COURT FILE NO.:15169/07
DATE: December 18th 2008
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Laura Rekela-Morrish v. The Corporation of the City of Timmins
BEFORE: The Honourable Mr. Justice Riopelle
COUNSEL: Joëlle Malette for the Applicant
Brian Grant for the Respondent
E N D O R S E M E N T
THE ISSUE:
[1] The Plaintiff sues the Defendant for damages arising out of a slip and fall resulting from a pothole as she was crossing a roadway. The Defendant seeks leave to appeal from the motions judge’s refusal to grant summary judgment dismissing the Plaintiff’s Claim.
[2] Summary judgement is not available when a trial is necessary to resolve a genuine issue of fact; a ‘‘responding party…must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial’’: rule 20.04. The motions court judge said at paragraph 4 of his endorsement: ‘‘Most importantly, upon reading all of the materials filed for this motion, it becomes obvious that the salient facts are not uncontested.’’ If that conclusion is sustainable then summary judgment was not available to the Defendant.
[3] The Defendant relies on answers given by the Plaintiff at her examination-for-discovery in support of its position that all material facts are undisputed. The Plaintiff relies on answers given by her at the same discovery in support of her position that there are material disputed facts; she also relies on statements made in affidavits filed by her and on answers given on discoveries by a representative of the Defendant.
THE EVIDENTIARY RECORD AS TO SOME FACTS:
[4] The evidence indicates that a pothole was repaired in this area 23 days before the incident. There is also a record of the repair of a pothole three weeks following this incident. There was also a third repair of a pothole in the same area around the same time but the exact date of that third repair is still undetermined. The motions judge states that ‘‘a genuine issue for trial arises as to whether the applicable pothole had been properly maintained and repaired by the Defendant.’’ At discovery the Defendant’s representative stated that ‘‘no calls came in in this area on that pothole for two weeks prior to the incident.’’
[5] At paragraph 8 of her October 7, 2007 affidavit the Plaintiff states that ‘‘…Mrs Berdine Charbonneau advised me, and I verily believe, that she and her husband have contacted the City several times over the last few years with respect to the poor road condition…[in this area]. Mrs Charbonneau has specifically complained of the hole in which I fell. She did so prior to and after the incident.’’
[6] The Defendant offers the following excerpts from the Plaintiff’s discovery as admissions that the roadway was safe for vehicular traffic on that day:
- Q. …you say you fell because of this hole, but is it fair to say that this area of the roadway was safe for vehicles to drive on?
A. I guess so…
- Q. Had you ever noticed this pothole when you were driving on Ross Avenue East?
A. No
- Q. Have you ever driven on Ross Avenue East and experienced any problems with bumps or anything like that?
A. Yes. It’s quite bumpy in some places.
- Q. Okay. Do you have any reason to believe that…this pothole ever caused your vehicle to bump like that?
A. No, because I try and miss the potholes when I’m driving.
[7] At paragraph 9 of her October 7th, 2007, affidavit, the Plaintiff swears that ‘‘ ….the Defendant’s photographs do not depict the poor street condition. They do not show the number of cracks, potholes, wear outs and repairs’’ and that ‘‘I do not know whether Ross Avenue East, in the area in question, was safe for vehicular traffic. There are many cracks and potholes in the area. Ross Avenue East is a bumpy road.’’
[8] At paragraph 4 she swears that at the location of the incident ‘‘there are at least 26 potholes that have been repaired, including the one I fell in. There are also a number of wear outs and cracks.’’ At Paragraph 5 she says that ‘‘at the time of the incident, a piece of the pavement had been removed, leaving a dangerous trap to pedestrians and vehicles.’’
[9] The Defendant offers the following excerpts from the Plaintiff’s discovery as admissions that the photos depict the condition of this particular pothole on that day:
- Q. Okay. So, just to be clear, you do agree the photos…show the pothole as it was on June 29, 2006.
A. I believe so. I mean, there could be a lot of potholes…
but in paragraph 9 of her October 7, 2007 affidavit, the Plaintiff states: ‘‘The photographs… depict the pothole on the date photographed by the City. Not on the date of the incident.’’
[10] Pursuant to the Minimum Maintenance Standards for Municipal Highways regulation, a pothole is deemed to be in a reasonable state of repair for vehicular traffic if it falls within a specified surface or depth. A pothole of less than 8 centimetres deep (approximately 3.14 inches) is deemed to be repaired. The Defendant relies on several exchanges at the Plaintiff’s discovery as establishing as an uncontroverted fact that the pothole was only an inch deep. However in her October 2, 2007 affidavit the Plaintiff says ‘‘ I do not agree that the pothole or wear out was 1 inch deep.’’ At discovery the Plaintiff also answered on one occasion that it looked like two inches deep and on at least two occasions that she simply did not know how deep the pothole was at its deepest point.
