ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-302-00
Kingston, Ontario

BETWEEN:

NIKISHA GRANT
Plaintiff

– and –

THE CORPORATION OF THE CITY OF KINGSTON and QUEEN’S UNIVERSITY
Defendants

Edward V. Bergeron, for the Plaintiff

Kristin Muszynski, for the Defendant, the City of Kingston
Robert Sutherland, for the Defendant, Queen’s University

HEARD: July 27, 2012

MOTION FOR SUMMARY JUDGMENT

mcMUNAGLE j.

[ 1 ] One of the defendants in this action, namely, the City of Kingston, seeks an order dismissing this action against it, pursuant to subrule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Further, the defendant seeks costs of this motion and of the action, pursuant to Rule 57 of the Rules of Civil Procedure . For the reasons that follow, the motion is dismissed, and there will be a further order for the trial of an issue; specifically, what prejudice, if any, did the Corporation of the City of Kingston, suffer as a result of the plaintiff’s failure to notify the City of a claim within the seven day statutory limitation period prescribed by s. 44(10) of the Municipal Act, 2001 , S.O. 2001, c. 25. Subsection 44(10) requires notice of a claim be served or sent by registered mail to the clerk of the Municipality, within ten days of the injury.

Overview

[ 2 ] Nakisha Grant, the plaintiff, advances a claim for damages arising out of an accident on a sidewalk located on the west side of Arch Street in the City in Kingston. The “slip and fall” accident occurred on February 6, 2009. It should be noted that Arch Street is located within the Queen’s University Campus. The plaintiff has alleged that the Corporation of the City of Kingston, and/or Queen’s University, are liable for her leg injuries.

[ 3 ] The City of Kingston brings this motion for summary judgment on the basis that the plaintiff’s action is statute barred by reason of the plaintiff’s failure to give notice of a potential claim pursuant to s. 44(10) of the Municipal Act .

[ 4 ] It was not until March 1, 2010, that notice of the accident was delivered to Kingston’s City Clerk department, despite the aforementioned Municipal Act requirement that notice be served within ten days after the occurrence of the injury.

[ 5 ] Prior to March 1, 2010, the City of Kingston had no knowledge of the plaintiff’s potential claim.

[ 6 ] The plaintiff’s Statement of Claim was issued on June 15, 2010.

[ 7 ] It should be noted that the City of Kingston has no sidewalk inspection program for the winter months.

[ 8 ] It is further noted by the Court that the City of Kingston has four supervisors and nine assistant supervisors who conduct visual inspections of City streets and sidewalks. Further, these visual inspections conducted by City staff are undertaken from moving vehicles. Of crucial importance to the Court in coming to its decision is the fact that the weather changed drastically the day after the accident in question. The air temperature became much warmer and well above freezing, to the point where it appears, based on the affidavit evidence, that the snow and/or freezing rain had melted away as a result of the rising temperature which turned the snow/freezing rain into water.

[ 9 ] The accident was reported to Queen’s University, on August 24, 2009.

[ 10 ] Having reviewed the affidavit evidence on behalf of both parties, it seems clear to the Court that the plaintiff and the second defendant, Queen’s University, were of the belief that as a result of the location of the accident, on Queen’s University campus, Queen’s University may be liable.

[ 11 ] On February 19, 2009, Queen’s University forwarded to the Worker Safety and Insurance Board (“WSIB”), a Form 7/Employer’s Report identifying the location of the fall as part of their property.

[ 12 ] More importantly, on February 23, 2009, a WSIB employee contacted the plaintiff to review the contents of the aforementioned Form 7 and confirmed that the site of the accident was at “Queen’s University property.”

[ 13 ] On February 25, 2009, the Plaintiff completed a WSIB Form 6/Worker’s Report in which she reported that the incident occurred on Queen’s University property.

[ 14 ] The scene of this accident, on Arch Street, is within the Queen’s University campus, used almost exclusively by Queen’s University students and staff.

