Torts - Negligence - Contributory Negligence (2). Lyng v. Ontario Place Corporation
In Lyng v. Ontario Place Corporation (Ont CA, 2023) the Court of Appeal considered the nature of a 'contributory negligence' situation:
Respondent as the Author of His Own Misfortune. Wasylyk v. Simcoe (County)
 This argument repeats the grounds of appeal I have already rejected. In any event, Ontario Place asserts that having found that the respondent jumped down the slope in flip-flops, after consuming alcohol, the trial judge had to then find that he was the author of his misfortune and dismiss the action accordingly.
 I would reject this argument. While not putting it in quite this way, Ontario Place is essentially saying that because the trial judge found the respondent contributorily negligent, he had to then dismiss the action in its entirety. This is of course not the case. The trial judge found that Ontario Place was negligent by blocking the bridge and making no effort to prevent the crowd from proceeding down a nearby wet hazardous hill, and found that the respondent was negligent by jumping when he got near the bottom of that hill. There is nothing inconsistent about these two findings.
 “But for” causation requires only that a defendant’s negligent conduct be a necessary cause of the injury, not the sole cause: Athey v. Leonati, 1996 CanLII 183 (SCC),  3 S.C.R. 458, at para. 17; Clements v. Clements, 2012 SCC 32,  2 S.C.R. 181, at para. 8. Here we have two negligent causes of the respondent’s injury with the trial judge apportioning liability accordingly. The standard for appellate interference with a trial judge’s apportionment of liability is an exacting one: Ault v. Canada (Attorney General), 2011 ONCA 147, 274 O.A.C. 200, at para. 56. As Ontario Place has not identified any demonstrable error in the trial judge’s appreciation of the facts, or in his application of the relevant legal principles, this high threshold has not been met.
In Wasylyk v. Simcoe (County) (Ont CA, 2023) the Court of Appeal considered issues of contributory negligence:
 In assessing the contributory negligence claim, the trial judge accepted, that as the respondent was on the wrong side of the road when the accident occurred, there was a rebuttable presumption she was negligent. The trial judge rejected various arguments advanced by Simcoe in support of the contributory negligence claim. In her view, there was no evidence that the respondent was distracted when she lost control of her vehicle and no evidence that her all season tires caused or contributed to the accident. The trial judge noted that the tires met applicable standards. In ultimately concluding that the respondent had met her onus to rebut the presumption of negligence, the trial judge said:
There is no evidence to suggest Ms. Wasylyk was anything other than a prudent and reasonable driver as she traversed CR 88 on the evening of January 12, 2011. She was not driving at an excessive rate of speed. She was not driving negligently. She was on a straight section of road not a corner. She lost control because of the conditions of the roadway, not the way she was driving.....
 The outcome of trials involving allegations of negligence and contributory negligence will almost inevitably depend on the findings of fact made by the trial judge. Those findings are the product of the trial judge’s assessment of the reliability of evidence and the credibility of witnesses, as well as the inferences drawn or not drawn from sometimes conflicting or unclear evidence. Trial judges are much better positioned to make those assessments than are appellate courts. Wisely, the law demands that appellate courts defer to findings of fact made at trial, absent palpable and overriding error: Housen v. Nikolaisen,  SCC 35, at para. 36; L. (H.) v. Canada (AG),  SCC, at para. 55.
DID THE TRIAL JUDGE ERR IN FINDING THAT THE RESPONDENT WAS NOT CONTRIBUTORILY NEGLIGENT?
 The appellant submits that as the respondent was on the wrong side of the road when the collision occurred, she had the onus to demonstrate she was not negligent: El Dali v. Panjalingam, 2013 ONCA 24, at paras. 18-20. Counsel contends that the respondent cannot meet that onus in light of her loss of control on two occasions within a very brief timespan. In the context of the contributory negligence argument, counsel focuses on the absence of any evidence that the respondent took any corrective measures in an attempt to adjust her driving between the first loss of control and the second loss of control. Counsel submits, that even if the hazardous conditions of the road caused the respondent to lose control of her vehicle on both occasions, her failure to adjust her driving after the first loss of control made her partly responsible for the collision which occurred after the second loss of control. Counsel submits that a finding that the respondent was 50 percent liable would be appropriate.
 Simcoe’s argument on the contributory negligence claim comes down to two submissions. First, Simcoe submits that the trial judge failed to consider the evidence that the respondent took no steps to adjust her driving after the first loss of control. Simcoe submits that this evidence was crucial to Simcoe’s argument on the contributory negligence issue and the trial judge’s failure to consider the evidence amounts to a palpable and overriding error. Second, Simcoe submits that on a totality of the material evidence, including the respondent’s failure to adjust her driving after the first loss of control, and bearing in mind the presumption operating against the respondent, the finding that the respondent was not contributorily negligent was an unreasonable finding, constituting a palpable and overriding error.
 Before turning to the relevant evidence and the trial judge’s reasons, I will briefly refer to the case law relied on by Simcoe on this point. Counsel referred to cases in which courts have found that a failure to take corrective measures after an initial loss of control and before the loss of control resulting in an accident, amounted to negligence: Giuliani v. Halton (Regional Municipality), 2010 ONSC 4630, aff’d,  ONCA 812; Greer (Litigation Guardian of) v. Kurtz,  O.J. No. 2185 (SCJ), aff’d,  ONCA 865.
