the Richmond Road paving project were

not given or shown that particular Traffic Control Checklist and

Protection Plan document. Nor were they given any other written

instructions for the Richmond Road paving project.

4. Nor did Glenn Walmsley, (as the road foreman of the project), nor

anyone else, provide those flaggers with any other form of specific,

special or unusual directions in relation to the Richmond Road

paving project.

5. Walmsley Brothers instead relied on the training the flaggers would

have received from completion of a formal “TC7” course, (which

was believed to have included reference to the diagram incorporated

into the “generic” Traffic Control Checklist and Protection Plan

used in relation to the project), and the individual experience and

judgment of the flaggers when it came to determinations of where

they should position themselves, and when they should move.

iv. On the day in question, Walmsley Brothers had three employees working

as flaggers at its road construction sites; i.e., Chris Walmsley, Ian Albert

and Jamie Henshaw, who would “spell each other off” in rotation. In

particular, two of those flaggers were actively engaged in flagging at any

given time, (i.e., with one acting as a lead flagger positioned ahead of the

paver, and one acting as a rear flagger to the rear of the paver and rollers),

while the third took a break between flagging shifts.

v. When Walmsley commenced its paving work in the southbound lane of

Richmond Road that day, its rear flagger initially was positioned 150-200

feet to the south of the initial new paving “joint”, (i.e., the line across the

southbound lane that marked the beginning of where new asphalt was being

applied by Walmsley Brothers in the southbound lane of Richmond Road),

to allow sufficient room for the rollers to move south beyond that joint, (a

joint effectively marking the southern terminus of the new asphalt), when

completing their work. The lead flagger initially was positioned

²⁴In his testimony, Mr Dutchak confirmed Glenn Walmsley’s testimony that the source of the diagram was Book 7

of the Ontario Traffic Manual, although he felt it had been “slightly modified”, insofar as it apparently had been copied

and arranged in a different format.

Page: 19

approximately 400 to 500 feet north of that initial new paving joint, and

thereafter generally maintained a distance approximately 400 feet ahead of

the paver.

vi. When paving of Richmond Road began that day, southbound traffic,

directed temporarily into the normally northbound traffic lane, initially was

able drive around all of the new asphalt, before being directed back into the

normal southbound lane. However, from the perspective of Walmsley

Brothers, it was contemplated from the outset of the paving operation on

Richmond Road that vehicles travelling southbound, through the

construction area and past the oncoming paver and rollers, eventually would

be directed to merge onto the new asphalt; i.e., once the rear flagger had

moved further north along the road, past the point where application of the

new asphalt had begun.

vii. Walmsley Brothers began laying new asphalt in the southbound lane of

Richmond Road at approximately 11:00am, and then continued paving that

southbound lane by moving progressively north, following its usual

practices described above.

j. Shortly before 2:30pm that day, (i.e., June 29, 2015), Tanya MacLean, her niece

Hailee Stone, and her husband Shannon Miles were travelling southbound on

Richmond Road on two motorcycles, (one being operated by Ms Maclean with her

niece Hailee as a passenger, and the other being operated by Mr Miles who was

riding solo), and approached that Richmond Road worksite from the north. At the

time:

i. Ms MacLean and Mr Miles had been a couple for approximately 11 years,

and had been married for approximately eight years.

ii. Operation of motorcycles was an activity that the couple had taken up and

pursued together. In particular:

1. In or about May of 2012, (i.e. approximately three years before the

accident), Ms MacLean and Mr Miles completed the education,

training and licencing required by the province of Ontario to operate

motorcycles, working through that process at the same time.

2. That licensing process moves forward in stages, starting with a

written “knowledge test” designed to confirm that those taking the

test have educated themselves about the fundamentals of safe and

proper motorcycle operation. To assist in that process, the Ministry

of Transportation publishes an “Official … Motorcycle Handbook”,

containing such information. As noted above, that official

handbook includes a section providing information about “Driving

on dangerous surfaces”. In that regard:

Page: 20

a. The section includes the following commentary: “When you

want to cross railroad or streetcar tracks that run parallel to

your path, cross at a distinct angle (no less than 45 degrees)

to prevent getting stuck in the tracks or losing control. Do

not try to edge across the tracks or brake heavily. Do the

same thing when crossing uneven surfaces such as a

pavement seams (sic) or a gravel shoulder.”

b. That commentary is accompanied by a diagram depicting the

lane of a street or road, with railway or streetcar tracks

running down the centre of the lane, and a motorcyclist in

that lane transitioning from one side of the tracks to the other

by taking a path that crosses the tracks at an angle of

approximately 45 degrees.

c. That commentary and diagram represent the full and

complete extent of all official written instruction and training

provided to motorcyclists licenced by the province of

Ontario.

d. Ms MacLean and Mr Miles both reviewed, studied and

digested that particular commentary and diagram in the

course of preparing for the “knowledge test” described

above.

3. Ms MacLean and Mr Miles then wrote and passed the Ministry of

Transportation’s “knowledge test” at the same time, resulting in

their each being given an “M1” or “beginners” licence to operate

motorcycles. That licence has a number of restrictions, including

prohibitions on such licence holders operating motorcycles on

highways, at night, or with a passenger.

4. Prior to attempting the next required test in the staged licencing

process, (i.e., an “on-vehicle” test that had to be passed before

receipt of an “M2” motorcycle licence), Ms MacLean and Mr Miles

then both completed an intensive training course on motorcycle

operation offered by the “Learning Curves” organization. In that

regard:

a. The course began with an initial full day verbal discussion

with very experienced motorcycle operators discussing

motorcycle operation, and included instruction on what

prudent motorcyclists should do in numerous different fact

scenarios and weather conditions.

Page: 21

b. The second day of instruction involved detailed instruction

regarding all the components of a motorcycle, and

sitting/riding on the motorcycle without its engine being

engaged as it was pushed by learning partners, as trainees

were taken through various turns, “figure eights” and other

scenarios to provide an understanding of how a motorcycle

would feel and operate during such manoeuvres. Trainees

then were provided with further instruction as they

progressed through various scenarios and activities riding

motorcycles with running engines engaged in first gear, (i.e.,

at slow speeds), before progressing to further motorcycle

operation in second gear. Ms MacLean was entirely

comfortable operating her motorcycle at such speeds.

c. On the third day of instruction, trainees progressed to further

training and testing while they rode motorcycles with

running engines and fully engaged gearing. They were taken

through courses mimicking, (e.g., through the placement of

numerous pylons), streets, roads and lane positions. They

also were required to perform “time trials”, completing

various courses in a manner that was neither too fast nor too

slow.

d. While such courses involved going over a number of “speed

bumps”, none of that further practical training involved any

further instruction or exercises relating to crossing parallel

elevation changes, such as a raised asphalt lip or unstable

surface. In other words, after completion of the Learning

Curves training course, the commentary and diagram from

the official MTO motorcycle handbook, described above,

still represented the only instruction received by Ms

MacLean and Mr Miles in that regard.

5. Before the end of 2012, Ms MacLean and Mr Miles then both took

and passed the “on-vehicle” or “road” test required to obtain an

Ontario M2 motorcycle licence; a licence which permits its holders

to operate motorcycles on public highways, and/or with a passenger.

6. The couple also purchased motorcycles of their own; i.e., with Ms

MacLean initially acquiring a Suzuki Boulevard 650 vehicle,²⁵and

Mr Miles acquiring a Suzuki Boulevard M50 vehicle.

²⁵Mr Miles thought Ms MacLean’s initial motorcycle might have been a “Honda Savage”, but I think it appropriate

to prefer and accept her testimony in that regard, as she undoubtedly would have been more familiar with her own

vehicle.

Page: 22

7. The couple thereafter rode their motorcycles as often as possible,

(weather and work schedules permitting), frequently together,

sometimes with others, (e.g., with Ms MacLean joining a “ladies

riding club” in 2012), and sometimes on their own. In that regard:

a. While they occasionally made “little” 20-30 minute rides

“back and forth” to nearby destinations, their typical rides

lasted at least 60-90 minutes, and sometimes “all the way up

to a day of riding”. Their rides usually involved preferred

travel on “back” or “country” roads between London and

destinations such as Sarnia, various port towns along the

north shore of Lake Erie, and other smaller communities.

b. Ms MacLean also road her motorcycle to and from work,

whenever possible, and occasionally made longer

motorcycle trips; e.g., while participating in charity

fundraising rides co-ordinated by her ladies’ motorcycle

riding club, repeatedly travelling to and from distant

destination such as Wasaga Beach.

c. In October of 2014, Ms MacLean also purchased and started

riding a second motorcycle, (i.e., a Triumph Speedmaster),

which she acquired in Windsor and drove back to London on

the 401 highway. The vehicle is a “cruiser type bike”, (i.e.,

sitting “a little higher up off the ground for a more

comfortable ride”), with a 750cc engine, and has an

elongated seat designed for two people, with the passenger

portion of the seat being three to four inches higher than the

driver’s portion of the seat. By June of 2015, Ms MacLean’s

use of that second motorcycle had included at least a dozen

longer trips, and she felt very comfortable with its use.

d. When riding their motorcycles together, Ms MacLean and

Mr Miles routinely and consistently following a standard

practice whereby Ms MacLean would travel in the “left tire

track” of their lane, (i.e., the area of a lane the left side tires

of cars and trucks normally would use), while Mr Miles

would travel in the “right tire track” of their lane, (i.e., the

area of the lane which the right side wheels of cars and trucks

normally would use), with Mr Miles travelling

approximately seven to eight feet behind Ms MacLean such

that the two motorcycles were not being operated “side by

side” but in a somewhat “staggered” fashion.

They

consistently rode in that configuration as a safety practice, in

accordance with the training they had received, as travelling

Page: 23

in that manner made the two riders more visible to other

traffic.

8. By June 29, 2015, Ms MacLean had acquired a significant level of

comfort and confidence by operating her two motorcycles over a

cumulative distance of approximately 20,000 to 25,000 kilometers,

during which:

a. she almost invariably encountered and safely traversed,

without any struggle or difficulty, standard raised and

rounded curb entrances to her right while stopping at homes,

certain parking lots, coffee shops, gas stations and similar

places of business;

b. she frequently operated her motorcycle with passengers,

such as her cousin, nephew and nieces - including Hailee

Stone, who often travelled with Ms MacLean on longer

rides, (perhaps as many as 10, lasting one to two hours), to

and from communities such as Delaware and Port Stanley;

and

c. she had never lost control, fallen off her motorcycle, or been

involved in any accidents.

iii. Earlier that day, (i.e., on June 29, 2015, Ms MacLean and Mr Miles had

decided to travel on their motorcycles, with Hailee, from London to Port

Burwell and back. In that regard:

1. The trip was intended to be another bonding experience with Hailee,

who would ride as a passenger with her aunt.

2. Ms MacLean chose to operate her Triumph Speedmaster motorcycle

that day.

3. Throughout her motorcycle riding that day, (which began at

approximately 10am), Ms MacLean wore leather boots, blue jeans,

an “armoured” jacket, (i.e., a jacket with protective layers on the

inside, extra padding covering the elbows, shoulder pads, and a

“back plate” covering and protecting the spinal area), and a helmet.

Hailee and Mr Miles similarly were wearing jackets, gloves and

helmets.

4. The route of travel selected by Ms MacLean and Mr Miles passed

through Aylmer, (where the couple and Hailee stopped at

approximately 12pm for a break, stretch and refreshments), before

continuing further east, and then further south along County Road

43 or “Richmond Road”. Ms MacLean and Mr Miles were familiar

Page: 24

with that particular road, as they found it to be a “terrific” road for

motorcycle driving, (e.g., with hills, alternating straight sections and

curves, but few potholes), and had travelled along it several times as

one of their “favourites”.

iv. As Ms MacLean and Mr Miles approached the Walmsley Brothers worksite

on Richmond Road, they were operating their two motorcycles in their

standard safety configuration; i.e., with Ms MacLean and Hailee generally

travelling approximately seven to eight feet ahead of Mr Miles, in the “left

tire track” of their southbound lane, and with Mr Miles traveling to the rear

in the “right tire track” of that southbound lane.

k. The accident giving rise to this litigation then occurred, in the disputed

circumstances addressed below, as Ms MacLean, Hailee and Mr Stone attempted

to proceed south on Richmond Road around and/or past the Walmsley Brothers

work site, in accordance with the instructions of the operation’s flaggers. At the

time of the accident, the relevant paving project on Richmond Road was still

underway; i.e., with the paver and rollers still proceeding northbound in the

southbound lane.

l. It was not disputed that the accident occurred to the west of a fenced cemetery on

the east side of Richmond Road, in the area where photos taken after the accident

showed an area of fresh asphalt that had been displaced into the northbound lane

from the eastern edge or “lip” of fresh asphalt that ran approximately in line with

the centre of the road.²⁶

m. Ms MacLean and Hailee were both injured in the accident; e.g., with Ms MacLean’s

injuries including an upper proximal humerus fracture, in respect of which she

began experiencing severe pain. They received immediate assistance from

individuals present at the scene, (including Mr Miles and a woman who emerged

from a nearby vehicle and identified herself as a trauma nurse), while waiting for

the arrival of emergency response vehicles that eventually include an ambulance, a

number of trucks from the fire department, and the police.

n. When those emergency response vehicles progressively arrived on scene, the

ambulance drove, at least in part, up onto the new asphalt in the southbound lane,

near the scene of the accident. Ms MacLean and Hailee then were transported to

hospital together, in the ambulance.

o. Mr Miles remained in the vicinity for a short time thereafter, removing Ms

MacLean’s motorcycle from the road, and obtaining permission from a local

resident to store Ms MacLean’s damaged motorcycle temporarily in a nearby

²⁶See, for example, photographs 23 and 26-27 at Tab 3 of Exhibit 2.

Page: 25

garage. He then returned to the accident scene briefly, where he took some

photographs of the area where the accident had occurred.

p. Although Ms MacLean and Mr Miles enjoyed a harmonious marriage prior the

accident, their relationship began to deteriorate as a result of Ms MacLean’s

resulting physical incapacities and associated mental health issues. Eventually, Ms

MacLean elected to terminate the relationship. She and Mr Miles no longer have

any regular contact, although they occasionally exchange text messages and

greetings at their common workplace.

[14] Those factual findings provide an underlying narrative framing the more sensitive areas of

dispute between the parties.

Evidence – Additional and conflicting evidence

[15] Those sensitive areas of dispute include, in particular, the state of the relevant roadway at

the time of the underlying accident, the appropriateness of how it was being

managed/controlled, and the manner in which the accident happened.

[16] In that regard, the testimony provided by Ms MacLean included the following additional

indications:

a. When she, Hailee and Mr Miles approached the worksite in the southbound lane,

she saw large machinery operating ahead of her in that lane, and it was “very clear”,

from the smells and activity, that the lane ahead of her was receiving “fresh new

pavement”. The noise level in the area was very high; perhaps an “eight out of

ten”, with 10 being the loudest. There was no machinery in the northbound lane,

which retained its older paving but also had a significant amount of loose gravel in

the area towards the east shoulder of the roadway

b. As their path forward was blocked, Ms MacLean says she, Hailee and Mr Miles

“pulled up” to the worksite and stopped in the southbound lane, where a “first flag

man” instructed them to wait, with no other stopped southbound traffic ahead of

them in the southbound lane. After a three-to-five-minute wait, the same initially

encountered flagger communicated, (in a verbal fashion),²⁷that they were free to

go and were to proceed forward, (i.e., southbound), using what was normally the

northbound lane of traffic.

c. Ms MacLean says that she, Hailee and Mr Miles then transitioned into the normally

northbound lane of traffic on Richmond Road, with no other southbound traffic

ahead of them, and with her motorcycle once again taking the lead and travelling

towards the left side of the lane while Mr Miles followed a short distance behind,

travelling towards the right side of the lane. However, Ms MacLean made what

²⁷Ms MacLean candidly indicated that she could no longer recall whether or not the first flagger also was holding a

sign, but she recalled receiving a verbal indication to proceed from that flagger.

Page: 26

she described as a “very slight” adjustment to their usual configuration, insofar as

she intentionally drove slightly to the right of the standard “left tire track”, (viewed

from her perspective), to avoid the surplus of loose gravel near the east shoulder of

the road on the “old” pavement.

d. As they proceeded south in the normally northbound lane of the road, in their

standard but slightly adjusted “staggered” configuration, and with Ms MacLean

taking the lead:

i. Ms MacLean was travelling in first gear, at a speed of approximately 15-20

kilometers, and had no difficulty controlling her motorcycle on the old and

hard pavement.

ii. There were no traffic cones or other barriers separating traffic in the

northbound lane from the construction work being done in the southbound

lane, or preventing traffic from transitioning from the northbound lane into

the southbound lane.

iii. Ms MacLean recalled seeing, to her right, “very big machinery” operating

in the southbound lane, in a manner that seemed “very close to the centre of

the road”.

iv. Although Ms MacLean generally was focused on what was in front of her,

(e.g., not paying much attention to what the various paving machines were

doing in the southbound lane as she road past them), she could see, to her

right, that the southbound lane had received an application of “freshly

paved black asphalt”, “much darker” than the old asphalt, resulting in a

change of elevation between the two lanes of the road; i.e., such that the

freshly paved area of the southbound lane now was higher than the “old”

pavement in the northbound lane. It appeared to Ms MacLean that the

transition between the two elevations was in a generally uniform

configuration, insofar as the area of transition was aligned down the

approximate centre of the road, along which there was an angled slope or

incline of rough or “jagged” asphalt with “juts”, (i.e., a slope or incline of

fresh new asphalt with a surface that had not been flattened), leading up

from the old pavement to the edge or “lip” of the rolled and apparently “flat”

and “smooth” upper surface of the freshly applied asphalt, which did not

appear to have any tire marks on it. Ms MacLean estimated that the

transitional slope of fresh asphalt, (i.e., what others might describe as the

“hypotenuse” of the slope), was perhaps five inches in length.

e. Ms MacLean says they proceeded southbound, in the normally northbound lane of

the road, without any southbound traffic ahead of them, and past the paving

machines on her right, until she encountered a second and different “flag man” who

required them to stop, “prior to the end of the construction zone”, to the west of a

fenced cemetery area. That second flagger then provided some form of “physical

Page: 27

cue” that the motorcycles were to transition back into a freshly paved area of the

southbound lane, over the slope/angle of asphalt which had not been

flattened/smoothed and the edge or “lip” of the flattened surface at the top of the

new asphalt. In that regard:

i. Ms MacLean candidly could not recall with certainty whether or not the

relevant flagger was holding a sign saying “STOP”, but believes he was. In

any event, she was sure the directions and cues provided by that second

flagger were visual and non-verbal.

ii. She recalled the second flagger requiring them “to stop and wait for a

period of time”, before he directed them into the southbound lane, in an area

where there was freshly paved asphalt.

iii. In the area where the second flag man was directing her to transition from

the “old” pavement in the northbound lane onto the freshly paved asphalt of

the southbound lane, there were no signs, (e.g., signs indicating the presence

of a “bump” or “uneven lane”), warning of the change in elevation between

the lower “old” asphalt and the higher freshly paved asphalt. Ms MacLean

admittedly could see the rough asphalt slope and new asphalt “lip” in that

area, and that the appearance of the transitional slope and “lip” of new

asphalt in that area generally resembled that along the centre of the road in

the work area where the old pavement met the new asphalt. (In particular,

when the second flagger instructed her to transition back into the

southbound lane, there were no splatters of fresh asphalt on the old

pavement, as depicted in photographs of the relevant transition location

taken after the accident.) However, when she was being directed by the

second flagger to proceed past him and over the relevant asphalt lip area

into the southbound lane, Ms MacLean could not tell whether the asphalt in

that particular “lip” area was hard or soft.

f. Ms MacLean says that, in response to the second flagger’s direction, she turned her

motorcycle to the right and approached the asphalt lip at an estimated “45 degree

angle”, or “possibly slightly greater than that”, as she recalled trying to make the

turn “as tight as possible”; i.e., so that she was heading “more into the lip” rather

than “less” into it. When asked to compare her angle of approach to that depicted

in the diagram from the official MTO motorcycle handbook noted above, (i.e.,

depicting the recommended manner of transitioning over tracks or other uneven

surfaces running parallel to a path of travel), Ms MacLean felt she had approached

her transition of the asphalt lip using a “very, very similar” angle of approach.

Page: 28

g. Ms MacLean testified that she approached the relevant transition area of the asphalt

lip at an estimated speed of approximately 15-20kph,²⁸and that the front wheel of

her motorcycle went up and over the edge of the lip without incident, without the

front tire feeling “sluggish” in any way, and without her encountering any problems

controlling her motorcycle. However, when the back wheel of her motorcycle hit

the asphalt lip, it did not make the transition up and over that lip, and instead began

to slide to the left; i.e., such that the rear of her motorcycle effectively was

continuing to move south along the roadway. Ms MacLean had never encountered

such a situation before. However, she responded by:

i. doing her best to turn the front wheel of her motorcycle to the left, (i.e.,

“into” the direction of her motorcycle’s rear wheel slide), so that both parts

of her motorcycle would continue to move in the same southerly direction,

thereby preserving stability; and

ii. applying a slight increase in throttle, (although she had not done anything

before then to change her speed while transitioning over the asphalt lip), in

an effort to help the rear wheel of her motorcycle make it over the asphalt

lip and change in elevation.

h. According to Ms MacLean, the rear tire of her motorcycle then did “catch” at some

point and make it “up and over” the lip of the asphalt, after a few seconds, but did

so in an exceptionally sudden and fast manner, during which she found herself

unable to make steering adjustments sufficient to align her motorcycle “with the

trajectory of the road”. Her motorcycle instead swerved “back and forth” in a

“severe” and “violent” manner, “to the right and to the left”, without her having

any ability to recover control. Although she attempted with difficulty to hold onto

the motorcycle handlebars with all her strength, the forces proved too much for her,

and she was “thrown” or “ejected” violently from the vehicle, “into the air”. She

remembered being “airborne” before the sound of her helmet hitting the pavement

and finally coming to a stop. She also recalled her niece Hailee having been ejected

from the motorcycle a short time later; i.e., with a distinct memory of looking up

from the ground to see Hailee’s full body in the air, before Hailee then landed on

very close to where Ms MacLean was looking up at her; in a manner whereby Ms

MacLean felt able to sit up, gather Hailee into her arms, and brace her impact. At

the time, Ms MacLean had no awareness of where her motorcycle had gone or

“landed”, apart from knowing that it had not landed on or near them.

i. Ms MacLean testified that, as she lay on the new asphalt, trying to remain calm for

Hailee’s sake, she could feel its heat “burning through [her] clothes”. The woman

who identified herself as a trauma nurse instructed Ms MacLean to not move.

²⁸As discussed in more detail below, Ms MacLean’s indications of that speed have not been entirely consistent over

time, but the 15-20kph estimate was the one she maintained at trial, despite contrary suggestions put to her during

cross-examination.

Page: 29

However, Ms MacLean responded with an indication that it was impossible for her

to remain where she was, as the new asphalt was “exceptionally hot” and “burning

[her] skin” through her clothing.

[17] Testimony provided by Hailee Stone included the following additional indications:

a. On the day of the underlying accident, Hailee was 14, and had been a passenger on

her aunt’s motorcycle at least 10 times. It seemed to Hailee that her aunt was a

“really good” and “careful” motorcycle driver, and Hailee felt quite comfortable

riding with her.

b. When the accident occurred, she, Ms MacLean and her uncle Mr Miles were on

their way to Port Burwell for ice cream, after having stopped at a coffee shop along

the way. While traveling, her aunt was riding to the left of their lane, “closer to the

middle of the road”, while her uncle was riding to the right side of their lane, “closer

to the curb”.

c. Hailee candidly indicated that she did not know the name of the road they were

travelling on when the accident happened. However, she recalled encountering a

construction zone, where workers “were putting new asphalt onto the road” in their

lane of travel. In that regard:

i. Hailee recalled that, as they approached the construction zone, a

“construction man” directed them into “the other lane that still had the old

asphalt”, although she admittedly could not recall precisely how that was

done, or what the “construction man” may have been holding.

ii. Hailee also recalled that, as they proceeded into and along the other lane,

passing new asphalt on their right, her aunt Tanya was “in front of the line”

of traffic moving forward in their lane. Her aunt also was once again driving

to the left of the lane they now were in, while her uncle drove to the right

of that lane behind them, without any issues. As for their speed, Hailee says

they were travelling at a “slower pace because it was a construction zone”.

When pressed for a numerical estimate of their speed at the time, Hailee

indicated they were traveling at 15kph.

iii. While proceeding forward in that “other lane”, Hailee could see the new

asphalt that had been applied in the lane to her right, that it was “a lot

darker” than the old pavement, (to the extent of being “pretty much black”),

and that it was “raised above the regular asphalt”, with an edge that “wasn’t

smooth” but “jagged”. She could tell “exactly” where the edge of that new

asphalt was along the middle of the road.

d. Hailee testified that another worker, (whose description and precise actions Hailee

admittedly could not remember), then directed them “onto the new asphalt”. In that

regard:

Page: 30

i. Hailee says her aunt approached the edge of the new asphalt “approximately

like a 45-degree angle”; “not going straight onto it” and not like it was

“across” from them, but “somewhere in the middle”. According to Hailee,

her aunt also approached the new asphalt without any perceptible change in

speed; i.e., at the same “pretty constant” speed at which they had been

travelling past the lane with the new asphalt. Hailee did not hear anything

that sounded like her aunt’s motorcycle engine “revving” or accelerating as

her aunt approached the new asphalt.

ii. Hailee says that, “once the front tire was over” the edge of the new asphalt,

and “the back tire connected” with it, her aunt’s motorcycle “started losing

control”, with everything becoming “bumpy” and “chaotic”, as they

“couldn’t get over with the second tire”, which was sliding along the edge

of the new asphalt. She recalled the motorcycle “swaying out of control”.

In particular, she recalled both of her aunt’s arms extended forward,

gripping the handlebars with her elbows out at square angles, trying to

control the motorcycle, (as its balance went “back and forth”, to the left and

then to the right), before her aunt was then “ejected” or “thrown off the

bike”, leaving Hailee alone on the motorcycle.

iii. Hailee says that, when she found herself alone on the motorcycle for a short

time, she was in shock and did not know what to do before she herself then

was similarly “thrown off the bike”. She recalled then landing partly on her

knees and partly “on top of” her aunt, (who was already lying on the fresh

asphalt), before rolling off and laying beside her. Her aunt’s motorcycle

did not fall on either of them, and Hailee firmly rejected suggestions that it

had simply “tipped over” because the edge of the new asphalt was

approached at the wrong angle.

e. Hailee testified that, while laying on the fresh asphalt immediately after the

accident, it felt hot. She says it was also “sticky and wet”, such that it damaged her

jeans by “ripping through” them, (e.g., at both knees), and coating them “all over”

with asphalt.

f. Hailee says she generally was in a state of shock after the accident, and that her

uncle had to help her up from the asphalt before the ambulance came and took both

her and her aunt to hospital.

[18] Testimony provided by Mr Miles included the following additional indications:

a. He recalled encountering a signed construction zone as he, Ms MacLean and Hailee

were heading south on Richmond Road. After passing the initial signage in that

regard, and continuing in their lane for approximately three to five minutes, the

Page: 31

southbound lane ahead of them was closed, and the subject of construction work

that obviously included the laying of new asphalt.²⁹

b. One of the construction workers directed them to come to a stop with the sign he

was holding, while also making eye contact with them. They then waited were they

were, in the southbound lane and without any other southbound vehicles in line

ahead of them, for approximately five to ten minutes as oncoming traffic continued

to use the northbound lane; the only lane which remained open.

c. The same construction worker - once again facing Ms MacLean, Hailee and Mr

Miles - then directed them to proceed into the northbound lane, using the sign he

was still holding in one hand, and making a sweeping gesture with his other arm

towards the left lane in front of them; i.e., into the normally northbound lane of

traffic, which still had its “old” pavement.

d. Mr Miles says that, as they proceeded south in the northbound lane of the road:

i. The asphalt in the northbound lane was “old”, “smooth”, and “nothing out

of the ordinary”.

ii. There was no southbound traffic in front of them.

iii. He and Ms MacLean once again were driving in the staggered configuration

they always assumed; i.e., with her motorcycle in the lead, and with Mr

Miles following on his motorcycle approximately six to seven feet to the

right and rear of Ms McLean’s motorcycle. They were keeping the same

distance between them and therefore travelling at the same speed; a speed

which Mr Miles says was approximately 15-20 kph, such that Mr Miles was

travelling in second gear.

iv. He could see, a few feet away from where he was riding, that the

construction crew already had laid what appeared to be “brand new asphalt”

in the southbound lane, (apparently along the length of the construction

zone they were passing), and that the new asphalt was “fresh”, “really

black”, and “raised up” higher than the elevation of the “old” pavement in

the northbound lane. When asked to estimate the extent of that vertical

elevation, Mr Miles said it was “about three to four inches higher” than the

“old” asphalt.

²⁹Mr Miles admittedly could not recall precisely where the new asphalt had progressed to in the southbound lane, as

they approached it from the north, except to recall that it had reached a point in the southbound lane somewhere north

of the fenced cemetery on the east side of the road and somewhere south of the location to which the paver had

progressed by the time of the photos taken by the county employee, (i.e., Mr Watters), who attended the scene on the

afternoon of the accident after receiving notice that an accident had occurred.

Page: 32

v. Mr Miles could see that the new asphalt in the southbound lane appeared

“smooth on top”, without any tire grooves, but that the “side” of it, (i.e., at

its eastern limits, generally running relatively straight along the centre line

of the road), “was all jagged” in a “pretty much uniform” way, without any

visible marks, damage or deformities. He could not tell at the time, (i.e.,

while travelling south in the northbound lane), whether the new asphalt was

soft or hardened. However, he could tell “exactly where the new asphalt

started” at its eastern edge, as the new asphalt at that edge was “pretty much

black” and obviously different from the “old grey colour” of the “beat up

asphalt” in the lane they were using.

e. Mr Miles testified that there then came a point where they could proceed no further

south in the northbound lane, although they had not yet reached the end of the

construction zone and newly applied asphalt in the southbound lane. In particular,

after travelling “a bit down the road” in the southbound lane, past all the

construction equipment working in the southbound lane, and to an area beside a

cemetery on the east side of the road and approximately 20 yards before the point

where the new asphalt visibly came to an end, (i.e., south of which the surface of

the southbound lane was only “old” pavement similar to that in the northbound

lane, such that the two lanes remained at the same elevation south of that point),

they encountered a second “flag person”. That second flagger was:

i. “holding the [northbound] traffic back”, (with a northbound truck stopped

approximately 10-15 feet behind him to the south, waiting to proceed),

effectively making it impossible for the two motorcycles to keep travelling

forward in the northbound lane;

ii. not requiring them to stop; and

iii. directing them, (by using one arm to give directions while holding a sign in

his other hand), “to cross over through the construction zone onto the new

asphalt”.

f. Mr Miles testified that, in his view, there was nothing at the time that would have

prevented the second flagger from positioning himself further south along the

roadway, and south of the southern terminus of the new asphalt in particular, such

that southbound traffic could have transitioned back into the southbound lane

without having to transition onto the new asphalt.

g. Mr Miles also says that, in the area where the second flagger was directing them to

transition from the “old” pavement in the northbound lane onto the freshly paved

asphalt of the southbound lane, there were no signs, (e.g., signs indicating the

presence of a “bump” or “uneven lane”), warning of the change in elevation

between the lower “old” asphalt and the higher freshly paved asphalt. Nor did the

second flagger speak with them, or provide them with any warning or instruction,

Page: 33

about the edge or lip of the new asphalt. To Mr Miles’ knowledge, neither he nor

Ms MacLean had ever encountered an asphalt edge or lip like that before.

h. According to Mr Miles, when Ms MacLean then attempted to transition into the

southbound lane onto the new asphalt as directed by the second flagger, and

therefore over the edge or lip of the new asphalt near the centre of the road:

i. Ms MacLean did not slow down or speed up, but was proceeding at the

same 15-20kph speed, which looked to be a “good speed” for the cross over

from Mr Miles’ perspective.

ii. Ms MacLean also approached the indicated “cross over” point onto the new

asphalt at “around a 45-degree angle”, (i.e., “probably … on the 40-45

degree angle” and “probably about a 45 degree angle”), a line which

“looked good” to Mr Miles, and similar to the angle depicted in the official

MTO motorcycle handbook diagram accompanying directions on how to

cross uneven surfaces running parallel to the path of travel.

iii. When Ms MacLean approached the new asphalt edge or lip on her

motorcycle, her front wheel went “up and over the lip” without difficulty.

