Case Summary of Wasylyk v. Simcoe (County)

Case Summary of Wasylyk v. Simcoe (County)

Written by: Nick Todorovic and Mandeep Tamber, Student-At-Law

1. Facts

[1] The respondent, Melinda Wasylyk, suffered catastrophic personal injuries as a result of a motor vehicle collision she was involved in. This collision occurred on a snowy and icy roadway in the County of Simcoe. Despite the County’s various defences, the trial judge found them to be one hundred percent liable for failing to keep the relevant portion of the roadway in a “reasonable state of repair”.

[2] Justice Casullo used the test below to determine whether the County was liable for the municipal highway non-repair.

[3]  The four-step test for the statutory cause of action under s.44 of the Municipal Act, 2001 was laid out by the Court of Appeal in Fordham v. Dutton-Dunwich, 2014 ONCA 891, at para. 26:

  1. Non-repair: the Plaintiff must prove on a balance of probabilities that they municipality failed to keep the road in question in a reasonable state of repair.
  2. Causation: the Plaintiff must prove the “non-repair” caused the accident.
  3. Statutory Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s.44(3) applies.
  4. Contributory Negligence: A municipality that cannot establish any of the three defences in s.44(3) will be found liable. The municipality can, however, show the Plaintiff’s driving caused or contributed to the Plaintiff’s injuries.

[4] A municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if[1]:

  • It did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
  • It took reasonably steps to prevent the default from arising; or
  • At the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.

[5] In paragraph 26 of her decision, Justice Casullo helpfully summarizes the principles governing the application of the duty municipalities must keep their public streets and highways in a reasonable state of repair.

[6]  Justice Casullo concludes her decision by stating that the County of Simcoe was well advised regarding the adverse conditions created by the weather on the roadway. She further states the Plaintiff was an “ordinary, non-negligent driver” thereby making Simcoe responsible for her injuries.

2.  Trial Court Decision and Grounds of Appeal

[7] The County of Simcoe brings this appeal on factual grounds arising out of factual errors, as alleged below:

  • The trial judge misapprehended the testimony of the respondent’s expert, Timothy Legget;
  • The trial judge’s failure to consider the evidence that the respondent lost control of her vehicle two times within ten seconds;
  • The trial judge’s finding that the respondent was not contributorily negligent.

[8] The County also claims the trial judge made two legal errors, as set out below:

  • Failure of the trial judge to apply the proper legal test regarding the state of non-repair of a roadway;
  • Failure of the trial judge to provide reasons on causation.

3. The Appeal

[9] It was the position of the County, that since no other drivers testified as to having difficulty controlling their vehicle on the relevant portion of the roadway, there was no evidence that the roadway posed harm to “the ordinary non-negligent user”.

However, Justice Doherty did not accept this position and stated that at best, this was a piece of the evidentiary picture to be considered with the rest of the evidence regarding the condition of the roadway.

Further, Justice Doherty found that the findings of fact by the trial judge were reasonable to come to the conclusion that the hazardous conditions of the roadway were what caused her to lose control of her vehicle. Justice Doherty points out that “trial judges are not required to expressly refer to all of the evidence advanced for or against a finding of fact.”[2]

With respect to the County alleging the trial judge misapprehended the testimony of the respondent’s expert witness, Justice Doherty found that Mr. Leggetts two explanations for the conditions of the roadway were not mutually exclusive or inconsistent with each other. Further, the appellant submits that the Mr. Leggetts himself testified that sometimes “doing nothing is the best option” [with respect to clearing the roadway of ice and snow] but Justice Doherty used the County of Simcoe’s own procedures to conclude that this was never a viable option by Simcoe.

The appellant submitted that the respondent could not have met her onus to show she was not contributorily negligent because she lost control of her vehicle two times in a short timespan. Justice Doherty agreed that it was the case that the trial judge did not reference the loss of control in a short time span in their determination that the respondent was not contributorily negligent. However, it does not follow that the lack of reference equates to a lack of consideration of the evidence. This evidence came from a witness at the scene whose testimony, for various reasons, was not given much weight by the trial judge. Therefore, the appeal was dismissed and the respondent won costs in the amount of $50,000.


[1] Municipal Act, 2001 S.O. 2001, Chapter 25

[2] Wasylyk v. Simcoe (County), 2023 ONCA 781 paragraph 32

Nick Todorovic


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