Cartner v. Burlington (City), 2010 ONCA 407
CITATION: Cartner v. Burlington (City), 2010 ONCA 407
DATE: 2010-06-07
DOCKET: C49307
COURT OF APPEAL FOR ONTARIO
Simmons, Cronk and LaForme JJ.A.
BETWEEN:
Marjory Arlene Cartner and David Cartner
Plaintiffs (Respondents)
and
The Corporation of the City of Burlington, Feng Feng Wang and Ying Jia Huang
Defendants (Appellant)
Christine G. Carter, for the appellant
Robert J. Hooper and Kelly L. Buffett, for the respondents
Heard: January 6, 2010
On appeal from the judgment of Justice Michael G. Quigley of the Superior Court of Justice dated January 8, 2009.
Simmons J.A.:
I. OVERVIEW
[1] Marjory Cartner suffered a severely broken leg when she slipped and fell on a municipal sidewalk while walking to work in Burlington on November 8, 2002.
[2] Mrs. Cartner was walking south on the west side of the Guelph Line when she fell. She slipped just as she reached a property on which a Speedy Muffler outlet was operating and which was immediately south of the Crystal Shoes Store property owned by the defendants Feng Feng Wang and his wife, Ying Jia Huang.
[3] Following a multi-day trial, Quigley J. concluded that Mrs. Cartner’s fall “was caused when her leg twisted and slid out from under her as she slipped on a muddy concrete slurry substance that had pooled on the sidewalk.”
[4] The trial judge found that Mr. Wang created the concrete slurry the day before Mrs. Cartner fell by washing concrete residue off of his property and onto the City’s sidewalk with a water hose. The concrete slurry pooled in an area of the sidewalk immediately south of the Crystal Shoes Store driveway where three concrete slab sections of the sidewalk sloped westerly towards the buildings instead of easterly towards the street like the adjoining sections of the sidewalk.
[5] Relying on the respondent’s expert, the trial judge found that, absent topographical features to the landscape requiring an alternative profile, sidewalks typically slope toward the roadway where drainage sewers are located. The trial judge determined that the three reversed concrete slabs were newer than the adjoining sections of the sidewalk and that they sloped westerly, towards the property, because they had subsided as a result of improper design or construction.
[6] In addition to causing the reverse slope of these three concrete slabs, the subsidence created differences in the height of the sidewalk where the three reversed concrete slabs joined the existing sidewalk. At the northern joint, there was a drop in height of 2.5 inches from the existing sidewalk to the three reversed concrete slabs (creating a “trip ledge”); at the southern joint, the existing sidewalk was about 5/8ths of an inch higher than the three reversed concrete slabs.
[7] The trial judge concluded that three factors had the combined effect of creating a trap where liquids could pool: (1) the reverse slope of the three reversed concrete slabs; (2) the approximate 5/8ths of an inch height differential at the south joint of the three reversed concrete slabs with the existing sidewalk, and (3) the presence of grass immediately to the west of the three reversed concrete slabs.
[8] Further, the trial judge found that the City contravened its own sidewalk maintenance policy in 1999, by grinding the 2.5 inch trip ledge at the north joint of the three reversed concrete slabs with the existing sidewalk instead of replacing one or more of the concrete slabs. In doing so, the City changed the direction of the flow of drainage on the concrete slab at the foot of the Crystal Shoes Store driveway, causing liquids from that slab to drain towards the trap at the south end of the three reversed concrete slabs instead of towards the street.
[9] Based on all these findings, the trial judge concluded that the neighbouring property owners and the City both caused Mrs. Cartner’s fall. He held the Crystal Shoes Store owners liable to the respondents both in nuisance and in negligence; he held the City liable for failing to comply with its statutory duty to keep the sidewalk in a reasonable state of repair. He apportioned 80% of the responsibility for the accident to the store owners and 20% to the City.
[10] The City raises two main issues on appeal:
(1) Did the trial judge err in finding that the sidewalk was in a condition of non-repair?
(2) Did the trial judge err in his causation analysis by deciding causation on the basis of “a partial application of the material contribution test” and by failing to properly apply the “but for” test?
II. ANALYSIS
1. Did the trial judge err in finding that the sidewalk was in a condition of non-repair?
(a) The City’s Position on Appeal
[11] The City contends that there was insufficient evidence to support the trial judge’s finding that the sidewalk was in a state of non-repair and that, in any event, the trial judge’s finding of non-repair in relation to design and construction is inconsistent with his finding concerning drainage.
