Court File and Parties

COURT FILE NO.: C-109-14 DATE: 2017/01/03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DEBRA BARBEAU Plaintiff – and – THE CORPORATION OF THE CITY OF KITCHENER Defendant

Counsel: Daniel J. Fife and Maple Anne Cameron, for the Plaintiff Stephen T. Brogden, for the Defendant

HEARD: November 29 and December 1, 2016

Broad J.

REASONS FOR JUDGMENT

[1] The plaintiff Debra Barbeau brings this action for damages for injuries which she sustained as a result of a trip and fall accident on July 20, 2012 on a city-owned sidewalk on Roy Street near the intersection with Queen Street in the City of Kitchener.

[2] The parties have settled on the quantum of the plaintiff’s damages in the amount of $35,000, in respect of general damages, excluding pre-judgment interest, and $1,000 in respect of the subrogated claim of OHIP.

[3] The trial concerned the issue of liability only.

Statutory Framework

[4] The parties did not disagree with respect to the applicable statutory framework for the determination of the liability of the defendant.

[5] The defendant’s exposure to liability derives from s. 44 of the Municipal Act, 2001, S.O. 2001, c. 25 which provides as follows:

Maintenance

44. (1) 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).

Liability

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default. 2001, c. 25, s. 44 (2).

Defence

(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

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c. 25, s. 44 (3).

[6] The parties agree that while s. 44 speaks of “highways and bridges”, sidewalks are included (see Worthey v. City of Hamilton, 2015 ONSC 3690 at para. 77, citing Anderson v. Hamilton (City) at paras.21-23).

[7] A two-step analysis is called for. The first step requires the plaintiff to prove that the sidewalk in question was not kept by the defendant municipality in a state of repair reasonable in the circumstances, including its character and location. If the plaintiff is able to meet this onus the second step presents itself. At the second step, the onus is on the defendant municipality to prove that it can shelter under one or more of the defences afforded to it under subsection 44(3) (see Furlong v. City of Cambridge at para. 16).

Evidence of the Plaintiff

[8] Ms. Barbeau was born on August 1, 1955 and accordingly was 57 years of age at the time of the accident. She resided in the City of Kitchener with two of her four sons and was employed as a financial advisor. She attended a community college for a short time before obtaining a Bachelor of Science in Chemistry and Climatology at the University of Waterloo. She also holds a pilot’s license.

[9] The accident occurred at approximately 4:00 p.m. on what Ms. Barbeau described as a clear and sunny day. She had parked her car on the right-hand side of Roy Street facing Queen Street. She described her position as being a few parking spots from the intersection with Queen Street. From the mapping and photographs entered into evidence, it was apparent that the location was adjacent to a parking area at a property municipally known as 68 Queen Street.

[10] Ms. Barbeau was on her way to the former Superior Court of Justice courthouse at the intersection of Weber Street and Frederick Street. She did not have to be at the courthouse at any particular time and was not accompanied by any other person.

[11] Ms. Barbeau walked around the front of her vehicle and stepped onto the sidewalk to insert coins into the parking meter. She indicated that she was familiar with Roy Street, having been in its vicinity two or three times over the previous six months. She indicated that she had noticed on previous occasions that the sidewalk by an adjacent driveway was broken.

[12] Ms. Barbeau was wearing hiking boots and stated that she had never had an issue with them. She was carrying a canvas bag on her arm and was wearing non-prescription sunglasses.

[13] After inserting coins in the parking meter, she began walking towards Queen Street when the toe of her boot caught on the sidewalk, causing her to fall forward. She landed on her face, hip and hand.

[14] Ms. Barbeau testified that the sidewalk was uneven and her toe caught on a rise at the joint between two concrete slabs. She stated that when her toe became caught at the joint she was looking straight ahead towards Queen Street and did not notice the rise between the slabs before she fell.

[15] After her fall, Ms. Barbeau was unable to get up and was bleeding from her mouth and nose. A stranger stopped to assist her to get up and to retrieve her car keys. In the course of getting up, blood from her wounds splattered on the sidewalk.

[16] Ms. Barbeau testified that she returned to the scene on the next day to take photographs. Prior to returning to the scene she had carried out some research into the applicable minimum standards for sidewalk surface discontinuities and, as a result, formed the opinion that, according to the minimum standards, a surface discontinuity on a municipal sidewalk should not exceed 20 mm.

