Court File and Parties

COURT FILE NO.: CV-14-2514-00 DATE: 2016 05 26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carla Campana, Plaintiff AND The City of Mississauga, and Peel Condominium Corporation #89, Defendants

BEFORE: Fragomeni, J.

COUNSEL: Mark Fahmy and Menreet Salama, for the Plaintiff Avril Allen and Laura M. Day for the Defendant, The City of Mississauga Joseph Lin and Connor O’Neil, for the Defendant, Peel Condominium Corporation #89

HEARD: February 24, 2016

Endorsement

Nature of the Motion

On behalf of the City of Mississauga

[1] The City moves pursuant to Rule 20 of the Rules of Civil Procedure for an order dismissing the action and all counterclaims against it. The City grounds its motion on the following basis:

(a) that the boulevard was in a reasonable state of repair in the circumstances and therefore no liability flows to the City under s. 44(1) of the Municipal Act, 2001, S.O. 2001, c. 25

(b) alternatively, the City states that it has two complete defences to any finding of non-repair by reason that:

(i) it did not know and could not reasonably have known about the alleged “non-repair” and

(ii) it took all reasonable steps to prevent the claimed “non-repair” from arising: see ss. 44(3)(a) and (b) of the Municipal Act.

On behalf of Peel Condominium Corporation #89 (“PCC89”)

[2] PCC89 also moves for summary judgment on the following basis:

(a) the slip and fall occurred on a municipal road allowance and there is no evidence that PCC89, an adjacent property owner, was an occupier of the premises

(b) even if PCC89 could be held to be an occupier, there is still no evidence that PCC89 failed to do anything that they reasonably ought to have done and therefore, there is no triable issue as to their liability.

Overview of the Circumstances of the Trip and Fall

[3] This action arises out of a trip and fall incident which occurred on July 8, 2009. The Plaintiff was walking in or near the property municipally known as 98 Falconer Drive in the City of Mississauga, the address of PCC89.

[4] The Plaintiff was visiting her father who lived at PCC89. After she left his residence she walked to her car. She was walking in the area between the sidewalk and Bow River Crescent (the Boulevard) when she stepped into a hole and tripped. Her injuries included a fracture of her fibula.

[5] The Plaintiff’s Examination for Discovery was held on December 14, 2012. The following exchange is informative as it gives context to the analysis that follows:

Q. How many steps had you taken after leaving the sidewalk? A. Just a couple, I think. Q. Where were you looking? A. At my car, straight ahead. Q. Had you walked over the same area where the accident occurred previously? A. The general area, yes. Q. Tell me how the accident occurred? A. I was walking to my car from my dad’s house. I stepped on the grass and the next thing I knew I was on the floor. I felt my foot kind of go into the ground and then I fell. Q. Which foot went into the ground? A. The left foot. Q. How far into the ground did it go? A. I don’t recall exactly. Q. Would it have gone past your ankle? A. No. Q. Did your whole foot go into the ground? A. No. Q. Was it just your toe? A. I don’t know. Q. Do you know if it was more than half of your foot that went into the ground, or approximately half, or less? MR. D’SOUZA: If you don’t know, you don’t know. THE DEPONENT: I don’t know.

BY MS. ALLEN: Q. It was less than the whole foot? A. Yes. Q. Did you have any problems getting your foot out of the hole? A. I couldn’t move my foot. Q. Why did you step in the hole? Why didn’t you avoid it? A. I didn’t see it. Q. You weren’t looking down at the ground? A. No. I was just looking straight ahead as I walked. Q. Did you make observation of the hole after you fell? A. Yes. Q. Can you, please, describe its appearance? A. It was a circle. I can’t say anything else. I don’t know the exact length of it. I believe there’s a photograph. I don’t want to say the inches because I’m bad with numbers like that, to say how many inches wide it was. I’m not sure. Q. Was the diameter bigger than like a coffee mug? Was it like a salad bowl? MR. D’SOUZA: You could use your hands based on what you say, for the size. THE DEPONENT: Okay, so I would say it was about that big, maybe, about that big. MS. ALLEN: What is that, two by two? MR. D’SOUZA: Inches, I’d say more like four, no, three by three? THE DEPONENT: Maybe.

