COURT FILE NO.: CV-10-00411783
DATE: 20150807
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Audrey Cumberbatch
Plaintiff
– and –
The City of Toronto
Defendant
J. Giuliana and R. Kramer, for the Plaintiff
V. Kotoulos and S. Forbes Q. C., for the Defendant
HEARD: April 28-30 2015
REASONS FOR DECISION
CAROLE J. BROWN J.
Overview
[1] The plaintiff, Audrey Cumberbatch, is a stately woman who walks with a limp and a cane since falling on a Toronto city street in the winter of 2010. She resides in Barbados, but was visiting her daughter, son-in-law and her grandchildren for three months during the winter of 2010. This was not the first time she had spent an extended visit with her daughter in Toronto during the winter months.
[2] On the day in question, March 1, 2010, she was walking her young granddaughters, Cherokee and Samantha, to school in the neighborhood. They were on the east side of Pine Street, between Queen’s Drive and King Street in Etobicoke. It was not the first time she had walked her granddaughters to school in the morning during this visit. She was wearing her winter coat and winter boots, which were flat-soled. As one does on winter sidewalks, she was walking carefully, looking down at her path and ahead to the path in front of her. She had her arm around Cherokee’s shoulder. She was watching her other granddaughter, who was walking ahead and “skating” in her boots on the hardpacked snow-covered street.
[3] Suddenly, her feet slipped from under her and she fell straight back, landing on her back. It was her testimony that she felt her feet slip from under her. She was unable to move or get up. She was asked in cross-examination whether she saw what she had slipped on, but stated that she could not move and could not see what was under her. She stayed there until the ambulance arrived. She sustained injuries in the fall, including fractured vertebrae in her back which necessitated surgery.
Position of the Plaintiff
[4] It is the position of the plaintiff that a decision was made by “upper management of the City of Toronto” on the morning of February 27, 2010, prior to the City’s winter district conference call, that all sidewalks within the Etobicoke/York district, which would include Pine Street at the loss location, were to be plowed, sanded and salted. The plaintiff maintains that despite this, no winter maintenance was performed at the subject location from February 27, 2010, at approximately 1:23 AM, to March 1, 2010, at approximately 9:00 AM, the time of loss.
[5] The plaintiff further maintains that the City’s insistence that a direction within the City’s snow advisory was an error and that there was never any intention to have all the sidewalks within the district plowed, sanded and salted after the initial advisory is untenable. She maintains that there is ample circumstantial evidence that the direction was not an error.
[6] The plaintiff maintains that the City’s principal witnesses lack credibility in their evidence.
[7] The plaintiff also maintains that the subject directive was not an error, the maintenance pursuant to that directive was not done, and that the amount of time between the time the City should have performed the sidewalk winter maintenance pursuant to the directive and the time when Ms. Cumberbatch slipped and fell was such as to constitute gross negligence on the part of the City.
Position of the Defendant
[8] It is the position of the defendant that no evidence was adduced to establish that the sidewalks were in a state of non-repair or repair that was not reasonable in the circumstances, such that there was no condition of non-repair or an “unreasonable condition in the circumstances” that would render the City liable. Further, it argues that there is no actual evidence of ice on the City sidewalk in the location where the plaintiff fell. The City further maintains that even if a condition of non-repair or unreasonable condition in the circumstances is established, the plaintiff must then show that the non-repair does not fall within one of two applicable defences pursuant to s. 42(3) of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A (“the Act”). These defences are: (1) that the City could not reasonably know of the state of non-repair; and (2) that the City has reasonable standards which were met. In the event that the City is found negligent, the issue becomes whether it was grossly negligent. It is the position of the City that, in all of the circumstances, it acted reasonably.
[9] As regards the applicable defences, the City submits that it took reasonable steps to prevent the default from arising, did not know and could not reasonably have known about the state of non-repair as they had no actual knowledge of an alleged ice patch, had received no complaints of any snow or ice related issues on the sidewalks of Pine Street, nor had they received any complaints as regards the work of the sidewalk subcontractors in the area. The City further maintains that the general area was regularly patrolled by field investigators and route controllers, and that the City’s regularly scheduled drive-by inspections and citizen reporting system satisfied its obligations under the Act to address and correct situations of hazard. The City maintains that there is no evidence to establish that it reasonably ought to have known of any icy conditions on Pine Street.
[10] Further, the City maintains that the second defence is applicable in that it took reasonable steps to prevent the default from arising. It submits that the evidence is fully supportive of this.
The Issue
[11] The only issue for determination by this Court is whether the City is liable for the injuries sustained by Ms. Cumberbatch in her slip and fall on the Toronto sidewalk. In the event that the City is found responsible, damages have been agreed upon by the parties.
Agreed Facts/Admissions
[12] The parties have agreed upon the following facts:
[a] The plaintiff, Audrey Cumberbatch (“Audrey”) was born on May 24, 1938 and is currently 76 years old. At all material times she was a citizen of Barbados.
[b] Audrey has a daughter, Octavia, who in 2010 resided in the City of Toronto at 33 Pine Street in Etobicoke. Octavia’s school-aged children include Cherokee and Samantha.
[c] In January 2010, Audrey traveled to Toronto to visit her daughter Octavia and Audrey’s grandchildren. During her visit she stayed with Octavia and her granddaughters at their home located at 33 Pine Street in Etobicoke, which is located at the southeast corner of Pine Street and King Street.
[d] Audrey had visited Canada during the winter months at least twice in the past.
[e] On March 1, 2010 at approximately 9 AM, while walking Cherokee and Samantha to school, Audrey slipped and fell on a municipal sidewalk located on the east side of Pine Street between King Street and Queen’s Drive, after leaving 33 Pine Street and walking only approximately 10-15 feet on Pine Street southbound towards Queen’s Drive.
[f] The location of Audrey’s slip and fall that occurred on March 1, 2010 on Pine Street is within Sidewalk - Route EY-3C92, for which the City of Toronto is in law responsible for the maintenance.
[g] The City received written notice of Audrey’s claim within 10 days of her fall.
[h] Counsel have agreed on general non-pecuniary damages in the amount of $80,000 and special pecuniary damages in the amount of $30,000, plus applicable pre-judgment interest.
[i] Any costs and/or disbursements payable will be as agreed upon by all parties or assessed following trial.
Sidewalk Winter Maintenance
[j] No sidewalk winter maintenance was performed by the City or on behalf of the City on the sidewalk on Pine Street between King Street and Queen’s Drive between the latest February 27, 2010 at 1:23 AM and March 1, 2010 at 9 AM, the approximate time of Audrey’s fall.