[ 15 ] The accident occurred at the point where the path from Summerhill Residence intersects with Arch Street.

[ 16 ] Queen’s University is responsible for maintaining the path from Summerhill Residence to Arch Street.

[ 17 ] Save and except for St. James Church at the north end, all buildings abutting Arch Street are in fact Queen’s University buildings.

[ 18 ] The block bordered by Stuart Street, Barrie Street, King Street West and George Street are all Queen’s University properties, save and except for a series of brick buildings facing Barrie Street which belong to the Kingston General Hospital.

[ 19 ] During cross-examination, Queen’s University acknowledged that it shovels sidewalks on Arch Street. Further, Queen’s University also acknowledged that it plows the sidewalks on Arch Street with mechanized equipment, specifically, a John Deere sidewalk plow. Moreover, Queen’s University has a protocol in place to address when sidewalks, including Arch Street, are to be plowed, but refuses to produce it. This Court sees absolutely no reason whatsoever why Queen’s University takes this position, and with respect, the University should produce this protocol to the Plaintiff immediately.

[ 20 ] On August 26, 2009, the plaintiff provided notice of its claim to Queen’s University.

[ 21 ] On November 16, 2009, an adjuster representing Queen’s University was retained. On February 10, 2010, the adjuster for Queen’s University advised, in writing, that the location of the accident might be within the City of Kingston’s jurisdiction.

[ 22 ] On February 25, 2010, the City of Kingston was placed on notice. Examinations for all parties were held on May 25, 2011.

[ 23 ] The Court accepts the portion of the affidavit evidence of Damon Wells, dated September 13, 2011, for the Defendant, the City of Kingston, wherein he deposes that it is standard practice that once the City of Kingston receives notice of a potential claim, an adjuster is appointed to complete an investigation and notice is given to the Public Works Department. The adjuster and a representative from the Public Works Department then attend at the accident scene as soon as possible to observe the conditions.

[ 24 ] It is also the City of Kingston’s general practice to interview members of the Public Works Department as soon after an accident as possible so that their memories about the road or sidewalk conditions are current.

[ 25 ] The Court further accepts the portion of the aforementioned affidavit of Damon Wells wherein he deposes that members of the City of Kingston Public Works Department keep records relating to their winter maintenance activities, and therefore it is impossible to keep detailed records of specific roadways and sidewalks, especially when reacting to winter weather events. This is why early investigation of an accident is important.

[ 26 ] After the City of Kingston received notice of the potential claim in March 2010, the matter was referred by the City of Kingston to a local adjuster, Scott Hurry, to complete an investigation.

[ 27 ] Although the accident occurred on February 6, 2009, Mr. Hurry was unable to attend the scene of the accident until March 18, 2010.

[ 28 ] There were no photographs taken of the scene of the accident until the engineer for the Plaintiff attended at the scene in August 2009.

[ 29 ] It should be noted that, in addition to the Plaintiff’s own recollection that there was a light dusting of snow on the sidewalks and that she felt ice, there is no other way to reliably determine the condition of the sidewalk at the time of the accident.

[ 30 ] It is not in dispute that due to the delay in the notice of the Plaintiff’s claim, the City of Kingston Public Works’ staff that were working on the day of the accident, have neither a recollection of the weather conditions at the time, nor of the conditions of the sidewalks on Arch Street. Further, the Court also accepts the portion of the affidavit evidence of Mr. Wells, wherein he deposes that other witnesses to the accident would likely also have more difficulty recollecting details about the weather and sidewalks with a degree of accuracy than would be expected if they had been interviewed in a timelier fashion. Lastly, the Court accepts the evidence of Mr. Wells that the available records from the City of Kingston Public Works Department do not contain sufficient detail about the condition of the sidewalk, at the location of the Plaintiff’s accident, for the records to be used in any meaningful way.