BY MS. ALLEN: Q. Are you able to draw the size of the hole on a sheet of paper? A. I don’t want to say that it is because I don’t know for sure. MR. D’SOUZA: If she’s not sure, Counsel, I don’t think I’ll allow it.

BY MS. ALLEN: Q. All right, but it was big enough for your foot to get in? A. Yes. Q. What’s your shoe size? A. Ten. Q. Did you see dirt in the hole? A. I didn’t see anything. I just saw grass as I was walking. Q. After the accident you say that you looked at the hole and it was a circle – A. Yeah. Q. -- that was the size that you tried to depict, which your counsel described as three by three. What was the appearance of that circle? Was it a dirt circle? A. It was just like folded grass. It was all lined with grass. Q. Was the grass the same length as the other surrounding grass in the area? A. I don’t recall. Q. Was the grass covering the hole, basically? A. Yes. Q. Was the appearance of the area such that it blended in with the rest of the boulevard? A. Yes. Q. Had the area looked like it had been moved, the grass had been cut, or was it growing wild? A. No, it was cut. Yes. Q. After the accident, did you point to the hole when he came to where you were? A. He asked me how I fell and I said my foot got caught on something, and that’s when he looked down and then he kind of moved the grass, and saw the hole. Q. Did he do anything to alter the scene? A. He put a rock on top of the hole, so nobody else would fall.

[6] Upon being informed of the accident by the Plaintiff’s father, the property manager for PCC89 directed his landscaper to fill the hole with soil. The hole was filled with a small bucket of soil as it was not a big hole.

[7] In her affidavit sworn November 30, 2015, the Plaintiff sets out the following regarding the size of the hole:

As I was walking towards my car, my entire foot went into a hole which caused me to fall and sustain serious and permanent injuries including but not limited to fracturing my fibula.

Currently and at the time of the incident, I wear a size ten shoe. Attached hereto and marked as Exhibit ‘A’ to this my affidavit is a trace outline of my size ten shoe that I am currently wearing.

It is impossible for my foot to have fallen completely in hole that has dimensions of only three by three inches. Attached hereto and marked as Exhibit ‘B’ to this my affidavit is a figure with dimensions of three by three inches. Also, attached hereto and marked at Exhibit ‘C’ to this my affidavit is a figure of my shoe outline, transposed on an outline of a figure with three by three inch dimensions.

Position of the City

[8] The City submits that the following facts support its position on the issue of liability:

(a) the City conducts inspections of its sidewalks, on foot, every one to two years. The adjacent boulevards are not inspected during that foot patrol, however, inspectors note and report any hazards on the boulevard that come to their attention.

(b) the City’s roads are patrolled by vehicle in accordance with the minimum maintenance standards for municipal highways. Road patrollers also note and report any obvious hazards on the boulevard.

(c) municipalities do not specifically inspect boulevards on a routine basis.

(d) there is no record of any service requests for 98 Falconer Drive. The City had no knowledge of the hole until it received the notice of claim from the Plaintiff.

(e) the boulevard was inspected by PCC89 on a weekly basis. PCC89’s landscapers also cut the grass on the boulevard on a regular basis. The landscapers were required to report any issues, including holes in the ground, to PCC89’s property manager.

(f) the boulevard is also inspected by PCC89’s property manager on a monthly basis.

(g) a 3 x 3 inch hole covered with grass could not reasonably have been detected by any cost-effective system of inspection. The City had no reason to conduct more detailed inspections of the boulevard.

(h) the City required any third party contractor working within the municipal road allowance (which includes the boulevard) to obtain a permit from the City. The only record of a permit being issued at or near the loss location is that of Enersource Corporation.

(i) Enersource Corporation has already been released from the action as it is impossible for it to have caused the subject hole, given that any holes created by Enersource Corporation would have been drastically larger than 3 x 3 inches (in the realm of 1 x 2 meters), and no work was conducted on the subject boulevard by Enersource Corporation prior to the date of loss.

