Court of Appeal for Ontario

Date: 20220216 Docket: C69418

Simmons, Pardu and Brown JJ.A.

Between

Robyn Graham and David Mitchell Plaintiffs (Respondents)

And

City of Toronto Defendant (Appellant)

Counsel: Edona C. Vila, for the appellant Joel P. McCoy and Alan C. Preyra, for the respondents

Heard: February 10, 2022 by video conference

On appeal from the order of Justice Eugenia Papageorgiou of the Superior Court of Justice, dated April 6, 2021, with reasons reported at 2021 ONSC 2278, 15 M.P.L.R. (6th) 293.

Reasons for Decision

Overview

1On January 2, 2018 the respondent, Robyn Graham, tripped on a pothole in a pedestrian crosswalk in mid-town Toronto. As a result of the injuries she suffered, Ms. Graham and her husband, the respondent David Mitchell, sued the appellant, the City of Toronto.

2Section 42(6) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A (the “Act”) provides that no action shall be brought for the recovery of damages against the City for its failure to maintain a highway in a reasonable state of repair unless the claimant provides the City with written notice of the claim and the injury complained of within 10 days after the occurrence of the injury. Ms. Graham did not give the City notice of her claim until March 22, 2018, just short of three months after her trip and fall.

3The City moved for summary judgment dismissing the action by reason of Ms. Graham’s failure to provide timely notice.

4The motion judge dismissed the City’s motion, holding that Ms. Graham’s failure to provide the 10-day notice did not bar her action as there was a reasonable excuse for the want or sufficiency of the notice and the City was not prejudiced in its defence: s. 42(8) of the Act. As well, notwithstanding the absence of a cross-motion by Ms. Graham and Mr. Mitchell, the motion judge granted them summary judgment dismissing the City’s statutory notice defence and declaring that the respondents’ action was not statute-barred by s. 42(6) of the Act, a form of the so-called boomerang or reverse summary judgment.

5The City appeals. At the hearing, we dismissed the appeal, with reasons to follow. These are those reasons.

6The City advances two grounds of appeal.

First ground: The summary judgment was the product of an unfair process

7The City submits that the motion judge acted in a procedurally unfair manner by granting the respondents reverse summary judgment in the absence of a notice of cross-motion seeking such relief or notice to the City of the motion judge’s intention to grant such a judgment.

8We are not persuaded by this submission.

9As this court observed in Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, at paras. 11-12, summary judgment motions are intended, in part, to achieve fair and just results. Consequently, where a responding party has not filed a notice of cross-motion that seeks summary judgment against the moving party yet the motion judge intends to grant judgment against the moving party, the court must give the moving party some notice of that litigation risk so that the moving party can address it. The lack of such notice may render any resulting reverse summary judgment unfair.

10There are numerous ways by which a court can ensure that, in the absence of a formal cross-motion, a moving party has notice of the litigation risk of a reverse summary judgment, including: (i) in those judicial regions where scheduling a summary judgment motion must pass through some form of triage or practice court, the motion scheduling request form can inquire whether the responding party intends to ask for a reverse summary judgment; (ii) at the start of a motion hearing, the judge can inquire whether a reverse summary judgment will be sought; (iii) if, during the course of the hearing, the judge forms the view that he or she might grant a reverse summary judgment, the judge should so inform the parties to allow them to respond; or (iv) if, during the course of preparing reasons disposing of the motion the presiding judge forms the view that granting a reverse summary judgment might be appropriate in the circumstances, the judge should so inform the parties and afford them an opportunity to make further submissions.

11In the present case, the motion judge adopted the latter approach. While her decision was under reserve, the motion judge emailed counsel to advise that she usually referred to “some well-established precedents in my summary judgment decisions.” She identified four decisions, providing pinpoint cites to specific paragraphs in each. The motion judge requested that counsel inform her if they wished to make submissions on the cases. Counsel advised that they did not wish to make submissions.

12One of the four cases identified by the motion judge was Meridian Credit Union Limited v. Baig, 2016 ONCA 150, 394 D.L.R. (4th) 601, leave to appeal refused, [2016] S.C.C.A. No. 173, with a pinpoint citation to para. 17, where LaForme J.A. wrote:

17I pause to note that Meridian had not brought a cross-motion asking for summary judgment in its favour. However, the motion judge did not err by granting summary judgment. Counsel for the appellant submitted that all of the relevant evidence was before the court and explicitly invited the motion judge to render a decision in favour of either party. Two recent decisions from this court make it clear that it is permissible for a motion judge to grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief: King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 14-15; and Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, 124 O.R. (3d) 171, at paras. 50-52.