[ 31 ] However, the Court also has no difficulty in accepting the initial affidavit, of the plaintiff, Ms. Grant, which was sworn on February 15, 2012, as well as her supplementary affidavit evidence, which was sworn on July 24, 2012. In particular, the Court has studied Exhibit B of Ms. Grant’s initial affidavit of February 15, 2012. Exhibit B is a document produced by Environment Canada and is titled, “Hourly Data Report for February 6, 2009”, as well as the data reports for February 8 to February 17, 2009. For some reason, the hourly data report for February 7, 2009, is not included in this exhibit.

[ 32 ] In light of the recent Court of Appeal decision in Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , 108 O.R. (3d) 1 , the Court is permitted a limited weighing of the evidence. In the Court’s view, the most important piece of evidence in this entire motion is Exhibit B of Ms. Grant’s affidavit. While the Court does not have any expertise in climatology, it is obvious from a review of these data reports that the temperature rose to well above freezing during the period in question and, therefore, that the snow and/or freezing rain would not have been observable had the plaintiff provided notice pursuant to s. 44(10) of the Municipal Act . A Court might conclude that the notice requirement, which is designed to shield the City of Kingston from liability, is in this case being used as a sword to prevent what appears to be a legitimate claim filed on behalf of Ms. Grant. However, the Court is of the view that the issue of prejudice can only be solved by way of a trial.

Positions of the Parties

[ 33 ] The defendant, City of Kingston, takes the position that the plaintiff’s claim against it is statute barred by virtue of s. 44(10) of the Municipal Act , which requires notice of a claim to be served or sent by registered mail to the clerk of the municipality within ten days after the injury. The defendant also claims that there is no reasonable excuse for the inadequacy of the plaintiff’s notice and that its defence of the action is prejudiced by the late notice. As such, the defendant claims that there is no genuine issue requiring a trial with respect to the plaintiff’s claim, and therefore, Ms. Grant’s claim as against it should be dismissed.

[ 34 ] The plaintiff takes the position that as a result of the change in the weather, the City of Kingston has not been prejudiced in its investigation because even had the plaintiff filed the statement of claim within even 24 hours of the accident, the “evidence” of snow and/or freezing rain would have dissipated as a result of the dramatic increase in temperature.

Issue: Should the plaintiff’s claim against the City of Kingston be dismissed on the basis that there is no genuine issue requiring a trial?

Statement of Law

[ 35 ] Rule 20.01(3) of the Rules of Civil Procedure provides as follows: “A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.”

[ 36 ] Pursuant to the rule changes effective January 1, 2010, the previous test of “no genuine issue for trial” in the former rule 20.04(2) has been changed to “no genuine issue requiring a trial.” A respondent to such a motion may not rest solely on allegations in pleadings, but must provide evidence of specific facts showing that there is a genuine issue requiring trial.

[ 37 ] Rule 20.04(2) of the Rules of Civil Procedure provides as follows:

The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[ 38 ] Pursuant to rule 20.04(2.1) of the Rules of Civil Procedure , a judge at a motion for summary judgment has the authority to weigh evidence, evaluate credibility and draw any reasonable inferences from the evidence. Further, rule 20.04(2.2) provides that a judge may order oral evidence be presented with or without time limits on its presentation.

[ 39 ] I agree with the defendant, that the clear purpose of Rule 20 is to remove from the trial system, through the vehicle of summary judgment proceedings, those matters for which there is no genuine issue requiring a trial. Where the court is satisfied that there is no genuine issue requiring trial with respect to a claim, the court shall grant summary judgment accordingly. Rule 20 plays an important role in the promotion of judicial economy and litigation efficiency by preventing unmeritorious cases or issues from proceeding to trial. See Lamarche v. Grebenjak 2010 ONSC 2316 (Sup. Ct.), at para. 5 .

[ 40 ] On a motion for summary judgment, each side must put their “best foot forward”, with respect to the existence or non-existence of material issues to be tried. The court is entitled to assume that the record contains all of the evidence that would be available at trial. See Hino Motors Canada Ltd. v. Kell , 2010 ONSC 1329 (Sup. Ct.), at para. 9 .