[11] The Defendant’s position that there is no genuine issue of fact requiring a trial includes the following:
a) the standard of care:
There is no live legal issue because it is well settled law in Ontario that, where a pedestrian choses to use a roadway outside the limits of an area designed for pedestrians, the requisite state of repair of the roadway is qualified only by the requirement that the roadway be reasonably safe for vehicular traffic;
b) the duty of care:
The Defendant’s duty to maintain its roadway is statutorily codified and there is no subsisting common law duty in tort owing to pedestrians;
c) the incident:
The Defendant maintains that the factual circumstances surrounding the mechanics of the incident are undisputed; and
d) the condition of the roadway:
The Defendant maintains that it is clear that the roadway was safe for vehicular traffic.
[12] The Plaintiff does not accept the Defendant’s views with respect to the standard of care or the duty of care. In her view the Court of Appeal has at least twice left the issue open: in Owens v. Brantford (City), [2004] O.J. 6113 it said ‘‘we should not be taken as accepting that a municipality’s duty to repair extends to pedestrians only at areas designated for pedestrian traffic’’ and in Sutherland v. Town of Port Credit et al., [1968] O.R. 175, at paragraph 177, it said ‘‘ We are not to be taken as deciding that in all cases of disrepair outside of the limits of a crosswalk no liability is to be fastened upon a defendant corporation beyond the liability for repair vis-à-vis vehicular traffic.’’ In addition the Plaintiff points out that the minimum maintenance standard immunity applies only to vehicular traffic and not to pedestrians.
[13] In Gluzman v. Toronto (City), [2002] O.J. No 1881 (Ont. S.C.J.) the plaintiff was awarded damages for injuries suffered from a fall while crossing a residential street. The case turned on the general state of the street and not the location of the accident. The municipality was found liable because it failed to maintain the street in a manner suitable for vehicular and pedestrian traffic which could be reasonably expected on a residential street.
[14] The Defendant’s duty is to keep the roadway ‘‘in a state of repair that is reasonable in the circumstances, including the character and location of the (roadway)’’ s. 44(1), Municipal Act, S.O. 2001, c. 25. That duty has generally been interpreted as whether the roadway was reasonably safe for vehicular traffic, which is a question of fact according to Belling v. City of Hamilton, [1902]30.L.R. 318 (Div.Ct) However, it seems possible in some circumstances to extend that duty to pedestrians using a roadway at a location other than a crosswalk: e.g. Gluzman, supra. Road maintenance matters, particularly ones in which a pedestrian seeks to extend a duty on a municipality, should be assessed on a case by case basis, in light of what is reasonable in the circumstances, including the character and location of the roadway.
[15] The motions judge concluded that a trial was necessary to resolve disputed material facts relating to the state of the repair of the roadway, whether it was safe for vehicular traffic that day, and whether the photographs are of the pothole on the date in question. He was also mindful of the possibility that there could be facts that would allow the extension of the Defendant’s duty in this case to pedestrians crossing the roadway. That raises other issues such as was the area in question used by other pedestrians in crossing the street, was that pedestrian use frequent or infrequent, did the Defendant know of this use by pedestrians if it was frequent and, if so, did it maintain the roadway appropriately in the circumstances.
TEST FOR LEAVE TO APPEAL:
[16] Leave to appeal may be granted if either of the two grounds set out in rule R.62.02(4) is satisfied:
‘‘Leave to appeal should not be granted unless,
a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.’’
[17] Even if there may be conflicting decisions relating to the duty and standard of care, this court is not of the view that it is desirable that leave to appeal be granted. The court is of the view that it is desirable that a trial be held to establish a full and accurate evidentiary record for consideration by a higher court if the need arises.
[18] With respect to the second ground, this court is of the view that there is no good reason to doubt the correctness in the result of the dismissal of the request for summary judgment and so, even if the proposed appeal involves matters of importance transcending the immediate interests of the parties and could impact on the development of the law in relation to municipalities’ duties with respect to roadways and their use by pedestrians, leave to appeal is denied.
[19] This court has not been persuaded that there is good reason to doubt the correctness in the result of the order dismissing the motion for summary judgment. On the evidentiary record before him the motions judge concluded that there were genuine issues for trial. If that conclusion is sustainable the summary judgment was not available to the Defendant. The test is not whether this court considers that decision to be wrong or even probably wrong or that it would have decided otherwise. ‘‘The threshold of this prong is that I be satisfied that the correctness of the order is open to very serious debate’’: Ash v. Lloyd’s Corp (1992), 8 O.R. 3rd 282(Gen. Div.) at 284.
The order is not open to very serious debate given the necessity of a trial to resolve some important factual issues.
COSTS:
[20] If the parties are unable to agree as to costs, then either party may, on or before June 30, 2009, arrange for a telephone conference with the trial coordinator at Timmins to set timelines for the delivery of materials and the hearing of the motion.
The Honourable Mr. Justice Riopelle
DATE: Friday May 29th 2009