[1]         On August 25, 2015, the appellant broke his left tibia when he fell off his motorcycle while proceeding northbound on Trinity Church Road through its intersection with White Church Road in the City of Hamilton (the “City”).

[2]         The trial judge accepted that a longitudinal discontinuity or lip in the pavement of White Church Road as it crossed Trinity Church Road at an irregular, almost parallel, angle caused the appellant to lose control of his motorcycle as he proceeded northbound after stopping at a stop sign on Trinity Church Road.

[3]         The trial judge found that parts one and two of the Fordham[1] test were satisfied. That is, he found that the existence of a pavement discontinuity or lip at an irregularly angled intersection created a risk of harm to ordinary reasonable drivers such as the appellant and that the accident was caused by the appellant’s motorcycle coming into contact with the lip.

[4]         Nonetheless, the trial judge dismissed the appellant's action for damages against the City, holding that the City had established a defence to the appellant's claim under s. 44(3)(c) of the Municipal Act, 2001, S.O. 2001, c. 25 (the “Act”)[2], which provides that a municipality is not liable for failing to keep a highway in a reasonable state of repair if minimum standards established under s. 44(4) of the Act have been met.

[5]         The applicable Minimum Maintenance Standards (“MMS”)[3] established under s. 44(4) of the Act provided for a 5 cm height threshold necessary to trigger a repair obligation on the City. The only evidence concerning the height of the discontinuity came from an expert witness called by the appellant. The appellant's expert testified that, while he did not take measurements at the accident scene, photographs of the scene that were provided to him depicted heights of the discontinuity at different locations ranging from roughly 3.8 to 5 cm. However, he concluded, based on certain factors, that the heights displayed in the photographs could be inaccurate and therefore adjusted the range of heights at the various locations to being between 3.5 and 5.5 cm.

[6]         The trial judge found that whether using the unadjusted measurements of the discontinuity as depicted in the photographs relied on by the appellant's expert, or an average (4.5 cm) of the adjusted range of heights posited by the appellant’s expert, the heights were within the 5 cm threshold. He therefore concluded that the roadway where the accident happened was deemed to be in a state of repair and that the City was not responsible for the appellant's damages.

[7]         The appellant disputes that the MMS apply to the pavement discontinuity that caused the accident. In the alternative he argues that the City failed to meet its onus of proving compliance with the MMS as required under s. 44(3)(c) of the Act.

[8]         Assuming, without deciding, that the MMS apply to the pavement discontinuity, we conclude that the trial judge committed a palpable and overriding error in holding that the evidence established that the height of the discontinuity met the MMS standard. In our view, the trial judge’s overall approach to determining the height of the pavement discontinuity was flawed.

[9]         As we have said, the only evidence at trial of the height of the pavement discontinuity was provided by the appellant's expert. He examined various photographs taken at the accident scene which showed a straight edged ruler set up against uneven pavement at the scene. As indicated above, he estimated that the photographs he relied on for his opinion (the "ruler evidence")[4] revealed differences in elevation of roughly between 3.8 cm and 5 cm.

[10]      However, because of possible inaccuracies in the photographic evidence due to factors such as camera angle and how the ruler was being held, the appellant's expert adjusted the range of elevation differences to being between 3.5 cm and 5.5 cm. While he offered some explanation for his adjustments, his calculations of the adjustments were essentially speculative.

[11]      The trial judge approached determining the height of the road discontinuity in two ways. He began with the appellant’s expert’s evidence, apparently accepting the expert’s critique of the raw numbers, and held it would not be appropriate to accept either of the extremes in the identified range. So, he relied on the average produced by the expert’s range.

[12]      Next, the trial judge looked at the raw numbers revealed by the ruler evidence. Since neither the average he came up with or the raw numbers revealed by the ruler evidence exceeded the 5 cm MMS standard for repair, he concluded that the respondent was entitled to the statutory defence provided under s. 44(3)(c) of the Act.

[13]      The trial judge's approach of assessing the height of the discontinuity by using the average of the appellant's expert's range was an error because it amounted to guesswork superimposed on the appellant's expert's speculation. The fact that it was the appellant’s expert who came up with the estimated range did not mean that it was anything more than speculation or that the trial judge could treat it as providing an accurate assessment of the range in heights of the pavement discontinuity.

[14]      As for the trial judge's alternative approach of assessing the height of the discontinuity using the ruler evidence, the trial judge erred in accepting that evidence as depicting accurate and reliable measurements in the absence of evidence from the person who took the photographs who could testify to issues the appellant’s expert had identified such as how far away from the pavement the ruler was held and camara angle.

[15]      The fact that the appellant introduced the photographic evidence through his expert did not relieve the respondent of its obligation to prove that the height of the discontinuity was less than the 5 cm MMS standard for repair. The appellant's expert did not accept the photographic evidence as providing a precise or accurate depiction of the height of the discontinuity. Rather, he explained why the photographic evidence was not likely accurate and the trial judge relied on his critique when he analyzed the appellant’s expert’s range. In these circumstances, it was up to the respondent to call evidence to establish the reliability and accuracy of the photographic evidence or some other accurate measure of the range in heights of the pavement discrepancy. It failed to do so.

[16]      We observe that even though the respondent received timely notice of the appellant's accident and had at its disposal measuring devices that could establish whether the MMS repair obligations had been triggered, it called no evidence to establish the height of the discontinuity that caused the appellant's accident.

[17]      We conclude that the respondent failed to meet its onus of proving it was entitled to a statutory defence under s. 44(3) of the Act.

[18]      We also accept the appellant's submission that the trial judge committed a palpable and overriding error in holding that the appellant was 50% responsible for causing the accident.

[19]      No doubt because it was an alternative finding, the trial judge's analysis of the contributory negligence issue was brief. He made no reference in his analysis to important evidence relating to this issue, such as, for example, the appellant's expert's evidence that the discontinuity was visible but not conspicuous and his evidence about expectancy. Similarly, the trial judge made no reference to the appellant's evidence about his perceptions of the pavement in front of him while stopped at the stop sign. The failure to advert in his analysis to this relevant and material evidence amounts to a palpable and overriding error.

[20]      Based on our review of the record, if any fault can be attributed to the appellant for the accident, the percentage is negligible. We attribute 100% of the fault to the respondent.

[21]      The respondent does not challenge the trial judge's findings concerning parts one and two of the Fordham test or damages.

[22]      Based on the foregoing reasons, the appeal is allowed, the trial judge's order dismissing the action is set aside and judgment is granted awarding the appellant damages and interest in the amounts assessed by the trial judge.

[23]      Costs of the appeal are to the appellant on a partial indemnity scale fixed in the amount of $18,000 inclusive of disbursements and HST. If the parties are unable to agree on costs of the trial the appellant may make written submissions not to exceed five pages within 10 days of the release of these reasons and the respondent may reply within 10 days thereafter, no more than five pages.