drivers in whole or in part because of the placement or condition
of stop signs and road markings, a municipality cannot avoid
liability by relying on Highway Traffic Act, s. 136( 1).
[ 43] The law does not say otherwise. In none of the cases relied
upon by Hamilton was there any issue with the integrity or
adequacy of stop signals. In this case there was, and the trial
judge applied the correct test for non-repair in coming to the
decision she did.
[ 44] The one place in her decision where the trial judge did
exhibit confusion about the ordinary driver standard did not
prejudice Hamilton. Specifically, after reviewing non-repair
decisions, the trial judge commented that “[b]ased on the case
law, Dawn Safranyos ought to be held to the standard of the
ordinary driver using ordinary care”. This does not reflect the law
of non-repair. Given the trial judge’s conclusion that the conditions
said to constitute non-repair posed an unreasonable risk to
ordinary drivers, whether Ms. Safranyos met the standards of the
ordinary driver using reasonable care was immaterial on the
question of non-repair. She did not have to satisfy the standard of
an ordinary driver using reasonable care for Hamilton to be liable
so long as its non-repair was a “but for” cause of the accident and
posed an unreasonable safety risk to drivers who exercised
[ 45] For this reason, the trial judge’s problematic characterization
that Ms. Safranyos was “mistaken” in failing to stop is immaterial to the outcome of this appeal. Whether Ms. Safranyos was
“mistaken” as the trial judge said here, or negligent as the trial
judge said elsewhere, does not matter to Hamilton’s non-repair
liability. Ms. Sanfranyos’s negligence only goes to the apportionment of liability.
[ 46] I would therefore not give effect to Hamilton’s claim that
the trial judge applied the improper legal test for non-repair.
( 2) Did the trial judge err in law in finding that the
absence of a stop line constituted a non-repair?
[ 47] Hamilton argues that the trial judge committed two legal
errors in finding that the absence of a stop line constituted a non-repair. First, Hamilton argues that the trial judge erred by
treating the OTM as imposing a mandatory rule when the OTM
provides guidelines, not standards of civil liability: Fordham, at
paras. 51-53; and Greenhalgh v. Douro-Dummer (Township),
 O.J. No. 5438, 2009 CanLII 71014 (S.C.J.), at paras. 66-68,
affd  O.J. No. 2012, 2012 ONCA 299. Second, Hamilton
argues that the trial judge erred by relying on adverse inferences