Glossary
[k] Field Patrol Inspectors Reports (“FPIR”) are created when City field patrol inspectors complete a patrol.
[l] Operating Roadside Plowing Records for Sidewalks/PXO (“Plowing Records”) are a payment schedule for hired contractors, such as Lima’s Gardens.
The Evidence
The Plaintiff’s Evidence
Audrey Cumberbatch
[13] Audrey Cumberbatch was born May 24, 1938, and was, at the time of trial, 76 years old. She resides in Barbados. She was in Toronto visiting her daughter Octavia, who resides at 33 Pine Street with her three children, Samantha, Cherokee and Diana. She had come to Canada in January of 2010 and was planning to stay through July.
[14] On March 1, 2010, she was walking her grandchildren to school. She left the house at 9 AM. They were not in a hurry. Even if the children had been late, she testified that she would not have hurried them. They were walking on Pine Street, a street that they often take. She was wearing her winter boots, coat and hat. She was wearing her glasses. She was walking normally, looking ahead and down in front of her at the path.
[15] She slipped on ice. She could feel the ice under her feet when she was walking, although she could not see it as there was snow on top of the ice. She saw and felt no salt or sand and heard none under her feet. She had seen no one put salt or sand on the sidewalk. She fell backward, landing on her back, and immediately felt pain. The ambulance was called. She went to the hospital where x-rays were taken. It was determined that she had broken her back. She was thereafter admitted to St. Michael’s Hospital for surgery. Following the surgery and recuperation, she returned to Barbados in early April.
The Defendant’s Evidence
Rocky Pulera
[16] Rocky Pulera was born February 18, 1966. He is employed by the City of Toronto as a supervisor for roads and sidewalks, a position which he has held since 1993. Additionally, he was employed as an analyst for roads from 1989-1993. Among his responsibilities as an analyst, he would review data within areas of the City and analyze pricing of alternatives such as pothole crews versus the outsourcing of work.
[17] He described his position as providing leadership, supervision, scheduling, staffing and responding to the public as regards roads and sidewalks.
[18] Mr. Pulera is responsible for North Etobicoke-York, Wards 1 and 2. In the winter, the boundaries expand and include Wards 7, 11 and 12. Contractors are responsible for mechanical cleaning and salting of the sidewalks and bus stops. Their normal work week is Monday through Friday. However, in the winter months (from early December through mid-April), the supervisors take turns being on call 24/7. Mr. Pulera was at the office on Saturday, February 27.
[19] Courses he has taken since the start of his tenure with the City have included courses on asphalt, concrete, snow and ice and outsourcing of removal, salt management and health and safety. Many of these courses are done internally, while others are done through the Ontario government and other organizations. In total, he has taken half a dozen snow and ice courses since 1993.
[20] He testified that roads in the City are classified as arterial, which are higher volume, 4-5 lane roads; collector, which are smaller roads; and local roads, which are typical residential streets. Pine Street, where the loss occurred, is a collector road.
[21] He testified that the City conducts inspection of roads through field investigators who patrol the roads regarding minimum standards, and patroller/inspectors who are on the roads mid-November through mid-April. Sidewalk contractors perform annual inspections between October or November and the end of the year. The City retains contractors for sidewalk clearing.
[22] Field investigators are assigned to different areas and wards pursuant to the road categories. Inspection schedules are specified by the minimum maintenance standard regulations enacted pursuant to the Act. Arterial roads must be inspected twice in seven days; collector roads once in 14 days, and local roads once in 30 days.
[23] The inspections conducted by field investigators used trucks which patrol the roads and make notations in logs every half hour. Inspections look for large potholes, street signs which are down, and deficiencies in road allowances. The main focus is on the road and road allowances. If something is noted, a service request is placed through 311, the private citizen’s line. If a pothole is found, the report is made to Mr. Pulera.
[24] The Toronto Management Maintenance System (“TMMS”) is an internal database which generates service requests and logs crews on service (for example, for hours on potholes, etc.). TMMS also captures all 311 calls from citizens who may wish to report any concerns as regards roads and sidewalks.
[25] The field investigators for Pine Street fall within Ward 11. The log of the field investigator for Ward 11, Ralph Ciardullo, for February 27, 2010, was in evidence before the Court. There appeared to be no entries related to Pine Street. The Field Control Inspection Report for March 2 indicated no issues regarding Pine Street. The TMMS Service Request List Reports for Pine Street from March 19, 2009, to March 22, 2010, showed such problems reported as potholes, road damage and road sinkage. Between December 9, 2009, and March 22, 2010, there was no entry as regards Pine Street, except for a pothole being reported on March 22, 2010.
[26] As regards salting, the Toronto Salt Management Plan, dated June 2009, was in place at the material time. The goal of the plan is to optimize the use of salting without compromising the environment. Mr. Pulera explained that there are different levels of service between roads and sidewalks and differences in priorities, as regards expressways, arterial, collector roads and local roads. There is no classification for sidewalks. For salting, the threshold for January and February is 5 cm of snow accumulation on the ground, and for November, December and March, which are considered “shoulder months,” 8 cm of accumulated snow. Managers are given discretion based on type of precipitation, such as hail, rain or ice.
[27] As regards sidewalks, a basic level of service is provided with tractors providing a 1.2 m track. The policy is not a bare pavement policy, but rather safe and passible sidewalks. Sidewalk maintenance is contracted out. The City decides when to call out the contractors and what work is to be done. For Etobicoke-York, Mr. Pulera calls the contracting company, which must commence work within two hours of the call. The City receives weather forecasts from a third party provider, sent by e-mail to the supervisors and managers of roads and sidewalks, four times per day.
[28] The road patrollers conduct inspections in the winter, from early November to mid-April. Inspection shifts are done 24/7, three shifts per day in all districts and wards. In the subject Ward, there are two sets of patrollers, with Eglinton Avenue being the dividing line. The patrol trucks have thermometers which give the air and pavement temperatures. On the roadways, the main objective is to keep the roads safe. If the roads are getting slick and salt is required, Mr. Pulera would place a call to deploy the salters. Logs are kept and any weather or road issues or deficiencies that must be addressed are noted. Winter Daily Inspection Reports are kept by the patrollers. The main focus of the patrollers is the roads.
