Crinson v. City of Toronto [Indexed as: Crinson v. Toronto (City)]

100 O.R. (3d) 366

2010 ONCA 44

Court of Appeal for Ontario,

Goudge, Juriansz and LaForme JJ.A.

January 22, 2010

Limitations -- Municipalities -- Notice -- Plaintiff suffering badly fractured ankle when he slipped and fell on icy sidewalk in early February -- Plaintiff giving city notice of his claim in June -- Trial judge erring in interpreting s. 44(12) of Municipal Act as requiring plaintiff to prove that he was so incapacitated in ten days following accident that he was unable to give notice -- Question for determination whether it was reasonable in circumstances for plaintiff not to give notice until June -- Evidence establishing that plaintiff's injury required lengthy period of rehabilitation and that during that period he was depressed and extremely anxious about his ability to return to work and support his family -- Plaintiff unaware that he was required to give notice until he was contacted by lawyer -- Plaintiff establishing that he had reasonable excuse for purposes of s. 44(12) -- Municipal Act, 2001, S.O. 2001, c. 25, s. 44(12).

Torts -- Negligence -- Municipalities -- Gross negligence -- Almost 34 hours elapsing from time city became aware of dangerous sidewalk conditions and time it responded -- City responding almost immediately to icy road conditions -- Failure to commence sidewalk salting earlier amounting to gross negligence.

The plaintiff, an executive chef, suffered a badly fractured ankle when he slipped on an icy sidewalk on February 4, 2004. He was admitted to hospital, underwent surgery and was discharged four days later with a prescription for Percocet. He gave notice of his claim to the defendant at the end of June 2004 and commenced an action for damages. The trial judge held that the plaintiff did not have a reasonable excuse for his failure to give notice within ten days of the injury as required by the Municipal Act, 2001 and that the defendant was not grossly negligent within the meaning of s. 44(9) of the Act. The action was dismissed. The plaintiff appealed.

Held, the appeal should be allowed.

The trial judge erred in interpreting s. 44(12) of the Act as requiring the plaintiff to prove that he was so incapacitated in the ten days following the accident [page367] that he was unable to give notice to the defendant. Rather, the question to be addressed was whether in all the circumstances of the case, it was reasonable for the plaintiff not to give notice until the end of June. For two weeks after the accident, the plaintiff was taking Percocet, a powerful narcotic. He was in a restrictive cast for 12 weeks and required intensive therapy for months. During that period, he was depressed and anxious about his ability to return to work and support his family. He was unaware that he was required to give notice until he was contacted by a lawyer. He gave notice shortly after that. In all the circumstances, the plaintiff had a reasonable excuse for his failure to give notice until June. As the defendant did not assert any prejudice to its defence, the action was not barred by s. 44(10) of the Act.

The trial judge erred in finding that the defendant was not grossly negligent. Almost 34 hours elapsed from the time the defendant became aware of dangerous sidewalk conditions and when it responded. It offered no explanation for why the sidewalks were not addressed on the morning of February 3, 2004, when it first became concerned about the weather, although the roads received significant attention. The reasonable steps required of the defendant were to commence the sidewalk salting earlier, in the same manner that the road salters were sent out because patrollers were concerned about icy conditions. The failure to do so amounted to gross negligence.

APPEAL from the judgment of Wright J., [2009] O.J. No. 679, 57 M.P.L.R. (4th) 211 (S.C.J.) dismissing the action against the municipality.