(j) the evidence of the Condominium Corporation’s witness also supports this fact, in that he advised that the subject hole was not consistent with construction work being done.

[9] The City argues that summary judgment dismissing all claims against it is appropriate and that the evidentiary record at this motion permits the court to make the following findings of fact:

(a) the boulevard was in a state of reasonable repair such that there are no grounds for a finding of liability against the City

(b) if a state of non-repair is found to have existed:

(i) the City did not know and could not have reasonably known of any non-repair, as the hole was not visible. It could not have been detected by any cost-effective system of inspections

(ii) the City took reasonable steps to prevent any non-repair

Position of PCC89

[10] PCC89 submits that the following factors support its position that no liability can attach to it:

(a) the evidentiary record does not support the following findings of fact that the plaintiff must establish in order to succeed:

(i) PCC89 was the occupier of the premises where the incident occurred

(ii) what reasonable steps an occupier would have taken in the circumstances

(iii) PCC89, as the occupier of the premises, failed to take those reasonable steps

(b) the hole was on the City’s boulevard not on PCC89’s property. An adjacent property owner can only be held liable for incidents occurring on municipal property if he has control over the property or allows a condition on his property to flow onto the municipal property and create a danger

(c) there is no evidence PCC89 knowingly occupied or had control of the municipal boulevard. PCC89’s involvement with the boulevard was limited to mowing the lawn for aesthetic reasons only

(d) even if PCC89 was an occupier of the municipal boulevard, the plaintiff must still adduce evidence as to the proper standard of care. In an action under the Occupiers’ Liability Act, the plaintiff is required to set out what steps a reasonable prudent occupier would have taken in the circumstances

(e) the three inch diameter hole was not visible to the naked eye and likely hidden by the grass

[11] In all of these circumstances PCC89, submits that summary judgment dismissing the claim against it is appropriate as there is no triable issue as to their liability.

Position of the Plaintiff

[12] The plaintiff submits that both the City and PCC89 owed a duty of care to the plaintiff and therefore both are liable. The evidentiary record does not support the granting of summary judgment in all of the circumstances.

[13] The plaintiff points to the following factors in support of her position:

(a) the diameter of the hole was significant enough that the plaintiff’s (who wears a size 10 shoe) entire left foot went into the hole

(b) the City admitted that any inspections done on the City boulevards are not guided by any standards or policies

(c) both the City and PCC89 are occupiers of the boulevard. The City owns the boulevard. PCC89 exercised control and responsibility over the boulevard. PCC89 subcontracted maintenance of the boulevard to Arthex, a landscaping company

(d) PCC89 through the services of Arthex Landscaping, not only maintained the boulevard but had control over the state of the land. PCC89 employed Arthex for at least three years, during which time inspections were to be conducted weekly by Arthex and monthly by PCC89’s property manager

(e) upon discovery of the hole, PCC89 ordered Arthex to find and fill the hole.

[14] The plaintiff submits that there is a genuine issue requiring a trial to determine if PCC89 is an occupier under the Occupiers Liability Act. Further, even if PCC89 in not an occupier, PCC89 may still attract liability in negligence.

[15] The plaintiff submits that there is a genuine issue for trial relating to how the accident occurred in relation to the size of the hole considering the size of the plaintiff’s foot.

[16] It is the plaintiff’s evidence that the hole was big enough for her entire foot to get caught in it. The plaintiff also wears a size-ten shoe. As such, the hole was of such a size that it was detectible and rendered the boulevard in a state of non-repair. The City would not be able to claim an exception under the Municipal Act since a “reasonable person” would clearly be able to detect a hole of that size and there is, therefore, a genuine issue requiring a trial and the City’s summary judgment motion ought to be dismissed.

[17] In the alternative, the City submits that it took reasonable steps to prevent the danger from arising by relying on periodic inspections as minimally required. However, from the evidence at discovery, it is clear that the City is negligent in carrying out any kind of inspections on the boulevard. The City admitted that they are not guided by any standards or policies that an inspector must abide by when completing an inspection. The City stated that “boulevards are not directly, typically, inspected” as a general policy for any boulevards in the City of Mississauga.

