In August of last year, we reported on Argue v. Tay (Township), in which the action was dismissed for the failure to give notice required by s. 44(10) of the Municipal Act. The plaintiff argued that the municipality had actual or constructive knowledge of the accident because the municipal fire department attended the scene. The matter was appealed to the Court of Appeal, which has now dismissed the appeal at 2013 ONCA 247 (CanLii).
The Court of Appeal confirmed that the plaintiff had the onus of establishing that she had a reasonable excuse for not providing notice and that the municipality was not prejudiced. The motions judge held that she failed to meet her onus. The Court of Appeal found no error in the motion judge's analysis or his application of the relevant principles.
This is an extremely helpful decision in cases where the plaintiff has failed to provide notice to the Municipality.
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Rabu, 01 Mei 2013
Rabu, 24 April 2013
City Not Liable for Icy Boulevard
The City of London has successfully defended a slip and fall action that occurred following a winter storm. In Bondy v. London (City), [2013] O.J. No. 1281 (S.C.J.), the plaintiff slipped and fell on the paved portion of the boulevard abutting the city sidewalk, which was used to access her driveway. The night before the plaintiff fell there was a heavy freezing rain storm, which continued throughout the night and into the morning. Schools were closed and radio announcements recommended citizens stay off roads and sidewalks. The adjacent property owned salted the sidewalk but not the boulevard. The City decided to call in its sidewalk equipment operators at midnight and they were deployed at 4:30 a.m. In the area of the plaintiff's fall, operators were deployed from 7:30 a.m. to 5:30 p.m., with the route taking 12-14 hours to complete.
The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality. Justice Gorman held that the boulevard was not part of the untravelled portion of the highway. In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.
Ultimately, Justice Gorman held that the City had met its standard of care. It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?
The case involved a number of issues, including whether the boulevard qualified as an untravelled portion of the highway, whether adjacent property owner was liable for failing to salt the boulevard, whether the Municipal Act or Occupier's Liability Act applied, and the standard of care for the municipality. Justice Gorman held that the boulevard was not part of the untravelled portion of the highway. In addition, the City could not deflect liability onto the adjacent property owner in the circumstances, as they did not exercise control over the area.
Ultimately, Justice Gorman held that the City had met its standard of care. It had complied with the Minimum Maintenance Standards for icy roadways. The plaintiff was entitled to expect a highway to be in a good condition, but "when the weather is so treacherous as to require the broadcast of public warnings, one travels at one's peril". Although the action was dismissed, the decision that the boulevard was not part of the untravelled portion of the highway poses a problem: are municipalities now expected to salt these areas?
Rabu, 22 Agustus 2012
Action Dismissed for Failing to Comply with Municipal Act Notice Requirement
Argue v. Tay (Township), 2012 ONSC 4622 (CanLii)
A municipality was recently successful in having a case dismissed based on the failure of the plaintiff to comply with s. 44(10) of the Municipal Act. The section requires written notice be given to the clerk within ten days of the incident. Section 44(12) provides that the failure to give notice can be excused if the plaintiff has a reasonable excuse and the defendant is not prejudiced by the lack of notice.
In Argue v. Tay (Township), the plaintiff alleged she sustained soft tissue injuries in a motor vehicle accident caused by potholes in the defendant municipality's road. She provided written notice through her lawyer almost two years after the incident. By that time, the surface of the road had changed materially. The plaintiff argued the municipality had either actual or constructive knowledge of the accident as the municipal volunteer fire department attended the scene and would have received a copy of the police report. The municipality brought a summary judgment motion seeking to have the action dismissed for failing to comply with the Municipal Act notice requirement.
DiTomaso J. held the plaintiff did not comply with the notice requirements. Section 44(10) requires written notice be given to the clerk and the fact that the fire department attended or may have received a copy of the police report was insufficient to comply with the section. There is no support in the jurisprudence that actual or construction notice pre-empts the requirement to give written notice to the clerk, and the section cannot be dispensed with in favour of notice to a different municipal department.
The plaintiff had no reasonable excuse for the failure to give notice. She was discharged from hospital the same day as the accident, had no broken bones and was able to return to work two to three weeks after the accident. She was aware people could bring lawsuits and believed the state of the road contributed to the accident, yet took no steps to inform herself about the law. She was physically and mentally able to instruct counsel.
The municipality had been prejudiced by the lack of notice. There is a presumption of prejudice where notice has not been provided and the plaintiff bears the onus of showing there was no prejudice. She failed to do so. Neither she nor the municipality had photos or measurements of the road, the condition of the road had changed materially since the accident and the municipality had lost the opportunity to interview witnesses. As a result, summary judgment was granted.
Argue is a useful summary of the relevant authorities relating to s. 44(12). Those defending municipal claims with notice issues should consider whether it would be useful to bring a summary judgment motion in the circumstances.
A municipality was recently successful in having a case dismissed based on the failure of the plaintiff to comply with s. 44(10) of the Municipal Act. The section requires written notice be given to the clerk within ten days of the incident. Section 44(12) provides that the failure to give notice can be excused if the plaintiff has a reasonable excuse and the defendant is not prejudiced by the lack of notice.
