Ontario Superior Court of Justice

Court File No.: CV-10-409381
Date: 20130606

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

James Bannister and Elaine Gurney

Plaintiffs

– and –

The City of Toronto, The Nordic Insurance Company of Canada, Toronto Hydro Energy Services Inc., The City of Mississauga, and

Enersource Hydro Mississauga Services Inc.

Defendants

Avi Cole, for the Defendant, Enersource Hydro Mississauga Services Inc. (Moving party)

David Boghosian and Laura Day, for the Defendant, The City of Mississauga (Responding party)

Ivan Lavrence, for the Defendant, Toronto Hydro Energy Services Inc.

HEARD: April 8, 2013

Morgan J.

[1] The Defendant, Enersource Hydro Mississauga Services Inc. (“Enersource”), is an electrical services contractor hired by the City of Mississauga to service streetlights within its jurisdiction. Enersource seeks summary judgment under Rule 20.01(3) of the Rules of Civil Procedure dismissing the action and cross-claim as against it.

[2] The central question raised in the action and cross-claims is whether the streetlights within Mississauga’s “jurisdiction”, for which Enersource is responsible, refers to the surface jurisdiction of city streets or the underground jurisdiction of electric cables and circuitry.

I. The claim and cross-claims

[3] On February 28, 2007, an accident occurred on Renforth Drive on the bridge over Highway 401. The Plaintiffs’ allegation in the action is that their injuries were sustained at a time when a number of streetlights were out along both sides of the Renforth bridge, causing reduced visibility.

[4] Renforth Drive is on the boundary between the City of Toronto and the City of Mississauga: east of the bridge is Toronto and west of the bridge is Mississauga. The Municipal Act, 2001, SO 2001, c 25, ss. 29(1) and 29(2) provide that boundary roads and bridges are under the joint jurisdiction of the local municipalities on either side of the boundary line.

[5] The City of Toronto contracted out its streetlight servicing operations to the Defendant, Toronto Hydro Energy Services Inc. (“Toronto Hydro”). The City of Mississauga contracted out its streetlight servicing operations to Enersource.

[6] The Plaintiffs have brought claims against both cities and their respective electrical servicing contractors. The two cities have cross-claimed against each other, and, in turn, each has cross-claimed against its own electrical servicing contractor.

[7] While there appears to be little doubt among the parties that the City of Toronto was responsible for maintaining and servicing the streetlights on the east side of Renforth bridge, it is an open question as to which municipality was responsible for maintaining and servicing the streetlights on the west side of Renforth bridge.

[8] The City of Toronto did not appear in this motion, but it would seem to be its position in the action that it was responsible for maintaining and servicing the streetlights on both sides of Renforth bridge. It is, however, Toronto Hydro’s position that the west side of the bridge was the City of Mississauga’s responsibility.

[9] Neither Toronto nor Toronto Hydro takes a position on the present motion. Counsel for Toronto Hydro, Mr. Lavrence, appeared at the hearing in order to advise the court of his client’s neutrality on the issue before me – i.e. the cross-claim by Mississauga against Enersource.

[10] Mr. Lavrence also submitted that I should strive to be as circumspect as possible in my ruling. He expressed concern that whatever the result of this motion, the reasons for judgment should avoid touching on issues that affect the other parties not participating in the motion and that will have to be resolved by the trial judge. I appreciate Mr. Lavrence’s caution in this respect and consider his point well taken.

II. The Streetlighting Services Agreement

[11] At the time of the accident, the relationship between Enersource and the City of Mississauga was governed by a contract entitled the Streetlighting Services Agreement dated July 4, 2004 (the “Agreement”). Under article 3.3 of the Agreement, Enersource was required to maintain and repair the “Streetlighting System” for Mississauga. The Agreement further provides for a map of the Streetlighting System to be created:

[Enersource] agrees to provide to the City a map of the Streetlighting System in electronic form promptly upon execution of this Agreement, and to provide updates to the City in electronic form every six (6) months thereafter during the Term and any renewal thereof.

