ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-098315-00
DATE: 2012-01-20

B E T W E E N:

Jeyaseelan Theiventhirampillai

S. Ibrahim, for the Plaintiff

Plaintiff

• and -

Balamurugan Balakrishnan, York Condominium Corporation #267, Royal Grande Property Management Ltd., Spring Flowers Landscaping Limited and the City of Toronto

Belinda Bain, for the City of Toronto

Defendants

HEARD: December 16, 2011

REASON FOR JUDGMENT

EDWARDS J.

[ 1 ] The defendant, City of Toronto (“the City”) moves for summary judgment to dismiss the plaintiff’s claim for damages arising out of a slip and fall which occurred on a city sidewalk on February 19, 2008, sometime between 9:00 a.m. and 10:00 a.m.

The Facts

[ 2 ] When the plaintiff slipped and fell, he was residing at 106 Burrows Hall Boulevard, Scarborough, Ontario. The slip and fall occurred directly in front of his home. As such, there can be little doubt that the plaintiff would have been familiar with the sidewalk where he fell. On his examination for discovery, the plaintiff acknowledged that he had walked over the same section of the sidewalk where he alleged that he had fallen, the night before he actually fell. It was his discovery evidence that prior to the fall he noticed what he described as a lot of snow on the sidewalk, but did not notice anything particularly dangerous about the condition of the sidewalk.

[ 3 ] The plaintiff testified on his discovery that at the time of his fall there was approximately two inches of snow on the ground. He denied seeing any salt or sand on the sidewalk and realized after he had fallen that there was a layer of ice which was covered with a thin layer of snow on the top of the surface, which he believes caused him to fall.

[ 4 ] The plaintiff filed his own affidavit in opposition to the City’s motion for summary judgment, together with the affidavit of an eyewitness, Gunasekar Gunaratnam. As it relates to the condition of the sidewalk, the affidavit of the plaintiff and the affidavit of Mr. Gunaratnam use the following identical verbiage: “I did not notice any salt or sand on the sidewalk and I verily believe that the sidewalk was not salted or sanded at the time of the accident.”

[ 5 ] It is particularly noteworthy, that the affidavit of the plaintiff and the affidavit of Mr. Gunaratnam were both sworn on December 12, 2011, nearly four years after the accident. There is nothing attached to the affidavit of Mr. Gunaratnam to suggest that he refreshed his memory in any way, shape or form, from any notes that he may have made at the time of the accident. It is worthy of note, that neither the plaintiff nor Mr. Gunaratnam state that there was no salt or sand on the sidewalk, but rather, they both indicate that they did not “ notice ” any salt or sand on the sidewalk.

Evidence of Gross Negligence on the Part of the City

[ 6 ] In order for the plaintiff to succeed, he must establish that there was gross negligence on the part of the City with respect to the maintenance of the sidewalk. Section 42(5) of the City of Toronto Act , 2006, SO 2006 c 11, Schedule A. Section 42(5) provides: “Except in the case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk.” The only evidence that the plaintiff can point to with respect to the condition of the sidewalk, and therefore the issue of gross negligence, is the above noted quotation from both the plaintiff’s affidavit and the affidavit of Mr. Gunaratnam to the affect that they did not “notice” any salt or sand on the sidewalk.

[ 7 ] The City filed affidavit evidence that demonstrated that it had a winter maintenance policy in place at the time of the plaintiff’s slip and fall. The City had entered into a contract with a third party contractor, RoyalCrest Paving and Contracting Limited (“RoyalCrest”). The City in its affidavit evidence attached winter maintenance records which demonstrated that the sidewalks running along the entire area on Burrows Hall Boulevard were sanded by RoyalCrest on February 18, 2008, beginning at 11:20 p.m. and continuing through the morning of February 19, 2008. The winter maintenance records also indicate that the sidewalk had been plowed on February 13 and 14, 2008.

[ 8 ] In addition to the winter maintenance program, the City also had, and still has, in place a method whereby members, of the public can call and request that a specific winter maintenance issue be addressed. Any such call made by a member of the public would be reflected in records that are kept by the City within a database which is called, the Toronto Maintenance Management System (“TMMS”). The City undertook a search of the TMMS in order to determine whether any complaints of snow or ice accumulation had occurred on the sidewalks in the vicinity of Burrows Hall Boulevard on February 18, 2007 through February 19, 2008. The City’s affidavit evidence filed in support of the motion demonstrated that this search established that no such complaints had been made.