Analysis and Conclusion

The Law

Test for Summary Judgment

[18] Rule 20.04 of the Rules of Civil Procedure sets out the following:

20.04 (1) Revoked: O. Reg. 438/08, s. 13 (1).

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment. O. Reg. 284/01, s. 6; O. Reg. 438/08, s. 13 (2).

Powers

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3).

Oral Evidence (Mini-Trial)

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 438/08, s. 13 (3).

Only Genuine Issue Is Amount

(3) Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount. R.R.O. 1990, Reg. 194, r. 20.04 (3) ; O. Reg. 438/08, s. 13 (4).

Only Genuine Issue Is Question Of Law

(4) Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge. R.R.O. 1990, Reg. 194, r. 20.04 (4) ; O. Reg. 438/08, s. 13 (4).

Only Claim Is For An Accounting

(5) Where the plaintiff is the moving party and claims an accounting and the defendant fails to satisfy the court that there is a preliminary issue to be tried, the court may grant judgment on the claim with a reference to take the accounts. R.R.O. 1990, Reg. 194, r. 20.04 (5) .

[19] The Supreme Court of Canada, in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, set out a comprehensive review of the test for summary judgment. It is important and informative to set out the guiding legal principles enunciated by the Court. At paras. 49 and 66, the Court set out the following:

49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50. On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2).

Legislative Framework in the Municipal Act 2001

[20] Section 44(1) of the Municipal Act, 2001 states:

The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge. 2001, c. 25, s. 44 (1) .

[21] Sections 44(3)(a) and (b) of the Municipal Act, 2001 state:

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

Definition of Occupier

[22] The Occupiers’ Liability Act defines occupier as follows:

(a) a person who is in physical possession of premises or

(b) a person who has responsibility for and control over the condition of the premises or the activities carried on, or control over persons allowed to enter the premises.

Duty of an Adjacent Property Owner

[23] In Bongiardina v. York (Regional Municipality), [2000] O.J. No. 2751 (C.A.), the Court sets out the following at paras. 19 – 21 and 28 – 29:

19. The question then becomes: is there a common law duty on the owner of the property to clear snow and ice from public sidewalks adjacent to the property? In my view, the answer to this question must be "No". Although the "neighbour" principle from Donoghue v. Stevenson, [1932] A.C. 562, 101 L.J.P.C. 119 (H.L.), has been expanded in recent years to cover a myriad of new relationships, it would stretch it too far if it was applied in the circumstances of this case. A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeowner complies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks. The snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality, not the adjacent property owner.

20. There are two exceptions to this general principle. First, a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. Thus, in Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen. Div.), the court held that a store owner who used the adjacent sidewalk to display its wares on a continuing basis was an occupier of the sidewalk and subject to the duties imposed by the Occupiers' Liability Act. Similarly, in Moody v. Toronto (City) (1996), 31 O.R. (3d) 53 (Gen. Div.), the court held, on a motion for summary judgment, that the owners of the Skydome in Toronto might be an occupier of the public walkways adjacent to the stadium because of the "special circumstances" relating to those walkways, including the almost exclusive use of the walkway by Skydome patrons and the lack of alternatives to the walkways.

21. The second exception to the general principle that a property owner is responsible only for his or her property is that the duty of care on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby. An example of a case in this category would be Brazzoni v. Timmins (City), [1992] O.J. No. 254 (C.A.), where the court held both the City of Timmins and the Toronto-Dominion Bank liable for injuries suffered by a person who fell on snow and ice on a public sidewalk near the bank. Referring to the bank's liability, the court said, at p. 2:

[T]he trial judge found that water flowed from the respondent's property across the sidewalk at the time the plaintiff fell. By allowing the water from melting snow, on the roof of its building and from its parking lot, to accumulate on its property and to run across the sidewalk which was covered with snow and ice, the respondent, in our opinion, created a dangerous condition that it knew or ought to have known could cause injury to pedestrians using the sidewalk. Regardless of whether liability is based on nuisance or negligence, the respondent, in our opinion, is liable.

