Court File and Parties
Court File No.: CV-19-65 Date: 2021-03-10 Superior Court of Justice - Ontario
Re: Darlene Petitpas, Plaintiff/Responding Party And: The Corporation of the City of Kingston, Defendant/Moving Party
Before: Mr. Justice Pierre E. Roger
Counsel: L. Vadala, Counsel for the Plaintiff/Responding Party K. Cooke, Counsel for the Defendant/Moving Party
Heard: February 26 and March 5, 2021
Endorsement on Motion for Summary Judgment
Factual Overview
[1] The Defendant, the Corporation of the City of Kingston, brings a motion for summary judgment to dismiss the Plaintiff’s action. The City of Kingston argues that the Plaintiff’s expert report is inadmissible, and, in any event, that there is no genuine issue requiring a trial.
[2] The Plaintiff, Ms. Petitpas, argues that her expert report is necessary to assist the trial judge and that there are triable issues requiring a trial. More specifically, she argues that the Defendant has led no evidence regarding the maintenance of the catch basin and no evidence that the catch basin met the applicable standards at the date of the Plaintiff’s fall. For reasons that follow, I agree with the plaintiff.
[3] This is a trip and fall case that occurred on November 15, 2018, in the City of Kingston. The Plaintiff tripped when she caught her left foot in a sewer grate hole. She had just parked her car along the road in order to drive her granddaughter to her bus stop. She got out of her car, and when she attempted to cross in front of her car, her foot caught in the hole of the catch basin and she fell.
[4] In her statement of claim, the Plaintiff alleges that she tripped due to the oversized hole in the sewer grate. At paragraph 6 of the statement of claim, she alleges that the “municipal road contained a sewer grate with oversized holes” causing her to trip and fall. At paragraph 8, she alleges that the City of Kingston was negligent in ignoring prior complaints regarding the poor condition of the road, failing to inspect the condition of the road subsequent to the complaints, considering the complaints and well-being of the Plaintiff to be minor and unimportant, failing to take proper steps to ensure that the Plaintiff would be reasonably safe while using the road, permitting the road to be a danger and trap to person using it, failing to warn of the state of disrepair, failing to inspect the road with sufficient frequency, failing to properly maintain the road, and failing to protect the public from the dangers of the road.
[5] The parties have exchanged affidavits of documents and have attended and completed examinations for discovery. In addition to the affidavits filed on this motion, the parties have cross-examined three of the affiants on October 23, 2020.
[6] The evidence of the City of Kingston is that after receiving notice of the Plaintiff’s trip and fall, the manager of construction for Kingston, Mr. Simmons, a civil engineer, attended the site to inspect and measure the catch basins. At his cross-examination, Mr. Simmons indicated that after attending and measuring the catch basins, he took no remedial steps because he saw no immediate threat. In his affidavit, Mr. Simmons indicates that he attended at the site and reviewed all of the catch basin frames and grates in and around the area where the plaintiff fell, and that he took measurements of the catch basin frames and grates. He indicates that the catch basin frames and grates in question are standardized in Ontario, are built in accordance with the applicable Ontario Provincial Standards Drawing, OPSD 400.01, and are the same as the standardized catch basins used elsewhere in other municipalities in Ontario. He also indicates that the general plan for the construction of road services in that area was prepared by an independent professional engineer, calls for this catch basin to be used, and that in reliance upon this engineer and this provincial standard Kingston installed this catch basin in 2001. He indicates that the catch basins in question are consistent with the OPSD 400.01 that was applicable at the time and therefore with the general plan for the construction of road services in that area.