[29] As regards the sidewalks, the City patrols based on weather forecast. There is a conference call among upper management in the four districts, Etobicoke-York, Scarborough, North York, and Toronto-East York, with respect to the roads and sidewalks. Once a decision is made as to weather conditions and a plan formulated regarding what must be undertaken, Mr. Pulera is contacted by his supervisor, Bruce Kentner, the superintendent for roads in his area. He does not make the decision to deploy crews, but once contacted by his supervisor, was responsible for calling the subcontractors, such as Lima. At the material time, Bruce Kentner was off work and Laine Worth was taking his place.
[30] Mr. Pulera testified that between roads and sidewalks, roads are the primary focus and take priority over clearing sidewalks.
[31] Lima Gardens was contracted for sidewalk maintenance pursuant to a seven-year contract which expired in 2015. They were responsible for maintenance of sidewalks, bus stops and crosswalks in Wards 7, 11 and 12 (to Eglinton). For sidewalks, Lima used tractors with four wheels, a blade in front, and a salt buggy at the back, which can both plow and salt at the same time. The vehicles were equipped with GPS tracking in 2010. Lima was required to keep spare tractors in case of maintenance issues, in order to avoid service interruptions.
[32] Lima’s tractor EY-3C92 was responsible for the route which included the area of loss. The entire route, including the subject area, would take between 9 and 15 hours, depending on snowfall and accumulation. Lima also had hand crews, with a truck, shovels and snow blowers for “pinch points,” steps and areas containing street furniture (benches, bike racks, recycling bins, etc.), where tractors could not pass. There were no pinch point areas between Queen’s Drive and King on Pine Street, the area of loss.
[33] Mr. Pulera testified that when there was the deployment of equipment, he also went out on the roads to check, supervise and do spot checking. He would be out on the roads for 13 to 15 hours during a storm event.
[34] Mr. Pulera testified that, during his tenure, he had never had a street missed by a contractor.
[35] The Operating Roadside Plowing Records for Sidewalks/PXO’s for tractor EY-3C92 were in evidence. For February 23, 2010, the sidewalks were plowed between 3:30 AM and 5 PM; for February 26, 2010, from 1:30 PM to 2:30 AM; for February 27, 2010, it appears that the tractor was not sent out for work in the area. Mr. Pulera testified that there was no full-scale operation on February 27 for sidewalks. Lima was not deployed for any maintenance from February 27, 2010, at 2:30 AM to March 1. His records indicate that he had deployed plows and two crews to perform sidewalk winter maintenance for seniors. Further, he had deployed a sidewalk crew to clear 7 foot drifts on Ray Avenue, which he testified is about a 5 minute drive from the loss location on Pine Street.
[36] Mr. Pulera testified that he did not believe there were any records of complaints received regarding Lima’s work after February 26.
[37] Snow advisories are City records which are prepared by Dave Hill. The decision to issue advisories is a joint decision of upper management and Dave Hill, one based on the winter district conference calls at which weather predictions and site management is discussed. They will issue snow advisories and mail them to road and sidewalk supervisors and managers advising of the information and the decision taken. Snow advisories for February 27, 2010, for 9:30 AM and 11 AM for sidewalks indicated that they were being sanded/salted and plowed and that “crews were deployed at 6 AM to all sidewalks for a clearing and salting operation. Operation to be completed by approximately 5 PM.”
[38] Mr. Pulera testified that at no time on February 27, despite the snow advisories received, was Lima deployed to conduct general sidewalk clearance. He received no calls to this effect. Despite the snow advisory for February 27, he did not contact the supervisor, Laine Worth, to verify instructions. Crews were sent out for salting bus stops and crosswalks at 7 AM. He testified that in making a determination as regards deployment of crews, factors considered include weather forecasts and conditions. The Environment Canada weather forecast is a document considered by the City in making such determinations. The evidence before the Court indicated that on that day, there was a total of snow on the ground of 8 cm and total snow of 1.8 cm in depth from midnight to 6 AM. Additionally, the temperatures were above freezing, though from 7 AM to 10 AM, the temperatures dipped below freezing with a wind chill of -8°C.
[39] In cross-examination, when asked why crews were deployed to bus stops and crosswalks on March 1, he stated that these were catch-up crews, suggesting a cleanup from February 28. However, there was no sidewalk deployment on February 28, pursuant to the records. Further, he was shown an Environment Canada weather report for March 1, 2010, which indicated declining temperatures from 1.4°C at midnight to 0.8°C at 10 AM, suggesting a thaw-freeze cycle that may have necessitated such crews. However, he maintained his testimony that these were simply catch-up crews.
[40] There were no entries for Pine Street in the log. Mr. Pulera was aware that there was a hospital close to the location of loss, but was unaware that there was an elementary school.
Virgilio Lima
[41] Virgilio Lima is the owner of Lima’s Gardens. At the material time, he had been under contract with the City since 2008 to do sidewalk maintenance.
[42] Paulo Sousa was the employee responsible for the sidewalks in the area of loss. He drove tractor EY-3C92. He was the only driver for that tractor. He had worked with Lima for 7½ years before he left 2½ years ago. Mr. Lima described him as a very good and experienced worker who never posed any problems. Mr. Sousa was deployed on February 26, but not on February 27.
[43] The sidewalk maintenance was supervised by Helio Costa, who drove around and did spot inspections. There is no evidence of such inspections as regards Mr. Sousa’s route.
[44] The equipment is to be inspected daily and once a week by the City. There is no evidence of any inspection of tractor EY-3C92 at the material time.
[45] Mr. Lima testified that the sidewalk tractors are equipped with salt sensors which produce records to show if the salt sensor is on or off. It does not show the quality of the salt disbursement. If the salt sensor is “on” it means that salt should deploy, but if there is no salt in the salt buggy, no salt is deployed even if the light is “on.” The records are destroyed after a period of time if they are not printed. No digital records of salting from February 26 to March 1 were printed. Lima’s records indicate that Mr. Sousa’s machine was not deployed on February 27.
Dave Hill
[46] Dave Hill has been an employee with the City for 12½ years. He is currently the superintendent of Bearing Yard in Etobicoke-York District (West End). At the material times, he was the Supervisor of Operations Coordination, responsible for making and distributing weather advisories to the district. Bill Mason, the superintendent, was on sick leave, and Dave Hill assumed portions of his duties, including the Winter District Conference Calls. The purpose of the conference call system is information-sharing for the four districts regarding plans concerning snowstorms for the week and what has been decided regarding deployment for each district. The decisions regarding deployment have already been made and the purpose of the teleconferences is to communicate the decisions made by each district and to share information. There are typically two conference calls per week. When there are storms, there are often more teleconferences as the procedures and operations change. Etobicoke-York district usually had one person involved and sometimes more.
