Ouellette v. The Corporation of the Town of Hearst, 2004 ONCA 36122

Ouellette v. The Corporation of the Town of Hearst et al. [Indexed as: Ouellette v. Hearst (Town)]

70 O.R. (3d) 204

[2004] O.J. No. 1120

Docket No. C39098

Court of Appeal for Ontario

Feldman, MacPherson, and Cronk JJ.A.

March 18, 2004

*Application for leave to appeal to the Supreme Court of Canada was dismissed with costs November 18, 2004 (Major, Fish and Abella JJ.)

Limitations -- Highway -- Top of utility pole adjacent to highway falling off and striking vehicle -- Motorist injured -- Municipality liable for negligence in failing to properly secure and maintain pole -- Claim against municipality not barred by s. 284(3) of Municipal Act -- Purpose of s. 284(3) to protect municipalities from actions where vehicles leave highway and strike an object adjacent to highway -- Vehicle not leaving highway -- Limitation period for action for failure to keep road in reasonable repair also not applying -- Accident not caused by any failure to repair -- Municipal Act, R.S.O. 1990, c. M.45, s. 284.

Municipal law -- Actions against municipality -- Negligence -- Limitations -- Highway -- Top of utility pole adjacent to highway falling off and striking vehicle -- Motorist injured -- Municipality liable for negligence in failing to properly secure and maintain pole -- Claim against municipality not barred by s. 284(3) of Municipal Act -- Purpose of s. 284(3) to protect municipalities from actions where vehicles leave highway and strike an object adjacent to highway -- Vehicle not leaving highway -- Limitation period for action for failure to keep road in reasonable repair also not applying -- Accident not caused by any failure to repair -- Municipal Act, R.S.O. 1990, c. M.45, s. 284. [page205]

On February 17, 1998, the plaintiff FO was travelling eastbound on Highway 11 in the Town of Hearst, Ontario. The defendant, RB was travelling westbound in a vehicle owned by the defendant, VCC Ltd. It was a very windy day. Both drivers noticed a nylon rope, which had been used to suspend a promotional banner, dangling a few feet from the ground. RB moved his vehicle to avoid the rope and pulled over to adjust his vehicle's mirror, which had been struck by the rope. Meanwhile, the top of the utility pole on the south side of the highway fell off during the windstorm and struck the roof of FO's vehicle. Although he had injured his left knee, he drove away from the accident.

On June 17, 1998, FO notified the Town of Hearst, RB and VCC Ltd. in writing that he intended to sue for damages for personal injuries. On October, 25, 1999, approximately 20 months after the accident, a statement of claim was issued. After a trial, the action was dismissed as against RB and VCC Ltd. The trial judge, Riopelle J., however, found the Town liable in negligence He stated that FO did not have to show why the pole broke but only that it could not have done so without negligence on the Town's part. He awarded damages of $562,800.

The Town appealed. The principal ground of the appeal was that Riopelle J. erred by concluding that FO's claim was not barred by s. 284 of the Municipal Act.

Held, the appeal should be dismissed.

Subection 284(3) of the Municipal Act bars an action against a municipality caused by the erection of an object not within the travelled portion of the highway. This subsection was not applicable. FO's injury was not caused by the erection of an object not within the travelled portion of the highway. Rather, the injuries were caused by the Town's failure to properly secure and maintain the pole. The purpose of s. 284(3) was to protect municipalities from actions where drivers leave the highway and strike an object adjacent to the highway. Here, FO's vehicle did not leave the highway.

Subsections 284(1) and (2) also did not bar FO's claim. The Town's argument was that its liability, if any, was its failure to keep the highway in reasonable repair, as required by s. 284(1), for which the limitation period under s. 284(2) to bring an action was three months. The accident in this case, however, was not caused by any failure to repair. The claim against the Town was in negligence. In the past, courts have generously interpreted a municipality's duty to keep roads in repair because formerly there was a limited scope for negligence claims against municipalities. This was no longer the situation. There was no longer a need to stretch the wording of s. 284(1) to ground what were, in reality, negligence actions. FO's negligence claim was not statute barred.

APPEAL from a judgment against a municipality for negligence.