28. Finally, I note that there does not seem to be any good reason in policy to extend liability to the owners of adjacent properties for accidents on public sidewalks. In an excellent discussion of the relationship between tort law and snow- clearing by-laws in his leading text, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997), A.M. Linden states, at p. 319:

[T]he courts probably do not sympathize with the policy of these ordinances. . . As long as the city is enlisting property owners as deputy street commissioners to assist in its primary responsibility, the court will not object, but when the municipality attempts to relieve itself completely of its obligation, the court refrains from encouraging this. There is also the feeling of unfairness toward the abutter, who is not only made to tend the public sidewalk on behalf of the municipality, but to bear a civil obligation to anyone injured by the omission to do so.

29. For these reasons, I do not think that the motions judge erred when he concluded that the third parties did not owe a duty of care to pedestrians using the sidewalk adjacent to their home. Nor did he err when he decided that the City of Vaughan's by-law did not alter the common law duty. It follows that the motions judge was correct in granting summary judgment to the respondents on the ground that the appellant's third party claim failed to disclose a genuine issue for trial.

[24] The Court of Appeal in Bongiardina carved out two exceptions to the rule that adjacent property owners cannot be held liable for incidents occurring on municipal property. The two exceptions are illustrated in Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen. Div.), and Brazzoni v. Timmins (City), [1992] O.J. No. 254 (C.A.).

Bogoroch Exception

[25] In Bogoroch, a store owner under the authority of a municipal permit used a public sidewalk to display and sell goods. A pedestrian perusing the display tripped and fell. The Court held that as the store owner had knowingly set up his display stand on the sidewalk he was an occupier of that sidewalk and could be held liable, notwithstanding the fact that incident occurred on municipal property.

Brazzoni Exception

[26] In Brazzoni, the Toronto-Dominion Bank allowed water from melted snow to run from its property onto the adjacent sidewalk resulting in a buildup of ice. As the Bank allowed a condition to run from its property to the municipal property, creating a danger, it was held liable.

[27] In Mark v. Bhangari, 2010 ONSC 4011, [2010] O.J. No. 3014 (S.C.J.) Justice Wilson stated the following at paras. 18-22:

18. In the case of Graham v. 7 Eleven Canada Inc., [2003] O.J. No. 544 (Ont. S.C.J.), Justice Sachs considered whether the owner of property next to a municipal sidewalk could be found an “occupier” under the Act. She noted that “absent special circumstances, the owner of land adjacent to a municipal sidewalk is not an occupier of the sidewalk for the purposes of the Occupier’s Liability Act.” In rejecting the argument that “special circumstances” existed which ought to impose liability on the property owner, Justice Sachs stated that “the fact that Monk Realty [the owner of the adjacent property] cleared the snow and ice from the sidewalk also does not render them liable at common last.” I agree with this analysis and the fact that Bhangari mowed the grassy area where the Plaintiff fell is not evidence to support the proposition that he “controlled” the grassy area, as envisaged in the Bogoroch exception. There is no evidence before me that Bhangari had “exclusive” control of the municipal road allowance for many years as submitted by the solicitor for the Plaintiff. Rather, the evidence is that he owned the house next to the grassy area and that he mowed the grass because he believed it was part of his property.

19. I agree with the submission of counsel for the moving parties that if on the facts of Graham, supra, where a store owner is not found to be an occupier of the municipal property located right outside its doors which his customers must use to enter and exit the store, then on the facts of the case at hand, Bhangari cannot be found to be an “occupier” of the grassy area owned by the Municipality which can be used by any member of the public who are not entering or exiting his house.

20. The issue of whether an adjoining owner of property could be found to be an occupier and thus subject to a finding of liability was canvassed more recently by Justice Glithero in Coulson v. Hamilton (City), [2008] O.J. No. 4977 (Ont. S.C.J.). In that case, the parties agreed that an adjoining owner of property may become an occupier if special circumstances are demonstrated. The Plaintiff alleged she slipped and fell on a sidewalk owned by the City. Justice Glithero, in rejecting the argument that the Defendant be found an occupier stated: The fact that the defendant inspected for and took steps to remedy snow and ice on the sidewalk is not enough to make it an occupier…In my opinion, it has not been demonstrated that the defendant Effort is an occupier of the municipal sidewalk in question. Mere assumption of snow clearing from an adjoining municipal sidewalk is clearly not enough. There is no evidence here of that degree of control over the sidewalk so as to deem the defendant an occupier as was shown in Bogoroch…

21. In my view, the actions of the Defendant in the case before me falls far short of what would be necessary to enable a court to find that Bhangari was an occupier of the grassy area where the Plaintiff fell.