[7] As well, Mr. Simmons indicates, as a matter of fact, that the independent engineering firm also prepared as built drawings, showing what services were constructed. He indicates: “The catch basin frame and grates in question were ultimately built in the same location as the design required … drawing 698PP03. This “as built drawings” that is sealed by Josselyn Engineering provides city of Kingston with confirmation that the intended design was in fact constructed in general conformance with the General Plan, including the size and location of the catch basins”. He concludes by providing the following opinion: “From my review of the photographs provided by Plaintiff’s counsel, my attendance at the scene to view the catch basins in person, my experience in the field of construction and municipal engineering, my review of the OPSD Drawings, and my review of the construction drawings, I can confirm that the catch basin frames and grates in question are standard, are built in accordance with the applicable OPSD 400.01, and in accordance with the construction drawings submitted to the city of Kingston”.
[8] In their answers to undertakings given at their examination for discovery, Kingston provided colour photographs of the two catch basin grates taken by an employee of Kingston showing that the opening of both catch basin grates is between 65 – 70 mm. Kingston also confirmed that a city employee measured all the catch basin iron grates at the location of the plaintiff’s fall and that all the catch basin measurements conform with the OPSD 400.01 1987 drawings. As well, Kingston indicated that there is no requirement to inspect catch basins, other than by routine road patrols, and that no hazard was identified in the road patrols conducted by Kingston prior to November 15, 2018.
[9] The Plaintiff swore an affidavit in which she describes that when she crossed in front of her car, wearing a flat-soled shoe, her left foot got caught in that gap in the catch basin causing her to fall. It is not disputed that there were no warning or other indication that the catch basin could pose a tripping hazard.
[10] The Plaintiff also obtained an engineering report from Walters Forensic Engineering Inc.
[11] In preparing their initial report of July 9, 2019, Walters reviewed eight colour photographs of the incident location, and 14 photographs of the Plaintiff’s injuries; they did not attend at the site. From looking at the pictures of the catch basin, they indicate in this initial report that its largest opening measures approximately 70 x 170 mm. They indicate that the width of the opening allowed the Plaintiff’s toe to role in an become caught during the toe off phase of her gait cycle. They explain that her body would continue to move forward, which would cause her to lose balance and fall forward. They indicate that “in our opinion, the opening in the grate was a mis-stepping hazard. Ms. Petitpas reported injuries to her face and upper limbs were consistent with this fall dynamic.” They confirm that this grate for catch basins is as per the OPSD 400.01. They indicate:
- In their opinion, the catch basin grate was a mis-stepping hazard to pedestrian.
- The grate was on the road but its proximity to the sidewalk increased the risk of someone stepping on the opening, catching their toes, losing balance, and falling.
- The curb adjacent to the grate was a mountable curb, relatively flat, which would not prevent pedestrians to step in the vicinity of the grate. In their opinion, this would increase the likelihood of pedestrian stepping on the grate opening and falling.
- In their opinion, had the curb been reconstructed with a normal barrier curb, the Plaintiff’s risk of stepping on the opening and falling would have been reduced.
- As well, in their opinion, the Plaintiff’s risk of stepping on the grate’s opening and falling would have been reduced if the grate had been installed further away from the sidewalk and mountable curbs had been replaced with a barrier curb at that location.
[12] In a supplementary report dated February 24, 2020, Walters Forensic Engineering Inc. confirm attending at the location of the incident for the first time on February 16, 2020. They measured the opening between the grate and the edge of the catch basis on the incident grate at approximately 70 by 170 mm, consistent with the measurements on the earlier pictures. They confirm that it is still their opinion that the grate opening was a mis-stepping hazard to pedestrians, made worst by a mountable curb and its proximity to the sidewalk.
[13] In addition, during their site examination, Walters Forensic Engineering Inc. measured the opening on the other grate, on the catch basin just beside the catch basin on which the Plaintiff fell, at approximately 50 mm. They indicate that this east grate appears to have been placed closer to the edge of the catch basin frame, resulting in a smaller gap. They further indicate that in their opinion:
- Had the west grate been placed closer to the edge of its catch basin with a smaller opening width, like the east grate at about 50 mm or less, pedestrians’ risk of catching their toes on the opening would be reduced, and would have improved the safety of pedestrians walking in the area.
- The subdivision development guidelines and standards indicate that the City of Kingston may require a traffic impact study – a traffic impact study might have identified the risk of placing the catch basin grate in the vicinity of the sidewalk/crosswalk combined with a mountable curb.
