Township absolved of liability
Driver, car owner each 50 per cent liable for fatal crash, Appeal Court affirms
KITCHENER — It was a horrific crash that killed a Kitchener teen and injured three of his friends.
At 9 p.m. on Feb. 25, 2009, Tyler House was driving a Toyota Tercel on a country road in Wilmot Township southwest of Kitchener.
House lost control near the crest of a hill on Huron Road, near Pinehill Road. The Tercel slid into the oncoming lane and was hit by another car.
One of the passengers in the Tercel, Adam Samms, a Kitchener Collegiate Institute Grade 12 student, died.
House suffered a catastrophic head injury. Passengers Donald Baird and Luke Tomlinson were also injured.
All four were 17 years old and longtime friends.
Later, allegations flew over who was to blame for the crash. These details emerged at a trial:
Huron Road was slippery, possibly covered in ice. Could the municipality of Wilmot Township be held partly liable?
House apparently smoked marijuana in the car before the crash.
Baird owned the Tercel and it had defective tires.
In 2015, Justice James Kent found House and Baird equally liable for causing the crash and for House’s injuries. Wilmot Township was absolved of any liability.
Damages to House were set at $2.8 million, to cover pain and suffering, loss of income and future care. House obtained a judgment against Baird for $1.4 million.
But in an appeal to the Ontario Court of Appeal, House argued his liability should be cut from 50 per cent to 15 or 20 per cent. He maintained the township should be held partly responsible.
In a ruling this week, more than eight years after the crash, the Appeal Court dismissed House’s appeal.
Wilmot Township breathed a sigh of relief after dodging a potential milliondollar bullet.
Under a complicated formula involving insurance caps and “joint and several liabil-
ity,” even if the township was found only 10 per cent liable, it could have been on the hook for $1.8 million.
“It was an important decision for the taxpayers of Wilmot and for the region not being found liable,” Jamie Bennett, a lawyer who represented the township, said in an interview.
Bennett said he expected the Appeal Court to side with the trial judge, but added, “Appeals are always unpredictable.”
Witnesses testified at trial that Huron Road was slippery at the time but “nobody was able to say with certainty that there was ice on the road” when the accident happened, Kent said.
House argued “the municipality had the ability and in fact the duty to ensure the safety of all drivers on the roads, which simply in Canada in winter is impossible,” Bennett said.
A motor vehicle reconstruction expert called by House said a maintenance operator should have been patrolling local roads to monitor driving conditions and respond as necessary.
An expert called by Wilmot said the township’s procedures were reasonable.
The trial judge concluded there were too many “what ifs” to be able to find a breach of duty by the township.
House argued Wilmot took no steps to maintain Huron Road that night and did not monitor the weather or go out on patrol
“However, as the trial judge found, the municipality followed its system of from-home, after-hours monitoring by the on-call official,” Appeal Court Justice Kathryn Feldman wrote in the unanimous judgment.
Highways have minimum standards of maintenance, which vary depending on the class, ranging from one to six. Class 1 highways are the busiest with the highest speed limits and have the strictest requirements for clearing snow and melting ice.
The requirements are relaxed as the class number increases. Huron Road is a Class 3.
“You can’t expect the same winter road maintenance on a Class 3 road such as this as you would on the Conestoga Expressway,” Bennett said.
Bennett, a lawyer with Madorin, Snyder who represented Wilmot Township at trial and at the Appeal Court, said the ruling affirms that no Ontario municipality can guarantee perfect road conditions in the winter.
“It’s an important case for all the municipalities locally but also all municipalities in Ontario because it’s a reasonable and practical decision that doesn’t make municipalities the guarantor of every accident that occurs in winter conditions,” he said.
“All municipalities have limited budgets for all services that they provide and smaller municipalities that have lowerclass roads simply can’t afford to have 24-7 employees to maintain their roads to the same condition as regional roads or provincial highways.”
The trial judge ruled that other factors caused the crash.
The rear tires on the 1992 Tercel were “worn beyond acceptable limits,” Feldman wrote in a synopsis of the case.
“The front and rear tires were mismatched and overinflated. According to a motor vehicle collision reconstruction expert, the condition of the rear tires meant that the vehicle had reduced traction and stability, and therefore reduced control.”
Kent noted that Baird’s lawyer “virtually conceded” the tires may have contributed to House losing control of the car.
Baird testified that everyone in the car smoked three or four “bowls” of marijuana from a pipe.
“Baird said that Tomlinson, who was sitting in the front passenger seat, lit the pipe and held it to House’s mouth so that House could smoke the marijuana while he was driving,” Feldman wrote.
“While Tomlinson denied that they had been smoking marijuana, it is clear that evidence was not accepted by the trial judge.”
Kent noted House had just learned his 16-year-old girlfriend was pregnant.
“Because (House) was focused on this news and smoking marijuana during the drive, the trial judge concluded that he was probably distracted from driving and bore responsibility for the accident,” Feldman wrote.
The Appeal Court ruled the trial judge made no errors.
In dismissing House’s appeal, Feldman quoted from a previous Appeal Court ruling: “An appellate court ought not to vary an apportionment of negligence at trial except in very strong and exceptional circumstances, unless an error in law was made or there has been a misapprehension of some material fact.”