22. Counsel for the Plaintiff argues that there are no cases dealing with the same facts as the case before me as the other cases all deal with falls that occurred on municipally owned sidewalks. Thus, it is submitted, since it has not been decided, it constitutes a novel point of law. I do not agree. The law, in my view, has been settled in Ontario since at least 2000 and probably as early as 1994 [Slumski v. Mutual Life Assurance Co. of Canada, [1994] O.J. No. 301 (Ont. Div. Ct.)] that the owner of property adjacent to a public sidewalk is not an “occupier” of the premises within the meaning of the Occupier’s Liability Act and is not liable to others who use the area absent “special circumstances”. There have been numerous cases which have considered what constitutes special circumstances. Each case must be scrutinized based on its facts. Simply because the case before me involves a fact situation that is arguably different than those that have been considered by the courts up to the present time does not mean that this case involves a novel point of law. The issue that the Court must decide is whether on the facts of a particular case a defendant has control, possession or responsibility over municipal property as articulated in Bongiardina, supra. The fact of whether the municipal property was a sidewalk, a grassy area, a road, a trail or any other place where a Plaintiff alleges he or he suffered injury is not determinative in the analysis. I note that many of the cases cited to me by counsel were decided on different fact situations, pursuant to a motion for Summary Judgment.

[28] In Pammett v. McBride Corp., 2013 ONSC 2382, [2013] O.J. No. 1822, R.J. Smith stated the following at paras. 20-26:

20. I agree with the plaintiffs’ submissions that the definition of an occupier of premises is broadly cast under s. 1 of the OLA, to include not only the person or entity that owns or physically possesses the property, but also includes a person who has responsibility for and control over the condition of premises or the activities carried on there or control over the persons allowed to enter the premises. The definition of occupier under the OLA also contemplates that there can be more than one occupier.

21. The case of Jarvis v. Camus, 2001 MBQB 186, 157 Man. R. (2d) 278, dealt with the issue of who was an occupier under the Manitoba Occupiers’ Liability Act. At para. 5, the Master quotes Nurgitz J. at paras. 11 & 13, who stated that there is considerable judicial authority which determines that ownership by itself does not create occupancy. He went on to quote Lord Denning’s findings in Wheat v. E. Lacon & Co. Ltd. (1966), 1 All E.R. 582 at 593 where he described an “occupier” as follows:

It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who come lawfully onto the premises.

22. In Moody v. Toronto (City) (1996), 31 O.R. (3d) 53, at paras. 5‑6, Dambrot J. stated as follows with regards to defining an occupier:

The Divisional Court, in Slumski v. Mutual Life (February 10, 1994) has made clear that in view of this definition, the owner or occupier of a property adjacent to a public sidewalk is not, in respect of the sidewalk, an “occupier” of “premises” within the meaning of the Act, and does not owe a duty of care to users of the sidewalk, absent special circumstances.

The reason that an adjacent owner can be liable in “special circumstances” also flows from the definition of “occupier”. [Emphasis added.]

23. In Moody, ibid, at para. 11, the court found that there were special circumstances which made the adjacent owner an occupier because the walkway in question was used almost exclusively by patrons of the owner’s venue and secondly, a significant number of patrons had no alternative but to use the walkway. Such facts were found to be capable of amounting to special circumstances.

24. In Musselman v. 875667 Ontario Inc. (Cities Bistro), 2012 ONCA 41, at para. 9, the Court of Appeal held that the conduct of the parties over many years in which they were in a landlord‑tenant relationship was also a consideration in determining whether the respondent was an occupier.