[17] Ms. Barbeau testified that, in taking photographs, her intention was to show the variance in the levels of the two adjacent sidewalk slabs where she tripped. She placed a one dollar Canadian coin (a “loonie”) at the joint between the two slabs, ensuring that the bottom of the coin was resting on the sidewalk slab and not in the crack between the slabs. She testified that the diameter of the loonie was 26 mm and the height differential between the lower slab, upon which the coin was resting, and the top of the adjacent and higher slab, was at least the same height as the loonie.

[18] At no time did Ms. Barbeau return to take measurements of the surface discontinuity on the sidewalk using any different measuring device or method, nor did she arrange to have anyone else do so on her behalf.

[19] Although the photographs which Ms. Barbeau took of the loonie placed at the joint between the two concrete slabs were taken above the coin and at an angle rather than straight on, she insisted on cross-examination that she had placed the loonie vertically flush against the face of the rise, resting on the top of the lower slab.

Evidence of the Defendant

[20] The defence called William Black to testify. Mr. Black has been employed for ten years as a claims investigator with the Waterloo Region Municipalities Insurance Pool, described as an insurance group which handles all of the insurance requirements of the area municipalities. Prior to commencement of his employment with the Insurance Pool, Mr. Black had been an independent insurance adjuster for over 30 years.

[21] Mr. Black’s duties with the Insurance Pool include investigating external and internal claims made against member municipalities, including claims relating to trips and falls on municipal sidewalks.

[22] Mr. Black first attended at the site of the accident on September 27, 2012 and took a photo of the sidewalk extending along Roy Street adjacent to the property municipally known as 68 Queen Street. By the time of his second attendance on October 25, 2012, Ms. Barbeau’s lawyer had provided him with copies of the photographs that Ms. Barbeau had taken. He testified that he endeavored to take measurements utilizing a carpenter’s square at the same location as was depicted in Ms. Barbeau’s photographs.

[23] Mr. Black placed the carpenter’s square at the location where he believed Ms. Barbeau had placed her loonie, with the end of the ruler resting on the lower slab, the side of the ruler against the rise of the higher slab and the square apparatus attached to the ruler at a 90 degree angle resting on the horizontal plane of the upper slab. From the photograph it appeared that the carpenter’s square was resting without any hand supporting it in that position. Mr. Black leaned the carpenter square over to take another picture which showed the scale on the ruler from the end of the ruler to the bottom of the square apparatus at 16 mm.

[24] Mr. Black then repeated the procedure at a location along the joint between the two slabs adjacent to the opposite (north) side of the sidewalk. The measurement depicted in the photograph taken at that location showed 19 mm, as interpreted by Mr. Black.

[25] Mr. Black repeated the same procedure at a location near the centre of the sidewalk, being to the right (or north) of the location where the loonie was depicted in Ms. Barbeau’s photograph. The measurement taken at that location depicted 11 mm.

[26] Mr. Black testified that none of the three measurements that he took at various points along the sidewalk joint showed a discontinuity of 20 mm or more.

[27] Rachelle Wheatley testified. She has been employed by the City of Kitchener as an Asset Management Technician for in excess of eight years. Her duties include administering the City’s inspection program for its sidewalks and roads. The program was designed by her predecessor in the role and had been ongoing for 14 years. Prior to 2010, the City of Kitchener conducted inspections of all of the sidewalks under his jurisdiction every three years. Since 2010, inspections of all sidewalks have been conducted annually.

[28] Ms. Wheatley stated that the City’s sidewalk inspection program had two purposes, firstly to alert pedestrians of any sidewalk defects and secondly to notify the Operations Department of problems which need rectification.

[29] During the period 2010 to 2012 the city hired two civil engineering students from Conestoga College to carry out inspections of all city sidewalks from May to August. The engineering students received training at the commencement of the inspection season from Ms. Wheatley and Chad Hysie, the Supervisor of Operations responsible for sidewalk repair.

[30] The training of the students had two aspects. The first component was carried out at City Hall where the expectations for the job were reviewed and the students were introduced to and instructed on the operation of the equipment used in the inspection process. The equipment consisted of a computer tablet with GPS embedded in it mounted on an adult tricycle, a surveyor’s measuring stake with a pre-measured line at 20 mm and an orange spray paint gun. The students were taught how to transfer the data collected on the tablet when they returned to the office at the end of each day. The second component of the training consisted of attending with Mr. Hysie, on a street or streets, who showed the students what defects look like, what situations the defects could cause, and how repairs are carried out. Ms. Wheatley and Mr. Hysie demonstrated to the students how to check for and measure defects in the sidewalks and how to mark the locations of defects with spray paint.

