Bramer v. City of Hamilton, 2015 ONSC 713
COURT FILE NO.: 10-24238
DATE: 20150522
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KELLY BRAMER AND KEVIN BRAMER
Michael J. Winward, for the Plaintiffs
Plaintiffs
- and -
CITY OF HAMILTON
Paul F. Ryan and Patricia Kennedy, for the Defendant
Defendant
HEARD: January 27, 28 and 29, 2015
REASONS FOR JUDGMENT
[1] The plaintiff Kelly Bramer brings this action for damages for injuries sustained when she slipped and fell on a sidewalk here in Hamilton on February 3, 2009.
[2] Damages have been agreed upon.
[3] The defendant City admits that the sidewalk in question falls within its responsibility to maintain.
[4] The plaintiff alleges that the City is grossly negligent in failing to maintain the surface of the sidewalk in a safe and proper state of repair, permitting an accumulation of ice and snow contrary to the City’s own by-law, and hence is liable pursuant to s. 44 of the Municipal Act. The plaintiff further alleges that the defendant was negligent in failing to maintain in a proper state of repair a metal pedestrian handrail which ran along the side of the sidewalk section in question.
[5] The defendant denies any negligence as it claims to have exercised reasonable care in discharging its responsibilities either in respect of the sidewalk surface, or in respect of the handrail. The City further relies on the 10 day notice requirement in s. 44(10) of the Act and alleges that it was breached in this case.
[6] The pleadings further raise issues as to contributory negligence. The pleaded issue in respect of a Family Law Act claim for the plaintiff’s spouse Kevin Bramer appears to be moot as I have received no evidence nor submissions with respect to such a claim. It is accordingly dismissed unless otherwise disposed of in accordance with the agreement between the parties in respect of damages.
Evidence on Behalf of the Plaintiff
[7] Kelly Bramer is 49 years of age, with two children aged 24 and 20, and is employed, and was at all material times, with the Gowlings law firm here in Hamilton. She works in the mortgage enforcement section of the firm. The only evidence I have is that that firm in its Hamilton office does absolutely no personal injury work.
[8] The uncontradicted evidence I have is that Kelly Bramer had no knowledge of personal injury law at the time of the accident.
[9] Through Gowlings, the plaintiff had $400.00 per year coverage for chiropractic services and above that had to pay herself.
[10] In the winter of 2009 she usually walked to work unless she had an early appointment that required her to be at work early. On the majority of mornings she would walk to work with a co-worker and friend, Tracy Willson. They did this all year round. Tracy would pick the plaintiff up at her house and they would drive and park Tracy’s car at a parkette on the top of Hamilton Mountain and then would walk down what is known as the Jolley Cut Access into downtown Hamilton where, at the time, both of them worked. From the car park area, they would walk through a pathway, then down some stairs, and then get on to Arkledun Avenue, which would be their route for most of the way from the brow of the Mountain down to downtown Hamilton. Accordingly, the plaintiff had been walking this route for the vast majority of days for over a year prior to the accident.
[11] The evidence I have is that Arkledun Avenue is a constant decline, but becomes even more steep near the bottom of that street as it nears the junction with St. Joseph Street. St. Joseph’s Hospital is at the corner. For the bottom section of Arkledun Avenue, the steepest part, there is a metal handrail on the right hand side of the sidewalk, which is on the right hand side of the road as one declines that final stretch. The sidewalk in question separates the road and the handrail. According to the plaintiff, that handrail is broken at the bottom and as you proceed further downhill it leans further and further over to the right, which means it is further and further away from the sidewalk surface. This sidewalk travels down the lower portion of Arkledun Avenue. The evidence I have is that it is a heavily used sidewalk either for those using it as a normal pedestrian way, or by those using it for exercise purposes.
[12] Photographs of the bottom end of Arkledun Avenue showing the handrail, the steepness of the decline and the curvature to the right as one walks downwards towards the end of Arkledun are all reflected in photographs reproduced at Exhibit 3, tab 19.
[13] The evidence of the plaintiff is that the handrail had been in the same decrepit state as pictured in the photographs for the whole time that she walked that route, namely for over a year. Her evidence is that as you neared the bottom end of Arkledun Avenue you could not hold on to that handrail during slippery conditions because it leaned over so far that you would have to bend sideways at the waist in order to be able to put your hand on the rail.