13The motion judge was communicating with counsel for parties, not a self-represented litigant. Her reference to para. 17 of the Meridian Credit Union case clearly put counsel on notice that she was considering granting a reverse summary judgment; there was no other possible reason for the reference. By so doing, the motion judge put the parties on notice of the litigation risk of a reverse summary judgment and afforded them an opportunity to make submissions, which they declined. In those circumstances, we see no unfairness in the procedure followed by the motion judge.

Second ground: The motion judge erred in not finding the respondents’ action barred by s. 42(6) of the Act

14The City submits that the motion judge erred in applying the twofold requirements of s. 42(8) of the Act: reasonable excuse and no prejudice to the City.

Reasonable excuse

15As to the motion judge’s conclusion that Ms. Graham had demonstrated a reasonable excuse for not providing earlier notice, the City contends her analysis was tainted by several errors: misinterpreting s. 42(6); effectively changing the two-prong legal test contained in the Act; and improperly considering Ms. Graham’s subjective awareness of the significance of her injury rather than merely the fact of her injury, thereby wrongfully elongating the 10-day notice period.

16We are not persuaded by these submissions.

17As to the first alleged error, the motion judge’s reasons disclose that she identified and applied the prevailing jurisprudence of this court concerning ss. 42(6) and 42(8) of the Act. Her references to the interpretative principle of reasonableness and the notion of a “modest excuse” were both taken from recent jurisprudence of this court (Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at fn. 4 and para. 75, leave to appeal refused, [2017] S.C.C.A. No. 289). In any event, the reasons clearly indicate that the motion judge never lost sight of the statutory obligation on Ms. Graham to demonstrate a “reasonable excuse”.

18The other two errors alleged by the City essentially amount to asking this court to reweigh the various factors and evidence that led the motion judge to conclude Ms. Graham had demonstrated a reasonable excuse. We see no basis for this court to do so. To determine whether a plaintiff has demonstrated a reasonable excuse, a court must ascertain whether, in all of the circumstances of the case, it was reasonable for the plaintiff not to give notice until she did: Seif v. Toronto (City), 2015 ONCA 321, 125 O.R. (3d) 481, at para. 26, per Hoy A.C.J.O. (dissenting in part, but not on this point). The motion judge’s reasons disclose that she took into account all the circumstances, did not fail to appreciate relevant evidence, did not misapprehend the evidence, and did not draw any unreasonable inferences. In those circumstances, we see no basis for appellate intervention with her finding that Ms. Graham had demonstrated a reasonable excuse.

No prejudice

19The City further submits that the motion judge erred in concluding that no genuine issue requiring a trial exists on the issue of whether the City would not be prejudiced in its defence by Ms. Graham’s failure to give the 10-day notice. We are not persuaded by this submission.

20The motion judge noted that the City’s affiant admitted that the alleged prejudice rested solely on the fact that the City did not take measurements of the pothole before it was repaired. Such measurements would be relevant to any defence by the City that it was not liable for keeping the crosswalk in a reasonable state of repair because at the time of Ms. Graham’s fall it had met the minimum regulatory maintenance standards: Act, s. 42(3)(c). The motion judge identified a large body of evidence that led her to conclude that the delay in giving notice would not prejudice the City in its defence: (i) Ms. Graham took clear photos of the pothole within the 10-day period; (ii) Mr. Mitchell gave evidence that he inspected the pothole on the day of the incident and estimated its depth at six inches; (iii) the City took photos of the pothole on January 19, 2018, seventeen days after Ms. Graham’s fall, in response to a complaint about the hole by another person; (iv) the City field investigator who took the photos determined the pothole required repair, which was quickly done; (v) the City did not adduce any evidence explaining why the field investigator did not measure the dimensions of the pothole, although it had the opportunity to do so; and (vi) the respondents filed an expert report that opined on the dimensions of the pothole using the various January 2018 photos, yet the City did not cross-examine the expert.

21Accordingly, ample evidence supported the motion judge’s conclusion that Ms. Graham had satisfied the “no prejudice to the City in its defence” element of s. 42(8) of the Act. We see no reversible error in that conclusion.

22Finally, we do not accept the City’s argument that the motion judge’s decision somehow gives rise to the spectre of an inconsistent finding being made at trial. The motion judge did not make a finding about the dimensions of the pothole. Her decision does not preclude the City from advancing a defence that the crosswalk was in a state of proper repair based on the minimum standards for pothole repair set out in s. 6 of Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06. Nor does it preclude the trial judge from rejecting the respondents’ expert’s evidence concerning the dimensions of the pothole.

Disposition

23For the reasons set out above, the appeal is dismissed.

24The City shall pay the respondents their costs of the appeal fixed in the amount of $17,500, inclusive of disbursements and applicable taxes.