Cases referred to Brown v. Toronto (City) (1910), 21 O.L.R. 230, [1910] O.J. No. 125 (QL) (Div. Ct.); Couch v. Louise (Municipality) (1907), 1907 184 (MB CA), 16 Man. R. 656 (C.A.); Ferguson v. Southwold (Township) (1895), 27 O.R. 66 (C.A.); Gougeon v. Foley (Township) (1977), 1977 1235 (ON SC), 16 O.R. (2d) 625, 78 D.L.R. (3d) 733 (H.C.J.); Hartley v. Ottawa (City) (1932), 41 O.W.N. 301 (H.C.J.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1; Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228, 41 B.C.L.R. (2d) 350, 64 D.L.R. (4th) 689, 103 N.R. 1, [1990] 1 W.W.R. 385, 1 C.C.L.T. (2d) 1, 18 M.V.R. (2d) 1; Marchand v. Duff, [1942] O.W.N. 123 (C.A.), affg 1942 324 (ON SC), [1942] 1 D.L.R. 520, [1941] O.W.N. 462 (H.C.J.); Mero v. Waterloo (Regional Municipality) (1992), 1992 7711 (ON CA), 7 O.R. (3d) 102, 89 D.L.R. (4th) 533, 10 C.C.L.T. (2d) 197, 6 C.P.C. (3d) 250, 37 M.V.R. (2d) 56, 8 M.P.L.R. (2d) 1 (C.A.), affg (1989), 1989 4101 (ON SC), 69 O.R. (2d) 375, 16 M.V.R. (2d) 21, 44 M.P.L.R. 15 (H.C.J.); [page206] Van Nice v. Calgary (City) (1979), 24 A.R. 385, [1979] A.J. No. 797 (QL) (S.C.T.D.); Wahl v. Listowell (Town) (1988), 40 M.P.L.R. 276, [1988] O.J. No. 2860 (QL) (Dist. Ct.) Statutes referred to Limitations Act, R.S.O. 1990, c. L.15, s. 45(1) Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4 Municipal Act, R.S.O. 1990, c. M.45, s. 284 Municipal Act, 2001, S.O. 2001, c. 25 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 53.03 Authorities referred to Linden, A., Canadian Tort Law, 7th ed. (Markham: Butterworths, 2001)

Paul J. Pape and Lorella Berard, for respondent. Kirk F. Stevens and Christine Snow, for appellant.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] Part of a utility pole erected by the appellant, the Corporation of the Town of Hearst ("Hearst"), fell off during a windstorm. It struck a van being driven by the respondent, Fabien Ouellette. Ouellette was injured. Following an 11-day trial, Justice Robert A. Riopelle found Hearst liable in negligence and fixed damages of $562,800.

[2] Hearst appeals on a number of grounds, including the trial judge's ruling permitting two doctors to give opinion evidence, his assessment of Ouellette's credibility in relation to his injuries, and the correctness of his analysis on the issue of negligence. However, the two principal issues on appeal relate to the trial judge's conclusion that the limitations in ss. 284(2) and (3) of the Municipal Act, R.S.O. 1990, c. M.45, did not bar Ouellette's action against the town.

B. Facts

(1) The parties and the events

[3] In November 1996, Hearst suspended a small banner across Highway 11 (its main street) as part of its 75th anniversary [page207] celebration. This banner was taken down in 1997. In early 1998, a promotional banner for a "Challenge Canada" skidoo race was installed. The banner was suspended across the highway from two utility poles which Hearst had erected in the road allowance, one on each side of Highway 11. The poles were secured by steel wires known as "guy wires". A steel cable ran from the top of one pole to the top of the other. The top edges of the banner were tied to the cable; the bottom edges were tied to the poles with nylon rope.

[4] February 17, 1998 was a very windy day in Hearst. The nylon rope tying the banner to the south utility pole detached from the pole and dangled near the centre of Highway 11.

[5] At approximately 1:00 p.m., Fabien Ouellette was travelling in the eastbound lane and Richard Bergeron was driving westbound in a vehicle owned by his employer, Villeneuve Construction Company Limited ("Villeneuve Construction"). Both drivers noticed the nylon rope dangling a few feet from the ground. Bergeron moved to the right to avoid the rope. The rope struck the driver's side mirror, which turned in and struck the door of his vehicle. Bergeron immediately pulled over to adjust the mirror.