[12] For the reasons that follow, I would not accept the City’s submissions.
(b) The City’s Duty to Repair
[13] As the trial judge noted, municipalities are not liable at common law for non-repair of sidewalks and highways, and the respondents’ claim against the City is a statutory cause of action under s. 284(1) of the Municipal Act, R.S.O. 1990, c. M.45.[^1] However, common law principles of causation apply to the statutory cause of action. Accordingly, in order to succeed against the municipality, the respondents were required to show that the sidewalk was in a state of non-repair under the statute and also that the non-repair was a cause of the plaintiff’s injuries, applying the common law test for causation.
[14] Subsections 284(1) and (1.1) of the Municipal Act establish the statutory cause of action. At the time of the accident, they read as follows:
284 (1) The council of the corporation that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in light of all the circumstances, including the character and location of the highway or bridge.
(1.1) In case of default, the corporation, subject to the Negligence Act, is liable for all damages any person sustains because of the default.
[15] Subsections 284(1.2) and (1.3) of the Municipal Act establish two statutory defences (lack of knowledge of the non-repair and reasonable steps to prevent non-repair). At the time of the accident, these subsections read as follows:
284 (1.2) The corporation is not liable under subsection (1) or (1.1) for failing to keep a highway or bridge in a reasonable state of repair if it did not know and could not reasonably have been expected to know about the state of repair of the highway or bridge.
(1.3) The corporation is not liable under subsection (1) or (1.1) for failing to keep a highway or bridge in a reasonable state of repair if it took reasonable steps to prevent the default from arising.
[Emphasis added.]
(c) The Respondents’ Position at Trial
[16] At trial, the respondents advanced three bases for their submission that the sidewalk was in a state of non-repair: first, that the three reversed concrete slabs were improperly designed and constructed; second, that the reverse slope of the three reversed concrete slabs prevented proper drainage and permitted concrete slurry to pool on the three newer concrete slabs; and third, that improper and inadequate grinding repairs were conducted at the northern joint of the existing sidewalk with the three reversed concrete slabs.
(d) The Trial Judge’s Findings
[17] The trial judge accepted the respondents’ first and third submissions concerning non-repair but rejected their second submission.
[18] Concerning the design and construction issue, the trial judge accepted the evidence of the respondents’ expert, Mr. Pedersen, that the three reversed concrete slabs were newer than the adjoining sections of the sidewalk. Further, he found that they were sloped in the wrong direction as the result of a design or construction flaw. He said:
I accept and find, based on the un-refuted evidence of Mr. Pedersen, that the three slab section of sidewalk in front of Speedy Muffler and Crystal Shoes was of newer construction than the rest of the sidewalk... [B]oth the Ontario [Provincial] Standard for [new] construction and common sense make clear that the sidewalk should slope towards the roadway.... It was Mr. Pedersen’s opinion that there was inadequate slope both by degree and direction. It sloped in the opposite direction, and as my reasons below address, regardless of its drainage attributes, its state relative to the older abutting sidewalk slabs left at least one trip ledge present that violated the City’s own inspection and maintenance standard.
I find that the conclusion is inescapable that the three slab section was improperly designed or constructed.
[19] In finding that the three reversed slabs should slope towards the roadway, the trial judge observed that “[t]he roadway was where the existing drainage sewers were located.” In addition he said, “the more prudent course of construction so as not to create trip hazards ... would likely have been to conform the slope of the new three slab section to the same approximate degree in the same direction of slope as the older sections of sidewalk that abutted the newly constructed section.” As there were no unusual topographical features that required the sidewalk to slope away from the roadway, the trial judge found that it was unlikely that a contractor would intentionally design and construct the newer section to slope in this manner.
[20] Finally, in the absence of any evidence of heaving, the trial judge concluded that the reversed slope was caused by subsidence. Based on evidence adduced at trial, he found that the subsidence occurred due to an improperly laid foundation.
[21] As for the improper and inadequate grinding repairs issue, the trial judge determined that the trip ledge present at the northern joint of the three reversed concrete slabs with the existing sidewalk “was at or above the 2 ½ inch limit where the City’s policy required that the slabs be replaced” and that, “[i]n grinding the edge of that northerly slab of sidewalk, the City failed to comply with its own trip hazard policy.”
