ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-4641-00
DATE: 20130225
B E T W E E N:
Jennifer Christine Gribowski
M. Fernandez, for the Plaintiff
Plaintiff
- and -
Balbir Singh and Satinder Singh and City of Mississauga
H. C. Goddard, for the Defendants, Balbir Singh and Satinder Singh
D. Boghosian & E. McMonagle, for the Defendant, City of Mississauga
Defendants
HEARD: January 23, 2013, and with written submissions
REASONS FOR JUDGMENT
Daley J.
[1] This action arises from a slip and fall accident which is alleged to have occurred on December 26, 2008, when the plaintiff pedestrian slipped on ice or snow while she was crossing a portion of a driveway located adjacent to the home of the defendants by Balbir Singh and Satinder Singh ("the Singhs").
[2] The Plaintiff instituted this action against the Singhs and the City of Mississauga ("Mississauga") as the parties alleged to be responsible for the maintenance of the area where the plaintiff claims she fell.
[3] Following service of the statement of claim, counsel for Mississauga delivered to counsel for the plaintiff a Demand for Particulars with respect to the precise location of the plaintiff's fall.
[4] The plaintiff delivered a Response to the Demand for Particulars wherein she identified the location of her fall on a photograph and indicated that she had fallen on a portion of the Singh’s driveway at a point where the driveway crosses the public road allowance or municipal boulevard. This area is referred to as the driveway "apron."
[5] Mississauga acknowledges that the location identified by the plaintiff, where she alleges she fell, is within the public road allowance and that it is owned by the city.
[6] The Singhs move for summary judgment seeking an order dismissing the plaintiff's action and the cross-claim of Mississauga on the basis that there is no genuine issue requiring a trial as they are not the occupiers of the location where the fall is alleged to have occurred and as they owe no duty of care to the plaintiff.
[7] The plaintiff and Mississauga oppose this motion on the basis that there are genuine issues requiring a trial, and that the legal questions involved are novel and include public policy concerns that should not be determined on a summary judgment motion.
[8] The Singhs laid the driveway over their property and across the municipal road allowance known as the apron area, which abuts the travelled portion of the street in front of their home.
[9] They further acknowledged that they had hired a contractor to maintain their entire driveway including the apron area during the winter months of 2008/09, and that they and their son also shovelled and applied salt to the entire length of the driveway including the apron.
[10] Mississauga stated that the city provides winter maintenance to the travelled portion of its roads as well as to its sidewalks, but does not carry out winter maintenance of the driveway apron area that forms part of its road allowance adjacent to the Singh's property, nor with respect to any such area on any other driveway within the City of Mississauga.
[11] Notably, The Singhs acknowledged that, not only did they actively maintain the full driveway, including the apron area, but the Singhs and their family were the primary users of the driveway as an extension of their property, including the apron where the plaintiff alleges she fell.
[12] In response to the Singhs’ motion, Mississauga filed affidavit evidence as to its road maintenance budget in 2008 as well as evidence from Brian Malone, a professional engineer who, in a report to counsel for Mississauga, offered an opinion with respect to winter maintenance practices in respect of the apron area of private driveways.
[13] Mr. Robert Levesque, the Manager of the Works Maintenance and Operations Section in the Transportation and Works Department of Mississauga, stated in his affidavit that Mississauga's annual budget for winter maintenance service on its road allowances in 2008 was approximately $14.5 million. Mississauga’s total road maintenance budget in respect of all roads, sidewalks, bus stop pads and other public walkways within road allowances was $21 million.
[14] Robert Levesque further stated that Mississauga had made a budgetary decision not to provide winter maintenance to the non-travelled portions of roadways. These areas include the portions of private driveways traversing municipal road allowances, namely the apron area adjacent to the defendant Singh’s property.
[15] He further offered evidence as to the magnitude of winter maintenance required if the city did clear snow from the estimated 135,700 private residential driveways and 7,730 commercial/business and industrial driveways leading from the paved portion of the municipal road allowance. He stated that the area of municipal road allowance that constitutes these driveway aprons is in the order of 4.5 million square metres, or, if expressed in terms of lane kilometres: 4,613 lane kilometres.
[16] Robert Levesque explained in his affidavit that there is no efficient way to maintain the apron portion of private driveways falling within the municipal road allowance, and that if Mississauga was required to do so the cost would have an impact resulting in at least a fivefold increase in Mississauga's winter maintenance budget.
[17] The Singhs assert that there is no genuine issue requiring a trial and submit that homeowners, such as the themselves, are free from liability for injuries arising from the failure to maintain municipally owned streets and sidewalks as that responsibility rests with the municipality: Slumski v. Mutual Life Assurance Co. of Canada [1994] O.J. No. 301 (Div. Ct.); Bongiardini v. Corporation of the City of Vaughan, (2000) 2000 5408 (ON CA), 49 O.R. (3d) 641 (C.A.). In deciding whether to grant summary judgment, the court must determine whether it can achieve a full appreciation of the evidence and the issues at stake to make dispositive findings on the basis of the motion record, or whether the determinations to be made can only be achieved at trial on a full and tested evidentiary record: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONSC 754, 108 O.R. (3d) 1.
[18] Actions involving novel and unresolved issues of law are inappropriate for summary judgment motions particularly where the issues at stake involve public concerns: Romano v. D’Onofrio (2005) 2005 43288 (ON CA), 77 O.R. (3d) 583 (C.A.) at para. 7; Dominion of Canada General Insurance Company v. Meloche Monnex Inc., 2012 ONSC 4424, [2012] O.J. No. 3594 at para. 11.
