CITATION: Hamilton-Dawkins v. Ajax (Town), 2025 ONSC 1591
DIVISIONAL COURT FILE NO.: DC-24-1551-00
DATE: 20250317
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
W.D. Newton RSJ, D.L. Corbett, and Nakatsuru JJ.
BETWEEN:
Hamilton-dawkins
D. A. Zuber, for the Plaintiff Represented),
Appellant
- and -
CORPORATION OF THE TOWN OF
N. Marotta and P. Cianfarani, for Ajax
AJAX
Respondent
HEARD at Oshawa: January 20, 2025
REASONS FOR DECISION
W. D. Newton RSJ
Overview
[1] Ms. Hamilton-Dawkins appeals the decision of Sutherland J. dismissing her action for damages arising from her fall on a Town of Ajax (the "Town") sidewalk.[^1]
[2] Prior to trial, the parties agreed on the following:
a. The plaintiff tripped and fell in front of 38 Clements Road East.
b. The plaintiff's trip and fall, and her resulting injuries, were caused by a surface discontinuity on or within the sidewalk in front of 38 Clements Road East.
c. The sidewalk surface discontinuity that caused the plaintiff's trip and fall and injuries constituted a state of non-repair within the meaning of section 44(1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended (the "Act").
[3] As the parties had also agreed on damages, the sole issue for trial was whether any of the defences under s. 44(3) of the Act excused the City from liability.[^2]
[4] The trial judge found that, as the Town "did not know and could not reasonably have been expected to have known about the state of repair" of the sidewalk, s. 44(3)(a) of the Act applied and dismissed the plaintiff's action.
[5] The plaintiff argues that the trial judge failed to assess the adequacy of the Town's inspections, failed to weigh evidence tendered under the Evidence Act, and reversed the onus of proof under the Act.
[6] For the reasons that follow, I would find that the trial judge did not commit any of these errors and would dismiss the appeal with costs.
Jurisdiction and Standard of Review
[7] As the damages sought did not exceed $50,000, an appeal lies to the Divisional Court.[^3]
[8] The parties agree that the standard of review on questions of law is correctness and on questions of fact, palpable and overriding error.[^4]
The Facts
[9] On May 9, 2011, the plaintiff fell on the sidewalk adjacent to 38 Clements Road. The sidewalk had a "surface discontinuity". She reported her fall to the Town within a few days. Within a week, the Town had replaced the sidewalk bay.
[10] In 2011, the regulation setting out minimum standards for maintenance of sidewalks provided as follows:
Sidewalk surface discontinuities
16.1 (1) The minimum standard for the frequency of inspecting sidewalks to check for surface discontinuity is once per year. O. Reg. 23/10, s. 10.
(2) If a surface discontinuity on a sidewalk exceeds two centimetres, the minimum standard is to treat the surface discontinuity within 14 days after becoming aware of the fact. O. Reg. 23/10, s. 10.
(3) For the purpose of subsection (2), treating a surface discontinuity on a sidewalk means taking reasonable measures to protect users of the sidewalk from the discontinuity, including making permanent or temporary repairs, alerting users' attention to the discontinuity or preventing access to the area of discontinuity. O. Reg. 23/10, s. 10.
(4) In this section, "surface discontinuity" means a vertical discontinuity creating a step formation at joints or cracks in the surface of the sidewalk. O. Reg. 23/10, s. 10.
[11] The only witness at trial was a Town employee who had been with the Town since 2006. From 2006 to 2014, he was the Supervisor of Operations responsible for day-to-day asphalt, sidewalk, and road work. Since 2014, he has been the Manager of Operations and responsible for managing road and sidewalk maintenance.
[12] He testified that, in 2010-2011, the Town had a procedure for inspections of sidewalks once a year between May and August. Although not directly involved in the supervision of the inspection program, it was his understanding from his employees that summer students were employed to walk the sidewalks with GPS devices and record any sidewalk maintenance issues: cracked panels, surface discontinuity, and areas that are not "flush". The employees were equipped with a tape measure and were to record discontinuities in three categories: 0-6mm, 6-19 mm, and over 19 mm. Any discontinuity over 19 mm was to be marked with orange paint to warn the public.
[13] The sidewalk in the area had been inspected on May 27, 2010.
[14] A spreadsheet summarizing the sidewalk inspections, including the inspection on May 27, 2010, was tendered as a business record. There were 20 entries related to Clements Road East. The entries noted trip edges over 19 mm, "cracked bays", and other issues. The sidewalk at 38 Clement was noted as "cracked bay".
Issues Raised on Appeal
[15] As noted, the plaintiff submits that the trial judge erred in that he:
a. Failed to assess the adequacy of the Town's inspections;
b. Failed to weigh evidence tendered as business records under the Evidence Act; and
c. Reversed the onus of proof under the Municipal Act.
A. Did the trial judge fail to assess the adequacy of the Town's inspections?
[16] The plaintiff submits that it is the adequacy of the inspection, and not the fact of inspection, that is key. She relies upon the decision of Sauve v. Ottawa Hydro-Electric Commission.[^5] At paragraph 22 of that decision, Chadwick J. stated the following:
Notwithstanding the inspection process described by Mr. Dunn, I find the City has failed to adequately inspect this highly travelled area. If a proper inspection had been conducted, they would have seen the depression, or should have seen it. The Municipality has failed to rebut the prima facie case against them.