[ 41 ] Henry J., in Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (O.C.J.), at para. 41 , said of Rule 20 of the Rules of Civil Procedure :

The objective is to screen out claims that in the opinion of the court, based on evidence furnished as directed by the Rule, ought not to proceed to trial because they cannot survive the “good hard look”.

There is no arbitrary or fixed criterion that the Motions Judge must apply. It is a case-by-case decision to be made on the law and on the facts that he is able to find on the evidence submitted to him in support of the claim or defence, whether the plaintiff [or co-defendant], [as the case may be] has laid a proper foundation in its affidavit and other evidence to sustain the claims made.

The Court may, on a common sense basis, draw inferences from the evidence.

[ 42 ] When considering the aforementioned civil rules, the court must keep in mind the general principle of the rules set forth in Rule 1.04(1), which states that, “[t]hese rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” See Ron Miller Realty Ltd. v. Honeywell, Wotherspoon (1991), 4 O.R. (3d) 492 (O.C.J.), at para. 12 .

[ 43 ] The Ontario Court of Appeal, in Combined Air , dealt with the recent changes to Rule 20 and provided guidance to lower courts applying the new Rule 20. The court, at paras. 72-75, summarized the amendments to Rule 20 and set out the classes of cases where summary judgment is appropriate:

We have described three types of cases where summary judgment may be granted. The first is where the parties agree to submit their dispute to resolution by way of summary judgment.

The second class of case[s] is where the claim or defence has no chance of success. As will be illustrated below, at paras. 101-111, a judge may use the powers provided by rules 20.04(2.1) and (2.2) to be satisfied that a claim or defence has no chance of success. The availability of these enhanced powers to determine if a claim or defence has no chance of success will permit more actions to be weeded out through the mechanism of summary judgment. However, before the motion judge decides to weigh evidence, evaluate credibility, or draw reasonable inferences from the evidence, the motion judge must apply the full appreciation test.

The amended rule also now permits the summary disposition of a third type of case, namely, those where the motion judge is satisfied that the issues can be fairly and justly resolved by exercising the powers in rule 20.04(2.1). In deciding whether to exercise these powers, the judge is to assess whether he or she can achieve the full appreciation of the evidence and issues that is required to make dispositive findings on the basis of the motion record – as may be supplemented by oral evidence under rule 20.04(2.2) – or if the attributes and advantages of the trial process require that these powers only be exercised at a trial.

Finally, we observe that it is not necessary for a motion judge to try to categorize the type of case in question. In particular, the latter two classes of cases we described are not to be viewed as discrete compartments. For example, a statement of claim may include a cause of action that the motion judge finds has no chance of success with or without using the powers in rule 20.04(2.1) . And the same claim may assert another cause of action that the motion judge is satisfied raises issues that can safely be decided using the rule 20.04(2.1) powers because the full appreciation test is met. The important element of the analysis under the amended Rule 20 is that, before using the powers in rule 20.04(2.1) to weigh evidence, evaluate credibility, and draw reasonable inferences, the motion judge must apply the full appreciation test in order to be satisfied that the interest of justice does not require that these powers be exercised only at a trial.

[ 44 ] This Court has also been referred to the decision of Lack J. in Toms et al. v. The Corporation of the Municipality of Port Hope (23 May 2012), Port Hope, 60096/09 (Ont. Sup. Ct.). In this case, the plaintiff alleged that the accident occurred because the City of Port Hope had failed to maintain one of the roadways in its jurisdiction. Specifically, the plaintiff claimed that the City of Port Hope allowed a pile of sand to build up on the roadway, which caused the plaintiff to lose control of his vehicle.

[ 45 ] Notice of the potential claim, pursuant to s. 44(10) of the Municipal Act , was not provided to the City of Port Hope until four months after the accident.

[ 46 ] The City of Port Hope brought a successful motion for summary judgment for the plaintiff’s failure to comply with s. 44(10) of the Municipal Act . Mr. Justice Lack noted that s. 44(12) of the Municipal Act acts as a “saving provision” and that if there is late notice, the plaintiff must establish both a reasonable excuse and that the Municipality is not prejudiced. See Toms , at para. 22.

