COURT FILE NO.: CV-08-00356047

DATE: 20150703

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anil Agarwal, Kusum Agarwal, Megha Agarwal and Kamal Agarwal, a minor by his Litigation Guardian, Kusum Agarwal, Plaintiffs

AND:

Quentin Keith Lee, Toronto Transit Commission, York Fire Casualty Insurance Company and the City of Toronto, Defendants

BEFORE: Hood J.

COUNSEL: Doug Wright, for the Plaintiffs

Chad Townsend, for the Defendants Quentin Keith Lee and Toronto Transit Commission Tamara Tomomitsu, for the Defendant City of Toronto

HEARD: June 12, 2015

ENDORSEMENT

[1] On June 6, 2006 the plaintiff Anil Agarwal (plaintiff), while attempting to cross Spadina Avenue, in the City of Toronto, on foot, was struck by a southbound streetcar.

[2] The plaintiff has brought a claim against the operator of the streetcar, Mr. Lee, Toronto Transit Commission (TTC) and the City of Toronto (City).

[3] This is a motion for summary judgment brought by the TTC, not to have the claim as against it dismissed, but to have the claim as against its co-defendant, the City, dismissed.

[4] The motion is opposed by the plaintiff. The motion material indicated the City was also opposing the motion. However, at the commencement of argument I was provided with a letter from the City’s counsel, dated May 21, 2015 and faxed to the parties on June 3, 2015, consenting to the relief sought. This consent of the City was not disclosed on the confirmation form filed by counsel for the TTC.

[5] None of the parties, including the City, were able to provide me with any case law where a party brought a motion for summary judgment, not with respect to the claim made by or against it, but with respect to the claim made by or against one of the other parties.

[6] While not exactly on point I have found two cases which touch on this. In Concord Carriers v. Alnet Holdings, 2005 31990 (ONSC) Tulloch J., as he then was, allowed a summary judgment motion by one defendant to dismiss the plaintiff’s claim against a co-defendant. The case is different however because this was a lien action where the general contractor brought the motion to dismiss the sub-contractor’s claim against the owner. There was no claim in contract as between the sub-contractor and owner because there was no such contract. As well the sub-contractor’s lien had been bonded off so that the lien claim was against the security posted and based on long standing authority there was no claim against the owner. While the sub-contractor also alleged an unjust enrichment claim against the owner this too failed as among other things there was no deprivation to the sub-contractor following the payment of security.

[7] In Fernandes v. Araujo (2014), 123 OR (3d) 294, 2014 ONSC 6432 (SCJ), Perell J. allowed a third party and defendant insurer to bring a summary judgment motion seeking to dismiss the claim made against its insured co-defendant. He ultimately dismissed the motion on its merits. There was no analysis in the case as to the ability of the insurer to bring such a motion.

[8] Rule 20.01(3) states that a defendant may move for summary judgment dismissing all or part of the claim in the statement of claim. The rule does not add wording limiting the motion to a claim made against the moving defendant. The plaintiff herein argues that the rule should be interpreted to read that way. While that is the normal sort of motion, I see no reason to limit r. 20.01(3) in that way. It would have been easy to add limiting words to the rule if that was its intent.

[9] Nor are there limiting words placed upon the court in r. 20.04(2)(a). The court shall grant summary judgment with respect to a claim not with respect to the claim against the moving party. (Emphasis added.)

[10] Rule 1.04(1) provides that the rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[11] In Hryniak v. Mauldin, 2014 SCC 7 Justice Karakatsanis at paragraph 5 stated:

I conclude that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

[12] Considering the wording of the summary judgment rules themselves, the general principle of rule interpretation and the above statement I find that, while out of the ordinary, TTC can bring the within motion. However, for the reasons that follow I dismiss the motion.

[13] The southbound streetcar on Spadina travels on fixed rails. Immediately to the west of the location of the collision is a concrete island or median also running north and south. In the middle of this concrete island, also running north and south, are a number of trees planted approximately in the middle of the island. Being June the trees had leaves.

