ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 58359/2008
DATE: 20150903
BETWEEN:
Julia Laughlin and Edward Kennis
Plaintiffs
– and –
Manouchehr Exmaeili also known as Manoughehr Esmaeiliaghabagher, Soheila Babei, The Corporation of the Town of Markham, The Corporation of the City of Toronto, John Doe and Aviva Canada Inc.
Defendants
David Gillespie, for the Plaintiffs
David Boghosian, for the Town of Markham
Danette Cashman, for the City of Toronto
HEARD: September 23, 2014
REASONS
edwards j.:
Overview
[1] A sidewalk. A grassy boulevard. A curb stone. A motor vehicle accident. On November 28, 2006, the plaintiff was driving westbound on Steeles Avenue East minding her own business, when all of a sudden she struck a curb stone in the lane that she was travelling in, adjacent to the grassy boulevard. No one knows how the curb stone found its way from the grassy boulevard to the travelled roadway on Steeles Avenue.
[2] The motion before me is a fight between the City of Toronto (“Toronto”) and the Town of Markham (“Markham”) as to who is responsible for that portion of the grassy boulevard where the curb stone had laid, and thus who may be responsible for the curb stone getting onto Steeles Avenue. Markham brings its motion for summary judgment, which is opposed by Toronto. The plaintiff supports Toronto in its response to Markham’s motion.
The Facts
[3] As previously noted, this matter arises out of what was a single motor vehicle accident on November 28, 2006 when the plaintiff struck a curb stone on the roadway adjacent to property located at 136 Steeles Avenue East. Where the accident occurred, Steeles Avenue is two lanes westbound and two lanes eastbound. The point of impact, according to the police Motor Vehicle Accident Report, would appear to have been opposite the westerly portion of the driveway allowing access to 136 Steeles Avenue East (136). The impact occurred in what I will refer to as the slow lane, or the lane immediately adjacent to the grassy boulevard separating the travelled portion of Steeles Avenue East. The accident occurred at 8:55 p.m. and on all accounts it would have been dark at that time of the year. As such, as reflected in a report prepared for plaintiffs’ counsel by Scott Walters dated January 22, 2013, a curb stone on a roadway like Steeles Avenue East would present a “significant hazard for vehicles travelling normally, particularly at nighttime, as there would have been a further reduced ability for a driver to detect such a hazard”.
[4] Photographs were included in the motion materials before me. There does not appear to be much doubt from those photographs that the curb stone struck by the plaintiff emanated from the grassy boulevard in front of the property at 136.
[5] As a result of an Agreement dated April 8, 1974, (the 1974 Agreement), Toronto assumed jurisdiction of Steeles Avenue East, which comprised the boundary between the City of Toronto and the Regional Municipality of York.
[6] As to the location of the geographical boundary line between Markham and Toronto, the plaintiffs’ obtained a survey dated March 21, 2007 which establishes that the boundary line between Markham and Toronto is 2.3 metres north of the curb on Steeles Avenue East, on the grassy boulevard between the sidewalk and the roadway.
[7] In order to gain access to their homes, including the property in question, Markham residents routinely pave over the grassy boulevard in order to access Steeles Avenue from their driveways. The evidence establishes that many property owners, including the homeowners of 136 (who were also named as defendants in this action), lined the paved driveways with curb stones including the paved portion of the boulevard.
[8] The grassy boulevards which separate the travelled portion of Steeles Avenue East from the sidewalk are typically maintained by the Markham residents fronting onto Steeles Avenue. This complies with one of Markham’s local by-laws which require residents to maintain the grassy boulevard. The grassy boulevard on the south side of Steeles Avenue, being properties owned by residents of Toronto, would also be maintained by the local residents.
[9] The 1974 Agreement between Toronto and the Regional Municipality of York resulted in Toronto having maintenance and inspection obligations with respect to the travelled portion of the roadway of Steeles Avenue East, while Markham and the Town of Vaughan continued to have the rights and obligations with respect to the construction and maintenance of sidewalks on the north side of Steeles Avenue East.
[10] The 1974 Agreement did not contemplate who had responsibility for the grassy boulevard between the northerly curb of Steeles Avenue East and the sidewalks.
[11] Markham conducts regular inspections of the sidewalks, including the sidewalk in question. The evidence filed on the motion before this court confirms that Markham would typically conduct three or more inspections of the sidewalk on an annual basis, which would include the sidewalk on the north side of Steeles Avenue East. Included in the inspection of the sidewalks, there would also typically be an inspection of the grassy boulevard. During these routine inspections, if Markham’s supervisor conducting the inspection identified a curb stone on the boulevard which was in violation of Markham’s Fouling of Streets By-law 191-89, steps would be taken to remove the curb stone only if the curb stone posed some kind of safety hazard, such as if it was encumbering the sidewalk.
[12] If a problem with the sidewalk or grassy boulevard was observed during the course of annual inspections, the evidence filed on this motion would suggest that Markham inspectors conducting the inspection would in some circumstances address a problem immediately, i.e. by way of example if there was a sinkhole, while in other cases Markham would simply contact the City of Toronto.
[13] Possibly due to gaps in record keeping, Markham has no records of ever contacting Toronto to report any type of problem anywhere on the boulevard on the north side of Steeles Avenue prior to the subject accident.