[12] The map produced by Enersource does not include any lights along the Renforth Drive bridge. Both parties to the Agreement concur that they were satisfied that this map was correct, although each claims that they relied on the other in coming to that conclusion.

[13] Enersource’s Director of Business Development, Andrew Bloomfield, deposed in his affidavit that, “Enersource relies on Mississauga’s instructions as to whether streetlights on boundary roads are within its jurisdiction for the purpose of maintenance and repair of the streetlights.” That position only makes sense. Mississauga’s position that it relied on its electrical contractor to inform it of its own jurisdiction is altogether counter-intuitive. It is also contrary to the direction that the evidence in the record points.

[14] It is the City of Mississauga that would have to advise its contractor of the lights it considered itself responsible for servicing. The map of Mississauga’s electrical jurisdiction was only necessary if there was a deviation from the geographic jurisdiction of the city; otherwise, any city map available at a retail store or gas station would suffice.

[15] If there were to be any deviation from the geographic jurisdiction of the city in the map of Mississauga’s streetlight responsibilities, only the city officials would know that, and would have to advise Enersource to incorporate the deviation into its map. If, for example, Mississauga had a specific agreement with a neighbouring city that required it to service streetlights outside of its geographic boundaries, or that required the neighbouring city to service streetlights within Mississauga’s geographic bounderies, it would be the Mississauga, and not its contractor, that would first and foremost be aware of the arrangement. Mississauga’s attempt to say that it relied on Enersource to provide it with this information strikes me as an attempt to deny its own responsibilities.

[16] As indicated, the map produced by Enersource was understood by both Mississauga and Enersource to be accurate. As Mr. Bloomfield deposed:

At no point in time has Mississauga informed Enersource that some or all of the streetlights on the Renforth Bridge are within the jurisdiction of its Transportation and Works Department or within Mississauga’s jurisdiction at all.

[17] Other than the mapping provision, the Agreement does little more to define the streetlight jurisdiction of the City of Mississauga. In fact, the definition found in article 2.1 of the Agreement, which is meant to describe the Streetlighting System with more precision, merely re-states the question at issue on this motion: “…all lighting installations under the jurisdiction of the Transportation and Works Department of the City.”

[18] In terms of contract interpretation, however, there is really no controversy here. Both parties to the Agreement agree that the Renforth Drive bridge was not within Mississauga’s streetlight servicing jurisdiction. The affiant for the City of Mississauga, Eric Menezes, who is the Streetlighting Supervisor in the City’s Transportation and Works Department, confirmed this in his own affidavit:

It is the City’s position that the Renforth Bridge, including all streetlights on the bridge, are not the responsibility of the City to Maintain…

[19] Mr. Menzes further confirmed on discovery that, in the City of Mississauga’s view, the Renforth bridge streetlights were the responsibility of the City of Toronto at the time of the accident that underlies the present action. He testified that, from a streetlighting perspective, Mississauga’s boundary stopped where Enersource “energized the lights”. That boundary clearly excluded the streetlights along either side of Renforth bridge.

[20] Mr. Menzes also testified that, again “from a streetlighting perspective, our boundary was our circuitry.” That circuitry excluded the streetlights along the Renforth Drive bridge.

[21] Finally, Mr. Menzes explicitly stated that, as far as Mississauga is concerned, the Renforth bridge streetlights were outside of the City of Mississauga’s streetlight jurisdiction:

Q. As of February 2007, who did you understand to be responsible for maintaining the streetlights on the Renforth bridge over the 401?

A. I would say not the City of Mississauga.

[22] The law of contract interpretation has long been, and continues to be, premised on the mutual intentions of the parties. As the Court of Appeal has recently reiterated, “[t]he aim [of contract interpretation] is to determine the objective intentions of the parties from the words they have used.” Coventree Inc. v Lloyds Syndicate 1221, 2012 ONCA 341, at para. 16.

