SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-09-380908A1
DATE: 20140117

RE: David Birt, Plaintiff

– AND –

The City of Toronto, Defendant

– AND –

Maple-Crete Inc., Third Party

BEFORE: Justice E.M. Morgan

COUNSEL:
Matthew MacIsaac, for the Third Party

Andy Jairam, for the Defendant

HEARD: January 17, 2014

ENDORSEMENT

[1] This is a motion for summary judgment on the Third Party Claim brought by the Third Party, Maple-Crete Inc. (“Maple”), against the Defendant, the City of Toronto (“Toronto”). The Plaintiff was served with the motion materials, but did not participate in the motion.

[2] The question that must be asked under Rule 20.04(2)(a) of the Rules of Civil Procedure is whether there is a “genuine issue requiring a trial”. The Plaintiff claims damages from Toronto for an injury suffered when he slipped and fell on an allegedly icy sidewalk in downtown Toronto. Toronto, in turn, has brought a Third Party Claim alleging that Maple, its snow removal contractor, is the responsible party and is liable to it for contribution and indemnity.

[3] The question of whether or not the Plaintiff’s injury was a result of negligent clearing of ice from the sidewalk will have to be determined at trial of the main action. It cannot be determined on this motion, as the Plaintiff’s evidence is not in the record. It would be unfair to make a finding on this issue – which will inevitably be central to the result in the main action – in the context of a motion in which the Plaintiff did not respond as no relief was sought against him.

[4] The courts have on previous occasions determined that it is generally not appropriate to require a Defendant to prove or disprove an element of the Plaintiff’s claim in responding to a summary judgment motion brought by a Third Party. Cuillerier v Andre’s Furnace Sales & Service Ltd., 2011 CarswellOnt 9215, at para 16 (Master). Since a Third Party Claim is often contingent upon the results of the main claim, motions under Rule 20 rarely succeed where they seek to dispose of a Third Party Claim. See Tate Andale Canada Ltd. v DiClemente, 2001 CarswellOnt 1997, at para 28 (SCJ).

[5] It would impose an excessive burden on Toronto as Defendant if summary judgment could be granted to Maple just because Toronto cannot prove the question of Maple’s negligence without evidence from the Plaintiff. Bongiardina v York (Regional Municipality), 2000 5408 (ON CA), 2000 CarswellOnt 2622, at para 15. Accordingly, summary judgment is only available to a Third Party in Maple’s position if it is impossible for the Third Party Claim to succeed regardless of the outcome of the main action. Eftimonski v Faris, 2013 CarswellOnt 15268, at paras 60-62 (SCJ).

[6] Counsel for Maple submits that Maple performed precisely as expected under its contract with Toronto. That is to say, it attended to the snow and ice removal in a timely way on the day of the Plaintiff’s accident, and it supervised its work crew as required by the contract. Moreover, counsel for Maple points out that in the contract between Maple and Toronto, it is the City of Toronto that has responsibility for inspecting the work and for issuing an Inspector’s Report upon its completion. On the day in issue, a Toronto staff member did issue the appropriate report and that report made no note of any problems or issues with respect to snow and ice removal at the location of the Plaintiff’s fall. Indeed, the Inspector’s Report stated that its author was “satisfied with the work” and that the area where the Plaintiff fell was “salted well”.

[7] Accordingly, it is Maple’s position that any potential liability on its part is limited to liability under the contract with Toronto. Since Maple contends that it properly fulfilled its contractual obligations to Toronto, any liability to the Plaintiff would have to be that of Toronto alone. Counsel for Maple submits that Toronto is statutorily liable to an injured party for gross negligence, City of Toronto Act, 2006, SO 2006, c 11 Schedule A, s. 42(5), and that once Maple has discharged its obligations under contract any residual liability to a member of the public must rest with Toronto. Harrington v Sangha, [2011] BCJ No 1473, at para 142 (BC SC).

[8] Contrary to Maple’s position, the contract between Toronto and Maple does not exclude the possibility that Maple may be liable to contribute or indemnify Toronto for its own liability to an injured member of the public. Schedule C, Section GC 6.02 of the contract provides:

The Contractor shall indemnify and hold harmless the Owner and the Contract Administrator, and each of their elected officials, officers, employees and agents (hereinafter referred to collectively as the ‘indemneties’) from and against all claims, demands, actions, suits or proceedings which may be brought against or made by third parties, hereinafter called ‘claims’, directly or indirectly arising or alleged to arise out of the performance of or the failure to perform the Contract.

This indemnity clause makes it clear that it is not contractually impossible for the Third Party Claim to succeed. While Toronto has taken on itself certain responsibilities under the contract, the manner in which Maple, as contractor, carries out those responsibilities delegated to it can be the subject of a lawsuit by members of the public. See Belitchev v Grigorov, 2000 CarswellBC 1046, at para 36 (BC SC). A contractor can certainly be found to have breached a duty of care to pedestrians if it falls below contractual maintenance standards, where those standards are equal to or less than a reasonable standard. Giuliani v Halton (Regional Municipality), 2010 CarswellOnt 6399, at para 174 (SCJ), aff’d 2011 CarswellOnt 14436 (Ont CA), leave to appeal denied 2012 CarswellOnt 8121(SCC).

[9] The Toronto-Maple contract required Maple to clear the sidewalks until they are free of snow. Further, Maple’s representative at discovery acknowledged that this included clearing and de-icing the sidewalk. It will be for the trial court, after considering all of the evidence (including that of the Plaintiff), to determine whether or not the clearing done by Maple on the day of the Plaintiff’s fall met the requisite standard of care.

[10] Without the Plaintiff’s participation in this motion, there inevitably will remain a genuine issue requiring a trial. The test for summary judgment in Rule 20.04(2)(a) has therefore not been met. The Third Party Claim must remain intact, to be tried together with the main action. Maple’s motion is dismissed.

[11] The parties may make written submissions on costs. I would ask that counsel for Toronto send me their submissions within two weeks of the date of this endorsement, and that counsel for Maple send me theirs within a week thereafter.

Morgan J.

Date: January 22, 2014