[47] During the week of February 27, 2010, he acted as the lead of the teleconferences. Each district took turns to ensure that the teleconference proceeded without tangents, was kept on focus and covered all necessary information. The lead is responsible for sending out a summary of the teleconference and making any changes or correcting any errors thereto. In Bill Mason’s absence, he was responsible for the teleconference summaries as well as the snow advisories, and for ensuring that the supervisors deployed the contractors onto the roads. He explained that only the teleconference summaries are sent out. His notes and the weather forecasts attached in evidence before this Court are not sent, but remain his personal records.
[48] Mr. Hill explained that the information flows through supervisors responsible for depots. There were two supervisors and two depots in his district. The road patrollers patrol 24/7 and provide feedback to the supervisors. The road patrollers require the first round of salt to be deposited and if a second round is required a supervisor ultimately makes that decision after the road controller provides the information. He meets with the supervisors and goes over the weather reports regarding weather over the next 24 hours. He received weather reports four times per day. At the material time the weather reports were coming from the third-party provider, the Weather Network. While Rocky Pulera testified that Environment Canada reports were used at the time, Mr. Hill testified that to his knowledge, they had not used Environment Canada reports at the time.
[49] He testified that decisions regarding sidewalks are made by Laine Worth. Mr. Worth is now retired. He was with the City for 38 years and had been a supervisor for 28 years at the material time.
[50] Mr. Hill explained the various levels of storm alertness. Level 1 indicates snow accumulation of 0 to 5 cm. This is a normal level of standby with one to three supervisors and a superintendent with minimum staff. Level 2 indicates snow accumulation of 5 to 10 cm with more staff added. Level 3 indicates 10 to 15 cm and everyone who is called in must come in. He stated, somewhat “tongue-in-cheek,” that for anything above 15 cm they would “call in the army.”
[51] He testified that the Ministry of Labour only allows snow operators to be out for 13 hours at a time. If there is a Declaration of Significant Winter Event, this permits the hours to be increased beyond 13. Such Declarations are only made when there is a perceived need, and do not remain in effect if not needed.
[52] As regards the records produced, he testified that when he reviewed the records with the lawyer on this action, he felt that some were not correct regarding the weather or the dates. He explained that he had been stationed in Bill Mason’s office as well as his own and was putting out the reports and advisories from both places, as well as from his home. He revised the reports, changed dates and crossed out irrelevant sentences, making the changes on the reports in his handwriting. These records were produced.
[53] Based on the notes of Dave Hill, from February 22 at 8 AM, a level 3 standby was called, which extended through February 26. I note that almost all of these reports were changed as regards the dates of the summaries. He explained the “errors” as being due to “cut and paste” jobs. He testified that he had not caught all of the references which should have been changed when he “cut and pasted.” On February 26, the summary indicates that they were “awaiting approval to extend the level 3 standby to 7 AM Monday, March 1,” which approval was granted. The summary for February 27, 2010, at 1:05 PM indicates that “all districts agreed to end the declaration of significant weather event at 5 PM today” and that “level 3 standby ends at 7:00 AM Monday, March 1 and resumes back to level 1.”
[54] As regards sidewalks, the summaries for February 23 indicate that “Toronto and the Etobicoke-York sidewalks deployed at midnight all other districts deployed at 4 AM.” On February 24, the notes indicated that “all districts are monitoring sidewalks.” The notes for February 25 make no mention of sidewalks. The forecast for that day states that “light snow can be expected to continue through to Friday morning producing 3-7cm by early Friday morning. As temperatures expected to reach the freezing mark by Friday morning, wet snow or rain snow mix can be expected for rest of the morning. A 2-4 cm of the mix precipitation can be expected. A lull in the precipitation is likely in Friday evening with possible flurries returning overnight into early Saturday morning. Breezy conditions are forecast throughout early Saturday morning with a potential of wind gust of 50-80 km/h this afternoon and through Friday morning.”
[55] The notes for February 26 indicate that “all districts sidewalk plowing scheduled to begin at 2 PM.” Mr. Hill has added “predicted start time” in his handwriting thereafter. On February 26, at 10 PM, the notes indicate “all districts sidewalk plowing began at 11 AM and 12 noon.” The forecast for that day included the following: “light snow can be expected to continue through Friday morning producing additional snow amounts of 3-6 cm by noon. In addition, northerly winds with gusts up to 70 km/h at times through the morning producing heavy blowing and drifting snow. Temperatures are expected to rise just above freezing in the afternoon allowing the snow to mix with rain… Precipitation changes back to all snow tonight and continues off and on through Saturday. Additional snow amounts of 1 to 3cm are possible every 12 hours through Saturday evening.”
[56] On February 27, the notes indicate “all districts mechanical sidewalk snow removal completed 2 AM this morning,” “all districts have manual touch-up crews on sidewalks. To be completed by 5 PM,” “all districts seniors to be completed by 5 PM,” and “all districts bus stops, PXOs and stairs to be completed by 5 PM.” His handwritten notes, appended to the summary, and revised, stated “sidewalks (to be) completed (by 5:00) 12:00 mid.” He testified that he did not recall why he did that. He conceded that his notes were very similar to the Snow Advisories sent out at 9:30 AM and 11 AM on that day, which he had testified were “erroneous.”
[57] He explained that as regards snow removal activities for the sidewalks, the manual touchup work was for bus stops, crosswalks and pinch points, although there was a specific, separate entry which made reference to bus stops and PXOs further on in his notes. The reference to seniors was in relation to the City program for those unable to shovel their own sidewalks. For seniors who register with the City, the City will clear the snow from the sidewalks in front of their homes for them. He stated that the Declaration of Significant Weather Event was to end at 5 PM on Saturday, February 27, meaning that the crews returned to a maximum of 13 hours’ work pursuant the Ministry of Labour regulations. The level 3 standby lasted until Monday at 7 AM, when a level 1 was to be resumed. The weather forecasts for the City, which were appended to Mr. Hill’s notes of February 27, indicated that an expected snowfall of 0.4 cm was anticipated in the morning, 0.1 in the afternoon and 0.2 in the evening, with a total snowfall over 24 hours of 2.6 cm for the morning, 2.1 cm for the afternoon and 1.9 cm for the evening. Snow advisories are normally sent out every three hours. He testified that the advisories do not impinge on teleconference summaries.
[58] The Snow Advisories are distributed to 90 to 100 people, including managers, superintendents, supervisors, counselors and district supervisors. He confirmed that Rocky Pulera would receive them. He testified that it is important that the information contained in the summaries is correct.
