Fridays with Rogers Partners

November 25, 2022

At our weekly Friday meeting, Nasra Esak discussed a recent Ontario Superior Court decision granting a summary judgement brought by the defendant in Strilchuck v. Tecumseh (Town of), 2022 ONSC 5841.

Overview

Justice King granted a summary judgement brought by the Town (the defendant) to dismiss a trip and fall personal injury action on the basis that there was no genuine issue requiring a trial. Justice King found that the plaintiff would be unable to successfully establish that the defendant left a public sidewalk in an unreasonable state of non-repair.

Background

This action arose from an incident that occurred on December 4, 2018, when the plaintiff tripped and fell on beach stones that were scattered on a public sidewalk. The incident caused the plaintiff to fall to her knees and face. She lost consciousness, suffered immediate injuries to her nose, and lost a tooth. After the incident, the plaintiff walked home and sought medical attention at a clinic. The defendant was first made aware of the incident on December 10th, 2018. Upon being made aware, they immediately removed the stones from the sidewalk. The defendant confirmed that they conduct examinations of the sidewalk annually and conduct inspections no more than 16 months apart.

The plaintiff brought an action pursuant to Simplified Procedure, claiming that the defendant failed to keep a public sidewalk in a reasonable state of repair, resulting in a trip and fall incident. The defendant later brought a motion for summary judgement seeking to dismiss the action on the basis that there was no genuine issue requiring a trial, as prescribed in Rule 20.04(1) of the Rules of Civil Procedure.  

The issues before the Court were:

  1. Whether there was a genuine issue that required a trial to determine if the defendant negligently left the area of the sidewalk where the incident allegedly occurred in a state of non-repair?
  2. More specifically, had the moving party established that the plaintiff would be unable to establish at trial that the sidewalk was in an unreasonable state of non-repair?
  3. Even if the plaintiff might be able at trial to establish that the sidewalk was in an unreasonable state of non-repair, can one or more of the exceptions prescribed in section 44(3) of the Municipal Act apply?

Relevant Legislation

(a) Rule 20 of the Rules of Civil Procedure

Rule 20 provides that a defendant may bring a motion for summary judgement to dismiss all or part of a statement of claim if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence[1].

(b) Section 44(1) of the Municipal Act

Section 44(1) of the Act requires a municipality to keep highways and bridges “in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge”. If a municipality is found to not have complied with section 44(1), it may be liable for any damages a person sustains due to not maintaining a highway in a reasonable state of repair[2].

Barbeau v. City of Kitchener[3] provides that a sidewalk constitutes a highway for the purposes of section 44(1) of the Act.

Section 44(3) provides that a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if:

  1. it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
  1. it took reasonable steps to prevent the default from arising; or
  1. at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.

Court’s Analysis

Was the sidewalk in a state of non-repair?

Justice King found that the sidewalk was in such a state that a person using ordinary care could pass safely. His Honour noted that the stones in this incident did not cover the entirety of the sidewalk, and that over half the width of the sidewalk was free of stone. Referencing Justice MacFarland’s decision in Stojadinov v. Hamilton (City)[4], Justice King expressed that it would be impossible for municipalities to maintain all sidewalks at a perfect level. He acknowledged that many items can be found on a sidewalk at any time and that requiring municipalities to conduct constant oversight to remove these items would be unrealistic and is not what the law requires.

The plaintiff submitted that she was aware of beach stones that were situated at the base of a tree beside the sidewalk where the incident occurred and that there was no barrier from the base of the tree to prevent the stones from moving onto the sidewalk. The plaintiff relied on Justice Judson’s decision in Stangret v. Toronto (City)[5], which held a municipality liable for a metal object left on a sidewalk that created a state of non-repair. Justice King considered this case distinguishable as the municipality acknowledged that the object on the sidewalk was dangerous, knew of its existence on the sidewalk, and took no steps to remove it.

The plaintiff also relied on an Engineering Assessment Report they obtained, which stated that the stones were a stepping hazard and contributed to the plaintiff’s fall. Justice King held that the report did not provide any further insight than what was already presented. His Honour clarified that the issue to be determined was whether the municipality left the sidewalk in an unreasonable state of non-repair. Upon reviewing photo evidence, Justice King considered the small gathering of stones on the sidewalk as easily avoidable to a person exercising reasonable care while walking.

Justice King also referenced the case of Lewis v. The City of Toronto[6] in which Justice McCartney dismissed a plaintiff’s personal injury claim and found that dead leaves left on a sidewalk did not leave a sidewalk in a state of non-repair. Justice King considered this rationale similar to the case at hand.

As a result, Justice King found that the stones on the sidewalk did not constitute an unreasonable state of non-repair.  

In the alternative, even if the sidewalk was in a state of non-repair, Justice King held that the municipality would not be liable due to the exception provision in section 44(3)(a) of the Act which provides that a municipality would not be liable if it did not know and could not reasonably expect to know of the state of repair of a sidewalk. The evidence provided demonstrated that the defendant removed the stones from the sidewalk once they were made aware of the plaintiff’s incident. Prior to this, it would have been unreasonable for the defendant to have known about the state of the sidewalk.

Decision

Justice King granted the defendant’s motion for summary judgement on the basis that there was no genuine issue requiring a trial as the plaintiff would be unable to establish that the sidewalk was in an unreasonable state of non-repair. In the alternative, even if the plaintiffs could demonstrate that the sidewalk was in an unreasonable state of non-repair, the exemption prescribed in section 44(3)(a) of the Municipal Act applies.

Takeaways

This case is particularly important to municipal occupiers. Despite a plaintiff suffering personal injuries due to a disturbance on municipal property, they are still subject to the standards of an ordinary person taking reasonable care. Furthermore, the Municipal Act provides municipalities with protection from liability if they could not reasonably have been expected to have known about a defect on their property.

If a municipality is confident that they took reasonable care of removing a hazard upon realization of an incident, or the hazard was one which a reasonable person could have avoided, bringing a motion for summary judgement may provide a cost-effective method to have the case determined at an early stage in the proceedings.

[1] R.R.O. 1990, Reg. 194: Rules of Civil Procedure, Rule 20.04(2)

[2] Municipal Act, 2001, SO 2001, c 25, s.44(2)

[3] 2017 ONSC 24

[4] [1988] O.J. No. 2038

[5] 2007 CarswellOnt 8620 (S.C.J.),

[6] [2004] O.J. No. 5411