However, at the moment when her back wheel hit the lip, Ms MacLean’s

motorcycle immediately slowed as its rear wheel “started to spin” on the

new asphalt, apparently because it “lost traction” and “wasn’t gripping” at

that point. At the same time, the rear wheel of Ms MacLean’s motorcycle

also “started to slide out to the left along the edge of the asphalt”, in a “sort

of jumpy slicing slide”, during which the lip of the asphalt was being

“shaved all the way down” along the approximately four-to-six-foot length

of the slide; i.e., progressing “from right to left” as one looked at the asphalt

lip from the east. Throughout that process of the rear tire of Ms MacLean’s

motorcycle trying to gain sufficient traction on the new asphalt lip, (to make

it up and onto the elevated southbound lane), fresh “shredded” asphalt was

“being kicked back” and “shot out the back” by the rear wheel. In

particular, the rear wheel “just kept spitting it all out”, initially towards Mr

Miles and then “straight across the road” as the spinning rear tire slid from

right to left along the edge of the new asphalt.

iv. Mr Miles testified that, although the two wheels of Ms MacLean’s

motorcycle initially were aligned in the same direction, such that the

motorcycle was “straight” when Ms MacLean attempted to transition over

the new asphalt lip, the sliding of its rear tire to the left increased to the point

where Ms MacLean visibly was obliged to “correct” the situation with her

front tire by “turning into the slide”; i.e., in an effort to keep her motorcycle

stable. In particular:

1. Although the two wheels initially were aligned in the same direction

as Ms MacLean attempted to cross the asphalt lip at an angle, their

Page: 34

alignment changed as Ms MacLean’s rear tire was spinning up

against the edge or lip of the new asphalt, trying to gain traction.

2. As noted above, the rear tire of Ms MacLean’s motorcycle, as it was

spinning along that asphalt edge or lip, began moving to the left; i.e.,

further south along the roadway. Mr Miles says he then saw Ms

MacLean turn the front wheel of her motorcycle to the left, (i.e.,

“into” the same southerly direction in which the rear wheel was

sliding and moving down the road), in an apparent effort to allow

both the rear and front of her motorcycle to both keep moving in the

same direction, thereby maintaining stability. In the process,

however, the motorcycle’s two wheels went from being aligned in

the same direction to progressively assuming what Mr Miles

described as an “L” or perhaps even a “V” configuration.

3. Mr Miles says that change of alignment between the rear and front

wheels of Ms MacLean’s motorcycle became more pronounced as

the spinning rear wheel slid to the left, progressively changing from

being at an acute angle to the edge of the new asphalt to being almost

perpendicular to that edge, in turn requiring Ms MacLean to turn her

front wheel more and more to the left in an effort to keep both ends

of her motorcycle moving along the road in the same southerly

direction.

v. Mr Miles testified that, as the rear wheel of Ms MacLean’s motorcycle was

in contact with and trying to make it over the asphalt lip, he also heard Ms

MacLean “rev” her engine, (i.e., by “getting on the throttle to give it a bit

more gas”), apparently “to give it more power because she was losing

traction trying to get up over the lip”.³⁰Mr Miles clearly recalled Ms

MacLean doing that only after the rear wheel of her motorcycle came into

contact with the edge of the new asphalt and started spinning, as an apparent

reaction to that happening.

vi. Mr Miles testified that the slide of Ms MacLean’s rear tire to the left, along

the asphalt lip, then came to an abrupt end when the motorcycle’s spinning

rear tire, reaching an almost perpendicular alignment with the edge of the

new asphalt, created a bit of a trough or hole in the new asphalt it was

displacing and suddenly “grabbed” and “gripped” the new asphalt; i.e., that

the rear tire suddenly “really took traction” as it simultaneously “took a

chunk” or “nice section” out of the new asphalt. At that point, Mr Miles

says, when the motorcycle’s rear tire “dug in”, it then “basically skipped up

³⁰In that regard, Mr Miles emphasized that, because the rear wheel of Ms MacLean’s was spinning, resulting in a loss

of momentum, further acceleration was needed in order to keep the bike stable, as a complete loss of momentum

would cause the bike to fall to one side or the other unless Ms MacLean could “throw [her] feet down and try to brace

the bike” in time.

Page: 35

onto the new asphalt”, propelling the motorcycle “up and over” the asphalt

lip. By that point, however, Ms MacLean’s motorcycle was “off-centre”,

(e.g., because Ms MacLean’s front wheel was turned to the left, into the

slide), such that Ms MacLean’s motorcycle then “bucked”. In particular,

Mr Miles says, when the rear tire of Ms MacLean’s motorcycle suddenly

gained traction, it effectively tried to force the motorcycle forward at a time

when its front wheel was turned significantly to the left; i.e. at a time when

the front wheel was turned sideways, and therefore could not easily be

pushed sideways in the direction the rear wheel was facing. At that point,

Mr Miles says, the motorcycle’s front shock absorbers “compressed down”,

such that “the front end went down” with them while “the back end came

up”, “almost like a catapult”.

vii. It was at that point, Mr Miles says, that Ms MacLean went into the air and

“off the bike to the left”, (i.e., over her motorcycle’s handlebars to the left

of its front windscreen), hitting the new asphalt before rolling to a stop,

facing upward. Hailee then went off the motorcycle as well, landing on her

side to the right of Ms MacLean. The motorcycle itself then continued on

its own without any riders for a short distance, as it “sort of speed wobbled

to the right”, approximately three to four feet further north on the new

asphalt from the area where Ms MacLean and Hailee had landed. It then

“toppled” down onto the new asphalt, where it “dug in”, leaving marks and

displaced asphalt similar to that which Ms MacLean’s rear tire had

displaced from the edge or lip of the new asphalt.³¹In that regard, Mr Miles

indicated a belief, during the course of his testimony, that the motorcycle

fell down on to its right side.

viii. Mr Miles says that, after witnessing what happened to Ms MacLean and

Hailee, he stopped and used his motorcycle’s kickstand to park it on the new

asphalt, without having any memory of how he himself made his way onto

that new asphalt – although he admittedly did so without losing control of

his motorcycle. He then recalled struggling to remove his helmet as

someone ran past him to his left, rushing to help Ms MacLean and Hailee.

ix. According to Mr Miles, when he finally got his helmet off, he too “ran up”

to where his wife and niece were lying on the new asphalt. As the person

who ran past him was attending primarily to Ms MacLean, he focused on

Hailee and tried to make sure she was okay until the “EMT” and fire

department responders arrived on scene. He recalled that, during that time,

his wife was asking about Hailee, and both his wife and Hailee were

³¹Mr Miles identified the location of those marks and displaced asphalt by indicating they were in the “top left” are

of the photograph, taken by him, found at Tab 1, page 4, of Exhibit 2.

Page: 36

complaining about the heat from the road; i.e., saying that the new asphalt

they were lying on was too hot.

x. As noted above, Mr Miles then remained in the vicinity of the accident

scene for a short time after his wife and niece had been taken away by

ambulance. In that regard:

1. Mr Miles recalled looking at Ms Maclean’s motorcycle somewhat

quickly, as he retrieved and pushed it to the garage of a nearby

resident who kindly had offered to store it until it could be retrieved.

However, even during that cursory inspection, he could tell that the

bike was “messed up”; e.g., with a scratched up windscreen, and

asphalt “on” and “all over the bike” such that “it was not rideable”.

2. He also stopped to examine and take some photographs of the

accident scene and, in particular, the area where the rear tire of Ms

MacLean’s motorcycle had tried to make its way over the edge or

lip of the new asphalt.

3. When he returned to his own motorcycle, parked on the new asphalt,

he found that it was “sort of leaning to the left” as its kickstand had

“sunk into the asphalt”.

xi. Mr Miles testified that, as he was moving on foot across the rolled surface

of the new asphalt, (which was a lighter colour than the darker asphalt lip),

he found it to be “really soft and sticky”, and that it stuck to his boots as he

was walking. He says the darker or “black” asphalt found long the lip of

the new asphalt, and displaced from that lip by the rear wheel of Ms

MacLean’s motorcycle, was also soft and sticky. However, the rolled and

lighter coloured top surface of the new asphalt was “not as soft as the black”

asphalt at its edge, or the loose asphalt displaced from that edge.

xii. Mr Miles says he thereafter made arrangements to have Ms MacLean’s

damaged motorcycle moved/carried on a flatbed truck from its temporary

storage near the accident scene to “Inglis Cycles” in London; i.e., the

motorcycle sales and servicing centre in London from which he had

purchased his motorcycle, and which he and Ms MacLean used to service

their motorcycles. Once Ms MacLean’s motorcycle was there, Mr Miles

used the opportunity, (approximately four to six days after the accident,

when he got time off work), to examine it more closely, and to take

photographs and a short video of its damaged condition. In that regard:

1. He noted in particular that the damage included:

a. asphalt “everywhere” throughout, along and underneath the

motorcycle’s frame and undercarriage, inside its fenders, on

Page: 37

its chain, and on its wheels - particularly around its rear

wheel;

b. the indicator or turn signal being “smacked” and “marked

up”; and

c. areas around the handlebar, gearing, levers, cables and a

broken off footrest connector being “just embedded with tar

and asphalt”.

2. Mr Miles found, in particular, that the asphalt-covered levers were

incapable of turning or other movement, and that the asphalt

covering them was “still sticky and pliable”.

[19] Testimony provided by Glenn Walmsley included the following indications:

a. Mr Walmsley confirmed that, on the day in question, Walmsley Brothers was

following its usual practice of leaving particular incremental decisions about when

the rear flagger should move forward with the paving operation, and precisely

where the rear flagger should take up a new position, to what he felt was the

“educated judgment” of the particular person acting as rear flagger.

b. Mr Walmsley also confirmed that, during the Richmond Road paving project, such

decisions by the rear flagger would have been guided primarily by the progress of

the finishing roller in completing its work on areas of new asphalt. In particular,

although the operator of the finishing roller might give occasional specific warnings

of a particular “soft spot”, “hot spot” or “thick spot” during other paving operations,

Mr Walmsley indicated there were no such areas of concern or associated warnings

when Richmond Road was being paved, as it was “just a two-inch” layer of new

asphalt being applied over an existing and generally uniform layer of existing

asphalt, which generally did not give rise to such concerns.

c. Mr Walmsley indicated his expectation that, in relation to a paving project having

a length of 1.3km, (i.e., the length of the required Richmond Road paving project),

he would expect the operation’s rear flagger to start from a position south of where

the new asphalt began to be laid in the southbound lane, and then move forward

behind the paving operation, (i.e., moving to the north), “two to three times” - and

“probably three times” - during the course of the operation.

d. However, Mr Walmsley admittedly was not present at the precise location of the

accident for a number of hours before the accident occurred there, as he remained

with the moving paver, which had passed the accident location well before the

accident occurred. Nor did he personally observe the movement and positions of

the rear flagger while the paving operation progressed prior to the accident.

e. For similar reasons, Mr Walmsley also admittedly did not witness the accident

giving rise to this litigation. When it occurred, he was still at the job site on

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Richmond Road, but he also was still working up near the paver – which is his usual

position during paving operations. He admittedly was not informed of the accident

until some time after it happened. In that regard, he frankly could not recall

precisely how the accident was brought to his attention, but believes he probably

heard news of the accident come across the radios which he and other employees

of Walmsley Brothers carry.

f. After learning of the accident, Mr Walmsley got into his pickup truck, (then parked

near the location of the still moving paver), and drove south along Richmond Road,

in the normally northbound lane of traffic, back to where the accident apparently

had happened. Mr Walmsley initially could not recall how far the paver had

progressed north from the location of the accident at that point; i.e., by the time he

learned of the accident and left the paver to drive back to the scene of the accident

in order to see what may have happened in that regard. However, he then recalled

that the paver was approximately two-thirds of the way through the paving project

at that point, and approximately 500-600 meters north of where the accident

apparently had taken place.³²

g. Mr Walmsley says that, by the time he got to the apparent location of the accident,

(which Mr Walmsley estimated to be approximately 125-150 metres north of where

Walmsley Brothers had started to lay new asphalt in the southbound lane), there

were “two ladies”, involved in the accident, “already off the shoulder into the grass,

sitting down”, and the paving operation’s rear flagger, (Mr Albert), was positioned

at a location south of where Walmsley Brothers had started its paving in the

southbound lane of Richmond Road that day. Mr Walmsley says he saw only one

motorcycle near the scene, parked on its kickstand, and assumed that was the

motorcycle that had been involved in the accident – although he also admittedly

was focused on “the ladies” at that point, as he was worried about possible injuries.

h. At trial, Mr Walmsley initially estimated that the new asphalt in the area where the

accident apparently had occurred had been laid approximately 3½ to 4 hours earlier.

In the course of cross-examination, however, he reduced that estimate to

approximately three hours; i.e., on the basis the paving of Richmond Road had

started at approximately 11:00am, that it would have taken approximately 30

minutes for the paver to reach the area of the southbound lane where the accident

seemed to have occurred, and it was his understanding that the accident had

occurred around 2:30pm. In the course of further cross-examination, (and after

being taken to his earlier sworn evidence during oral discovery that the relevant

area of new asphalt had been laid only “a couple of hours” earlier), Mr Walmsley

³²Mr Walmsley acknowledged that the paver had continued to move north between the time of the accident and the

time he learned of the accident. However, without a more precise indication of how much time had elapsed between

those two events, it is not possible to estimate the paver’s location, and therefore the length of the new asphalt strip in

the southbound lane, at the time of the accident.

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then lowered his estimate again, acknowledging that the new asphalt could have

been laid “maybe 2 ½ to 3 hours” earlier.

i. Although he admittedly had not seen the finishing roller complete its work in the

relevant area, Mr Walmsley thought that work probably had been finished “at least”

an hour earlier, based on his experience that the operator of the finishing roller

normally did not start work on a newly laid area of asphalt for least 90-120 minutes

after the new asphalt had been placed on the road.

j. According to Mr Walmsley, when he was making his observations about the

condition of the road near the accident scene, on the day of the accident, he noticed

marks on the road where the motorcycle had “dug into the pavement” and left marks

where it appeared the motorcycle had fallen, as well as “tire imprints from the

ambulance”. However, he says he never noticed the “sprayed” and “loose” asphalt

depicted in the accident scene photos, (which apparently had been displaced from

the eastern edge of the new asphalt and into the normally northbound lane of

Richmond Road), despite his having driven past the location of that displaced

asphalt; i.e., before he then “cut” across and over the new asphalt to park his vehicle

on the west shoulder of the road near the grass, south of where the accident

apparently had happened. In that regard, Mr Walmsley emphasized that he did not

walk to the centre of the road near the accident scene.

k. According to Mr Walmsley, although the attending ambulance drove onto the new

asphalt, where it parked for a time, the attending vehicles from the fire department

remained parked off the east shoulder of Richmond Road; i.e., such that they did

not cross onto or over the new asphalt in the southbound lane.

[20] Testimony provided by Chris Walmsley included the following indications:³³

a. He began working for Walmsley Brothers in 2004, spending an initial year

employed as a “weigh man” at the company’s asphalt plant before moving on to

road paving operations as a flagger in 2005. At the time of the accident in June of

2015, he was still working primarily as a flagger, although he had begun training

on the rollers. At the time of trial, he was working as a “screw man”; i.e., working

on the sides of the paver to monitor and control the thickness and width of asphalt

it puts down.

b. Chris recalled that his training as a flagger had included an initial written test,

(which he took and passed before becoming a flagger), and subsequent completion

of “traffic control program” training undertaken in or around 2009. The latter

involved a degree of classroom training offered somewhere in London, followed

³³I will hereinafter refer to Chris Walmsley alternatively as “Chris”, without intending any familiarity or disrespect,

but to more readily distinguish Chris Walmsley from his father Glenn Walmsley.

Page: 40

by the taking and passing of a standardized test; a test apparently developed by

others, but administered in the Walmsley Brothers office by one of its employees.

c. Chris confirmed that, on the day of the accident, (i.e., June 29, 2015), he was

working at the site of the Richmond Road paving project, and was one of the

flaggers responsible for directing traffic. He testified that there was nothing

unusual in the way Walmsley Brothers was spreading and compacting asphalt that

day. Although he knew his father had a “generic” traffic protection plan in his

pickup truck, it was not provided to the flaggers, and they received no specific

instruction in relation to how flagging should be done in relation to the Richmond

Road project. All flagging decisions, (including when to move forwards and how

far to move forward), were simply left to the judgment of the flaggers. In that

regard, he and the other flaggers intended to follow the company’s usual practice

of moving the rear flagger forward as the finishing roller completed its work,

directing traffic onto the new asphalt.

d. Chris testified that, at the time of the accident, he was taking a break from acting

as a flagger, (while the other two flaggers continued to work), and was sitting in

the driver’s seat of a pick-up truck, “just resting [his] legs” and “having a snack”.

The truck was parked facing south, in a small parking area next to a fenced cemetery

on the east side of Richmond Road. In the result:

i. Chris also was facing south, with the ongoing paving operation in the

southbound lane somewhere behind him.

ii. The position of his vehicle and seating placed him near to the cemetery

fence. The edge of the newly laid asphalt, running down the centre of the

road, was located to the west and to his right.

iii. At the very least, Chris was separated from the eastern edge of the newly

laid asphalt by the width of the truck in which he was sitting, and the width

of the normally northbound lane of traffic.

e. Chris testified that, as he was sitting in his truck facing south, he nevertheless was

able to see traffic coming from the north by looking to his right across the interior

of his pick-up truck, and seeing the reflected images in a large mirror positioned on

the right/passenger side of the vehicle. He says he was looking at those reflected

images because there was “nothing else to do”.

f. According to Chris, while he was doing that, (i.e., looking into the mirror on the

right/passenger side mirror of his truck), he saw a “line of traffic coming up” from

the north, including a motorcycle driving south in the northbound lane. He testified

that he was “kind of … staring at her”, (i.e., the female operator of that motorcycle),

because:

i. he “could tell she was a little hesitant”, insofar as it “seemed like she slowed

down” and was “coming up” while going “pretty slow”; and

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ii. she was riding “really close to the joint”, (i.e., “basically right next to the

lip” of the new asphalt, in a “basically parallel” fashion to that lip and

“between three and six inches away” from it), and with such a small angle

of approach, that he:

1. “thought she was going to wipe out before she actually did”;

2. “remembered thinking she was going to fall before she actually did”;

3. “thought she was going to fall before she actually did”;

4. “was obviously concerned how she was approaching it”;

5. was “going to look because [he] was concerned she could flip”; and

6. was “concerned, like, she was going to tip it, ‘cause, just the way

she was approaching it”.

g. Chris nevertheless admittedly did not see the motorcycle’s wheels come into

contact with the asphalt lip, how the motorcycle operated once its wheels touched

the asphalt lip, or how the motorcycle “went up or how it landed exactly” when it

reached and tried to go up onto the new asphalt. Nor did he see whether or not the

wheels of the motorcycle created any displaced asphalt or “spray pattern” when

they touched the asphalt lip.

h. Chris initially indicated that he could not remember how the motorcycle “tipped

over”, or whether he had actually seen that happen, before then testifying that he

actually “didn’t see that” either. When asked why he had referred to the motorcycle

“tipping over”, and for further information in that regard, Chris repeatedly indicated

that he had “talked to Ian”; i.e., Ian Albert, the rear flagger who directed Ms

MacLean onto the new asphalt.

i. Chris initially testified that he had a memory of seeing the motorcycle driver “going

down on her side”, and her passenger, (whom he assumed to be the driver’s

daughter), landing partially on top of the driver, breaking the passenger’s fall to

some extent. In cross-examination, however, Chris acknowledged that his only

“definite” memory was that of seeing “the daughter laying on top of the mom”; i.e.,

as opposed to actually seeing them fall.

j. By way of possible explanation for his incomplete memory, Chris acknowledged

that there was a period of time between his seeing the motorcycle’s approach and

seeing its driver and passenger having fallen; i.e., such that he admittedly did not

see “100 percent” of what happened between “when she came up” along the road

from the north and “when she fell down”.

k. Chris admittedly could not remember exactly what he did when he got out of his

truck after the accident, but said that he was “walking all around” the area, and

Page: 42

“would have walked probably right over” the area where the accident happened.

He testified that, when doing so, he had no concerns about the compaction or

hardness of the asphalt, and its readiness to be used by vehicles. However, he also

said that he had no memory of seeing or looking at the asphalt that had been

displaced from the asphalt lip and sprayed into the northbound lane of the road.

l. Chris recalled an ambulance arriving at the scene after the accident, along with

members of the fire department and the police. However, the police did not ask

him for any statement, and he did not volunteer to provide any statement to them.

m. Chris also recalled seeing the other motorcyclist, (i.e., Mr Miles), taking

photographs of the accident scene.

[21] Testimony provided by Mr Albert included the following indications:

a. He began working for Walmsley Brothers in the summer of 2008, and has

continued to work for the company seasonally, (i.e., usually from May until

November, depending on the weather), since that time. By the time of the

underlying accident in 2015, he had been working for the company exclusively as

a flagger. By the time of trial, he was working as an operator of the company’s

“rubber tire” roller.

b. Mr Albert confirmed that, on the day of the accident, (i.e., June 29, 2015), he was

one of the flaggers working on the Richmond Road paving project being carried

out by Walmsley Brothers. In that regard:

i. He was wearing a “hard hat”, an orange shirt with reflective tape, and full

length “cargo pants” with reflective tape, while holding a sign saying

“STOP” on one side and “SLOW” on the other.

ii. He and the other flaggers also were equipped with radios, allowing them to

communicate with each other from a distance.

iii. He confirmed that he was not provided with any traffic protection plan for

the Richmond Road paving project, (although he knew his

supervisor/foreman was supposed to have one), and that he did not receive

any written or verbal instructions in relation to flagging that particular

project.

iv. He instead confirmed that the “general plan” he and the other flaggers had

for directing traffic on that particular paving job was simply to “kind of do

what [they] did every day”, that nothing “was being done differently that

day from the ordinary routine”, and that “everything was normal”. In

particular:

Page: 43

1. While paving was proceeding in one closed lane of the road, they

would take turns sending traffic through the lane that remained

open.

2. The lead flagger would move forward continuously ahead of the

paving equipment, “to give room for the paver and their trucks and

everything”.

3. The rear flagger would move forward from time to time, but not in

a manner that maintained a constant distance from the lead flagger,

who was moving forward continuously and occasionally “a lot

more” than the rear flagger. In that regard:

a. Mr Albert said that he determined when he should move

forward as a rear flagger, based on his own judgment and

discretion.

b. Mr Albert understood that the purpose of the rear flagger

moving forward was to promote safety, (e.g., by helping to

maintain direct sight lines between the lead and rear flagger,

which in turn helped to alert flaggers to the possibility of

additional vehicles entering the road at points in between

them), and “to help speed up the whole process” by

minimizing traffic delay as much as possible.

c. Mr Albert says that, as a rear flagger, he would wait for the

finishing roller to complete its work on an area of asphalt

and then move forward, directing traffic onto such new

asphalt if/as necessary. In doing so, he admittedly did

nothing to personally test the new asphalt in any way to

ascertain whether it was safe for traffic to travel onto and

over it, and instead assumed certain things in that regard. In

particular, he had an understanding and “rough idea” that

such asphalt was hard and safe for vehicles to use after the

rollers had compacted it. Indeed, he initially indicated a

belief that vehicles could travel safely onto and over new

asphalt “as soon as it came out of the paver”, (although they

would “make marks on it”), as he thought it would be “solid

enough” to drive on without a vehicle “sinking in”, and he

had seen emergency vehicles like police cars and

ambulances drive over freshly laid asphalt in the past.

However, he then indicated that, to be safe, it was

“preferable” that vehicles not drive on freshly laid asphalt

“until after it was finished being rolled”.

Page: 44

4. Mr Albert had no memory of that practice or system, (i.e., in relation

a rear flagger moving forward and directing traffic onto fresh asphalt

soon after the rollers had finished their work), being part of the

formal safety booklet or testing he reviewed and completed when he

became a flagger. Nor could he recall having received any other

formal instruction in that regard. He believes he may simply have

followed the example of somebody at Walmsley Brothers “kind of

showing [him] the ropes” when he started working as a flagger.

c. At the time of the underlying accident, Mr Albert was acting as the rear flagger on

the project, and positioned towards the south end of the paving project as the paver

moved progressively north in the southbound lane. In that regard:

i. Mr Albert testified that approximately half a kilometre, (i.e., 500 meters),

of the southbound lane had been paved prior to the accident.

ii. According to Mr Albert, when the accident occurred, he had moved forward

(i.e., north) along Richmond Road, to a location approximately 50 meters

north of the point where Walmsley Brothers had started applying new

asphalt in the southbound lane. The new asphalt in the southbound lane to

the west of his new location had been on the road for at least two and

possibly three hours by that point, and had been compacted by the paver

and all three rollers such that there was no further work to be done in that

area.

iii. Mr Albert said that he had moved forward to that location because there was

a hill, and he “wanted to be up over that hill so [he] could see oncoming

traffic”.

iv. Mr Albert testified that, to stop northbound traffic and facilitate/direct the

passage of southbound traffic, he then stepped from a position on the east

shoulder of the road into the open lane of traffic, (i.e., the normally

northbound lane of Richmond Road), with his handheld sign indicating

“STOP” to the south and “SLOW to the north. In particular, he says he

physically moved into the lane:

1. to stop northbound vehicles approaching from the south, (gradually

bringing two or three vehicles to a stop, and their formation of a line

to the south); and

2. so that southbound traffic being directed into the northbound lane

and past the paving operation would be able to see him when they

approached, at which point he would direct them to merge back into

the southbound lane, and onto the new asphalt, by a sweeping

pointing gesture made with his left arm and hand as he continued to

hold his SLOW/STOP sign with his other hand.

Page: 45

d. Mr Albert testified that, at approximately 2:00pm, he saw two southbound

motorcycles approaching him in what was normally the northbound lane of

Richmond Road, as he was standing in that lane. He says that, when he first saw

or noticed the two motorcycles coming towards him, they were approximately 200

meters away. The first motorcycle had two persons on it, and the second

motorcycle was following behind the first in an alignment he otherwise could not

recall. Nor could he recall the distance between Ms MacLean’s motorcycle and the

edge of the new asphalt, or the speed at which she was travelling, when he first saw

her.

e. According to Mr Albert, the two motorcycles were not the leading southbound

vehicles travelling towards him at the time, but were instead following behind other

southbound vehicles.

f. Mr Albert testified that, when the motorcycles approached him, he directed Ms

MacLean back into the southbound lane, (and onto the new asphalt in that lane), by

“just kind of pointing her to the southbound lane”.

g. In response, Mr Albert says, Ms MacLean “started to slow down and slowly drift

towards … the lip” of the new asphalt, “near the centre line of the road”. In

particular, he says, when Ms MacLean saw him and his “SLOW” sign, she started

to slow down to a speed of approximately 10 to 15 kilometers per hour, and

approached or “drifted” – in what he described as a “slow casual drift” - towards

the centre line of the road, without any noticeable turning of her front wheel.

h. According to Mr Albert, Ms MacLean approached the edge of the new asphalt in a

manner that was “pretty close to parallel” to the edge of the new asphalt, at what he

personally thought was “very little angle”. In that regard, Mr Albert noted that he

himself rode a motorcycle, and thought the appropriate angle to approach the

relevant change in surface height would be “probably 45” or “maybe even a 30”

degree angle. However, he says Ms MacLean’s angle of approach was less than

that, which caused him concern; i.e., as she was “running parallel with a raised

surface”, making him feel that her “tires weren’t going to catch”, and that

“something was going to give” at some point.

i. Mr Albert says Ms MacLean appeared to hesitate as she slowed down, and

“eventually drifted over” such that she was riding “along the edge” of the new

asphalt, until she reached a location approximately 10 meters in front of him. At

that point, Mr Albert says, the front tire of Ms MacLean’s motorcycle then “caught”

on the edge of the new asphalt and suddenly “jerked to the right”, without Mr Albert

being able to say if it was forced to the right after it “caught” on the edge of the

new asphalt, or if it was deliberately turned to the right by Ms MacLean. In any

event, Mr Albert says, that catching of the motorcycle’s front tire on the new asphalt

then caused it to go “up onto the ledge” and “up onto the asphalt”, and the

motorcycle’s rear tire to “bounce up” onto the new asphalt as well, at which point

Page: 46

Ms MacLean “went over” on her left side.³⁴Mr Albert said that entire process

happened “like, almost like instantly, like”. In that regard, Mr Albert denied seeing

the rear tire of Ms MacLean’s motorcycle slide to the left along the asphalt lip, or

spray any asphalt out behind it.

j. However, Mr Albert testified that he did see the “second motorcycle”, (i.e., the one

operated by Mr Miles), approach and pass over the transition onto the new asphalt

without any difficulty. In particular, according to Mr Albert, Mr Miles slowed his

motorcycle down as well, made a “little jaunt” to the left before turning his front

wheel back to the right so that it was “angled towards” the new asphalt, (i.e., that

Mr Miles first turned to the left before he then turned back to the right), prior to

making it up onto the new asphalt without any hesitation or difficulty.

k. Mr Albert says that he “rushed over” to see if Ms MacLean was okay after the

accident. Although he admittedly had no memory of going onto the new asphalt,

he testified that the area of new asphalt where Ms MacLean fell had been

compacted, that he did not have any concerns about its hardness, and that it was

ready for vehicle use. In that regard, he says he did not see any asphalt sprayed out

into the northbound lane from the edge of the new asphalt on the day of the accident.

l. Mr Albert recalled that someone in a nearby car called “911” for emergency

services, and that he and the other flaggers then stopped the flow of traffic through

the construction zone “for a short time while the ambulance and paramedics were

all there”.

[22] Finally, testimony provided by Mr Dutchak included the following indications:

a. At the time of trial, he had been an employee of Elgin County for approximately 25

years, during which he progressively served as an engineering technologist,

technical services officer and manager of road infrastructure before assuming his

role as the county’s deputy director of engineering; a position he had held for 12

years.

b. In addition to providing and/or confirming evidence relating to such matters as the

county’s responsibility for maintaining Richmond Road, the nature of that road,

and the manner in which Elgin County came to entrust completion of the relevant

paving project to Walmsley Brothers, (outlined in the undisputed facts set forth

earlier), Mr Dutchak testified that, subject to the parameters of the contract, the

county generally left operations within paving construction zones, including

movement of flaggers, up to Walmsley Brothers. It purposely did not provide

³⁴As Mr Albert described it, Ms MacLean “kind of went over the handlebars” or “kind of rolled over the handlebars”

to her left, onto the new asphalt, and her passenger “then kind of landed on top of her”, “pretty close” to the same

time. Mr Albert says their motorcycle then “kind of dropped” or “fell” to one side, without sliding along the road.

Page: 47

Walmsley Brothers with any specific instructions about such matters. Nor did

Walmsley Brothers provide the county with a copy of its traffic protection plans.³⁵

c. Mr Dutchak said the County nevertheless did have a general expectation that

vehicles would be driving on newly placed asphalt, within construction zones,

“once it’s ready for traffic”. He said the county had no concerns in that regard

because a contractor like Walmsley Brothers had an economic incentive not to open

such a road before it was ready for traffic. In particular, Mr Dutchak emphasized

that:

i. if a road “wasn’t ready to handle traffic, it could be potentially damaged”,

creating a “defect that would fall outside the contract requirements and

specifications”;

ii. if a road was damaged, a contractor accordingly “would be responsible for

remedying that defect”, and otherwise “would be penalized if the end result

did not meet the specifications”, by the county not paying for such work;

and

iii. from the county’s perspective, there accordingly would be “no advantage

for a contractor to allow the road to be open prematurely”.

d. Mr Dutchak admittedly was not present at the construction site on Richmond Road

when the accident happened. Nor was he able to attend the site that afternoon after

learning, (from a member of his staff who happened to be working near the

construction zone, collecting asphalt “tickets” from the drivers of trucks dumping

loads of asphalts into the paver), that the accident had occurred. Mr Dutchak

accordingly was unable to offer any direct testimony concerning the mechanics of

the accident, or the state of the road at the time of the accident or shortly thereafter.

e. However, after learning of the accident, Mr Dutchak immediately notified his

supervisor Mr Watters, who agreed to attend the site that afternoon and take the

photographs now found at Tab 4 of Exhibit 2. Mr Dutchak had the opportunity to

review those photographs the day after they were taken, Based on those

photographs, Mr Dutchak testified during his examination in chief at trial that:

i. he had no concerns about the manner in which Richmond Road was being

paved;

³⁵However, as mentioned above, it was Mr Dutchak’s understanding that Walmsley Brothers was required to prepare

and complete such a plan on a daily basis, (by choosing a typical layout from “Book 7” of the Ontario Traffic Manual,

and modifying it to the needs of that day’s specific work location), and to keep the plan available for production to

attending Ministry inspectors if and as necessary.

Page: 48

ii. he did notice the “debris” or “loose aggregate” that had been “dislodged

from the mat at a specific location” where the accident apparently had

occurred, which was “very different from the rest of the road edge”;

iii. he also noticed “some marring of the pavement around that site”, and felt

“there had to be something significant occur to mar the surface of the mat

in that fashion”;

iv. he nevertheless had no concerns about what he saw in terms of the new

asphalt, because it “was consistent with what [he had] seen for many years

with the paving operation” of Walmsley Brothers;

v. he similarly had no concerns about the amount of compaction of the new

asphalt; and

vi. he accordingly did not have any concerns about “the suitability of the new

asphalt for vehicular use”.³⁶

f. Mr Dutchak testified that a “bump” sign would not have been required, in the

circumstances, to alert motorists to the fact they would be crossing over the raised

edge of new asphalt; i.e., because such signs were intended to signal possible

transfer hazards as a vehicle was moving forward. However, he acknowledged that

an “uneven lane” sign could have been used to assist motorists in identifying a

“potential longitudinal hazard” created by the edge of new asphalt they were being

asked to go over, when being directed back into the southbound lane.

