Court File and Parties

CITATION: Guy v. Toronto (City), 2011 ONCA 689

DATE: 20111107

DOCKET: C53219

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and Blair JJ.A.

BETWEEN

Veir Guy

Plaintiff/Respondent

and

City of Toronto

Defendant/ Appellant

Counsel: Peter C. Williams and Gaynor J. Roger, for the appellant Barry A. Percival, Q.C. and Allan Preyra, for the respondent

Heard and released orally: October 21, 2011

On appeal from the judgment of the Divisional Court (Justice J.R.R. Jennings, Justice T.P. Herman and Justice A.L. Harvison-Young) dated September 22, 2010.

ENDORSEMENT

[1] The City seeks to set aside the judgment of Stong J. dated September 22, 2010, awarding the plaintiff damages for injuries sustained when she slipped and fell on an icy patch in a laneway near the subway stop at Danforth and Greenwood in the City of Toronto.

[2] We would dismiss the appeal.

[3] Section 284 (1) of the Municipal Act requires that the municipality must "keep [a highway] in a state of repair that is reasonable in light of all the circumstances including the character and location of the highway." We do not accept Mr. Williams’ able submission that the trial judge judicially declared the laneway to be a sidewalk. Instead, he found that the laneway – designated as a commercial roadway – was used both as a vehiclar roadway and a pedestrian passageway and the city knew that many pedestrians were using it on a regular basis in that fashion. It was open for him to take this approach on the record. The trial judge therefore declined to apply the seven-day notice requirement that applies to sidewalks, but when it came to determining the standard of care, decided to apply the higher standard of gross negligence that applies in sidewalk cases. This favoured the city and we see no error in these circumstances in his doing so.

[4] The trial judge found on the evidence that the city was grossly negligent. We need not decide whether the standard of gross negligence was called for here. As noted, it favoured the city, and in the particular circumstances of this case, we see no basis for interfering with his conclusion.

[5] The Divisional Court affirmed the trial judge's decision. Again, we see no error.

[6] The appeal is therefore dismissed. Costs inclusive of the motion for leave to appeal, are fixed in the amount of $25,000 all inclusive.

“John Laskin J.A.”

“R.P. Armstrong J.A.”

“R.A. Blair J.A.”