[ 9 ] The affidavit evidence filed by the City in support of its motion was prepared on May 13, 2011, and served on plaintiff’s counsel shortly thereafter. As such, the City’s affidavit evidence had been in the hands of plaintiff’s counsel for, in excess of six months by the time the motion was argued before me. It is particularly noteworthy that the affidavit evidence of the City was not cross-examined upon. As such, the affidavit evidence of the City as it relates to its winter maintenance program and the absence of any complaints in the area where the plaintiff fell is unchallenged. This is particularly so given the plaintiff’s evidence to the effect that neither he nor the eyewitness noticed salt or sand. They do not state there was no salt or sand. The language of the plaintiff’s affidavit and Mr. Gunaratnam’s affidavit, in my view, was carefully crafted.

Late Notice

[ 10 ] Section 42(6) of the Act provides that:

No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of has been served upon or sent by registered mail to,

(a) The city clerk; or

(b) If the claim is against the City and one or more municipalities jointly responsible for the repair of the highway or bridge, the city clerk and the clerk of each of the other municipalities.

[ 11 ] The failure to provide notice within 10 days is not a complete bar to an action as subsection 8 of section 42 provides:

Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the City is not prejudiced in its defence.

[ 12 ] The uncontradicted evidence before me was that notice was not actually provided to the City until June 5, 2008, i.e. approximately four months after the slip and fall. Notice was provided by way of a letter from a lawyer retained on behalf of the plaintiff, which is dated June 2, 2008.

[ 13 ] While the plaintiff in his affidavit indicates that he was unaware of the 10 day notice period provided for by section 42(6) of the Act, the fact still remains that contact between the plaintiff and his former counsel (not counsel who argued the motion before me), would appear to have taken place sometime prior to March 11, 2008, as there is a letter from the plaintiff’s former solicitor dated March 11, 2008, confirming an appointment with the plaintiff scheduled for April 17, 2008. While there may be some excuse for someone in the position of the plaintiff who suffered injury as a result of his slip and fall (a fractured ankle which required an operative procedure and hospitalization), there is absolutely no explanation as to why the plaintiff’s former solicitors did not provide notice to the City given that there appears to have been some contact made as early as March 11, 2008, and a meeting would appear to have been scheduled for April 17, 2008, yet actual notice is not provided to the City until a letter dated June 2, 2008, from the plaintiff’s former solicitor.

[ 14 ] The City in its affidavit evidence suggests that it has been prejudiced as a result of the late notice of the plaintiff’s claim in the following ways:

(a) the City was unable to attend in a timely manner to conduct a proper investigation of the location of the alleged incident to determine if a dangerous condition of snow and/or ice did in fact exist;

(b) the City lost the opportunity to take photographs of the alleged dangerous build up of snow and/or ice;

(c) the City lost the opportunity to interview any witnesses who may have seen the incident or who may have been able to speak to the condition of the sidewalk at the time of the loss;

(d) the City Representative was unable to properly recall the incident location with a fresh and clear memory by the time notice had been provided to the City; and

(e) the City lost its opportunity to obtain any other information, which might have assisted the City in its investigation, to therefore mitigate the prejudice against it.

[ 15 ] In argument, plaintiff’s counsel suggested that there was in fact no evidence of prejudice, but as I pointed out to plaintiff’s counsel during the course of argument, the City’s affidavit evidence as it relates to prejudice was not cross-examined upon and therefore is unchallenged.

The Weather Condition in the Days Prior To and On the Day of the Incident.

[ 16 ] The weather records from Environment Canada were filed as part of the motion materials before me. While these weather records relate to the weather at Toronto Lester B. Pearson International Airport, no records were filed by the plaintiff to contradict the weather records filed by the City. These records confirm that during the month of February there was a substantial snow fall on February 6 (34 cm) and again on February 9 (6.2 cm) and on February 12 (12.6 cm). Bearing in mind that the plaintiff fell on February 19, 2008, between 9:00 a.m. and 10:00 a.m. it is worth noting that on February 18 the weather records established that there was 1.8 mm of rain and 0.2 cm of snow, while on February 19 the weather records established that there was no rain and 0.2 cm of snow. These weather records would seem to contradict the plaintiff’s evidence that there was approximately two inches of snow on the ground. In terms of the temperature the weather records indicate that on February 18 the maximum temperature was 6.5 degrees centigrade and the minimum temperature was minus 5.6 degrees centigrade, while on February 19 the maximum temperature was minus 5.2 and the minimum temperature minus 9.3. I have no hesitation in accepting as a fact the statement from the City’s factum to the effect that there was a minimal amount of snow on the sidewalk in the days leading up to and at the time of the incident, both as established by the weather records and the winter maintenance records from RoyalCrest.