[6] The top of the utility pole on the south side of the highway snapped off. It was approximately 28 feet in length. It fell toward the highway and struck the roof of Ouellette's van. Ouellette's left side hit the van door and his left knee struck the steering column or wheel. Ouellette drove away from the accident. He finished his shift at the town's lumber mill, where he worked as a stack operator.

(2) The litigation

[7] On June 17, 1998, Ouellette delivered written notices to Hearst, Bergeron and Villeneuve Construction advising that he intended to sue for damages for personal injuries as a result of the accident. Ouellette issued a Statement of Claim on October 25, 1999, approximately 20 months after the accident. The action against all three defendants was framed in negligence.

[8] The trial judge found that Bergeron reacted as a reasonable prudent driver would in the circumstances of the accident. As a consequence, he held that Bergeron and his employer, Villeneuve Construction, were not negligent.

[9] With respect to Hearst, the trial judge rejected its contention that Ouellette's action against the town was barred by the limitations set out in ss. 284(2) and (3) of the Municipal Act.

[10] On the merits, the trial judge concluded that "Ouellette has not succeeded in establishing on a balance of probabilities [page208] that the dangling rope had anything to do with or was a proximate cause of the accident."

[11] The trial judge then turned to a consideration of whether Hearst was negligent in the erection and use of the utility pole that had snapped and fallen onto Ouellette's van. He reasoned:

Cyprien Lachance had passed by on his grader an hour before the accident. He noticed that the pole on the South side of the highway was swaying in the wind. He was concerned that it might fall and so he asked his dispatcher to alert Hearst before an accident occurred. He felt that, even though it was windy that day, the pole was moving more than one would expect if the guy wire were still attached. He did not see a rope dangling from the banner at that time.

Bergeron testified that an hour later it was still very windy and the post was still shaking in the wind. Other evidence also indicates that this was an [un]usually windy day. Wind alone, however, does not break off the top of utility poles. Maybe:

(a) this banner was too heavy;

(b) it caught too much wind;

(c) the pole was deficient; or

(d) the guy wire, like the rope at the bottom of the banner, had detached

or several of these items acting concurrently were the proximate causes of this accident.

Ouellette does not have to show why the pole broke but only that it could not have done so without negligence on Hearst's part. Hearst has not met the evidentiary burden of rebutting that presumption. The evidence satisfies Ouellette's legal burden of establishing negligence on a balance of probabilities: this installation was insecure and so Hearst was negligent.

[12] The trial judge then reviewed the evidence and concluded that the accident had caused injuries to Ouellette's back and left knee. He assessed damages at $562,800 as follows:

(a) general damages $ 110,000 (b) past loss of income $ 78,800 (c) future loss of income $ 320,000 (d) past loss of household services $ 9,000 (e) Future loss of household services to 2015 $ 20,000 (f) Future loss of household services from 2016 onwards $ 25,000

[13] Hearst appeals the trial judge's decision. [page209]

C. Issues

[14] The issues on appeal are:

(1) Did the trial judge err by failing to conclude that the respondent's action was precluded by s. 284(3) of the Municipal Act?

(2) Did the trial judge err by failing to conclude that the respondent's action was barred by the three-month limitation period in s. 284(2) of the Municipal Act?

(3) Did the trial judge err by reversing the onus and imposing a burden on the appellant to disprove negligence?

(4) Did the trial judge commit palpable and overriding errors in his assessment of the evidence, especially in relation to the respondent's credibility?

(5) Did the trial judge err in permitting two doctors to give opinion evidence about one aspect of the respondent's injuries?

D. Analysis

(1) Section 284(3) of the Municipal Act

[15] Hearst contends that Ouellette's action is precluded by s. 284(3) of the Municipal Act:

284(3) No action shall be brought against a corporation for the recovery of damages caused by the presence or absence or insufficiency of any wall, fence, guard rail, railing or barrier, or caused by or on account of any construction, obstruction or erection or any situation, arrangement, or disposition of any earth, rock, tree or other material or object adjacent to or in, along or upon any highway or any part thereof not within the travelled portion of such highway.

(Emphasis added)

[16] Hearst submits that the utility pole that it placed on the south side of Highway 11 was an erection or object not within the travelled portion of such highway. Accordingly, s. 284(3) applies and precluded Ouellette's action against Hearst.