[23] I will comment more specifically on some of this additional evidence from these various

witnesses in the course of my analysis below.

[24] Before doing so, however, I pause to outline legislation and general principles applicable

to determination of such disputes.

General principles

[25] As noted above, the parties generally agreed that the liability determinations to be made in

this case would turn in large measure on application of the Municipal Act, 2001, supra, the

Occupiers’ Liability Act, supra, and/or the Negligence Act, supra.

[26] There also was no dispute that application of such legislation involved consideration of

causation, as that concept has been developed by our courts.

36

However, as noted below, Mr Dutchak then indicated, in cross-examination, that the situation depicted in the

photographs, (e.g., with fresh asphalt apparently having been sprayed out from the edge of new asphalt by a vehicle

trying to go across it), was atypical and signaled the presence of some form of “different situation” that would cause

him concern.

Page: 49

[27] Before proceeding further, I therefore pause to note various legislative provisions and

principles governing such matters.

MUNICIPAL ACT, 2001

[28] In relation to the Municipal Act, 2001, supra, courts generally must be mindful of the

general statutory scheme and corresponding analytical framework applicable to a case of

this nature.³⁷In that regard:

a. Section 44 of the Municipal Act, 2001, supra, sets out the statutory scheme pursuant

to which a municipality³⁸is required to maintain highways under its jurisdiction,

and the consequences for default when damages ensue.³⁹

b. Subsection 44(1) defines the duty, and reads in part as follows: “The municipality

that has jurisdiction over a highway … shall keep it in a state of repair that is

reasonable in the circumstances, including the character and location of the

highway”.

c. A correlative of the duty to keep such a highway in a “state of repair” means the

duty is breached if the highway is in a state or condition of “disrepair” or “non-

repair”. However, while s.44(1) is mandatory, it incorporates the concept of

reasonableness. A municipality is only required to keep the road in a state of repair

that is “reasonable in the circumstances”.

d. Subsection 44(2) creates legal liability for default in complying with s.44(1), and

reads as follows: “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.”

37

In Guiliani v. Halton (Regional Municipality), [2011] O.J. No. 5845 (C.A.), at paragraphs 10-14, our Court of

Appeal provided a helpful summary and overview of the relevant statutory scheme, and the overview that follows

tracks those comments in large measure.

³⁸Pursuant to section 1 of the Municipal Act, 2001, supra, a “municipality” in this context means “a geographic area

whose inhabitants are incorporated”. The same section defines “county” as “an upper tier municipality that was a

county … on the day before the legislation came into force”. There was no dispute that the defendant Corporation of

the County of Elgin was, at all material times, a “municipality” within the meaning of the Municipal Act, 2001, supra.

39

The Supreme Court of Canada has emphasized, in Housen v. Nikolaisen, [2002] S.C.J. No. 31, at paragraph 171,

that it is unnecessary for our courts to impose a common law duty of care where a statutory one clearly exists. In

relation to highway repair, I accordingly agree with the view that common law principles of tort and negligence law

now have been subsumed in the provisions of s.44 of the Municipal Act, 2001, supra, and the authorities interpreting

and applying them, thereby forming a sufficient and governing “code of legal requirements and principles” to resolve

such disputes. See Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.), at paragraph 185, affirmed [2012]

O.J. No. 2546 (C.A.).

Page: 50

e. As liability attaches to a specific default, it accordingly is necessary, in determining

whether a municipality is liable, to identify the default or defaults that are said to

have fallen below the “reasonableness in the circumstances” test set out in s.44(1).

In that regard, a specific condition of non-repair of the roadway can involve any

aspect of the road⁴⁰.

f. However, s.44(2) clearly incorporates a causation requirement, and the

corresponding need for causation analysis. A municipality is liable only for

damages sustained by a person “because of the default”; i.e., in relation to defaults

which cause damages.

g. Subsection 44(3) then goes on to set out three possible defences to liability of a

municipality under ss.44(1) and 44(2) of the Municipal Act, 2001, supra, and reads

in part as follows:⁴¹

Despite subsection (2), a municipality is not liable for failing to keep a

highway … in a reasonable state of repair if,

(a)

it did not know and could not reasonably have been

expected to have known about the state of repair of the

highway …;

(b)

(c)

it took reasonable steps to prevent the default from arising;

or

at the time the cause of action arose, minimum standards

established under subsection (4) applied to the highway …

and to the alleged default and those standards have been

met.

h. The three subparagraphs of s.44(3) are disjunctive, such that a municipality will not

be liable if any one of the three defences applies.⁴²

i. Subsection 44(4) of the Act then confers authority on the Minister of Transportation

to establish the minimum standards referred to in s.44(3)(c), and reads in part as

⁴⁰See Johnston v. Milton (Town), [2006] O.J. No. 3232 (S.C.J.), at paragraph 76, varied but generally affirmed, [2008]

O.J. No. 2157 (C.A.).

41

While I include this sub-paragraph and the three following sub-paragraphs for the sake of completeness, (i.e., to

outline the relevant legislative framework of section 44 of the Municipal Act, 2001, supra, in its entirety), the

defendants in this case eventually confirmed, in the circumstances outlined in more detail below, their position that

the statutory defences set forth in s.44(3) of the legislation had no application in this case.

⁴²See Thornhill v. Shalid, [2008] O.J. No. 372, at paragraph 107.

Page: 51

follows: “The Minister of Transportation may make regulations establishing

minimum standards of repair for highways … or any class of them”.

j. Subsection 44(5) makes it clear that those minimum standards “may be general or

specific in their application”.

k. The onus is on a claimant to prove, on a balance of probabilities, that a road was in

a state of disrepair at the time of an accident, and that the specified non-repair was

the cause of the accident in question.⁴³

l. Once those two requirements have been met, (suggesting prima facie liability),⁴⁴

the onus then shifts to a municipality to establish, on a balance of probabilities, that

liability for the state of disrepair and resulting accident is negated by application of

one or more of the statutory defences outlined in s.44(3) of the Municipal Act, 2001,

supra.⁴⁵

m. As noted above, s.44(2) of the Act expressly preserves the ability of municipalities

to temper any liability on their part through application of the Negligence Act,

supra. In that regard, the defendant bears the usual onus of proving, on a balance

of probabilities, any alleged contributory negligence on the part of the plaintiff.

[29] Reflecting the provisions of section 44 of the Municipal Act, 2001, supra, case law has

established a four-step test for analyzing this statutory cause of action against a

municipality:

a. Non-repair: The plaintiff must prove, on a balance of probabilities, that the

municipality failed to keep the road in question in a reasonable state of repair.

b. Causation: The plaintiff must prove that the “non-repair” caused the accident.

c. Statutory Defences: Proof of “non-repair” and causation establish a prima facie

case of liability against a municipality. The municipality then has the onus of

establishing, on a balance of probabilities, that at least one of the three defences in

s.44(3) of Act applies.

⁴³See Johnston v. Milton (Town), supra, at first instance, at paragraph 76; and Deering v. Scugog (Township), supra,

at first instance, at paragraph 185, (decision affirmed as noted above).

44

A prima facie case is established against a municipality once it has been shown that a road is not in a reasonable

state of repair and that the damages claimed were caused by want of repair. See Rogers, The Law of Canadian

Municipal Corporations, (2d.ed.), quoted with approval in Bishop v. Durham, 2007 CarswellOnt 10163, at paragraph

35.

⁴⁵Again, see Johnston v. Milton (Town), supra, at first instance, at paragraph 76; and Deering v. Scugog (Township),

supra, at first instance, at paragraph 185, (decision affirmed as noted above). See also Docherty v. Lauzon, [2010]

O.J. No. 5017 (S.C.J.), at paragraph 200.

Page: 52

d. Contributory Negligence: A municipality that cannot establish any of the three

defences in s.44(3) will be found liable. However, the municipality may then

attempt to establish that the plaintiff’s driving caused or contributed to the

plaintiff’s injuries.⁴⁶

[30] Not surprisingly, concepts inherent in a municipality’s duty to keep a highway in a “state

of repair” that is “reasonable in the circumstances” have been the subject of considerable

judicial consideration and elaboration over the years.

[31] Additional principles and observations, guiding interpretation and application of the above

provisions of the Municipal Act, 2001, supra, include the following:

a. In relation to road maintenance, municipalities are not insurers of the safety of the

travelling public, and their obligation is not absolute.⁴⁷The standard of care

required of a municipality, to fulfill its duty under s.44(1) of the Municipal Act,

2001, supra, is to keep a road only “in such a reasonable state of repair that those

requiring to use it may, exercising ordinary care, travel upon it in safety”.⁴⁸In

determining whether a municipality failed to keep the road in question in a

reasonable state of repair, the applicable legal test accordingly is whether the

relevant road, at the relevant material time, was sufficiently in repair that users of

the road, exercising ordinary or reasonable care, could use it in safety.⁴⁹

b. It is important to emphasize that a municipality’s duty of repair is limited to

ensuring that its roads can be driven safely by “ordinary drivers” exercising

reasonable care.⁵⁰The term “ordinary drivers” includes those of average driving

ability, and not simply model drivers who are perfect or prescient, especially

perceptive, or gifted with exceptionally fast reflexes. It includes the ordinary driver

who is of average intelligence, pays attention, and uses caution when conditions

warrant, but is human and sometimes makes mistakes.⁵¹Care nevertheless must be

⁴⁶See Fordham (Litigation guardian of) v. Dutton-Dunwich (Municipality), [2014] O.J. No. 5938 (C.A.), at paragraph

26; and Smith v. Safranyos, [2018] O.J. No. 4765 (C.A.), at paragraphs 26-29.

47

See McCready v. Brant (County), [1939] S.C.R. 278, at p.282; and Deering v. Scugog, supra, at first instance, at

paragraph 101.

48

See Partridge v. Rural Municipality of Langenburg, [1929] 3 W.W.R. 555 (Sask.C.A.), quoted repeatedly with

approval in numerous cases, including the following: Housen v. Nikolaisan, supra, at paragraph 38; Johnston v. Milton

(Town), supra, (C.A.), at paragraph 35; and Morsi v. Fermar Paving Ltd., [2011] O.J. No. 3960 (C.A.), at paragraphs

18-19.

⁴⁹See Smith v. Safranyos, supra, at paragraph 31.

⁵⁰See Fordham (Litigation guardian of) v. Dutton-Dunwich (Municipality), supra, at paragraph 7.

⁵¹See Deering v. Scugog, supra, at first instance, at paragraph 154; and Fordham (Litigation Guardian of) v. Dutton-

Dunwich (Municipality), supra, at paragraph 28.

Page: 53

taken not to press the allowance for ordinary drivers making mistakes too far, so as

to negate the principle that municipalities are not insurers; a municipality has no

duty to keep its roads safe for those who drive negligently.⁵²Again, the standard

of care of road authorities rests on the notion of the ordinary motorist driving

without negligence.⁵³The “ordinary driver”, exercising ordinary care, does not

include those who do not pay attention, drive at excessive speeds, or who are

otherwise negligent.⁵⁴The “ordinary driver” is expected to adjust his or her

behavior according to the nature of the roadway and driving conditions, and such

adjustments may include driving below the speed limit.⁵⁵Moreover, the “ordinary

driver” is one with the skill and care expected of a reasonable driver, “from the

general driving pool”, at the time and place in question, and not some more limited

pool of drivers having limited experience or qualifications comparable to a specific

plaintiff.⁵⁶

c. While a municipality has no duty to keep its road safe for those who drive

negligently, it also must be remembered that contributory negligence of a particular

claimant does not negate the possibility of a municipality having breached its

statutory duties of road repair in a way that also caused a particular accident. In

particular:

i. It is wrong and bad law to confuse the issue of contributory negligence with

consideration of an ordinary motorist’s ability to proceed through a section

of road safely, using due care.⁵⁷

ii. Contributory negligence is not a bar to a finding of non-repair, (i.e., that a

municipality failed to keep the road in question in a reasonable state of

repair), and a “non-repair” action relying on the Municipal Act, 2001, supra,

can succeed even where a negligent driver was the immediate cause of the

underlying accident. As long as road conditions that would imperil ordinary

⁵²See MacMaster v. York, [1997] O.J. No. 3928 (Gen.Div.), at paragraph 99, affirmed, [2000] O.J. No. 1404 (C.A.);

Docherty v. Lauzon, supra, at paragraph 202; Fordham (Litigation guardian of) v. Dutton-Dunwich (Municipality),

supra, at paragraphs 7 and 29; and Smith v. Safranyos, supra, at paragraph 31.

⁵³See Fordham (Litigation guardian of) v. Dutton-Dunwich (Municipality), supra, at paragraph 29.

⁵⁴See Deering v. Scugog, supra, at first instance, at paragraph 155; and Fordham (Litigation guardian of) v. Dutton-

Dunwich (Municipality), supra, at paragraph 7.

⁵⁵See Ferguson v. Brant (County), [2013] O.J. No. 238 (S.C.J.), at paragraph 17; and Deering v. Scugog, supra, at

first instance, at paragraph 262.

⁵⁶Adams v. Cargill, [2000] O.J. No. 5595 (S.C.J.), at paragraph 24.

⁵⁷See Deering v. Scugog (Township), supra, at paragraph 142.

Page: 54

drivers constitute a “but for” cause of the accident, a liability finding against

a municipality may be appropriate.⁵⁸

d. Each case dealing with alleged breach of a municipality’s statutory duties of road

maintenance and repair is significantly dependent on its own facts. In assessing

what is “reasonable in the circumstances”, it is important to keep in mind the

particular characteristics of the road in question. There cannot be a universal

standard of care for all roads within a municipality. To the contrary, the applicable

standards of care will be relative, different and diverse; what is a reasonable state

of repair is a question of fact, depending upon all the surrounding circumstances.⁵⁹

Regard must be had to such matters as the locality in which the road is situated,

(e.g., whether in a city, town, village, or township), the situation and

character/composition of the road therein, the road’s history, whether its use is

required by many or by few, the number of roads to be kept in repair by the

municipality, the means at the municipality’s disposal for that purpose, and the

requirements of the public.⁶⁰

e. Past cases certainly have held that the duty requires a municipality to take remedial

steps when it knows or ought to know of a “highly special” and “highly dangerous”

situation at a certain location on the highway that “creates a risk of serious and

imminent harm to motorists”; a situation without which the highway would be quite

passable and usable for traffic to persons reasonably using it.⁶¹However, it should

be remembered that the general negligence standard applies. A municipality’s duty

of repair arises not just in a “highly special dangerous situation at a certain location

in the highway” but in any situation where road conditions create an unreasonable

risk of harm to users of the highway. The former is simply a subset of the latter.⁶²

f. A municipality’s duty of repair includes an obligation to erect and maintain proper

signs, and where hazards are hidden or not readily apparent to users of the road, a

municipality may have a duty to install warning signs. However, a municipality’s

duty to install signs is simply an application of the general standard of care. Signs

⁵⁸See Smith v. Safranyos, supra, at paragraph 35.

59

See Housen v. Nikolaisan, supra, at paragraph 38; and Tourand v. Meadow Lake (Rural Municipality No. 588),

[2000] S.J. No. 100 (Q.B.), at paragraph 71.

60

See Foley v. East Flamborough (Township), [1898] O.J. No. 76 (Div.Ct.), at paragraphs 8-9, reversed on other

grounds (1899), 26 O.A.R. 43 (C.A.); Mighton v. Wellington, [1953] O.R. 290 (H.C.J.), at paragraph 15; and Docherty

v. Lauzon, supra, at paragraph 201.

61

See McAlpine v. Mahovolich (1979), 9 C.C.L.T. 241 (Ont.C.A.), at p.247; Montani v. Matthews (1996), 29 O.R.

(3d) 257 (C.A.), at p.270; Bisoukis v. Brampton (City) (1999), 46 O.R.(3d) 417 (C.A.), at paragraphs 77-78; and

MacMillan v. Ontario (Minister of Transportation & Communications), [2001] O.J. No. 1891 (C.A.), at paragraphs

31 and 4, leave to appeal dismissed [2001] S.C.C.A. No. 348.

⁶²Frank v. Central Elgin (Municipality), [2010] O.J. No. 3736 (C.A.), at paragraph 10.

Page: 55

are required only if, without them, an ordinary driver exercising reasonable care

would be exposed to an unreasonable risk of harm. Thus, the mere presence of a

hazard does not require a municipality to put up a warning sign; the hazard must be

one that puts reasonable drivers at risk. Municipalities owe no duty to warn of

hazards that present an unreasonable risk of harm only to drivers who do not drive

with reasonable care.⁶³Moreover, it must also be remembered that, depending on

the particular facts of a case, the presence or absence of signs may or may not have

been a cause of the underlying accident.⁶⁴

[32] While the potential liability of Elgin County in this litigation clearly needs to be addressed

by the above legislative provisions and principles, the parties acknowledge that the

potential independent liability of Walmsley Brothers needs to be approached on a different

basis, (i.e., as Walmsley Brothers is clearly not a municipal corporation), even if the

resulting standards of liability may turn out to be quite similar.

OCCUPIERS’ LIABILITY ACT

[33] In that regard, the parties to this litigation were agreed that the liability of Walmsley

Brothers was capable of being addressed and assessed by reference to the Occupiers’

Liability Act, supra, and the general principles which our courts have emphasized in

relation to matters governed by that legislation. I accordingly will turn to a consideration

of those legislative provisions and principles shortly.

[34] Before doing so, I nevertheless think it necessary to address an alternative submission made

by counsel for the plaintiffs, suggesting that the liability of Walmsley Brothers also was

capable of being addressed on the basis of common law principles of negligence. In that

regard:

a. Plaintiff counsel drew my attention to our Court of Appeal’s decision in Moral v.

Fermar Paving Ltd., 2011 ONCA 577, which involved a claim against a Regional

Municipality and a paving company, in relation to a single vehicle accident that

occurred in an area of curving roadway where the surface of the roadway recently

had been the subject of work involving the application of new asphalt and a foam

surface treatment. The vehicle left the roadway in that area, resulting in an collision

with a nearby telephone pole and death of the driver. The Court of Appeal

intervened to set aside the trial judge’s finding of liability against both defendants,

indicating that the trial judge had failed to apply the proper and required standard

of care analysis, and that the accident actually had been caused by the driver

speeding and ignoring posted road sign warnings. In the course of its analysis, the

Court of Appeal differentiated between determinations of potential liability of the

⁶³See Deering v. Scugog (Township), supra, at paragraph 149; and Fordham (Litigation guardian of) v. Dutton-

Dunwich (Municipality), supra, at paragraphs 31 and 38.

⁶⁴See Edward v. Mainroad Contracting Ltd., [1993] B.C.J. No. 462 (S.C.), at paragraph 35-37.

Page: 56

Regional Municipality, based on the Municipal Act, 2001, supra, and

determinations of potential liability of the paving company, which were said to be

governed by a duty of care to the driver that “was a common law duty, not a

statutory duty”.⁶⁵In relation to that common law duty, our Court of Appeal then

indicated that the applicable and appropriate standard of care was that described by

the Supreme Court of Canada in Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at

paragraph 28; i.e., indicating that “conduct is negligent if it creates an objectively

unreasonable risk of harm”, such that “to avoid liability, a person must exercise the

standard of care that would be expected of an ordinary, reasonable and prudent

person in the same circumstances”, with “the measure of what is reasonable”

depending on “the facts of each case, including the likelihood of a known or

foreseeable harm, the gravity of that harm, and the burden or costs which would be

incurred to prevent the injury”, as well as “external indicators of reasonable

conduct, such as custom, industry practice, and statutory or regulatory standards”.

b. In Morsi v. Fermar Paving Ltd., supra, our Court of Appeal makes no mention

whatsoever of the Occupiers’ Liability Act, supra, which might suggest on its face

that the liability of contractors, in relation to claims relating to work done by

contractors on public highways, should always be approached by application of

general common law principles of negligence rather than the legislative scheme

established by the Occupiers’ Liability Act,, supra. In my view, however, such a

reading of the case is inappropriate and too simplistic, as it ignores other important

considerations. Without limiting the generality of the foregoing:

i. The Legislature has indicated, albeit in a somewhat indirect fashion, that the

Occupiers’ Liability Act, supra, may apply to a public highway or road if

the legislated definitions of “occupier” and “premises” are satisfied on the

facts of any particular case. In particular, while s.10(1) makes it clear that

the legislation generally binds the Crown, s.10(2) of the legislation then

provides that the Act “does not apply to the Crown or to any municipal

corporation where the Crown or the municipal corporation is an occupier

of a public highway or a public road”. [Emphasis added.] In my view,

there would have been no need for the Legislature to enact that s.10(2)

exemption, and negate its application to the Crown and municipal

corporations in such circumstances, if it did not contemplate potential

application of the Occupiers’ Liability Act, supra, in relation to all others

who might be characterized as an “occupier” of a “public highway “ or

“public road”.

ii. I note that our Court of Appeal, in Cochrane v. North York (City), 1989

CarswellOnt 4942 (C.A.), expressly indicated that satisfaction of the

legislated definitions of “occupier” and “premises”, set forth in the

⁶⁵See Morsi v. Paving Ltd., supra, at paragraph 24.

Page: 57

Occupier’s Liability Act, supra, could make a party an “occupier” of a

public highway within the meaning of the legislation.

iii. Our appellate courts repeatedly have held that, where particular fact

situations are governed by the Occupiers’ Liability Act, supra, “it was the

clear intention of the Act to replace, refine and harmonize the common law

duty of care owed by occupiers of premises to visitors on those premises”.⁶⁶

[Emphasis added.] In particular, that legislative intention is evident from

section 2 of the legislation, (outlined in further detail below), making it clear

that the provisions of the Act, (subject to certain indicated limitations), were

to “apply in place of the rules of the common law that determine the care

that the occupier of premises at common law is required to show for the

purpose of determining his liability in law in respect of dangers to persons

entering on the premises”. [Emphasis added.]

iv. In my view, the inescapable conclusion is that, contrary to suggestions made

by plaintiff counsel in this case, duties imposed by the common law of

negligence and duties imposed by the Occupiers’ Liability Act, supra, are

not capable of being applied in the alternative in situations where the latter

applies. In particular, although that Act can never apply to the Crown or

municipal corporations in relation to a public highway or roadway, where

the circumstances prevailing at the time of a particular accident warrant a

conclusion that an involved contractor was an “occupier” of such a public

highway or roadway, (either of which would be “lands” capable of

satisfying the definition of “premises” in the Occupiers’ Liability Act,

supra), the common law of negligence otherwise applicable to

determination of the contractor’s liability is displaced by the legislated

scheme set forth in the Occupiers’ Liability Act, supra.

v. In Morsi v. Fermar Paving, supra, there is no reference to the Occupiers

Liability Act, supra, but also nothing to indicate any suggestion having been

made, to the trial judge or Court of Appeal, that liability of the relevant

contractor should be determined by anything other than the common law of

negligence. Moreover, that approach arguably was consistent with the

particular facts underlying that case, where the relevant contractor

apparently had completed its work on the relevant roadway before the

accident; i.e., in circumstances where the contractor accordingly was no

longer “in physical possession” of the roadway, no longer had

“responsibility for and control over the condition” of the roadway “or the

activities carried on there”, or “control over persons allowed to enter” the

roadway. In other words, the situation at the time of the relevant accident

in Morsi v. Fermar Paving, supra, was such that the relevant contractor

arguably had ceased to be an “occupier” of the relevant roadway, according

⁶⁶See, for example, Waldick v. Malcolm, [1991] 2 S.C.R. 456, at paragraph 40.

Page: 58

to the definition set forth in the Occupiers’ Liability Act, supra. In such

circumstances, there arguably was no basis for application of that

legislation, in a manner displacing the common law of negligence otherwise

applicable to determining the potential liability of the relevant contractor.

c. In my view, the situation in the case before me is clearly distinguishable, in that

regard, from that which existed in Morsi v. Fermar Paving, supra. In particular, at

the time of the underlying accident in this case:

i. The relevant stretch of roadway clearly was a form of “lands”, and therefore

“premises” within the broad definition of that term set forth in the

Occupiers’ Liability Act, supra.

ii. Walmsley Brothers was still on site, and in my view in “physical

possession” of the relevant stretch of roadway, with immediate

“responsibility for and control over the condition” of that stretch of

roadway. In any event, Walmsley Brothers unquestionably had “control

over persons allowed to enter” that stretch of roadway, insofar as Walmsley

Brothers was using its employees to halt traffic approaching that stretch of

roadway, and allowing traffic to use that roadway only in accordance with

the directions, (given through signs, gestures and/or words), being given by

employees of Walmsley Brothers. Walmsley Brothers therefore also was

an “occupier” of the relevant “premises” at the time of the accident

underlying this litigation.

iii. The potential liability of Walmsley Brothers for the underlying accident

accordingly is governed by the provisions of the Occupiers’ Liability Act,

supra; provisions which, in the circumstances, displace application of the

common law of negligence as far as Walmsley Brothers is concerned.⁶⁷

[35] In my view, the parties in this litigation accordingly were correct in their assessment that

the potential liability of Elgin County is governed primarily by the Municipal Act, 2001,

supra, and the potential liability of Walmsley Brothers is governed primarily by the

Occupiers’ Liability Act, supra.

[36] In relation to the Occupiers’ Liability Act, supra:

a. The Act generally establishes and sets out the duty of care owed by occupiers of

premises to persons who come onto those premises, with section 1 of the

legislation:

67

Of course, the provisions of s.10(2) of the Occupier’s Liability Act, supra, exempting the Crown and municipal

corporations from application of the Act when they occupy a “public highway or a public road”, have no application

in relation to Walmsley Brothers.

Page: 59

i. defining “premises” so as to include “lands and structures, or either of

them”; and

ii. defining “occupier” so as to include a party “who is in physical possession

of premises” or “who has responsibility for and control over the condition

of premises or the activities there carried on, or control over persons allowed

to enter the premises”.⁶⁸

b. One of the principal purposes of the Occupiers’ Liability Act, supra, was to replace

the “somewhat obtuse" common law relating to occupiers’ liability by a generalized

duty of care based on the “neighbour” principle set down in Donoghue v. Stevenson,

[1932] A.C. 562 (H.L.).⁶⁹In that regard:

i. Pursuant to section 3(1) of the Act, an occupier of premises now generally

owes “a duty to take such care as in all the circumstances of the case is

reasonable to see that persons entering on the premises … are reasonably

safe while on the premises”, and where circumstances warrant, that requires

positive action on the part of occupiers to make their premises reasonably

safe.

ii. Of necessity, that statutory duty on occupiers is framed quite generally.

iii. The duty to take reasonable care in the circumstances to make the premises

safe does not change, but the factors relevant to an assessment of what

constitutes reasonable care necessarily will be very specific to each fact

situation. They may include, among other things, factors such as the

following: weather; the time of year; the size, nature and use of the

particular area where an accident occurred; and the cost of preventative

measures.⁷⁰

c. While the statute creates a positive obligation upon occupiers to take reasonably

necessary care to keep those who come on to their premises reasonably safe, it does

not create a presumption of negligence arising from the fact of injury. The overall

onus of proof remains on a plaintiff to prove, on a balance of probabilities, that a

defendant occupier failed to meet the standard of reasonable care. In particular,

where a plaintiff is injured on premises, he or she must still be able to pinpoint some

⁶⁸Again, and for the reasons outlined above, it was not disputed that, for purposes of this action, the road where the

underlying accident took place should be regarded as “premises” in respect of which the defendant Walmsley Bros.

Limited was an “occupier”.

⁶⁹See Malcolm v. Waldick, [1991] 2 S.C.R. 456, at paragraph 19.

⁷⁰Ibid., at paragraphs 32-33, and 45. The intensely fact-specific nature of the exercise required in such cases has also

been emphasized by our Court of Appeal; e.g., in Kerr v. Loblaws, 2007 ONCA 371, at paragraph 24.

Page: 60

act or failure to act on the part of the occupier, which caused the injury complained

of, before liability can be established.⁷¹

d. In fulfilling its statutory duty, it is not incumbent on a defendant occupier to guard

against every possible accident that might occur. The applicable standard of care

is one of reasonableness; a standard that is not absolute, and which requires neither

perfection effectively transforming an occupier into an “insurer”, (e.g., by

essentially requiring an occupier to remove every possibility of danger or sanitize

an environment to a degree negating all inherent risk), nor unrealistic or impractical

precautions against known risks. An occupier’s failure to meet the required

standard of care accordingly is not established merely because a hazard or risk of

harm is present. What is required is a balancing of what may be a reasonable course

of conduct against the potential for harm; i.e., to ensure that occupiers do not breach

the required standard of care by creating or failing to address an objectively

unreasonable risk of harm. Moreover, in discharging its duty to make premises

reasonably safe, an occupier is only required to exercise care against dangers that

are sufficiently probable to be included in the category of reasonably foreseeable

contingencies. Where there is a known danger, the occupier must have a reasonable

system in place to ensure that users of a property will be reasonably safe from

experiencing an accident because of such conditions.⁷²

e. In particular, a defendant occupier may refute any suggested breach of the statutory

duty, and/or demonstrate the taking of reasonable care appropriate in the

circumstances, by showing that it had a reasonable plan or scheme in place, (for

example, to address possible safety concerns and minimize hazards by inspection,

maintenance and monitoring), that was being followed at all relevant times. In that

regard:

i. The plan need not be foolproof, or reduced to writing, so long as it is

reasonable under all the circumstances.

⁷¹See, for example: Garofaolo v. Canada Safety Ltd., [1998] O.J. No. 302 (S.C.J.), at paragraph 30; St. Louis-Lalonde

v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721 (S.C.J.), at paragraph 27; Gemelus v. Ecole Secondaire

Catholique Renaissance, [2010] O.J. No. 3830 (S.C.J.), at paragraph 21; Canada v. Ranger, [2011] O.J. No. 2352

(S.C.J.), at paragraph 32; Nandial v. Toronto Transit Commission, [2014] O.J. No. 3781 (S.C.J.), at paragraph 8; and

Martin v. Barrie (City), [2016] O.J. No. 6433 (S.C.J.), at paragraph 9.

⁷²See, for example: Garofaolo v. Canada Safety Ltd., supra, at paragraphs 28 and 31; Alchimowicz v. Schram, [1999]

O.J. No. 115 (C.A.), at paragraph 13; Britt v. Zagjo Holdings Ltd., [1996] O.J. No. 1014 (Gen.Div.), at paragraph 14;

Gardiner v. Thunder Bay Regional Hospital, [1999] O.J. No. 833 (Gen.Div.), at paragraphs 23 and 26, affirmed [2000]

O.J. No. 141 (C.A.); Kerr v. Loblaws Inc., supra, at paragraph 19; Walker v. Burlington (City), 2012 ONSC 2565

(S.C.J.), at paragraph 79; Miltenberg v. Metro Inc., [2012] O.J. No. 662 (S.C.J.), at paragraphs 32-33; Nandial v.

Toronto Transit Commission, supra, at paragraphs 9-10; Martin v. Barrie (City), supra, at paragraphs 7-8; Cannon v.

Cemcor Apartments Inc., 2016 ONSC 2828, at paragraphs 48 and 104-109, affirmed 2017 ONCA 378; and Irvine

(Litigation guardian of) v. Seipt, [2017] O.J. No. 2107 (Div.Ct.), at paragraph 15.

Page: 61

ii. If evidence of compliance with such a plan or scheme at a specific time is

lacking, a defendant occupier may establish routine compliance with the

scheme or plan, from which the court may infer observance at the time in

question.

iii. Conversely, a disorganized system involving multiple actors, poor

communication, a lack of vigilance to ensure that such concerns are being

properly attended to, and/or which allows for inappropriate delays in

addressing problems and hazards, may not provide an adequate defence.

iv. While the overall onus remains on the plaintiff to prove his or her case, it is

not up to the plaintiff to negative such a potential defence. It is up to the

defendant to call evidence in support of such a defence.⁷³

f. The existence of customary practices which are unreasonable in themselves, or

which are not otherwise acceptable to the courts, in no way ousts the duty of care

owed by occupiers under s.3(1) of the Occupiers’ Liability Act, supra.⁷⁴

g. Pursuant to s.3(2) of the Occupiers’ Liability Act, supra, an occupier’s general

statutory duty of care applies whether the danger is caused by the condition of the

premises, or by an activity being carried on at the premises.

h. Pursuant to s.3(3) of the Occupiers’ Liability Act, supra, the duty also applies

“except insofar as the occupier of premises is free to and does restrict, modify or

exclude the occupier’s duty”. For example, an occupier may wish to put part of his

property “off limits” rather than to make it safe, and in certain circumstances, that

might be considered reasonable. Where no such effort has been made, however,

the exceptions to an occupier’s statutory duty of care “will be few and narrow”.⁷⁵

Moreover:

⁷³See, for example: Britt v. Zagjo Holdings Ltd., supra; Gardiner v. Thunder Bay Regional Hospital, supra; Sheikhani

v. Ontario (Niagara Parks Commission), [1998] O.J. No. 880 (Gen.Div.), affirmed [1999] O.J. No. 3879 (C.A.); Atkins

v. Jim Pattison Industries Ltd. (1998), 61 B.C.L.R. (3d) 183 (C.A.), at paragraphs 6-7; and Quibell v. 1096555 Ontario

Inc., [2003] O.J. No. 4673 (S.C.J.).