In Argue v. Tay (Township), the plaintiff alleged she sustained soft tissue injuries in a motor vehicle accident caused by potholes in the defendant municipality's road. She provided written notice through her lawyer almost two years after the incident. By that time, the surface of the road had changed materially. The plaintiff argued the municipality had either actual or constructive knowledge of the accident as the municipal volunteer fire department attended the scene and would have received a copy of the police report. The municipality brought a summary judgment motion seeking to have the action dismissed for failing to comply with the Municipal Act notice requirement.
DiTomaso J. held the plaintiff did not comply with the notice requirements. Section 44(10) requires written notice be given to the clerk and the fact that the fire department attended or may have received a copy of the police report was insufficient to comply with the section. There is no support in the jurisprudence that actual or construction notice pre-empts the requirement to give written notice to the clerk, and the section cannot be dispensed with in favour of notice to a different municipal department.
The plaintiff had no reasonable excuse for the failure to give notice. She was discharged from hospital the same day as the accident, had no broken bones and was able to return to work two to three weeks after the accident. She was aware people could bring lawsuits and believed the state of the road contributed to the accident, yet took no steps to inform herself about the law. She was physically and mentally able to instruct counsel.
The municipality had been prejudiced by the lack of notice. There is a presumption of prejudice where notice has not been provided and the plaintiff bears the onus of showing there was no prejudice. She failed to do so. Neither she nor the municipality had photos or measurements of the road, the condition of the road had changed materially since the accident and the municipality had lost the opportunity to interview witnesses. As a result, summary judgment was granted.
Argue is a useful summary of the relevant authorities relating to s. 44(12). Those defending municipal claims with notice issues should consider whether it would be useful to bring a summary judgment motion in the circumstances.
Rabu, 29 Februari 2012
Minimum Maintenance Standards Ruled Inapplicable
Giuliani v. Halton (Municipality), 2011 ONCA 812 (C.A.)
The Giuliani decision was released by the Court of Appeal on December 21, 2011. The plaintiff lost control of her vehicle when the road she was travelling on was covered with snow and ice. Approximately two centimetres of snow had fallen on the road which impacted and turned to ice.
The weather forecasts beginning the afternoon prior to the date of the accident indicated that snow would fall beginning the next morning. The trial judge found that the Town had ample time to schedule a person or crew to monitor the weather and road conditions and to place a maintenance crew on standby.
Salting operations did not begin until fifteen minutes after the accident occurred. It was not clear when the icy road conditions were first discovered. It was held that the Town “failed to inspect the roads when it ought to have known that an inspection was necessary to trigger the remedial steps necessary to maintain [the road in question]”.
The trial judge held that the defendants had complied with the Minimum Maintenance Standards (MMS) with respect to treating the icy roadway within the required time after becoming aware of its icy condition. However, the trial judge held that this was not a defence.
The Court of Appeal upheld the decision and held that sections 4 and 5 of the MMS do not establish minimum standards to address the accumulation of 2 centimetres of snow on a Class 2 roadway (they apply when there is a 5 cm accumulation), nor do they establish a minimum standard for the treatment of a highway before ice is formed and becomes an icy roadway. The Town was liable for failure to monitor the weather and the failure to deploy resources to prevent the road from becoming icy. Therefore, the analysis did not centre on the MMS as the MMS does not establish a minimum standard for the treatment of a highway before ice is formed and becomes icy.
The analysis turned to section 44(1) of the Municipal Act, 2001 requiring municipalities to take reasonable steps. The Court of Appeal agreed with the trial judge that reasonable steps were not taken with respect to monitoring the weather and lining crews up in advance.
This case raises the bar significantly with respect to what the courts require of municipalities to meet the reasonableness standard. It also takes away much of the certainty that was provided to municipalities by way of the MMS. An increased proactive approach to maintenance of roadways will be required.
̶ Kristen Dearlove, Student-at-Law
The Giuliani decision was released by the Court of Appeal on December 21, 2011. The plaintiff lost control of her vehicle when the road she was travelling on was covered with snow and ice. Approximately two centimetres of snow had fallen on the road which impacted and turned to ice.
The weather forecasts beginning the afternoon prior to the date of the accident indicated that snow would fall beginning the next morning. The trial judge found that the Town had ample time to schedule a person or crew to monitor the weather and road conditions and to place a maintenance crew on standby.
Salting operations did not begin until fifteen minutes after the accident occurred. It was not clear when the icy road conditions were first discovered. It was held that the Town “failed to inspect the roads when it ought to have known that an inspection was necessary to trigger the remedial steps necessary to maintain [the road in question]”.
The trial judge held that the defendants had complied with the Minimum Maintenance Standards (MMS) with respect to treating the icy roadway within the required time after becoming aware of its icy condition. However, the trial judge held that this was not a defence.
The Court of Appeal upheld the decision and held that sections 4 and 5 of the MMS do not establish minimum standards to address the accumulation of 2 centimetres of snow on a Class 2 roadway (they apply when there is a 5 cm accumulation), nor do they establish a minimum standard for the treatment of a highway before ice is formed and becomes an icy roadway. The Town was liable for failure to monitor the weather and the failure to deploy resources to prevent the road from becoming icy. Therefore, the analysis did not centre on the MMS as the MMS does not establish a minimum standard for the treatment of a highway before ice is formed and becomes icy.
The analysis turned to section 44(1) of the Municipal Act, 2001 requiring municipalities to take reasonable steps. The Court of Appeal agreed with the trial judge that reasonable steps were not taken with respect to monitoring the weather and lining crews up in advance.