[22] Further, the trial judge concluded that when the City failed to comply with its trip hazard policy, it created a new problem:
[I]t changed the direction of the flow of drainage at that edge of that sidewalk slab away from the roadway and towards the three reverse sloped slabs of sidewalk that lay to the immediate south of it ... That changed flow of drainage, combined with the trapping characteristics of the three reversed sloped slabs, permitted the pooling of water or other liquids to occur on those three slabs.
[23] Concerning the drainage issue, the trial judge noted that the expert witnesses for both parties agreed that there are no statutory requirements imposed on a municipality to provide drainage on a sidewalk. However, he also noted that the expert witnesses and the City staff witness, Mr. Powell, all agreed that pooling, ponding or puddling of water on a sidewalk is problematic.
[24] Although he acknowledged that he had determined that, as against the City, it was the pooling of the concrete slurry on the three reversed concrete slabs that was a cause of the accident, the trial judge said, “[t]his, however, does not necessarily ... lead to a conclusion that the drainage condition of... the three reverse sloped slabs, in and of itself constituted a condition of non-repair”. Instead, he concluded, “[i]t is the drainage of water that is the litmus test.”
[25] Ultimately, however, the trial judge found there was no evidence of any form of water drainage problems being reported to the City. In the absence of such evidence, he concluded that there was no adequate evidentiary foundation to support a finding of non-repair based solely on the drainage characteristics of the site.
(e) Evidence Relied Upon by the Trial Judge
[26] Although the respondents’ expert, Mr. Pedersen, acknowledged that the Ontario Provincial Standard that he relied on was only a guideline and that it was provided only to contractors building new sidewalks, read as a whole, his evidence supports the trial judge’s conclusion that the slope of the three reversed concrete slabs was reversed because of faulty design and construction and that the reversed slope resulted in a condition of non-repair.
[27] Mr. Pedersen testified that he took certain measurements of the sidewalk in the vicinity where Mrs. Cartner fell when he visited the site on December 21, 2002. None of the City’s witnesses took issue with Mr. Pedersen’s measurements.
[28] Mr. Pedersen determined that the majority of the older sections of the sidewalk sloped towards the roadway at an incline of 1.3% and that the property to the west was higher than the sidewalk. The three reversed concrete slabs sloped in the opposite direction, towards the property, at an incline ranging from 0.5% (the middle slab) to 1.3% (the two outer slabs).
[29] Mr. Pedersen confirmed that the Ontario Provincial Standard on which he relied was a drawing entitled “typical section” and that it conveys a typical representation of the way sidewalks usually slope. Although he acknowledged that the drawing does not impose a requirement that sidewalks slope toward the roadway, he explained that the Ontario Building Code requires that properties be designed so that water flows away from the basement of a house. Generally, that results in properties (and sidewalks) being sloped toward the roadway.
[30] In addition, Mr. Pedersen confirmed that the drawing he relied on reflects a minimum recommended incline of 2% and a maximum recommended incline of 4%. The three reverse sloped concrete slabs in issue did not conform to these recommendations.
[31] Mr. Pedersen gave evidence concerning the relative age of the three reversed concrete slabs based on their appearance as compared to the appearance of the adjoining slabs. He said that whereas there were obvious signs of damage to the adjoining slabs, the three reversed concrete slabs had a nicely brushed surface, the edges were neatly trowelled and there was no evidence of mechanical damage. He expressed the opinion that three reversed concrete slabs were newer than the adjoining sections of the sidewalk.
[32] Mr. Pedersen also testified that it “takes some extenuating circumstances for sidewalks to either heave or settle.” He said that if a sidewalk has settled, it usually means that the bed of the sidewalk has not been adequately prepared.
[33] Mr. Pedersen confirmed that he took a measurement at the northern joint of the three reversed concrete slabs with the pre-existing sidewalk on December 21, 2002. He placed a level on the slab of the pre-existing sidewalk adjoining the northern reversed concrete slab and measured down from the level to the reversed concrete slab and determined the distance was 2.5 inches. Mr. Pedersen described scarfing or grinding along the edge of the adjoining slab of the pre-existing sidewalk. However, he confirmed that if it were not for the scarfing, the difference in height between the two concrete slabs would have been 2.5 inches.
[34] Although he did not measure the height difference at the southern joint of the three concrete slabs and the pre-existing sidewalk, Mr. Pedersen identified a slight height difference and estimated that it would be less than 5/8ths of an inch.
