Canada: The Common Law Is Sometimes Not So Common — ONCA Releases Contradictory Decisions On Municipal Liability In Nearly Identical Cases

Canada is a common law jurisdiction. The heart of the common law is that like cases are to be treated alike.

This fundamental principle of the common law is upheld through the use of appellate courts. A judge of a lower court is not required to follow the decision of a judge from the same level. However, lower court judges are bound by the decisions of appellate courts. Where lower courts come to contradictory results, it provides a ripe opportunity for an appellate court to decide which judge got it "right" and how future cases with similar facts are to be decided. In many cases, the appellate courts will hear the contradictory decisions together.1

That is how the system is supposed to work. Unfortunately, the system does not always work perfectly, as the below cases show.

In September, the Court of Appeal for Ontario released Smith v. Safranyos, 2018 ONCA 760 ("Safranyos") and Chiocchio v. Hamilton (City), 2018 ONCA 762 ("Chiocchio"). Both cases had remarkably similar facts with nearly identical issues on appeal. In both cases, an individual had stopped at a stop sign and/or stop line and then proceeded through the intersection, resulting in an accident with another vehicle that had the right of way. In both cases, the vehicle that initially stopped at the stop sign/line did not have a proper sightline of oncoming traffic. However, the issue on appeal in both cases was whether the City of Hamilton had been negligent in painting the stop line too far back (or not at all).

The City of Hamilton argued that the reasonably prudent driver standard applied and that, regardless of road markings, motorists were required to ensure that they had a clear sightline before proceeding into the intersection. In both cases, the City of Hamilton was found negligent at trial.

In Chiocchio, the ONCA accepted the City of Hamilton's argument and granted its appeal, stating at paragraphs 19 and 21:

Ordinary reasonable drivers would not stop their cars in a location where their view of oncoming traffic from one direction would be completely obscured and then proceed into the intersection without stopping again. They would know to come closer to the intersection before stopping initially or before stopping again, in order to have a clear view of traffic from both directions...

there can be no doubt that drivers who stop in a position where their view of one line of oncoming traffic is completely obscured – and do not stop again before entering the intersection – fall well below the standard of an ordinary reasonable driver and are negligent. They are not simply drivers exercising reasonable care who have made a mistake.

In Safranyos, the City of Hamilton advanced essentially the same argument (reported at paragraph 38)

Hamilton contends that where there is a stop sign, a driver of ordinary reasonable care would comply with s. 136(1) and stop immediately again before entering the intersection, whether or not there is a painted stop line. In other words, any driver failing to stop immediately before entering the intersection is not a driver of ordinary reasonable care.

However, the Court of Appeal in Safranyos came to a different conclusion on liability. In upholding the finding of negligence against the City of Hamilton, the Court stated at paragraph 74:

The trial judge had ample evidence that this intersection was confusing, even to drivers of ordinary care. She was entitled, in the circumstances, to accept Ms. Safranyos's evidence that had there been a stop line she would have stopped there, just as she had at the stop sign. There is nothing inconsistent in the trial judge's finding that, despite her negligence, Ms. Safranyos would have stopped had there been a stop line.

The question we are then left with is whether the decisions can be reconciled. One view may be that Safranyos featured an unusually dangerous intersection, such that the liability finding against the City of Hamilton is an outlier. On the other hand, the finding in Safranyos that "Ms. Safranyos would have stopped had there been a stop line" cannot possibly be a distinguishing feature of the case. Presumably, this claim would be made in every case – and in most cases, would be accepted as true.

At the very least, it can be said that these cases leave the door open for liability against municipalities on similar facts. However, there is little doubt that the lower courts will struggle in applying these decisions to subsequent cases.


1 See, for example, this year's companion decisions of the Supreme Court of Canada in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32.

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