Court File and Parties

Citation: City of Toronto v. Guy, 2010 ONSC 5220 Newmarket Divisional Court File No.: DC-09-000004-00 Date: 2010/09/22

Ontario Superior Court of Justice - Divisional Court

Re: City of Toronto v. Veir Guy

Before: Jennings, Herman, Harvison-Young JJ.

Counsel: Peter C. Williams, Gaynor J. Roger, for the Appellant City of Toronto Alan C. Preyra, for the Respondent Veir Guy

Heard: September 20, 2010

Endorsement

[1] The Appellant City of Toronto relies on a number of errors which it claims the trial judge made in reaching the decision appealed from. First, it alleges that the trial judge erred in finding that the laneway where the accident occurred was frequented by pedestrians, and that the City knew or ought to have known that to be the case. We disagree. There was ample evidence before the trial judge to ground this finding, and the Appellant has not established any palpable and overriding error that could justify interfering with it.

[2] Second, the City submits that the trial judge erred in finding that the laneway should receive the same standard of maintenance as a sidewalk. Again, we disagree. The trial judge directed himself to the appropriate authorities on the point. It is clear as a matter of law that the standard of maintenance that to be applied to an area used by pedestrians is fluid and depends on a number of considerations including the use made of the area by the public: see, for example, Gartlan v. City of Toronto, [1942] O.J. no. 444; Bellefleur v. City of London, [2002] O.J. No. 3836. We are unable to conclude that the trial judge erred in reaching this conclusion as to the standard of maintenance required.

[3] Third, the City submits that the trial judge erred in finding that the laneway was a sidewalk, but in failing to apply the strict notice period which is applicable to sidewalks pursuant to section 284(6) of the Municipal Act, R.S.O. 1990, c.M.45, as amended. We do not agree that the trial judge found that the laneway was a sidewalk, although he did find that the laneway attracted a standard of maintenance similar to that of a sidewalk. Neither counsel took the position that the laneway was a sidewalk at trial or in the course of the hearing of this appeal. Moreover, given the nature of the laneway, and the fact that someone in Ms. Guy’s position could not have expected at the time that a notice period applicable to a sidewalk would apply to a laneway such as this one, we do not find that the trial judge erred in declining to find that it was a sidewalk for the purpose of the notice provision as it then was in section 284(6).

[4] Fourth, the City argues that the trial judge erred in failing to consider whether Ms. Guy was contributorily negligent in using the laneway as a shortcut. In our view, the trial judge’s reasons clearly indicate that he did take this into account: see, for example, paragraph 89. In addition, he expressly considered her footwear and the fact, as he found, that she was walking carefully at the time: see paragraph 12. We are unable to conclude that, in declining to find the Respondent contributorily negligent, the trial judge erred in law.

[5] The Appellant also seeks to appeal the trial judge’s award of costs, arguing that the amount awarded was excessive and failed to take adequate account of aspects of the plaintiff’s conduct of the action which should have further reduced the award of costs. In our view, the trial judge was alive to the issues raised by the appellant with regard to costs, and we see no reason to interfere with the exercise of his discretion in this regard. Accordingly, while leave to appeal the costs order is allowed, the appeal as to costs is dismissed. It is to be noted that in exercising that discretion, the trial judge significantly reduce the costs from the level claimed.

[6] For the foregoing reasons, the appeal is dismissed. The Respondent advised that it was seeking costs, if successful, on a partial indemnity basis of $18,894 inclusive of GST and disbursements. The Appellant submitted a Bill of Costs in the amount of $83,230.42, inclusive of costs and disbursements. While the amount claimed by the Respondent appears reasonable when compared to that claimed by the City, we are of the view that a costs order in the amount of $15,000 inclusive of GST and disbursements, payable by the Appellant to the Respondent is reasonable in the circumstances.

Justice J.R.R. Jennings

Justice T.P. Herman

Justice A.L. Harvison-Young

DATE: September 22, 2010