Court of Appeal for Ontario

Date: 2018-02-13 Docket: C63342

Judges: Hourigan, Roberts and Nordheimer JJ.A.

Between

Demesew Tabor Kidanemariam, Nahome Demesew, by her Litigation Guardian Seole Aemero Walelegne and Selome Aemero Walelegne personally

Plaintiffs (Appellants)

and

City of Toronto

Defendant (Respondent)

Counsel

Nicholas P. Kapelos, for the appellants

Erin D. Farrell, for the respondent

Heard and released orally: February 13, 2018

On appeal from: the judgment of Justice Thomas Lederer of the Superior Court of Justice, dated January 12, 2017.

Reasons for Decision

[1] This is an appeal of the motion judge's order dismissing the appellants' claim against the City of Toronto arising from a fall on a sidewalk. The appellants also seek leave to appeal the costs award made by the motion judge.

[2] The appellant, Selome Walelegne, sustained injuries when walking in front of a building located at 8 Wellesley Street East, Toronto. Ms. Walelegne testified that she veered briefly off the concrete sidewalk and walked on an adjoining narrow strip that was covered with paving stones. She said that as she was walking on the strip, she felt as if she was pushed. Her foot landed on a section of the strip that was missing a paving stone. Ms. Walelegne then fell to the sidewalk and suffered a shoulder and other injuries.

[3] Ms. Walelegne brought an action in negligence against the City, alleging that it failed to maintain the sidewalk in order to make it safe for pedestrian use. Her husband and daughter asserted Family Law Act, R.S.O. 1990, c. F.3 claims.

[4] The City brought a motion for summary judgment relying on the defences contained in s. 42(3) of the City of Toronto Act, 2006, S.O. 2006, c.11, Sch. A. The motion judge held that the City did not know, and could not reasonably have been expected to have known, about the alleged state of non-repair, given that it was not revealed in its annual walking inspection or in its twice weekly road patrols. There was also no record of complaint about the area. The motion judge further found that the City took reasonable steps to prevent the default from arising. Accordingly, he concluded that the defences in s. 42(3)(a) and (b) of the Act were available to the City.

[5] The appellants submit that the motion judge erred in his application of the summary judgment rule and misconstrued the evidence. We disagree.

[6] The motion judge carefully considered the evidence from the City that it undertook reasonable steps to prevent any default or state of non-repair from arising. That evidence was essentially unchallenged and the motion judge therefore made no error in finding that the City could avail itself of each of the defences in s. 42(3)(a); (b) and (c) of the City of Toronto Act. Those defences are a complete answer to the appellants' claims. There was no need for a trial in these circumstances.

[7] With respect to the motion for leave to appeal the costs award, we are not satisfied that the motion judge erred in principle in making his costs order. The City as the successful party was entitled to its costs of the action and, after a thorough review of the bill of costs, the motion judge made a substantial reduction to the amount claimed.

[8] The appeal is dismissed and the motion for leave to appeal the costs award is denied.

[9] The City did not seek costs of the appeal. Consequently, there is no order for costs of the appeal.

C.W. Hourigan J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.