⁷⁴Malcolm v. Waldick, supra, at paragraphs 35-37.

⁷⁵See Malcolm v. Waldick, supra., at paragraph 45. For the sake of completeness, I note that, pursuant to authorities

such as Kennedy v. Waterloo (1999), 45 O.R. (3d) 1 (C.A.), leave to appeal to the Supreme Court of Canada dismissed

without reasons, [1999] S.C.C.A. no. 399, a government authority “occupier” may not make a “policy” decision which

either obliges or allows it to avoid compliance with the statutory obligations and civil liability imposed by s.3(1) of

the Occupiers’ Liability Act, supra. In this particular case, the original defence pleading filed on behalf of the

defendant County suggested that the County would be advancing such a defence; i.e., by asserting that any failure to

maintain the relevant roadway in the area where the underlying accident occurred was the “result of a policy decision

of Elgin County, made in good faith, for which it cannot be held liable”. However, the initial defence pleading filed

by the County was then superseded by a further defence pleading filed on behalf of both defendants, which omitted

Page: 62

i. Although s.4(1) of the Act also includes provisions indicating that an

occupier’s duty of care “does not apply in respect of risks willingly assumed

by the person who enters on the premises”, this is viewed by courts as an

embodiment of “the volenti doctrine”, and given a similarly narrow

interpretation and application.

ii. While the defence operates as a complete bar to recovery, it was intended

to be “a very narrow exception” to the occupier’s statutory duty of care, and

only arises “where the circumstances are such that it is clear that the

plaintiff, knowing of the virtually certain risk of harm, in essence bargained

away his right to sue for injuries incurred as a result of any negligence on

the defendant’s part”.⁷⁶

i. Pursuant to subsections 5(1) and 5(2) of the Occupier’s Liability Act, supra:

i. the duty of an occupier under the Act, or the occupier’s liability for breach

of such a duty, may not be restricted or excluded by any contract to which

the person to whom the duty is owed is not a party, whether or not the

occupier is bound by the contract to permit such person to enter or use the

premises; and

ii. barring express contractual provisions to the contrary, a contract may not

have the effect of making an occupier, who has taken reasonable care, liable

to any person not a party to the contract for dangers due to the faulty

execution of any work of construction, maintenance or repair, or other like

operation by persons other than the occupier, employees of the occupier and

persons acting under the occupier’s direction and control.

j. Pursuant to subsection 6(1) of the Occupiers’ Liability Act, supra, where damage

to any person is caused by the negligence of an independent contractor employed

by an occupier, the occupier is not on that account liable:

i. if in all the circumstances the occupier acted reasonably in entrusting the

work to the independent contractor;

ii. if the occupier took such steps the occupier reasonably ought to have taken

in order to be satisfied that the contractor was competent, and that the work

was being properly done; and

reference to any such “policy decision” defence.

⁷⁶See Malcolm v. Waldick, supra, at paragraphs 42, and 45-48.

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iii. if it was reasonable that the work performed by the independent contractor

should have been undertaken.

k. However, pursuant to subsection 9(1) of the Occupier’s Liability Act, supra,

nothing in the Act relieves an occupier of premises, in any particular case, from

“any higher liability or any duty to show a higher standard of care that in that case

is incumbent on the occupier by virtue of any enactment or rule of law imposing

special liability or standards of care on particular classes of persons”.⁷⁷

l. Pursuant to s.9(3) of the Occupiers’ Liability Act, supra, Ontario’s Negligence Act,

supra, applies to causes of action governed by the Occupiers’ Liability Act, supra.

NEGLIGENCE ACT

[37] The Municipal Act, 2001, supra, and the Occupiers’ Liability Act, supra, accordingly both

cross-reference the Negligence Act, supra, and confirm its continued relevance in situations

otherwise governed by those two other Acts.

[38] Amongst the provisions found within the Negligence Act, supra:

a. Section 1 provides that “Where damages have been caused or contributed to by the

fault or neglect of two or more persons, the court shall determine the degree in

which each of such persons is at fault or negligent, and, where two or more persons

are found at fault or negligent, they are jointly and severally liable to the person

suffering loss or damage for such fault or negligence, but as between themselves,

in the absence of any contract express or implied, each is liable to make contribution

and indemnify each other in the degree in which they are respectively found to be

at fault or negligent”;

b. Section 3 provides that “In any action for damages that is founded upon the fault or

negligence of the defendant, if fault or negligence is found on the part of the

plaintiff that contributed to the damages, the court shall apportion the damages in

proportion to the degree of fault or negligence found against the parties

respectively”; and

c. Section 4 provides that “If it is not practicable to determine the respective degree

of fault or negligence as between any parties to an action, such parties shall be

deemed to be equally at fault or negligent.”

⁷⁷In this case, for example, it was not suggested that the provisions of the Occupiers’ Liability Act, supra, operated in

any way that would negate the duties imposed on a municipality in relation to maintenance of public highways

pursuant to the Municipal Act, 2001, supra.

Page: 64

[39] The “last clear chance” doctrine, whereby liability between multiple parties causing or

contributing to an accident previously was apportioned to a much greater degree to the

party who had the last opportunity to avoid a loss, has been rejected.⁷⁸

[40] As for contributory negligence of a plaintiff, the possibility of which is addressed by

section 3 of the Negligence Act, supra, general principles include the following:

a. When contributory negligence is set up as a defence, its existence does not depend

on any duty owed by the injured party to the party sued. All that is necessary to

establish such a defence is to prove to the satisfaction of the trier that the injured

party did not, in his or her own interest, take reasonable care of himself or herself,

and thereby contributed, by that want of care, to his or her own injury or loss. When

contributory negligence is set up as a shield against a defendant’s obligation to

satisfy the whole of a plaintiff’s claim, the principle involved is that, where a person

is part author of his or her own injury, he or she cannot call on the other party to

compensate him or her in full. The result is that the injured party recovers less than

full compensation for his or her injuries.⁷⁹

b. Although contributory negligence does not depend on a duty of care, it does depend

on foreseeability. In particular, just as actionable negligence requires the

foreseeability of harm to others, so contributory negligence requires the

foreseeability of harm to oneself. A person is guilty of contributory negligence

only if he or she ought reasonably to have foreseen that, if he or she did not act as

a reasonable, prudent person, he or she might be hurt himself or herself; and in his

or her reckonings, he or she must take into account the possibility of others being

careless.⁸⁰

c. Contributory negligence can arise in three ways:

i. a plaintiff’s negligence may have been a cause of the accident, in the sense

that his or her acts or omissions contributed to the sequence of events

leading to the accident;

ii. although the plaintiff’s negligence may not have been a cause of an

accident, the plaintiff may have put himself or herself in a position of

foreseeable harm; and

⁷⁸See The Treaty Group Inc. v. Drake International Inc., 2007 ONCA 450, at paragraph 28; and Smith v. Safranyos,

supra, at paragraph 92.

⁷⁹See Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210, at paragraph 73.

⁸⁰Ibid., at paragraph 76.

Page: 65

iii. a plaintiff may have failed to take precautionary measures in the face of

foreseeable danger.⁸¹

d. In relation to the first type of contributory negligence, (i.e., where it is alleged that

a plaintiff’s negligence was a cause of the accident), a finding of contributory

negligence does not require that the plaintiff’s negligence was the only cause of the

relevant accident. However, the plaintiff’s negligence must have been a proximate

or effective cause of the accident. In particular, if the plaintiff was negligent, but

that negligence did not in fact cause or contribute to causation of the accident or

damage to the plaintiff, there should be no finding of contributory negligence.⁸²

e. The burden of proving contributory negligence on the part of a plaintiff, and that

any such contributory negligence caused damages for which a defendant otherwise

might be wholly responsible, lies on the defendant alleging contributory

negligence.⁸³

[41] In assessing the possibility of contributory negligence on the part of plaintiffs advancing

claims governed by the Municipal Act, 2001, supra, courts have considered factors such as

those, noted above, which distinguish negligent drivers from ordinary drivers; e.g., failure

to exercise ordinary care, failure to pay attention, and failure to use caution and adjust

behaviour according to the nature of the roadway and driving conditions, including failure

to drive at appropriate speeds.⁸⁴

[42] In assessing the possibility of contributory negligence on the part of plaintiffs advancing

claims governed by the Occupiers’ Liability Act, supra, courts have considered factors such

as:

a. whether the plaintiff knew or ought to have known of the possibility of a hazard

existing at the location in question, having regard to prevailing conditions;

b. whether the prevailing circumstances, (such as lighting or the absence of

obstructions or other distractions), would have permitted an ordinary person,

paying reasonable attention, to notice the presence of the relevant unsafe condition;

c. whether the plaintiff failed to keep a proper lookout and exercise proper caution, or

had his or her attention focused elsewhere;

⁸¹See Zsoldos v. Canadian Pacific Railway Co. (2009), 93 O.R. (3d) 321 (C.A.), at paragraph 54.

⁸²Ibid., at paragraph 56.

⁸³Ibid., at paragraph 56.

84

See, for example, Brophy v. Nova Scotia (Attorney General), [1985] N.S.J. No. 61 (S.C.); and Bungay v.

Newfoundland, [1985] N.J. No. 310 (Dist.Ct.).

Page: 66

d. whether the plaintiff failed to adjust his or her pace to allow for the presence or

possibility of the relevant unsafe condition;

e. whether the plaintiff was impaired owing to the ingestion of medications or alcohol;

and

f. whether the plaintiff exercised appropriate care in the choice of

clothing/equipment.⁸⁵

[43] The burden of proving any such contributory negligence, and its causation of the damages

for which the defendant otherwise might be wholly responsible, lies on the defendant.

CAUSATION

[44] The elements of a claim to be proven by a plaintiff in a tort action generally include

causation; i.e., proof on a balance of probabilities that a defendant’s impugned conduct

actually caused the loss complained of.⁸⁶

[45] Moreover, as already noted to some extent above, causation forms a necessary component

of any finding of liability pursuant to the Municipal Act, 2001, supra, the Occupiers’

Liability Act, supra, and/or findings of possible joint and/or contributory negligence

pursuant to the Negligence Act, supra. In particular:

a. In relation to claims governed by the Municipal Act, 2001, supra, even if a claimant

succeeds in establishing the existence of a “default” in a road’s “state of repair” at

the time of an accident, such a claimant must still satisfy his or her onus of

establishing causation, as required by s.44(2) of the Municipal Act, 2001, supra. If

such a default exists but did not cause the accident or the resulting losses

experienced by a claimant, no liability can attach to the municipality even if it

otherwise is to blame for allowing and/or not taking adequate measures to remedy

the default.

b. In relation to claims governed by the Occupiers’ Liability Act, supra, the legislation

expressly indicates that it was enacted to modify and replace the rules of common

law governing the duty of care owed by occupiers; i.e., as opposed to any

modification of the common law requirement of a claimant having to prove that his

or her damages were caused by a defendant before the imposition of liability for

such damages. Moreover, the legislation expressly refers to that causation

requirement in s.6(1), when focusing on situations “where damage to any person or

his or her property is caused by the negligence of an independent contractor

85

See, for example: Bogoroch v. Toronto (City), supra; Belanger v. Township of Michipicoten, [1996] O.J. No. 275

(Gen.Div.); and Sheikhani v. Ontario (Niagara Parks Commission), supra.

⁸⁶See Stewart v. Pettie, [1995] 1 S.C.R. 131, at paragraph 60.

Page: 67

employed by the occupier”. In the result, it is not surprising that many authorities

have emphasized the proof of causation is an essential component of any successful

claim advanced pursuant to the Occupiers’ Liability Act, supra.⁸⁷

c. As noted above, in relation to application of the Negligence Act, supra:

i. section 1 of that legislation requires the court to make assessments of joint

liability for negligence “where damages have been caused or contributed to

by the fault or neglect of two or more persons”; and

ii. section 3 of that legislation requires the court to apportion damages in any

action for damages founded upon the fault or negligence of the defendant

“if fault or negligence is found on the part of the plaintiff that contributed

to the damages”. [Emphasis added.]

[46] Causation is not implicit in identification of a failing on the part of a defendant, and the

mere fact of an accident having occurred. There must be a finding of causation connecting

the two, in the manner required by law.⁸⁸

[47] Similarly, as noted above, there can be no finding of contributory negligence, reducing a

plaintiff’s recovery of damages, unless a defendant proves that the plaintiff’s negligent

conduct caused or contributed to the plaintiff’s injuries or loss.⁸⁹

[48] Pursuant to authorities such as Snell v. Farrell, [1990] 2 S.C.R. 311, Athey v. Leoni, [1996]

3 S.C.R. 458, Resurface Corp. v. Hanke, [2007] 1 S.C.R. 333, and Clements v. Clements,

[2012] 2 S.C.R. 181:

a. The basic test for determining causation generally is the “but for” test. The party

with the burden of proving causation must show, on a balance of probabilities, that

“but for” the impugned conduct of the at-fault party, the relevant injuries/damages

would not have occurred. Inherent in the phrase “but for” is the requirement that

the impugned conduct was necessary to bring about the relevant injury/damages;

in other words, that the injury would not have occurred without the impugned

conduct. This is a factual inquiry. If the party with the burden of proving causation

does not establish that on a balance of probabilities, having regard to all the

evidence, his or her claim against the party who committed the impugned conduct,

(including a claim of contributory negligence), fails.

b. Determining whether the relevant injury/damages would have occurred without the

impugned conduct is essentially a practical question of fact, and the “but for”

⁸⁷See, for example: Nandial v. Toronto Transit Commission, supra, at paragraph 8; Martin v. Barrie (City) supra, at

paragraph 9; and Irvine (Litigation guardian of) v. Seipt, supra, at paragraphs 17-18.

⁸⁸See, again, Irvine (Litigation guardian of) v. Seipt, supra, at paragraphs 17-18.

⁸⁹Again, see Zsoldos v. Canadian Pacific Railway Co., supra, at paragraph 56.

Page: 68

causation test must be applied in a “robust common sense fashion” In particular,

there is no need for scientific evidence of the precise contribution the impugned

conduct made to the injuries/damages.

c. In special circumstances, the law has recognized exceptions to the basic “but for”

causation test and applied a “material contribution” test instead; i.e., in special

circumstances where application of a “but for” approach would offend basic notions

of fairness and justice, because circumstances beyond a plaintiff’s control make

satisfaction of the “but for” test impossible to satisfy. In particular, a party with the

burden of establishing causation may succeed by showing that the relevant

impugned conduct “materially contributed” to risk of the relevant injury/damages

where:

i. the party with the burden of proving causation has established that the loss

would not have occurred “but for” the impugned conduct of two or more

parties, each possibly in fact responsible for the loss; and

ii. the party with the burden of proving causation, through no fault of his, her

or its own, is unable to show that any one of the possible at fault parties in

fact was a necessary “but for” cause of the injury/damages because each can

point to one another as the possible “but for” cause of the injury, defeating

a finding of causation on a balance of probabilities against anyone.⁹⁰

[49] In relation to required determinations of causation in the present case, neither counsel for

the plaintiffs nor counsel for the defendants submitted that this was a case involving special

circumstances sufficient to warrant, on an exceptional basis, application of the “material

contribution” test rather than the “but for” test. I agree that this case presents no such

special circumstances.

Analysis

⁹⁰The Supreme Court of Canada’s decisions regarding causation speak in terms of a “plaintiff “establishing that his

or her injury or damages was caused by the “negligence” of a “defendant”; for example, with requisite causation being

established by a plaintiff demonstrating that “but for” the defendant’s negligent act, the plaintiff’s injury would not

have occurred. I have employed somewhat broader terms, (e.g., referring to a “party with the burden of proving

causation” instead of “plaintiff”, to “impugned conduct” instead of negligence, and to an “at fault party” or “at fault

parties” instead of a “defendant” or “defendants”), simply because, as in the present context, the same principles apply

to determine causation in situations where:

a. the relevant fault may not be negligence per se but the breach of statutory duties, such as those imposed by

the Municipal Act, 2001, supra, and/or the Occupiers’ Liability Act, supra; and

b. the party with the burden of proving causation may not be a “plaintiff” trying to prove that the failings of a

“defendant” caused the plaintiff’s injury/damages, but a defendant trying to prove that a plaintiff’s failings,

(e.g., contributory negligence), caused his or her own injury/damages.

Page: 69

[50] With all of the above legislative provisions and principles in mind, I turn, finally, to their

application on the particular facts of this case.

[51] It may be helpful for me to state at the outset of my analysis that, for the reasons that follow,

I have found:

a. that the plaintiffs have satisfied their onus of establishing, on a balance of

probabilities, that Elgin County is liable for having breached its duty owed under

s.44(1) of the Municipal Act, 2001, supra, to keep the relevant roadway in a state

of repair that was reasonable in the particular circumstances of this case, in turn

causing the damages sustained by the plaintiffs;

b. that the plaintiffs have satisfied their onus of establishing, on a balance of

probabilities, that Walmsley Brothers is liable for having breached its duty owed

under s.3(1) of the Occupiers’ Liability Act, supra, to take such care as was

reasonable, in all the circumstances of this case, to see that persons entering on the

relevant section of roadway would be reasonably safe while on that relevant section

of the roadway, in turn causing the damages sustained by the plaintiffs; and

c. that the defendants have not satisfied their onus of establishing, on a balance of

probabilities, that the plaintiff was contributorily negligent in any manner that

caused the damages sustained by the plaintiffs.

[52] I will return later, in the course of these reasons, to state more expressly my findings in

relation to the required steps of the analysis leading to the above conclusions.

[53] For now, I begin by outlining numerous considerations and additional incidental findings

which factored into my decisions in relation to each of those steps, many if not most of

which are common to each required chain of analysis and reasoning. They include the

following:

a. The defendants placed considerable emphasis on the extent to which the new

asphalt applied to the road may have been compacted; i.e., with its density being

increased, and internal voids being decreased, through the application of intense

compression brought about by the application of extremely heavy rolling weights.

For example, Glenn Walmsley in particular expressed the view that, once the

asphalt applied by Walmsley Brothers had attained its maximum compaction after

the rubber tire roller had completed its work, the asphalt also was “as “hard as it

can be”. Similarly, when asked about the hardness of the road, and whether new

asphalt would become harder over time, Ian Albert initially responded by saying

no, and emphasizing that new asphalt was “only going to compact so much”; i.e.,

effectively equating the extent of new asphalt’s compaction with the extent to

which it was hard. However, I think it worth noting and emphasizing that, as a

matter of common sense if not basic physics, and as demonstrated by the evidence

in this case, compaction alone is not necessarily synonymous with a substance

being solid and hard. In particular, the evidence in this case made it absolutely

Page: 70

clear, (as Glenn Walmsley himself acknowledged during cross-examination), that

solidification and hardening of asphalt is affected not only by compaction but also,

to a significant extent, on the rate at which asphalt is allowed to progressively cool

from its original high mixing temperature that reduces its combined components to

a dense but essentially liquid form.⁹¹In particular:

i. That is why asphalt has to be applied before it falls below a certain

temperature, and why the timing of steps like the final rolling of asphalt,

after initial extensive compactions, are calibrated to be performed between

certain temperatures when the asphalt has cooled to but not below certain

temperatures.

ii. As Glenn Walmsley emphasized in his testimony, newly applied asphalt has

reached its maximum compaction, (i.e., 93-96 percent), after the second and

heaviest roller has completed its work, at which point the asphalt has cooled

further from a temperature of approximately 240 degrees, when the second

roller commences its work, to a temperature of 190 or 180 degrees when the

second roller completes its job. However, at that point, the asphalt may

have reached its maximum compaction, but it has still not completely

solidified and hardened. To the contrary:

1. It clearly remains somewhat malleable at that point, despite having

reached its maximum compaction, as there otherwise self-evidently

would be no point in then applying finishing rollers to smooth out

marks and “ripples” left in the asphalt’s surface after the second

roller has completed its work.

2. Indeed, as Glenn Walmsley also emphasized, the asphalt is so soft

and malleable at that point, (i.e., when the second roller has

completed its work and the asphalt has reached its maximum

compaction), that the operator of the finishing roller has to wait

“upwards of almost an hour”, after completion of the second roller’s

work, for the asphalt to cool and harden further; i.e., “until the

temperature gets low enough so that he [the operator of the finishing

roller] doesn’t leave his own marks in it”. As noted above, the

operator of the finishing roller, using a heat gun, therefore aims to

perform his finishing work when the asphalt has cooled to

temperatures between 180 and 145 degrees, and ideally between 180

and 160 degrees, or 175 degrees in particular; i.e., when the asphalt

⁹¹In cross-examination, Glenn Walmsley noted that the entire paving process is temperature related, and that asphalt

transforms “into a solid form” as it loses temperature; i.e., starting out as a “thick liquid”, but changing “into a tar” as

it cools, before becoming a solid “as it cools out more”. He also acknowledged that, once asphalt “compaction has

taken place”, it then also has to “set” before it becomes hard.

Page: 71

is still hot enough to manipulate, but cool and solid enough to resist

marking as easily.

iii. For his part, Chris Walmsley similarly acknowledged, in cross-

examination, that time affects the firmness of new and compacted asphalt

to some degree; e.g., in terms of whether objects on such new asphalt will

sink into it or leave marks.

iv. Similarly, Ian Albert acknowledged in cross-examination that new asphalt

remains malleable after the compaction process has been completed, and

that malleability will still be reducing over time as the temperature of the

new asphalt continues to cool down. As he put it: “So like, as it cools, it

sets up”, and “Like, if we just paved the road a few hours before, it’s going

to be a bit softer than the road that’s been there for 20 years”.⁹²In that

regard, Mr Albert noted that the cooling and progressive hardness of new

asphalt is also affected by the weather; e.g., as a bright sunny day, (such as

that depicted in the photographic evidence), could also add heat to the new

asphalt.

v. In my view, the above information is significant not only to demonstrate the

lack of any precise equivalence between compaction and hardening, but

also to demonstrate that the paving process used by Walmsley Brothers

creates the possibility and in my view probability of an asphalt “temperature

zone” where the paving process may have been completed, up to and

including final passage of the finishing roller, but the asphalt still has not

cooled to the point where it is no longer malleable. In particular:

1. According to Glenn Walmsley’s evidence, the asphalt remains

sufficiently soft and malleable for the finishing roller to complete its

work as long as the asphalt’s temperature has not dropped below

145 degrees.

2. If the finishing roller embarks on its work as soon as possible after

the second roller has completed its work, when the temperature has

dropped to just 180 degrees, the finishing roller might very well

complete its work well before the temperature has dropped to 145

degrees. Indeed, Glenn Walmsley indicated that the finishing roller

ideally will complete its work before the asphalt temperatures drops

below 160 degrees. In other words, that is the desired practice

objective of Walmsley Brothers, and therefore the practice it is

likely to follow.

92

Even then, Mr Albert returned to equating hardness with compaction, saying: “It just becomes, I guess, I’m not

going to say harder, because it’s already compacted”.

Page: 72

3. In effect, that leaves the distinct possibility and in my view

probability that the asphalt will remain somewhat malleable for

some time after the finishing roller completes its work, and certainly

at least until it cools further to a temperature of 145 degrees.

4. That reality in turn means that, if flaggers at the rear of the paving

operation also make a routine practice of directing traffic onto new

asphalt as soon as the finishing roller has completed its work, (e.g.,

in accordance with their common practice and belief that the asphalt

has hardened completely at that point), they probably will be

directing traffic onto asphalt that may have reached its maximum

compaction, but which has not yet completely solidified and

hardened because it has not had sufficient time to cool sufficiently

to make that happen.

5. In my view, the probability of that happening obviously would be

enhanced in situations where, as in this case, weather conditions

were more conducive to the asphalt retaining its heat for a longer

period of time. In that regard:

a. The relevant paving operation in this case occurred on a day

in late June.

b. The undisputed testimony of Ms MacLean indicated that the

weather on the day of the accident was “beautiful” and

“sunny”.

c. The undisputed testimony of Mr Miles indicated that the

weather on the day of the accident was “nice”, with

conditions being a “little overcast” in the morning, but

clearing such that things “warmed up” in the afternoon. In

that regard, Mr Miles estimated that the weather in the area

where they were riding had warmed to somewhere “in the

mid-twenties”, Celsius, when the accident occurred.

d. The testimony of Ms MacLean and Mr Miles in that regard

is supported by the photographs taken that day, shortly after

the accident, showing sunshine and very pronounced

shadows, with no precipitation. It is also supported by the

objective government weather data for the London area on

the day of the accident, indicating that the temperature that

day rose steadily between 4:00am and 1:00pm, by which

time it had reached a temperature of more than 23 degrees

Celsius; a temperature that generally was sustained past

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2:00pm and therefore up until a short time before the

accident.⁹³

e. In my view, all of these conditions made it more likely that

the newly applied asphalt laid down by Walmsley Brothers

on Richmond Road would not have cooled to the point of

being solid and hard immediately after the finishing roller

had completed its work

6. As noted above, systems designed to keep roads in a state of repair

such they are reasonably safe for ordinary drivers traversing them

with reasonable care need not be perfect and eliminate all possible

risks, and systems used by occupiers to fulfil their duty of taking

reasonable care to make their premises reasonably safe for those

entering onto them need not be foolproof. However, the traffic

control system adopted by Walmsley Brothers effectively

incorporated a situation whereby passing motorists, including the

ordinary drivers of motorcycles, probably would be directed to

transition onto asphalt that had attained maximum compaction but

was not yet hard and solid. Moreover, in situations where the paving

operation was at a stage where traffic was being directed to

transition from an open lane with original pavement into and onto a

lane with freshly applied asphalt, passing motorists, including the

ordinary drivers of motorcycles, probably would be directed to

transition over a raised/elevated edge or lip of fresh asphalt that was

not yet solid and hard.

7. In that regard, I say “probably” because a particular situation might

involve prevailing conditions, (e.g., colder weather or intermittent

rain), wherein freshly applied asphalt might cool more rapidly.

Similarly, if the finishing roller delayed carrying out its work such

that the work was completed when the freshly applied asphalt

already had cooled to a temperature close to 145 degrees Fahrenheit,

or the rear flagger happened to delay moving forward and directing

traffic onto freshly applied asphalt for a longer period of time after

the finishing roller completed its work, the fresh asphalt may have

an opportunity to cool to the point where it is solid and hard before

traffic is directed onto it. As with all cases of this nature, (i.e.,

involving potential liability pursuant to the Municipal Act, 2001,

supra, or the Occupiers’ Liability Act, supra), each situation needs

93

The same weather records indicate that, in London at least, the temperature began to level and fall slightly after

2:00pm, with the onset of a “Thunderstorm”. However, the photos make it clear that no such thunderstorm had reached

the Richmond Road area by the time of the accident, or during the afternoon hours thereafter when the photographs

of the road were being taken.

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to be examined by focusing on the particular circumstances that

prevailed at the time of an underlying accident.

b. Moreover, as a matter of common sense, I think compaction of the newly applied

asphalt inherently would have been less, to at least some degree, at the outer edge

of the new asphalt running along the centre of Richmond Road. In particular:

i. Compaction of the asphalt was accomplished by the force of compression

exerted when the new asphalt was trapped between the solid base below and

the application of heavy rolling weights above, with asphalt located away

from the edges, abutting other asphalt being compressed at the same time,

realistically having “nowhere to go”; i.e., such that its density through the

application of such pressures could only increase.

ii. However, at the very edge of the asphalt, where the outer edge or lip of the

top of the asphalt effectively was being created, the asphalt being

compressed between the solid base below and heavy rollers being applied

above did have somewhere else to go; i.e., as it was free to move

laterally/horizontally outwards, to some extent, in the direction of the road’s

normally northbound traffic lane.

iii. In response to my questions about that, Glenn Walmsley indicated his belief

that there would be very little difference between the level of asphalt

compaction in the middle of a paving job and at its edges, based on his

understanding of compaction testing done by “consultants and the

government”, who use a “nuclear machine” that is set on asphalt to test

compaction at various intervals to determine what level of compaction is

being achieved during paving operations. However:

1. Mr Walmsley also noted that such machines are incapable of

operating at the “very outside edge” of paved asphalt, and measuring

the density of new asphalt at that precise location. Such machines

must instead rely on a density average, generated by testing density

over a six-to-eight-inch width near to that outer edge. In my view,

that limitation has significance in a case such as this, which

effectively turns in large measure on the solidity, hardness and

corresponding stability of the very eastern edge of the new asphalt

Ms MacLean’s motorcycle wheels were trying to traverse.

2. Mr Walmsley also noted, during the course of his testimony, that

asphalt at the edges of the layer of asphalt laid down by the paver

and the screed is in fact pushed horizontally out to the sides by one

to two inches as the rollers pass over the edges of the newly laid

asphalt. Again, in my view it self-evidently does that because it can;

i.e., because it effectively meets no lateral resistance as it is being

compressed from above, and therefore moves outwards to the

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“open” side, creating the slopes of rough and obviously less

compressed new asphalt depicted in the accident scene photographs.

In the circumstances, and as a matter of common sense, I think it

naturally follows that the asphalt at the very edge of the newly laid

asphalt’s surface area inevitably will have been under less

compression force, and therefore have been compressed less,

(despite that area having been passed over by all of the rollers), than

newly laid asphalt located further away from the edges and closer to

the centre of the newly paved lane.

3. On any view, (and as acknowledged by Glenn Walmsley during the

course of cross-examination), the slope of rough asphalt running

along the road’s centre line, rising up to but below the flattened and

smoothed elevated surface of the new asphalt, remained below the

rollers, (even to the extent they may have been overhanging the edge

of new asphalt’s elevated top surface), and therefore actually

received no direct compression, flattening or smoothing force from

those rollers.

c. On a related note, it seems to me that a proper assessment of whether the asphalt

lip or edge constituted a failure by Elgin County to keep the road in a reasonable

state of repair, (as required by the Municipal Act, 2001, supra), or a failure by

Walmsley Brothers as an occupier of the road to take reasonably necessary care to

keep those coming on to it reasonably safe, (as required by the Occupiers’ Liability

Act, supra), requires proper consideration of the significant differences between

motorcycles and other motor vehicles. In that regard:

i. Motorcycle operators clearly are some of the “ordinary drivers” who may

need to travel on a public highway in safety, exercising reasonable care.

ii. As reflected in numerous court decisions, certain road conditions

realistically may pose dangers to motorcycles that are not faced by other

motor vehicles, or comparatively greater hazards for motorcycles, having

regard to their fundamentally different nature and characteristics; dangers

which defendants charged with responsibility for roads must consider and

take into account when taking steps to ensure that such roads are reasonably

safe.⁹⁴Such realities certainly were highlighted by the evidence in this case.

For example:

1. To state the obvious, (but as understandably emphasized directly

and indirectly by a number of witnesses in this case), motorcycles

have only two wheels, and are therefore inherently less stable than

⁹⁴See, for example: Edward v. Mainroad Contracting Ltd., supra, at paragraphs 7-8; Ryan v. Victoria (City), supra,

at paragraph 49; and Van Tent v. Abbotsford (City), 2013 BCCA 236, at paragraph 107.

Page: 76

vehicles having four or more vehicles. The latter can slow or indeed

come to a complete stop without any danger of falling to one side or

the other, and therefore without creating the corresponding risk of

resulting potential injuries to their operators or passengers.

Motorcycles require sustained forward momentum to maintain

balance, and accordingly become increasingly unstable if surface

conditions inhibit their ability to keep moving forward at a minimum

speed.

2. On a related but less obvious note, but equally important to the

stability of a motorcycle in contrast to vehicles having four or more

wheels, is the reality that motorcycles typically have only one power

driven wheel to ensure forward propulsion, whereas other vehicles

usually have two or more powered wheels capable of ensuring

forward propulsion. When a motorcycle crosses a raised elevation

at an angle, it accordingly depends entirely, (at least in the absence

of significant forward momentum – which it is unlikely to have at

slow speeds on a level road), on the ability of its one powered rear

wheel to ensure forward propulsion sufficient to allow the

motorcycle’s stable and safe transit over the elevation. If that one

powered wheel is unable to supply propulsion when it reaches the

point of transit over the elevation, there will be resulting instability

of the motorcycle for the reasons mentioned in the preceding sub-

paragraph. In contrast, a vehicle with four or more wheels, more

than one of which is powered, is much less likely to be placed in a

position where all of its powered wheels are simultaneously unable

to provide forward propulsion at the point of transition over the

elevation, unless all of the powered wheels reach the transition point

simultaneously; e.g., by a vehicle with two powered wheels,

positioned bilaterally, approaching a raised elevation at a right

angle. In particular, a vehicle with two or more powered wheels,

crossing an elevation transition point at an angle, almost certainly

will have one of those powered wheels on a completely flat surface

at any given time, capable of providing traction to push and/or pull

the vehicle over the elevation transition point; i.e., depending on

whether the vehicle has bilateral front wheel drive, bilateral rear

wheel drive, or four wheel drive.

