Essential Expertise: The Importance of Expert Evidence to Inform Standard of Care
The Ontario Superior Court of Justice recently released a trial decision in the matter of Valerio et al. v. The Corporation of the City of London et al., 2025 ONSC 4332. The plaintiffs, Mr. Valerio and his family, claimed against the City of London as well as a construction company for damages caused when the plaintiff’s airbags deployed while driving through a construction zone. This quirky trial decision serves as a reminder regarding the importance of expert standard of care evidence as well as the differing standards of care between parties in an action.
Brief Recounting of the Facts
On August 7, 2013, the plaintiff, Mr. Valerio, was driving a 1998 Plymouth Grand Voyager minivan on his way home from working as a schoolteacher. As he travelled through the intersection of Dundas Street and Clarke Road. The intersection had been milled down for construction purposes and as he went through the intersection there was a loud bang and his airbag triggered.
Mr. Valerio was aware of the construction in the area and as he approached the intersection stated that he saw an orange object on the road, that he attempted to straddle with his car. What was struck was a water valve, sticking up from the road. These water valves were ramped with asphalt and marked with florescent paint. The valves had struck the undercarriage of the plaintiff’s vehicle.
As a result of the incident the plaintiff claimed to have suffered an injury to the left hand, the face and jaw, a cervical spine sprain, a left shoulder sprain, chest pain and knee pain. The claimant’s mother, father and common law partner brought claims pursuant to the Family Law Act.
Following the incident, more asphalt was added to increase the ramping around the exposed water valves.
Two Standards of Care
There are two different standards of care relevant to this action. The first, is the standard of care under s.3 of the Occupiers’ Liability Act which states:
3(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
This standard of care applies to the contractor performing the roadwork at the site, but it does not apply to the City of London. The Occupiers Liability Act states in s. 10(2) that the act does not apply to the crown or to any municipal corporation, where they are an occupier of a public highway or a public road. Instead the standard of care and potential liability of the City of London are set out by the Municipal Act, 2001, which imposes a duty on municipalities to keep highways “in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge” under subsection 44(1).[1] Subsection 44(2) states that “a municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.”
Justice Rees breaks down the precise differences in what must be proven under each act at paragraphs 26 and 29 of the decision detailing the following:
[26] To establish that Dufferin Construction is liable in negligence, the plaintiffs must show:
1. That the defendant owed a duty of care to the plaintiffs to avoid the kind of loss alleged;
2. That the defendant breached the applicable standard of care;
3. That the plaintiffs sustained damage; and
4. That such damage was caused, in fact and in law, by the defendant’s breach.
…
[29] The following four-step analysis of statutory liability applies under s. 44:
1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road in question in a reasonable state of repair.
2. Causation: The plaintiff must prove the “non-repair” caused the accident.
3. Defences: Proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
4. Contributory Negligence: A municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s driving caused or contributed to the plaintiff’s injuries.
It is important to note that neither standard of care requires a standard of perfection. For Dufferin Construction, they must act in the manner expected of a road contractor of reasonable care and in a manner proportional to the foreseeable risk.[2] The City must keep the road traversable for ordinary drivers exercising reasonable care, and that it is in good repair and no cautionary or remedial measures are required.[3]
No Breach of the Standard of Care
Justice Rees found that neither the City, nor Dufferin Construction breached their standard of care. Justice Rees found that the plaintiff needed to lead expert evidence to establish the standard of care for road maintenance and the reasonably safe height of a water valve protruding from a road. Justice Rees found that “Road maintenance is a technical occupation requiring professional experience and judgement. As such, the general rule applies that the content of the standard of a professional care will require expert evidence”.[4] Since the plaintiffs failed to obtain any expert evidence, and the conduct was not so egregious to be obvious that the standard was not met, the plaintiffs were unable to establish any breach of care, stating
[51] Neither the claim against Dufferin Construction nor the claim against the City under s. 44(1) of the Municipal Act, 2001 attracts strict liability. It is essential that the plaintiffs establish the standard of care through expert evidence, and that the defendants breached it. They have not done so.
Justice Rees found in the alternative, and based on the evidence lead by the defence, that even if expert evidence is not required, the standard of care was met. The action was dismissed.
Conclusion and Takeaways
The decision in this case serves as an extremely important reminder to very carefully consider whether or not expert evidence is required to establish the standard of care. In any matter that is technical or out of the expertise of an average person, expert evidence may be necessary to guide the court and determine what the standard of care is for that profession. In this matter, the failure to elicit this evidence by the plaintiff was essential to the dismissal of the action.
This decision also serves as a great refresher on the differing standards of care between two defendants for what was essentially one act. For this reason, and despite not being wholly necessary, there were different defences and expectations on each defendant. It is important for lawyers to fully understand the precise tests applicable to each party, as even where they may appear similar the intersection between common law and statute can lead to different tests being applied.
[1] Municipal Act, 2001, S.O. 2001, c. 25, s. 44(1).
[2] At para 37.
[3] Ibid at para 39.
[4] Ibid at para 42.