[31] The inspection procedure in 2012 called for the students to plan the routes to be inspected daily. They would drive to the area and ensure that the equipment was properly prepared and on each street chosen for inspection they would start at an intersection and work their way along with one student on each side. They would inspect for defects having a discontinuity of 20 mm or more.

[32] In 2012 defects fell into two categories. The first involved discontinuities between 20 mm and 38 mm, each of which was classified as a “trip minor.” A discontinuity over 38 mm. was classified as a “trip major”. The student inspectors were instructed to spray paint each defect and photograph it using the tablet.

[33] At the end of the students’ shift each day at 4:00 p.m., the tablets were connected to the City’s network at City Hall and transferred to a centralized database. At 5:00 p.m each day the data was transferred to the citywide work management system entitled “City Works”. Defects which were identified and logged onto the “City Works” system were communicated to the Operations Department via email notification to permit it to prioritize remedial work.

[34] Ms. Wheatley stated that the purpose of the tablets was to record and note observations of defects made by the inspectors, to locate the observations by GPS and to record the date and time that each defect was found.

[35] The purpose of spray painting defects found by the inspectors was to alert pedestrians of a potential trip hazard and also to help operations crews to locate defects.

[36] Ms. Wheatley indicated that the student inspectors were instructed to look for vertical discontinuities between adjoining sidewalk slabs of 20 mm or greater. They were taught to identify potential defects by visual inspection. If they encountered a vertical discontinuity they may do a “boot kick test” to try to simulate what a pedestrian would experience. The inspectors were always encouraged to measure discontinuities with the measuring stick, however as the students became more experienced they were able to visually determine whether a particular discontinuity should be measured. The 20 mm threshold was utilized because the City had in 2010 adopted the Minimum Maintenance Standards of the Province of Ontario, which provided for maximum discontinuities in sidewalks of 20 mm.

[37] Ms. Wheatley testified that in her experience the student inspectors took their jobs seriously as for most it was their first “engineering” job which they relied upon for favourable performance references.

[38] Ms. Wheatley testified that from May to August she periodically monitored the progress of the student inspectors and if she noted that an area was missed, she would ask them to return to complete that area. She did a final check at the end of the season and if there were any areas missed the students were expected to go back to ensure that all of the sidewalks in the City had been inspected. Her records indicated that no areas were missed in either 2011 or 2012.

[39] Ms. Wheatley produced records from the City’s system depicting the data collected from inspections in the vicinity of the intersection of Roy Street and Queen Street from May 7, 2004 to May 14, 2012. The records included “screen shots” consisting of aerial photographs with overlying yellow dots with accompanying text indicating defects noted on May 17, 2004, July 21, 2006, July 27, 2009 and May 14, 2012. On August 4, 2005, July 7, 2010 and May 24, 2011 “no observation” was noted.

[40] Ms. Wheatley testified that the records indicated that she had herself conducted the inspection on May 14, 2012 when she happened to be training two students at the Roy Street location, which is close to the Kitchener City Hall. She testified that she had “some recollection” of the inspection of Roy Street carried out on that day.

[41] Two defects were noted on Roy Street to the left of the intersection with Queen Street, one opposite the property municipally known as 68 Queen Street and one opposite the property municipally known as 11 Roy Street. The defect noted opposite 68 Queen Street was marked “trip minor replace” which meant that it was between 20 and 38 mm and replacement was recommended. The photograph which Ms. Wheatley took of the defect at this location was entered into evidence and she testified that the defect that she noted was in the bottom centre of the photograph which depicted a broken corner of the sidewalk slab with a wide crack extending from the edge of the short dimension to the edge of the long dimension of the slab, with one wide crack extending from the diagonal crack to the edge of the long dimension and a narrow crack extending from the diagonal crack to the edge of the short dimension.

[42] On cross examination, Ms. Wheatley confirmed that the Provincial Minimum Maintenance Standards adopted by the City required noted defects with discontinuities of 20 mm or more to be treated within 14 days.