The Test for Summary Judgment

[ 17 ] The Court of Appeal in its recently released decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 , has clarified the applicable test for summary judgment. Combined Air makes clear that the purpose of Rule 20 is to eliminate unnecessary trials and that there are three types of cases which are amenable to summary judgment:

I. Cases in which the parties agree that it is appropriate to determine an action by way of a summary judgment motion;

II. Cases involving claims or defences that are shown to be without merit; and

III. Cases in which the trial process is not required “in the interest of justice”.

[ 18 ] The City suggests that it is the third type of case that the plaintiff’s action falls within as not requiring the trial process in the “interest of justice”. To determine whether the plaintiff’s case falls within this third category, the Court of Appeal has introduced the “full appreciation test” which should be applied in determining whether or not a trial is required in the interest of justice.

[ 19 ] It is submitted that the plaintiff’s case is not a large and complex case which would call for “multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record”. The aforementioned type of case as noted by the Court of Appeal would generally not be one in which a summary judgment motion would serve as an adequate substitute for the trial process.

[ 20 ] In addition to clarifying the appropriate test to apply, the Court of Appeal in Combined Air has confirmed that on a motion for summary judgment, the motion judge has the ability to weigh the evidence, evaluate the credibility of a deponent, and to draw any reasonable inference from the evidence in determining whether there is a genuine issue of requiring the file. The Court of Appeal has also confirmed that the established jurisprudence which required each side to “put its best foot forward” on a motion for summary judgment remains in full force and effect. As such, in responding to a motion for summary judgment, a party like the plaintiff on the motion before me is required to put forward all evidence on which he intends to rely at the hearing of the motion and cannot in response to the motion, simply suggest that there may be other evidence available which might assist in establishing a claim.

Has the Plaintiff Established that there was a Dangerous Condition Existing on the Sidewalk on February 19, 2008?

[ 21 ] The plaintiff to be successful in this action must establish:

I. That the alleged snow and/or icy condition on the sidewalk gave rise to a dangerous condition sufficient to constitute a state of non-repair; and

II. That the City was grossly negligent in failing to address that state of non-repair. See Billings v. Mississauga (City), 2010 ONSC 3101 , [2010] OJ No. 3304 (QL)

[ 22 ] As Canadians we live in a winter climate. As such, while users of a sidewalk are entitled to have their sidewalks kept in a reasonable state of repair, perfection is not the standard. The test is one of reasonableness; users of a sidewalk are not entitled to expect a perfectly smooth and even sidewalk as this would be tantamount to insuring every pedestrian. As the Manitoba Court of Appeal said in Occhino v. Winnipeg (City), 1988 5647 (MB CA) , [1988] 53 Man.R. (2d) 257 at paragraph 263 :

The duty to protect the public from the hazards of snow and ice is far from absolute. The City is not an insurer of safety. It must take reasonable steps to keep the sidewalks free of dangerous conditions, but its failure to do so does not necessarily result in liability to everyone who falls and is injured.

[ 23 ] It would be an impossible situation and create an impossible financial burden to suggest that where there is evidence that a city or municipality has in place a winter maintenance policy that requires sanding and salting, and where there is evidence that such sanding and salting did occur, that if someone slips and falls on a small spot that did not receive sand and salt, that the city would be found responsible for that situation. To hold a city responsible on such a set of facts would be to virtually make a city or municipality an insurer against the possibility of any injuries suffered by a pedestrian. From my review of the law that is not the state of our law at the present time.

[ 24 ] The evidence before me establishes, completely uncontradicted by the plaintiff, that the City did have in place a winter maintenance program; that, the winter maintenance program was in full force and effect and was being acted upon; and that there was sanding and salting that did occur on the subject sidewalk in the evening hours of February 18 and the morning hours of February 19. The plaintiff has completely failed in its evidentiary record to establish that the City was grossly negligent.

Did the plaintiff provide timely notice of his claim?

