in finding a non-repair. In my view, the trial judge committed
(a) Did the trial judge use OTM guidelines to define
the standard of care?
[ 48] The OTM, Book 11 guidelines entitled “Markings and
Delineation”, at pp. 11 and 71, provide in relevant part:
The purpose of the Book is to promote uniformity of treatment in the design
and installation of markings and delineation throughout Ontario. It is the
practitioner’s fundamental responsibility to exercise professional engineering
judgement on technical matters in the best interests of the public, including
safety and cost-effectiveness. The following standard terminology will provide
the user of this Book with guidance on what practices are recommended and
when judgement can be applied:
Must indicates a mandatory condition. Where “must” is used to described the
design or application of the device, it is mandatory that these conditions be
met in order to promote uniformity where delineation complements legally
enforceable regulations . . .
Should indicates an advisory condition. Where the word “should” is used, the
action is recommended but is not mandatory. “Should” is meant to suggest
good practice in most situations and to recognize that there may be valid
reasons not to take the recommended action.
. . . . .
3. 8 Intersections
. . . . .
At both urban and rural intersections, a stop line (also called a stop bar) must
be used to indicate the point at which a vehicle must stop in compliance with
the STOP sign. A stop line must be a solid white retroreflective line between
30 cm and 60 cm wide. . .
Where there is no pedestrian crosswalk, the stop line must be located
between 1. 25 m and 3 m upstream of the projected nearside edge of the inter-
secting road. At STOP signs where visibility is restricted, the stop line should
be located so that the driver of the vehicle properly positioned behind the stop
line has an adequate view of approaching cross traffic in both directions. The
stop line should also be positioned with reference to the clearance needs of
cross traffic and pedestrians[.]
[ 49] The trial judge did not use OTM guidelines as if they
established Hamilton’s standard of care. She did not say that the
guidelines were binding. Instead, she stated expressly that the
“O.T.M. book 11 is instructive of the standard of care”, and
emphasized in her concluding remarks that “[t]he court is not
simply relying on the O.T.M. in coming to its conclusion. Rather,
the O.T.M. is one item combined with other cogent evidence that
has guided the court when arriving at its conclusions.”