[43] Ms. Wheatley described Roy Street as a “small residential street” and stated that it was not as heavy in pedestrian traffic as the adjacent streets. She was not aware of any measurements of pedestrian traffic having been taken of Roy Street.

[44] Although spray painting of a noted defect was typically done, Ms. Wheatley did not have any specific recollection of actually applying the spray paint on the “trip minor replace” defect which she noted on May 14, 2012. She agreed that the photograph taken by Mr. Black of the sidewalk on September 27, 2012 showed no evidence of spray paint having been applied and on that basis the Minimum Maintenance Standard in respect of the defect that she noted had not been adhered to.

[45] Chad Hysie also testified for the defence. He has been employed by the City of Kitchener as an Operations Supervisor since 2007. He stated that his summer duties involved anything related to concrete, including curb and sidewalk repairs.

[46] He stated that defective sidewalks may be repaired in two ways. If a sidewalk slab is cracked or damaged it would be replaced, whereas if a slab were intact it can be repaired by “mud-jacking”, which involves injecting mud under the slab to level it.

[47] The City of Kitchener had approximately 1,100 kms of sidewalk in 2012. At any given time there are 10,000 to 15,000 noted defects which exceed the Minimum Maintenance Standards. On the average, 2,500-3,000 new defects are identified each year.

[48] Mr. Hysie stated that in 2012 the City had 18 employees involved in sidewalk repairs, comprised of 2 mud-jacking crews and 1 replacement crew. In a typical year, 2,500 to 3,000 repairs are carried out. Repairs are prioritized beginning with major defects having a discontinuity of over 38 mm and then minor defects between 20 and 38 mm.

[49] Mr. Hysie stated that the City’s budget for sidewalk repairs is approximately $1.3 million, comprised of $700,000 for operations and between $400,000 to $600,000 in capital money. With existing funding, the City is able to keep up with the repair of new defects but is unable to eliminate the backlog of 10,000 to 15,000 identified defects.

[50] He stated that all defects in the backlog are spray-painted and asphalt repaired at the end of each construction season, which consists of applying an asphalt ramp between slabs having discontinuities.

[51] Mr. Hysie testified on cross-examination that the defect in the sidewalk on Roy Street noted by Ms. Wheatley on May 14, 2012 would not have been replaced or repaired, as it was noted as “minor” (i.e. under 38 mm), but would have been asphalt patched by the end of the construction season of 2012.

[52] He also testified that any defects of less than 20 mm which are not identified as “minor” would not be repaired.

[53] Mr. Hysie testified that the area on Roy Street was repaired in 2014. This resulted from information being provided by the risk management department that Ms. Barbeau had fallen in that vicinity. He indicated that his department does not generate work orders detailing each individual repair and accordingly the work order for the repair would not show details of whether the slab was replaced or was mud-jacked.

[54] Although Mr. Hysie agreed that there was a “fair bit of foot traffic” at the intersection of Roy Street and Queen Street, he did not agree that there was a high volume of pedestrian traffic on Roy Street itself.

Analysis

[55] As indicated above, the first step in the analysis is to determine whether the plaintiff has proven that the sidewalk in question was not kept by the defendant municipality in a state of repair reasonable in the circumstances, including its character and location.

[56] The plaintiff led no evidence in chief respecting the character and location of Roy Street and the sidewalk in question. There was no evidence to displace the characterization by Ms. Wheatley of Roy Street as a “small residential street.” Although Mr. Hysie acknowledged that there was a “fair bit” of foot traffic at the intersection of Roy Street and Queen Street, I took from his testimony in this respect that this foot traffic was primarily on Queen Street, rather than on Roy Street. I find that there was nothing in either May or July 2012 about the character and location of the sidewalk on Roy Street, in the vicinity of where Ms. Barbeau fell, which would identify it as an area requiring special attention and scrutiny in respect of design, construction or maintenance on the part of the City due to high pedestrian traffic.

[57] I find on the evidence that the defect identified by Ms. Wheatley on May 14, 2012 on the sidewalk on Roy Street adjacent to the property identified as 68 Queen Street was not the discontinuity between the concrete slabs which Ms. Barbeau caught with the toe of her hiking boot, as described in her testimony. The defect noted by Ms. Wheatley was the section of broken concrete slab depicted in the photo taken by her and included at Tab 5 of Exhibit 1. It is also depicted in the photograph taken by Mr. Black on September 9, 2012 at Tab 2, Exhibit 1 beside an asphalt parking area and opposite a concrete driveway ramp to the rear of the pickup truck shown in that photograph.