 There is no reason to doubt the findings in the cases relied on by Simcoe. They are not, however, particularly helpful in assessing the merits of Simcoe’s appeal. Findings of negligence or contributory negligence turn on the evidence of the particular case and, more importantly, the assessment of that evidence by the trier of fact who heard the evidence. Different triers of fact may draw different inferences and come to different factual conclusions. As long as those inferences and conclusions fall within the reasonableness range, this court will defer to those findings, absent a demonstration of palpable and overriding error in the process leading to the findings.
 The cases cited by Simcoe go no further than to indicate that in other cases, others judges were satisfied that the theory advanced by Simcoe in support of its contributory negligence claim in this case, justified a finding of contributory negligence in those other cases. Factual findings made by other trial judges in other cases may assist a trial judge in her evaluation of similar evidence that has been placed before her. The extent to which the prior findings by other judges may assist a subsequent trial judge, is entirely for that judge to determine.
 Returning to the evidence in this case and the trial judge’s reasons, counsel for Simcoe is correct that the trial judge did not, in the course of considering the contributory negligence claim, make specific reference to the evidence that the respondent lost control of her vehicle twice. It does not follow from the failure to expressly refer to certain evidence, that the trial judge did not consider that evidence. It may be implicit in the trial judge’s reasons, considered as a whole, that the trial judge did take into account evidence, even though that evidence is not expressly mentioned in the context of the specific argument in issue: e.g. Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428, at para. 71.
 The evidence relevant to the respondent’s manner of driving immediately before the accident came from Ms. Debbie Smith. Ms. Smith was driving in front of the respondent’s vehicle and watching the respondent’s vehicle through the rear view mirror. The trial judge reviewed Ms. Smith’s evidence. Although the trial judge accepted Ms. Smith’s evidence that the respondent’s car swerved out of control twice in less than 10 seconds, the trial judge also expressed significant concerns about the credibility and reliability of other parts of Ms. Smith’s evidence.
 The trial judge did not accept Ms. Smith’s evidence describing certain aspects of the respondent’s driving. For example, she did not accept Ms. Smith’s testimony that the respondent’s vehicle veered onto the shoulder of the road. The trial judge determined, based on the rest of the evidence, that the respondent’s vehicle did not leave the roadway.
 The trial judge further noted that Ms. Smith’s ability to watch the respondent’s manner of driving between the first and second loss of control was significantly limited. It was very dark, Ms. Smith was looking through her rear view mirror, and she was understandably focused on the road in front of her.
 Ms. Smith’s evidence was also quite vague in other important respects. As to the timing of the two swerves by the respondent’s vehicle, Ms. Smith could say only they were less than 10 seconds apart. On her evidence, the two losses of control could have been as little as two or three seconds apart, or as much as eight or nine seconds apart. These two scenarios could lead a trier of fact to draw very different inferences from a driver’s failure to adjust her driving to road conditions.
 On a fair reading of Ms. Smith’s evidence, her testimony provided little assistance on either the time the respondent had to react after the first loss of control, or what steps, if any, the respondent took in response to the first loss of control. It is not surprising, given the trial judge’s assessment of Ms. Smith’s evidence, that she was not prepared to make any detailed findings of fact based on that evidence.
 The trial judge understood the significance to the defence of the evidence that the respondent had loss control twice in a very short period of time. The trial judge referred to and obviously appreciated Simcoe’s argument that the second loss of control supported the inference that the respondent was negligent for failing to adjust her driving to the conditions. The trial judge also clearly understood that Simcoe’s argument was advanced in the context of the respondent having the onus to rebut a finding of negligence.
 In the face of a detailed and critical consideration of the relevant evidence, an express acknowledgment of the position of the defence in respect of that evidence, and an appreciation that the respondent carried the initial burden on the issue, I cannot accept the submission that the trial judge’s failure to specifically advert to the evidence should be taken as a failure to consider the evidence. It is implicit in the trial judge’s reasons that she did not find either that the respondent had an opportunity to take corrective measures after the first loss of control, or that she acted negligently in failing to do so.
 Nor was it unreasonable for the trial judge to decline to draw inferences about the respondent’s driving from Ms. Smith’s evidence. Her evidence about the time elapsed between the first and second loss of control was uncertain, as was her evidence about the nature of the respondent’s driving during those few seconds. Instead of relying on Ms. Smith’s vague, and in some respects unreliable, evidence about the movement of the respondent’s vehicle in the short time between the two losses of control, the trial judge looked to, and relied on, other evidence about the respondent’s manner of driving. In her view, that evidence showed the respondent to be driving in a “prudent and reasonable” manner. That finding was open to the trial judge on the entirety of the evidence and could reasonably be taken as a rebuttal of the inference of negligence based on the location of the respondent’s vehicle on the highway at the time of the accident.
 I find no error in the trial judge’s conclusion that the respondent was not contributorily negligent in the accident.