[14] The plaintiff’s evidence is that the surface of the sidewalk as you got to the bottom of Arkledun Avenue was covered in snow which had been compacted as a result of pedestrian traffic. Her evidence is that before the day of the accident it did not present a problem because the compacted snow could be walked upon with reasonable care.
[15] The plaintiff always wore running shoes for this walk and those shoes were in good condition.
[16] The day of the accident was February 3, 2009. She and her friend Tracy Willson followed the normal procedure in terms of the plaintiff being picked up, driving to the parkette, parking and then starting down the Mountain. Her evidence is that that day it was snowing lightly in the morning at approximately 8:00 a.m. when they parked the car. The snow was white, fluffy flakes that were falling straight down and beginning to accumulate as they started walking down the Mountain. In the plaintiff’s estimation the falling snow, the fresh snow, was about one half to one inch deep which was over top of compacted snow which was over top of the surface of the sidewalk. This compacted snow was hard and slippery but passable. It was common that she and her friend Tracy would see other pedestrians walking that route as well and indeed the plaintiff saw one ahead of them that morning as she started down the hill.
[17] Her evidence is that as they got down towards the bottom of the hill, nearer to St. Joseph’s Hospital, the condition of the sidewalk appeared to be the same, namely new fluffy snow on top of old compacted snow. The plaintiff was walking beside Tracy Willson, to Willson’s left, which is closest to the road. They were pretty much side by side. Her evidence is that she was not holding on to the handrail because it leaned over so far to the right as you get near the bottom of Arkledun that you would have to bend over at the waist, sideways, in order to be able to hold on to the handrail. Her evidence is that she was taking short steps as one does on a surface that you know can be slippery. She was being careful. As she got to the steep part, in the location where she is standing in the photographs at tab 19 of Exhibit 3, all of a sudden her feet went out from under her and she fell backwards and hit her head on the surface of the sidewalk. She was helped up. She then looked backwards to the location where her feet had given away and as a result of the fall her body had brushed away some of the new loose snow so that she could see that what she had slipped on was a patch of ice. Her evidence is there was no indication of salt or sand on the sidewalk.
[18] She and her friend continued on their way to work. As she felt nauseated and dizzy, she was put in an office and waited until her husband came to get her and they went home after she had been at the office for approximately three hours.
[19] The next day she was still feeling dizzy and nauseous and her parents took her to an urgent care centre in Hamilton where she reported her symptoms of dizziness, headaches, shoulder pain, neck pain, feeling nauseated and was supplied with a neck brace, Gravol and Advil. X-rays were taken. She then waited and then sent home with an explanation that she had a concussion and a prognosis that the symptoms would go away after several weeks. She was recommended to keep a diary of her headaches, which she did.
[20] On March 12, 2009 she sent an email to the City advising of her fall and the date and location thereof. She obtained the address to which the email was sent as a result of having gone on the City of Hamilton website, and a portion thereof marked as “SOS” which was shown to stand for “Snow on Sidewalk” and provided an address at which the City could be contacted for that purpose. Her evidence is that by that date she decided to advise the City of her fall. She had still not received any legal advice, nor sought any. She still had no knowledge of any 10 day notice requirement. She decided that she should advise the City because by then she had had several chiropractic treatments, she was running out of the $400.00 coverage covered by her employer for such visits, and the symptoms were still persisting and requiring further treatments.
[21] She testified under oath that she did not advise the City earlier of the fall because she thought she would get better more quickly than she did. She swears under oath that if the symptoms had gone away within the time she expected, and hence the treatments she required had been covered by the coverage available to her, she would not have contacted nor sued the defendant at all.
[22] An adjustor contacted her, and she cooperated fully meeting the adjustor, together with her friend Ms. Willson, as requested by the adjustor at the site, and provided a signed statement and had herself pictured in the location where she had fallen. She further kept up an exchange of emails with the adjustor keeping him advised of her progress and answering his requests. She explained that she never did talk to a lawyer about this matter, before commencing the lawsuit, as she felt it was a private matter and although she worked for a law firm they did not do personally injury work, at least within that office, so she discussed it with no one with legal knowledge.
