Cerilli v. Ottawa (City), 2008 ONCA 28

Citation: Cerilli v. Ottawa (City), 2008 ONCA 28 Date: 2008-01-17 Docket: C46476 Court of Appeal for Ontario Winkler C.J.O., Rosenberg and Lang JJ.A.

Between:

Assunta Cerilli, Anthony Cerilli, Michael Cerilli, a minor, Marco Cerilli, a minor, by their litigation guardian, Assunta Cerilli Plaintiffs/Respondents (Appellants by Cross-Appeal)

and

The City of Ottawa Defendant/Appellant (Respondent by Cross-Appeal)

Counsel: W. J. Sammon for the Plaintiffs/Respondents (Appellants by Cross-Appeal) Jeremy J. Wright for the Defendant/Appellant (Respondent by Cross-Appeal)

Heard: January 14, 2008

On appeal from the judgment of Justice Colin McKinnon of the Superior Court of Justice dated December 5, 2006, made at Ottawa, Ontario.

ENDORSEMENT

THE APPEAL

[1] The appellant appeals three aspects of the trial judgment.

1. Did the Plaintiff Prove Gross Negligence

[2] In our view, it was open to the trial judge to find that the City did not adhere to its own policy respecting treatment of the sidewalks on Preston St. While there was evidence of spot sanding over a forty-two kilometre area, there was no evidence that any sanding was done on Preston St., not just on the spot where the accident occurred, but in the entire area. On the other hand, the plaintiff adduced evidence in her own testimony and from another eye-witness of untreated icy conditions on both sidewalks on Preston St. Moreover, the zone supervisor did not even appreciate that the street fell within the business district and thus was required to be free of ice and snow and to be sanded in accordance with the City’s own policy. This might well explain the failure to sand the Preston St. sidewalks at the time.

[3] Thus, while the policy itself was reasonable, the City did not implement that policy in circumstances where it knew that icy conditions were likely to occur because of the freezing and thawing conditions that had occurred over the previous days. We have not been persuaded that the trial judge committed any palpable and overriding error in concluding that in the circumstances this deviation from the City’s policy amounted to gross negligence. As this court said in Huycke v. The Town of Cobourg, 1937 CanLII 93 (ON CA), [1937] O.R. 682 at 690:

The law is well-settled that if a municipality permits a slippery, icy sidewalk in a thickly peopled part of the municipality to remain unprotected or ignores it altogether, and some one is injured, that would constitute gross negligence.

2. The Admissibility of Dr. Wellar’s Evidence

[4] The appellant submits that Dr. Wellar’s expertise lay solely in urban design not maintenance and thus he did not have the requisite expertise. Further, the appellant submits that expert evidence was not necessary about the appropriate standard of care. Finally, it is submitted that the trial judge gave undue weight to the expert evidence.

[5] We would not give effect to this ground of appeal. There was little real dispute that the City’s policy established the proper standard of care. The real issues were whether the appellant adhered to that policy and, if not, whether the failure to do so amounted to gross negligence. These were essentially factual questions that did not depend on the expert evidence. Whether or not the expert evidence should have been admitted, its admission had no impact on the trial judge’s conclusions on the real issues in the case.

3. Pre-judgment Interest on the Award for Loss of Competitive Advantage

[6] We agree with the appellant that in this case, the award for loss of competitive advantage falls within s. 128(4)(a) of the Courts of Justice Act representing pecuniary loss arising after the date of the order. The trial judge made an award for past loss of income. The award for loss of competitive advantage looked entirely to the future. Accordingly, we allow the appeal in part and set aside the award of prejudgment interest of $19,500.

THE CROSS-APPEAL

1. Loss of Earning Capacity

[7] By the time of the trial, the plaintiff was earning more from her job as a teller than she did pre-accident as a hairdresser. The trial judge made no award for future loss of income but, as we have said, made an award for loss of competitive advantage. The plaintiff submits that the loss of her profession as a hairdresser should be viewed as loss of a capital asset.

[8] It was open to the trial judge to find that the plaintiff’s approach to her profession would not materially change during the rest of working life with the result that she was not deprived of a capital asset that would exceed her present earning capacity. The contrary position taken by the plaintiff’s expert was based on assumptions that the trial judge rejected. The trial judge gave cogent reasons for rejecting those assumptions and hence the expert opinion.

2. Future Care Costs

[9] The trial judge found that the plaintiff was overreaching in respect of future care costs. The trial judge noted in particular that in the almost five years between the date of the accident and the trial the plaintiff had not availed herself of most of the elements of the recommended care. The trial judge was not bound to accept the expert opinion but was entitled to reach his own conclusion as to the elements of future care costs, even in the absence of contrary expert evidence.

3. Costs

[10] The appellant sought approximately $140,000 for costs including disbursements. The trial judge awarded $100,000 in costs as being fair and reasonable notwithstanding the plaintiff obtained an award in excess of the offers to settle. We have not been persuaded that the trial judge’s approach represented an error in principle given the circumstances including his rejection of much of the plaintiff’s expert evidence.

4. Interest on Out-of-Pocket Expenses

[11] The parties agree that there should be pre-judgment interest on the out-of-pocket expenses including the OHIP subrogated claim. Accordingly, we allow the cross-appeal to this extent. In all other respects, the cross-appeal is dismissed.

COSTS OF THE APPEAL

[12] In view of the mixed success, there will be no costs of the appeal and the cross-appeal.

Signed: "Winkler C.J.O." "M. Rosenberg J.A." "S. E. Lang J.A."