[17] I disagree. In my view, the plain meaning of s. 284(3) makes it clear that it is inapplicable to this case. Ouellette's injuries were not caused by the erection of an object not within the travelled portion of the highway. Rather, they were caused by Hearst's alleged failure to properly secure and maintain the pole, which broke, fell and struck a van travelling on the highway. [page210]

[18] In Wahl v. Listowell (Town) (1988), 40 M.P.L.R. 276, [1988] O.J. No. 2860 (QL) (Dist. Ct.), the plaintiff sued the Town of Listowell for damage to her house and porch caused by a falling tree. The plaintiff alleged that the damage was sustained because of the town's negligence when it uprooted a tree located immediately adjacent to the travelled portion of the highway on a road allowance next to the plaintiff's property.

[19] The town invoked s. 284(3) of the Municipal Act. Mullen D.C.J. rejected the town's submission. He said, at p. 279 M.P.L.R.:

In this case, in my opinion, the disposition of the tree is irrelevant, it is the falling of the tree on the plaintiff's land that is complained of. I therefore find that s. [284(3)] of the Municipal Act is not a bar to the claim of the plaintiff.

[20] I agree with this analysis. The purpose and language of s. 284(3) is to protect municipalities from actions where drivers leave the highway and strike an object erected or constructed by the municipality adjacent to the highway. In the present case, s. 284(3) would have precluded Ouellette's action if he had driven off the highway and struck the utility pole where it had been placed. That is not what happened; Ouellette was injured when the pole struck his van while he was driving it on the highway. In short, s. 284(3) seeks to protect municipalities from actions brought by drivers who go where they are not expected to go (off the highway); it does not protect them from injuries to persons in vehicles on the highway.

(2) Section 284(2) of the Municipal Act

[21] Ouellette's action against Hearst was framed in negligence. The limitation period for a negligence action at the time of the accident was six years: see s. 45(1) of the Limitations Act, R.S.O. 1990, c. L.15.

[22] Hearst contends that the label Ouellette attaches to its action is not determinative of the limitation period issue. I agree. Although a plaintiff may assert a common law action against a municipality, if the factual underpinning of the claim amounts to an allegation of breach of any duty imposed on the municipality by the Municipal Act, the action will be subject to any limitation period that corresponds to the statutory duty: see Mero v. Waterloo (Regional Municipality) (1992), 1992 7711 (ON CA), 7 O.R. (3d) 102, 89 D.L.R. (4th) 533 (C.A.) at pp. 110-11 O.R.

[23] Hearst then contends that its conduct potentially comes within its duty, pursuant to s. 284(1) of the Municipal Act, to keep the highway in a reasonable state of repair. If this assertion [page211] is accepted, it would necessarily follow that the corresponding limitation period in s. 284(2) -- three months -- would apply because, as Carthy J.A. stated in Mero at p. 106 O.R., ss. 284(1) and (2) "necessarily move together". Accordingly, Hearst submits, Ouellette's action against Hearst should have been dismissed because it was brought 20 months after the cause of action arose.

[24] The relevant provisions of the Municipal Act are:

284(1) The council of the corporation that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in light of all the circumstances, including the character and location of the highway or bridge.

(2) No action shall be brought against a corporation for the recovery of damages occasioned by such default, whether the want of a reasonable state of repair was the result of nonfeasance or misfeasance, after the expiration of three months from the time when the damages were sustained. [see Note 1 at the end of the document]

[25] The jurisprudence on the scope of the duty of a municipal corporation to keep its highways in repair is extensive. Hearst cites a number of cases in support of its claim that Ouellette's action falls within the scope of an action for non-repair: Mero, supra; Ferguson v. Southwold (Township) (1895), 27 O.R. 66 (C.A.); Marchand v. Duff, 1942 324 (ON SC), [1942] 1 D.L.R. 520, [1941] O.W.N. 462 (H.C.J.), affd [1942] O.W.N. 123 (C.A.); Couch v. Louise (Municipality) (1907), 1907 184 (MB CA), 16 Man. R. 656 (C.A.); Gougeon v. Foley (Township) (1977), 1977 1235 (ON SC), 16 O.R. (2d) 625, 78 D.L.R. (3d) 733 (H.C.J.); Van Nice v. Calgary (City) (1979), 24 A.R. 385, [1979] A.J. No. 797 (QL) (S.C.T.D.); and Hartley v. Ottawa (City) (1932), 41 O.W.N. 301 (H.C.J.).