3. As emphasized by Mr Inglis in his expert testimony, and the

photographs and video of Ms MacLean’s motorcycle, the tires of

motorcycles have a fundamentally different design and operation

than the tires of vehicles having four or more wheels. In particular:

a. The tires of cars and trucks have flat “profiles” and treads at

their “bottom”, (i.e., along and around their outer

circumference), reflecting the reality that such vehicles

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generally maintain a horizontal equilibrium as they travel

along roadways and negotiate curves and turns. In other

words, such vehicles generally do not roll significantly to the

left or right during such curves and turns, but instead

generally have four upright wheels riding along the ground

at all times. Given that reality, it makes sense for the tires of

such vehicles to have flat and level profiles around their

outer circumference, maximizing the area of contact

between each of the wheels and the road surface, in turn

maximizing friction for braking and propulsion. A vehicle

tire with a flat and level profile attempting to negotiate a

raised surface edge or elevation accordingly will have

contact points all along the edge of that raised elevation, to

assist in providing traction to pull or push a vehicle over that

edge.

b. In marked contrast, the safe operation of “single track”

vehicles such as bicycles and motorcycles requires their

operators to lean such vehicles to one side or the other as

they round curves and turn corners, particularly at higher

speeds. In the result, the profile of the outer circumference

of motorcycle tires necessarily is rounded instead of being

flat/level; i.e., such that there will always be a treaded tire in

contact with the surface of a roadway, even as motorcycles

necessarily, inevitably and routinely lean to the left or right.

However, while the rounded nature of motorcycle tires

thereby ensures the availability of tread contact between

such “single track” vehicle tires and road surfaces, (e.g., to

facilitate traction, braking and propulsion during curves and

turns), it also means that the size of the “contact patch” or

total area of contact between motorcycle tires and underlying

surfaces over which they are passing will always be much

smaller than the “contact patch” between such surfaces and

the tires of vehicles having more than two wheels and tires

with flat profiles and treads around their circumference.

Indeed, while the contact patch of a tire with a flat profile

and tread usually will approximate the entire width of the

tire, Mr Inglis says the contact patch between a motorcycle

tire and a flat surface normally will be no more than

approximately 50 percent of the motorcycle tire’s width.

c. Moreover, when a motorcycle attempts to pass over the edge

of a raised elevation, the point or points of contact between

a motorcycle’s rounded tires and underlying surfaces

effectively will be reduced to an even smaller, narrower and

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more concentrated area or areas, which has considerable

significance. In particular:

i. If the elevated edge is sufficiently high, there

inevitably will be a point during a motorcycle

wheel’s transit over such an elevated edge where

much of the motorcycle’s tire effectively is

suspended above and separated from the surface

below; i.e., by a “bridge” effectively formed between

the last remaining contact point on the lower surface

elevation and the lead contact point at the edge of the

higher surface elevation, leaving a “gap of air” below

the intervening portion of the tire.

ii. While that phenomenon may occur to some extent in

relation to the flattened/level tire tread profiles of

vehicles with more than two wheels, its significance

becomes heightened and much more pronounced in

relation to motorcycles, which not only have rounded

tires but only one powered wheel, (i.e., the rear

wheel), capable of providing the motorcycle with

necessary forward momentum to sustain stability.

That rear wheel must succeed in gaining sufficient

traction if the motorcycle is to keep moving forward,

allowing its operator to prevent the motorcycle from

falling to one side or the other.

iii. As Mr Inglis explained in his expert testimony,

(which I accept), when the powered rear wheel of a

motorcycle attempts to pass over a raised elevation,

effectively creating the “bridge” effect noted above,

suspending much of the rear tire’s normal contact

surface between two small and concentrated points

of contact between the tire and surfaces below, (i.e.,

the leading point of contact between the rear

motorcycle tire and the trailing point of last contact

between the rear motorcycle and the lower surface it

is leaving), the primary point of contact surface and

necessary traction becomes the relatively small and

concentrated area of surface contact between the

leading edge of the motorcycle’s rear tire and the

point it reaches at the surface edge of the higher

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elevation.⁹⁵That in turn increases the importance of

that elevated surface edge being hard and stable; i.e.,

in terms of ensuring the rear motorcycle tire’s ability

to maintain traction sufficient to sustain forward

movement and corresponding stability of the vehicle,

while it transits over such a change in elevation.

Such traction, and corresponding maintenance of a

motorcycle’s forward momentum, is particularly

important in situations where a motorcycle is

travelling at slower speeds, which require greater

operator input, (in terms of rider movement and

balance adjustments), to keep a motorcycle stable

without having to put his or her feet down on either

side of the vehicle; something properly trained

motorcycle operators ideally never do while their

motorcycles are in motion.

4. Furthermore, riders of motorcycles self-evidently are exposed to

greater risks of physical harm in the event of an accident, insofar as

they are not surrounded by and restrained within a protective area of

a vehicle.

iii. In my view, repeated assertions by defence witnesses that vehicles such as

cars, transport trucks and emergency vehicles are able to safely transition

onto freshly paved and elevated surfaces essentially minimize and/or ignore

the ordinary but enhanced risks such new and raised asphalt surfaces may

pose to motorcycle operators and passengers.

d. In my view, the physical evidence depicted in the photographs and video segments

filed as exhibits deserves a great deal of weight in this case, as it is inherently

objective and enables a number of significant inferences. Without limiting the

generality of the foregoing:

i. Although the particular new asphalt driven over by Ms MacLean may have

been compacted, it self-evidently was not solid and hard at the time of Ms

MacLean’s accident nor shortly thereafter - and certainly did not have the

hardness of finished asphalt, described by Glenn Walmsley, capable of

⁹⁵Mr Inglis explained that the primary point of traction occurs at that point, where the leading edge of the motorcycle’s

rear tire effectively is trying to “pull the rear wheel up and over the edge”; i.e., rather than the rear contact point where

the motorcycle’s rear wheel effectively is being lifted, or trying to be lifted, and therefore “ascending” off the surface

of the lower elevation. Indeed, there will be a point where the rear tire effectively is raised and held up only by its

rotating contact point with the surface of the elevated surface edge, such that most of the rear tire actually is

“overhanging” that edge, above the lower elevation it is no longer touching. Mr Inglis emphasized that, because of

such realities, in such situations involving a rear motorcycle tire attempting to traverse a raised elevation, “the traction

that the tire had is very seldom an issue compared to the traction that the tire is trying to get”.

Page: 80

having heavy transport trucks traverse it without leaving a mark. For

example:

1. In my view, solid and hard asphalt would not splatter and disperse

in clumps or gobs of various sizes along and from an approximate

four-to-six-foot length of its outer edge or “lip”, (estimated on the

basis of the testimony of Mr Miles, as well as the standard sized

cigarette packet Mr Miles placed in the photographs taken of that

area to provide an indication of scale), in the manner photographed

at the point where Ms MacLean attempted to transition from the

“old” pavement of the normally northbound traffic lane of

Richmond Road to the recently applied asphalt in the normally

southbound traffic lane of Richmond Road.

2. Similarly, in my view, a motorcycle falling on solid and hard asphalt

would not result in obvious clusters of asphalt adhering to and to

some extent encasing various components of that falling

motorcycle, including one of its front turn indicators, part of its

handlebars, and its gear mechanism.⁹⁶Forceful high impact

collisions between vehicle components and solid/hard pavement

normally result in scrapes and gouges, not marked and noticeable

accumulations of asphalt adhering to and surrounding vehicle

components. In that regard, I note that asphalt also adhered to softer,

padded and flat areas of Ms MacLean’s motorcycle, (e.g., its leather

seating), where the force of contact between the newly paved

surface of the northbound lane and the falling motorcycle,

“toppling” onto its side when its slowing forward momentum came

to an end, inherently would have been blunted and/or cushioned. In

my opinion, all of that documented asphalt adherence goes well

beyond the sort of very temporary “tacky” surface paste quality

Glenn Walmsley described, (i.e., a surface that, if touched by hand,

would be “sticky” in a manner akin to touching masking tape, and

possibly capable of leaving a “black stain”, but not capable of

leaving asphalt sticking to one’s hand), when attempting to

minimize the markings that might be made by freshly applied

asphalt once the finishing roller had completed its work. Varying

amounts of asphalt also adhered to the front and rear tire treads of

Ms MacLean’s motorcycle.

3. Likewise, in my view, solid and hard pavement would not have

exhibited numerous and obvious markings left on the freshly applied

⁹⁶I note in passing that such concentrations of asphalt were found primarily on components located on the left side of

Ms MacLean’s motorcycle. That evidence, along with obvious scrapes and other damage to components on the left

side of the motorcycle, (outlined in more detail below during my discussion of the testimony provided by Mr Inglis),

makes it reasonably clear that the vehicle eventually fell over on its left side.

Page: 81

asphalt in the northbound lane by the accident and the events that

took place in its immediate wake. Without limiting the generality

of the foregoing, the photographs include depiction of: tracks

leading away from the area where Ms MacLean’s motorcycle finally

managed to traverse the asphalt lip; additional marks in the areas

where Mr Miles is said to have temporarily parked his motorcycle;

marks where a vehicle, (which I find on a balance of probabilities to

be that of Glenn Walmsley), drove from east to west across the

freshly applied asphalt in the southbound lane, at a location south of

the accident scene and in a rounded arc showing that the vehicle was

turning from a southbound direction around to a northbound

direction to reach the eastern shoulder of the road; and marks where

the attending ambulance temporarily parked to collect Ms MacLean

and Hailee. In that regard, I reject the suggestion that the marks

created by the ambulance were brought about solely by heat friction

built up on the tires of the ambulance as it hurried to the accident

scene from a distant location. Glenn Walmsley indicated in his

testimony that, when he learned of the accident and decided to drive

back from the location of the paver to where the accident had

happened, he had been working at the paver for some time, while

his vehicle had been parked somewhere along the road to the north

of the accident scene. It was only after learning of the accident that

he then went to his parked vehicle, and used it to drive from the area

where fresh asphalt was still being initially applied to the road, and

south in the normally northbound traffic lane, to a point south of the

accident scene, before then driving west across the freshly applied

asphalt in the southbound lane to reach and park on the west

shoulder of the road. In my view, the tires on his vehicle accordingly

did not have had any opportunity build up significant heat friction

because of those movements, yet they too left marks where Mr

Walmsley drove across the freshly applied asphalt to the south of

the accident scene; asphalt that was applied even earlier than that

located at the immediate scene of the accident, and which

accordingly had more time to cool and harden than the asphalt

located where Ms MacLean attempted to transition over the edge or

lip of the new asphalt.

ii. In my view, the manner and pattern in which clumps or gobs of soft fresh

asphalt were dispersed from the area of the edge or lip of new asphalt Ms

MacLean attempted to traverse, and where they came to lie, are extremely

telling and justify a number of other important inferences. In particular:

1. Such clumps or gobs of displaced asphalt are found nowhere along

the edge or lip of the freshly applied asphalt except in the area of the

edge or lip Ms MacLean attempted to traverse. In my view, the only

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sensible conclusion is that the dispersal was produced by the

mechanics of the accident.

2. In that area of the accident, the clumps or gobs of displaced fresh

asphalt are found only on the “old” pavement in the northbound lane

of the road, to the immediate east of the freshly applied asphalt,

without any being visible on the nearby rolled surface of the asphalt

in the southbound lane, immediately to the west of the accident

scene. In my view, the only sensible conclusion is that the asphalt

was dispersed by an applied force that was displacing asphalt from

the edge or lip and sending it out in one direction; i.e., into the

normally northbound traffic lane to the east, and low to the ground.

Moreover, the application of such force is obviously consistent with

a spinning tire rotating in a counter-clockwise fashion when viewed

from the south, or a clockwise fashion when viewed from the north.

That spinning tire was obviously applying force to the fresh asphalt

in a manner than caused it to dislodge from the edge or lip of the

new asphalt before it was then carried downwards and then

propelled out into the normally northbound traffic lane by the

spinning tire’s rotation.

3. To have that effect, the relevant spinning tire being applied to the

edge or lip of the new asphalt must have been one whose rotation

continued to be forceful in a sustained way; i.e., such that it kept

spinning along a significant length of the edge or lip of the new

asphalt despite the resistance offered by the fresh asphalt it was

encountering. It therefore must have been a tire powered by a motor.

It accordingly must have been the rear tire of Ms MacLean’s

motorcycle, as that motorcycle, (like most standard motorcycles),

was propelled by a rear wheel drive system; i.e., whereby only the

rear wheel was powered by the engine, effectively pushing the non-

powered front wheel forward ahead of it.

4. The front tire of Ms MacLean’s motorcycle obviously remained a

generally fixed and constant distance ahead of its rear tire. If the

rear tire of Ms MacLean’s motorcycle was the one spinning up

against the edge or lip of the new asphalt along the area where Ms

MacLean was trying to traverse that edge or lip, the front tire of her

motorcycle self-evidently must have succeeded in making it up and

over the asphalt lip and onto the smoothed and flattened top surface

of that new asphalt, and remained there before and while the rear

tire came into contact with the edge or lip of the new asphalt and

commenced its application of spinning force against that edge or lip.

5. In my view, one does not need to be an expert in accident

reconstruction to be familiar with the common “fly wheel” effect of

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a spinning wheel, through the application of centrifugal force,

casting and dispersing non-solid substances it meets out to the rear

of the spinning wheel, in a direction aligned with the position of that

spinning wheel. In my view, when one applies recognition of that

effect to the pattern of asphalt dispersion displayed in the

photographs, in the area where Ms MacLean attempted to traverse

the edge or lip of the new asphalt, it is clear that the spray pattern is

entirely consistent with Ms MacLean’s spinning rear wheel

progressively casting off dispersed asphalt at an increasing angle to

that new asphalt edge or lip; i.e., starting at a shallower angle close

to 45 degrees, at the point where Ms MacLean’s rear tire initially

came into contact with the edge or lip, and gradually increasing, as

the spinning rear tire slid along that edge or lip to the left/south, to

an angle where it was almost perpendicular to that new asphalt edge

or lip and the road; i.e., at something close to a ninety degree angle.

That in turn allows for inferences that Ms MacLean’s rear wheel was

aligned at 45 degrees to the asphalt lip when it initially made contact

with the edge or lip of the new asphalt, but progressively increased

to a perpendicular alignment to the edge or lip of the asphalt as it

kept spinning and sliding to the left/south along that edge or lip.

6. At the point where the dispersal of fresh asphalt clumps or gobs

comes to an end, there is also a noticeably deeper lateral indentation

into the edge or lip of the new asphalt, and a greater amount of

corresponding dispersed asphalt cast off by the spinning rear tire’s

“fly wheel” effect. In my view, that objective evidence is consistent

with the spinning rear tire digging into the new asphalt at that point

and achieving greater traction.

iii. I think the video recording documenting where asphalt did and did not

adhere to Ms MacLean’s motorcycle tires is also quite telling, and allows

for further inferences. In that regard:

1. It should be noted that the video recording Mr Miles made of Ms

MacLean’s vehicle after the accident, (apparently using his

handheld cellphone), is not ideal. Movement of the camera around

the stationary motorcycle is occasionally disorienting and, in my

view, the video does not really display much of the left side of the

motorcycle’s tires. Certainly, the video includes views of the right

side of the tires that are much more extensive than any brief

depiction of the left side of those tires.

2. However, I think the video makes it abundantly clear that there is no

noticeable asphalt on or adhering to the smooth/flat sidewalls on the

right side of the motorcycle’s tires; i.e., as opposed to the outer

rounded areas of the tires where the tread of the tires is located.

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3. In my view, that makes it clear that the sides of Ms MacLean’s

motorcycle tires, and their right side in particular, did not come into

contact with the edge or lip of the new asphalt; i.e., by the

southbound motorcycle being operated in a manner that brought its

tires close up to the lip of fresh asphalt in a parallel and extremely

close fashion, such that the right sides of the tires then rubbed up

against the edge or lip of the new asphalt as they might have done if

the motorcycle then had attempted to traverse the asphalt lip at an

extremely shallow or small acute angle.

4. Moreover, to the extent the video shows that the asphalt adhered

primarily to the right side of the rounded tire treads, in my view that

is consistent with:

a. the right side of the rear tire tread being the primary contact

point between the rear tire and edge or lip of new asphalt as

that tire tried to gain transaction over that edge or lip at an

angle placing the right side of the tire tread into more contact

with the asphalt lip than the left; and

b. the right side of the front tire tread being forcefully pushed

forward in a sideways movement along the top surface of the

fresh asphalt if the front wheel was turned significantly to

the left at a time when the rear tire acquired traction.

iv. As noted above, the objective physical evidence also includes helpful

photographs, taken by Mr Watters on the afternoon of the accident, after it

happened, showing various views along Richmond Road as one approached

and passed through the Walmsley Brothers work area from the north and

from the south. In that regard:

1. The photographs show the stationary roadwork-related signage,

(i.e., as opposed to mobile signs that may have been held by

flaggers), that was and was not posted along Richmond Road around

the time of the accident. In particular:

a. Approaching the work area from the north, vehicle operators

progressively passed:

i. a prominent and large orange and black sign on the

right shoulder of the road, surmounted by three

orange flags, depicting a stick figure working at a

raised surface on the ground, indicating roadwork

ahead;

ii. a second prominent and large orange and black sign

on the right shoulder of the road, also surmounted by

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three orange flags, showing a stick figure holding a

sign on a pole, indicating that flaggers would be

ahead, controlling traffic in the roadwork area; and

iii. a third prominent and large orange and black sign on

the right shoulder of the road, with the word

“CONSTRUCTION” surmounted by a forward

pointing arrow, indicating the presence of

construction work on the road ahead.

b. Approaching the work area from the south, vehicle operators

progressively encountered, on the right shoulder of the road

and in the same order, the three prominent black and orange

signs described in the preceding sub-paragraph. However:

i. Those three initial signs encountered by drivers,

proceeding north on Richmond Road towards the

work area, were supplemented by two additional

signs; signs that were located beside each other on

the right shoulder of the road, slightly to the south

but almost directly to the east of where the edge of

the newly applied asphalt commences in the

southbound lane. The sign on the left was another

large and prominent orange sign with a diagram

depicted a series of three horizontal elevations or

bumps, (referred to by Glenn Walmsley as “bump”

signs), and an arrow above them pointing forward.

The sign to the right has the words

“CONSTRUCTION ZONE” in a white square on

top, and the word “BEGINS” in a black square

below.

ii. Continuing north on Richmond Road beyond the

work area, and all of the fresh pavement in the

southbound lane to the left, one eventually

encountered two similar but slightly different signs

on the right shoulder, erected side by side; i.e., a large

black and orange one on the left depicting three

similar horizontal bumps but with no forward-

pointing arrow above them, and a sign on the right

with the words “CONSTRUCTION ZONE” in a

white square on top and the word “ENDS” in black

square below.

c. The photographs depict no signs specifically indicating to

drivers approaching or passing through the work area that

Page: 86

there would be a “bump”, “change of elevation” or “uneven

lane surface” encountered if their path of travel transitioned

from one lane to the other; i.e., as opposed to bumps that

might be encountered if they simply proceeded in a forward

direction in their existing laneway.⁹⁷To the extent such

signs reasonably may have been required to alert drivers to

such a bump or change in elevation, and any associated

hazards, to facilitate safe travel over those areas by ordinary

drivers, exercising reasonable care, there was a failure to

erect such signage.

d. I nevertheless am not satisfied, on a balance of probabilities,

that any such failure was a cause of Ms MacLean’s accident.

In their testimony, Hailee Stone and Mr Miles independently

confirmed that the newly applied asphalt presented a marked

contrast to the “old” pavement in the northbound lane, (e.g.,

saying that it was “a lot darker”, “pretty much black”, and

“really black”), and that the slope and elevated edge or lip of

that new asphalt, along the centre of the road, was quite

noticeable. In my view, the photographs taken shortly after

the accident confirm that. Perhaps most importantly, in

relation to this particular issue, Ms MacLean indicated and

confirmed in her own testimony that she saw and was aware

of the change of elevation from the “old” pavement in the

northbound lane of the road to the higher level of new asphalt

in the southbound lane, and the jagged/rough slope of the

asphalt lip, (e.g., seeing it to her right as she was driving

south in the northbound lane), and could tell where the new

asphalt started, before attempting to make the transition over

that eastern edge or lip of that new asphalt. In the

circumstances, the absence of signs indicating that motorists

would encounter a “bump” or “change of elevation”, if and

when transitioning from the northbound lane to the

southbound lane in the area of new asphalt, accordingly did

nothing to detract from Ms MacLean’s actual awareness of

that “bump” or “change in elevation”. In my view, it

accordingly cannot be said, on a balance of probabilities, that

the accident would not have occurred “but for” the absence

of such warning signs.

⁹⁷In his testimony, Glenn Walmsley confirmed that there were no such signs posted in relation to the Richmond Road

paving project. In that regard, Mr Walmsley also indicated that, while Walmsley Brothers has “uneven lane surface”

signs now, they did not exist at the time of the Richmond Road paving project. Moreover, even today, Walmsley

Brothers sets up such signage only when a particular paving project necessarily is left in an unfinished condition

overnight.

Page: 87

2. In my view, the other helpful and significant aspect of the objective

photographic evidence of Richmond Road, in the area of paving

work being done by Walmsley Brothers, relates to the professed

justifications relied upon by the defendants for the rear flagger, (i.e.,

Ian Albert at all relevant times), moving north beyond the southern

terminus of the freshly applied asphalt in the southbound lane, and

directing southbound traffic onto that freshly applied asphalt over

its eastern edge or lip, instead of allowing such southbound traffic

to proceed south in the northbound lane to a point where it could

transition back into the southbound lane without having to drive

over or on the freshly applied asphalt at all. In that regard:

a. As noted above, one of the justifications offered in that

regard was the need to preserve clear sight lines between the

lead and rear flaggers, to facilitate their co-ordination of one-

way traffic flow around and past the ongoing paving

operation. In particular, it was suggested that Mr Albert

needed to move north, past the southern terminus of the fresh

asphalt, because a clear sight line to the front flagger

otherwise would have been obstructed by an intervening hill.

However:

i. In my view, the photographs make it clear that was

not, in the prevailing circumstances, a realistic or

significant concern that justified Mr Albert moving

forward and forcing southbound traffic onto the

newly applied asphalt.

ii. Although the photographs show that there was

indeed a slight hill encountered along Richmond

Road as one approached the work area from the

south, effectively preventing northbound drivers

from seeing much of the work operation ahead until

they progressed further and ascended that hill, the

application of new asphalt in the southbound lane

actually began beyond the crest of that hill as one

proceeded north along Richmond Road from points

south of that hill.

iii. In particular, as noted above, the photos make it clear

that the southern terminus of the new asphalt lies to

the north of the two adjacent signs on the right

shoulder indicating the presence of bumps ahead, and

Page: 88

“CONSTRUCTION ZONE BEGINS”.⁹⁸Yet the

photos also make it clear that, while still standing to

the south of those two adjacent signs, one had a clear

and uninterrupted view all the way downhill to the

ongoing paving operation; an operation which would

have been closer to those two adjacent signs at the

time of the accident than it was when the photos were

taken later in the day.⁹⁹

iv. While the rear flagger initially may have been

required to position himself further south along the

road when Walmsley Brothers commenced its

paving operations that day in the southbound lane of

Richmond Road, (i.e., to allow room for the rollers

to do their work beyond the southern terminus of the

new asphalt), by the time Ms MacLean was

approaching and making her way past the paving

operation, that was no longer required. The rear

flagger had the ability to move north along the road

to a location providing a clear and direct sight line to

where the lead flagger would have been standing at

the time, while still being in a position to permit

southbound traffic to travel completely past the new

asphalt before being redirected back into the normal

southbound lane; i.e., a position permitting

southbound traffic to travel completely past and

around the southern terminus of the new asphalt,

without having to travel onto or over that new

asphalt.

b. As noted above, another justification offered for Walmsley

Brothers’ standard practice of having its rear flagger move

forward as soon as possible after completion of the finishing

roller’s work was a desire to reduce the possibility of traffic

entering the roadway from lateral access points (such as

driveways) between the two flaggers, thereby potentially

disrupting the one-way flow of traffic between the flaggers.

However:

i. In my view, the photos make it clear that was not, in

the prevailing circumstances, a realistic or

⁹⁸See, in particular, photograph number 21 at Tab 3 of Exhibit 2.

⁹⁹See, in particular, photograph number 22 at Tab 3 of Exhibit 3.

Page: 89

reasonably significant concern that justified Mr

Albert moving forward and forcing southbound

traffic onto the newly applied asphalt, at least in

terms of his moving forward when and how he did

from the southern terminus of the asphalt to the area

where he directed Ms MacLean onto the newly

applied asphalt.

ii. The photos show that the relevant stretch of

Richmond Road passes through a largely rural and

undeveloped area, with few residences or businesses

on either side of the roadway.

iii. The photos also make it clear that, proceeding north

from the southern terminus of the newly applied

asphalt, there were only two lane entrances on the

eastern side of Richmond Road between the southern

terminus of the fresh asphalt and the ongoing

operation.¹⁰⁰Moreover:

1. The first of those lane entrances on the

eastern side of the road (proceeding from

south to north) is situated immediately to the

north of the “CONSTRUCTION ZONE

BEGINS” sign.

Had Mr Albert been

standing in the area of that sign, (and

simultaneously to the south of the southern

terminus of the fresh asphalt), he easily could

have controlled traffic moving north and

south in the northbound lane of the road,

allowing southbound traffic to transition back

into the southbound lane without having to

transition onto the new asphalt, while also

being in a position to stop and control any

vehicle that might have wanted to exit that

first laneway on the eastern side of the road.

2. The second of those lane entrances on the

eastern side of the road (again proceeding

from south to north) is situated immediately

to the north of the fenced cemetery area, and

effectively was blocked by a large and

unoccupied tractor parked in its entrance.

¹⁰⁰In that regard, see photographs 21, 22, 23, 29 and 30 of Tab 3, Exhibit 2.

Page: 90

There clearly would be no vehicles exiting

that laneway unless someone arrived to

operate that tractor; a potential development

Mr Albert definitely would have been in a

position to monitor and address had he been

standing near the “CONSTRUCTION ZONE

BEGINS” sign.

iv. The photos similarly make it clear that, proceeding

north from the southern terminus of the newly

applied asphalt, there was in fact only one lane

entrance on the western side of Richmond Road

between the beginning of the Construction Zone and

the ongoing paving operation; apparently the

entrance to a residential property, (judging by the

mailbox at its entrance), situated well back from the

road along a lane that is unobstructed and clearly

visible for a considerable distance to the west of the

road.¹⁰¹In my view, any vehicle exiting that lane

inherently would have presented a reduced risk of

interrupting the one way flow of traffic through the

northbound lane of the road; e.g., as it self-evidently

would not have entered that southbound lane

immediately upon entering the roadway, regardless

of its intended direction of travel. Moreover, had Mr

Albert been standing near the “CONSTRUCTION

ZONE BEGINS” sign, directing southbound traffic

to transition back into the southbound lane after

passing all the newly applied asphalt, he definitely

would have been in a position to monitor and readily

address any vehicle wanting to exit that particular

laneway, which would have been only a relatively

short distance away from his location.

c. As noted above, other justifications offered for the

Walmsley Brothers’ standard practice of having its rear

flagger move forward as soon as possible after completion

of the finishing roller’s work related to a desire to minimize

traffic delay and opportunities for vehicles to accelerate too

quickly between the flaggers; i.e., to prevent the distance

between the flaggers from becoming extended to the point

where such concerns reasonably might arise. However:

¹⁰¹See photographs 21, 22, 23 25, 26, 27, 28, 29 and 30 of Tab 3, Exhibit 2.

Page: 91

i. In my view, the photos make it clear that the extent

to which either goal was promoted by Mr Albert

moving north from the “CONSTRUCTION ZONE

BEGINS” sign to a position slightly to the south of

where Ms MacLean attempted to transition onto the

new asphalt in accordance with Mr Albert’s

direction, (clearly indicated by the displaced fresh

asphalt extending into the northbound lane), was

minimal.

ii. In particular, Mr Albert moving forward in that

manner shortened the distance between himself and

the lead flagger by a distance of approximately 100

meters, if that. The corresponding reduction in

traffic delay and opportunity for vehicle acceleration

between flaggers accordingly was very small, and in

my view reasonably did not warrant the risks posed

by directing southbound traffic and motorcyclists in

particular onto the fresh asphalt, (and therefore over

an edge of that asphalt that might not be sufficiently

hardened to enable a safe transition between the old

pavement and new asphalt), instead of allowing the

southbound traffic to proceed past the new asphalt

entirely before transitioning back into the

southbound lane.

v. Drawing all these inferential threads together:

1. In my view, the objective physical evidence strongly supports the

accounts of the accident provided by Ms MacLean, Hailee and Mr

Miles, the essence of which described a scenario wherein Ms

MacLean attempted to traverse the asphalt lip at a substantial angle

approximating 45 degrees, with her front tire easily going up and

over the asphalt lip before her rear tire started spinning to the left, at

an increasing angle to the asphalt lip, as it tried to gain enough

traction to traverse the lip, during which time Ms MacLean was

turning her front wheel to the left, (i.e., into the direction of the rear

wheel slide), in an attempt to keep it stable as it continued to move

forward slowly to the south;

2. In my view, the objective physical evidence is not consistent with

the suggestions, made by Chris Walmsley and Ian Albert, that the

accident occurred when Ms MacLean supposedly approached and

attempted to traverse the edge or lip of the new asphalt at an

extremely small/shallow acute angle almost parallel to that edge or

lip, deliberately slowed down, and/or lost stability when her front

Page: 92

tire then came into contact with and somehow “caught” that edge or

lip of the new asphalt, leading to her front wheel being turned

suddenly and sharply to the right over and onto the new asphalt, and

her rear wheel “bouncing” up over and onto that new asphalt as well,

with all of that happening almost “instantly”.

3. In my view, the objective physical evidence does not support

defence contentions that there was any objectively reasonable need

or justification, in the prevailing circumstances, for the rear flagger

at the south end of Walmsley Brothers’ paving operation, (i.e., Ian

Albert), to move forward (north) past the southern edge of the

freshly applied asphalt and direct/force traffic travelling south in the

northbound lane over and onto the new asphalt in the southbound

lane instead of driving completely past and around that new asphalt.

e. I think those inferences drawn from the objective physical evidence are also

supported by the testimony of Mr Inglis. In my view, Mr Inglis recounted his

observations of Ms MacLean’s motorcycle after the accident, and provided his

expert opinion evidence regarding motorcycle operation and how a motorcycle

such as that of Ms MacLean would have reacted and should have been operated in

the circumstances, in a completely objective and impressive manner, without his

testimony being meaningfully challenged in cross-examination. Without limiting

the generality of the foregoing, the testimony of Mr Inglis in that regard, which I

accept in its entirety, included the following indications:

i. Prior to being retained as an expert witness in relation to this matter, Mr

Inglis inspected Ms MacLean’s damaged motorcycle when it was brought

to the London service department of his family business for repair.¹⁰²The

damage he observed was both physical and cosmetic. In particular:

1. There was physical damage confined to the left side of the

motorcycle, consistent with it having fallen onto its left-hand side.

Such damages included scratches on the left side of the motorcycle’s

windshield, handlebars and front fender, a broken left side “foot

peg”, a bending of the shift mechanism located on the left side of

the motorcycle, and further damage to the left “saddlebag” at the

rear of the vehicle.

2. There was significant cosmetic damage caused by very noticeable

and significant adherence of asphalt to various components of the

motorcycle; something Mr Inglis found to be quite surprising,

unprecedented and unique in the hundreds of motorcycle damage

¹⁰²Because of his acquired expertise, Mr Inglis routinely involved in the inspection of all motorcycles brought in for

repair owing to accidents or alleged accidents, as such cases frequently give rise to additional insurance issues.

Page: 93

appraisals he has conducted, and therefore quite memorable. In

particular, Mr Inglis testified that, while he has seen marks made on

motorcycles falling on and/or travelling over various asphalt

surfaces, sometimes including a degree of black colour transferred

on to the contact surfaces of a motorcycle, he had never before

encountered or seen a situation like that of Ms MacLean’s damaged

motorcycle, where various components of the motorcycle were

“actually somewhat caked in asphalt”. For example:

a. the motorcycle’s clutch lever mechanism would not work

properly “because of the amount of asphalt that was actually

caked in the clutch lever”, and asphalt that had made its way

into the clutch lever pivot assembly; and

b. significant asphalt also had adhered to various other

components of the vehicle, including the rear portion of the

gear shifter mechanism on the outside of the engine, the left-

hand saddle bag, the left foot peg, and the treads (but not the

sidewalls) of the motorcycle’s tires.

3. Indeed, Mr Inglis had a memory of his hands filling with asphalt as

he was obliged to pick asphalt off and out from components of the

motorcycle, sometimes with the aid of a screwdriver.

ii. In terms of the underlying dynamics of traction between a motorcycle’s rear

tire and underlying surface areas during the accident:

1. I already have outlined and discussed the testimony of Mr Inglis,

explaining how and why the contact surface between the leading

rounded tread of a motorcycle’s rear wheel and the edge of a raised

elevated surface such as that presented by the new asphalt edge/lip

in this case is so small and concentrated, making the stability of the

edge of that elevated surface particularly important to the

maintenance of traction, forward momentum and ongoing stability

of a motorcycle.

2. For reasons to which I will return in more detail below, Mr Inglis

also explained why the need for stability of that elevated surface

edge is even more important in relation to motorcycles carrying

passengers; i.e., where there will be increased concentrated weight

bearing down on the rear tire and that elevated surface edge.