[35] Mr. Pedersen testified that any water running down the older concrete slab that adjoins the north end of the three reversed concrete slabs would tend to run down along the area where the grinding repairs were done and onto the reversed concrete slab beside it. The water would then continue along the three reversed concrete slabs but, because they were sloped against the property, it would tend to collect against the property, against the vegetation and dirt. In addition, because the most southerly of the three reversed concrete slabs was lower than the older slab beside it, any water flowing onto the three reversed concrete slabs would stop at that point until it reached the height of the higher slab on the pre-existing sidewalk.
(f) Discussion
[36] Read as a whole, Mr. Pedersen’s evidence supports the following critical findings made by the trial judge, which, in turn, support the trial judge’s conclusion that the three reversed concrete slabs were in a state of non-repair due to faulty design or construction:
• the slope of the three reversed concrete slabs was improper because it did not conform to the slope of the adjoining sections of the sidewalk or to customary sloping practices relating to drainage;
• the incorrect slope of the three reversed concrete slabs had the effect of creating trip ledges at the northern and southern joints of the three reversed concrete slabs with the pre-existing sidewalk;
• the size of the trip ledge at the northern joint was sufficient to trigger the City’s slab replacement policy; and
• the improper slope of the three reversed concrete slabs was caused by subsidence due to improper design or construction.
[37] The trial judge found that there was insufficient evidence to support the respondent’s claim that the drainage condition of the three reverse sloped slabs, in and of itself, constituted a condition of non-repair. The City argues that this finding is inconsistent with his findings in relation to faulty design or construction of the slabs, thus rendering his findings on this latter issue erroneous. I would not accept this submission. The trial judge’s findings concerning the faulty design or construction of the slabs are supported by the evidence and stand unaffected by his conclusions regarding the other possible bases for finding a state of non-repair.
[38] With respect to the grinding repairs issue, the City’s witness, Mr. Powell, confirmed that the City’s repair policy required that concrete slabs creating trip ledges in excess of 40 millimetres be replaced and not repaired, that a trip ledge of 2.5 inches is well over 40 millimetres, and that if a trip ledge of 2.5 inches existed City policy required that the concrete slab be replaced and not ground.
[39] No evidence was adduced at trial concerning what, if any, measurements were taken of the trip ledge at the northern joint of the three reversed concrete slabs with the pre-existing sidewalk in 1999 when this trip ledge was repaired. The City was unable to provide an exculpatory explanation for the grinding. In these circumstances, it was open to the trial judge to draw an inference based on Mr. Pedersen’s measurements that the trip ledge that existed in 1999 triggered the City’s policy for replacement of concrete slabs.
2. Did the trial judge err in his causation analysis by deciding causation on the basis of “a partial application of the material contribution test” and by failing to properly apply the “but for” test?
(a) The City’s Position on Appeal
[40] The City acknowledges that the trial judge accurately described the legal test for causation at paras. 14 through 17 of his reasons. However, the City submits that the trial judge made two significant errors in relation to the issue of causation. First, he concluded incorrectly, at para. 18 of his reasons, that the material contribution test for causation applies, at least to some extent, in this case.
[41] Second, he erred in applying the “but for” test for causation by failing to recognize that in order to find the City liable, it was necessary that he conclude that “but for” the disrepair of the sidewalk, no slurry would have been present on the sidewalk. The City contends that in the absence of such a finding, there was no evidence at trial capable of supporting a finding that the “but for” test was satisfied.
(b) Discussion
[42] I would not accept these submissions.
[43] Concerning the trial judge’s reference to the material contribution test, as I read the impugned paragraph, it does nothing more than reinforce the trial judge’s earlier correct statement that in order to satisfy the “but for” test, a particular cause need only be “a cause” of the injury; it need not be the sole cause.
[44] The impugned paragraph reads as follows:
This is not to say that there is no scope in this case for a partial application of “material contribution” concepts within the strictures of the principled approach to causation mandated by Resurfice in determining whether either or both of these defendants are liable to the plaintiffs. This follows since nothing in Resurfice, or the strong authorities that preceded it, prevents liability from being found against a defendant where the defendant’s negligence is found to be “a cause” of injury on a balance of probabilities, even if not the ultimate cause. While the Supreme Court reaffirmed that “the basic test for determining causation remains the ‘but for’ test” and that it applies to multi-cause injuries, in doing so it also specifically reaffirmed its decisions in Athey v. Leonati and Snell v. Farrell. [Emphasis added.]