Cases referred to Bannon v. Thunder Bay (City) (2000), 2000 CanLII 5708 (ON CA), 48 O.R. (3d) 1, [2000] O.J. No. 1368, 185 D.L.R. (4th) 690, 131 O.A.C. 265, 9 M.P.L.R. (3d) 165, 96 A.C.W.S. (3d) 312 (C.A.), consd Other cases referred to Cena v. Oakville (Town), [2009] O.J. No. 251, 56 M.P.L.R. (4th) 11 (S.C.J.); Dagenais v. Timmins (City), [1995] O.J. No. 505, 31 M.P.L.R. (2d) 196 (C.A.); Drennan v. Kingston (City) (1897), 1897 CanLII 2 (SCC), 27 S.C.R. 46, [1897] S.C.J. No. 4; Huycke v. Coburg (Municipality), 1937 CanLII 93 (ON CA), [1937] O.R. 682, [1937] O.J. No. 308, [1937] 3 D.L.R. 720, [1937] O.W.N. 463 (C.A.); Kors v. Toronto (City), [2006] O.J. No. 2636, 25 M.P.L.R. (4th) 70 (S.C.J.); Lassen v. Calgary (City), 1985 ABCA 88, [1985] A.J. No. 1096, 19 D.L.R. (4th) 137, [1985] 5 W.W.R. 65, 38 Alta. L.R. (2d) 201, 60 A.R. 111, 29 M.P.L.R. 200, 32 A.C.W.S. (2d) 104 (C.A.) [Leave to appeal to S.C.C. refused [1985] S.C.C.A. No. 500, 62 N.R. 239n, [1985] 5 W.W.R. lxiv, 39 Alta. L.R. (2d) xlvi, 63 A.R. 80n, 37 M.P.L.R. xli]; McNulty v. Brampton (City), 2004 CanLII 5927 (ON SC), [2004] O.J. No. 3240, [2004] O.T.C. 682, 132 A.C.W.S. (3d) 1000 (S.C.J.); Teller v. Sunshine Coast (Regional District), 1990 CanLII 2131 (BC CA), [1990] B.C.J. No. 149, 67 D.L.R . (4th) 62, [1990] 3 W.W.R. 544, 43 B.C.L.R. (2d) 376, 48 M.P.L.R. 292 (C.A.) Statutes referred to Limitations Act, R.S.O. 1990, c. L.15, s. 47 [rep. 2002, c. 24, Sch. B, s. 26(1)] Municipal Act, R.S.O. 1990, c. M.45 [as am.] Municipal Act, 2001, S.O. 2001, c. 25, s. 44(9), (10), (12)

John J. Adair and Jeremy R. Solomon, for appellant. Thomas H. Wall, for respondent. [page368]

The judgment of the court was delivered by

GOUDGE AND LAFORME JJ.A.: -- A. Overview

[1] On February 4, 2004 at about 9:30 p.m., the appellant Derek Crinson left his work as the executive chef at Lula Lounge on Dundas Street in Toronto. He had only walked a short distance when he slipped on the ice-covered sidewalk on the south side of Dundas Street and suffered a badly fractured ankle.

[2] He was admitted to hospital that night and was operated on two days later. A permanent metal screw was inserted in his ankle. He was discharged on February 8. For the following two weeks, the appellant was given the drug Percocet to control his post-operative pain. The expert evidence from Dr. Dezso Kadar, an eminent pharmacologist, was that Percocet contains an active ingredient that is approximately twice as potent as morphine and that it has serious negative psychological side effects.

[3] The appellant sued the respondent City of Toronto for damages. There were two issues at trial: first, whether the appellant's failure to give notice within ten days of his injury as required by the Municipal Act, 2001, S.O. 2001, c. 25 (the "Act") was saved by a "reasonable excuse" as provided for by s. 44(12) of the Act; and second, whether the respondent was grossly negligent within the meaning of s. 44(9) of the Act.

[4] The trial judge decided both questions against the appellant and dismissed his action. For the reasons that follow, we conclude that he erred in both respects. We would therefore allow the appeal and, since damages have been agreed upon, grant judgment in that amount to the appellant.

[5] We will address each issue in turn. B. The Reasonable Excuse Issue

[6] The appellant suffered his injury on February 4, 2004. He gave notice of his claim to the respondent on June 30, 2004. The respondent does not argue that the action subsequently brought by the appellant was commenced after the expiry of the applicable statutory limitation period. What is at issue is whether the appellant complied with the obligation to give notice within ten days of the occurrence of his injury, an obligation sometimes referred to as a limitation period within a limitation period. The relevant sections of the Act are s. 44(10) and s. 44(12). They read as follows: [page369]

44(10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and the injury complained of has been served upon or sent by registered mail to, (a) the clerk of the municipality . . . . .

