INtroduction

[1] Ms. Dawson’s motion for an extension of time to file a notice of appeal is granted. These are my reasons.

background facts

[2] As a result of severe weather conditions, branches fell on Ms. Dawson’s property causing damage to her property as follows: on or about June 3, 2012, damage to the house roof and eaves trough; on or about October 24, 2017, damage to the cedar fence, iron fence and brick wall; on or about April 4, 2018, damage to Ms. Dawson’s cedar fence.

[3] Ms. Dawson commenced an action against the City of Toronto (“the City”). She claimed $25,000 in damages. After a two-day trial, Deputy Judge Nadler dismissed Ms. Dawson’s claim. The deadline to file the Notice of Appeal was February 4, 2019. Ms. Dawson failed to serve a Notice of Appeal within the appeal period prescribed by the Rules of Civil Procedure (“the Rules”), she was one day late. Ms. Dawson seeks leave to file her Notice of Appeal.

issues

[4] The Rules set a 30-day limit in which to commence an appeal. This period may be extended or abridged: Rule 61.04(1), 3.02(1). This extension may be obtained on consent: Rule 3.04(4). Consent was not forthcoming from the City in this case.

[5] The ‘justice of the case” is considered in determining whether an extension should be granted. The factors to consider include:

a) Did the moving party form a bona fide intention to appeal within the prescribed time period?

b) the length and explanation for the delay;

c) any prejudice the delay has caused the responding parties; and

d) whether the appeal has merit: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 (Ont. C.A.), 114 or (3D) 636, at para. 15.

[6] In this case, Ms. Dawson received the judgment on January 5, 2019. It was dated January 4, 2019. Ms. Dawson erroneously thought she had 30 days from the date of receipt and filed her Notice of Appeal and Certificate of Evidence on February 5, 2019.

[7] In an effort to obtain consent for extension of time to file her Notice of Appeal, Ms. Dawson wrote to the City on February 26, 2019 and called the City on February 28, 2019. The City did not provide consent.

[8] From the foregoing, it is apparent that Ms. Dawson formed a bona fide intention to appeal within the time prescribed by the Rule. A one-day delay is far from excessive. Her explanation for the delay is reasonable and an extension of time will cause no articulable prejudice to the City. The only remaining issue is whether the proposed appeal has merit.

discussion / analysis

[9] By interlocutory order, Deputy Judge Nadler denied Ms. Dawson’s motion to plead res ipsa loquitur. As a general rule, s. 31 of the Courts of Justice Act does not provide for an appeal to the Divisional Court of an interlocutory order of a Small Claims Judge: Courts of Justice Act, R.S.O. 1990, Chap. C.43 s.31, Grainger v. Windsor-Essex Children’s Aid Society, 2009 34987 (ON SC), 96 O.R. (3d) 711, at para. 22. The order denying Ms. Dawson’s motion was interlocutory in nature.

[10] In any event, even if such an avenue of appeal was available, Deputy Judge Nadler was correct. The doctrine of res ipsa loquitur is no longer applicable. The Supreme Court has held that the doctrine now serves no useful purpose in Canadian law: Fontaine v. British Columbia (Official Administrator), 1998 814 (SCC), [1998] 1 S.C.R. 424, at paras. 26-27.

[11] Ms. Dawson submits that the trial judge erred as follows:

Failure to hold the City responsible for damages caused by the City’s trees.
Failure to hold the City responsible for damages stemming from the City’s use of city property.
Failing to consider conflicting evidence in the City’s documentation and the evidence of expert witness Adam Wright on the conditions of the trees.
Failure to consider impacts of four incidents of falling branches in 10 years on claims of negligence, nuisance and under the Occupiers Liability Act.
Failure to consider evidence from Ms. Dawson that she had informed and alerted the City that the trees had a history of falling branches and had sought a change in an encroachment agreement with the City to reflect that.
Failure to consider the Supreme Court of Canada’s decision in Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228, even though the case was referred to in written and oral submissions.

[12] The City submits that the trial judge gave thorough reasons and made no errors in fact or law and thus there is no merit to Ms. Dawson’s appeal.

[13] The test on review on errors of law is one of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 9-10 (S.C.C.). On factual findings it is one of palpable and overriding error: Housen, at para. 10. On mixed factual law is one of palpable and overriding error unless the error can be traced to an error of law in which case the standard is one of correctness: Housen, at paras. 27, 31-36.

[14] The Just decision stands for the proposition that a government agency owes a duty of care, to those using its property, to maintain reasonable maintenance of the said property. The trial judge considered this principle and found that the City owed Ms. Dawson a duty of care but had not breached that duty of care. In reaching that decision, the trial judge accepted and relied on the unchallenged evidence of the City expert, Adam Wright. The trial judge was entitled to rely on the expert’s unchallenged interpretation of the City’s efforts to maintain the trees and his expert opinion on the overall health of the trees.

[15] Overall, the trial judge considered and correctly applied the applicable legal principles; though the trial judge did not specifically refer to evidence about the various level of decay of the trees, a review of the reasons for judgment, in entirety, reveals that this consideration was not ignored: January 4, 2019 Reasons for Decision, para. 13-29.

[16] The trial judge’s findings of fact were available to the judge on the record, reasonable and do not constitute a palpable and overriding error. Despite this conclusion, another factor leads me to conclude that the “justice of the case” warrants an exercise of my discretion to grant an extension. At paragraph 9 of the reasons the trial judges writes:

…According to paragraph 17 of Ms. Dawson’s written submissions, the City asked Ms. Dawson to sign a draft encroachment agreement with the City dealing with the proposed steel fence. According to Ms. Dawson’s submissions she had concerns about the agreement, but I have not been directed to any correspondence between Ms. Dawson and the City reflecting specifically what these concerns might have been.

[17] At trial a letter from Ms. Dawson, dated March 17, 2014, to the City with respect to the encroachment agreement was filed at trial. This is an excerpt from the letter:

I will require a clause in the agreement that confirms that all liability for the four trees (see attached sketch) and any falling branches is entirely with the City. This is because the City will not let me trim the four trees in question. All four trees are on the city flankage. There is a history of falling branches causing damage including from the fifth tree, which the City cut down sometime ago.

Please revise the draft agreement accordingly.

[18] Upon complete review of the trial judge’s thorough reasons it is apparent that this letter was not considered and it is an open question whether this would have impacted the manner in which the trial judge addressed the unchallenged evidence of the expert. Under these circumstances, the justice of the case warrants granting a short extension. Ms. Dawson is granted a 12-day extension, from the date of this decision to file her Notice of Appeal.

[19] The positions of both parties on this motion had merit, therefore, there shall be no cost order.

Barnes J.

Released: August 9, 2019

CITATION: Dawson v. City of Toronto, 2019 ONSC 4733

COURT FILE NO.: DC-19-0014

DATE: 2019 08 09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JULETH DAWSON

Plaintiff (Appellant)

and -

CITY OF TORONTO

Defendant (Respondent)

REASONS FOR DECISION

Barnes J.

Released: August 9, 2019

Dawson v. City of Toronto, 2019 ONSC 4733

Case Summary

INtroduction

background facts

issues

discussion / analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 2