[ 25 ] As previously noted, section 42(6) of the Act requires the plaintiff to provide notice to the City within 10 days after the occurrence of an injury, subject only to the provision in subsection 8 which provides that failure to give notice is not a bar to the action if the plaintiff can establish a reasonable excuse for the late notice and that the City is not prejudiced in its defence.

[ 26 ] As previously noted, the plaintiff in this case provided notice approximately four months after the accident. The evidence also establishes that the plaintiff must have had some kind of contact with his former solicitor in the early part of March. There was no explanation then for a time period between the first contact with the plaintiff’s former solicitor and the actual giving of notice as to why written notice of the plaintiff’s claim was not given to the City.

[ 27 ] In order to be provided protection under section 42(8) the plaintiff has the onus to establish a reasonable excuse for his failure to provide proper notice of his claim. Failure to provide a reasonable excuse will result in the action being statute barred. The words “reasonable excuse” must be given their plain and ordinary meaning, and case law has established that they must be given a broad and liberal interpretation requiring the court to consider all the circumstances of the particular case in determining whether the plaintiff has established a reasonable excuse.

[ 28 ] The plaintiff in his affidavit evidence has filed medical documentation relating to his left ankle fracture dislocation and the two days that he was hospitalized at the Scarborough General Hospital. He indicates in his affidavit that in the 10 days after the accident he was in considerable pain, and was depressed, and frustrated about his condition. He indicates that he was unaware of the 10 day notice period provided for by section 42(6) of the City of Toronto Act .

[ 29 ] The plaintiff also deposes in his affidavit that “in about March 2008, I went to see Romeo Pitaro Personal Injury Lawyers about starting this claim”.

[ 30 ] There is no explanation then as to why notice was not given sometime in March 2008 when the plaintiff, according to his own evidence, went to see counsel. There is no reasonable excuse established on the plaintiff’s evidence for the delay between March 2008 and the actual giving of notice in June 2008.

[ 31 ] Even if I was satisfied that there was a reasonable excuse established on the evidence, the plaintiff in no way addresses the issue of prejudice. Section 42(8) of the Act provides for a conjunctive test. It is not simply good enough for the plaintiff to establish a reasonable excuse for the late notice. The plaintiff must also establish that the City has not been prejudiced by the late notice in order for the plaintiff’s failure to provide notice not to bar the action.

[ 32 ] The City in its affidavit evidence has set forth the prejudice that it says it has suffered as a result of the late notice. There can be little doubt that the purpose of the notice provision in the Act is to allow the City to complete a proper investigation so that it can properly defend itself, and address the liability issue presented by the plaintiff’s claim. What is particularly noteworthy on the facts of the case before me is the fact that there was an eyewitness to the slip and fall, whose affidavit was filed in opposition to the City’s motion. If the evidence had been that the existence of this eyewitness together with his contact information, had been provided to the City shortly after the accident, such that the City could then have interviewed Mr. Gunaratnam and obtained particulars of what occurred on February 19 contemporaneous to the events of that day, then the element of prejudice may have been removed. Mr. Gunaratnam’s affidavit however, was not filed until December 12, 2011, essentially on the eve of the motion before me. It is also noteworthy that no photographs were taken of the scene of the accident. If such photographs had been taken, they may have eliminated, or at least alleviated some of the prejudice that is alleged by the City. At the end of the day, the City’s evidence with respect to prejudice is completely unchallenged and I accept that on the evidence therefore before me, that there is in fact prejudice suffered by the City, even apart from the fact that there is a presumption that the delay prejudiced the City’s defence.

The Result

[ 33 ] Having reviewed the evidence and the law in this area, I am satisfied that this is the type of case alluded to by the Court of Appeal in Combined Air, supra , in which the trial process is not required “in the interest of justice”. The plaintiff has failed completely to establish any evidence of gross negligence on the part of the City and further has failed to establish any reasonable excuse for the late notice of his claim. Furthermore, the plaintiff has failed to put forward any evidence to suggest that the City was not prejudiced in its defence by reason of the late notice. Under the circumstances, the plaintiff’s action is dismissed with costs. I have received the costs outline from the City of Toronto. At the conclusion of the argument before me, plaintiff’s counsel requested an opportunity to respond to the City’s cost outline. If the issue of costs cannot be resolved between counsel, costs submissions should be filed with the court to be received within 15 days from receipt of these reasons.

Justice M. Edwards

Released: January 20, 2012