(12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence.

[7] The trial judge interpreted s. 44(12) to require the appellant to prove that he was so incapacitated in the ten days following his accident that he was unable to give notice to the City. Otherwise, his action was statute-barred. The trial judge put the test this way, at para. 6 of his reasons:

Pursuant to section 44(12) of the Municipal Act the plaintiff must prove that he was so incapacitated during the ten day notice period that he was unable to arrange for the notice to the City.

[8] The trial judge then applied this test to the evidence and concluded as follows, at paras. 17 and 18:

Dr. Kadar's opinion is, "Mr. Crinson's state of mind was severely impaired during the two weeks he was taking the [P] ercocet." Dr. Kadar did not specifically testify as to the plaintiff's capacity to make decisions nor did he testify at what point in time the [P]ercocet would likely affect decision making. He did say that after the plaintiff stopped taking the [P]ercocet, the effects on his brain would be eliminated in two to three days.

In line with Kors v. Toronto City I find that the plaintiff has failed to prove that he was so incapacitated that he was unable to make arrangements to send the required notice to the City within ten days. Therefore, the plaintiff's action is statute barred. He failed to provide a "reasonable excuse" under section 44(12) of the Municipal Act. (Citation omitted)

[9] The trial judge then went on to consider the effect of s. 44(12) on the assumption that his initial conclusion was in error and that the appellant was in fact incapacitated for the first ten days after his accident.

[10] He concluded that even if the notice period could be extended until the appellant was no longer affected by the Percocet he had been taking, the June 30, 2004 notice was far too late. He said this, at para. 29:

Even if I was to accept that the plaintiff was incapacitated from the time he entered the hospital until he stopped taking the [P]ercocet, the ten day notice period would begin to run from February 25, 2004, calculated from discharge from the hospital on February 8, 2004, p[l]us 14 days taking [P]ercocet plus 2 to 3 days to eliminate the effects of the [P]ercocet. The [page370] plaintiff's notice of June 30, 2004 was far outside the extended notice period and therefore, the plaintiff's action against the City is statute barred.

[11] The trial judge based his reading of s. 44(12) of the Act on two cases: Kors v. Toronto (City), [2006] O.J. No. 2636, 25 M.P.L.R. (4th) 70 (S.C.J.) and Bannon v. Thunder Bay (City) (2000), 2000 CanLII 5708 (ON CA), 48 O.R. (3d) 1, [2000] O.J. No. 1368 (C.A.). In Kors, the motion judge, in granting summary judgment dismissing a slip-and-fall claim, applied the test of incapacity insufficient to render the plaintiff unable to give notice, but did so without explanation.

[12] The trial judge gave much more attention to Bannon, in two important ways. First, he took it as appellate support for the incapacity test he applied, namely, that s. 44(12) required that the appellant be so incapacitated during the notice period that he could not comply. He quoted and applied the distinction made in Bannon between incapacity and simply failing to address one's mind to the steps that should be taken to protect one's legal interests after an accident.

[13] Second, the trial judge concluded that if the appellant was sufficiently incapacitated in the first ten days after his accident, Bannon extended the time limit for giving notice to ten days after the appellant ceased to be incapacitated.

[14] In our view, the trial judge erred in law in finding that s. 44(12) required the appellant to meet the incapacity test that the trial judge enunciated and in taking support for this from Bannon.

[15] Bannon was also a case about a fall on an icy sidewalk. It was decided in April 2000. However, it involved s. 47 of the then-existing Limitations Act, R.S.O. 1990, c. L.15, as it then was, not s. 44(12) of the Act. At that time, the former Municipal Act, R.S.O. 1990, c. M.45 required notice to be served within seven days of the accident and provided no exception whatsoever for an injury caused by ice on a sidewalk.