[17] In oral argument, the plaintiff argued that the trial judge made no finding as to the adequacy of the inspection and, therefore, erred.
[18] The spread sheet recorded 20 issues discovered on May 27, 2010 between municipal address 28 Clements Road East and 147 Clements Road East. Also in evidence was a map depicting the sidewalks inspected at that time.
[19] In accepting the spreadsheet, the trial judge was satisfied that the inspection was adequate to show compliance with the minimum standard and the s. 44(3)(a) defence. This was not a "drive by" inspection but, on the evidence that the trial judge accepted, a systematic "walk-through" inspection of the area.
[20] We find no error with respect to the trial judge's reliance on the spreadsheet as constituting an adequate inspection.
B. Did the trial judge fail to weigh evidence tendered as business records under the Evidence Act?
[21] The evidence tendered as a business record under the Evidence Act was the printout of the May 2010 sidewalk inspections via data entered with a GPS. This document was included in the Town's Evidence Act Notice. At trial, the plaintiff argued that, as the Town's witness did not have personal knowledge of the data and the recording of it, it was not admissible under s. 35 of the Evidence Act.
[22] In his ruling on admissibility of this document, the trial judge stated as follows:
Here, the evidence of Mr. Smith indicates that the recordkeeping was in the ordinary usual course of the Town. He indicates the methodology of the record. He indicates how it was recorded by the summer student, and that it's downloaded by the Town, from the GPS, and then that data is put on a spreadsheet and used to determine the budget and areas required to repair.
I am satisfied that given the broad scope of section 35 and the evidence provided by Mr. Smith that the records in issue qualify as a business record. It is clear to me that there was a methodology and process put by the Town in utilizing the GPS by the summer students, and recording those is the ordinary course of business of the Town as it relates to inspection of sidewalks and curbs.
Therefore, I find that the document is admissible. That is, it is trustworthy and prima facie proof of the facts that it is being introduced to lead. However, I will note, though, the utility of that document and what weight that the Court gives to that document will be determined later on in this trial.
[23] While not disputing the admissibility ruling on appeal, the plaintiff argues that the trial judge failed to determine the weight to be given to that document and therefore erred in relying upon this document as evidence that the inspections occurred and were accurately recorded.
[24] While the Town acknowledges that the trial judge did not expressly advert to assessing the weight to be given to this evidence, his reasons at paragraphs 21 and 49 indicate that he implicitly did do so.
[25] Section 35(4) of the Evidence Act provides as follows:
Surrounding circumstances
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.
[26] We agree that it is implicit in the trial judge's reasons that he considered the circumstances of the making of the record and the limited direct knowledge of the witness as to the training of the inspectors and the instructions that the inspectors were given. Accordingly, we are satisfied that the trial judge assessed the weight to be given to this document. As was stated in Housen, "it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence."[^6]
[27] As such, no error has been demonstrated.
C. Did the trial judge reverse the onus of proof under the Municipal Act?
[28] Relying on certain statements made by the trial judge at paragraphs 46 – 50 of the reasons, the plaintiff submits that the trial judge reversed the burden of proof under the Municipal Act. These statements relate to the lack of evidence contesting the findings of the inspection or contesting the Town's position that it did not have notice of a problem with the sidewalk at that location.
[29] The Town notes that the trial judge consistently stated, throughout the reasons, that the onus was on the Town to establish that one or more of the defences under s. 44(3) applied: see paragraphs 28, 30, 32, 34, and 42. The Town says that statements challenged by the plaintiff simply acknowledge that, on the totality of the evidence, there was no evidence to counter the Town's evidence that the Town "did not know and could not reasonably have been expected to have known about the state of repair". We agree.
[30] As such, we do not find that the trial judge reversed the onus.
Conclusion
[31] The appeal is dismissed. The plaintiff shall pay to the Town of $12,500.00, inclusive, as agreed by the parties.
"Newton RSJ"
I agree: "D.L. Corbett J."
I agree: "Nakatsuru J."
Released: March 17, 2025
CITATION: Hamilton-Dawkins v. Ajax (Town), 2025 ONSC 1591
DIVISIONAL COURT FILE NO.: DC-24-1551-00
DATE: 20250317
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
W.D. Newton RSJ, D.L. Corbett and Nakatsuru JJ.
BETWEEN:
Dorothy Hamilton-Dawkins
Plaintiff
– and –
Corporation of the Town of Ajax
Respondent
REASONS FOR DECISION
W.D. Newton RSJ
Released: March 17, 2025
[^1]: Hamilton-Dawkins v. Town of Ajax, 2024 ONSC 2152.
[^2]: Section 44(3) provides for the following defences: Defence (3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if, (a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge; (b) it took reasonable steps to prevent the default from arising; or (c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met. 2001, c. 25, s. 44 (3).
[^3]: Court of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1)(a) and 19(1.2)(c).
[^4]: Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235 at paras. 8 and 10. ("Housen").
[^5]: [1993] O.J. No. 688.
[^6]: Housen, at para. 23.