[23] In cross-examination it was brought out that it was normal to see other vehicles parked where she and Ms. Willson did at the top of the mountain, and to see other people walking down the same route that they used. Her evidence is that the route she followed, in particular the sidewalk section along the north side of Arkledun Avenue was covered with compacted snow the whole way down and she did not remember seeing any bare sections. Her evidence is that conditions had been that way for some period of time, although she cannot say for sure how long, but definitely before that day. The stairs at the initial part of the route did not cause any concern. She saw no icy patches on the way down until getting to the location where she fell, and saw the icy patch thereafter. Her sworn evidence, under cross-examination, is that she was taking care, using short strides, going slowly and that she encountered no slipping until the slip constituting her fall. She confirmed on cross-examination that after the fall, and looking back, she saw a dark patch of ice now brushed clean of newly fallen snow as a result of her body hitting the sidewalk. Snow was still falling. She and Ms. Willson then carefully slid down the remaining 15 or 20 feet of the sidewalk on the north side of Arkledun until they got to the junction of St. Joseph and stopped at a hydro pole that can be seen in the photograph at tab 19. They held on to each other as they slid down the last few feet.
[24] On cross-examination it was put to her on several occasions that she could have held onto the handrail but she disagreed and indicated that in order to use it you would have to bend over to the right at waist level so far that it would be unsafe. She agreed she would have used it, because of the steepness of the slope and the compacted snow on the sidewalk if the handrail had been useable.
[25] On her uncontradicted evidence, the City website advising citizens of the “Snow on Sidewalk” information contained no information about any 10 day reporting requirement.
[26] She maintained that you could not see the ice upon which she slipped and fell, because of the fresh falling snow, until after you had fallen and thereby brushed the new snow off the surface below. Although suggested during cross-examination that she did not use the handrail because it was rusty, this was denied by the plaintiff who maintained that the only reason it was not used is because it was leaning over so far to her right at the time that you could not safely hold on to the handrail without losing your balance by virtue of being forced to lean over.
[27] Tracy Willson gave evidence as to how she knew the plaintiff while they worked together. Ms. Willson no longer works at Gowlings. She and the plaintiff occasionally exchange emails or meet for lunch. Both describe their relationship as friends as well as co-workers. They have never socialized with each other’s families.
[28] Ms. Willson’s evidence is that she started walking this route long before the plaintiff joined her, on an all year round basis, and that she would see others walking this same route frequently. Her evidence is that the route becomes more steep as you get towards the bottom and is very steep at the end where the fall took place. She testified that the handrail is there but it has been dilapidated and falling over ever since she started to walk that route and accordingly it does not provide anything that one can hang on to as it falls away to the right. It has never been upright and in proper condition since she has been walking this route so she has never used it.
[29] Her evidence is that the sidewalk on the north side of Arkledun had never been maintained that winter as she observed it as it was always covered with snow and the snow was trampled upon so much by pedestrians that it was compacted. She agreed that as a result she knew that she had to walk more cautiously because of this compacted snow covering the sidewalk.
[30] She testified that on the morning in question there was light fluffy snow on top of the compacted snow and it was continuing to accumulate and covered the compacted snow below. She felt no slippage at the top of the route as it was snow covered as it had been for a couple of days by then. This snow was packed down hard but by now was underneath a layer of new fluffy snow that she estimated to have reached a depth of about three inches. She remembers there being a woman walking in front of them further down the hill on the morning in question.
[31] Her evidence is that as she and the plaintiff got down near the bottom of Arkledun, in the steepest portion of the sidewalk on the north side, neither was holding the handrail because it was bent so far over that it was unsafe to try and hold on to. Her evidence is that both she and the plaintiff were aware that the snow had not been cleared so they were paying attention to their footsteps and how they were walking. They were not running. They were deliberately using short steps. Her evidence is that they realized it was getting more problematic as they neared the bottom of the section as it got steeper there. The plaintiff’s fall happened very quickly with her feet just going right out from under her and she fell on her back and hit her head on the sidewalk. Her evidence is that after the plaintiff fell, the falling motion of her body had cleared some of the new snow and underneath you could see ice covering the surface of the sidewalk. She too testified as to how the two of them then slid down the remaining 15 or 20 feet until they got to St. Joseph Drive.
[32] In cross-examination she explained that she became more aware of the slippery nature of the sidewalk condition as she got about halfway down Arkledun Avenue on the voyage down from the Mountain to the City. In the area where it first appeared to become more slippery there is no handrail. The state of the sidewalk became worse as you went further downhill. She maintained in cross-examination that she and the plaintiff were both paying attention as to how they walked because of their appreciation for the state of the sidewalk which required them to proceed cautiously. Her evidence as well is that in the area of the accident you could not hold on to the handrail because it was lying so far to the right that you could not hang on to it without leaning over and losing your balance. She testified that the handrail was fixed right after the accident occurred although witnesses testifying for the defendant had no knowledge of that. She described, which can be seen in the pictures at tab 19, that as you proceed further down the sidewalk towards the intersection with St. Joseph Drive the handrail leans over further and further to the right and gets closer and closer to the ground.