[16] Bannon held that s. 47 of the Limitations Act applied to offer some limited relief from the unjust result flowing from the Municipal Act, as it then was, in that it allowed an exception for a plaintiff who was of "unsound mind", in the rather archaic words of that section. The incapacity exception to the notice requirement applied in Bannon came from the Limitations Act, not the Municipal Act. In language echoed by the trial judge in this case, this court wrote this, at para. 34:

The standard set by s. 47 for establishing that a person is of "unsound mind" is a high one. A plaintiff must demonstrate incapacity. A debilitating condition short of incapacity cannot be relied on even though it makes compliance with a notice requirement or a limitation period more difficult. Nor can s. 47 be approached by asking whether the plaintiff, given his or her [page371] condition, could reasonably have been expected to give notice within the required time. While it might be eminently reasonable to conclude that an injured plaintiff was preoccupied with matters other than serving notice to the City within seven days of an accident, that preoccupation cannot be equated with incapacity for the purposes of s. 47 of the Limitations Act. Finally, one must also distinguish between incapacity and a simple failure to address one's mind to the steps, if any, which should be taken to protect one's legal interests after an accident. Again, it is understandable that an injured person wou ld be primarily concerned with his or her immediate well-being in the days following an accident and not with commencing legal action. Although understandable, a failure to advert to the need to take steps to preserve one's rights does not constitute incapacity. (Emphasis added)

[17] Importantly, however, the court concluded its reasons this way, at para. 72:

I must conclude that Ms. Bannon's action should be dismissed. This result is most unsatisfactory. It would be unreasonable to expect Ms. Bannon to have acted any sooner than she did. Nor is there any reason to believe that the City would have been in a better position to defend against the action had it received notice 10 days earlier than it did. Unfortunately, as the law now stands, Ms. Bannon had the misfortune of falling on an icy sidewalk and the City is therefore able to avoid the consequence of its gross negligence by reliance on a notice requirement which can only be described as draconian. This court has called for legislative action to prevent injustices caused by notice provisions like that found in s. 284(5) of the Act: eg. see Filip v. Waterloo, supra, at p. 540. At a bare minimum, a person who finds him or herself in the position of Ms. Bannon should have access to the limited exception to the notice requirement available in s. 284(6) to those whose injury is not caused by snow or ice on a sidewalk. (Emphasis added)

[18] The legislative response in 2001 was to enact both s. 44(10) of the Act to extend the period in which notice must be given to ten days, and s. 44(12) to provide relief from this if there is reasonable excuse and the municipality is not prejudiced in its defence. In 2002, the Act was amended to make both provisions applicable to a claim based on a fall on an icy sidewalk.

[19] This evolution in the governing legislation makes clear that relief from the notice requirement is not now confined only to the narrow circumstance of a plaintiff who is so incapacitated as to be unable to give notice to the municipality as that concept was set out in s. 47 of the Limitations Act.

[20] Apart from the case at bar, the interpretation of s. 44(12) and the concept of "reasonable excuse" has received some judicial consideration in Ontario. For example, in Cena v. Oakville (Town), [2009] O.J. No. 251, 56 M.P.L.R. (4th) 11 (S.C.J.), in a passage with which I agree, Murray J. wrote this, at para. 15:

In my view, the plaintiff should have the benefit of a broad and liberal interpretation of "reasonable excuse". Failure to comply with the 10 day [page372] time limit mandated by subsection 44(10) is a bar to an action where the plaintiff establishes reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence. Where the municipality is prejudiced in its defence, failure to comply with the time limit is a bar. In my view, the protection granted to the municipality where it is prejudiced in its defence is good reason why a liberal interpretation should be given to the words "reasonable excuse". (Emphasis in original)

[21] The statutory test introduced in 2001 requires the court to determine if there is reasonable excuse for the failure or insufficiency of notice. For over a century, similar language has been used from time to time in legislation in order to relieve against the very strict notice requirements that must be met before one can sue a municipality.

