Lloyd v. Bush (Napanee) – Third Time is the Charm?

Written on April 18, 2020.

The Ontario Superior Court of Justice has, following an 11 day Trial in Belleville on the question of liability arising from a motor vehicle accident 17 years ago on January 3, 2003 (damages were assessed at $4.1 million previously), recently released the third (yes, that is right, THIRD) trial decision in Lloyd v. Bush, an epic case involving municipal liability for alleged winter non-repair of a highway, and for the second consecutive time, counsel for the defendant municipality has lost at Trial and the client held liable.

Background

On the morning of January 3, 2003,  the Plaintiff had been driving for less than 30 seconds when she entered an “S-curve” portion of the road known locally as “Rankins Corners”, which was located some 400 metres east of her in-laws’ home. Entering Rankins Corners from the other direction was a commercial tank truck loaded with 20,000 pounds of propane driven by David Bush. He was in the process of making propane deliveries.  At approximately 10:35 a.m., The Plaintiff’s vehicle collided with the propane truck in the eastern half of the S-curve. The Plaintiff was severely injured and was left with permanent disabilities affecting her mobility, speech, dexterity, cognition and overall functioning. She had no recollection of the accident. At the time of the accident, witnesses recall that there was snow on the road (perhaps an inch or two) and that it was snowing very heavily at the time of the accident.

The First Trial

Following the first trial, with reasons released on January 10th, 2010, the Plaintiff’s action was dismissed, with costs “if demanded”.  During the course of the trial, the “other vehicle” defendants, David P. Bush and 818601 Ontario Inc. settled with the plaintiffs, (paying $1 million) leaving just the municipal defendants.A new trial was ordered, due to a finding by the Court of Appeal of a reasonable apprehension of bias on the part of the trial judge, due to findings relating to an apparently non-existent allegation of fraud by the expert for the Plaintiff against the municipality, (which in his costs endorsement the trial Judge described as an “innuendo”) and an adverse finding in respect to the credibility of the Plaintiff, on an issue apparently not cross-examined upon by defense counsel at trial.It is reported that just prior to Trial, counsel for the Plaintiffs amended the claim to increase damages sought from $5 million to $10 million, and to bring a motion for a declaration that Ontario Regulation 239/02 was ultra vires the Municipal Act.

The Second Trial

By reasons dated February 6th, 2015, the Court made the following finding of liability:

Municipal Defendants, 60% liable
Defendant Bush, 30% liable
Plaintiff Lloyd, 10% liable

After adjusting for benefits received and the % split on liability above, Judgment was granted for $2,674,837.02 plus costs and disbursements of  $917,937.00.  

On appeal, the Court of Appeal accepted the trial judge’s assessment of damages and costs, but found the trial judge made errors when applying the facts to the law,  and  with some hesitation but feeling no better choice existed, set aside the ruling on liability (and costs) against the municipality and ordered a third trial on liability only.

Quite ironically, counsel for the municipal defendants on appeal from the second trial decision, reportedly argued that the trial judge’s conduct during the second trial demonstrated a “reasonable apprehension of bias”, (which was the basis for the first trial decision being set aside) however this argument was not accepted.

The Third Trial

The third trial proceeded before the Honorable Justice Mew in Belleville for 11 days in April and May 2019, more than 16 years after the accident giving rise to the litigation.

As ordered by the Court of Appeal, the trial proceeded in the question of liability only. To the great credit of all involved,  efforts were made to shorten the third trial’s length and counsel agreed that the transcripts of the evidence of all of the non-expert witnesses at the second trial would stand as the evidence of those witnesses at the third trial.  Similarly, the transcripts of the weather experts called by each side at the second trial were agreed to stand as their evidence at the third trial.  The only “live” witnesses were experts dealing with accident reconstruction and winter road maintenance issues.

Hoping to Avoid a Third Appeal

On a Pre-Trial Motion, the Honorable Justice Mew – in dealing with an issue over a late-served expert report by the defense, apparently in violation not just of the Rules but of a prior Court Order, observed “Even today, not a whiff of contrition was expressed on the part of counsel for noncompliance with the court’s scheduling order.” Justice Mew, despite being obviously unhappy with the perceived attitude of counsel but also clearly wishing to avoid creating grounds for a third appeal to the ONCA, agreed to permit the late served report, but made clear that “the defendant can anticipate that when he comes to testify, I will give appropriate leeway to Mr. Schnarr in terms of his ability to comment on Mr. Correira’s report.”

The Third Trial Outcome – Inadequate Records Leads to Essentially Same Result

After finding that a defense under s.44(3)(c) – Minimum Maintenance Standards for Municipal Highways had not been established, citing the prior Court decision in Giuliani, and a further finding regarding the municipality’s evidence that “certainly, the inadequacy of such records, coupled with the evidence of the Town employees and the experts, Messrs. Brownlee and Leggett, that the conditions on 3 January 2003 amounted to a light snow event for which routine winter maintenance procedures would have removed some, if not most, of the snow from the road prior to the accident, cannot be reconciled with the eye witness testimony of a snow covered, untreated and slippery road condition. Hampered by the lack of records or other reliable evidence that the work it claims was done was actually undertaken, I conclude the Town has not met its burden of proving that it took reasonable steps to correct the state of non-repair.”(emphasis added)

The Court ruled:

Municipal Defendants, 50% liable

David Bush and MacDonald’s Propane, 33% liable

Plaintiff ,Lloyd, 17% liable

So, after 17 years, three trials, two appeals, and likely millions of dollars of legal fees, the Plaintiffs now have judgment in their favor (again), but for how long?