This case raises the bar significantly with respect to what the courts require of municipalities to meet the reasonableness standard. It also takes away much of the certainty that was provided to municipalities by way of the MMS. An increased proactive approach to maintenance of roadways will be required.
̶ Kristen Dearlove, Student-at-Law
Rabu, 02 November 2011
Statutory Duty of Care
Morsi v. Femer Paving Ltd. [2011] O.J. No. 3960
This is an appeal from a trial decision that held York Region and Femer Paving Ltd each 25 % liable for a single car motor vehicle accident. The deceased was driving in excess of the speed limit, ignoring speed and construction signs and lost control of his vehicle when the road surface changed from fresh pavement to gravel.
The trial judge held that the plaintiff was 50% to blame for the accident, leaving the defendants with the other 50%.
York Region and Femer Paving appealed the decision.
York Region’s main submission was that after the trial Judge correctly stated the main issue and the test for resolving the issue …
“Whether at the material time Major Mackenzie drive was in a state of repair that was reasonable in the circumstances such that users of the road, exercising ordinary care, could travel upon it safely.”
… that he did not apply the test to the facts of the case.
“The evidence of Detective Stock and the Varicom tests as well as the evidence of Constable Herbert and the various engineering experts establishes that if Mark Morsi had operated his vehicle at the posted speed or even a speed modestly above it, he would have been able to successfully negotiate the transition area.”
The Ontario Court of Appeal found the driver to be reckless having accelerated to 117 km/h through a long curve and straightaway and ignoring two 60km/h speed signs, a reverse curve sign, a 40 km/h advisory sign and two construction signs. This was not a driver exercising ordinary care.
The appeal was allowed and the action by the driver’s family was dismissed.
- Alison McBurney
This is an appeal from a trial decision that held York Region and Femer Paving Ltd each 25 % liable for a single car motor vehicle accident. The deceased was driving in excess of the speed limit, ignoring speed and construction signs and lost control of his vehicle when the road surface changed from fresh pavement to gravel.
The trial judge held that the plaintiff was 50% to blame for the accident, leaving the defendants with the other 50%.
York Region and Femer Paving appealed the decision.
York Region’s main submission was that after the trial Judge correctly stated the main issue and the test for resolving the issue …
“Whether at the material time Major Mackenzie drive was in a state of repair that was reasonable in the circumstances such that users of the road, exercising ordinary care, could travel upon it safely.”
… that he did not apply the test to the facts of the case.
“The evidence of Detective Stock and the Varicom tests as well as the evidence of Constable Herbert and the various engineering experts establishes that if Mark Morsi had operated his vehicle at the posted speed or even a speed modestly above it, he would have been able to successfully negotiate the transition area.”
The Ontario Court of Appeal found the driver to be reckless having accelerated to 117 km/h through a long curve and straightaway and ignoring two 60km/h speed signs, a reverse curve sign, a 40 km/h advisory sign and two construction signs. This was not a driver exercising ordinary care.
The appeal was allowed and the action by the driver’s family was dismissed.
- Alison McBurney
Rabu, 19 Oktober 2011
Municipality attempts to exert rights to shoreline road after discovering a 150 year old By-law
Meaford (Municipality) v. Grist [2011] O.J. No. 4188
This is an interesting case regarding an 1854 By-law that had been found in 2004, which purported to create a municipal/public road along the shore of Georgian Bay.
Some of the named defendants brought two summary judgment motions claiming that there are no genuine issues requiring a trial. The action is disputed by the defendants because the road would take away approximately 66 feet of their shorelines lands.
The road had not been registered on title until 2007 after the Municipality discovered the By-law.
The Municipality’s argument, among other things included the doctrine of dedication and acceptance.
Justice Daley set out the test for the common law doctrine of dedication and acceptance/ long user:
Dedication depends on the intention of the donor and also acceptance of
the road by public authority.
There are three conditions:
1. An owner of the land on which the road is situated had formed the
intention to dedicate the land to the public road or highway;
2. The intention was carried out by the road being thrown open to the
public; and
3. The road was accepted by the public.
Dedication can occur by usurpation and long enjoyment.
Where members of the public continually use the road over a long period
of time, dedication may be inferred.
Justice Daley stated that the plaintiff bears the onus “upon a preponderance of probability to demonstrate that the conditions necessary for the establishment of dedication and acceptance were all present”. He then refers to the Reed v. Town of Lincoln [1973] decision where the “cogency of the evidence required to satisfy the burden … may vary … according to the nature of the issue with respect to which the burden must be met.”
Using this ruling, he bolsters the onus requiring the municipality to “satisfy the onus by a clear and substantial preponderance of evidence that the property owners have lost the title to a portion of their property which now constitutes a public road”.
Meaford argued that the public highway existed prior to the by-law. It was held that there was no genuine issue for trial; the plaintiff had not offered any physical/documentary evidence. Even if there had been a road, the time from the initial Crown grant in 1840 to the date of the by-law in 1854, is not enough time to find a “long user”.
It was further held that there was no dedication and acceptance in modern day, for many reasons, including:
1. The municipality graded the road approximately twice a year –
otherwise had no involvement in the upkeep.
2. The municipality entered into a maintenance agreement with the
cottage owners association.
3. In 1986, part of the road had washed away and the municipality had
not restored the road. In fact, the owner of the property had a
different portion of his property, severed, re-zoned and built a
private driveway (no dispute that this “inland” driveway was a
private road).