[22] The modern jurisprudence interpreting such language has emphasized, not surprisingly, that the words "reasonable excuse" should be given their plain and ordinary meaning and that the court should consider all the circumstances of the particular case in determining whether the plaintiff has indeed established reasonable excuse: see, for example, Lassen v. Calgary (City), 1985 ABCA 88, [1985] A.J. No. 1096, 60 A.R. 111 (C.A.), at pp. 114-15 A.R., leave to appeal to S.C.C. refused [1985] S.C.C.A. No. 500, 62 N.R. 239n; and Teller v. Sunshine Coast (Regional District), 1990 CanLII 2131 (BC CA), [1990] B.C.J. No. 149, 67 D.L.R. (4th) 62 (C.A.). In both cases, the court considered all of the circumstances, including whether or not the plaintiff knew of the need to give prompt notice, in coming to the conclusion that he had reasonable excuse for not giving notice on time.

[23] In our view, therefore, the trial judge erred in law in interpreting s. 44(12) to require the appellant to show incapacity in order to establish reasonable excuse. Rather, the question to be addressed is whether in all the circumstances of the case, it was reasonable for the appellant not to give notice until June 30, 2004.

[24] The respondent does not argue that the delay in receiving notice caused any prejudice to its defence. No evidence was led to support such a claim.

[25] Thus, in determining whether this action is barred by s. 44(10), the only issue is whether, on the facts of this case, the appellant has met the test of reasonable excuse in s. 44(12), properly interpreted. In our view, this court is in a position to address that question in light of the record before it. At trial, the appellant argued for the broader interpretation of s. 44(10) that we have accepted. He called the evidence available to him on that issue, particularly the circumstances affecting him from the date of the accident through to the end of June. The respondent [page373] essentially chose not to cross-examine on this evidence and called no evidence to contradict it. However, it was a live issue at trial. Fairness does not therefore require a new trial.

[26] The trial judge made only one finding of fact relevant to this issue. He accepted that the appellant did not turn his mind to any action against the respondent until he was contacted by a lawyer. This was shortly before June 30, 2004, when notice was actually given. The trial judge made no adverse finding or comment about the credibility of either the appellant or his witnesses. Nor does the record suggest any basis for doing so. What remains is the uncontested evidence called by the appellant to explain why he did not give notice until June 30, 2004. The question is whether that evidence constitutes reasonable excuse, a question which is essentially legal, not factual and is something this court is able to address. A new trial is not needed.

[27] The relevant evidence begins with the appellant himself. He was born in England in 1956 and was 48 years old in the spring of 2004. He lived with his wife and son, who was then 17. After high school, the appellant went to catering college for two years and obtained his trades papers as a qualified chef. That has been his only occupation, first in England, then Bermuda and, since 1982, in Canada, where he has worked as an executive sous chef or executive chef in Toronto at several French restaurants and institutional restaurants, such as the Fitness Institute.

[28] At the time of the accident, the appellant was the executive chef at Lula Lounge, a restaurant with a seating capacity of approximately 140 people. He was a working chef whose job required long hours on his feet and extensive mobility. While he had no ownership stake in the restaurant at the time, he had discussed becoming a partner with the owners of the restaurant. This was something he was really looking forward to.

[29] The injury suffered by the appellant on February 4 was significant. The emergency room doctor advised that he had dislocated and broken his ankle. Two days later, he was operated on and a permanent screw was inserted to repair his ankle. He remained in hospital until February 8, heavily sedated to control post-operative pain. For the two weeks following his release, he was given Percocet, which the expert evidence described as rendering his state of mind severely impaired for that period and several days beyond.

[30] The appellant was in a cast for 12 weeks after the accident, which left him very much restricted and with limited mobility. Once his cast was removed, he was placed on an intensive [page374] physiotherapy program for another 12 weeks that occupied him for approximately 40 hours per week.