[19] There are no Canadian cases deciding liability in respect of a failure to maintain a private driveway apron. Further, in his report to counsel for Mississauga dated June 14, 2012, engineer Brian Malone stated that he does not know of any municipality that provides winter maintenance to the aprons of private driveways within a municipal road allowance.
[20] In considering the potential liability of private property owners who occupy land adjacent to a municipal sidewalk, MacPherson J.A. in Bongiardina stated at para. 19:
A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured. If the homeowner complies with this duty, he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks. The snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality not the adjacent property owner.
[21] The Court in Bongiardina stated that there are two exceptions to this general rule by which an owner of property adjacent to municipal lands may be found to have a duty of care and potential liability exposure namely:
(a) where an adjacent property owner may be deemed, in law, to be an occupier of the adjacent public property if the owner assumes control of that property; and
(b) where the adjacent property owner permits a condition or activity on his or her property to flow onto the land occupied by the municipality and in doing so creates the danger: Bogoroch v. Toronto (City) [1991] O.J. No. 1032; Moody v. Toronto (City) 1996 8229 (ON SC), [1996] O.J. No. 3418.
[22] It is common ground on this motion that it is only the first exception to the general rule discussed above that may be engaged on the evidence in this case.
[23] It was submitted on behalf of the moving defendants that the first exception would only apply if these defendants either assumed exclusive possession or exclusive control of the apron area of the driveway which extended over the municipal road allowance.
[24] Section 1 of the Occupiers' Liability Act, R.S.O. 1990, c.O.2 provides that an "occupier" includes:
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises.
[25] As was recognized by Dambrot J. in Moody at para. 6, there can be "special circumstances" where an adjacent property owner may be determined to be an occupier of municipal lands.
[26] It was submitted by counsel on behalf of the Singhs that they are not occupiers of the area where the plaintiff alleges she fell, and that in view of the decision in Bongiardina, as an adjacent property owner, they have no responsibility to maintain the apron area of the municipal road allowance.
[27] Counsel for the Singhs further relies upon the decision of D.A. Wilson J. in Mark v. Bhangari, 2010 ONSC 4011, [2010] O.J. No. 3014 wherein the court concluded that the defendant, an owner of property adjacent to a public sidewalk was not an "occupier" of a strip of grass on municipal land that ran between a municipal sidewalk and the defendant's property, although the defendant maintained the grass by cutting it.
[28] Wilson J. stated at para. 22:
…that the owner of property adjacent to a public sidewalk is not an "occupier" of the premises within the meaning of the Occupiers' Liability Act and is not liable to others who use the area absent "special circumstances".
[29] As observed by Wilson J., each case must be scrutinized based on its facts.
[30] The facts in Mark are clearly distinguishable from those in this case. In that case the defendant's activities with respect to the grassy boulevard portion of the road allowance involved simply cutting the grass.
[31] Following submissions from counsel, the recent decision of the Court Of Appeal in Haliburton (County) v. Gillespie, 2013 ONCA 40, [2013] O.J. No. 336, came to the attention of the court. Further written submissions were requested from counsel regarding this case.
[32] In considering various decisions as to what constitutes the indicia of an occupier, Sharpe J.A. stated at para. 37 of Haliburton:
While clearly not on all fours with the facts of this case, these authorities suggest that the right to use the land and to invite others to do so will not be sufficient to make the right-holder an "occupier". While the right to allow certain individuals (like guests) onto the land will point somewhat toward occupation, if others also have that right then the occupation is less likely. Stronger control over precisely who is permitted or excluded or over the state of the land or the activities carried on there will be required to establish liability as an "occupier".
[33] In the present case, the Singhs installed the driveway over the municipal road allowance including the apron area, and they take an active role in winter maintenance of that portion of their driveway extending over the municipal road allowance which allows for their entry on to their property. Their maintenance activities are not simply aesthetic in nature.
[34] Further as noted, the Singh acknowledged that they are the primary users of the driveway and treat it as an extension of their property, including that the apron where the plaintiff alleges she fell.
[35] I have concluded that the Singhs’ summary judgment motion seeking an order dismissing this action and Mississauga's cross-claim must be dismissed.
[36] I have reached this conclusion given that the record discloses that this case appears to involve special circumstances whereby the Singhs may be found to be occupiers of the apron area of their driveway, and as such, they may have a duty to maintain that area. Further, the moving defendants and Mississauga may both be found to be occupiers of the area in question, and as such, may have concurrent duties to maintain the area where the plaintiff alleges she fell.
[37] A full appreciation of the evidence and issues that are required to make dispositive findings cannot be achieved on this evidentiary record. The subtleties as to the question of occupancy as considered by Sharpe J.A. in Haliburton cannot be fully appreciated and adequately weighed on the present evidentiary record.
[38] Further, in view of the lack of any jurisprudence as to the liability for maintenance of driveway apron areas, and taking into account the public policy considerations with respect to the cost to municipalities of the winter maintenance of these areas, the determination of the question as to who is an occupier of this space and the scope of the duties that flow from that should be determined at trial on a full and tested evidentiary record.
[39] For these reasons the motion is dismissed.
[40] In the event the parties cannot resolve the issue of costs, counsel for the plaintiff and Mississauga shall deliver submissions on costs within 15 days. The submissions shall be no longer than two pages plus a costs outline. Counsel for the Singhs shall file similar cost submissions within 15 days thereafter. No reply submissions are to be filed.
Daley J.
Released: February 25, 2013
COURT FILE NO.: CV-10-4641-00
DATE: 20130225
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Jennifer Christine Gribowski
Plaintiff
- and –
Balbir Singh and Satinder Singh and City of Mississauga
Defendants
REASONS FOR JUDGMENT
Daley J.
Released: February 25, 2013