[ 47 ] With respect to the issue of prejudice, Lack J. stated, at para. 24, the following:

Port Hope is presumed to have been prejudiced by the failure to give timely notice. The delay in giving notice here was over 4 months. The inherent probability of prejudice is significantly enhanced by the length of the period of delay, which was after a full winter maintenance season. There is no evidence that Port Hope had any other sources of information about the accident apart from the notice. Mr. Angelo’s evidence was that it did not. Neither he nor any other staff member had any independent recollection of the road condition on the day in question. The municipality lost the opportunity to view and inspect the condition of the surface of the road at the site of the accident at or near the time the accident occurred. It lost the opportunity to interview witnesses, including its own employees and residents in the area, while memories were fresh and intact. Mr. Angelo’s affidavits were credible. I conclude that if timely notice had been given, the opportunity to fully investigate would have been taken by Port Hope. It has suffered prejudice.

[ 48 ] Lack J. also indicated that while it was not necessary to consider whether the plaintiff had a reasonable excuse for the late notice, if it were necessary, he would find that the circumstances would not amount to a reasonable excuse for the purposes of s. 44(12) of the Municipal Act. Lack J. noted, at para. 27, that, “[t]he plaintiff has not put forward any evidence that he was unable to provide the required written notice. He was not incapacitated as a result of medication, nor was he physically incapacitated to the extent that he could not give instructions to provide written notice.”

[ 49 ] It is important to note that in Toms , counsel for the plaintiff was acting under the mistaken belief that the roadway in question was owned by another municipality. Notice was provided first to the other municipality, then to the City of Port Hope. Nevertheless, Lack J. found that no reasonable excuse existed.

[ 50 ] In this case, the defendant, the City of Kingston, states that Toms is “almost exactly on point and, accordingly, the action brought by Ms. Grant against the City of Kingston should similarly be dismissed.”

Analysis

[ 51 ] The Ontario Court of Appeal has held that the notice requirement imposed by s. 44(1) of the Municipal Act operates like a limitation period and that failure to comply is a bar to an action. See Bannon v. Thunder Bay (City) (2000), 48 O.R. (3d) 1 (C.A.) at para. 22 ; Zogjani v. Toronto (City) , 2011 ONSC 1147 (Sup. Ct.), at para. 14 . The purpose of the notice is to give a municipality the opportunity to investigate the place and circumstances of the accident. See Cena v. Oakville (Town) (2009), 56 M.P.L.R. (4th) 11 (Sup. Ct.), at para. 15 .

[ 52 ] There is no dispute in the case at bar that, until March 1, 2010, no notice was provided to the City of Kingston with regard to the plaintiff’s injury, and therefore it is clear that the plaintiff did not provide notice pursuant to the requirements of s. 44(10) of the Municipal Act.

[ 53 ] However, s. 44(12) of the Municipal Act also contains an exception where there has been a failure to give notice. Section 44(12) states: “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 municipality is not prejudiced in its defence.”

[ 54 ] In order for the exception to apply, the plaintiff must both establish that the municipality’s ability to defend was not prejudiced and that there was a reasonable excuse for the late notice. See Fremeau v. Toronto (City) (2009), 61 M.P.L.R. (4th) 279 (Ont. Sup. Ct.) , at para. 27 .

[ 55 ] At para. 22 of Crinson v. Toronto (City) , 2010 ONCA 44 , 100 O.R. (3d) 366, the Ontario Court of Appeal held that the words “reasonable excuse” should be given their ordinary and plain meaning and all of the circumstances of a case should be considered to determine whether the plaintiff has indeed established that he or she has a reasonable excuse.

[ 56 ] The courts have held that a reasonable excuse for giving notice outside the ten day limitation period could be: a lack of knowledge that a proceeding would be an appropriate means to seek a remedy, or the severity of the plaintiff’s injuries/incapacities. See Cena .