3. Mr Inglis explained and confirmed how and why the powered rear

wheel of a motorcycle will start to spin, “looking for traction”, if the

leading edge of that wheel’s tire cannot acquire adequate traction at

the point where it meets the elevated surface edge.

Page: 94

4. Mr Inglis also noted that, if such a situation occurred as a rear

motorcycle wheel was attempting to pass across the raised edge of

an elevated surface running parallel to the right, by approaching that

raised edge at an acute angle, (such as a 45 degree angle), the

spinning rear tire would tend to move or slide from right to left as it

continued to spin along the edge of the raised surface, with the

spinning rear tire gradually becoming more perpendicular to that

edge as it continued to look for traction.

5. Mr Inglis confirmed that, when such a spinning rear motorcycle tire

is looking for traction on anything that is not a solid surface, it will

displace the underlying unstable surface “out the rear” of that

spinning tire in a “bit of a path” directly “behind” and “following”

that spinning rear tire.

6. Moreover, in the experience of Mr Inglis, when a raised but unstable

surface edge running parallel to the right initially is approached by

a motorcycle’s rear tire on an angle, and that rear tire then starts to

spin along the unstable edge of the elevated surface “looking for

traction” in the manner described above, (i.e., moving from right to

left and becoming more perpendicular to the raised surface edge), it

will displace the underlying surface material of the edge in a “spray

pattern of debris” consistent with that displayed in photographs of

the accident scene in this case.

7. While the “contact patch” and area of potential traction between the

rounded tread of a rear motorcycle tire and an underlying surface

normally will be limited to the area of the underlying surface directly

beneath the tire, Mr Inglis confirmed that additional traction might

occur if the entire tread of the rounded motorcycle tire effectively

became more immersed in an underlying surface; i.e., such that the

surface was not just at the bottom of the rounded tire but also coming

up and around the left and right sides of its rounded tread, providing

additional points of contact.¹⁰³

iii. In terms of expected and appropriate motorcycle operation in the event such

conditions are encountered:

1. Mr Inglis indicated that, in his experience, it was not common to

encounter and have to traverse a raised asphalt edge, like the one in

¹⁰³In my view, that phenomenon seems entirely consistent with the physical evidence depicted in the accident scene

photographs, (and described in the testimony of Mr Miles), indicating that the rear wheel of Ms MacLean’s motorcycle

was spinning against the unstable elevated edge of the new asphalt until it became almost perpendicular to that edge,

where it dug deeper into the new asphalt and displaced a larger portion of it at the point where it finally obtained

sufficient traction to propel the rear tire up and over the edge of the new asphalt.

Page: 95

this case, while riding a “street bike”. Those receiving standard

training for their “M2” licensing examinations normally do not

receive any practical training in relation to traversing such a raised

elevation running parallel to the path of travel. Nor is there any

practical training imparted, during any part of the M1 or M2

licensing process, in relation to operation of motorcycles on loose

surfaces, including loose asphalt. While Mr Inglis did not anticipate

that most street motorcycle operators would encounter difficulty

transitioning such a parallel elevation if it was “hard” and

“seasoned”, he felt that it would be problematic for them if it was

soft and unstable, making it difficult for a motorcycle’s rear tire to

obtain traction on it.

2. Mr Inglis explained why a motorcycle confronting such a situation,

(i.e., with its powered rear wheel losing traction and starting to spin

along the edge of a raised but unstable surface), would be unable to

maintain its current speed and slow down “on its own”, for reasons

other than the driver braking.

3. Mr Inglis emphasized that a motorcycle operator encountering such

a situation naturally and properly would want to maintain speed by

trying to give the motorcycle “more gas”, (i.e., by using the throttle

to apply more power to the spinning rear wheel), as the situation

would create a stability problem without increased acceleration and

the rear tire getting up and over the edge of the raised elevation.

4. Mr Inglis also explained and emphasized how and why a

motorcycle operator encountering such a situation, (i.e., with the

rear tire of his or her motorcycle spinning and sliding to the left

along the edge of a raised elevation to his right, still moving forward

along the roadway while trying to find sufficient traction to make it

over the elevated surface edge), naturally would need to turn the

motorcycle’s front wheel to the left and into the direction of the

slide, and lean slightly to the left, in order to maintain the vehicle’s

stability by ensuring that both the back and front of the motorcycle

were proceeding in the same general direction along the road.

5. Mr Inglis also explained and confirmed why the sudden lowering of

a motorcycle’s front end and the sudden elevation of its rear end,

including its rear tire being raised off the ground, is extremely

unlikely to occur simply because of the operator’s application of

brakes on the front wheel. Under normal circumstances, the

motorcycle’s weight distribution normally will not allow that to

happen, and any arrested forward momentum caused by the braking

normally would be absorbed by compression of the motorcycle’s

front suspension system. The rear end of the motorcycle bucking

Page: 96

upwards accordingly would require the application of different and

significantly greater forces.

f. I deliberately have focused on inherently more objective evidence, before provision

of my credibility and reliability assessments of the remaining trial witnesses,

because I think the former clearly has an important bearing on the latter in this case.

In particular, where witness testimony seemed consistent with such objective

evidence, that naturally enhanced my impression that such witness testimony was

credible and reliable, in turn making it more likely that the testimony of that witness

could be trusted in relation to other matters as well. Conversely, where witness

testimony seemed markedly at odds with objective evidence, it made me less

inclined to accept the testimony of that witness in relation to other controversial

issues. Bearing those general considerations in mind, I have the following

additional comments about the witness testimony I received:

i. I am very mindful that, with the exception of Mr Inglis, all of the witnesses

testifying at trial arguably have a personal interest in the outcome of this

litigation. Without limiting the generality of the foregoing:

1. Ms MacLean’s recovery of damages obviously depends on the

extent, if any, to which the defendants are found liable for her

acknowledged injuries and loss, and the extent, if any, to which Ms

MacLean is found to have been contributorily negligent.

2. Hailee Stone has no direct monetary stake in the outcome of the

litigation, but clearly has a strong attachment to and sympathy for

her aunt, Ms MacLean, and no doubt would like her aunt to be

successful in this litigation.

3. As a named plaintiff, Mr Miles has a direct financial interest in the

outcome of the litigation for the same reasons as Ms MacLean.

Having said that, it also seems likely that his financial interest as a

Family Law Act claimant pales in comparison to that of Ms

MacLean, and the couple’s separation and divorce arguably reduced

his incentive to assist in Ms MacLean’s recovery of damages.

4. As the president of Walmsley Brothers, charged with primary

responsibility for the welfare of what clearly seems to be a

longstanding family business, and preservation of a longstanding

business relationship with Elgin County, Glenn Walmsley has a

strong interest in defending his company’s financial interests and

business reputation, both of which might be affected by any formal

finding that Walmsley Brothers conducted its paving operation in a

manner that compromised the safety of motorists.

Page: 97

5. As a member of the family which has owned and controlled

Walmsley Brothers for generations, a son of its current president,

and an employee of Walmsley Brothers, Chris Walmsley has a

similar interest in defending the financial interests and reputation of

the family paving business.

6. As a longstanding employee of Walmsley Brothers, Ian Albert has

an interest in defending his employer. Beyond that, he also has a

personal interest in defending his personal job performance as a rear

flagger at the time of the underlying accident.

7. As the deputy director of engineering for Elgin County, Mr Dutchak

is motivated to defend the interests of the county, and avoid possible

findings of liability against the county based on the quality of

roadwork done within the county “on his watch”.

ii. I also think it likely – and indeed acknowledged directly or indirectly to

some extent, at least from the defence perspective - that there was some

degree of advance discussion over time between plaintiff witnesses, (apart

from Mr Inglis), and between defence witnesses, concerning events

surrounding the accident. In that regard:

1. For the reasons noted above: the accident was of interest to all such

witnesses; the plaintiff witnesses other than Mr Inglis were family,

at least until Ms MacLean and Mr Miles separated; and the

defendant witnesses were, to varying degrees, related, co-workers,

and/or mutually interested in the adequacy of paving practices

employed in relation to the roads of Elgin County. In such

circumstances, I think it would be unrealistic to think discussion of

the underlying event between plaintiff witnesses and between

defence witnesses did not take place.

2. However, I reject the suggestion by defence counsel that the

testimony of Ms MacLean, Hailee and Mr Miles was “patently

coordinated”; e.g., because they provided generally similar accounts

and all chose, at some point in their respective testimony, to use the

adjective “jagged” when describing the surface texture of the slope

of asphalt leading up from the old pavement in the northbound lane

to the flattened surface of the new asphalt in the southbound lane.

As indicated by the summary of testimony outlined above, the

accounts provided by Ms MacLean, Hailee and Mr Miles varied in

extent and detail, as one might expect when people experience and

recall the same incident from different perspectives, and were not

always consistent. I definitely did not form an impression of tailored

evidence, as far as the plaintiff witnesses were concerned.

Page: 98

3. Conversely and in fairness, I think it should be noted that Chris

Walmsley expressly and repeatedly noted that he had been speaking

with Ian Albert about the incident in advance of trial, in turn making

it difficult for him, at times, to differentiate between his independent

memories and what he simply may have heard from Mr Albert.

Moreover, Glenn Walmsley effectively acknowledged that he too

must have received information about what his son Chris and/or Ian

Albert were alleged to have seen, insofar as he admittedly was near

the paver and did not witness the events leading to the accident or

the accident itself, but nevertheless was eager to emphasize, during

the course of his testimony, his belief that the accident was caused

by Ms MacLean driving her motorcycle too close and parallel to the

edge of the new asphalt before trying to transition onto it.

iii. By way of additional observations in relation to the testimony of Ms

MacLean:

1. She presented her evidence in a somewhat somber but generally

confident manner, without any pauses or hesitation suggesting

evasion or effort to present anything but honest answers. When she

was unsure of something, (e.g., the signage held by flaggers),

admittedly could not recall certain things, or was not in a position at

the time of underlying events to make certain observations, (e.g., as

to whether the center or side of her rear tire was sliding along the

edge or lip of the new asphalt, or the precise position or movements

of Mr Miles when he was driving to her rear), she candidly and often

proactively acknowledged that to be the case. She expressly

declined to “guess” when she simply did not know the answers to

certain questions, although she tried her best to provide distance and

length estimates when asked and where possible. Throughout her

testimony, I formed the general impression that Ms MacLean was

doing her best to be truthful and accurate.

2. Although she candidly acknowledged that she had experienced

issues with memory and recall since the accident, Ms MacLean’s

testimony at trial generally seemed internally consistent and, as

already noted, much of what she said, in terms of the dynamics of

the underlying accident, seemed consistent with and supported by

the objective evidence. Her testimony in that regard also seemed

generally consistent with the fundamentals of the accident dynamics

described in the separate accounts provided by her niece Hailee and

by Mr Miles.

3. In my view, Ms MacLean’s testimony at trial generally was not

undermined in cross-examination, except in relation to a

demonstrable previous inconsistent statement regarding the speed at

Page: 99

which she approached her transition over the asphalt lip – discussed

in further detail below.

4. For the reasons outlined below, I also think Ms MacLean probably

was mistaken insofar as she had a memory of the second/rear flagger

also stopping the motorcycles to wait for a time, before directing

them over and onto the fresh asphalt in the southbound lane.

5. On the whole, however, I regarded Ms MacLean as a generally

credible and reliable witness.

iv. By way of additional observations in relation to the testimony of Hailee

Stone:

1. Although 14 at the time of the accident, Hailee was 19 at the time of

trial and struck me as someone who was mature for her age. She

provided her evidence in a simple and straightforward manner. Her

answers were entirely spontaneous, (i.e., given without hesitation or

apparent reflection), and seemed to reflect honest and genuine

memory, to the extent she had such memories.

2. In that regard, Hailee repeatedly and proactively indicated that she

did not know and/or had no memory of certain details, (e.g., the

name of the relevant road, the nature of the paving equipment that

may have been present, details of the person who directed them onto

the new asphalt or the precise manner in which that was done, or the

precise manner in which her aunt was thrown from the motorcycle),

which reinforced my impression that she was being honest and

genuine about the things she felt able to remember.

3. For the reasons noted above, the substance of Hailee’s answers

concerning the mechanics of the accident seemed consistent with the

objective evidence. Her evidence also was internally inconsistent,

in that regard.

4. I also think Hailee’s testimony was generally consistent with the

fundamentals of the accident dynamics described in the separate

accounts provided by her aunt and uncle, apart from Hailee not

noticing any revving of the engine on her aunt’s motorcycle engine

as she and her aunt were trying to traverse the asphalt lip. In that

regard, however, I am mindful of Hailee’s own indication that she

was finding things particularly bumpy and chaotic at that point, and

that Hailee was probably less attuned to the differentiation of

particular sounds and volumes generated by a motorcycle engine

and heard through a motorcycle helmet than Ms MacLean and Mr

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Miles, who clearly were far more experienced in relation to such

matters.

5. In my view, cross-examination did not undermine Hailee’s

testimony in any meaningful way.

6. In respect of the things she could remember, Hailee accordingly

seemed to be a credible and reliable witness.

v. By way of additional observations in relation to the testimony of Mr Miles:

1. In my view, Mr Miles presented his testimony in an extraordinarily

compelling manner. While he readily acknowledged an inability to

recall certain details of what happened on the day of the accident,

(e.g., the precise state of the new asphalt at the beginning of the

construction zone, where there was “nothing that peeked his

curiosity or attention”), his account of the underlying accident, in

particular, was assured, delivered without hesitation, and replete

with vivid and descriptive details. Without any apparent conscious

awareness of the tendency, Mr Miles frequently looked off to the

distance while figuratively “replaying” his memory of certain

events. Doing so in a number of instances, (particularly when

recalling the precise details of how Ms MacLean’s motorcycle failed

to transition the new asphalt lip successfully, throwing her and

Hailee from Ms MacLean’s motorcycle), resulted in Mr Miles

becoming quite emotional, in a way that clearly left him somewhat

embarrassed and apologetic. I formed absolutely no doubt,

throughout the course of Mr Miles’ testimony, that he was being

anything but sincere, and trying his best to be truthful and accurate.

2. In my view, Mr Miles also was the person in the best position to

make certain observations, especially in relation to the mechanics of

the accident. Without limiting the generality of the following, while

Ms MacLean and Hailee were moving and at varying distances in

relation to others, Mr Miles was maintaining a relatively constant

and close distance from them on his motorcycle. When Ms

MacLean was attempting to transition over the asphalt lip, Mr Miles

also was in a position were he had an opportunity to observe the

movements of her motorcycle and its wheels from a somewhat side

or lateral view, such that he was able to see the complete interaction

between the motorcycle and the road surface, and the effect that was

having on the motorcycle and its riders.

3. Unlike others in the area of the accident, Mr Miles had a heightened

interest in and concern for the personal safety of his wife and niece,

and it was clear to me that what Mr Miles witnessed, in relation to

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the immediate causes and effects of the accident, were traumatic for

him and left a somewhat indelible impression on his mind.

4. I do not disregard the fact that some of the testimony of Mr Miles

was demonstrably inaccurate. For example, he estimated that the

vertical elevation of the new asphalt surface was “about three to four

inches higher” than the old pavement, (i.e., 76.2 to 101.6 millimeters

higher), when the relevant paving contract, and evidence of Glenn

Walmsley regarding the thickness settings of the paver that day,

(which I accept), confirm that the new asphalt actually had a vertical

thickness and height of approximately 50mm above the “old”

pavement.

Mr Miles initially estimated travelling south

approximately 15 or 20 meters in the northbound lane before

encountering the second flagger, but the majority of evidence I

received, (and certainly that describing the undisputed nature of the

paving operation and its successive pieces of equipment), strongly

suggests that the distance travelled by the southbound motorcycles

in the normally northbound lane of Richmond Road was greater than

that. Mr Miles also indicated that Ms MacLean’s motorcycle

eventually fell over onto its right side, whereas the physical

evidence of vehicle damage and concentrations of new asphalt

adherence, (reflected in the photographs and testimony of Mr

Inglis), indicate that the motorcycle actually fell onto its left side.

However, I do not think such inaccuracies detracted significantly

from the more important aspects of his testimony, particularly in

relation to the dynamics of how the underlying accident occurred.

Moreover, in my view such details, (i.e., of what Mr Miles could not

remember or did not remember with accuracy), were slightly

peripheral to the more dynamic events that had a particular impact

on Ms MacLean and Hailee, which clearly made a deep impression

on Mr Miles.

5. In my view, the detailed account of the accident dynamics provided

by Mr Miles not only made sense, but was remarkably consistent

with the objective physical evidence, especially in relation to the

“shaved” length of the new asphalt edge/lip, the directional splatter

of displaced asphalt, (which started at an angle to that edge/lip and

then progressed to a perpendicular angle, moving from right to left),

and the noticeably larger indentation and clumps of displaced

asphalt at the left/south end of that “shaved” length of the new

asphalt edge/lip.

6. On the whole, I think Mr Miles was an extremely credible and

reliable witness.

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vi. By way of additional observations in relation to the testimony of Glenn

Walmsley:

1. He gave much of his testimony in a generally calm, pleasant and

persuasive manner, and he clearly was knowledgeable about matters

relating to paving; e.g., having worked for and within the family

paving business for the past 53 years, (i.e., since the age of 12),

progressively working through and up to the roles of labourer,

asphalt plant operator, road foreman, senior estimator and president

of Walmsley Brothers, and personally attending the company’s job

sites on a daily basis during “paving season”.

2. However, Mr Walmsley admittedly was not present at the

immediate scene of the accident when it occurred, did not witness

what happened at that location in the hours leading up to the

accident, and did not witness the accident itself, such that his

testimony in relation to the conditions leading up to the accident and

the mechanics of how the accident occurred was inherently indirect

and/or limited.

3. Moreover, there were other aspects of Mr Walmsley’s testimony

that struck me as problematic. For example:

a. I thought he grew notably defensive, irritated and

argumentative during the course of cross-examination when

the appropriateness of his company’s paving practices was

being challenged and questioned.

b. Although he admittedly did not witness the accident, his

testimony during cross-examination revealed a strong belief

that the accident had been caused by Ms MacLean riding her

motorcycle too close and parallel to the edge or lip of the

new asphalt before attempting to pass over it at an angle that

was far too shallow; a belief that not only must have been

based on hearsay, (at best), but was also at odds with the

physical evidence, for the reasons I have outlined. For

example, Mr Walmsley seemed determined to equate the

substantial compaction of the fresh asphalt with its being

solid and hard, and firmly intent on denying any and all

suggestions that the new asphalt may not have been solid and

hard in the area where Ms MacLean was directed to pass

over it, when the other evidence I received makes it clear that

simply was not the case on this particular occasion, in that

particular location.

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c. For someone who professed to have interest in finding out

how the accident had happened, (e.g., sufficient to make him

leave the paver in its ongoing operations, get in his truck and

drive back to the location of the accident), his testimony

suggested a remarkable inability to make, recall and/or

acknowledge aspects of the accident scene with accuracy,

and/or a ready inclination to make inferences that were not

accurate. For example:

i. He recalled there being only motorcycle at the

accident scene, rather than two.

ii. He made an assumption that the upright motorcycle

on its kickstand, (which I find on a balance of

probabilities to have been the motorcycle operated

by Mr Miles), had been the motorcycle involved in

the accident.

iii. He also assumed, and still believed at the time of his

oral discovery examination, that the paving

operation’s rear flagger had been positioned, when

the accident occurred, to the south of where the new

asphalt began in the southbound lane. Based on that

assumption, he took the position at his oral discovery

examination that there was nothing stopping the

plaintiffs from riding their motorcycles completely

past and around the new asphalt, and that they

accordingly were responsible for choosing to passing

over onto that new asphalt without any direction in

that regard from anyone working for Walmsley

Brothers. However, following his oral discovery

examination and before trial, he admittedly “talked

to the flaggers” about the accident, in the course of

which he heard and therefore came to believe that Mr

Albert moved back to a location south of the new

asphalt only after the accident had occurred, and

actually had been positioned further north, nearer to

the location of the accident and directing the

motorcycles onto the new asphalt, when the accident

occurred.

iv. I thought it particularly striking and troubling that Mr

Walmsley professed not to have seen or noticed any

displaced asphalt near the scene of the accident. The

contemporaneous photographs taken by Mr Miles

make it quite clear that the displaced asphalt, sprayed

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and splayed from the eastern edge or lip of the

asphalt and into the normally northbound lane of the

road, was particularly pronounced and noticeable. It

certainly was noticed and deliberately photographed

by Mr Watters, (the county’s director of engineering

who attended at the site because he too obviously

was interested in how the accident might have

happened, and noting apparently relevant physical

evidence in that regard), when he visited the scene of

the accident that afternoon. Moreover, I think Mr

Walmsley, if only as the foreman of the relevant

paving project, would have noticed and been keenly

aware of any prominent defects in the freshly applied

asphalt as he admittedly drove up to and past that

location, and/or that he would have been naturally

inclined to inspect the relevant area of new asphalt to

look for possible accident-related damage to that new

asphalt. Bearing in mind such considerations, it

seems to me that Glenn Walmsley generally was not

inclined to look for physical evidence suggesting that

the relevant edge or lip of the new asphalt actually

may not have been as hard as he believed and wanted

it to be, and/or that he was reluctant to acknowledge

such evidence during the course of his testimony

because the existence of such evidence was

inconsistent with his preferred belief as to how the

accident happened. When questioned about the

displaced asphalt documented by the accident scene

photographs, Mr Walmsley attributed that to Ms

MacLean inappropriately bringing the “sidewall” of

her rear wheel “right tight“ to the asphalt edge before

trying to “climb” the lip, thereby producing an effect

whereby the hardened edge was “kind of being

milled off”; i.e., once again effectively arguing that

Ms MacLean had adopting an inappropriate angle of

approach to the edge of the new asphalt, but without

explaining why hard asphalt would have given way

in the manner it did.

4. For such reasons, I regarded Glenn Walmsley as a problematic

witness, insofar as his certain aspects of his credibility and reliability

were concerned. On the whole, while I think Mr Walmsley was

justifiably proud of his company’s past paving performance and the

absence of any prior demonstrated safety issues in that regard, I

believe that pride impaired his ability and/or willingness to

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acknowledge the possibility that the conduct of Walmsley Brothers

on this particular occasion may have caused an accident.

vii. By way of additional observations in relation to the testimony of Chris

Walmsley:

1. He spoke in a subdued manner, the delivery of his testimony was

punctuated by a number of reflective pauses, and his answers

sometimes trailed off in an incomplete manner, all of which left me

with the impression that he was not sure about many aspects of his

testimony, and lacked a detailed memory in that regard. That

impression was reinforced by the way in which he punctuated

important parts of his testimony with qualifying words and

expressions such as “basically”, “like”, “maybe”, “kind of” and “I

think”.

2. At the very least, Chris was not in a position to make very accurate

observations in relation to how Ms MacLean’s motorcycle may have

approached or gone over the asphalt lip. He literally had only a

small reflective window of opportunity to see, in an inverted way,

what may or may not have been going on behind him; i.e., looking

across his vehicle and into its passenger side mirror. That reflected

view was not only inverted but distorted; i.e., insofar as Chris

acknowledged that the mirror had a printed warning on it, indicating

that objects in the mirror might be closer than they appeared in the

reflection.

3. However, Chris also acknowledged, in numerous ways, that his

recollections from the relevant day were vague and/or incomplete in

many respects. For example:

a. he could not recall the approximate time of day at which the

accident happened;

b. he could not recall the approximate distance of his parked

truck from the side of the road;

c. he could not recall how far away Ms MacLean was when he

first saw her;

d. he could not recall whether he noticed, before the accident,

that Ms MacLean had a passenger on her motorcycle;

e. while he knew two motorcycles had been driving

southbound in the northbound lane towards his location,

prior to the accident, and said Ms MacLean was driving

“ahead” such that the other motorcycle “would have been

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behind” her, he otherwise could not recall their position in

relation to each other, (i.e., to the right or left or directly

behind), where Ms MacLean was driving in her lane, (i.e.,

simply “guessing she’d be in the middle”), or whether the

two motorcycles were travelling at the same speed;

f. while Chris knew Ian Albert was holding a “”stop/slow sign”

and acting as rear flagger at the time, and believed Ian

“would have been directing” Ms MacLean onto the new

asphalt, Chris acknowledged that he actually did not see that

happen – although it seems to me Chris would have seen Mr

Albert in the same reflected image of the northbound lane,

given Mr Albert’s testimony, (which I think sensible), that

he had stepped into that lane to halt northbound traffic and

redirect southbound traffic;

g. Chris had no memory of how Ms MacLean may have moved

from riding in the centre of the northbound lane to being less

than three to six inches away from the asphalt lip, but “just

knew” that she “got like closer, and kind of hesitated, and

kind of closer together”, and did so “just before she would

have flipped over or tipped over”;

h. Chris acknowledged, (eventually), that he actually did not

see everything that happened between the motorcycle’s

approach and its driver and passenger having fallen;

i. Chris repeatedly indicated that his memory of how the

motorcycle driver and her passenger may have fallen was

“pretty foggy”; and

j. Chris could not remember if he went over to the fallen

motorcycle driver and passenger, or “exactly what he did”

when he got out of his truck after the accident, apart from

walking around the area where the accident had happened.

4. Moreover, while in the witness box, explaining his memory of how

he had seen that the motorcycle’s driver and passenger had fallen,

Chris described how he “probably, like, looked back”, and

demonstrated that by making a very sudden move looking back over

his right shoulder; i.e., in an apparent effort to replicate what he had

done at the time. The manner of his account indicated to me that

Chris not only looked away from Ms MacLean’s motorcycle as it

was approaching, but also then had his attention suddenly drawn to

the location of the accident only by some kind of loud noise behind

him; e.g., the sort of loud and unusual noise that would be caused by

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a motorcycle falling onto the new asphalt. All of that, in my view,

indicates that Chris actually did not see or pay attention to the

mechanics of the accident until it had happened.

5. Chris Walmsley nevertheless seemed very intent on repeatedly

emphasizing to me, at different points during his testimony, that he

“thought” or “could tell” Ms MacLean was going to have an

accident in relation to the asphalt lip before that happened, because

of the inappropriate manner in which she was approaching it; e.g.,

hesitating, travelling at too slow a speed, travelling parallel to it at a

distance of no more than three to six inches, and approaching it at

too small an angle. He indicated that claimed prescience no less

than five separate times during the course of his testimony,

emphasized that was “burned into this memory”, and stressed that

he accordingly had been “locked in” on Ms MacLean’s movements

prior to the accident. All of that seemed argumentative to me.

Moreover, I thought there was something internally and

fundamentally inconsistent about his supposed belief that there was

going to be an accident, and having strong concerns in that regard,

and his then admittedly looking away and elsewhere while Ms

MacLean actually attempted to traverse the asphalt lip, and not

looking at her again until the accident had happened; i.e., until Ms

MacLean and Hollie were both lying on the new asphalt. In my

view, if Chris truly felt that Ms MacLean was operating her

motorcycle in a manner that would make her “wipe out”, “fall”

and/or “flip” as she approached the new asphalt, as he suggested,

and had corresponding genuine concerns in that regard, he naturally

would have kept watching to see what actually would happen. The

fact that he did not do so leads me to believe that he in fact had no

such premonitions or concerns.

6. In my view, Chris Walmsley’s acknowledged failure to look at,

notice and/or remember the asphalt displaced from the new asphalt

edge or lip, into the northbound lane of Richmond Road, indicates

that he actually made no close or meaningful inspection of the

accident area after it happened. That was so even though Chris

admittedly saw Mr Miles taking photographs of the accident scene;

photographs which, (as the items at Tab 1 of Exhibit 2 demonstrate),

were focused on the area of displaced asphalt where Ms MacLean

tried to pass over the edge or lip of new asphalt. In my view, all of

that in turn significantly undermines the strength of his assertions

that he took an interest in the state of the asphalt in the area of the

accident, and saw that it was compacted, hard and safe for traffic;

i.e., when he supposedly examined it following the accident.

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7. For all these reasons, I do not think Chris Walmsley was a credible

or reliable witness.

viii. By way of additional observations in relation to the testimony of Ian Albert:

1. Mr Albert generally delivered his evidence in a calm and confident

manner, with only occasional hesitation.

2. However, it seemed to me that various aspects of Mr Albert’s

testimony were implausible and/or at odds with the physical

evidence. For example:

a. Although Mr Albert claimed that he had moved forward to a

point 50 meters north of where Walmsley Brothers had

started laying new asphalt so that his view of southbound

traffic would not be obstructed by an intervening hill, the

photographic evidence makes it clear that a person standing

even a few meters south of where that new asphalt began

would have had an unobstructed view north along Richmond

Road to the location of the paver and beyond. His stated

justification for moving forward to where he was standing to

direct Ms MacLean back onto the new asphalt, was simply

not supported by the relevant topography.

b. Although Mr Albert suggested that there were other

southbound vehicles travelling ahead of the motorcycles

operated by Ms MacLean and Mr Miles, as they made there

way towards him, I find that difficult to reconcile with Mr

Albert’s assertion that he was able to see the two

motorcycles, the number of riders, and the fact that one

motorcycle was travelling behind the other, from a distance

of 200 meters. Had the motorcycles been travelling behind

other vehicles, it seems to me that Mr Albert’s view of them

would have been obstructed, especially at a distance.

Moreover, photographs of the new asphalt in the area where

the accident took place, taken shortly after the accident

occurred, show tire marks left on the new asphalt by Ms

MacLean’s motorcycle, (moving away from the asphalt lip

where she crossed over it), the attending ambulance, and

Glenn Walmsley’s truck – which crossed over the new

asphalt at a distance slightly to the south of the accident

scene – but no tracks whatsoever indicative of other

southbound vehicles crossing onto the new asphalt where Ms

MacLean did. All of this leaves me with the distinct

impression that Ms MacLean actually was the first vehicle

directed onto the relevant area of new asphalt prior to the

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accident taking place; i.e., that Mr Albert had decided to

move forward to his particular flagging location at the time

of the accident shortly before it occurred, that he had not yet

directed any traffic onto the new asphalt before he did so in

relation to Ms MacLean, and that there were no southbound

vehicles travelling immediately ahead of Ms MacLean and

Mr Miles in the normally northbound lane as they

approached Mr Albert. Had there been such vehicles, I think

they too would have left marks on the new asphalt, (e.g.,

similar to those made by Ms MacLean’s motorcycle and

Glenn Walmsley’s truck.¹⁰⁴

c. In my view, Mr Albert’s account of the mechanics of the

accident, (i.e., with Ms MacLean’s entire motorcycle

crossing up onto the new asphalt almost “instantly”, when

her right tire caught on the asphalt lip and jerked to the right,

causing her rear tire to simply “bounce up” onto the new

asphalt as well), is fundamentally at odds with the physical

evidence. For the reasons I have outlined in detail above, the

rear wheel of Ms MacLean’s motorcycle obviously

remained in contact with the raised edge of the new asphalt

for a significant period of time in what would have been very

remarkable and noticeable circumstances; i.e., spinning up

against the raised edge of that new asphalt trying to gain

traction, and make it up onto the raised service, as it

progressively slid south along that raised edge of the asphalt

for a distance of approximately six feet, spraying fresh

asphalt out behind the spinning rear tire as it assumed a

progressively perpendicular angle to the raised edge. I

frankly do not know how any observant and objective

witness could describe those dynamics as one where Ms

MacLean’s difficulties were caused by her front tire coming

¹⁰⁴My impression in that regard was reinforced by the testimony of Ms MacLean and Mr Miles, indicating that they

were the first vehicles being held in line in the southbound lane while northbound traffic was being allowed to proceed

past the paving operation. In particular:



Without any apparent thought to its potential significance, Ms MacLean testified that she received a verbal

instruction from the lead flagger to proceed from her stopped position into the normally northbound lane of

traffic, suggesting that she and the lead flagger were close enough to speak with each other, while southbound

vehicles being held, and waiting to proceed around and past the paving operation, were waiting to proceed.



For his part, Mr Miles mentioned, in the course of his recollections, that the method of the lead flagger

instructing him to proceed into the northbound lane, from a stopped waiting position, included the lead

flagger making direct eye contact with Mr Miles; something which obviously would have been more difficult

had the two motorcycles not been first in line, waiting with and near the lead flagger, before they were

directed to proceed south and into the northbound lane.

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into contact with the new asphalt, with her rear tire simply

“bouncing up” onto the new asphalt in the same instant.

Such considerations made me seriously doubt Mr Albert’s

credibility and/or reliability as a witness.

d. Such doubts were reinforced by Mr Albert’s similar

assertion that he inspected the relevant area of new asphalt

immediately after the accident, and had no concerns

whatsoever about its hardness. In particular, I find it difficult

to believe that an observant and objective witness could have

formed a sincere view that there were no concerns

whatsoever about the asphalt in that area not being hard; e.g.,

when significant quantities of fresh asphalt obviously had

been sprayed out from the edge or lip of that new asphalt into

the northbound lane by Ms MacLean attempting to pass over

it. At best, I do not think Mr Albert was making accurate or

objective observations at the time.

3. For such reasons, I had difficulty accepting Mr Albert as a credible

and reliable witness.

ix. Finally, by way of additional observations in relation to the testimony of

Peter Dutchak:

1. He gave his testimony in a frank and straightforward manner, and at

no time did I form any impression that he was intending to be

anything but entirely fair and honest. In other words, I found him to

be a generally credible witness.