[14] The plaintiff was struck while walking west to east across Spadina having crossed the median, with its trees, onto the fixed rails.

[15] The plaintiff along with various family members claiming under the Family Law Act, commenced a claim on June 4, 2008 against the operator Mr. Lee and the TTC, as owner of the streetcar.

[16] The TTC and Lee filed a defence admitting only that TTC owned the streetcar and Lee was the operator. On top of the general denials as to the injuries and damages suffered by the plaintiff they alleged that the plaintiff was negligent for a number of reasons in crossing the street.

[17] The TTC defendants filed a jury notice.

[18] On February 12, 2012 Mr. Lee, the streetcar operator, was examined for discovery. During his discovery he said:

(a) the trees were obstructing his vision;

(b) the trees made it difficult to see from time to time;

(c) he did not see the plaintiff on the median because of the trees;

(d) several operators had complained among themselves about the trees on the median and some of those complaints may have been passed on to the TTC;

(e) it was his understanding that trees were there because of the City and the community and the City was supposed to trim the tree branches to a certain height; and

(f) the median and trees were on City property and the TTC did not maintain or trim the trees being the City’s responsibility.

[19] As a result of Lee’s discovery evidence the plaintiff brought a motion to amend his claim to add the City as a defendant. Neither the TTC or the City opposed the motion and on December 14, 2010 Master Short granted the order. In addition to making specific allegations against the City in relation to the median and the trees the plaintiff also added allegations against the TTC regarding the median and the trees.

[20] In its defence the City, among other things, pleaded the median and trees were owned by the TTC and accordingly the median and trees did not fall under its jurisdiction.

[21] Pursuant to s. 108(2)12 of the Courts of Justice Act because the City is now a defendant, the trial will be without a jury, despite the TTC’s jury notice.

[22] The City representative was discovered on January 31, 2012. During his discovery he said:

(a) the land on Spadina where the streetcar runs including the median is owned by the City;

(b) the City grants the TTC a right of way on its land;

(c) the City is not responsible for this land nor is it allowed to be on the right of way or to do any kind of work on the right of way unless invited by the TTC to do so but if invited to do the work it will do so and then bill the TTC; and

(d) the City did not have any obligation to maintain the trees.

[23] The TTC representative was examined for discovery on December 17, 2012. During his discovery he said:

(a) in 2006 at the time of the accident the TTC did nothing to maintain the median or trees; and

(b) there was currently an agreement between the TTC and the City which set out the responsibilities between the City and the TTC for the maintenance of things such as the Spadina medians. He undertook to provide the agreement.

[24] The agreement is dated January 23, 2013 and provides in the preamble at paragraph 4 that the City and the TTC recognize it to be in the “public interest that agreement be reached as to the division of responsibilities … for the undertaking of work for the … maintenance of the Transit System and the Public Highways”.

[25] The agreement further provides in paragraph 2 as to the sharing of Costs and responsibility for the performance of Work relating to the various aspects of an Exclusive Right-of-Way. Costs, Work and Right-of-Way are defined terms. With respect to the landscaped medians which run beside the Spadina streetcar line the contract provides at paragraph 3.12(a) that tree maintenance and tree trimming may be initiated by either the City’s Parks, Forestry and Recreation Division or the TTC, the City’s same Division is to perform or implement the Work and the TTC is responsible for the payment of the cost of the Work. In my view the agreement is irrelevant to the motion or even if applicable is contrary to the TTC’s position. When the accident occurred there was no written agreement, merely established practices between the City and the TTC. Moreover, the agreement does not provide that the TTC will be responsible for any liability arising in relation to the median and trees and certainly not where the actual work is carried out by the City. If anything it confirms that while paid for by the TTC the actual work was done by the City and could be initiated by either.

