Kristina Cooke

The Corporation of the City of Kingston brought a motion for summary judgment to dismiss a trip and fall action by Darlene Petitpas.

The City argued the plaintiff's expert report was inadmissible and there was no genuine issue for trial.

The court found that the City, as the moving party, failed to meet its initial evidentiary burden by not providing evidence on the applicable standards for catch basin grates at the time of the fall (2018) or that the design/condition was in a proper state of repair at that time.

As the onus did not shift to the plaintiff, the motion for summary judgment was dismissed.

This action arose from a fatal motor vehicle accident involving a tractor and a passenger van.

The main action settled, leaving a third-party claim by the defendants (tractor operator and owner) against the Township of Cramahe for contribution and indemnity.

The defendants alleged the Township was negligent and breached its statutory duty by failing to maintain Telephone Road in a reasonable state of repair, specifically by not painting a centerline.

The court found that the absence of a centerline constituted a state of non-repair, as it was required by the Ontario Traffic Manual guidelines.

However, the court ultimately dismissed the third-party claim, finding that the defendants failed to prove, on a balance of probabilities, that 'but for' the absence of the centerline, the accident would not have occurred.

The court concluded that the driver of the van either never identified the tractor as a hazard or did not have sufficient time to react, and the centerline would have made no difference.

The defendants brought a motion seeking an order to compel the plaintiff to attend a further defence orthopedic examination.

The plaintiff opposed the motion.

The court applied the seven-factor test from Bonello v. Taylor, 2010 ONSC 5723, for ordering further examinations.

The court noted that the defendants had previously chosen a physiatrist for examination despite knowing the plaintiff would rely on an orthopedic surgeon's report.

No significant change in the plaintiff's condition was demonstrated, and the defendants' own physiatrist's addendum report confirmed his original opinion remained unaltered, even after new information about a subsequent accident.

The court found that the defendants failed to demonstrate the necessity for a second physical examination and dismissed the motion.