[59] The Snow Advisory for February 23 at 8 AM indicated that sidewalks were being plowed and that “crews were deployed to all sidewalks at 4 AM. Plowing operation. The operation to be completed by approximately 5 PM.” He testified that this was wrong and was revised due to the error. The revised snow advisory, thereafter distributed to all recipients, stated for the sidewalks that they were being plowed and that “crews were deployed to all sidewalks at 4 AM for a plowing/salting operation. Operation to be completed by approximately 5 PM.” The start time was indicated as 4 AM and the finish time 5 PM.
[60] The Snow Advisory for Etobicoke/York District dated February 27 at 9:30 AM states that sidewalks are being sanded/salted and plowed and that “crews were deployed at 6 AM to all sidewalks for a clearing and salting operation. Operation to be completed by approximately 5 PM.” The start time was indicated as 2 PM and the finish time 5 PM. The Snow Advisory issued at 11 AM contained the same message as regards sidewalks. There was no correction issued as had been done on February 23. He testified that the full clearing and salting operation could not possibly have been done in the time indicated, as it would take 13 hours, not three.
[61] Mr. Hill testified that there was no intention to do a full-scale operation for sidewalks on Saturday, February 27, or Sunday, February 28. He testified that 1 to 3 cm accumulation of snow does not meet the threshold for deployment of equipment, and that there had been nothing discussed as regards sidewalk clearing for Saturday or Sunday in the Saturday teleconference. He stated that it would not be possible to complete a full plowing of the district in three hours.
[62] He testified that the temperatures during that time were above freezing and snow usually melts off in the sun, so the accumulation was likely less than predicted. He testified that as temperatures drop, the ability for salt to melt snow decreases. As the temperatures increase, the salt is more effective. He testified that as salt is applied, it works on the snow and becomes brine, which subsequently works on ice and snow. They add sand to the salt at 80% salt, 20% sand, in order to provide additional grip. As regards the plaintiff, Ms. Cumberbatch, he said it would be unlikely that she would have felt anything underfoot by Monday, March 1.
[63] He testified that during operations, all information regarding sidewalks would have been communicated through Laine Worth. On Saturday, February 27, he had discussed the situation with Laine Worth prior to the teleconference at noon, noting that the sidewalks had been done and that the conditions did not warrant more sidewalk maintenance. He testified that in addition to the weather forecast, he also considered the Salt Management Plan of June 2009.
Jing Wong
[64] Jing Wong is employed by the City as a Research Analyst for Transportation Services, and has been in that position for two years. Prior to this position, he had worked for Toronto water as an engineering technologist and did utility mapping.
[65] He holds a B.Sc. in computer sciences from China and an M.A. in Geographic Information Systems (GIS) from York University.
[66] As research analyst, his responsibilities include conducting research and compiling reports regarding claims investigations. Among other things, he provides GPS records to lawyers. He monitors the GPS records in-house. All winter maintenance vehicles must have GPS, including sidewalk plows. The contractor is required to purchase or lease GPS service from third-party providers. The contractors arrange for GPS services and all related fees are paid by the contractors.
[67] The City is provided with GPS records on disk by the contractor at the end of the season, with the date and time of the recordings. The records appear as an Excel spreadsheet. The records show the location of vehicles at any specific time and are tracked by latitude and longitude coordinates from which a municipal address can be derived.
[68] The data is used by the City in responding to claims. Lima Gardens provided its disks for the 2010 season, and from that data, he prepared the relevant records in evidence in this action. Mr. Wong prepared the records for the sidewalk tractor EY-3C92 for February 23, 26 and 27, 2010. According to Mr. Wong, the records show that the tractor was at the Southwest corner of Pine Street at 7:49:33 PM, and at the Southeast corner of Pine Street at 7:52:55 PM. Mr. Wong further testified that on February 27, 2010, the records show the tractor at the Northeast corner of Pine Street at 1:09:39 AM and at the Northwest corner at 1:23:40 AM. He testified that all of these coordinates are at or near the intersection of King and Pine. He noted that the location of loss was at the Southeast corner.
[69] In cross-examination, he maintained that the accuracy rate and quality are good. He maintained that the coordinates, as indicated in the GPS, placed the tractor at the location indicated in the records and at the compass points indicated. He conceded that while the maps would indicate the location of the vehicle, they did not indicate what the vehicle was doing.
The Law
[70] Section 42 of the Act provides as follows:
42 (1) The City shall keep a highway or bridge over which it has jurisdiction in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Liability
(2) If the City defaults in complying with subsection (1), the City is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Defence
(3) Despite subsection (2), the City is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) the City did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) the City took reasonable steps to prevent the default from arising; […]
Sidewalks
(5) Except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk.
[71] The provisions pertaining to maintenance of highways and bridges also apply to sidewalks. As regards sidewalks, the jurisprudence indicates that a higher standard of maintenance or care is required than for roadways. Nevertheless, this jurisprudence discloses that the municipality is entitled to a reasonable time to do what is necessary, and that the standard is one of gross negligence rather than simple negligence: Ondrade v. Toronto (City), [2006] O.J. No. 1769 (S.C.), 148 A.C.W.S. (3d) 170; Berthiaume v. Ottawa (City) (1946), 1946 CanLII 86 (ON CA), O.R. 788 (C.A.), [1946] 4 D.L.R. 770.
[72] The scope of the defence at s. 44(3)(b) of the Act was discussed in Ondrade v. Toronto (City), supra at paras. 67 and 77:
The question is not whether something different or something more intensive could have been done — rather, the issue is whether the steps that the City did take were reasonable. There is no evidence before me that the action that the City took was not reasonable. As in most fields of human endeavor, there will be a range of responses and actions that may legitimately be thought to be within the ambit of what is reasonable.
In the context of the defence created by s. 44(3)(b) of the Act, whether the injury could have been prevented with more or different road treatment is not the issue to be decided in determining whether the municipality has taken reasonable steps to prevent the default from arising. It can always be argued that the municipality could have done something more or done something different. The issue to be decided is whether what the municipality did in fact was reasonable.
[73] In order to be successful, the plaintiff must establish that the alleged snow and/or icy condition on the sidewalk gave rise to dangerous conditions sufficient to constitute the non-repair and the City was grossly negligent in failing to address that state of non-repair.