2. I think the evidence provided Mr Dutchak, concerning matters

within his direct knowledge, also was generally reliable. However,

his knowledge of the accident scene was limited to what he was able

to see in the photographs, and he obviously had no first-hand

knowledge of the flagging practices used by Walmsley Brothers at

the time of the accident, or the mechanics of the accident itself.

3. Moreover, as noted below, I thought Mr Dutchak’s testimony was

somewhat inconsistent at times; e.g., in relation to the fundamental

matter of whether displacement and splattering of fresh asphalt from

the edge of new asphalt, by a vehicle attempting to cross that edge,

indicated the presence of a situation that was a cause for concern.

g. For the reasons outlined above, where there was a divergence in testimony between

plaintiff and defence witnesses about the condition of the new asphalt at the time

of the accident, the mechanics of the underlying accident, (i.e., the manner in which

the accident occurred), and Ms MacLean’s operation of her motorcycle

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immediately before and during the accident, I generally prefer and accept the

testimony of the plaintiff witnesses.

h. Without limiting the generality of the foregoing, I think and find, in particular, on

a balance of probabilities, that the description of the accident provided by Mr Miles

is the most fulsome and accurate account of what actually occurred when Ms

MacLean attempted to pass over that elevated edge of the new asphalt into the

southbound lane, in accordance with the direction received by Mr Albert.

i. For the reasons outlined above, I also prefer and accept, in particular, the testimony

of Ms MacLean, Hailee and Mr Miles indicating that Ms MacLean approached the

asphalt lip at a substantial angle approximating 45 degrees, and reject the testimony

of Chris Walmsley and Ian Albert suggesting a lesser acute angle of approach. In

my view, the more credible and reliable testimony of the plaintiff witnesses in that

regard finds support not only in the objective physical evidence, for the reasons

outlined above, but in the essentially unchallenged evidence that Ms MacLean and

Mr Miles had an established routine of riding in a standard configuration of her

riding slightly ahead in or near the “left tire track” of their lane while he rode

slightly to the rear in or near the “right tire track” of their lane. In that regard:

i. I see no logical reason why Ms MacLean would have been inclined to

deviate from that habitual pattern, (as she set off to travel south in the

northbound lane of Richmond Road, in accordance with the directions

received from the initially encountered flagger employed by Walmsley

Brothers), and ride close or parallel to the lip of the freshly applied asphalt

to her right. To the contrary, I think her natural inclination would have been

to ride along the northbound lane in a manner that put more distance

between the loud sounds and strong smell of the fresh asphalt operation to

her right.

ii. I was impressed by Ms MacLean’s proactive indication that, on this

particular occasion, (i.e., as she was travelling south in the northbound

lane), she purposely travelled slightly to the right of the “left tire track” to

avoid loose gravel near the eastern shoulder of the road. If Ms MacLean

dishonestly was trying to exaggerate the distance between the fresh asphalt

lip and her parallel travel path as she proceeded south in the northbound

lane, there would have been no sensible reason for her to proactively offer

testimony that placed her path of travel closer to the right of the lane than it

normally was.

iii. If Ms MacLean did indeed travel south on the northbound lane just to the

right of the “left tire track” of that lane, (from her perspective as she was

travelling south), and I accept that she did, she naturally would have been

in a position in the northbound lane, (i.e., as she approached the second

flagger and received his direction to transition into the southbound lane),

requiring her to approach the asphalt lip at a greater angle than she might

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otherwise have been inclined or required to adopt had she been travelling in

a path parallel and very close to the asphalt lip.

iv. In the result, I am satisfied, on a balance of probabilities, that Ms MacLean

approached the asphalt lip at angle approximating 45 degrees or more; a

conclusion supported by the physical evidence, the unchallenged evidence

concerning her standard riding pattern, her undisputed knowledge of the

official MTO motorcycle handbook, and the testimony of Ms MacLean,

Hailee and Mr Miles.

v. My conclusion that Ms MacLean approached the edge or lip of the new

asphalt at an angle “approximating” 45 degrees or more is intended to

reflect the reality that the situation obviously was not approached with the

precision attainable by application of a protractor. In my view, this is an

example where an “ordinary driver” is capable of making an “honest

mistake”, (i.e., in attempting to approach a parallel raised elevation at an

angle of at least 45 degrees, but perhaps achieving an actual approach angle

that was acute and slightly less than 45 degrees – although I do not think

Ms MacLean did so), without being negligent.

vi. To the extent the defendants have the burden of proving that Ms MacLean

approached the edge or lip of the asphalt at an angle slightly less than 45

degrees, (i.e., insofar as the dependents rely upon that contention in support

of their allegations of contributory negligence), I am not satisfied on a

balance of probabilities that she did so in this particular case. However,

even if she had done so at an angle slightly more acute than 45 degrees to

the edge or lip of the new asphalt, I am not satisfied that her doing so would

have constituted negligence, or that the underlying accident would not have

happened “but for” that slightly more acute angle of approach. Without

limiting the generality of the foregoing:

1. As already noted, motorcycle drivers do not operate with the benefit

of protractors enabling precise measurement of angles, and they

reasonably are required to rely on best estimates in a dynamic

situation, when it comes to angles of approach on a moving

motorcycle.

2. In the expert opinion of Mr Inglis, (which I accept), while a

minimum 45-degree angle certainly is the recommended, advisable

and reasonably prudent way of a motorcycle operator approaching

an elevated surface parallel to the path of travel, (and the minimum

angle of approach recommended by the official MTO motorcycle

handbook), a “few degrees one way or the other” would not make a

significant difference to the ability of such an operator to pass over

the edge of the raised elevation in a safe manner.

Page: 113

3. In my view, the angle of approach adopted by Ms MacLean in this

particular case, in relation to the raised edge or lip of the new

asphalt, was more than sufficient to prevent the sort of potential

instability capable of being brought about by a tire approaching the

edge or lip at a shallow angle, inhibiting the ability of a tire to mount

the edge or lip, or to be deflected back off that lip by glancing

contact; e.g., in contrast to what I find to have been the problem-free

manner in which the front tire of Ms MacLean’s motorcycle easily

passed over the edge or lip of the new asphalt without incident

vii. I accordingly find no contributory negligence on the part of Ms MacLean,

insofar as her angle of approach to the new asphalt was concerned.

j. In relation to the speed at which Ms MacLean approached the asphalt lip:

i. This frankly was the only aspect of Ms MacLean’s testimony that caused

me any degree of concern. As noted above, Ms MacLean testified at trial

that she approached her transition over the asphalt lip at a speed of 15-

20kph. That indication was demonstrably inconsistent with an earlier

indication, provided under oath during Ms MacLean’s oral discovery

examination, that she had approached the asphalt lip at “no more than 10

kilometers per hour”, which she also described as a “very low rate of speed”.

ii. The defendants placed considerable emphasis on that lower indication of

speed by Ms MacLean, arguing:

1. that should be accepted as the speed at which Ms MacLean actually

approached the relevant asphalt lip; and

2. that approaching the relevant elevation transition at such a speed

was indicative of contributory negligence, and a cause of Ms

MacLean’s accident, insofar as that low rate of speed was said to

have been a significant factor in her motorcycle losing its stability

and falling over.

iii. In fairness to Ms MacLean, I think it needs to be recognized that a five

kilometre-per-hour difference in speed is something which most people find

difficult to note or measure with precision without the assistance of a

speedometer reading, and Ms MacLean candidly indicated that, when she

was approaching the asphalt lip, she was not looking at her motorcycle’s

speedometer but was instead “truly focused” on what was in front of her.

As Ms MacLean put it, her estimations of speed accordingly were a

“guesstimate”.

iv. Moreover, although Ms MacLean’s estimate of a 15-20kph approach speed

in her trial testimony was demonstrably at odds with the maximum 10kph

estimate in her sworn evidence at discovery, (something which defence

Page: 114

counsel essentially characterized as a belated attempt to alter her evidence

to improve her position at trial), I also was presented with evidence that Ms

MacLean had indicated to ambulance attendants and occupational

therapists, closer in time to the accident than her oral discovery

examination, that she had been travelling at 15-20kph when the accident

occurred; i.e., evidence arguably rebutting defence suggestions that Ms

MacLean’s testimony at trial, in relation to her speed, was essentially a

recent fabrication.¹⁰⁵

v. I am mindful that, Ms MacLean had a memory of having been slowed to a

halt, by Mr Albert, shortly before she was directed to proceed into the

southbound lane; i.e., an indication that Ms MacLean herself felt that she

accelerated towards the edge or lip of the new asphalt over a relatively short

distance, from an initial speed that was not only slow but zero, which in turn

might militate in favour of a finding that she did not have time to accelerate

from a nearby stopped position to more than 10kph before attempting to

transition over the edge or lip of the new asphalt. However:

1. If Mr Albert did indeed require Ms MacLean to stop completely,

before then directing her to transition over the edge/lip of the new

asphalt only a short distance away, it seems to me that the

defendants, in that scenario, could hardly fault Ms MacLean for not

having a sufficient opportunity to accelerate to 15kph before her

attempt to transition onto the new asphalt.

2. On a balance of probabilities, I nevertheless find that Mr Albert

actually did not require Ms MacLean to come to a halt as she

proceeded south in the northbound lane, before directing her back

into the southbound lane and up onto the new asphalt, and that Ms

¹⁰⁵It should be noted that such evidence was not presented, at trial, in the standard and more appropriate fashion of

Ms MacLean giving her speed estimate during examination in chief, being challenged during cross-examination with

her inconsistent speed estimate provided at discovery, and Ms MacLean then being taken in re-examination to her

previous consistent statements essentially rebutting defence suggestions of recent fabrication. Plaintiff counsel

instead took Ms MacLean to her relevant previous consistent statements during examination in chief. Although

defence counsel initially objected to Ms MacLean being taken to medical documentation and records recording such

earlier statements, no defence objection was made in relation to Ms MacLean then independently recalling, during her

continued examination in chief, the earlier statements she made to her ambulance attendance and occupational

therapists, indicating a speed estimate of 15-20kph while she had been traveling in first gear. Nor did defence counsel,

in cross-examination, challenge Ms MacLean’s testimony that she had indeed made such earlier statements to her

ambulance attendants and occupational therapists, indicating an approach speed of 15-20kph. In the result, while I

normally would not have been inclined to place any weight on Ms MacLean’s prior consistent statements that she

approached the asphalt lip at an estimated speed of 15-20kph, (as the basic rules of evidence confirm that such evidence

standing alone has no probative value in terms of buttressing trial testimony), I do think the unchallenged evidence of

prior consistent statements, made before inconsistent statements during Ms MacLean’s oral discovery examination,

has some probative value in this case; i.e., insofar as it tends to rebut what essentially were defence suggestions of

recent fabrication on the part of Ms MacLean when it came to estimating the speed at which she approached the

eastern edge or lip of the fresh asphalt.

Page: 115

MacLean’s memory in that regard is mistaken; i.e., likely a

duplicated and transposed memory of being brought to a stop, and

told to wait, by the first flagger she encountered. In that regard:

a. The traffic control system being employed by the flaggers

was designed to enable alternating flows of “one way” traffic

in each direction through the lane of the road that remained

open. That sensibly could only be performed by southbound

traffic being held at a stop while northbound traffic used and

then cleared the lane, and vice versa. When Ms MacLean,

Hailee and Mr Miles were being permitted to proceed south

in the northbound lane, Mr Albert almost certainly therefore

had stopped and was holding traffic that wished to proceed

north through the construction zone.

b. In the circumstances, there would have been no sensible

reason for Mr Albert to stop southbound traffic, such as the

motorcycles being operated by Ms MacLean and Mr Miles,

at his location. To the contrary, the traffic control system

was designed to have such southbound traffic clear the

northbound lane as soon as possible, so that the temporarily

delayed northbound traffic would then enjoy its alternating

turn to proceed.

c. The separate memories of Hailee and Mr Miles of the two

motorcycles not being directed to stop in the northbound

lane, before being directed back into the southbound lane

and onto the new asphalt, are consistent with that sensible

conclusion, and in my view accurately recall what actually

happened in that regard.

d. If Ms MacLean was approaching Mr Albert at the speed she

and Mr Miles had used to proceed south in the northbound

lane without being brought to a stop, (which I believe and

find to be the case), I think it more likely than not that she

maintained that speed when she was directed by Mr Albert

to transition into the southbound lane over the edge or lip of

the new asphalt.

e. In that regard, I also accept, (consistent with the testimony

of Ms MacLean, Hailee and Mr Miles), that the two

motorcycles were going at least 15kph as they proceeded

south in the northbound lane towards Mr Albert. I think any

speed slower than that would have been a noticeable and

inexplicable delay of traffic through the work zone. I also

was impressed by and accept Mr Miles’ firm memory that

Page: 116

his motorcycle was in second gear as they proceeded south

in the northbound lane; evidence which, in my view,

supports an inference that both motorcycles were travelling

at least 15kph, as Mr Miles was not overtaking Ms MacLean.

vi. On balance, I therefore think the evidence regarding Ms MacLean’s precise

speed of approach towards the edge or lip of the new asphalt favours a

finding, which I make, that she was going at least 15kph. Insofar as a speed

lower than 15kph is something the defendants have the burden of proving,

as a suggested element of alleged contributory negligence), I find that such

a lower speed has not been established on a balance of probabilities.

vii. Moreover, although the parties came to place considerable emphasis on

whether or not Ms MacLean approached the raised edge or lip of the new

asphalt at 10kph or at least 15kph, I think it worth noting that the official

MTO motorcycle handbook actually does not indicate any minimum

recommended speed when attempting to traverse a raised elevation running

parallel to the path of travel. That stands in marked contrast to the

handbook’s clear recommendation about a minimum angle of approach in

such situations, and suggests there is no recommended or generally

accepted minimum speed of approach to such a situation, below which a

motorcycle operator might be presumed to have acted inappropriately in

approaching such a situation.

viii. Furthermore, I think it unsurprising that Ms MacLean may have been

travelling at a relatively slow speed when she approached the raised edge or

lip of the new asphalt over which she was being directed by Mr Albert,

bearing in mind that Mr Albert was holding a sign expressly instructing Ms

MacLean, on behalf of Walmsley Brothers, to proceed at a “SLOW” speed.

Moreover, if the lead flagger was holding a similar “STOP/SLOW” sign,

(and I think that likely on a balance of probabilities), Ms MacLean and Mr

Miles would have received the same “SLOW” direction when they were

being directed to proceed, from a previously stopped position, into the

normally northbound lane.

ix. I also note the testimony of the defendant’s own witness, Mr Albert,

indicating that, in his experience, a motorcycle’s speed of approach to such

a raised edge or lip of new asphalt, (in contrast to the angle of approach),

generally is not a relevant consideration or factor in the ability of a

motorcycle’s ability to transition over and onto such new asphalt. In his

words: “People tend to do it differently. Some people slow down, some

people want to speed up. As long as you angle your bike up when they

approach it, you – you’ll go up fine.”

x. In this particular case, I accordingly am not satisfied, on a balance of

probabilities, that Ms MacLean approached the raised edge or lip of the

Page: 117

asphalt at a speed less than 15kph or an inappropriate speed reasonably

capable of being characterized as negligent, or that the underlying accident

would not have happened “but for” Ms MacLean travelling at the speed she

was travelling when she approached the elevated edge or lip of the new

asphalt.

xi. I accordingly find no contributory negligence on the part of Ms MacLean,

insofar as her rate of speed was concerned.

k. In my view, by the time Walmsley Brothers embarked on its relevant paving of

Richmond Road, it effectively had adopted a somewhat lax attitude towards

compliance with its obligation to prepare and use a Traffic Control Checklist and

Protection Plan in relation to its paving operations. In that regard:

i. As noted above, Walmsley Brothers had taken to using a generic and

unchanging plan in relation to many of its individual paving projects; a plan

that was not amended for specific paving projects, and actually was not

shared or discussed with its flaggers, who were assumed to have seen the

diagram incorporated into that generic plan document during their earlier

training. In the result, there was no express discussion or consideration of

the diagram’s apparent emphasis, (addressed in more detail below), on

traffic being directed completely around a work area - and in my view the

corresponding importance of giving consideration, in relation to each

individual paving project, to how that work area reasonably and safely

should be defined in the circumstances.

ii. Walmsley Brothers instead relied on the individual training and experience

of its flaggers, and their familiarity with the company’s general practices

and customs, including the company’s general expectation that rear flaggers

always would move forward and direct traffic onto new asphalt, as soon as

the finishing roller had completed its work in such areas, without regard to

the prevailing temperature of that particular new asphalt, and whether it was

not only compacted but also sufficiently cooled and hardened to safely

accommodate the passage of all traffic, (including all types of motorcycles

carrying a rider and passenger), that might be directed onto and over it.

iii. The general impression left by such considerations was that Walmsley

Brothers, relying on its general practices and customs, had come to rely

upon and apply a “one size fits all” approach to traffic control safety, and

accordingly was less focused than it should have been on:

1. the particular road safety conditions existing in relation to a

particular paving project, including whether a particular area of

asphalt in respect of which a finishing roller had just completed its

work was not only compacted but also sufficiently cooled and

hardened to safely accommodate the passage of all ordinary

Page: 118

motorists exercising reasonable care, (including the operators of

street motorcycles carrying a rider and passenger), who might be

directed onto and over it; and

2. whether it was reasonably necessary in particular circumstances for

a rear flagger to move forward and direct motorists onto such new

asphalt, forcing such motorists to incur possible risks in that regard,

instead of permitting all such risks to be avoided by positioning the

rear flagger in a manner allowing motorists to circumvent such new

asphalt completely by simply driving around it.

iv. I was struck in particular by the fact that Mr Albert, (the rear flagger at all

relevant times), apparently gave little or no thought to whether the particular

raised edge or lip of the new asphalt, onto which he was directing Ms

MacLean actually was sufficiently cool and hard enough to reasonably

ensure safe transit of someone in her position, (i.e., someone operating a

motorcycle, using reasonable care, with a passenger riding behind her), or

whether it might have been reasonable in the circumstances to remain in a

location that permitted southbound traffic, (including Ms MacLean), to

drive completely around the new asphalt. The guiding and apparently sole

determining factor used by Mr Albert, in deciding when and to where he

should move forward, and when traffic should be directed onto new asphalt,

was completion of the finishing roller’s work, and directing traffic onto the

new asphalt “shortly after the finish (sic) roller has rolled it completely”.

As he put it, that was “just something [they] did”, “just something [he] had

always done”, and “always the way [they] did it”, during all of the paving

jobs he had been on with Walmsley Brothers, without that approach

changing “at all” during all his years working as a flagger.

l. I also think it noteworthy that the diagram taken from Book 7 of the Ontario Traffic

Manual, and incorporated into the “Traffic Control Checklist and Protection Plan”,

indicates that flaggers were to be positioned some distance ahead of and behind the

black rectangle signifying the relevant work area, and not beside it; i.e., in a manner

that obviously would permit the alternating flow of traffic to be directed completely

around that work area without ever having to cross into, onto or over it.¹⁰⁶In that

regard:

¹⁰⁶For the sake of completeness, I note in passing and for the record that the diagrams found within the “Handbook

for Construction Traffic Control Persons”, marked as Exhibit “D” for identification, are similar in that regard. In

particular, they too depict flaggers being located at a distance ahead of and behind a work area, and not beside it.

Indeed, they go further, (in emphasizing the contemplated path of directed traffic), by including successive arrows

depicting a flow of passing traffic diverted completely around a work area without crossing it. However, I also note

for the record that, in reaching my decisions in relation to this matter, I do not rely in any way on that particular

document as substantive evidence; i.e., as no witness formally identified the document, such that it never became a

substantive exhibit in the trial.

Page: 119

i. Whether or not the flaggers employed by Walmsley Brothers on the

particular Richmond Road paving project were standing ahead of and

behind the relevant work area rather than beside it, or directing traffic

through rather than around that work zone, depends on how one defines the

relevant “work zone”.

ii. In this particular case, the position taken by the plaintiffs essentially reflects

a view that the relevant work zone for flagging purposes, when Ms

MacLean was attempting to travel along Richmond Road, encompassed the

area of newly applied asphalt. The position taken by the defendants

essentially reflects a view that the relevant work zone, for flagging

purposes, did not include the entirety of the freshly laid asphalt, but

essentially had a southern boundary that was moving progressively

forward/north with completion of the work done by the finishing rollers.

iii. In my view, the relevant “work zone” in relation to such paving operations

should be defined not only by whether workers have completed the

particular tasks they will be performing on a certain portion of roadway, but

whether the resulting work product is in a sufficiently completed and static

state to meet the demands of the Municipal Act, 2001, supra, and the

Occupiers’ Liability Act, supra. Without limiting the generality of the

foregoing:

1. I think it a matter of common sense that work projects generally are

not regarded as finalized so long as they remain in a temporary

transitional condition, associated with the nature of the work,

whereby the work product may significantly affect and be affected

by those attempting to use it before that transition is complete and

the work product becomes static. For example, such realities are

reflected in situations where painting may be finished but has not

yet dried, or concrete may be poured and smoothed over but not has

not yet set and hardened, with both conditions therefore normally

being the subject of ongoing warning signs and effective redirection

of potential users around such work areas for a further period of time

after those working on such projects have completed their tasks.

2. In my view, a similar approach reasonably may be required in

relation to newly applied asphalt in respect of which workers may

have performed their tasks, (including maximum compaction), but

the newly applied asphalt may not yet have hardened to a point

where it is reasonably safe for the passage of all ordinary motorists

using reasonable care – including those operating, with reasonable

care, varied but common street motorcycles carrying passengers. In

particular, where such new asphalt may not have hardened to such a

point, thereby creating reasonably foreseeable risks for such

ordinary motorists if they are prematurely directed onto and over

Page: 120

such new asphalt, and it is possible to reasonably avoid such risks

being incurred by directing traffic completely around such new

asphalt, the relevant asphalt paving “work zone” should be defined

accordingly.

3. For the reasons indicated herein, I do not think reasonable care was

taken to address such concerns properly in this case. In effect, the

rear flagger employed by Walmsley Brothers, (i.e., Mr Albert),

directed Ms MacLean through rather than around an area that still

should have been regarded as part of the relevant “work zone”, for

purposes of the Traffic Protection Plan.

m. The defendants placed considerable reliance on defence evidence that Walmsley

Brothers’ practice of directing traffic onto freshly applied and rolled asphalt had

not previously resulted in any accidents, including any accidents relating to

motorcycles, on many other occasions when Walmsley Brothers was paving other

roads in a similar manner.¹⁰⁷Implicit if not explicit in such reliance were apparent

views that such a history demonstrated that fresh asphalt treated by a finishing roller

was always hard enough for traffic to use safely, that any safety risk or hazard

encountered by Ms MacLean at the time of her accident was not reasonably

foreseeable, and/or that the practice adopted and followed by Walmsley Brothers

was a reasonable course of conduct in terms of addressing such a risk or hazard and

corresponding safety concerns. For numerous reasons, however, I did not find such

evidence persuasive in terms of determining whether the conduct of the defendants

¹⁰⁷For example:



Glenn Walmsley defended the practice by indicating that there was “really no reason” to have any concerns

about it, as Walmsley Brothers “never had any issues in the past” in that regard, and to his knowledge

Walmsley Brothers there had been no past incidents caused by traffic, including motorcycles, traversing such

an asphalt edge or lip.



Chris Walmsley testified that, in the ten years he had acted as a flagger prior to the accident, he had never

encountered a situation where vehicles had experienced difficulty transitioning onto such new asphalt; an

observation that included not only motorcycles generally, but the larger than usual number of motorcycles

travelling on roads leading to and from Port Dover each “Friday the thirteenth”.



Ian Albert indicated that he personally had never encountered situations where vehicles had difficulty moving

onto new asphalt. Nor had he ever seen motorcycles having difficulty transitioning on to new asphalt when

he directed them to do so. In that regard, he said the number of motorcycles encountered each day depended

on the weather, but on a nice day, the number of motorcycles passing through such a paving job could vary

from one or two to a “few hundred” if it happened to be Friday the 13^th; i.e., with motorcycles on their way

to Port Dover.

More generally, Mr Dutchak emphasized that, prior to Ms MacLean’s accident on June 29, 2015, Elgin

County had no concerns about paving work done by Walmsley Brothers, its management of construction

sites, or its direction of traffic within construction sites.

Page: 121

fell short of duties of repair owed pursuant to the Municipal Act, 2001, supra, or

the duties owed by an occupier pursuant to the Occupiers’ Liability Act, supra.

Without limiting the generality of the foregoing:

i. As noted above, liability pursuant to s.44(2) of the Municipal Act, 2001,

supra, attaches only to a specific identified fault, existing at a particular

place and time. As I had occasion to note in McLeod v. General Motors of

Canada Ltd., [2014] O.J. No. 26 (S.C.J.), at paragraph 57, a municipality

therefore should not be held liable, in effect, for a default or poor road

condition as some earlier or later time, or at some other particular location,

(albeit perhaps on the same road), that has no direct and demonstrated

connection with the particular accident giving rise to a claim. In my view,

the corollary is that a municipality should not escape liability under s. 44(2)

of the Municipal Act, 2001, supra, in relation to a specific identified default,

simply because there is evidence suggesting that the particular default may

not have existed at other locations at other times.

ii. Similarly, as noted above, those advancing claims based on the Occupiers’

Liability Act, supra, are required to pinpoint some act or failure to act on

the part of the occupier, which caused the injury complained of, before

liability can be established in a particular case. As a matter of logic and

relevance, the existence of such an act or failure at the place and time relied

upon by a plaintiff is not negated by evidence that an occupier may not have

failed in its duties at other locations and times.¹⁰⁸

iii. As also noted above, our courts – including the Supreme Court of Canada -

therefore have emphasized that claims based on alleged breach of statutory

duties owed by municipalities pursuant to s.44 of the Municipal Act, 2001,

supra, and by occupiers pursuant to s.3(1) of the Occupiers’ Liability Act,

supra, are intensely fact specific.¹⁰⁹In my view, the realities underlying

such admonitions come to the fore in a case such as this where the

defendants rely on anecdotal evidence of vehicles, including but not limited

to motorcycles, allegedly having transitioned onto recently applied asphalt

without incident at other places and times. Accepting the relevance of such

¹⁰⁸Evidence tendered for that purpose obviously must be distinguished from evidence relating to whether an occupier

had reasonable system of maintenance and/or inspection in place, which inherently requires evidence of what may or

may not have occurred beyond the specific time and place of the accident giving rise to a claim.

109

For example, see again Housen v. Nikolaisan, supra, at paragraph 38, where the Supreme Court of Canada

emphasized, in relation to claims alleging breach of statutory duties of highway maintenance, that what constitutes a

reasonable state of repair is a question of fact, depending on all the surrounding circumstances, that “repair” is a

relative term, and that facts in one case accordingly afford no fixed rule by which to determine another case in which

the facts may be different. Similarly, see again Malcolm v. Waldick, supra, at paragraph 33, wherein the Supreme

Court of Canada emphasized that the factors relevant to an assessment of what constitutes reasonable care by an

occupier “will necessarily be very specific to each fact situation”.

Page: 122

evidence to what may or may not have happened or been done at the

particular time and place of the accident giving rise to this case effectively

ignores a myriad of potentially distinguishing facts which may or may not

have existed on those other occasions. Without limiting the generality of

the foregoing:

1. The time between new asphalt being finally rolled and motorcycles

being directed to transition onto that new asphalt may have varied

considerably from what happened in this case. For the reasons set

out herein, the passage of time and corresponding cooling and

hardening of new asphalt is significant, when it comes to the

stability of such asphalt.

2. The time of year and prevailing weather conditions, (e.g., including

the possibility of generally cooler temperatures, cloudy weather

preventing the unimpeded effects of direct sunlight, and/or recently

applied asphalt having been exposed to intermittent rain), also may

have been substantially different on prior occasions, in turn having

a significant impact on the rate at which newly applied asphalt may

have cooled and hardened.

3. For the reasons outlined herein, in my view the reasonableness of

rear flaggers moving forward to locations where traffic is being

directed onto fresh asphalt and/or moving forward to such locations

sooner rather than later, (i.e., to address professed concerns about

maintenance of sight lines, the ability to note and deal with traffic

entering the roadway between flaggers, and/or reducing the

possibility of traffic speeding up between flaggers), inherently will

vary with different road configurations and work sites. In some

circumstances, the rationales offered by Walmsley Brothers for its

practice in that regard may be more compelling, and present

offsetting concerns reasonably warranting, on balance, movements

and positioning of the rear flagger that in turn present a degree of

enhanced risk for a motorcyclist such as Ms MacLean. In other

circumstances, the rationales offered by Walmsley Brothers for its

practice may be absent or not very compelling, making it

unreasonable for a rear flagger to force a motorcyclist such as Ms

MacLean to face such a risk.

4. For the reasons outlined herein, the risks posed to motorcycles by

such fresh asphalt are significantly different than the risks posed to

vehicles having more than two wheels, with tires having flat rather

than rounded surfaces. In my view, evidence of vehicles with four

or more wheels passing safely over such new asphalt in the past

accordingly has little or no bearing on the existence, foreseeability

Page: 123

and/or reasonable approach to the sort of risk encountered by Ms

MacLean in this case.¹¹⁰

5. Moreover, the evidence before me indicates that past experience

with a particular motorcycle or motorcycles safely passing over such

new asphalt does not warrant reasonable generalizations about the

ability of other motorcycles to do the same. As emphasized by Mr

Inglis, (and discussed in more detail below), motorcycles do not

have uniform styles and characteristics, and variations between

types of motorcycles, and the number of people riding on them at

any particular time, (i.e., the existence of passengers), has an

important bearing on how easy or difficult it may be for a particular

motorcycle to transition safely over various road elevations and

unstable surfaces.

iv. Our courts also have emphasized that the existence of customary practices

unreasonable in themselves, or which are not otherwise acceptable to courts,

in no way ousts a party’s obligation to take the reasonable care required in

particular circumstances, and that no amount of general community

compliance with a practice will render negligent conduct reasonable.¹¹¹In

that regard:

1. Such statements generally have been made in the context of

addressing arguments based on the supposed customary practice

followed in or by a particular community.

2. However, it seems to me that the same approach should apply, a

fortiori, in cases such as the one before me, where a party attempts

to rely on its own individual longstanding custom or practice,

without evidence that the custom or practice was the subject of wider

acceptance or adoption by other parties; e.g., by other pavers of

public highways.¹¹²In that regard, I note that, in Malcolm v.

¹¹⁰In that regard, I think I also can take a degree of judicial notice that vehicles with more than two wheels represent

a substantial majority of the vehicles travelling on Ontario’s roads. Much if not most of the vehicles passing over new

asphalt applied by Walmsley Brothers in the past therefore is likely to have had more than two wheels and tires having

flat rather than rounded treads.

111

See, for example, Waldick v. Malcolm, supra, at paragraphs 35 and 37, and Fordham (Litigation guardian of) v.

Dutton-Dunwich (Municipality), supra, at paragraph 47.

112

In the statement of law and brief of authorities tendered on behalf of the plaintiffs, reference was made to legal

authority, including the Supreme Court of Canada’s decision in ter Neuzen v. Korn, [1995] 3 S.C.R. 674, dealing with

situations in which courts are asked to find that conformity with a standard practice adopted and followed by a

profession or industry dispels a charge of negligence, or that the standard practice adopted and followed by a

profession or industry should be condemned as negligent on the basis it is fraught with obvious risks. In my view,

however, such authorities have no application in the present case. Without limiting the generality of the foregoing, I

Page: 124

Waldick, supra, at paragraph 35, the Supreme Court of Canada

quoted, with approval, Professor Linden’s general observation that

“tort courts have not abdicated their responsibility to evaluate

customs, for negligent conduct cannot be countenanced, even when

a large group is continually guilty of it”. [Emphasis added.] In my

view, that makes it clear the courts have no less ability to question

and evaluate the merits of a longstanding customary practice

adopted by an individual litigant.

n. For similar reasons, I was not persuaded by the defendants’ reliance on the fact that

Mr Miles was able to traverse the asphalt lip on his motorcycle without difficulty.

Without limiting the generality of the foregoing:

i. In my view, there actually was little persuasive evidence of the precise

manner in which Mr Miles traversed the relevant edge or lip of new asphalt

in this case. In that regard:

1. Ms MacLean and Hailee understandably made no observations in

that regard, as Mr Miles was travelling to their rear before they

experienced the accident and then had more important concerns to

focus on.

2. Chris Walmsley was unable to recall the position of Mr Miles and

his motorcycle prior to the accident, and offered no recollection of

seeing Mr Miles transition across the asphalt lip.

3. Ian Albert’s description of Mr Miles crossing the asphalt lip was

limited to a recollection that Mr Miles transitioned onto the new

asphalt without difficulty, initially slowing his vehicle and making

a “little jaunt” or “little jump” to the left, before turning his wheel

to the right. I did not find that description or account fulsome,

persuasive or convincing, given the relatively low speed at which

Mr Miles was travelling and the motorcycle weight and centre of

gravity dynamics described by Mr Inglis in his expert testimony.

