Fulton v. Welland (City), 2007 ONCA 756
CITATION: Fulton v. Welland (City), 2007 ONCA 756
DATE: 20071106
DOCKET: C46483
COURT OF APPEAL FOR ONTARIO
LASKIN, LANG and JURIANSZ JJ.A.
BETWEEN:
DIANNA FULTON and STEVE FULTON
Plaintiffs (Respondents)
and
THE CORPORATION OF THE CITY OF WELLAND and THE REGIONAL MUNICIPALITY OF NIAGARA
Defendants (Appellant)
Terry Marshall for the appellant
Christopher Richards for the respondents
Heard: November 2, 2007
On appeal from the judgment of Justice David S. Crane of the Superior Court of Justice dated December 8, 2006.
APPEAL BOOK ENDORSEMENT
[1] The appellant raises several grounds of appeal.
[2] On the standard of non-repair, we read the trial judge’s reasons to say no more than that the standard requires a reasonable state of repair in light of all the circumstances. The circumstances at this location included a depression exceeding two inches at a corner in a city on Main Street in a commercial area that was frequently used by pedestrians to cross the street. In those circumstances, it was open to the trial judge to conclude that the depression did not meet the standard of repair.
[3] Regarding the inspection system, the trial judge found that the inspection system was not adequate in the circumstances. This finding was open to him on the evidence.
[4] On the histories of the incident reported by the respondent to her medical treatment providers, the trial judge was clearly alive to this evidence and it was open to him to accept the respondent’s evidence given at trial.
[5] On the issue of mitigation, the respondent acted reasonably.
[6] Finally, on the Sheppard argument, the trial judge’s reasons were adequate for appellate review.
[7] Accordingly, the appeal is dismissed.
[8] There is a cross-appeal on costs. We have not been persuaded that there is an error in principle that would justify the granting of leave. Accordingly, leave is refused.
[9] Costs of the appeal and cross-appeal to the respondents fixed at $3,500, inclusive of disbursements and G.S.T.