4. The “inland” driveway was maintained pursuant to the maintenance
agreement.
5. The defendants were bona fide purchasers for value and the cottages
built on the lots comply with zoning by-laws in regards to set back
from the water’s edge and not from the disputed road.
6. There was no evidence of municipal funds or labour to build, maintain
or restore the road.
7. The municipality, in this action, was only trying to lay claim to a
very small potion of the road that the By-law purported to create.
Justice Daley held that there was no evidence of actual or implied dedication or acceptance and was held not to give rise to any issues requiring a trial.
He went further to state that the municipality had slept on their rights for over 150years and applied the doctrine of laches and acquiescence and that “quite apart from all of the other reasons expressed (in the 192 paragraphs), it would be unjust to grant Meaford’s claim”.
This post was prepared by our Associate Alison McBurney.
This is an interesting case regarding an 1854 By-law that had been found in 2004, which purported to create a municipal/public road along the shore of Georgian Bay.
Some of the named defendants brought two summary judgment motions claiming that there are no genuine issues requiring a trial. The action is disputed by the defendants because the road would take away approximately 66 feet of their shorelines lands.
The road had not been registered on title until 2007 after the Municipality discovered the By-law.
The Municipality’s argument, among other things included the doctrine of dedication and acceptance.
Justice Daley set out the test for the common law doctrine of dedication and acceptance/ long user:
Dedication depends on the intention of the donor and also acceptance of
the road by public authority.
There are three conditions:
1. An owner of the land on which the road is situated had formed the
intention to dedicate the land to the public road or highway;
2. The intention was carried out by the road being thrown open to the
public; and
3. The road was accepted by the public.
Dedication can occur by usurpation and long enjoyment.
Where members of the public continually use the road over a long period
of time, dedication may be inferred.
Justice Daley stated that the plaintiff bears the onus “upon a preponderance of probability to demonstrate that the conditions necessary for the establishment of dedication and acceptance were all present”. He then refers to the Reed v. Town of Lincoln [1973] decision where the “cogency of the evidence required to satisfy the burden … may vary … according to the nature of the issue with respect to which the burden must be met.”
Using this ruling, he bolsters the onus requiring the municipality to “satisfy the onus by a clear and substantial preponderance of evidence that the property owners have lost the title to a portion of their property which now constitutes a public road”.
Meaford argued that the public highway existed prior to the by-law. It was held that there was no genuine issue for trial; the plaintiff had not offered any physical/documentary evidence. Even if there had been a road, the time from the initial Crown grant in 1840 to the date of the by-law in 1854, is not enough time to find a “long user”.
It was further held that there was no dedication and acceptance in modern day, for many reasons, including:
1. The municipality graded the road approximately twice a year –
otherwise had no involvement in the upkeep.
2. The municipality entered into a maintenance agreement with the
cottage owners association.
3. In 1986, part of the road had washed away and the municipality had
not restored the road. In fact, the owner of the property had a
different portion of his property, severed, re-zoned and built a
private driveway (no dispute that this “inland” driveway was a
private road).
4. The “inland” driveway was maintained pursuant to the maintenance
agreement.
5. The defendants were bona fide purchasers for value and the cottages
built on the lots comply with zoning by-laws in regards to set back
from the water’s edge and not from the disputed road.
6. There was no evidence of municipal funds or labour to build, maintain
or restore the road.
7. The municipality, in this action, was only trying to lay claim to a
very small potion of the road that the By-law purported to create.
Justice Daley held that there was no evidence of actual or implied dedication or acceptance and was held not to give rise to any issues requiring a trial.
He went further to state that the municipality had slept on their rights for over 150years and applied the doctrine of laches and acquiescence and that “quite apart from all of the other reasons expressed (in the 192 paragraphs), it would be unjust to grant Meaford’s claim”.
This post was prepared by our Associate Alison McBurney.
Selasa, 23 Agustus 2011
Gross Negligence Standard for Municipal Sidewalks
In Richer v. Elliot Lake [2001] ONSC the plaintiff slipped and fell on ice on a sidewalk. In accordance with s. 44(9) of the Municipal Act, the standard of care is lowered from ordinary negligence to gross negligence.
Koke J. referred to the 1927 Supreme Court of Canada decision, Holland v. City of Toronto, that defined gross negligence as “very great negligence”. Thum v. Elliot Lake [1999] O.J. No. 3158 held that the degree of negligence is context specific and listed elements to consider: 1) notice of the existence of a dangerous condition which authorities actually had or which should be imputed to them; 2) their opportunity to remedy it; 3) the state of weather immediately before the accident; and 4) the relative situation of the place where the accident occurred.
In the current case, the court found as a fact that there had been a thaw-freeze cycle, there was a sheet of ice which caused the plaintiff to fall, there was no evidence of any sand at the scene, city crews had been sent out to clear and sand the streets and sidewalks following the snow fall, and there were not any other reported complaints that evening.
Koke J. appears to have given the most weight to the plaintiff’s own testimony that he walked to work that morning and walked about ¾ of a kilometer after leaving work before falling. He stated that he didn’t have any problems walking on the sidewalks prior to the fall.
The court held that overall the plaintiff was not able to show that on the evening in question the condition on the city’s sidewalks was generally slippery or icy. There was nothing to suggest this was not an isolated incident. Koke J. went on to say that even if the court were to find the city negligent for not spreading sand on the sidewalk at that location, this would constitute negligence, not gross negligence.
