McHardy v. Ball, 2013 ONSC 6564

CITATION: McHardy v. Ball, 2013 ONSC 6564

DIVISIONAL COURT FILE NO.: DC-450

DATE: 20131114

SUPERIOR COURT OF JUSTICE Ð ONTARIO

DIVISIONAL COURT

RE: william McHardy, a person under disability by his litigation guardian, Tara Luck, William McHardy Sr., Katherine McHardy and Tara Luck, Plaintiffs

AND:

David Ball, Eric Ball and City of Barrie, Defendants

BEFORE: Justices Matlow, Taliano and Wilton-Siegel, JJ.

COUNSEL: C. Kirk Boggs, for the Defendant, (Appellant), City of Barrie

Adam R. Little, for the Plaintiffs (Respondents)

K. Kamra, for the Defendants, (Respondents), David Ball and Eric Ball

HEARD : at Oshawa on September 16, 2013

ENDORSEMENT

Wilton-Siegel J.

[1] The City of Barrie (the ÒappellantÓ), appeals an order dated February 14, 2012 of DiTomaso J. (the ÒOrderÓ) dismissing the appellantÕs motion for summary judgment in respect of the appellantÕs assertion that the action is statute-barred as against it pursuant to paragraph 44(8)(b) of the Municipal Act 2001, S.O. 2001, c. 25 (the ÒActÓ).

[2] The relevant provision of the Act reads as follows:

(8) No action shall be brought against a municipality for damages caused by,

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(b) any construction, obstruction or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement.

[3] The motion judge concluded that a genuine issue requiring a trial existed regarding whether the plaintiffÕs claim was statute-barred under paragraph 44(8)(b) of the Act. His finding on this issue is set out in paragraphs 87-90 of his reasons for decision dated February 14, 2012 (the ÒReasonsÓ) as follows:

[87] Upon consideration of all the authorities cited by counsel, and upon the application of the full appreciation test, in my view there is a genuine issue requiring trial as to whether the plaintiffsÕ claims are statute-barred by operation of s. 44(8), and in particular sub-paragraph (b) of the Municipal Act, 2001. A technical and restrictive interpretation by the City would locate Mr. McHardyÕs vehicle colliding with the pole on the untravelled portion of the highway. A more contextual and obviously less literal approach would characterize the traffic pole location in the middle of the intersection as an integral part of the highway. The plaintiffs submit that this is favoured interpretation leading to the result that their claims are not statute-barred.

[88] Whether the plaintiffsÕ claim is statute-barred is a genuine issue requiring a trial which should not be determined on this summary judgment on this record. This issue cannot be determined in isolation. Rather, it exists within a factual matrix. Whether this precluding section of the Municipal Act, 2001 applies necessarily involves findings of fact as well as the determination of a legal question properly left to the trial judge hearing all the evidence at trial. The full appreciation test can only be achieved by way of a trial.

[89] In concluding there are genuine issues requiring a trial, I understand the full appreciation test transcends achieving a familiarity with or a working knowledge of the evidence in the motion record. Rather, a broader view of all the evidence presented is required through the lens of Òwhether the attributes of the trial process are necessary to enable the motion judge to fully appreciate the evidence and the issues posed by the case.Ó

[90] I have determined that ours is such a case Òwhere meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and experience the fact-finding process first-hand.Ó I have concluded that a full appreciation of the evidence and issues required to make dispositive findings are not attainable on the motion record. I have not been satisfied by the moving party City that the issues are appropriately resolved on a motion for summary judgment. The appreciation test is not met and the Òinterest of justiceÓ requires a trial.

[4] We agree with the appellantÕs submission that the effect of the amendment to the predecessor of paragraph 44(8)(b) was to provide for the possibility that portions of a highway such as, for example, a median could constitute an Òuntravelled portion of a highwayÓ to which the statutory bar in paragraph 44(8)(b) applies.

[5] The appellant submits that there are no material facts in dispute relating to the applicability of the statutory bar in paragraph 44(8)(b) of the Act and that the only issue for purposes of the application of the statutory bar is whether the pole was located on an Òuntravelled portion of the highwayÓ. It argues that the motion judge erred in failing to apply the correct interpretation of paragraph 44(8)(b) to such facts.

[6] The issue in this motion is the meaning of an Òuntravelled portion of a highwayÓ. In Ouellette v. The Corporation of the Town of Hearst et al (2004), 2004 36122 (ON CA), 70 O.R. (3d) 204, the Court of Appeal expressed the purpose of the predecessor provision to paragraph 44(8)(b) to be to Òprotect municipalities from actions brought by drivers who go where they are not expected to go (off the highway);ÉÓ (italics added).

[7] The appellant argues that, for this purpose, the intention of the municipality as to where drivers should go or not go should be determinative. That is, an Òuntravelled portion of a highwayÓ is that portion of a highway which the municipality does not intend will be used by the public in ordinary and normal use. As support for its interpretation, the appellant principally relies on the decision of the Court of Appeal in MacDonald v Lefebvre, 1962 111 (ON CA), [1962] O.R. 495-503. In that decision at p. 500, Laidlaw J.A. expressed the view that the liability of a municipality to a user of a highway for the purpose of travel Òis limited to that portion that has been provided and is intended for ordinary and normal use for that purpose or which has in fact been commonly and habitually used by the public for that purposeÓ.

