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  
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BETWEEN:  
TANYA MILES1 and SHANNON MILES  
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Ryan Steiner and Madelaine Hoffard, for the  
Plaintiffs  
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 16th birthday. 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.6 The 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.  
6 Maintaining 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.7 The 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.  
7 For 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”.8 It 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.9 To 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  
8 Others 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”.  
9 As 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),11 Walmsley Brother generally does not  
close two lane roadscompletely 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.  
11 Glenn 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.12 While 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  
12 That 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.13 However, Walmsley Brothers says it has developed  
and adhered to that system, and uses it on almost every day on every one of  
its jobs,14 for 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,17 and 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;  
13 In 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”.  
14 According 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.  
15 In 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.  
16 As Glenn Walmsley put it, reducing the distance between flaggers thereby enhances safety because people are less  
likely to be “running into each other”.  
17 Defence 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.19 Elgin 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.  
19 Again, the underlying and round brackets are found in the original document.  
20 In 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  
21 In 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.23 Walmsley Brothers apparently has not  
felt it necessary to alter that generic written plan for any particular  
paving project.  
23 As 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  
24 In 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,25 and  
Mr Miles acquiring a Suzuki Boulevard M50 vehicle.  
25 Mr 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  
26 See, 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),27 that 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  
27 Ms 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,28 and 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.  
28 As 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 “carefulmotorcycle 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.  
29 Mr 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”.30 Mr 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  
30 In 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.31 In 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  
31 Mr 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  
Page: 38  
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  
32 Mr 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.  
Page: 39  
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  
33 I 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  
Page: 41  
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 edgeof 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.34 Mr 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  
34 As 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;  
35 However, 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.37 In that regard:  
a. Section 44 of the Municipal Act, 2001, supra, sets out the statutory scheme pursuant  
to which a municipality38 is 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.  
38 Pursuant 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  
40 See 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.  
42 See 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.  
43 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).  
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.  
45 Again, 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.47 The 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”.48 In  
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.50 The 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.51 Care nevertheless must be  
46 See 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.