Koke J. referred to the 1927 Supreme Court of Canada decision, Holland v. City of Toronto, that defined gross negligence as “very great negligence”. Thum v. Elliot Lake [1999] O.J. No. 3158 held that the degree of negligence is context specific and listed elements to consider: 1) notice of the existence of a dangerous condition which authorities actually had or which should be imputed to them; 2) their opportunity to remedy it; 3) the state of weather immediately before the accident; and 4) the relative situation of the place where the accident occurred.
In the current case, the court found as a fact that there had been a thaw-freeze cycle, there was a sheet of ice which caused the plaintiff to fall, there was no evidence of any sand at the scene, city crews had been sent out to clear and sand the streets and sidewalks following the snow fall, and there were not any other reported complaints that evening.
Koke J. appears to have given the most weight to the plaintiff’s own testimony that he walked to work that morning and walked about ¾ of a kilometer after leaving work before falling. He stated that he didn’t have any problems walking on the sidewalks prior to the fall.
The court held that overall the plaintiff was not able to show that on the evening in question the condition on the city’s sidewalks was generally slippery or icy. There was nothing to suggest this was not an isolated incident. Koke J. went on to say that even if the court were to find the city negligent for not spreading sand on the sidewalk at that location, this would constitute negligence, not gross negligence.
Rabu, 06 April 2011
Gross Negligence
The Court of Appeal for Ontario has upheld a decision which found that the City of Mississauga’s response to a winter storm event was reasonable, Billings v. Mississauga (City), 2011 ONCA 247, [2011] O.J. No. 1449 (C.A.).
The plaintiff, Douglas Billings, claimed injuries suffered in a slip and fall accident on a City sidewalk following a major snow and ice storm.
The sidewalk in question had not been cleared of snow and ice within 36 hours after the winter storm. The City’s snow removal policy required that snow and ice be removed from sidewalks within 36 hours and the City had failed to meet that target. Nevertheless, the trial judge found that the storm had been an extraordinary event. The trial judge carefully reviewed the City’s systems, personnel and policies for dealing with snow storms and concluded that the City’s response to the storm was "completely reasonable." The City’s response to the storm did not amount to “gross negligence”, which is the standard mandated by statute.
The Court of Appeal agreed with the trial judge’s conclusion.
This case should assist municipalities in defending claims of personal injury caused by snow or ice on a municipal sidewalk. It is interesting that the City was found to have acted reasonably even though it did not meet its objective of clearing snow and ice from sidewalks within 36 hours after a storm event.
The plaintiff, Douglas Billings, claimed injuries suffered in a slip and fall accident on a City sidewalk following a major snow and ice storm.
The sidewalk in question had not been cleared of snow and ice within 36 hours after the winter storm. The City’s snow removal policy required that snow and ice be removed from sidewalks within 36 hours and the City had failed to meet that target. Nevertheless, the trial judge found that the storm had been an extraordinary event. The trial judge carefully reviewed the City’s systems, personnel and policies for dealing with snow storms and concluded that the City’s response to the storm was "completely reasonable." The City’s response to the storm did not amount to “gross negligence”, which is the standard mandated by statute.
The Court of Appeal agreed with the trial judge’s conclusion.
This case should assist municipalities in defending claims of personal injury caused by snow or ice on a municipal sidewalk. It is interesting that the City was found to have acted reasonably even though it did not meet its objective of clearing snow and ice from sidewalks within 36 hours after a storm event.
Rabu, 30 Maret 2011
Action dismissed due to failure to comply with Municipal Act notice provision
Zogjani v. Toronto (City), [2011] O.J. No. 1002 (S.C.J.)
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
In this slip and fall case against the City of Toronto, the City brought a motion for summary judgment on the basis that the plaintiff failed to comply with the 10 day notice period provided by section 44(10) of the Municipal Act. The plaintiff slipped and fell on December 22, 2005 on snow and ice on a Municipal sidewalk. She consulted a lawyer in February 2006 and notice was provided to the City on March 1, 2006. The plaintiff swore that until she met with the lawyer on February 28, 2006, she was not aware of the 10 day notice requirement in section 44. Since the plaintiff failed to comply with section 44(10), it was her onus to show that she fit within subsection 44(12) of the Municipal Act, which provides that the failure to give notice is not a bar to the action if a judge finds that there is reasonable excuse and the Municipality is not prejudiced in its defence.
The City’s argument was that because it did not receive notice of the claim in a timely manner, the City’s investigator was unable to investigate the location promptly and could not observe or record the conditions of the location at the time of the accident. The plaintiff’s response was that snow would have melted in the days immediately following the incident and so even if the 10 day notice period had been met, there was no practical prejudice to the City.
The City’s field investigator swore an Affidavit indicating that he patrolled the area 4 days before the date of loss and 6 days after the date of loss. If he had been notified immediately, he would have been able to recall what the road and sidewalk conditions looked like during his patrols; however, because the City did not receive notice until 2 ½ months later, he was unable to recall what the location looked like at the time of his patrols.
Justice Lauwers was satisfied that the Municipality was practically prejudiced by the effect of the delay on the field investigator’s memory. He granted summary judgment.
At times it may seem that section 44(10) is a limitation period without teeth; however, in the right circumstances and with the right evidence proffered on a motion for summary judgment, section 44(10) can be a useful tool with which to dispose of an action at an early date.
