COURT FILE NO.: DV 554/02
DATE: 2003/12/18
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
(On Appeal from the Superior Court of Justice, Small Claims Court of Northeast Region)
B E T W E E N:
WELDON MOORE aka TED W. E. MOORE
Marc A. J. Huneault, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
CITY OF GREATER SUDBURY
John R. Saftic, for the Defendant (Appellant)
Defendant (Appellant)
HEARD: December 5, 2003
LOUISE L. GAUTHIER, S.C.J.
[1] The City of Greater Sudbury appeals the decision of Vere J., Deputy Judge of the Small Claims Court, dated August 22, 2002, granting judgment to the Plaintiff in the amount of $1,633.27 for damages sustained to the Plaintiff’s vehicle as a result of a pothole on Larch Street in Sudbury, on March 12, 2001.
[2] There is no dispute that the Plaintiff’s vehicle was indeed damaged by a large pothole on March 12, 2001.
[3] If the existence of the pothole results in a finding that the road was in a state of disrepair, then, a prima facie case was made out by the Plaintiff. (See Rogers: The Law of Canadian Municipal Corporations, 2nd ed. (Toronto, Carswell c. Ltd. 1988) Vol.2, pp. 1269 at 1270:
the law is now that whenever it is shown that a road was not in a reasonable state of repair and that damage was caused by want of repair, a prima facie case is established against the municipality…Hence the existence of non-repair of a highway resulting in damage of itself constitutes a prima facie case and a plaintiff is not required to establish negligence. It is rather for the municipality to show that non-repair exists notwithstanding all reasonable efforts on its part to comply with the law. The onus of meeting the prima facie case is on the municipality. This presumption can be rebutted however, by showing the taking of all reasonable precautions to anticipate and remedy such condition, that is, to keep the highway in a safe condition for traffic. The onus may be overcome by evidence of an adequate system of inspection notwithstanding that it failed to reveal a hidden defect.
[4] It was not argued at trial that the road (highway) in question was not in a state of disrepair. Rather, the municipality relied upon the defences available to it pursuant to the Municipal Act, s. 284 which reads as follows:
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.
(1.1) In case of default, the corporation, subject to the Negligence Act, is liable for all damages any person sustains because of the default.
(1.2) The corporation is not liable under subsection (1) or (1.1) for failing to keep a highway or bridge in a reasonable state of repair if it did not know and could not reasonably have been expected to know about the state of repair of the highway or bridge.
(1.3) The corporation is not liable under subsection (1) or (1.1) for failing to keep a highway or bridge in a reasonable state of repair if it took reasonable steps to prevent the default from arising.
Subsections (1.2) and (1.3) are the available defences and such were put forward by the municipality at the trial.
[5] The Notice of Appeal sets out that the grounds for this appeal are, among others, that the trial judge erred in law in finding that the Defendant ought to have reasonably known about the existence of the pothole, while also finding that the Defendant had a reasonable system of street inspection in place. As well, it is submitted that Vere J. erred in law by failing to apply the test set out in s. 284 of the Municipal Act, or that he applied it incorrectly.
[6] The facts are fairly straightforward.
[7] On March 12, 2001, the Plaintiff’s vehicle struck a deep pothole on Larch Street, at approximately 12:00 noon, and sustained damage in the amount of $1,633.27.
[8] Potholes are a reality in Sudbury in the late winter and early spring.
[9] The municipality had budgeted approximately $700,000 in the year 2001, for the inspection and repair of potholes, according to the evidence of Mr. K. Ellis, who supervises the clerical staff in the administrative section of the Operations Division, of the City. He reports on liability issues and he is responsible for ensuring that manpower and material are available for the operations section for the work crews.
[10] It was the evidence of Mr. Ellis that the annual budget for the problem of potholes on the city streets in 2001 translated into 16,824 work hours.
[11] The municipality had 19 foremen assigned to the inspection of roads, sewers and parks; five of those patrolled the area where the damage was sustained.
[12] As well, the municipality had a winter road patrol for potholes and other road related concerns.
[13] Prior to March 12, 2001, City work crews performed inspections and repairs to Larch Street, in the area in question, on three occasions, namely February 12, 15 and 20, 2001.
[14] In addition, there were persons, referred to as “trouble investigators”, who also performed inspections of the road conditions while they were driving the city streets discharging their responsibilities for sewer and water.
[15] And finally, it was the evidence of Mr. Ellis that other individuals, such as transit drivers and police officers do call in to the City to alert the city to potholes and related road concerns.
[16] In addition to the above, the municipality had in place a telephone response system. Members of the public can call in complaints or concerns about such things as road conditions and potholes.
