Court of Appeal for Ontario

Citation: Bondy v. London (City), 2014 ONCA 291

Date: 20140415

Docket: C56843

Before: Feldman, Rouleau and Hourigan JJ.A.

Between

Jo Ann Bondy

Plaintiff (Appellant)

and

The Corporation of the City of London and Elona Helen Lyszczek

Defendants (Respondents)

Counsel:

Douglas M. Bryce and Maciek R. Piekosz, for the appellant

Stephen R. Schenke and Jasmine T. Akbarali, for the respondent, Elona Helen Lyszczek

Geoffrey P. Belch, for the respondent, The Corporation of the City of London

Heard and released orally: April 2, 2014

On appeal from the judgment of Justice Kelly A. Gorman of the Superior Court of Justice, dated February 27, 2013.

ENDORSEMENT

[1] The appellant appeals the decision of Justice Gorman that dismissed her action for a slip and fall injury brought against both the City of London and the property owner adjacent to where she fell. The action against the City of London is based on s. 44(1) of the Municipal Act, S.O. 2001, which provides “the municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge”.

[2] The appellant fell on a sloped boulevard between the street and the sidewalk. She fell on the paved portion of the boulevard which connects to the driveway of the adjacent property owner, the respondent, Ms. Lyszczek. That boulevard is city property. The fall occurred at 10:00 a.m. after freezing rain had fallen. All parties acknowledge that the boulevard is a highway, within the meaning of the Municipal Act. Therefore, the highest standard to which the area needs to be maintained by anyone is as a highway for vehicles, not as a passageway for pedestrian traffic, subject to any special circumstances.

[3] The appellant submits that because from time to time people will cross the road in the middle between intersections that that creates a special circumstance that elevates the standard of maintenance. We do not agree.

[4] This is a common situation. The fact that people may cross at undesignated places on a road does not create or impose on the Municipality a higher level of maintenance obligation. We would dismiss the appeal as against the City.

[5] As against the adjacent property owner, the appellant says that the respondent is an occupier in fact, within the meaning of the Occupiers’ Liability Act, RSO 1990, c O-2, ss 1 3(1) and because of the street By-law of London. We reject those submissions.

[6] First, we agree with the trial judge where she stated in para. 76 of her reasons that the By-law does not impose a duty on the respondent, Ms. Lyszczek, to remove snow and ice. Nor is there anything in the By-law which makes the respondent an occupier within the meaning of the Occupiers’ Liability Act. Second, there are no special circumstances on the facts of this case that place the respondent in “control” of the boulevard, within the meaning of the Occupiers’ Liability Act. We agree with Justice Gorman at para. 83 of her reasons, where she stated:

On the facts before me I am unable to conclude that Ms. Lyszczek exercised any control over the boulevard. She certainly did not restrict others from accessing it. Indeed she did not salt it, on her evidence, because she did not think it was her responsibility to do so. Accordingly, while it is possible for an adjacent property owner to be held liable under the Occupier’s Liability Act, I find that Ms. Lyszczek is not liable.

[7] In the result, the appeal is dismissed with costs agreed at $10,000, inclusive of HST plus disbursements, payable by the appellant to the respondent, Lyszczek, and in the reduced amount of $7,500, inclusive to the City in order to reflect costs on a partial indemnity basis.

“K. Feldman J.A.”

“Paul Rouleau J.A.”

“C. William Hourigan J.A.”