Kamis, 25 November 2010
The Hills Are Alive... With Danger
Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.).
Howden, J. discussed the duty that road authorities owe to motorists in the case of Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.), a case involving a motor vehicle accident that occurred on August 10, 2004, which left two teenage sisters severely injured.
Shannon Deering, the older sister who was 19 years old at the time, was driving her 2002 Pontiac Grand AM up a hill on Coates Road West in Oshawa, when the headlights of an eastbound vehicle appeared over the crest of the hill. The vehicle moved to the right, then arced left, and finally veered to the right over the shoulder of the road.
Justice Howden ultimately found that the segment of Coates Rd. West was in a state of non-repair because in his view, the hill where the accident happened “represented a virtually unique source of danger to ordinary drivers, particularly at night due to its combination of features likely to create an emergency situation with little or no preview time for westbound drivers to deal safely with it”.
At the time of the accident, Coates Road West was paved and flat for close to two kilometers, after which it climbed and fell away over three hills. The third hill was the most significant, and in August 2004, the road had no lane markings, no signage, and an un-posted speed limit of 80 km/hr.
In July 2004, the road was involved in a rehabilitation project to improve the road’s base and surface. The aim of the rehabilitation project was to provide an adequate sub-structure and surface treatment. By July 20, 2004, a dark-coloured sealant or emulsion was applied to the road as the final phase of the project. Immediately afterwards the road was re-opened in its otherwise previous state which was unsigned, unlit and unlined.
After a review of the relevant case law, Justice Howden determined that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to certain defences.
Howden, J. stated that “The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.”
He further declared that “the duty to repair under section 44 should no longer ignore the need in circumstances of pre-design age roads near areas of urban change and growth to incorporate assessments of safety measures into road rehabilitation and reconstruction projects”.
This blog contribution by articling student Alex Lacko.
Howden, J. discussed the duty that road authorities owe to motorists in the case of Deering v. Scugog (Township), [2010] O.J. No. 4229 (S.C.J.), a case involving a motor vehicle accident that occurred on August 10, 2004, which left two teenage sisters severely injured.
Shannon Deering, the older sister who was 19 years old at the time, was driving her 2002 Pontiac Grand AM up a hill on Coates Road West in Oshawa, when the headlights of an eastbound vehicle appeared over the crest of the hill. The vehicle moved to the right, then arced left, and finally veered to the right over the shoulder of the road.
Justice Howden ultimately found that the segment of Coates Rd. West was in a state of non-repair because in his view, the hill where the accident happened “represented a virtually unique source of danger to ordinary drivers, particularly at night due to its combination of features likely to create an emergency situation with little or no preview time for westbound drivers to deal safely with it”.
At the time of the accident, Coates Road West was paved and flat for close to two kilometers, after which it climbed and fell away over three hills. The third hill was the most significant, and in August 2004, the road had no lane markings, no signage, and an un-posted speed limit of 80 km/hr.
In July 2004, the road was involved in a rehabilitation project to improve the road’s base and surface. The aim of the rehabilitation project was to provide an adequate sub-structure and surface treatment. By July 20, 2004, a dark-coloured sealant or emulsion was applied to the road as the final phase of the project. Immediately afterwards the road was re-opened in its otherwise previous state which was unsigned, unlit and unlined.
After a review of the relevant case law, Justice Howden determined that road authorities have a duty to ordinary motorists to keep their roads in reasonable repair, including the type and location of the road. The standard of care uses as the measure of reasonable conduct the ordinary reasonable driver and the duty to repair arises wherever an unreasonable risk of harm exists on the roadway for which obvious cues on or near the road are not present and no warning is provided, subject to certain defences.
Howden, J. stated that “The ordinary motorist includes those of average range of driving ability – not simply the perfect, the prescient, or the especially perceptive driver, or one with exceptionally fast reflexes, but the ordinary driver who is of average intelligence, pays attention, uses caution when conditions warrant, but is human and sometimes makes mistakes.”
He further declared that “the duty to repair under section 44 should no longer ignore the need in circumstances of pre-design age roads near areas of urban change and growth to incorporate assessments of safety measures into road rehabilitation and reconstruction projects”.
This blog contribution by articling student Alex Lacko.
Rabu, 23 Juni 2010
More on Crinson v. Toronto, 2010 ONCA 44.
Two days ago I blogged on a comment left from an Indian lawyer to my blog of February 27, 2010.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.
That discussion revolved around the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The case has received attention in an article by Stuart Huxley, legal counsel, City of Ottawa, in a case comment printed in the Municipal Liability Risk Management journal, (2009-10) 11 Mun. L.R. Mgt. (Volume 11, Number 4).
In that article, Mr. Huxley helpfully reviews the history of the Court of Appeal decision and noted that the trial judge had found that the plaintiff was in the hospital for five days after the trip and fall, which included surgery, and during that period was on morphine and Tylenol. The plaintiff was drowsy and "out of it". Following his discharge from the hospital, the plaintiff took Percocets for two weeks. Despite this medication, the trial judge held that the plaintiff was not so incapacitated that he was unable to arrange for the required notice to be given to the municipality. Thus the plaintiff's claim was held to be statute barred by the trial judge.
The Court of Appeal reversed. The Court of Appeal held that there was ample evidence to support "reasonable excuse".