[7] The respondents argue that the issue of where drivers are expected to go or not go is a more objective one that is determined by what is reasonably foreseeable in any given circumstances.

[8] We agree with the respondents that the concept of expectation contemplated by the Court of Appeal for the purposes of paragraph 44(8)(b) refers not to the intention of the municipality but rather to the reasonably foreseeable interaction of the public with the highway, or any portion thereof. To the extent that it is reasonably foreseeable that vehicles on the highway may go on a median, or contact an object on a median, whether voluntarily or involuntarily, a median would constitute a portion of a highway that is travelled.

[9] In this case, there are two possible bases for a conclusion that the median was not Òan untravelled portion of a highwayÓ. Each entails material factual issues that require a trial for determination.

[10] The principal basis is that the median is not a place where drivers are not expected to go, that is, that it is reasonably foreseeable that drivers will enter upon, or otherwise contact, the median in the ordinary and normal use of the highway. In his Reasons, the motion judge at paragraph 45 sets out a number of issues that the plaintiff says form part of the Òfactual matrixÓ necessary for a determination regarding the reasonable foreseeability that the public would go on the median. These include the nature of the intersection and the operating speed of motorists using the intersection. We concur that the full appreciation test could not be satisfied in respect of this issue.

[11] The alternative basis is that the median is a place upon which it is reasonably foreseeable that pedestrians will go. The pictures of the intersection demonstrate that there are lines for a pedestrian crossing slightly beyond the median strip into the intersection. It would be reasonable to expect that, from time to time, a pedestrian who was unable to complete a crossing before the light changed would have recourse to the median for safety. As there is no difference for present purposes between reasonably foreseeable vehicular traffic and reasonably foreseeable pedestrian traffic, the median could constitute a travelled portion of the highway: see Jacob v. Tilbury [1940] O.J. No. 237 (H.C.J., affÕd [1940] O.J. No. 289 (C.A.). Determination of this issue requires that the physical layout of the intersection in summer and winter, the operation of the traffic signals, and the extent of pedestrian usage of the median be fleshed out at trial.

[10] Based on the foregoing, we have concluded that the motion judge did not err in denying summary judgment and, accordingly, the appeal is denied. It is understood that the parties have agreed on costs of this appeal in the event. If an order of this court is required, the parties should contact the Divisional Court office within fifteen days.

Taliano J.

Wilton-Siegel J.

Matlow J. (Concurring)

[11] I agree with the disposition of the majority but for somewhat different reasons.

[12] The only issue in dispute on the motion for summary judgment was whether the appellant was entitled to be found entitled to the protection of section 44(8)(b) of the Municipal Act, 2001, set out in paragraph 2, above, without being required to engage in a trial. The determination of the issue depended entirely on whether the median, and the pole on which it was erected, were on Òany untravelled portion of a highwayÓ as those words are used in the statute. If the median and pole were found to have been on Òany travelled portionÉÓ , the appellant would have been entitled to succeed on the motion.

[13] In paragraph 8 of his Reasons for Decision the motion judge stated as follows:

[8] None of the material facts as to how this accident happened are in dispute.

[14] As well, it was agreed that the injuries and loss suffered by the principal plaintiff occurred when the vehicle in which he was travelling was propelled on to the median and came into contact with the pole.

[15] It was also agreed that the median and the pole were located in the intersection where the accident occurred, shown on the photographs in evidence as in Òa travelled portion of the highwayÓ. It is obvious that the median and pole were located there for the obvious purpose of separating lanes and directing drivers of vehicles where to proceed along the Òtravelled portion of the highwayÓ. (See photographs of the median and pole in the Appeal Book and Compendium of the appellant, volume 2, tab 16, at pages 440 to 446).

[16] The motion judge did not state what further evidence relevant to the section 44(8) issue could conceivably be adduced at a trial. Nor, in my view, was counsel for the plaintiffs able to do so. The further evidence to which the motion judge referred was evidence that might have had relevance only to the issue of negligence on the part of Barrie for installing, on the median, a pole that would not break away on impact.

[17] All that the motion judge was required to do to determine the motion was interpret the provision of the statute and apply it to the agreed facts. The applicable language of the Act was, as it related to the motion before him, clear and the record before the judge was full and complete and sufficient to enable the motion judge to gain a full appreciation of the issue.

[18] In my view, there was no reasonable interpretation of the statute that could reasonably have lead to the conclusion that the median and the pole were on an untraveled portion of the highway.

[19] Based on this analysis, I respectfully disagree with the motion judge and with my colleagues that this action was required to proceed to trial so that further evidence can be adduced and considered for the determination of the issue raised by the motion. No further evidence on the issue raised could reasonably alter the finding that could readily have been made by the motion judge, albeit only for the limited purpose of his disposition of the motion.

[20] In my view, in these circumstances, the only reason why this action must be allowed to proceed to trial is because the defendant, even though it failed in its effort to obtain summary judgment, is still entitled by the Rules to proceed to trial where it can raise the same issue again. In the absence of a cross-motion by the plaintiffs, it was not open to the motion judge, even if he had been so inclined, to grant summary judgment on the issue in favour of the plaintiffs and resolve it once and for all because that option, in my view, is not available pursuant to rule 20.04.

[21] It is, in part, to demonstrate what I respectfully consider to be a recurring anomaly, that I take this opportunity to write these separate reasons.

Matlow J.

Date: November 14, 2013