[74] The Supreme Court’s jurisprudence on gross negligence was reviewed by the Court in Thum v. Elliot Lake (City), [1999] O.J. No. 3158 (S.C.) at paras. 29-32, 4 M.P.L.R. (3d) 154:
29 The law [of gross negligence], as I understand it, is set out in Holland v. City of Toronto, 1926 CanLII 10 (SCC), [1927] S.C.R. 242.
30 In this case, the Supreme Court of Canada approved a statement from one of its earlier cases describing “gross negligence” as “very great negligence”.
31 Circumstances giving rise to a finding of “very great negligence” are as diverse as the weather conditions, municipal policies, equipment quality and quantity and condition, operator expertise, inspection particulars and other innumerable and unpredictable factors. It can be said that a trier must assess the actions of a municipality in the circumstances of each case.
32 Elements from the Holland case to be considered are:
Notice of the existence of a dangerous condition which authorities actually had or which should be imputed to them;
Their opportunity to remedy it;
The state of weather immediately before the accident;
The relative situation of the place where the accident occurred.
[75] Gross negligence in the context of municipal liability was also discussed by the Court of Appeal in Crinson v. Toronto (City), 2010 ONCA 44 at paras. 45-48, 100 O.R. (3d) 366:
[45] Section 44(9) of the Act provides: “Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk.”
[46] Gross negligence has a long history in the municipal law context as has the search for a definition. In the seminal case of Drennan v. Kingston (City) (1897), 1897 CanLII 2 (SCC), 27 S.C.R. 46, [1897] S.C.J. No. 4, at p. 60 S.C.R., Sedgewick J. defined gross negligence as “very great negligence”. More recently, this court rejected the argument “that gross negligence in this context requires proof of misconduct that is wilful, wanton or flagrant”: Dagenais v. Timmins (City), [1995] O.J. No. 505, 31 M.P.L.R. (2d) 196 (C.A.).
[47] A review of jurisprudence discloses that the courts have not defined gross negligence with any degree of linguistic precision. However, it is clear that there must be more than a breach of a duty of care; the breach must rise to a level that can properly be described as gross negligence. Although a precise definition may be elusive, courts are nonetheless equipped to decide the issue of gross negligence. As noted by O’Connor J. in McNulty v. Brampton (City), 2004 CanLII 5927 (ON SC), [2004] O.J. No. 3240, [2004] O.T.C. 682 (S.C.J.), at para. 28:
[T]o a great extent, the determination of gross negligence depends on the facts of each case. It depends on the application of a less than precise definition of gross negligence, interpreted through the prism of common sense.
[48] As O’Connor J. notes, the salient point is that gross negligence is a question to be decided on the facts of each case.
[76] In order to find the City liable, I must apply the two-part test set out in Billings v. Mississauga (City), 2010 ONSC 3101 at para. 7, [2010] O.J. No. 3304, aff’d 2011 ONCA 247:
A careful review of all the authorities provided to me makes the point very clearly that attempting to define gross negligence is neither helpful or necessary; whether or not a defendant is gross [sic] negligent is a question which must be decided based on the particular facts of each case, considered in context. The authorities make it clear, and counsel agree, that in order for one to find that a defendant municipality acted reasonably, and therefore not negligently, a two-part test must be considered:
(1) Was the municipality’s general policy with respect to ice and snow removal a reasonable one?
(2) Was the defendant municipality’s response on the occasion in question (that is to say, the implementation of its policy) reasonable?
[77] In McNulty v. Brampton (City), 2004 CanLII 5927 (ON SC), [2004] O.J. No. 3240 (S.C.), 132 A.C.W.S. (3d) 1000, O’Connor J. reviewed a series of slip and fall cases against Ontario municipalities. Justice O’Connor concluded the review with the following remarks, at paras. 28-29:
[28] It seems from this review of the law that, to a great extent, the determination of gross negligence depends on the facts of each case. It depends on the application of a less than precise definition of gross negligence, interpreted through the prism of common sense. The court must be satisfied that the plaintiff fell on some snow or ice on a sidewalk and that the condition was unsafe, usually facts that are easily determined, as in this case. The court must then determine whether the municipality was aware, or should have been aware, of the unsafe condition. Again, this element is usually not difficult to ascertain. […]
[29] The real question in most of the cases, as in this one, is whether the City’s program to alleviate the danger, of which it knew or ought to have known, was adequate to meet its statutory duty of care and, if so, whether it competently carried out its program.
[78] It is the plaintiff who bears the burden of proving, on a balance of probabilities, that the City’s failure to maintain the sidewalk amounted to gross negligence: Richer v. Elliot Lake (City), 2011 ONSC 8017 at para. 7, 87 M.P.L.R. (4th) 47.
[79] There is, however, a balance to be struck between municipal liability for negligent maintenance of public roadways and sidewalks, on the one hand, and the natural hazards of a Canadian winter, on the other. The Court stated the following in Theiventhirampillai v. Balakrishnan, 2012 ONSC 215 at paras. 22-23, 211 A.C.W.S. (3d) 837:
As Canadians we live in a winter climate. As such, while users of the sidewalk are entitled to have their sidewalks kept in a reasonable state of repair, perfection is not the standard. The test is one of reasonableness; users of a sidewalk are not entitled to expect a perfectly smooth and even sidewalk as this would be tantamount to insuring every pedestrian. As the Manitoba Court of Appeal said in Occhino v. Winnipeg (City) (1988), 1988 CanLII 5647 (MB CA), 53 Man. R. (2d) 257 (Man. C.A.) at paragraph 263:
The duty to protect the public from the hazards of snow and ice is far from absolute. The City is not an insurer of safety. It must take reasonable steps to keep the sidewalks free of dangerous conditions, but its failure to do so does not necessarily result in liability to everyone who falls and is injured.
It would be an impossible situation and create an impossible financial burden to suggest that where there is evidence that a city or municipality has in place a winter maintenance policy that requires sanding and salting, and where there is evidence that such sanding and salting did occur, that if someone slips and falls on a small spot that did not receive stand and salt, that the city would be found responsible for that situation. To hold a city responsible on such a set of facts would be to virtually make a city or municipality an insurer against the possibility of any injuries suffered by a pedestrian. From my review of the law that is not the state of our law at the present time.
[80] In that case, the records showed that salting had occurred into the morning hours of the morning on which the slip and fall occurred.
[81] In the present case, there was also a Salt Management Plan for the City and a winter maintenance program in effect. However, in this case, unlike in Theiventhirampillai, there are no City records that indicate that any sanding or salting had occurred on the sidewalks from 1:23 AM on February 27, two days prior to the slip and fall. It is the position of the plaintiff that, given the winter event conditions that pertained, and the snow advisory of February 27, which was inconsistent with the fact that no deployment of sidewalk maintenance crews had occurred on the 27th, the City was grossly negligent in failing to deploy such crews.