Evidence on Behalf of the Defendant
[33] Gerard Johnson was called by the defendant and testified that he was a district supervisor for District 3 during the winter of 2008-2009, with duties relating to winter maintenance for the area and he testified that Arkledun Avenue, where the fall occurred, fell within his district, District 3. His evidence in-chief consisted, to a great extent, of a detailed explanation of the various aspects of the system the defendant had in place for snow and ice removal on City streets, and the City sidewalks. The City primarily used its own staff workers but also had available independent contractors with heavy equipment.
[34] He testified that the City had a priority system for snow and ice removal within the District 3 area. The first priority was road clearing. There were four classes of roads and they were prioritized and cleared accordingly. The next priority, after all roads had been cleared, was sidewalks. Within that category school sidewalks were cleared first, then bus stops which included surrounding sidewalk areas, and the lowest priority for sidewalk clearing were the City sidewalks. Of course, sidewalks within the City abutting privately owned properties were the responsibility of those property owners to clear. Accordingly “City sidewalks” is referring to those sidewalks abutting City owned lands and hence were the responsibility of the City to keep clear. The portion of the sidewalk where the fall occurred abutted a City owned lot and hence was the City’s responsibility. His evidence is that District 3 is divided into five routes for purposes of winter maintenance work. Each route has a number of defined streets and City sidewalk areas falling within it. The work that City employees are to do by way of winter maintenance is decided upon by the district supervisor each morning, based on weather reports and predictions, and a schedule is made up by the supervisor defining what each employee or team of employees is to do and where they are to do it each day. Arkledun Avenue is on route 5 in District 3.
[35] When outside contractors are called in they are assigned work but it is on the basis of numbered maps rather than routes. These maps are created by the City and contain defined areas on each map that are to be cleared. There are seven such maps in District 3 and Arkledun Avenue is on map 7. Accordingly, the “routes” to be cleared by City employees do not contain sidewalk areas except those “City sidewalks” for which the City is responsible. Similarly, the maps which form the basis of work assignments for independent contractors contain in terms of sidewalks only those areas for which the City is responsible.
[36] In Exhibit 3 at tab 7 are a number of pages showing the five routes within District 3 and on the reverse side of each route is a list of the sidewalk areas contained within that route. The evidence is that City workers are to clean sidewalk areas of snow according to the order the streets are listed on the back of the route page. Arkledun Avenue, where the plaintiff fell, is sidewalk area 15 on route 5. The evidence is that in determining the priority amongst sidewalk areas, priority is given first to school sidewalks, next to bus stop areas including surrounding sidewalks, and finally to City sidewalks, and that no change in priority is given because of the steepness of any particular sidewalk. In other words, a steep section, such as that in question, is not moved up in priority ahead of other kinds of sidewalks, nor would it appear to be given a higher priority even within the City sidewalk category as it is number 15.
[37] The snow and ice clearing methods used are a combination of bobcat machines with front roller brushes or brooms, bobcats with a front bucket, snow blowers on tractors or trucks carrying salt and manned by staff with shovels. The supervisor determines what staff are assigned to which duties and which duties are to be given priority on any given day, with weather reports playing an important part in those decisions.
[38] On any given day City staff could be assigned the task of manually cleaning sidewalks, fixing potholes, putting cones up to block traffic in areas requiring repairs, cleaning up parks, washing trucks or a combination of these activities. As well, employees and supervisors would often be assigned the duty of patrolling around within District 3 or some defined portion of it. They are to be looking out for problems that need attention and checking to see that work is done properly.
[39] According to Mr. Johnson’s evidence, for each day, in respect of sidewalk cleaning work, one would expect to see three different City generated documents relating to the work of City employees. The first is a schedule which shows which staff are working, what activity they are scheduled to be doing, and which route or routes they are to be doing it on. Secondly, there is an activity sheet on which it is recorded how many hours each employee reports having spent doing which kind of work and also records how much salt was used by that employee in doing this work. Thirdly, there is to be another City form called a Sidewalk Snow Removal Sheet which is supposed to show which sidewalks were done on a particular day and how long it took to do each sidewalk assignment. The work done on each assigned route is to be done on the sidewalks in the order in which they are listed on the reverse side of the map for that route.