[14] On this motion, the Defendant did not argue that the Plaintiff failed to meet the statutory notice requirement. This is, therefore, not an issue that needs to be addressed on this motion for summary judgment.
Issues
[15] The issues argued on this motion are whether the expert report of Walters Forensic Engineering Inc. is admissible, and whether the Plaintiff’s action should be dismissed on the basis that there is no genuine issue requiring a trial?
Applicable Law
[16] A defendant in an action may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment seeking to have all or part of the Statement of Claim dismissed (see Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”)).
[17] Rule 20.04 provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[18] In Hryniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J., writing for the Court, outlined a two-step procedure for deciding a summary judgment motion (see also Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98 at para. 24).
[19] First, the motion judge must determine if there is a genuine issue requiring trial based only on the evidence placed before him or her. There is no genuine issue requiring a trial where the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure: Hryniak at para. 66.
[20] Second, if there appears to be a genuine issue requiring a trial, the motions judge should determine if the need for a trial can be avoided by using the fact finding powers under Rule 20.04(2.1) of the Rules which allows the judge to weigh evidence, evaluate the credibility of a deponent and draw inferences from the evidence and (2.2) which allows the judge to order that oral evidence be presented. Where it would not be against the interests of justice to do so, the judge may exercise his or her discretion to use those powers: Hryniak at para. 66; Royal Bank of Canada at para. 24.
[21] However, the onus on a motion for summary judgment is a moving onus; the onus is initially on the moving party which is key to the disposition of this motion.
[22] In Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 24 and 30, Justice Brown indicates:
Rule 20.01(3) requires a defendant to “move with supporting affidavit material or other evidence” on a summary judgment motion. The respondent dentists, as the moving parties, bore the burden of persuading the court, through evidence, that no genuine issue requiring a trial existed: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 111 O.A.C. 201 (Ont. C.A.), at para. 16; Connerty v. Coles, 2012 ONSC 5218, [2012] O.J. No. 4313 (Ont. S.C.J.), at para. 9. They were not entitled to rely merely on the allegations in their statement of defence; the respondents were required to put their best evidentiary foot forward.
… First, the evidentiary burden on a moving party defendant on a motion for summary judgment is that set out in rule 20.01(3) — “a defendant may . . . move with supporting affidavit material or other evidence.” As explained in Connerty, at para. 9, only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial for its resolution does the burden shift to the responding party to prove that its claim has a real chance of success.
[23] Indeed, at a summary judgment motion, the moving party bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial; it must put its best foot forward by adducing evidence on the merits: Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10, at para. 61 citing Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 30-32, leave to appeal refused [2016] S.C.C.A. No. 443. It is only after that the onus shifts to the responding party to show that the claim has a real chance of success and that there are genuine issues requiring a trial: Rescon Financial Corporation v. New Era Development (2011) Inc., 2018 ONCA 530, at para. 2 and Mayers v. Khan, 2017 ONCA 524, at para. 4.
[24] Section 44 of the Municipal Act, 2001, S.O. 2001, c.25 (“the Act”) provides that a municipality shall keep its roads in a state of repair that is reasonable in the circumstances. Perfection is not required; reasonableness is the standard.
[25] The Plaintiff must ultimately prove, on a balance of probabilities, (1) that the municipality failed to keep the road in question in a reasonable state of repair, and (2) that the “non-repair” caused the accident. Proof of non-repair and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing at least one of the three defences set out in s. 44(3) of the Act (that it did not know and could not reasonably have been expected to have known about the state of repair; that it took reasonable steps to prevent the default from arising; or that some minimum standard provided by the Minister of Transportation applied and had been met by the municipality).
[26] The issue of whether the opinion of an expert is admissible is governed by the two-step process set out White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. At both stages, the burden to establish on a balance of probabilities that the applicable tests have been met, rests on the party seeking to adduce the report: White Burgess at para. 48.