[17] Sometime during the day of March 12, 2001, after the Plaintiff’s vehicle was damaged, the City received two calls about the pothole in question. At 5:35 p.m. a flashing road marker was installed at the location of the pothole, and, the next morning, it was repaired.
TRIAL JUDGE’S REASONS:
[18] The trial Judge made the following findings:
That the municipality did make inspections of the city streets in order to identify and repair potholes, which are a common occurrence during early spring.
Certain repair and restoration work was done on Larch street around the time of the incident and at a location close in proximity to the site of the loss.
The city had in place a reasonable system of street inspections.
There was no evidence to establish when the pothole formed.
There was no evidence that the pothole was recent or fresh.
The City ought to have known about this pothole.
[19] In order to succeed on this appeal, the City must establish that the trial Judge made a palpable error.
[20] With the greatest of respect for the trial judge, I conclude that he did err.
[21] The Judge’s Reasons indicate his conclusion that the pothole was not a recent one. At page 3 of his Reasons, he said:
Given the extensive protocol in place to locate and repair potholes and the work done on this street, I do not understand how this particular pothole was missed. There is nothing in the evidence to indicate that the pothole was a fresh pothole. There is nothing to indicate whether it was a recent pothole…
As there is no evidence as to when this pothole became visible or posed a problem to the public and as there is no evidence to indicate the pothole was filled with snow, or water to prevent identification as a pothole, I find that the city ought to have reasonably known about the existence of this pothole.
[22] Although there was no evidence as to when this particular pothole developed, and the trial Judge did make this determination, there was evidence to suggest that the problem posed by the pothole was not long-standing.
[23] I say this for the following reasons. The pothole was located on a busy, well-travelled area in the downtown core. The pothole itself was a large one. Yet there was no indication by any city employee, or any member of the public, of the danger posed by that pothole until after the Plaintiff’s vehicle was damaged. On the day the Plaintiff sustained the damage, two calls were received by the City, about the state of Larch Street, and the pothole. The calls were made after the damage was sustained, and by persons other than the Plaintiff.
[24] Given the nature and location of the pothole, one would conclude that it would be detected and reported early after its formation.
[25] The Plaintiff’s vehicle sustained the damage around twelve o’clock, noon. The first call was received at twelve thirty p.m.
[26] The trial Judge appears to have disregarded the evidence about the lack of report about this pothole, on a busy, heavily traveled street, until after noon, on March 12, 2001.
[27] As well, as there was no evidence as to when this pothole first posed a problem for vehicular traffic, the only way in which the City could be found liable is if (a) it had an inadequate inspection system, or (b) the inspections or repairs were inadequately carried out.
[28] The Judge found that there was an adequate system of inspection in place. That finding means that the City had met its onus of establishing that the pothole existed notwithstanding all reasonable efforts by the City to keep the street or roadway in a reasonable state of repair. This is the defence provided for in s. 284 (1.3) of the Municipal Act.
[29] The City did not know about the existence of that pothole until twelve thirty p.m. on March 12, 2001. Therefore, according to section 284 (1.2) of the Act, the City would not be liable unless it ought reasonably to have known about the pothole.
[30] The trial Judge’s conclusion that the City ought to reasonably have known about the pothole is based solely on the existence of the pothole and the lack of evidence as to when it was formed. This is not sufficient in my view to render the City liable for the damage to the Plaintiff’s vehicle. There would have had to be something more, such as evidence of improperly conducted inspection or repair. There was no evidence in this case that the City had inadequately inspected that particular location of Larch Street, or that it had effected a deficient repair at that location.
[31] I would therefore grant the appeal and dismiss the Plaintiff’s claim. In doing so I recognize that the trial Judge was faced with a difficult situation in that he did not hear any evidence from any city employee who actually performed inspections and/or repairs to Larch street at the relevant time. Nor did he hear from any “trouble investigator” or any transit driver or police officer about what they might have observed, at the material time, about the state of disrepair of that location of Larch Street where the Plaintiff’s vehicle was damaged. Such evidence could well have been helpful to the trial judge in his application of the evidence to the Municipal Act.
[32] Counsel are to communicate with the Trial Co-Ordinator, within 10 days, if they wish to address the issue of costs. If they do not communicate with the Trial Co-Ordinator within 10 days, it will be presumed that they have reached agreement on costs.
Louise L. Gauthier
Superior Court Justice
Released: December 18, 2003
COURT FILE NO.: DV 554/02
DATE: 2003/12/18
ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
WELDON MOORE aka TED W. E. MOORE
Plaintiff (Respondent)
- and –
CITY OF GREATER SUDBURY
Defendant (Appellant)
REASONS FOR JUDGMENT
Louise L. Gauthier, S.C.J.
Released: December 18, 2003