[82] The Court of Appeal summarized this area of the law, as applied to icy sidewalks, in Crinson v. Toronto (City), supra at para. 54: “It has long been the law in Ontario that if a municipality permits a slippery, icy sidewalk in a busy area of the city to remain unprotected or ignores it altogether and someone is injured, that would constitute gross negligence: see Huycke v. Coburg (Municipality), 1937 CanLII 93 (ON CA), [1937] O.R. 682, [1937] O.J. No. 308 (C.A.), at p. 690 O.R. A city must take reasonable steps to keep the sidewalks free of dangerous conditions.”
Analysis
[83] In accordance with the test set out in Billings v. Mississauga (City), supra, I must determine: (1) whether the City’s general policy with respect to snow and ice removal was a reasonable one; and, if so, (2) whether the City’s implementation of its policy on the dates in question was reasonable.
[84] No evidence was led with respect to the reasonableness of the City’s general snow and ice removal policy, nor was the issue seriously argued. In the circumstances of this case, I find that their policy was reasonable.
[85] The issue to be decided is whether the City’s implementation of its snow and ice removal policy was reasonable in the circumstances. As applied, the question is whether the City was grossly negligent in its failure to maintain the sidewalk on Pine Street between King Street and Queen’s Drive, bearing in mind that the plaintiff has the onus of proving gross negligence and that “the salient point is that gross negligence is a question to be decided on the facts of each case”: Crinson v. Toronto (City), supra at para. 48.
[86] The only direct evidence of the state of repair of the sidewalk comes from the plaintiff, Ms. Cumberbatch. She testified that she could feel both ice and snow underfoot as she walked her grandchildren to school on the morning of March 1, 2010. The City has admitted that Ms. Cumberbatch slipped and fell while walking on a municipal sidewalk, and I accept Ms. Cumberbatch’s testimony that ice and snow on the sidewalk were the cause of this slip and fall.
[87] The City, in its defence, called evidence pertaining to its ice and snow removal efforts in that area. I will briefly review the City’s evidence on a number of sub-issues in this case, as well as the problems arising out of the evidence.
The State of the Defendant’s Evidence
[88] By way of general comment, I note that the defendant’s evidence is deficient in significant areas. Further, some documentation contains errors and deficiencies which raise doubts as to its reliability and accuracy. Moreover, as discussed in greater detail below, the City failed to preserve evidence that was within its power to preserve.
[89] There were handwritten corrections regarding the dates for most of the conference call report summaries and e-mails. These corrections were explained by Dave Hill, the person who prepared those summaries, as being the result of errors found by him at the time he was preparing for the defence of this action with the City’s lawyer. Whether or not the documents now reflect a more accurate picture of events, the errors and need for correction when the matter was being prepared for litigation suggest a disconcerting lack of attention to detail in documentation relating to maintenance of roads and sidewalks. These documents ultimately relate to public safety and, in the context of this case, form an integral part of the City’s evidence in its defence.
Records of Plowing and Salting to February 27
[90] As Mr. Lima testified, each sidewalk tractor is equipped with a salt sensor which indicates that the salt buggy is “on” or “off.” Mr. Lima explained that when it is “on,” the buggy should be deploying salt. He indicated, however, that if the salt buggy were empty, the light indicator may still show “on,” but the buggy would not be deploying salt. The salt sensor recordings on the tractors are kept for 30 days and then automatically deleted. Although the City had notice of the plaintiff’s claim within 10 days of the accident in accordance with s. 42(6) of the Act, the City failed to contact Lima to request that the digital recordings be printed out.
[91] Thus, we are left to guess whether the sidewalks on Pine Street were salted on February 27. We know from the GPS records that the tractors covered Pine Street near the accident site between 7:49 and 7:53 PM on February 26, 2010, and again between 1:09 and 1:23 AM early in the morning of February 27, 2010. However, there is no way of determining what the tractors were doing at those locations. In particular, it is not clear whether the sidewalk tractors were deploying any salt on the sidewalks, since the City was unable to produce those records despite the plaintiff’s compliance with the strict timeline for notifying the City of the accident. The City did not request the preservation of Lima’s records but asks this Court to accept that the tractors both salted and plowed the sidewalks that evening. I find this troubling. I also note that even if I accept these records as indicating that snow was being removed and salt deployed as late as 1:23 AM on February 27, 2010, that leaves a period of just over 55.5 hours from the last winter maintenance carried out at the loss location and the time of the fall.
Whether Pine Street is a High Priority Street
[92] The plaintiff submits that given the presence of a hospital and school on Pine Street, it is a high-volume, high priority street. I note that no evidence was called as to whether this street was categorized as a priority area for snow clearing.
[93] The supervisor for sidewalks in the area, Rocky Pulera, who had been in that position for 17 years at the time, stated that he was aware that a hospital was located off Pine Street just north of the loss location, but denied that Pine Street was a high priority street due to its proximity to the hospital. He denied knowing that there was a grade school located at the corner of Pine Street and Queen’s Drive.
[94] Given the presence of both a hospital and a grade school on Pine Street, I find that it is a high traffic street requiring particularly prompt snow and ice removal following a winter storm.
The Snow Advisories of February 27
[95] The evidence indicates that there had been a significant weather event during the week before the loss. The Declaration of Significant Weather Event was extended through 5 PM on February 27, indicating that the City anticipated the possibility of continued bad weather. The City crew was still on level 3 standby, the highest level of standby, until March 1 at 7 AM, suggesting that the City was aware that it was continuing to anticipate bad weather. The viva voce evidence of Dave Hill was that they did not have any intention of deploying crews to clear and salt the sidewalks on the weekend as, pursuant to the policy, this was not necessary. Only cleanup for bus stops was ordered according to Mr. Hill’s evidence. The City received no complaints with regard to sidewalks.
[96] This testimony is completely at odds with the documentary evidence tendered by the City. The advisory reports of February 27, both at 9:30 AM and 11 AM, state that sidewalk crews were deployed at 6 AM to all sidewalks for clearing and salting operations. Those operations were to be completed by 5 PM that day. This was not the case. The evidence is clear that no clearing and salting crews were deployed to the loss location in accordance with the snow advisories.