Mr. Huxley concludes his article with the realistic comment that failture to give notice as required by the Municipal Act, 2001 months after an accident will require a municipality to consider whether to push the notice defence. Questions that municipalities will continue to face will be whether or how a municipality should defend such actions or whether they should just concede and pay.
Senin, 21 Juni 2010
Benefit of the Doubt has to be given to the Victim
It is not often we get comments on our blog. It is even rarer when we get a comment from someone who is outside Ontario, much less Canada. So it was good to read the comment from Ms Sindhu Yadav of Choir de Law Pvt. Ltd, India (and who I presume to be a colleague lawyer), to my February 27, 2010, blog on the Ontario Court of Appeal's decision in Crinson v. Toronto (City), 2010 ONCA 44.
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
The title I gave to that blog entry was "Ignorance of the Law can be a Reasonable Excuse", which perhaps showed my concern with the Court of Appeal's decision. However, the comment from Ms Sindhu Yadav of India was, "The decision of Court of Appeal is highly welcome. In such cases the maxim "Ignorance of law is no excuse" is defeated. Benefit of doubt has to be given to the victim."
That is an interesting comment. Please keep the comments coming...
Sabtu, 12 Juni 2010
If a City is going to fix a sidewalk, it has to do a good job
The Ontario Court of Appeal says that the City of Burlington was partly liable for a woman's broken leg because the City's sidewalk allowed for the pooling of liquid on the sidewalk which caused her to slip and fall. Cartner v. Burlington (City), 2010 ONCA 407.
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
The City had tried to fix the cement sidewalk by grinding down a trip ledge. In the process, the City reversed the drainage of water and liquids from the sidewalk. After the grinding of the sidewalk, water and liquids pooled in a corner of the sidewalk.
The Court of Appeal also said the correct test is the "but for" test, namely that "but for" the pooling of water caused by the reversed drainage, caused by the grinding down of the trip ledge, the plaintiff would not have fallen. The City should have replaced the concrete slab instead of grinding it down since this caused a greater or additional problem.
According to the Court of Appeal, the trial judge was correct in concluding that the neligence of the City was a "cause" and that it did not have to be the only "cause" of the plaintiff's injury.
I wonder if the "but for" test, however, was the correct test in this instance? It seems to me it could also be said that the accident would not have occurred "but for" the plaintiff walking along the sidewalk and not stepping over the pooled liquid, yet there is no mention in the judgment about contributory negligence. Doesn't this make the City an insurer for those who have trouble stepping over defects on its sidewalk? Is that expense the City taxpayers should have to bear?
Selasa, 08 Juni 2010
Misfeasance in Public Office
St. Elizabeth Home Society v. Hamilton (City), [2010] O.J. No.1515 (C.A.)
This was an Appeal by the St. Elizabeth Home Society of the dismissal of its action against the City of Hamilton and the Regional Municipality of Hamilton Wentworth.
St. Elizabeth Home Society operated a retirement home in Hamilton. In early 1994, the City received letters alleging substandard care of residents at the home. These letters prompted a review of the Society’s practices by an independent consultant, who delivered a report in December 2004 strongly criticizing the health care practices and management style of the operators of the home. Shortly after the report was issued, the Municipality issued an Order to Comply against the Society alleging that it had violated a Municipal by-law with respect to admission of residents, nursing care, reports and records, and food. A City counselor leaked the Order to Comply to local newspapers, which in turn published many sensational stories about the home.
The primary issue in this appeal was whether the judge erred in dismissing the claim with respect to misfeasance in public office.
The trial judge held that there was no intention by Municipal employees to act beyond their powers and abuse their authority, there was no evidence that the defendants were aware their conduct was unlawful and likely to harm the plaintiff, and there was no knowledge by any of the defendants that the issuance of the Order to Comply would do anything other than benefit the plaintiff in improving health care to the residents. Their intent was not to harm the home but to assist it in its operation. The Court of Appeal confirmed the trial judge's decision.
In addition, the Court of Appeal held that the appeal with respect to negligence must fail because neither Municipality owed a duty of care to the Society; their duty was a public law duty to the residents of the home, not to the operator.
This case is useful in those defending Municipal and public authorities claims, in that it confirms that the duty is to the public at large, as well as the elements of misfeasance in public office.
This was an Appeal by the St. Elizabeth Home Society of the dismissal of its action against the City of Hamilton and the Regional Municipality of Hamilton Wentworth.
St. Elizabeth Home Society operated a retirement home in Hamilton. In early 1994, the City received letters alleging substandard care of residents at the home. These letters prompted a review of the Society’s practices by an independent consultant, who delivered a report in December 2004 strongly criticizing the health care practices and management style of the operators of the home. Shortly after the report was issued, the Municipality issued an Order to Comply against the Society alleging that it had violated a Municipal by-law with respect to admission of residents, nursing care, reports and records, and food. A City counselor leaked the Order to Comply to local newspapers, which in turn published many sensational stories about the home.
The primary issue in this appeal was whether the judge erred in dismissing the claim with respect to misfeasance in public office.
The trial judge held that there was no intention by Municipal employees to act beyond their powers and abuse their authority, there was no evidence that the defendants were aware their conduct was unlawful and likely to harm the plaintiff, and there was no knowledge by any of the defendants that the issuance of the Order to Comply would do anything other than benefit the plaintiff in improving health care to the residents. Their intent was not to harm the home but to assist it in its operation. The Court of Appeal confirmed the trial judge's decision.