[31] About two months after the accident, the appellant began making occasional visits to the Lula Lounge. Because of his very restricted mobility, he could only sit on a chair in the kitchen and observe. His sous chef had taken over his work. It was not until the end of that summer that the appellant was able to resume any of his previous responsibilities. However, even at the time of trial, he had not fully resumed the hands- on preparation of entrees that was a significant part of his work before the accident. Both he and the owners realized that he would never be able to take on the partnership role they had previously discussed.

[32] Not surprisingly, the severity of the appellant's injury, the intensive therapy it required, the resulting impact on his job and the threat all this posed to his future career and his ability to provide for his family had a real impact on his mental health.

[33] The appellant, his son and the general manager of Lula Lounge gave evidence about the appellant's resulting mental state through to the summer of 2004. The appellant described feeling anxious, confused, depressed and worried about his position at the restaurant, his potential inability to go back to his occupation as a chef, and whether he would be able to look after his wife and son and their house. He was deeply concerned that his career, including a possible partnership in the restaurant, was going to be taken away from him.

[34] His son described the appellant as being very down and irritable during this period, keeping mostly to himself and confined mostly to one room in the house. Prior to the accident, he had been active and communicative.

[35] The general manager described someone who went from being extremely energetic and gregarious before the accident to being very quiet and depressed.

[36] These descriptions of the appellant's state of mind are consistent with his evidence that despite his efforts to overcome his emotional difficulties, they persisted and finally resulted in his family doctor prescribing Lorazepam for him in November.

[37] The appellant acknowledged that he simply did not know that he was required to give notice to the City within ten days, and that he ultimately did so when he was contacted by a lawyer. Given his mental state and the reasons for it, it is hardly surprising that until then, he did not turn his mind to it.

[38] Taken together, this evidence describes a man who suffered a serious injury requiring a prolonged period of rehabilitation, [page375] during which he was deeply worried about his job, his ability to provide for his family and whether he would ever be able to return to the only career he had known. He was understandably depressed. In these circumstances, not knowing he was required give notice to the respondent, it was reasonable that he did not do so until the end of June.

[39] We conclude that the appellant has established reasonable excuse for the purposes of s. 44(12). Since the respondent does not assert any prejudice to its defence, we conclude that the appellant's action is not barred by s. 44(10) of the Act.

[40] We now consider whether the appellant has established gross negligence on the part of the City. C. The Gross Negligence Issue

[41] In our view, the trial judge misunderstood the appellant's position on the issue of gross negligence. Accordingly, his decision is not entitled to deference. Indeed, as will be demonstrated below, the evidence clearly supports a finding of gross negligence.

[42] The trial judge found that the sidewalk salting began at 2:00 p.m. on February 4, 2004 and that it would take 12 hours to cover the relevant area. He concluded that the City was not grossly negligent because the appellant's injury occurred at 9:00 p.m., before the salting could be finished.

[43] However, this was not the appellant's position at trial. The appellant did not argue that the salting should have been done faster; he argued that the salting should have been started earlier. He relied on evidence that the roads were salted the previous day because the patrollers were concerned about icy conditions. In other words, the critical issue was whether the City was grossly negligent by not salting the sidewalks until well after the roads were addressed.

[44] Given that the trial judge did not appreciate the appellant's position at trial, he did not make the factual findings necessary to determine the issue. The findings that he did make -- namely, that the City began its response at 2:00 p.m. on February 4, 2004 and took 12 hours to finish -- do not undermine the appellant's argument. 1. Definition of gross negligence

[45] Section 44(9) of the Act provides: "Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk."

[46] Gross negligence has a long history in the municipal law context as has the search for a definition. In the seminal case of Drennan v. Kingston (City) (1897), 1897 CanLII 2 (SCC), 27 S.C.R. 46, [1897] S.C.J. No. 4, at p. 60 S.C.R., [page376] Sedgewick J. defined gross negligence as "very great negligence". More recently, this court rejected the argument "that gross negligence in this context requires proof of misconduct that is wilful, wanton or flagrant": Dagenais v. Timmins (City), [1995] O.J. No. 505, 31 M.P.L.R. (2d) 196 (C.A.).