[58] I find that the joint between two slabs where Ms. Barbeau tripped was the second joint above the area of broken slab identified by Ms. Wheatley and adjacent to the grass boulevard depicted in Mr. Black’s photograph of September 27, 2012 (Exhibit 1, Tab 2).

[59] I find that the discontinuity between slabs where Ms. Barbeau caught the toe of her boot and tripped was never identified as a defect in any inspection conducted between May 17, 2004 and May 14, 2012.

[60] In respect of conflict between the measurement of the discontinuity between the adjoining slab utilizing a loonie, as depicted in the photo taken by Ms. Barbeau and included at Tab 5 of Exhibit 1, and the measurements taken by Mr. Black utilizing a carpenter’s square depicted on the series of photographs at Exhibit 1, Tab 3, I prefer the methodology utilized by Mr. Black and find his measurements to be more reliable.

[61] Subsection 44(1) of the Municipal Act requires municipalities to maintain sidewalks under their control in a state of repair which is reasonable in the circumstances. It is apparent that the purpose of this provision, insofar as it relates to sidewalks, is to seek to prevent injury to persons utilizing sidewalks either on foot or by wheeled contrivances authorized to use them, such as wheelchairs, motorized scooters, strollers and buggies. Injuries may be caused by an unreasonable discontinuity or height differential between horizontal planes of sections of sidewalk. It is the differential in the horizontal planes of adjacent sections of sidewalk as experienced by users of the sidewalk that is relevant to the assessment of reasonableness.

[62] The carpenter’s square utilized by Mr. Black had a vertical ruler which was placed on end on the horizontal plane of the lower slab, projecting outwards approximately one inch from the face of the rise on the higher slab. The square apparatus sat flush on the horizontal plane of the higher slab at a 90 degree angle to the ruler. In my view, the use of a carpenter’s square to measure the discontinuity between the two slabs was reasonable and appropriate. Insofar as the carpenter’s square has a scaled ruler, it was designed to be used as a measuring instrument and is capable of measuring the height differential between two horizontal planes.

[63] In contrast, a loonie is not designed as a measuring device. I heard no evidence of how thick a loonie is, but I believe that I can take judicial notice that does not exceed two mm, or if it does, it does not do so by very much. If a loonie were placed against the face of the rise of the upper slab, it would not project out on the horizontal plane of the lower slab by much more than 2 mm. In my view, a loonie is less capable than a carpenter’s square of measuring the discontinuity between adjacent concrete sidewalk slabs as experienced by users of the sidewalk.

[64] Moreover, I find that the methodology utilized by Mr. Black in measuring with the carpenter’s square was reasonable and appropriate. I do not find that he did anything to skew the results of his measurements in order to achieve a desired result, but rather he carried out his investigation conscientiously and fairly. He was not required to tip the square apparatus backwards, as to do so would create, as he testified, an air space between the bottom of the square apparatus and the surface of the upper slab closest to the front edge of the slab. The relevant place to measure the discontinuity, in my view, was between the horizontal plane of the lower slab and the point where the front rise of the upper slab meets the horizontal plane of the upper slab, as that is where a pedestrian would be most likely to catch his or her toe. That was the dimension that Mr. Black measured.

[65] The onus of proving unreasonable repair on the part of the City was on Ms. Barbeau. There was nothing preventing Ms. Barbeau from utilizing a device designed to measure distances between two horizontal surfaces or from arranging for someone else to do so. It is apparent that Ms. Barbeau was content to measure with a loonie and not go further with her investigation because it appeared to support her position that the discontinuity exceeded 20 mm, which she had found as a result of her research to be the standard according to the City’s Minimum Maintenance Standards.

[66] I find, based upon the totality of the evidence, that the discontinuity or height discrepancy between the two sidewalk slabs where Ms.Barbeau fell ranged from 11 mm to 19 mm, with differential at the spot closest to where Ms. Barbeau stuck her toe being 16 mm.

[67] As Justice Glithero noted in Worthey at para. 81 it is a question of fact in each case whether a condition of non-repair exists in respect of the sidewalk location in issue and in that respect all of the circumstances must be considered.