[97] Mr. Hill testified that the advisories were in error and that the City never intended to deploy plowing and salting crews. However, no revised, amended or corrected Reports were sent out, as would normally be done if there were an error in the Snow Advisories. There was no explanation as to why the error occurred, other than it was a “cut and paste” job, and no explanation was forthcoming as to why no revision was prepared and sent out. Mr. Hill had testified that it was important that the information contained in the Snow Advisories was accurate. Moreover, it is of note that his notes of the teleconference on February 27 are consistent, as regards sidewalk maintenance, with the Snow Advisories for February 27, advisories that he testified were in error. I find his testimony to be inconsistent with the documentary evidence and do not accept his testimony and explanations in this regard. I find his explanations as regards the errors in the February 27 Snow Advisories and his lack of any explanation as to why the errors were not corrected to be self-serving and disingenuous.
[98] As a result, I conclude that the City was aware of the dangerous conditions existing on the sidewalk at the loss location, at least as of 9:30 AM on February 27, 2010. Notwithstanding Mr. Hill’s evidence to the contrary, I find that the Snow Advisories of February 27 evidence the City’s intention to remedy the dangerous situation by plowing, sanding and salting the sidewalks within the Etobicoke/York district. No evidence was led that such maintenance was ever carried out, and indeed, the City has admitted that no winter maintenance occurred between 1:23 AM on February 27 and 9 AM on March 1.
Relevant Jurisprudence
[99] The parties each submitted a number of decisions in which a municipality was sued by someone having slipped and fallen on an icy sidewalk. The plaintiff relied on the following decisions: Cerilli v. Ottawa (City), [2006] O.J. No. 4850 (S.C.), 30 M.P.L.R. (4th) 110, var’d 2008 ONCA 28, [2008] O.J. No. 138; Crinson v. Toronto (City), supra; Dorschell v. City of Cambridge (1980), 1980 CanLII 1743 (ON CA), 30 O.R. (2d) 714 (C.A.), [1980] O.J. No. 3813; Lear v. London (City), [1999] O.J. No. 3503 (S.C.), 5 M.P.L.R. (3d) 17; Lutz v. City of Toronto et al. (1975), 1975 CanLII 585 (ON SC), 8 O.R. (2d) 16 (H.C.J.), 56 D.L.R. (3d) 658; McNulty v. Brampton (City), supra; and Thum v. Elliot Lake (City), supra. For its part, the City relied on the following decisions: Ondrade v. Toronto (City), supra; Billings v. Mississauga (City), supra; Thieventhirampillai v. Balakrishnan, supra; Richer v. The Corporation of the City of Elliot Lake, 2011 ONSC 8017, 87 M.P.L.R. (4th) 47; Graham v. Toronto (City) (2009), 64 M.P.L.R. (4th) 125 (S.C.), 180 A.C.W.S. (2d) 999; Cooney v. Kingston (City), [2005] O.J. No. 2196 (S.C.), 11 M.P.L.R. (4th) 63; Lopez v. Toronto (City), 2013 ONSC 848, 7 M.P.L.R. (5th) 328; and Coulson v. Hamilton (City), [2008] O.J. No. 4977 (S.C.), 53 M.P.L.R. (4th) 251.
[100] A determination of gross negligence is fact specific and it is difficult to find a rule of general applicability in the jurisprudence. However, to the extent that one can be gleaned from the foregoing cases, I note that absent exigent circumstances, a period of 48 hours or more during which the dangerous conditions persisted and during which the defendant municipality had knowledge of such danger has generally been considered gross negligence.
Conclusions Regarding the City’s Liability
[101] The City’s recordkeeping in matters concerning clearance of snow and public safety work was, at the very least, sloppy. The deficiencies in evidence on the part of the City are such that it is difficult to say that the sidewalks were in a reasonable state of repair. The only evidence before me is that the sidewalk was icy, and that Ms. Cumberbatch slipped and fell on that ice. It is further difficult to say that the City has met the onus of proving either of the defences provided to it in s. 42(3) of the Act.
[102] The Environment Canada weather reports and the City’s Snow Advisories indicate a significant amount of snowfall in the days preceding March 1, 2010. They also suggest a ‘thaw/freeze’ pattern, one which would have had the effect of creating dangerously icy conditions on City roads and sidewalks. All of this was within the City’s knowledge as the Snow Advisories of February 27 were prepared and sent out. In these circumstances, the Snow Advisories of February 27 quite correctly reflect the need to deploy the district sidewalk crews for full plowing and salting of the sidewalks. Such deployment never occurred.
[103] I am of the view, based on the Snow Advisories dated February 27, the teleconference summary notes of that morning, which are very similar, and the fact that no corrected or amended Advisory was ever issued, that the decision to deploy sidewalk crews was made, but no deployment ever occurred. Given the deficiencies in the evidence of the defendant, and the failure to keep proper records, there is nothing to suggest otherwise.
[104] At best, plowing, salting and sanding of the sidewalk on Pine Street occurred more than 55.5 hours prior to Ms. Cumberbatch’s slip and fall. I have also determined that the Snow Advisory of 9:30 AM on February 27 indicates that the City had knowledge of the dangerous sidewalk conditions at least as of then. The City therefore had knowledge of the icy sidewalk for 47.5 hours prior to Ms. Cumberbatch’s slip and fall, during which time it took no steps to render the sidewalk safe. Given these factual findings and in these circumstances, I find that the City’s actions rise to the level of gross negligence.
Conclusions
[105] The plaintiff slipped and fell on an icy sidewalk. The City failed to preserve evidence of importance to this action. The evidence that the City did call was at times contradictory and marked by significant post-event, pre-litigation handwritten revisions. Furthermore, the City’s main position at trial was that it never had any intention to plow, salt and sand the sidewalks during the day of February 27. This position was at odds with its own documentary evidence and with what would have been required under the prevailing weather conditions.
[106] For the reasons above, I find that the plaintiff has established that the City was grossly negligent in its snow and ice removal efforts and that the City has not made out any of the defences available to it under the Act. Specifically, the City knew of the dangerous state of the sidewalks in Etobicoke/York district and did not take reasonable steps to remedy the situation. Accordingly, the City is liable for the damages suffered by the plaintiff, which the parties have agreed total $110,000 plus prejudgment interest and costs to be agreed upon or assessed.
Carole J. Brown J.
Released: August 7, 2015
COURT FILE NO.: CV-10-00411783
DATE: 20150807
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Audrey Cumberbatch
Plaintiff
– and –
The City of Toronto
Defendant
REASONS FOR JUDGMENT
Carole J. Brown J.
Released: August 7, 2015