Absences in Reasoning: Are They Legal Errors?
On November 24, 2023, the Ontario Court of Appeal released its decision in Wasylyk v. Simcoe (County).[1]
On January 12, 2011, Melinda Wasylyk was driving eastbound on Country Road 88, when she collided with a westbound vehicle operated by Darlene Wos, resulting in catastrophic injuries. Ms. Wasylyk had previously lost control of her vehicle approximately 10 seconds before the subject accident. The subject area was vulnerable to blowing snow and evidence showed that in the two days prior to the accident, it was snowy.
History of the Litigation:
At trial, only the claims against the County of Simcoe remained and damages were agreed to be $16 million.
Ms. Wasylyk argued that Simcoe failed to keep CR 88 in a reasonable state of repair pursuant to s. 44(1) of the Municipal Act[2] and that there was the ice and snow on the road that caused her to lose control of her vehicle.
Simcoe argued that the subject roadway was clear and dry and alternatively, the ice and snow did not cause Ms. Wasylyk to lose control of her vehicle. Simcoe further relied on the three defences outlined in s. 44(3) of the Municipal Act.[3]
The trial judge found Simcoe 100% liable, stating that the relevant roadway was in disrepair pursuant to s. 44(1) of the Municipal Act and that such disrepair caused Ms. Wasylyk to lose control of her vehicle. The trial judge rejected the three s. 44(3) defences in turn as well as Simcoe’s arguments for contributory negligence.
Grounds for Appeal:
On appeal, Simcoe submitted that the trial judge made two factual errors and two legal errors. I will focus on the legal errors discussed:
1) Failed to apply the proper legal test when determining whether the roadway was in a state of disrepair
Simcoe submitted that since there was no evidence other drivers encountered difficulty controlling their vehicles on the subject roadway, a finding that the roadway was in a state of disrepair could not be made.
The Court of Appeal disagreed, stating that Simcoe’s argument does not take issue with the legal test for whether a road is in a state of disrepair, but rather with the trial judge’s factual findings. In regard to the absence of evidence, the Court of Appeal clarified:
[24] It does not follow, from the absence of evidence that other drivers had difficulty maintaining control of their vehicle on the relevant part of the CR 88, that in fact other drivers did not have difficulty maintaining control of their vehicles on that part of the road. Furthermore, evidence that another driver or drivers were able to safety manoeuvre along the roadway is, at best, a piece of the evidentiary picture to be considered with the rest of the evidence relevant to the condition of the roadway.[4]
2) Failed to give adequate reasons for causation finding
Simcoe argued that the trial judge committed an error of law by failing to consider that Ms. Wasylyk lost control of her vehicle twice within 10 seconds in the causation analysis. The Court of Appeal disagreed, reiterated that the applicable causation test is the “but for” test, and provided the following helpful commentary on what trial judges must consider in their causation analyses:
[32] […] Trial judges are not required to expressly refer to all of the evidence advanced for or against a finding of fact. A trial judge’s failure to specifically allude to a certain piece of evidence in making a particular finding must be considered having regard to the totality of the reasons, and the significance of that evidence in the context of the trial judge’s analysis.[5]
Takeaways:
This decision provides helpful commentary on absences.
Firstly, the absence of evidence of additional drivers having difficulty controlling their vehicles does not infer that they did not in fact have such difficulty.
Secondly, trial judges do not need to refer to every piece of evidence in their decision when answering a factual or legal question, particularly if a trial judge’s findings offer a full and clear explanation.
[1] Wasylyk v. Simcoe (County), 2023 ONCA 781 [Wasylyk].
[2] Municipal Act, 2001, S.O. 2001, c. 25, s. 44.
[3] Ibid.
[4] Wasylyk, supra note 1 at para 24.
[5] Ibid at para 32.