In addition, the Court of Appeal held that the appeal with respect to negligence must fail because neither Municipality owed a duty of care to the Society; their duty was a public law duty to the residents of the home, not to the operator.
This case is useful in those defending Municipal and public authorities claims, in that it confirms that the duty is to the public at large, as well as the elements of misfeasance in public office.
Kamis, 15 April 2010
Amendments to MMS
Final comment from Jennifer Stirton on the new Ontario Municipal Maintenance Standards:
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
7. Inspection for Sidewalk Discontinuity
The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.
Selasa, 13 April 2010
Amendments to MMS
More from Jennifer Stirton on the new Municipal Maintenance Standards:
6. Expanded Sign Inspections
The MMS previously required road sign repairs where signs were illegible, improperly oriented or missing. There is now an additional requirement to repair road signs that are obscured. There is also a new requirement to conduct annual inspections of road signs to ensure that they meet the retro-reflectivity requirements of the Ontario Traffic Manual.
6. Expanded Sign Inspections
The MMS previously required road sign repairs where signs were illegible, improperly oriented or missing. There is now an additional requirement to repair road signs that are obscured. There is also a new requirement to conduct annual inspections of road signs to ensure that they meet the retro-reflectivity requirements of the Ontario Traffic Manual.
Kamis, 08 April 2010
Amendments to MMS
More comments on the new Minimum Maintenance Standards, by Jennifer Stirton.
4. Slush Included in Snow Accumulation
The MMS have also been criticized for failing to address slushy road conditions.[1] The MMS now provide that snow accumulation on a road includes new fallen snow, wind-blown snow and slush. Snow clearing standards are triggered when snow accumulation reaches a prescribed depth.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 94-97 (S.C.J.). Note that although it was argued by counsel, the trial judge did not agree that the failure to address slush in the MMS was a gap in the regulation.
5. Annual Inspection of Luminaires
The MMS now provide for annual inspections of all luminaires to ensure that they are functioning. There was no previous inspection requirement.
4. Slush Included in Snow Accumulation
The MMS have also been criticized for failing to address slushy road conditions.[1] The MMS now provide that snow accumulation on a road includes new fallen snow, wind-blown snow and slush. Snow clearing standards are triggered when snow accumulation reaches a prescribed depth.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 94-97 (S.C.J.). Note that although it was argued by counsel, the trial judge did not agree that the failure to address slush in the MMS was a gap in the regulation.
5. Annual Inspection of Luminaires
The MMS now provide for annual inspections of all luminaires to ensure that they are functioning. There was no previous inspection requirement.
Selasa, 06 April 2010
Amendments to MMS
More commentary on the recent amendments to the MMS, by Jennifer Stirton.
3. Additional Winter Patrolling Requirements
One of the criticisms of the MMS was that the patrolling requirements were inadequate to respond to winter road conditions.[1] The MMS now provide that during the winter maintenance season, municipalities must conduct the routine patrols that were previously required but must also patrol highways that are representative of its highways, as necessary, for snow and ice conditions. The standard also allows patrolling to be done by patrollers or by winter maintenance operators. As neither “representative” nor “as necessary” are defined terms and, we expect to see claims challenging municipal decisions about representative highways and necessary patrol frequencies.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 98-103 (S.C.J.).
3. Additional Winter Patrolling Requirements
One of the criticisms of the MMS was that the patrolling requirements were inadequate to respond to winter road conditions.[1] The MMS now provide that during the winter maintenance season, municipalities must conduct the routine patrols that were previously required but must also patrol highways that are representative of its highways, as necessary, for snow and ice conditions. The standard also allows patrolling to be done by patrollers or by winter maintenance operators. As neither “representative” nor “as necessary” are defined terms and, we expect to see claims challenging municipal decisions about representative highways and necessary patrol frequencies.
[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 98-103 (S.C.J.).
Kamis, 01 April 2010
Amendments to MMS
More commentary on the recent amendments to the MMS, by Jennifer Stirton.
2. Application of MMS Not Restricted to Motor Vehicles
The MMS previously provided that they applied only in respect of motor vehicles using highways. This provision has been repealed, which suggests that the MMS now apply to pedestrians and bicycles using highways. This may be a response to recent case law which held that where roads are kept in a reasonable state of repair for vehicular traffic, which can include MMS compliance, a municipality may not be liable to pedestrians injured while walking on the road surface. Holmes v. Kingston (City), [2009] O.J. No. 1838 (S.C.J.).
2. Application of MMS Not Restricted to Motor Vehicles
The MMS previously provided that they applied only in respect of motor vehicles using highways. This provision has been repealed, which suggests that the MMS now apply to pedestrians and bicycles using highways. This may be a response to recent case law which held that where roads are kept in a reasonable state of repair for vehicular traffic, which can include MMS compliance, a municipality may not be liable to pedestrians injured while walking on the road surface. Holmes v. Kingston (City), [2009] O.J. No. 1838 (S.C.J.).
Selasa, 23 Maret 2010
Graham v. Toronto, [2009] O.J. No. 4633
This is a decision of A. Sosna J. of the Ontario Superior Court of Justice.
I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.
Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.
The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.
The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.
The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.
The trial judge then dismissed the plaintiff’s claim.
The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.
I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.
Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.
The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.
The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.
The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.
The trial judge then dismissed the plaintiff’s claim.
The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.
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