[14] As previously noted, Markham’s Fouling of Streets By-law 191-89 deals in part with the placement of curb stones and states specifically:
No person shall obstruct, encumber, injure or foul any highway in the Town of Markham. Obstructions and encumbrances shall include but not be limited to…concrete driveway curbs. All obstructions and encumbrances shall be removed by the owner or tenant…
Position of the Town of Markham
[15] Markham takes the position that the location where the curb stone emanated from was not in Markham’s boundaries, as the boundary line between Toronto and Markham lay 1 to 1.5 metres north of the original location of the curb stone, as established by the survey undertaken by the plaintiffs subsequent to the motor vehicle accident. As such, Markham takes the position that they did not have authority to enforce any Markham by-law, such as the Fouling of Streets By-law referenced above. Simply put, Markham argues that both the survey evidence and the photographic evidence confirm that the curb stone emanating from that portion of the grassy boulevard, was within Toronto’s exclusive jurisdiction.
Position of the City of Toronto
[16] Toronto acknowledges that in certain circumstances the law of negligence may be extended to a Municipality where there is a reasonable foreseeability of harm. (See Cooper v. Hobart, 2001 SCC 79). As well, it is acknowledged that under section 44 of the Municipal Act, S.O. 2001 c. 25, a Municipality that has jurisdiction over a roadway has a duty to keep that roadway in a state of repair that is reasonable in the circumstances, taking into consideration its character and location.
[17] As to the application of Markham’s Fouling of Streets By-law, Toronto points to section 11(3) of the Municipal Act which provides broad authority to both upper and lower tier Municipalities to enact by-laws within the “sphere of jurisdiction” that may impact their residents or members of the public generally. Under section 11(4) of the Municipal Act, highways are listed as the first “sphere of jurisdiction”.
[18] In its factum, counsel for Toronto notes that the only applicable restriction that a lower tiered Municipality has in passing a by-law is if the “sphere of jurisdiction” does not fall within the exclusive domain of an upper tier Municipality. “Highways” are classified as a sphere of jurisdiction that is non-exclusive to the upper tier Municipality. Counsel for Toronto notes that at the time of the motor vehicle accident, Toronto did not have a by-law in place which would conflict with Markham’s by-law as it applied to the road allowance adjacent to 136.
[19] It is argued on behalf of Toronto that based on the engineering report of Scott Walters, if Markham had enforced its Fouling of Streets By-law then the subject motor vehicle accident would not have occurred.
Analysis
[20] The Supreme Court of Canada, in its often referred to decision of Hryniak v. Maulden, 2014 SCC 7, makes clear that there is no genuine issue requiring a trial when a motion judge is able to reach a fair and just determination of the merits on a motion for summary judgment. This will necessarily be the case when the evidence filed on the motion for summary judgment allows the judge to make the necessary findings of fact; allows the motion judge to apply the law to the facts; and the process is proportionate, more expeditious and a less expensive means to achieve a just result.
[21] I am satisfied, based on the Plaintiff’s survey dated March 21, 2007 together with the photographic evidence, that the curb stone struck by the plaintiff emanated from a portion of the grassy boulevard over which the City of Toronto had exclusive jurisdiction. The geographical boundary line between Markham and Toronto is 2.3 metres north of the curb on Steeles Avenue East. While homeowners undoubtedly would never distinguish between the grassy boulevard to the north of the boundary line and to the south of the boundary line, the fact still remains that the piece of property where the curb stone emanated from was property over which Toronto had exclusive jurisdiction.
[22] The fact that Markham had responsibility for the sidewalk and would conduct annual inspections of the sidewalk, which would include the grassy boulevard, does not attract legal liability to Markham establishing a duty of care to notify Toronto of any and all potential problem areas. In that regard, Markham’s representative in its examination for discovery, was asked what Markham would do if a problem on either the sidewalk or right-of-way was discovered. Mr. Robert Walker stated that if there was a serious problem it would be repaired right away. Further in his examination for discovery, Mr. Walker indicated that it was not all hazards that would be reported or repaired, as the City of Toronto would have been doing its own patrolling and, therefore, there was an expectancy that the City of Toronto would also see the hazard.
[23] The hazard in question, i.e. the curbstone, was located on property over which Toronto had exclusive jurisdiction and, as such, in my view Toronto had the obligation to remove the curb stone or at least deal with it in such a way that it could not become a hazard. Toronto had the obligation under section 44 of the Municipal Act to keep the roadway in a state of repair that was reasonable in the circumstances.
[24] Whether the City of Toronto on the facts of this case met its duty of care is not for this court to ultimately determine. The only issue that this court has to determine is whether Markham had any responsibility with respect to the curb stone. The evidence filed on this motion clearly establishes that the curb stone was not on property over which Markham had any legal responsibility, and as such the motion for summary judgment is granted and the action as against Markham is dismissed. If the parties cannot agree upon costs, submissions can be made to the court within 15 days from the date of receipt of these reasons, limited to two pages in length. I would encourage the parties, however, to resolve the question of costs if at all possible.
Justice M.L. Edwards
Released: September 3, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Julia Laughlin and Edward Kennis
Plaintiffs
– and –
Manouchehr Exmaeili also known as Manoughehr Esmaeiliaghabagher, Soheila Babei, The Corporation of the Town of Markham, The Corporation of the City of Toronto, John Doe and Aviva Canada Inc.
Defendants
REASONS FOR JUDGMENT
Justice M.L. Edwards