[ 57 ] There is no dispute in the case at bar that the plaintiff consulted with an experienced lawyer soon after the accident and thus knew that a proceeding would be an appropriate means to seek a remedy. Further, counsel for the plaintiff retained an expert in the Summer of 2009 to provide an opinion on liability.

[ 58 ] There is also no dispute that the plaintiff could have provided notice to the municipality within the stipulated timeframe, as she was able to return to work within a matter of weeks after the accident and had also stopped taking prescription painkillers at that time.

[ 59 ] With respect to the issue of a reasonable excuse for late notice, the Court has no difficulty in accepting the affidavit evidence of Ms. Grant that the plaintiff and Queen’s University were initially of the view that the accident location fell within the jurisdiction of Queen’s University. It was not until a year later and despite the intervention of the plaintiff’s solicitor, Queen’s University staff, the WSIB, the adjuster for Queen’s University and their counsel, that this error was discovered. However, the Court is of the view that it cannot decide the issue of reasonable excuse given the affidavit evidence of Ms. Grant, and therefore it is the Court’s view that a trial of this issue is required.

[ 60 ] With respect to the issue of prejudice, the City of Kingston claims that as no photographs were taken until August 2009, six months after the accident, and as the City had no knowledge of the potential claim before the plaintiff gave notice on March 1, 2010, the City was not able to interview witnesses until over a year after the accident and those witnesses were unlikely to have an independent recollection of the conditions when interviewed a year later.

[ 61 ] However, when the Court contrasts the evidence of the defendant with the evidence contained in Ms. Grant’s affidavit, and more specifically in Exhibit F, contained in her affidavit dated July 24, 2012, it seems clear to this Court that the claim of prejudice suffered by the City of Kingston may have become moot as a result of the climatic changes on and after the day of this incident, but that is the issue to be tried.

[ 62 ] This Court is also led to the conclusion, based on the totality of the circumstances, and having reviewed both the legislation and all of cases referred to from counsel, that what the defendant is essentially doing is using s. 44(10) of the Municipal Act as a sword and not a shield.

Conclusion

[ 63 ] It is for all of these reasons that the Court finds that, in these somewhat unique circumstances, it would be inappropriate to grant the relief requested by the defendant, the City of Kingston, by way of a summary judgment pursuant to Rule 20 of Rules of Civil Procedure .

[ 64 ] This Court also finds that when rule 1.04(1) of the Rules of Civil Procedure is applied, the “just, most expeditious and least expensive determination” of the issue in this case can be decided by way of a trial of two specific issues. Accordingly, the Court orders that a trial take place, as soon as possible, to determine if the City of Kingston has suffered meaningful prejudice by virtue of the plaintiff’s late delivery of her Notice of Claim on February 25, 2010. Secondly, the trial is to determine whether the misapprehension as to the ownership of the sidewalk in question constitutes a reasonable excuse for the delay of the notice by Ms. Grant beyond the ten day notice period set out in s. 44(10) of the Municipal Act .

[ 65 ] Ultimately, this Court finds that there are two genuine issues requiring a trial and a trial on those issues is so ordered. Based on the evidentiary record before it, this Court is simply unable to conclude that it has a “full appreciation of the issues in dispute” without the benefit of an examination-in-chief and, more importantly, a full examination-in-chief and a full cross-examination.

[ 66 ] With respect to the issue of costs, it is hoped that the parties can agree between themselves the costs for this motion. Failing which, the Court will entertain costs submissions of no more than one typed page within 14 days of the release of this decision.

The Honourable Mr. Justice John A. McMunagle

Released: November 27, 2012

COURT FILE NO.: CV-10-302-00
Kingston, Ontario

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

NIKISHA GRANT Plaintiff

– and –

THE CORPORATION OF THE CITY OF KINGSTON and QUEEN’S UNIVERSITY Defendants

MOTION FOR SUMMARY JUDGMENT

McMunagle J.

Released: November 27, 2012