[23] There is simply no controversy here in terms of ascertaining the mutual understanding of the two parties to the Agreement. Enersource provided a map that reflected its own understanding that the Renforth bridge streetlights lie outside of Mississauga’s servicing jurisdiction. Mississauga provided an affidavit of its senior official responsible for servicing streetlights stating that the City, too, understood the Renforth bridge streetlights to lie outside of Mississauga’s jurisdiction.

III. Mississauga’s claim against Enersource

[24] Mississauga’s position on this motion is that while it believed that the Renforth bridge streetlights were the legal responsibility of the City of Toronto, it could turn out to have been wrong about that. As Mr. Menzes put it in his affidavit, despite Mississauga’s contrary understanding, it is possible that a trial judge will ultimately determine that, “…the jurisdictional boundary between the City of Mississauga and the City of Toronto is located along the western curb of the [Renforth] Bridge”, and that both cities therefore have joint jurisdiction over the road and its streetlights.

[25] Missussauga submits that until that determination is made one way or the other at trial, Enersource should remain a Defendant in the action.

[26] With respect, I do not see the logic of Mississauga’s position. Of course, Mississauga is correct in the first instance that the issue as between it and the City of Toronto remains to be determined at trial. Mississauga may turn out to have been right, or may turn out to have been wrong; the trial judge will determine which of the two cities was responsible for the Renforth bridge streetlights under the circumstances. But that does not reflect on Mississauga’s legal relationship with Enersource.

[27] If Mississauga turns out to have misunderstood its responsibilities, it was nevertheless in agreement with Enersource over that potential misunderstanding. The City of Mississauga and Enersource were ad idem that Renforth bridge was outside of Mississauga’s electrical jurisdiction. From the record before me, there appears to be no scenario in which Enersource could be responsible for having failed to do something under the Agreement that it was supposed to do.

[28] Enersource’s Agreement was with the City of Mississauga, not the City of Toronto. It was only contractually obliged to do that which it had agreed with Mississauga to do. Mississauga’s only cross-claim against Enersource is a claim in contract, and there has been no breach of the Agreement – interpreted as a meeting of the minds between the two parties – by Enersource. I see no facts or legal theory which would allow Mississauga to succeed in its cross-claim against Enersource.

IV. Conclusion

[29] The Plaintiffs do not object to the action being dismissed as against Enersource. The City of Toronto takes the same position, as its cross-claim is against Mississauga rather than against Mississauga’s contractor.

[30] I have a full appreciation of the issues at stake with respect to Enersource’s potential liability in the claim and cross-claim, Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764, at para 2 (Ont CA). As indicated, having achieved this full appreciation I can see no basis on which Enersource could be liable to any party.

[31] It is often said that a party is not “entitled to sit back and rely on the possibility that more favourable facts may develop at trial.” Transamerica Insurance Co. of Canada v Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 OR (3d) 423 (Ont Gen Div). By the same token, one defendant cannot keep another defendant in an action by sitting back and relying on the possibility that less favourable facts may develop at trial.

[32] On the record before me, neither Mississauga nor any other party has any valid claim against Enersource. Summary judgment is hereby granted dismissing the action and cross-claim as against Enersource.

[33] Counsel for Enersource has submitted a Costs Outline of just over $14,600 on a partial indemnity basis, which is slightly less than the costs submitted by counsel for Mississauga. I take this to be a sign that Enersource is being reasonable in its request.

[34] The City of Mississauga shall pay costs to Enersource in the total amount of $14,600, inclusive of disbursements and HST. There will be no costs payable to or by any other party.

Morgan J.

Released: June 6, 2013

COURT FILE NO.: CV-10-409381
DATE: 20130606

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

James Bannister and Elaine Gurney

Plaintiffs

– and –

The City of Toronto, The Nordic Insurance Company of Canada, Toronto Hydro Energy Services Inc., The City of Mississauga, and Enersource Hydro Mississauga Services Inc.

Defendants

Morgan J.

Released: June 6, 2013