4. Mr Miles himself had no recollection in that regard, which in my

view is entirely understandable if his primary attention was focused

on his wife and Hailee having just experienced a motorcycle

accident, and concern for their well-being.

was presented with no evidence to suggest that the longstanding practice of Walmsley Brothers in relation to such

matters, (e.g., moving rear flaggers forward in a manner whereby they direct traffic onto recently applied asphalt as

soon as a finishing roller as completed its work in relation to that asphalt), represented any form of commonly accepted

and followed standard practice in the paving industry.

Page: 125

ii. As emphasized by Mr Inglis in his expert testimony, (which I accept), Ms

MacLean and Mr Miles were not riding identical motorcycles, and the

different characteristics of their respective motorcycles have significance

when it comes to determining the degree of ease or difficulty either may

have encountered when attempting to pass across the elevated edge of the

new asphalt. In particular:

1. Mr Inglis emphasized that the tire sizes on the two motorcycles were

different, and that the two vehicles had a different lay out to their

suspension systems.

2. Mr Inglis also stressed that the two motorcycles had handlebars of a

fundamentally different configuration; i.e., whereby those on Ms

MacLean’s Triumph motorcycle were “wider” and “taller” than

those on Mr Miles’ motorcycle, thereby requiring larger movements

to turn the vehicle and maintain control over its stability.¹¹³

iii. Moreover, unlike Ms MacLean, Mr Miles had no passenger on his

motorcycle, and I accept the expert testimony of Mr Inglis who emphasized

that was another important differentiating factor; one that would alter not

only the weight on Ms MacLean’s motorcycle but also its centre of gravity,

in turn affecting ability to control the motorcycle if it encountered a

situation where its rear tire was unable to gain sufficient traction to keep the

motorcycle moving forward. Without limiting the generality of the

foregoing:

1. Mr Inglis emphasized that manufacturers of street motorcycles

generally try to design them with a view to “mass centralization of

weight”; i.e., such that weight will have a relatively low centre of

gravity, and be concentrated as much as possible near the centre of

the vehicle between its front and rear wheels. All of that increases

a motorcycle’s stability while it is being operated.

2. However, when operators of such motorcycles engage in the

common and permissible practice of having a passenger riding

behind them, the centre of gravity of the motorcycle and its

passengers will be higher¹¹⁴, (inherently increasing the tendency of

¹¹³Mr Inglis emphasized that the handlebars on Mr Miles’ motorcycle were on a flatter and shorter bar, enabling the

rider of such a motorcycle to engage in more rapid and precise turning than the rider of a motorcycle such as that being

operated by Ms MacLean. In that regard, Mr Inglis drew an analogy between a sports car and a luxury vehicle; i.e.,

in terms of precision control.

¹¹⁴In the course of his testimony, Mr Inglis noted that the passenger portion of the seat on Ms MacLean’s motorcycle

was approximately three to four inches higher than the portion to be occupied by the motorcycle’s driver, and that the

design in that regard was quite “common on many street motorcycles”; i.e., allowing passengers to look past the

Page: 126

the bike to turn more quickly to one side or the other), and obviously

shifted more towards the rear of the motorcycle, in turn

concentrating more weight on the motorcycle’s rear wheel.

3. Moreover, the presence of a passenger inherently creates additional

challenges for a motorcycle operator. In particular, passengers on

motorcycles, (in contrast to most seatbelt wearing passengers in

vehicles having more than two wheels), are not passive factors in

relation to a vehicle’s operation, but instead create additional

dynamics. Motorcycle operators generally are unable to control

what a passenger does; e.g., in terms of adequately preparing for and

reacting to stopping and acceleration, or properly leaning into a turn

instead of away from it. Motorcycle passengers also usually will be

stabilizing themselves by leaning into and/or holding onto the

motorcycle operator. All of this creates additional operational

challenges for a motorcycle operator engaged in the entirely normal

and permissible practice of having a passenger.

iv. In my view, such considerations inherently prevent any straightforward

comparisons between the ability of Ms MacLean and the ability of Mr Miles

to pass over the relevant edge or lip of the new asphalt successfully, and any

ready inference that the situation was reasonably safe simply because Mr

Miles was able to transition onto the new asphalt without experiencing a

similar accident. Without limiting the generality of the foregoing:

1. I think the different tire sizes on the two motorcycles inevitably

would have a bearing on the extent to which each motorcycle’s rear

tire had a contact surface with the relevant elevated edge or lip of

the new asphalt in this case, in turn having an effect on the extent of

traction each rear tire would be capable of achieving along that

elevated edge or lip of new asphalt.

2. I think the different suspension and handlebar configurations on the

two vehicles inevitably would have a bearing on the extent to which

the operator of each vehicle would have been able to cope with any

stability problems presented while passing over the elevated edge of

the new asphalt.

3. Because Ms MacLean had Hailee riding behind her as a passenger,

(as she was perfectly entitled to do), I think the leading edge of her

rear tire inherently had more weight pressing down on the edge of

the asphalt lip than the leading edge of the rear tire of Mr Miles’

shoulders of the driver instead of being forced to look primarily at a point somewhere near the centre of the driver’s

back.

Page: 127

motorcycle. While increased weight on the rear tire normally has

the beneficial effect of increasing the traction on the “contact patch”

between the rear tire and underlying surface, that will not be the case

where such increased weight causes the underlying surface to give

way and therefore offer less stability.

4. Moreover, to the extent either motorcycle encountered stability

challenges while passing over that asphalt lip, the reality of Ms

MacLean having a passenger inherently made it more difficult for

Ms MacLean to address such challenges, owing to her and Hailee

having a higher centre of gravity, (making her motorcycle more

inclined to lean to the right or left more quickly), her inability to

control Hailee’s movements, (e.g., in terms of Hailee leaning in the

proper direction to maintain stability), and Hailee no doubt

attempting to hold on to her aunt as the movement of Ms MacLean’s

motorcycle suddenly became chaotic as they were trying to pass

over the edge of the new asphalt.

o. In my view, testimony of witnesses called by the defence reinforced the conclusion

suggested by the objective evidence, (for the reasons noted above), that there

actually was no objective need or justification in this particular case for the rear

flagger at the south end of the relevant paving operation, (i.e., Ian Albert), to move

forward/north past the southern edge of the freshly applied asphalt and direct traffic

travelling south in the normally northbound traffic lane onto the new asphalt,

instead of allowing such traffic to proceed further south and entirely around the

new asphalt. For example:

i. In the course of cross-examination, Glenn Walmsley conceded that the

relevant paving operation on Richmond Road was not a very large or

lengthy area, (i.e., only 1.3km), and was pressed to explain how moving the

rear flagger north of the southern edge of the new asphalt, (thereby forcing

southbound traffic onto the new asphalt instead of being permitted to

circumvent the new asphalt entirely), achieved any significant or

meaningful benefits in terms of reducing traffic delay or safety concerns.

He was completely unable to provide any responsive substantive answer or

justification in that regard; e.g., simply emphasizing once again that

Walmsley Brothers had never had a prior incident in relation to the edge or

lip of new asphalt, and that he would “stand by” whatever decisions were

made by Mr Albert, doing “what he thought right” as a rear flagger.

ii. In the course of his cross-examination, Chris Walmsley acknowledged that

he considered the Richmond Road paving project to be a “short” one, that

the distance between the southern end of the new asphalt and where Ms

MacLean had been directed onto the new asphalt was also very “short” and

no more than 100-150 meters, and that the reduction of traffic delay

achieved by the rear flagger moving forward from his initial position to

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where he directed Ms MacLean onto the new asphalt was “minimal”. When

pressed for a reason why the rear flagger could not have stayed at his initial

position, permitting southbound traffic to drive completely around the new

asphalt instead of passing over it, Chris could not provide one. He simply

indicated his view that was “safer”, without being able to explain why that

was so in these particular circumstances.

iii. In cross-examination, Mr Albert seemed unreasonably reluctant to

acknowledge that his moving forward by 50 meters would not save a great

deal of time, in terms of minimizing traffic delay; e.g., emphasizing that

moving forward “any length” results in some saving of traffic time, and that

moving forward by 50 meters could result in a notable reduction of traffic

delay “if there’s a line of 50” cars. However, he also acknowledged, (albeit

somewhat grudgingly), that there maybe would not be very much time

saved at all if the traffic flow was modest – as I find it to have been at the

time of the accident.¹¹⁵

p. I also thought it noteworthy that Chris Walmsley, in the course of his testimony,

mentioned that Walmsley Brothers sometimes employs more than two flaggers at

the same time, in situations where it is thought advisable to have an additional

flagger performing traffic control duties somewhere between the lead flagger and

rear flagger; e.g., to help with the control of traffic at an intervening intersection,

or the entrance to something like a factory. In my view, such use of an additional

flagger or flaggers suggests an obvious and arguably safer alternative to having a

rear flagger move forward and direct traffic onto fresh asphalt immediately after a

finishing roller has completed its work. In that regard:

i. It was suggested by the defence that positioning lead and rear flaggers at

some distance beyond both ends of the fresh asphalt, thereby allowing

traffic to be directed completely around new asphalt without ever having to

go over it, might create safety concerns by reducing direct sight lines

between the two flaggers and encouraging the tendency of drivers to speed

up between distant flaggers.

¹¹⁵None of the witnesses who testified suggested that there was any significant or heavy traffic flow along the relevant

segment of Richmond Road that day. As noted above, I accept the testimony of Ms MacLean and Mr Miles that they

were the first southbound traffic in line when they approached the paving operation from the north, and that they were

obliged to wait no more than five minutes for northbound traffic to pass the paving operation before they were

permitted to proceed southbound. Moreover, Mr Miles clearly had no difficulty standing in the northbound lane while

he took numerous photographs after the accident, and the numerous photographs taken by Mr Watters that same

afternoon, shortly after the accident, repeatedly show a road that was essentially devoid of traffic, not only in the

construction zone but for extended lengths north and south of the construction zone, apart from the vehicles associated

with the construction operation. There was no evidence to suggest any reason why the traffic flow along Richmond

Road around 2pm that day, (i.e., the approximate time of the accident), would have been significantly greater than the

traffic flow along the same road a relatively short time later, that same afternoon.

Page: 129

ii. An intervening flagger obviously would help to preserve direct sightlines

between each successive flagger, and the intervening flagger also would

have the ability to note and control traffic entering the roadway between the

lead and rear flaggers, and slow and/or stop traffic moving too quickly

between the lead and rear flaggers.

iii. While use of an additional intervening flagger would not necessarily help

to reduce traffic delay, that concern relates to matters of convenience and a

desire of road workers to avoid public upset; matters which, in my view,

have an inherently lower priority than the promotion of safety.

q. Finally, I note my view that each of the defence witnesses essentially acknowledged

in cross-examination, (albeit in different ways), that an insufficiently hardened

edge or lip of new asphalt would present an unusual, unstable and/or hazardous

situation. In that regard:

i. Glenn Walmsley indicated that he normally would not expect to see new

asphalt, from an area where a finishing roller had completed its work,

adhere to jeans or metal. Nor would he expect to see the edge or lip of such

new asphalt give way or break loose because of a vehicle traversing it at a

45 degree angle. He also would not expect a vehicle passing over such new

asphalt to leave visible tire marks on it. And yet, for the reasons outlined

above, I find that all of those things happened in this case.

ii. Glenn Walmsley acknowledged in cross-examination that if the top edge of

an asphalt lip was not solid, traffic should not be waved onto it.

iii. In his testimony, Chris Walmsley acknowledged that, if traffic directed onto

new asphalt left marks on that new asphalt, such a situation would indicate

to him that traffic had been directed onto that particular new asphalt “too

soon”. Yet marks were left on the new asphalt in the area of the accident;

e.g., by Ms MacLean’s motorcycle, by the attending ambulance, and by

Glenn Walmsley’s truck when he drove from the paver back to the scene of

the accident and crossed over the new asphalt to park on the west shoulder

of the road.

iv. Chris Walmsley also acknowledged that, if the relevant asphalt lip was not

hard enough to support a wheel trying to get traction on it, he would

consider that a hazard. Yet the physical evidence alone makes it clear that

is precisely what happened in this particular case, for the reasons I have

outlined.

v. Chris Walmsley also conceded that, if new asphalt started to spray off from

the edge of the new asphalt lip as traffic was trying to go over the top of it,

that “wouldn’t be good”, and would indicate that traffic had been directed

onto/over the asphalt lip too soon. But once again, the physical evidence

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alone makes it clear that is what happened in this particular case, as Ms

MacLean’s rear motorcycle wheel tried to make its way over the lip or edge

of the new asphalt.

vi. Mr Albert indicated that vehicles normally would not make marks on fresh

asphalt once a finishing roller has completed its work on it. But again, the

photographs show that, in the area where the accident occurred, marks were

being left on the fresh and completely rolled asphalt; e.g., by Ms MacLean’s

motorcycle, the ambulance, and the pickup truck driven across that asphalt

by Glenn Walmsley when he came back to look at the accident scene.

vii. When Mr Albert was asked why fresh asphalt would spray out from the

edge of the new asphalt into the northbound lane as depicted in the

photographs, if it was as hard as he thought it should be to carry new traffic,

Mr Albert could offer no explanation; e.g., saying “I don’t know why it

would spray out”, “I don’t know why it would”, and “I really don’t know”.

viii. For his part, My Dutchak acknowledged in cross-examination that it would

be uncommon, and cause him concern, if a vehicle crossing the edge of new

asphalt displaced and splattered fresh asphalt from that edge while sliding

along it. He said such a situation would indicated that “something would

be different” and “atypical” about such a situation, and he would want to

know the cause. However, that is precisely the situation depicted in the

photographs of the accident scene Mr Dutchak said he inspected in this case,

which purportedly caused him no concern.

[54] Factoring in the above considerations and findings, and turning overtly to the specific

analysis required in relation to liability determinations made in relation to the Municipal

Act, 2001, supra, as far as Elgin County is concerned:

a. For the reasons outlined herein, the plaintiffs have satisfied me on a balance of

probabilities that Elgin County, through its contractually authorized agents, (i.e.,

Walmsley Brothers and its employees), failed to keep the area of Richmond Road

where the accident occurred in a state of repair that was reasonable in the

circumstances. In that regard, and without limiting the generality of the foregoing:

i. The specific defaults alleged and relied upon by the plaintiffs as failures to

keep the relevant area of Richmond Road in a reasonable state of repair, at

the time of the accident, are described and particularized in detail at

paragraph 7 of the statement of claim filed by the plaintiffs. However,

evidence and submissions during the course of trial made it clear that the

plaintiffs essentially were focused on:

1. the alleged creation of an elevated edge or lip of fresh asphalt

ordinary motorists such as Ms MacLean were directed to drive over

at a time when:

Page: 131

a. that edge or lip was unstable and provided insufficient

traction for that particular travel to be done in safety; and

b. the safety risks in that regard could and should have been

avoided by the rear flagger positioning himself in a manner

that allowed such ordinary motorists to drive completely past

and around the new asphalt without ever having to drive onto

and over it; and

2. a failure to warn ordinary motorists such as Ms MacLean of the

dangers presented by transferring from the established pavement

onto the fresh asphalt - which plaintiff counsel defined more

specifically, during the course of questioning and argument, as a

failure to employ “bump” or “uneven lane” signs alerting motorists

to the elevated edge or lip of new asphalt they would be required to

pass over.

ii. For the reasons outlined herein, I have found that, in the particular

circumstances prevailing at the time of the accident, the relevant edge or lip

of the new asphalt, (i.e., in the area where Ms MacLean was directed to

transition back into the southbound lane of Richmond Road), was indeed

unstable. It had received less compression force than other areas of the new

asphalt and, by the time Mr Albert began to direct traffic over it, it had not

been permitted to cool and harden sufficiently to a point where it was

reasonably capable of providing sufficient traction allowing all ordinary

motorists, (including ordinary motorcyclists operating a proper street

motorcycle with a passenger sitting behind them), to use it in safety. To the

contrary, the relevant fresh asphalt still retained sufficient heat to render it

soft and malleable, thereby posing a significant risk that certain ordinary

motorists, (i.e., ordinary motorcyclists operating a proper street motorcycle

with a passenger behind them), would not be provided with sufficient

traction to transition over and onto such fresh asphalt without loss of speed

and stability. It was a risk that was not readily apparent to ordinary

motorists.

iii. For the reasons outlined herein, I also have found that such risks were

inherent in the paving, traffic control and flagging practices adopted by

Walmsley Brothers and its employees, (acting as agents of the county), who

knew or reasonably ought to have known of such risks; e.g., insofar as they

were aware of the temperatures at which fresh asphalt remained soft and

malleable, but deliberately adopted a practice whereby a finishing roller was

likely to complete its work, and a rear flagger was likely to then move

forward and direct traffic onto fresh asphalt, before that fresh asphalt had

been permitted to cool and harden sufficiently and reasonably to adequately

minimize if not eliminate such risks.

Page: 132

iv. For the reasons outlined herein, I also have found that there was no

reasonable justification, in the particular circumstances prevailing at the

time of the accident, for Mr Albert to move forward and direct traffic over

and onto the fresh asphalt in the relevant area, thereby forcing ordinary

motorists to incur such risks. In particular, his doing so was not reasonably

necessary to preserve sight lines between flaggers, reduce the risk of

unnoticed or uncontrolled traffic entering the roadway between flaggers,

reduce the risk of traffic speeding up between flaggers, or reduce public

inconvenience. In the circumstances, it was neither necessary nor

reasonable for Mr Albert to force ordinary motorists to incur the risks

inherent in their being directed to drive onto and over such unstable fresh

asphalt when it would have been perfectly possible and reasonable to

position himself in a manner that allowed southbound traffic to circumvent

the new asphalt completely.

v. Having regard to all the circumstances, I am satisfied that the creation of

such an unstable elevated edge or lip of new asphalt that was not readily

apparent to ordinary motorists, and unreasonably requiring ordinary

motorists to travel over that it when the inherent and reasonably foreseeable

risks of doing so easily could have been avoided completely at no expense,

constituted a failure to keep the relevant area of Richmond Road in a state

of repair that was reasonable in the circumstances, within the meaning of

s.44(1) of the Municipal Act, 2001, supra.

vi. As for the second specific default alleged and replied upon by the plaintiffs

in that regard, it was not disputed that no “bump” or “uneven lane” signs

were employed, at the area where the accident occurred, to alert motorists

to the elevated edge or lip of new asphalt they would be required to pass

over. However, I am not satisfied on a balance of probabilities that the

county’s duty of repair required the use of such signs in the manner

suggested by plaintiff counsel. In that regard:

1. All the evidence before me makes it clear that this was not a situation

where the relevant “bump” or “uneven lane” ordinary motorists

would encounter and have to traverse, if and when directed onto the

new asphalt, was in any way hidden or not readily apparent to users

of Richmond Road at the relevant time.

2. To the contrary, the photographic evidence and witness testimony

made it abundantly clear that, in the prevailing clear and sunny

daylight conditions at the time of the accident, the demarcation

between the original pavement and much darker new asphalt applied

to Richmond Road, and the slope leading up to the raised elevation

of the upper rolled surface of the new asphalt, were quite obvious to

anyone paying attention. Moreover, ordinary motorists heading

southbound, directed into the normally northbound lane, and

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travelling past the obvious ongoing paving operation to their right,

had plenty of opportunity to notice that change in relative elevation

between the two lanes, created by application of the new asphalt,

and the point of transition in that regard running along the centre

line of the road.

3. As noted above, “ordinary drivers” exercising reasonable care pay

attention, and in my view would have noticed such things. The

prevailing circumstance accordingly were such that ordinary drivers

did not require the placement of “bump” or “uneven lane” signs to

alert them to the raised elevation presented by the edge or lip of the

new asphalt surface. The failure of Walmsley Brothers to employ

such signs at the relevant area for that purpose, (i.e., to warn users

of the road of the raised elevation), accordingly did not constitute a

failure to keep the relevant area of Richmond Road in a reasonable

state of repair.¹¹⁶

b. For the reasons set out herein, I am satisfied on a balance of probabilities that the

established failure to keep the relevant area of Richmond Road in a reasonable state

of repair, described above, caused the relevant accident. In particular, the accident

would not have happened “but for” the elevated edge or lip of the new asphalt not

being sufficiently hard and stable, and Ms MacLean being unnecessarily and

unreasonably directed over it, resulting in her motorcycle’s rear tire encountering a

situation of insufficient traction, in the manner described in my factual findings

concerning the mechanics of the underlying accident.¹¹⁷

c. During the course of trial, defence counsel confirmed that Elgin County was not

taking the position that any of the statutory defences set forth in s.44(3) of the

Municipal Act, 2001, supra, had any application in the circumstances.¹¹⁸Having

¹¹⁶As noted above, the risks created by the edge or lip of the new asphalt being unstable were not readily apparent to

users of the road. In my view, there was a corresponding failure to provide ordinary motorists with any warnings in

that regard.

¹¹⁷For the sake of completeness, to the extent I am mistaken about the absence of “bump” and/or “uneven lane” signs

at the edge or lip of the new asphalt not constituting a failure to keep the relevant area of Richmond Road in a

reasonable state of repair, I repeat my earlier observation that any such failure was not a cause of Ms MacLean’s

accident. Ms MacLean herself acknowledged that she noticed and was aware of the relevant change in elevation

created by the edge or lip of the new asphalt even without the presence of such signs.

¹¹⁸In the course of final submissions, defence counsel initially indicated an intention to argue that at least one of those

statutory defences applied in the circumstances, insofar as Elgin County was said to have met minimum standards

giving rise to a defence pursuant to s.44(3)(c) and 44(4) of the Municipal Act, 2001, supra. In that regard, I was

presented with a portion of Ontario Regulation 239/02, enacted under the Municipal Act, 2001, supra, dealing with

“Minimum Maintenance Standards for Municipal Highways”, and “Roadway surface discontinuities” in particular.

However:

Page: 134

failed (through its contracted agents) to keep the relevant section of Richmond

Road in a reasonable state of repair, in a manner that caused Ms MacLean’s

accident, without any applicable statutory defence, Elgin County must be found

liable for the plaintiff’s damages resulting from the accident.

d. For the reasons outlined herein, I have found that Elgin County has failed to

establish, on a balance of probabilities, that Ms MacLean’s driving caused or

contributed to the plaintiffs’ injuries; i.e., it has failed to establish contributory

negligence on the part of Ms MacLean. Without limiting the generality of the

foregoing, I am not satisfied that Ms MacLean approached the edge or lip of the

new asphalt at an inappropriate speed or inappropriate angle, that her conduct in

attempting to deal with the challenges encountered during her efforts to drive over

that edge or lip was inappropriate, or that the accident would not have happened

“but for” any such conduct on the part of Ms MacLean.

[55] Factoring in the above considerations and findings, and turning overtly to the specific

analysis required in relation to liability determinations made in relation to the Occupiers’

Liability Act, supra, as far as Walmsley Brothers is concerned:



I then independently expressed a concern, (echoed by plaintiff counsel Mr Steiner when he then had a chance

to address the issue), that such efforts appeared to raise and rely upon a statutory defence not advanced by

the defendants in their pleading, upon which the matter had proceeded to trial; i.e., thereby arguably taking

the plaintiffs by surprise in that regard, after the close of evidence.

In particular, while Elgin County expressly pled and relied upon such a defence in paragraph 10 of its initial

statement of defence and crossclaim filed on or about June 29, 2017, (i.e., prior to further steps then being

taken to join forces with Walmsley Brothers in order to present a joint and united defence), that statutory

defence was not reiterated and pursued in the statement of defence filed jointly by both defendants on August

4, 2017; a pleading which superseded (rather than supplemented) Elgin County’s original pleading, according

to the express endorsement made by Justice Grace on November 15, 2018.



In such circumstances, it seemed to me that an attempt to raise and advance such a statutory defence only in

the course of closing arguments raised concerns about trial fairness; e.g., since pleadings define the

parameters of relevance and, during the trial, it seemed the plaintiffs therefore understandably had not

presented any evidence or conducted any cross-examination focused on the possible application of a statutory

defence not raised by the defendants’ pleading. That in turn prompted further discussion about whether the

defendants were required to plead and rely upon such statutory defences expressly; an issue in respect of

which neither defence counsel nor plaintiff counsel had prepared any argument or authorities, but I

independently had concerns having regard to authorities such as Perlmutter v. Jeffery (1979), 23 O.R. (2d)

428 (H.C.), and S. (W.E.) v. P.(M.M.), [2000] O.J. No. 2792 (C.A.), leave to appeal refused 149 O.A.C. 397

(note) (S.C.C.). It also prompted further discussion about how any such trial fairness concerns might be

addressed and resolved.



After further consideration, and the taking of further instructions during a luncheon recess, defence counsel

then expressly indicated and confirmed that the defendants were no longer taking the position that any of the

statutory defences outlined in s.44(3) of the Municipal Act, 2001, supra, had any application to this

proceeding. That effectively ended the need to give any further consideration to the s.44(3) statutory defences

in this case. See Deering v. Scugog (Township), supra, at paragraph 94.

Page: 135

a. For the reasons outlined herein, at the time of the accident the relevant area of

Richmond Road were “premises” in respect of which Walmsley Brothers was an

“occupier”, within the meaning of the Occupiers’ Liability Act, supra. Walmsley

Brothers accordingly had a duty to take care, reasonable in all the circumstances,

to see that persons entering onto that relevant area of Richmond Road, (including

Ms MacLean), would be reasonably safe while doing so.

b. For the reasons outlined herein, the plaintiffs have satisfied me on a balance of

probabilities that Walmsley Brothers failed to meet that standard of reasonable care,

in a manner causing the accident and resulting injuries complained of by the

plaintiffs. In that regard, and without limiting the generality of the foregoing:

i. In my view, the plaintiffs have “pinpointed” specific and relevant acts and

failures to act on the part of Walmsley Brothers, as an occupier of the

relevant area of Richmond Road at the time of the accident, said to

constitute a breach of the applicable standard of care. In particular, as noted

above:

1. The plaintiffs rely, inter alia, upon Walmsley Brothers’ creation of

an elevated edge or lip of fresh asphalt that was unstable and

incapable of providing sufficient traction to a motorcyclist in the

position of Ms MacLean, the rear flagger of the relevant paving

operation moving forward in a manner that prematurely directed Ms

MacLean onto and over that unstable edge or lip of new asphalt

before it had an opportunity to cool and harden sufficiently to

provide requisite traction for the rear tire of Ms Walmsley’s

motorcycle, and the corresponding failure of the rear flagger to

permit a motorcyclist in the position of Ms Walmsley to avoid such

risks completely by travelling entirely around the new asphalt, when

flagging the paving operation in a manner allowing Ms MacLean to

do so would have been not only possible but entirely reasonable in

the circumstances.

2. The plaintiffs also rely on the failure of Walmsley Brothers to

employ “bump” and “uneven lane” signs in a manner alerting

drivers to the elevated edge or lip of the new asphalt they would be

required to pass over.

ii. For reasons I already have outlined, and accordingly will not repeat again,

in my view the “pinpointed” actions and failures relied upon by the

plaintiffs, (e.g., in relation to creation of the relevant edge or lip of new

asphalt and conduct of the rear flagger in directing Ms MacLean onto and

over that relevant area of new asphalt, unnecessarily and unreasonably),

exposed Ms MacLean to a significant risk that Walmsley Brothers knew or

ought to have known, but which was not readily apparent to Ms MacLean.

However, the failure of Walmsley Brothers to employ “bump” and/or

Page: 136

“uneven lane” signs, for the purpose of drawing the attention of such

motorists to the change in elevation created by the relevant edge or lip of

new asphalt, was not unreasonable in the circumstances.

iii. In that regard, I am mindful of the important qualifications on an occupier’s

duty of care noted above; e.g., that the applicable standard of care is

reasonableness and not perfection, that Walmsley Brothers accordingly was

not required to remove every possibility of risk to those using the relevant

area of Richmond Road, that Walmsley Brothers similarly was not required

to adopt unrealistic or impractical precautions against known or knowable

risks, and that the mere presence of an unstable edge or lip of new asphalt

is insufficient to establish a failure on the part of Walmsley Brothers to meet

the required standard of care. However, in this particular situation, for the

reasons I have outlined:

1. The paving and rear flagger practices adopted by Walmsley

Brothers were not reasonable in the circumstances, insofar as they

inherently promoted creation of the relevant risk, which in my view

was reasonably foreseeable.

2. The flagging and traffic control practice developed and adopted by

Walmsley Brothers not only created the risk, but effectively

discouraged or negated active consideration of whether the risk was

present in relation to the particular paving project, and whether the

risk could and should have been reasonably avoided at the time of

the accident; i.e., by the simple expedient of the rear flagger not

moving forward unnecessarily to his position at the time of the

accident, and directing traffic prematurely onto the new asphalt

there, but remaining instead at a more southerly position where a

motorcyclist such as Ms MacLean could have driven around the

relevant paving project entirely, without ever having to pass onto or

over the new asphalt.

3. In my view, the cumulative effect of the specified acts and failures

of Walmsley Brothers was the creation of an unreasonable risk of

harm to Ms MacLean.

iv. For reasons already explained, the plaintiffs have satisfied me, on a balance

of probabilities, that the relevant “pinpointed” acts and failures of Walmsley

Brothers in turn caused Ms MacLean’s accident, and the plaintiffs’

acknowledged and agreed damages flowing from that accident.

v. Walmsley Brothers accordingly must be found liable, as an occupier of the

relevant area of Richmond Road, for the damages resulting from the

accident

Page: 137

c. Walmsley Brothers relied on the same considerations and arguments as the county

did in support of its assertion that Ms MacLean driving caused or contributed to the

plaintiffs’ injuries. For the reasons already noted herein, I am not satisfied, on a

balance of probabilities, that there was any contributory negligence on the part of

Ms MacLean.

[56] In the result, I have found each of the defendants liable for conduct causing and

contributing to the accident, (which in turn admittedly caused the acknowledged and agreed

resulting damages sustained by the plaintiffs), without any finding of contributory

negligence on the part of Ms MacLean.

[57] Normally, in a case where damages have been caused or contributed to by the fault or

negligence of two defendants, I would be required to make an independent determination,

pursuant to section 1 of the Negligence Act, supra, indicating the degree in which each of

the two defendants was at fault or negligent, before then finding both defendants jointly

and severally liable to the plaintiffs suffering loss or damage as a result of such fault or

negligence.

[58] In this case, however, I was expressly asked by defence counsel not to make any

differentiation between the two defendants in that regard; i.e., to find the two defendants

equally at fault or negligent, in the event they were found to be at fault or negligent.

[59] In order to comply with the legislated requirements of section 1 of the Negligence Act,

supra, while abiding by the apparent agreement and corresponding request of the

defendants, I accordingly make a formal finding that the two defendants were equally at

fault or negligent, (i.e., on a “50/50” basis), and that the two defendants are jointly and

severally liable to the plaintiffs for the agreed damages sustained by the plaintiffs.

Conclusion

[60] At the outset of trial, and again at its conclusion, counsel indicated and confirmed that the

parties were requesting a judgment reflecting my liability determinations, applied to the

agreed $325,000.00 in damages sustained by the plaintiffs.

[61] In the result, a formal judgment will go, finding the defendants jointly and severally liable

to the plaintiffs for those damages on an equal 50/50 basis.

[62] I was not provided with any indication as to how the damages collectively awarded to the

plaintiffs should be apportioned between them. In that regard:

a. I think such a formal apportionment is advisable in any event, given the intervening

separation and divorce of the plaintiffs.

b. Having said that, as the plaintiffs continued to be jointly represented through to

conclusion of the trial, and there was an agreement quantifying damages, I expect

there also may have been an agreement between the plaintiffs as to how any

recovered damages should be apportioned between them.

Page: 138

c. In the circumstances, if the plaintiffs have indeed agreed on such an apportionment,

that should be reflected in the draft formal judgment prepared to reflect this

decision; a draft formal judgment hopefully approved as to form and content on

behalf of all concerned. However, if there are any remaining issues in that regard

that require my attention, the parties may secure an appointment before me pursuant

to Rule 59.04(12), through consultations with the London trial coordinator, to settle

the form and content of the judgment. In that regard, I hereby grant leave for that

appointment to proceed by way of teleconference, if that helps to expedite matters.

Costs

[63] Because my judgment was reserved, the parties were unable to make any submissions

regarding costs. If the parties are unable to reach an agreement in that regard:

a. The plaintiffs may serve and file written cost submissions, not to exceed ten pages

in length, (not including any bill of costs or offers), within two weeks of the release

of this judgment.

b. The defendants then may serve and file written responding cost submissions, not to

exceed ten pages in length, (not including any bill of costs or offers), within two

weeks of the plaintiffs’ delivery of their written cost submissions or the time for the

plaintiff’s delivery of such submissions, whichever comes first.

c. The plaintiffs then may serve and file written reply cost submissions, (if any), not

exceeding two pages in length, within one week of the defendants’ delivery of their

cost submissions.

[64] If no written cost submissions are received within four weeks of the release of this

judgment, there shall be no costs awarded in relation to this action.

Justice Ian F. Leach

Justice I.F. Leach

Released: October 5, 2020

CITATION: Miles v. Corporation of the County of Elgin et al., 2020 ONSC 6014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TANYA MILES and SHANNON MILES

Plaintiffs

– and –

CORPORATION OF THE COUNTY OF ELGIN and

WALMSLEY BROS. LIMITED

Defendants

REASONS FOR JUDGMENT

Justice I.F. Leach

Released: October 5, 2020