[26] The scope of the duty to repair has been defined in broad terms. In Mero, Carthy J.A. explained at p. 110 O.R. that "[i]t has been said to be so broad as to encompass 'something wrong . . . in [the municipal corporation's] highway' (Brown v. Toronto (City) (1910), 21 O.L.R. 230 at 233 (Div. Ct.), at p. 234)." In the cases cited by Hearst, a wide array of circumstances was held to constitute "something wrong in the highway". The circumstances include a rail projecting above the pavement (Hartley), a rod projecting into a lane of traffic (Van Nice), chains and barbed wire stretched out over the surface of a highway (Couch, Gougeon), and trees extending into the travelled portion of a [page212] highway (Ferguson, Marchand). The principle that emerges from these cases is that the duty of a municipality to keep its highways in repair includes an obligation to regularly inspect those highways for obstacles. If there is an obstacle on or extending over the travelled portion of a highway, the municipal corporation responsible for that highway has a duty to remove the obstacle. If the municipality breaches that duty, an individual injured by the obstacle may bring an action for non- repair against the municipality.

[27] The specific factual circumstances of this case do not fit within the ambit of non-repair of a highway. In every case cited by Hearst on this issue, the municipality's breach of its duty to keep one of its highways in repair stemmed from its failure to properly inspect the travelled portion of that highway. In this case, Hearst had no opportunity to inspect the highway and remove the snapped-off portion of the pole: Ouellette was injured at the very moment the pole snapped apart. Up until the moment the pole snapped, it did not constitute "something wrong in the highway". Even if Hearst performed daily inspections of the travelled portion of the highway, it could not have prevented the accident which occurred in this case. I conclude, therefore, that the accident did not occur as a result of any failure on the part of Hearst to properly inspect the travelled portion of its highway for obstacles.

[28] Hearst's failure to prevent Ouellette's accident could only qualify as a breach of its duty to keep its highways in repair if that duty included an obligation to inspect and maintain objects outside the travelled portion of the highway that could potentially fall onto the travelled portion of a highway. None of the cases cited by Hearst stands for the proposition that a municipality's duty to keep its highways in a reasonable state of repair extends quite that far.

[29] There is a second, and different, observation about the case law cited by Hearst that should be made. Most of the cited cases are fairly old. They were decided at a time when there was little scope in the common law for actions against municipalities for keeping their highways in a reasonable state of repair. Accordingly, courts tended to interpret the duty in s. 284(1) in a broad fashion. As explained by Carthy J.A. in Mero at p. 106 O.R.:

What we see historically is that the law in Ontario has developed on the assumption that there is no common law liability upon a municipality respecting maintenance of highways except for nuisance and, as the natural evolution of what might have been termed a very restrictive statutory cause of action in s. 284(1) has progressed, the courts have been [page213] increasingly liberal in the interpretation of what constitutes non-repair of a highway.

[30] There is no longer a need to stretch the wording of s. 284(1) to ground what are, in reality, proposed negligence actions against municipalities. That is because in Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228, 64 D.L.R. (4th) 689, the Supreme Court of Canada held that the traditional tort law duty of care could apply to a government agency respecting the maintenance of highways where there was no express statutory duty imposed. In the wake of Just, s. 284(1) need not be interpreted to cover a situation that amounts to an extension of the statutory duty to repair; rather, an action against a municipality in this context can proceed as a negligence action, as pleaded in this case. It follows that the limitation period for negligence actions -- six years at the time of the accident (now two years) -- is also applicable.

[31] For these reasons, I conclude that the trial judge did not err by holding that the limitation period in s. 284(2) of the Municipal Act was inapplicable in this case.

(3) Negligence [see Note 2 at the end of the document]

[32] Hearst contends that the trial judge reversed the onus of proof on the negligence issue. It cites this passage in the trial judge's reasons:

Ouellette does not have to show why the pole broke but only that it could not have done so without negligence on Hearst's part. Hearst has not met the evidentiary burden of rebutting that presumption. The evidence satisfies Ouellette's legal burden of establishing negligence on a balance of probabilities: this installation was insecure and so Hearst was negligent.

