This trial decision turns on standard-of-care proof in a construction-zone MVA. The plaintiffs’ minivan undercarriage struck a marked water valve in an intersection under active paving. They called no expert on municipal or road-construction standards; the only technical evidence came from the City and the contractor, showing the valves were at a safe temporary height, properly ramped and painted, and the work zone was evident. Justice Rees held expert evidence was required to establish breach and, in any event, the defence proof met the standard under negligence and s. 44 of the Municipal Act.
Critically, the Court found the plaintiff driver did not meet that standard. His minivan was about 15 years old, bought for $500, heavily used, largely self-maintained, and the front shock absorbers had not been replaced. The judge was not persuaded the vehicle was sufficiently well-maintained; an “ordinary driver exercising reasonable care would drive a well-maintained vehicle,” and municipalities/contractors aren’t required to guard against poorly maintained ones.
On damages, the court accepted limited injuries (e.g., TMJ and wrist) but found significant exaggeration; had liability been proven, general damages would have been $60,000 and modest out-of-pocket expenses allowed. The plaintiff’s “missed flip/rental” theory failed: the condo appreciated substantially during the period, and hypothetical events are weighed by their relative likelihood.