25. I find that McBride has not met its onus on a balance of probabilities to satisfy me that there is no genuine issue requiring a trial to determine whether or not it is an occupier under the OLA because its employees assumed responsibility for maintaining the walkway in a safe condition by checking it regularly and salting the walkway outside of the leased premises as required, which constituted the main entrance to the Tim Hortons restaurant. This case is very similar to the facts in Moody, supra, as the entrance way was used almost exclusively by customers of the Tim Hortons restaurant and this entrance/walkway was maintained by employees of McBride.

Disposition of Issue #1

26. I therefore find that there is a genuine issue requiring a trial to determine McBride by its actions had responsibility and control over the condition of the walkway where the fall occurred and therefore was an occupier.

[29] In Gribowski v. Singh, 2013 ONSC 744, [2013] O.J. No. 795, the Court set out the following at paras. 17, and 30-26:

17. The Singhs assert that there is no genuine issue requiring a trial and submit that homeowners, such as the themselves, are free from liability for injuries arising from the failure to maintain municipally owned streets and sidewalks as that responsibility rests with the municipality: Slumski v. Mutual Life Assurance Co. of Canada [1994] O.J. No. 301 (Div. Ct.); Bongiardini v. Corporation of the City of Vaughan, (2000), 49 O.R. (3d) 641 (C.A.). In deciding whether to grant summary judgment, the court must determine whether it can achieve a full appreciation of the evidence and the issues at stake to make dispositive findings on the basis of the motion record, or whether the determinations to be made can only be achieved at trial on a full and tested evidentiary record: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONSC 754, 108 O.R. (3d) 1.

18. The facts in Mark are clearly distinguishable from those in this case. In that case the defendant's activities with respect to the grassy boulevard portion of the road allowance involved simply cutting the grass.

19. Following submissions from counsel, the recent decision of the Court Of Appeal in Haliburton (County) v. Gillespie, 2013 ONCA 40, [2013] O.J. No. 336, came to the attention of the court. Further written submissions were requested from counsel regarding this case.

20. In considering various decisions as to what constitutes the indicia of an occupier, Sharpe J.A. stated at para. 37 of Haliburton:

While clearly not on all fours with the facts of this case, these authorities suggest that the right to use the land and to invite others to do so will not be sufficient to make the right-holder an "occupier". While the right to allow certain individuals (like guests) onto the land will point somewhat toward occupation, if others also have that right then the occupation is less likely. Stronger control over precisely who is permitted or excluded or over the state of the land or the activities carried on there will be required to establish liability as an "occupier".

33. In the present case, the Singhs installed the driveway over the municipal road allowance including the apron area, and they take an active role in winter maintenance of that portion of their driveway extending over the municipal road allowance which allows for their entry on to their property. Their maintenance activities are not simply aesthetic in nature.

34. Further as noted, the Singh acknowledged that they are the primary users of the driveway and treat it as an extension of their property, including that the apron where the plaintiff alleges she fell.

35. I have concluded that the Singhs’ summary judgment motion seeking an order dismissing this action and Mississauga's cross-claim must be dismissed.

36. I have reached this conclusion given that the record discloses that this case appears to involve special circumstances whereby the Singhs may be found to be occupiers of the apron area of their driveway, and as such, they may have a duty to maintain that area. Further, the moving defendants and Mississauga may both be found to be occupiers of the area in question, and as such, may have concurrent duties to maintain the area where the plaintiff alleges she fell.

Conclusion

[30] I am not satisfied on the evidentiary record before me that there are no genuine issues for trial. I am not able to reach a fair and just determination on the merits on the evidentiary record before me. Given the nature of the issues and the findings of fact that must be made, it is my view that a trial is required. The trial judge will be in the best position to assess the credibility of the witnesses and make the necessary findings of fact relevant to the liability issues identified by the parties. Those findings of fact are essential in that the judge is required to apply the law to those facts. Without a complete evidentiary record that task cannot be undertaken by the court. I am not satisfied the evidentiary record is sufficient to fairly and justly adjudicate the issues in this case.