[45] Although I agree that the trial judge’s reference to the material contribution test is misplaced, his central point, namely, that a particular cause need only be “a cause” of an injury in order to satisfy the “but for” test, is correct: see Athey v. Leonati, [1996] 3 S.C.R. 458, at paras. 17-20.
[46] As for the trial judge’s application of the “but for” test, as I read his reasons, he concluded that Mrs. Cartner fell because slurry had pooled at the place on the sidewalk where she fell. As discussed above, he found that disrepair of the sidewalk contributed to the slurry pooling in two ways. First, the reverse slope of the sidewalk, caused by improper design or construction, created a trap for liquids at the location where the slurry pooled.
[47] Second, the improper grinding repairs caused more slurry to run onto the three reversed concrete slabs than would otherwise have been the case. The slurry was washed onto the City’s sidewalk from the driveway of the Crystal Shoes Store property. Because the City performed improper grinding repairs to the concrete slab of sidewalk at the base of the Crystal Shoes Store driveway, at least some of the slurry that would otherwise have flowed towards the street, flowed instead onto the three reversed concrete slabs.
[48] The trial judge’s core findings concerning causation read as follows:
In this case the evidence made clear, and I find that concrete slurry flowing off of the Crystal Shoes property sometime in the 24 hour period preceding the accident reached the City of Burlington sidewalk and rather than continuing to drain across that northerly sidewalk slab towards the roadway, changed its direction of flow. It slowed down the grade created by the City’s inadequate trip ledge repairs onto the three reverse sloped slabs that abutted that northern slab. And there, apart from a minimal amount of drainage that occurred in a south-easterly direction towards the roadway, the slurry pooled and remained until the next morning, apparently largely in liquid form, retained or trapped by the edge of the north slab and the grassy hill on the Speedy Muffler property to the east [sic?].
I do not need to determine whether the slurry would have been present if the sidewalk had not been in a state of non-repair. I do not need to determine whether the slurry would have been present if the trapping characteristics of the three slab reverse sloped section of sidewalk had been properly designed and constructed. I do not need to determine whether the slurry would have been present if the City had repaired the trip ledge in compliance with its own policies. The simple observable fact is that these conditions of non-repair, conditions that the City knew existed, created a sidewalk condition that permitted the concrete slurry to become trapped when it pooled on the sidewalk. It was the accumulation of that slurry in that location that was caused by the condition of non-repair of the sidewalk that caused Mrs. Cartner to slip and fall. While I accept the proposition that the state of repair of the sidewalk was not “the” cause of her fall, it was clearly a cause, and as such, the City is prima facie liable to Mrs. Cartner for her injuries, along with Feng Feng Wang and Ying Jai Huang, unless the statutory defences accorded to it under the Municipal Act relieve it of liability. [Emphasis added.]
[49] On these findings, it was not necessary that the trial judge conclude that no slurry would have been present on the sidewalk to hold the City liable. The trial judge found that Mrs. Cartner fell because slurry had pooled on the sidewalk and that the non-repair of the sidewalk was a contributing cause of the pooling. These findings were sufficient to satisfy the “but for” test of causation. But for the non-repair, the pooling would not have occurred. But for the pooling of slurry, Mrs. Cartner would not have fallen in the location and in the manner that she did.
[50] Although it may be interesting to note that Mrs. Cartner did not fall on the portion of the City’s sidewalk at the base of the Crystal Shoes Store property, it was not necessary for the respondents to rely on that fact or to lead complex accident reconstruction evidence to try and demonstrate that Mrs. Cartner would not have fallen had the state of non-repair not existed. The findings made by the trial judge were sufficient to meet the “but for” test of causation.
III. DISPOSITION
[51] Based on the foregoing reasons, I would dismiss the appeal with costs to the respondents on a partial indemnity scale fixed in the amount of $20,000 inclusive of disbursements and G.S.T. as agreed by the parties.
Signed: “Janet Simmons J.A.”
“I agree E. A. Cronk J.A.”
“I agree H. S. LaForme J.A.”
RELEASED: “JS” June 7, 2010
[^1]: This statute has since been replaced by the Municipal Act, 2001, S.O. 2001, c. 25. Subsequent references to the Municipal Act in these reasons, will refer to the previous version of the statute (R.S.O. 1990, c. M.45) that was in effect at the time of Mrs. Cartner’s accident on November 8, 2002.