[33] I disagree. Negligence can be inferred in appropriate cases. In his leading text, Canadian Tort Law, 7th ed. (Markham: Butterworths, 2001), Justice Allen Linden, the dean of Canadian tort law scholars, states at p. 236: "If, in the ordinary course of events, an accident would not occur in the absence of negligence, a court might infer negligence." Linden then proceeds to a discussion of seventeen cases under the heading "Falling Objects" in which courts have inferred negligence.

[34] In the present case, the trial judge carefully reviewed a number of factors surrounding the erection and maintenance of the utility pole and the decision to hang a banner across the [page214] highway from the two poles. He concluded that any of these factors, either alone or concurrently, rendered the pole insecure and caused the accident. In my view, this reasoning amounted to proper inference drawing; it was not reversing the onus of proof.

[35] I observe, parenthetically, that the trial judge did not mention or follow the analysis in Just. However, implicit in his conclusion that "this installation was insecure" is a municipality's duty to secure and/or maintain a utility pole that it erected in close proximity to a major highway running through the municipality. Moreover, although the trial judge did not mention the policy decision/operational decision dichotomy set out in Just, it is clear in this case that Hearst's decision to erect the utility pole was an operational decision which could ground an action in negligence.

(4) The respondent's credibility

[36] Hearst contends that the trial judge ignored or misapprehended Ouellette's evidence on three issues: (1) his position on whether he intended to return to work; (2) the cause and seriousness of the injury to his left knee; and (3) the reason he quit work in March 2001.

[37] I disagree. The trial judge's review of Ouellette's evidence about his physical injuries and employment situation was careful and relatively comprehensive. Indeed, in important respects the trial judge assessed damages on a basis quite favourable to Hearst. For example, on the employment issue, he said:

It is likely that he will attempt a return to work. None of the medical experts has said that he is incapable of working at present. Ouellette himself wants to return to work; he indicated to his doctor that he would be returning to work in January, 2002, which, coincidentally, is immediately at the conclusion of this trial.

[38] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, at p. 255 S.C.R., p. 590 D.L.R., a case involving, incidentally, a claim of negligence against a municipality, Iacobucci and Major JJ. observed that "although the same high standard of deference applies to the entire range of factual determinations made by the trial judge, where a factual finding is grounded in an assessment of credibility of a witness, the overwhelming advantage of the trial judge in this area must be acknowledged." I can see nothing in the trial judge's assessment of the evidence, including Ouellette's testimony, that comes even close to being a palpable and overriding error, which is the hurdle Hearst must clear. [page215]

(5) Medical opinion evidence

[39] Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires that a party intending to call an expert must serve on every other party a report setting out his or her qualifications and testimony. Dr. Bertrand Proulx, Ouellette's treating physician, and Dr. D.J. Ogilvie-Harris testified for Ouellette. Dr. Ogilvie-Harris delivered an expert report; Dr. Proulx did not. Hearst contends that the trial judge erred by permitting Ouellette's counsel to solicit expert evidence from the two doctors on the issue of whether there was a causal nexus between the injury to Ouellette's left knee and the subsequent injury to his right knee.

[40] I disagree. The trial judge did not permit Dr. Proulx to testify as an expert and give opinion evidence. The trial judge ruled that Dr. Ogilvie-Harris' opinion about the causal link between the injuries to both knees came within the four corners of his report which had been served pursuant to rule 53.03. Finally, and importantly, the trial judge did not mention an injury to the right knee in either his causation analysis or his assessment of damages. In short, this issue is a red herring.

E. Disposition

[41] I would dismiss the appeal. The respondent is entitled to his costs of the appeal on the partial indemnity scale, which I would fix at $30,000, inclusive of disbursements and GST.

Order accordingly.

Notes

Note 1: I observe that this limitation period is not contained in the current Municipal Act, 2001, S.O. 2001, c. 25. Rather, the two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, would apply to a municipality's breach of its duty to repair and other actions in negligence against a municipality.

Note 2: At the appeal hearing, the panel did not call on the respondent to make submissions on issues 3, 4 and 5.