[26] The TTC wants to assume the legal responsibility for the maintenance and structure of the trees on the median and served a request to admit to that effect on December 4, 2014. The plaintiff responded, within the time provided by the rules, to the effect that while the TTC had legal responsibility for the trees on the median it did not have the sole responsibility and the City was also responsible. While the TTC wishes to assume liability there is no requirement shown to me by the TTC that the plaintiffs must accept this position. In fact the discovery evidence of the TTC’s and City’s representatives suggests that as between the TTC and the City there is actually a different view as to who is responsible for the trees and median.

[27] The admission by the TTC can only be an admission against its own interest and cannot bind another party.

[28] The TTC also relies upon s. 398(1) of the City of Toronto Act, 2006, SO2006, c. 11, Schedule A for the argument that the claim against the City should be struck. It reads:

Any claims arising from or relating to the … maintenance, operation … control and management of the TTC’s transportation system and property or arising from the exercise of any of the TTC’s powers, shall be made against the TTC and not against the City. (Emphasis added.)

[29] In my view the problem with this argument is the use of “and” following the provision dealing with the operational functions of the TTC. The claim must also relate to the TTC’s property. The median and trees are not the TTC’s property. The median and trees are owned by the City. The TTC has a right-of-way over the City’s property. The TTC argued that having a right-of-way over the City’s property makes this the TTC’s property. I cannot agree. Further, the written agreement between the City and the TTC even if applicable in 2006, which it is not, provides for the sharing of costs and the responsibility for the performance of maintenance work on the right-of-way. It does not change ownership of the right-of-way and what is on it.

[30] The TTC has not demonstrated that there is no genuine issue requiring a trial. Just because it wants to assume all the liability for any alleged negligence involving the median and the trees does not automatically remove its co-defendant from the action. The City is potentially liable and the plaintiff is entitled to continue with his claim against it.

[31] No case law was provided by the TTC in support of its proposition that by the TTC being prepared to assume all liability the City should be removed from the claim. Nor did the plaintiff provide any case law contrary to this proposition.

[32] While not exactly on point in General Electric Capital Canada v. Deloitte & Touche LLP, 2002, 30158 (ONSC) GECC sued both the partnership and some of the individual partners of the partnership for the same tort. On a rule 21 motion the partners sought to have the claim against them dismissed as the claim against them was the same as against the partnership. Epstein J., as she then was, quoted from Fridman’s text The Law of Agency (7th edition) as follows:

Since, generally speaking, principal and agent are jointly liable for torts committed by the agent, the injured party may sue either principal or agent (where neither is excused from liability or immune from suit), or he can sue both principal and agent jointly.

[33] She held that were a tort is concerned both the principal and agent may be sued. This is analogous to the situation here where the City was doing work and being paid for the work by the TTC. While the TTC wishes to assume the liability for the City’s work the plaintiff wishes to sue both.

[34] The trial is presently scheduled to commence in March 2016 for six weeks, including the accident benefit claim. The TTC argues that if the City is removed from the action then the trial will be simplified and shortened. I am not convinced of this. Even if removed, witnesses from the City will still be required to give evidence. With the City the trial will be without a jury. The TTC’s true motivation for the removal of the City is to have the negligence questions answered by a jury in accordance with the jury notice served by it. This is admitted by the TTC in its affidavit material filed in support of this motion. If anything, a judge alone trial will be more expeditious than one with a jury.

[35] The motion is therefore dismissed. As to costs the TTC and the plaintiff agree that $5,000.00 inclusive of disbursements and HST is a reasonable amount for this motion. The TTC argues that because this is a novel motion that there should be no costs or the issue of costs for the motion should be left to the trial judge. The plaintiff argues the costs should be paid by the unsuccessful party. I agree. While the motion was unusual, in the sense of a defendant bringing a motion to remove not itself but a co-defendant from the action, the plaintiff had to respond and the novelty of the motion does not in my view rise to a matter of public importance or interest. Costs of $5,000.00 payable by the TTC to the plaintiff within 30 days of today’s date.

Hood J.

Date: July 3, 2015