[47] A review of jurisprudence discloses that the courts have not defined gross negligence with any degree of linguistic precision. However, it is clear that there must be more than a breach of a duty of care; the breach must rise to a level that can properly be described as gross negligence. Although a precise definition may be elusive, courts are nonetheless equipped to decide the issue of gross negligence. As noted by O'Connor J. in McNulty v. Brampton (City), 2004 CanLII 5927 (ON SC), [2004] O.J. No. 3240, [2004] O.T.C. 682 (S.C.J.), at para. 28:

[T]o a great extent, the determination of gross negligence depends on the facts of each case. It depends on the application of a less than precise definition of gross negligence, interpreted through the prism of common sense.

[48] As O'Connor J. notes, the salient point is that gross negligence is a question to be decided on the facts of each case. 2. Application to this case

[49] The most compelling evidence at trial comes from three City witnesses: Raynor Wilmot, a maintenance patrolman for the City; Brian Carroll, a supervisor of repair for the City of Toronto Transportation Services Department; and Rosario Carnovale, the district superintendent for road operations responsible for the sidewalks. The totality of their evidence at trial establishes several important facts.

[50] First, the City's goal was to be proactive and take steps to prevent dangerous conditions. However, icy conditions on sidewalks were addressed only if the City received a complaint from a resident or if the supervisor, in his discretion, believed that the conditions warranted remedial action.

[51] Second, the supervisors obtained their knowledge of the sidewalk conditions from one of three sources: City patrollers who drove the streets; weather forecasts; and, on occasion, their own observations if they left the office to inspect the sidewalks themselves. The patrollers were authorized to call out salt or sand trucks for the roads, but not the sidewalks. The sidewalks were exclusively the domain of the supervisors.

[52] The conduct of the City must be evaluated against the background of these policies, such as they are. A review of the evidence at trial establishes the following: [page377] (i) A City patroller called out the road salters on February 3, 2004 at 3:55 a.m. because he was concerned about dangerous road conditions. He acknowledged that these conditions would exist "as much on the road as on the sidewalk"; (ii) another City patroller called out the road salters on February 3, 2004 at 6:00 a.m. because of a continuing concern against dangerous conditions; (iii) on the two occasions when the road salters were called out, no action was taken regarding the sidewalks; (iv) a City patroller called out the sidewalk salters on February 4, 2004 at 2:00 p.m. because of concerns about icy conditions. The sidewalk maintenance took 12 hours to complete; (v) as a result of the precipitation and drop in temperature, the sidewalk where the appellant fell was covered in ice on February 4, 2004. The ice had been present since some time on February 3, 2004; and (vi) the appellant slipped on an icy sidewalk on February 4, 2004 at 9:00 p.m., some seven hours after the sidewalk maintenance began.

[53] In sum, the evidence at trial established that almost 34 hours elapsed from the time the City became aware of dangerous sidewalk conditions and when it responded. The City offered no explanation for why the sidewalks were not addressed on the morning of February 3, 2004, when the City first became concerned about the weather, although the roads received significant attention.

[54] It has long been the law in Ontario that if a municipality permits a slippery, icy sidewalk in a busy area of the city to remain unprotected or ignores it altogether and someone is injured, that would constitute gross negligence: see Huycke v. Coburg (Municipality), 1937 CanLII 93 (ON CA), [1937] O.R. 682, [1937] O.J. No. 308 (C.A.), at p. 690 O.R. A city must take reasonable steps to keep the sidewalks free of dangerous conditions.

[55] In our view, the evidence clearly establishes that the reasonable steps required of the City in this case were to commence the sidewalk salting earlier, in the same manner that the road salters were sent out because the patrollers were concerned about icy conditions. The failure to do so amounts to gross negligence. [page378] E. Disposition

[56] We would allow the appeal and set aside the judgment of the trial judge. We would grant judgment in favour of the appellant in the agreed upon amount of $288,000 and award costs of the appeal in the agreed upon amount of $12,000, inclusive of disbursements and GST. The appellant is also entitled to his costs of the trial, as assessed.

Appeal allowed.