[31] Mr. Donald Eugene Ouellette was examined on behalf of PCC89 on December 14, 2012. He confirmed that Arthex Landscaping was contacted after the trip and fall to find the hole and fill it. He spoke to Chris Campbell, who is the owner of Arthex. Mr. Ouellette stated the following:

A. Yes. I called him directly on his cell phone and I suggested to him “You need to get somebody over and find where this hole is and prep it because I don’t want any other people stepping in it”.

Q. At this time, did you know where the hole was located, specifically? A. I had no clue. To this day, I still have no clue.

[32] The following exchange is also informative:

Q. I should ask you some questions in regard to Arthex Landscaping. What is their role within the area along Bow River Crescent? What is their responsibility? A. They’re the landscape contractor for Peel Condominium 89. The city boulevard and we maintain it only to the point where we cut it, otherwise it’s going to look awful. We cut the grass and that kind of stuff there.

Q. What responsibilities does Arthex Landscaping directly have in regard to Bow River and the boulevard there? A. Whatever is in the contract would be their responsibility, based on the contract. I do expect my landscapers, if there’s a problem, to call me if they see something. They’re not responsible, for instance, if there’s a dead tree. They’re not responsible to prep that dead tree, but they are responsible to let me know about it and then give a quote for it, and we get things done.

Q. If you can kindly explain to me what you expect in terms of inspections? A. I expect them that if they see any problems that they would notify me. It could be dead branches, it could be weeds. It could be anything that would make the landscaping not presentable, or that needs to be looked after. I would expect their crews to notify him and he notify me, and that they are there weekly.

Q. Did they carry out these inspections on a weekly basis? A. Again, you have to ask him that question. I don’t know whether he carries out an inspection. All I know is that I expect them to inform me of these problems.

Q. But you don’t mandate in terms of how often they should do these inspections? You just expect the inspections to be carried out? A. Well, our contract says weekly. They’re weekly. I would expect their foreman to note things and let me know. Actually, not let me know. Let Chris know and Chris should let me know. I expect that.

Q. I just want to make sure I get an accurate idea as to what is included in the inspections. Can you describe to me what would be included in the inspections, to the best of your ability? I know it’s a little bit too all encompassing. A. It’s broad.

Q. It is broad but give it to me in a nut shell? A. We’re talking about landscape contracting that hires people. They cut grass and they trim, and they do all that stuff. I would expect them, it’s pretty obvious if you have weeds growing someplace, those weeds would be removed, or if there is some sort of – chemicals now we can’t use, but back then weed sprays, maybe tree sprays. If there’s a dead branch in a tree, maybe a tree is dead.

Anything to do with landscaping that shouldn’t be there. Normally, I expect them to report it to me.

Q. Within that inspection policy, if there was a hole in the ground would you expect them to inform you about that, as well? A. If they saw it.

It is evident in this brief excerpt of Mr. Ouellette’s discovery that the factual basis to ground PCC 89’s position is not clear. For example, he states: “We cut the grass and that kind of stuff there.” What does that mean? He also states: “Whatever is in the contract would be their responsibility, based on the contract.” What is in the contract? He also states: “They cut the grass and they trim and they do all that stuff.”

[33] In conclusion, I am satisfied that there are genuine issues that cannot be resolved without a trial. There are many issues that can only be determined at trial, including the following:

(1) What was the actual size of the hole that the plaintiff tripped and fell in vis-à-vis the size of her shoe? (2) Did Arthex Landscaping maintain the boulevard beyond the scope of just cutting the lawn? (3) Did PCC89 through the services of Arthex, have control over the boulevard, thereby putting it within the definition of occupier? Did PCC89 take an active role in maintaining the condition or state of the boulevard to such a degree that it was an occupier of the said boulevard? (4) If in fact PCC89 is not found to be an occupier, does any liability attach to it in negligence? (5) Was the City’s general policy on inspecting the boulevard reasonable? (6) Was the boulevard in a reasonable state of repair? If it was not, did the City take all reasonable steps to prevent the claimed non-repair from arising?

[34] The Summary Judgment motions are hereby dismissed.

[35] The parties shall file written submissions on costs within 20 days.

Fragomeni, J.

Date: May 26, 2016