[27] At the first step, the proponent of the evidence must show that the four Mohan threshold factors have been established (R. v. Mohan, [1994] 2 S.C.R. 9). The proponent of the evidence must show: 1) that the expert evidence is logically relevant; 2) that the evidence is necessary; 3) that no exclusionary rule applies to the expert evidence; and 4) that the expert has been properly qualified. Where all four factors cannot be established, the evidence must be excluded: White Burgess at para. 23.
[28] At the second step, the judge engages in a discretionary gatekeeping role. The judge must balance the potential risks and benefits of admitting the expert evidence: White Burgess at para. 24. At this stage, the judge is considering the general exclusionary rule. “Where the probative value of the expert opinion evidence is outweighed by its prejudicial effect, it should be excluded.”: R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170 at para. 16. Such an analysis is permitted on a motion for summary judgment by r. 20.04 (2.1).
Analysis
[29] On a motion for summary judgment, the moving party initially bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial; it must put its best foot forward by adducing evidence on the merits. It is only after the moving party has done so that the onus shifts to the responding party to show that the claim has a real chance of success and that there are genuine issues requiring a trial.
[30] In this case, the key issue to determine liability is whether the municipality failed to keep the road in question in a reasonable state of repair. It is not whether the road complied with the standards that were applicable when it was constructed.
[31] As a result, the insurmountable difficulty for Kingston on this motion for summary judgment is that it has provided no evidence regarding the standards applicable to catch basin grates at the date of the plaintiff’s fall, in November 2018, and no evidence whether the design, installation and condition of the catch basin in question was in a proper state of repair in November 2018. On a motion for summary judgment, the onus is initially on Kingston to demonstrate the absence of a genuine issue requiring a trial. It has failed to do so, and this motion must therefore be dismissed.
[32] Indeed, even if I accept the opinion evidence of Mr. Simmons that the catch basin frames and grates in question are standard and were built in accordance with the applicable OPSD 400.01, and in accordance with the construction drawings submitted to Kingston when the services to this road were built, the defendant provided no evidence that the standards in place in 2001 were still adequate in 2018. Furthermore, although Kingston proved that the catch basins were approved by an engineer and are consistent with the OPSD 400.01 standard that was applicable at the time of its design and installation in 2001, it presented no evidence that the catch basins met the standards applicable in 2018 and no evidence that the design, installation and condition of the catch basin in question was in a proper state of repair in November 2018.
[33] This case is factually different from the circumstances in Haley v. Stepan, 2019 ONSC 6005, where the Court of Appeal held that the motion judge had not reversed the onus on the motion for summary judgment because it found that it was open to the motion judge to conclude that the defendant had discharge their initial burden (see Haley v. Stepan, 2020 ONCA 737). It is not the case here.
[34] As a result of the defendant not meeting their initial evidentiary onus, it is not necessary, in order to dispose of this motion, to consider whether the plaintiff’s expert report is admissible because the onus therefore did not shift to the responding party to show that the claim has a real chance of success and that there are genuine issues requiring a trial.
[35] In order to resolve this case fairly and proportionately, I suggest:
- that we meet virtually, in the next few weeks, to determine how best to proceed and to agree on a timetable for next steps, including the delivery of outstanding liability expert reports; and
- that we consider bifurcating this matter, with an initial virtual trial before me within the next few months to decide the issue of liability, followed, if necessary, by another virtual trial before me to decide the issue of damages.
[36] Kindly advise the Kingston trial coordinator of your availability for such a virtual meeting.
Conclusion
[37] The Defendant’s motion for summary judgment is dismissed.
[38] If the parties are unable to agree on the costs of this motion within the next 5 days, then brief written submissions, not exceeding three pages, shall be sent to my attention as follows: by the Plaintiff within the next 10 days and by the Defendant within the next 15 days. I ask the parties to kindly advise me if they resolve the issue of costs but will assume that the issue of costs has been resolved if I do not receive any written submissions, or hear differently, within the next 15 days.