[68] At para. 82 Justice Glithero made reference to the development of a “judicial rule of thumb” whereby height variations between sidewalk sections of ¾ of an inch or more are often considered to be in a state of non-repair. At para. 82 Justice Glithero referred to the requirement that the court consider the location in terms of whether it is a heavy or light pedestrian location, and the accident history.

[69] In Worthey Justice Glithero assessed the pedestrian traffic in the area to be “at least average for a busy city street” and found that a height discrepancy of 15/16 of an inch to represent an unreasonable state of repair. It is noted that there was no mention in Worthey that the defendant municipality had adopted the Provincial Minimum Maintenance Standards providing for a maximum height differential of 20 mm. In any event 15/16 of an inch exceeds 20 mm.

[70] In my view the adoption by the City of Kitchener of the Provincial Minimum Maintenance Standards in 2010 has removed the need to rely upon a “judicial rule of thumb” in respect of a reasonable height differential. In the absence of persuasive evidence to the contrary, the court is able to accept the Provincial regulatory standard, as adopted by the City, as representative of what would be considered reasonable in the circumstances of this case.

[71] In Furlong Justice Parayeski, at para. 18, held a height discrepancy of ¾ of an inch, in the context of a quiet residential street lined with single family homes, to meet the standard of reasonableness, noting that the standard is not that of perfection. He also noted that the fact that the accident happened does not in and of itself prove the existence of an unreasonable state of non-repair.

[72] It is noted that the fact that the City carried out repairs to the sidewalk in the area where Ms. Barbeau fell in 2014 cannot be taken as an admission of liability (see Furlong at para. 19 and McLeod v. General Motors of Canada Limited et al, 2014 ONSC 134 at para. 74).

[73] In my view the plaintiff has failed to satisfy the onus on her of proving that the City failed to keep the sidewalk on Roy Street in the vicinity in which she fell in a state of repair that was reasonable in the circumstances. The discontinuity between the two sidewalk slabs, ranging from 11 mm to 19 mm, and being 16 mm in the location where the evidence indicated Ms. Barbeau’s toe came in contact with the upper slab, was within the maximum provided for by the Provincial Minimum Maintenance Standards, which I find to be reflective of a reasonable standard in the context of a “small residential street.” I make no comment on whether it would be considered reasonable in other contexts.

[74] Given that the plaintiff has failed to meet the first branch of the test referred to above, it is unnecessary to proceed on to consider whether the City may avail itself of one or more of the defences provided in subsection 44(3) of the Municipal Act (see Furlong at para. 20).

Contributory Negligence

[75] It is noted that the onus is on the defendant to prove that the plaintiff was contributorily negligent. Recognizing that the standard of repair of a municipal sidewalk is not that of perfection and that a municipality cannot be expected, nor is it required, to maintain perfectly even sidewalk surfaces (see Worthey at para. 80), a reasonable pedestrian ought to pay reasonable attention to see upcoming height differentials on the sidewalk surface. In this case the evidence was that Ms. Barbeau was familiar with the area and had earlier observed the defect that had been noted by Ms. Wheatley on May 14, 2012, consisting of a broken slab. The evidence also indicated that at the time that she tripped she was not observing the sidewalk in front of her but was looking towards Queen Street. In these circumstances, I find Ms. Barbeau to have been contributorily negligent to the extent of 20%.

Damages

[76] As indicated above, Ms. Barbeau’s damages have been agreed to. The agreed general damages of $35,000 and OHIP subrogated damages shall be reduced by 20% in respect of contributory negligence. The net amounts shall bear pre-judgment interest at the rate of 5% per annum, as claimed by the plaintiff, which rate is undisputed by the defendant.

Disposition

[77] For the reasons set forth above, the plaintiff’s action is dismissed.

[78] Counsel are strongly encouraged to agree on costs. If they are unable to do so, they may deliver written submissions on costs – the defendant by January 16, 2017 and the plaintiff by January 23, 2017. Such submissions shall not exceed five (5) double-spaced pages, exclusive of bills of costs or costs outlines and offers to settle. All submissions shall be delivered to my chambers at 85 Frederick Street, 7th floor, Kitchener, Ontario N2H 0A7

[79] In the event that no submissions are received within the times set forth above, the parties shall be deemed to have settled the issue of costs.

D.A. Broad, J.

Released: January 3, 2017