SUPERIOR COURT OF JUSTICE - ONTARIO

BARRIE COURT FILE NO.: CV-09-0138
DATE: 20120714

RE: WILLIAM McHARDY, a person under disability by his litigation guardian, Tara Luck, WILLIAM MCHARDY SR., KATHERINE MCHARDY and TARA LUCK, Plaintiff

AND:

DAVID BALL, ERIC BALL and CITY OF BARRIE, Defendants

BEFORE: EBERHARD, J.

COUNSEL:
A. Little, Counsel for the Plaintiff

D. Abreu, Counsel for the Defendant Ball

S. Zacharias, Counsel for the Defendant City, moving party

HEARD: July 13, 2012

ENDORSEMENT

[ 1 ] The Defendant City of Barrie seeks leave to appeal the decision of motion judge DiTomaso J. dismissing their motion for Summary Judgment only in respect of the finding that a trial was necessary to determine whether the claim against the City is statute-barred by s.44(8)(b) of The Municipal Act .

[ 2 ] The motion for Summary Judgment had other grounds. Only the issue of Section 44(8)(b) is raised as a subject for leave. This underscores that when I consider whether leave should be granted I make no comment whatsoever on the City’s liability if the claim is not statute barred.

[ 3 ] The test for leave to appeal is from Rule 62.02(4) of The Rules of Civil Procedure:

Leave to appeal shall not be granted unless.

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[ 4 ] The parties necessarily argued the facts and positions regarding the issues which they submitted could, or could not, be decided by Summary Judgment. However, it is not my role, hearing the motion for leave to muse on whether the claim is statute-barred. My role is to determine whether the motion judge’s ruling as to whether the issue could be decided by Summary Judgment or not falls within the criteria for granting leave to appeal.

[ 5 ] The moving party asserts that no facts are in dispute as to the mechanism of the motor vehicle accident causing the Plaintiff’s injuries. The moving party further asserts that there are no facts in dispute as to the location or dimensions of the median and pole struck by the Plaintiff’s vehicle, which was out of control after being struck in the rear corner by the Defendant Ball’s vehicle.

[ 6 ] The moving party asserts that on the undisputed facts the motion judge could and should have granted Summary Judgment by applying s 44(8)(b) of The Municipal Act to those facts:

44(8) No action shall be brought against a municipality tor damages caused by,

(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 untraveled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement.

[ 7 ] Both parties argued caselaw as to whether the median and pole were within this definition “adjacent to or on any untraveled portion of the highway”.

[ 8 ] Cases cited all predate an amendment to the section which previously read “object (etc) not within the travelled portion of the roadway”. Whether the change in the wording creates a distinction or is responsive to narrow interpretations of the former section is an interesting legal issue.

[ 9 ] The motion judge reviewed the cases that might guide the legal finding and averted to a “technical and restrictive interpretation” proposed by the City and a “more contextual and obviously less literal approach”. He then found:

[88] Whether the plaintiffs’ claim is statute-barred is a genuine issue requiring a trial which should not be determined on this summary judgment motion on this record. The issue cannot be determined in isolation. Rather, it exists in 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 lens of “whether 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”.

[ 10 ] What facts are in dispute particular to whether the pole on an island in the middle of the roadway is within the travelled portion of the highway? The motion judge did not specify and it appears that all the facts raised before me to support the correctness of the decision relate to negligence, not whether the pole, in its undisputed placement, fall within the definition in the statutory bar.

[ 11 ] Further, in relying on the expanded “full appreciation test” [1] it could be perceived that the motion judge rejected the classical powers available to a Summary Judgment motion judge.

[ 12 ] I find there appears good reason to doubt the correctness of the order in question.

[ 13 ] The proposed appeal involves matters of importance such that I hold the opinion leave to appeal should be granted. It arises as the approach to section 20 is in development. It impacts a host of statutory bars which may not require a “more contextual and obviously less literal approach”.

[ 14 ] Leave is granted.

[ 15 ] Costs may be addressed by providing written submissions through the judicial secretary of no more than 2 pages by August 30, the responding parties by September 15 th and reply by September 20.

EBERHARD J.

Date: August 14, 2012

[^1]: Combined Air Mechanical Services Inc. v Flesh 2011 ONCA 764 , [2011] O.J. No. 5431