County appeals $10.5M ruling related to 2011 Bradford crash

After more than a decade, a legal battle over a Bradford car crash is still slowly working its way through the courts.

The County of Simcoe's appeal of a $10.5M court ruling against it last year after a collision on County Road 88 back in 2011 took a step forward this month, with a hearing date set for Oct. 20 at the Court of Appeal.

Filed on Aug. 30, 2022, one of the county’s grounds for appeal claims that the trial judge misunderstood the evidence of expert witness, Tim Leggett, who testified about the adequacy of the county’s winter maintenance operations leading up to the accident.

“We continue to feel for the claimant. As a level of government, we strive to keep our residents and communities as safe as possible. We strongly believe that the county did meet our standards for road maintenance and will work through the system with our insurer to a final outcome on this legal matter,” Rob Elliott, the county's general manager of engineering, planning and environment, said via email.

In responding, the original plaintiffs applied to strike two documents included in the county’s appeal on the basis that their inclusion, and the extensive references to them in the appeal, constitutes an attempt by the county to enlarge the record on appeal, as the reports in question were never entered into evidence as numbered or lettered exhibits during the original trial.

While the respondents wanted the reports and references struck from the appeal without leave to amend, a recent decision on July 4 by Justice Benjamin Zarnett instead directed the county to amend the description of and the references to the reports in its appeal to include explanatory statements.

The decision comes as part of long-running legal dispute in which Justice Annette Casullo awarded $10.5 million in damages to Melinda Wasylyk and her family on July 29, 2022, after finding the county negligent for failing to properly clear snow and ice from County Road 88, contributing to a collision at 10:30 p.m. on Jan. 12, 2011, between vehicles driven by Wasylyk and Darlene Wos, after a snow storm earlier in the day.

According to court documents, Wasylyk was travelling east and Wos was travelling west, both about halfway between Highway 400 and Sideroad 10, when Wasylyk lost control of her 2003 Ford Taurus, which began sliding forward while rotating counter clockwise and drifted into the westbound lane where the passenger side collided with the front of Wos’ 2002 Chevrolet Impala.

Both vehicles came to rest in the west-bound lane.

“In my view, the connection between Simcoe County’s default and Ms. Wasylyk’s injures is obvious, and the plaintiffs, on a balance of probabilities, have established that the condition of non-repair on CR 88 caused Ms. Wasylyk’s injury,” the justice said in last year’s ruling.

Court documents show the road was described by emergency personnel (including police officers, firefighters and paramedics) as slippery, with snow filling the shoulders and flowing into the road, in a section known for drifting snow hazards, and after patrollers had reported slippery sections and ice spots throughout the day.

Despite that, the snowplow operator responsible for County Road 88, Gary Payne, was found to have applied a 50/50 salt/sand mix in blowing conditions on ice, then left the route untreated for four to five hours while the snow and ice refroze, and while peak commuter traffic heading into Bradford was compressing the snow along the road — especially on the eastbound side, which was estimated to have gone unplowed for eight hours between 2:30 p.m. and 10:30 p.m.

“Had Mr. Payne maintained his route as his superior envisaged, the roadway would not have posed a risk to Ms. Wasylyk,” the justice said.

The long interval between plowing could partially be explained by the court finding that on that day, the route Payne was supposed to be maintaining was actually a combination of what would normally be two routes with a combined circuit time estimated to be four or five hours.

However, the court also found Payne had taken a three- to 3.5-hour break from 6 p.m. to 9 or 9:30 p.m., despite County Road 88 being considered a Class 1 highway, which take highest priority for snow clearing.

The court also found discrepancies between Payne’s notes from that day and his testimony.

“I cannot reconcile Mr. Payne’s Activity Sheet with the condition of CR 88 as described by the first responders at the scene. Had he plowed in both directions (east and west) and spot sanded as he testified, drifts would not have been encroaching onto the roadway. Further, sand would have been visible. Every witness who was asked did not see any sand,” the justice said.

The court found that the county should have foreseen the weather circumstances leading to poor road conditions, noting the area was “at the tail end of a severe winter event,” and “the forecast called for north winds, drifting snow and a low of -13,” with the county being aware that particular section of road was vulnerable to drifting snow coming off of farm fields.

The county tried to argue that Wasylyk was distracted or driving negligently, but the court found no merit in that argument, saying she exercised reasonable care before losing control of her car on the slippery road. The court found she was not impaired by drugs or alcohol, she was wearing her seatbelt, she did not have a cell phone at the time and she was travelling 20 km/h slower than the posted speed limit.

Another driver who testified to seeing the crash in her rear-view mirror said Ms. Wasylyk was not driving impatiently, she was not tailgating and she was not trying to pass her.

According to police, Wasylyk was driving on all-season tires which were worn, but met the standards set by the Ministry of Transportation of Ontario.

“On all of the evidence, Ms. Wasylyk has rebutted the presumption of her negligence. I am satisfied that she did not contribute to the cause of the collision,” the justice said.

The court concluded that the county failed to address the weather conditions, and that Wasylyk was a non-negligent driver.

“Considering all of the surrounding circumstances, Simcoe County is responsible for Ms. Wasylyk’s injuries,” the justice said.

The county declined to answer questions about whether Payne faced any disciplinary actions or if he is still employed by the county.

“The county does not provide public comment on labour or employee matters,” Elliott said.