[40] By comparing these three types of documents for a particular shift you are supposed to be able to determine what kind of work was assigned to which employees and on which route it was to be done, and then you are supposed to be able to look to see what activity is reported as having actually been done by each employee and be able to compare it with what had been assigned to them, and how long it took to do it. And then utilizing the third form it is designed to reflect which portions of the sidewalks were actually done, and how long each took, having regard to how the available columns were filled in beside the defined list in which the sidewalks were to be done as set forth on the preprinted form.
[41] There are other forms for work assigned to be used to show work done by independent contractors, using the bobcat equipment, but I do not think any elaborate description of those forms is necessary.
[42] Mr. Johnson really has very little recollection of the time period leading up to the fall. His evidence in-chief is really aimed at explaining the system, and how it is supposed to work, and then in effect relies upon completed forms as evidence that the reported work was in fact done. Much of the balance of his evidence in-chief consisted of going through various forms and records and explaining how they showed what various crews or City employees were doing on various days but really did not concentrate on Arkledun Avenue. His evidence was explained to be more designed to show that the staff indeed followed the hierarchy of priorities established by the City. He did acknowledge in-chief that this area of Arkledun Avenue where the fall took place was of particular concern because it was across the street from a hospital and because the grade on the section of the sidewalk in question was steep. In this respect he acknowledged that the City had a list of “hot spots”, that is known troublesome areas for roads, but no such list for sidewalks.
[43] He admitted in-chief that he had no knowledge about the condition of the sidewalk in question at the time and location of the accident. In-chief his evidence no made mention of the handrail.
[44] In cross-examination, Mr. Johnson was taken through the various available forms in detailed fashion for many days in January, 2009 preceding the fall. This detailed process consisted of referencing, for each day, the available weather reports, schedules of assigned duties, activity sheets of performed duties, and sidewalk clearing sheets identifying which sidewalk areas had in fact been done.
[45] Based on reports contained in the joint book of exhibits, Mr. Johnson agreed that generally speaking January, 2009 remained cold almost the whole month without any prolonged thaws. That month Hamilton had approximately 62 centimetres of snow, or the equivalent of approximately two feet. In terms of the weather in early February, Mr. Johnson agreed that February 1st had a high of 3.4 degrees Celsius, froze overnight, and February 2nd had a high of .6 on the 2nd, and a high of -3.5 on the day of the accident.
[46] In cross-examination, Mr. Johnson agreed that the City’s own bylaw relating to snow removal required that snow and ice be removed from all sidewalks within 24 hours of the end of a snowfall and that that standard applied both to home owners abutting the sidewalks, and to the City in those areas where it had responsibility for sidewalks. He also agreed with the suggestion that where snow is not cleared off and is continually walked upon by people it becomes compacted and hard and becomes icy and slippery. He agreed that the earlier one makes an effort to get the snow off the sidewalk the easier it is. He agreed that if the snow becomes compacted and icy and bonds to the cement of the sidewalk then one has to use salt to debond the ice and scrap it off. He further agreed that salt is not very effective if it becomes quite cold, for instance below 10 degrees Celsius, as the salt tends to sit on top and takes longer to act, in which case the City then resorts to using a mixture of one third salt and two thirds sand on sidewalks.
[47] When counsel suggested to him that the portion of Arkledun in question is the steepest sidewalk section in his district he claimed not to know, although he admitted having walked this portion of that sidewalk. He agreed there was a handrail in that bottom portion of Arkledun and when counsel suggested that the City had erected that because it was so steep he acknowledged that that could be the reason. When asked how many other handrails there were located beside sidewalks in his district he finally admitted that there were none that he could recall. When then asked to conclude that this was the result of Arkledun being the steepest sidewalk in district 3 he said he still didn’t know.
[48] Upon being show photographs of the handrail, he agreed that it appeared to be in a state of disrepair and he agreed that given the state of disrepair of the handrail that if the sidewalk was icy it could be dangerous for pedestrians to go down the sidewalk. When it was suggested to him in cross examination that because of the steepness, the City ought to have used a special effort to keep snow and ice off this section of the sidewalk at the bottom of Arkledun, he said that such efforts all depends on the City’s priority list, although he did agree there’s likely a higher probability of slipping on sidewalks that are sloped so steeply.
[49] Although agreeing that patrol duties were part of his responsibility as a supervisor, his evidence is that he never noticed the handrail that is obvious from the photographs. He had no explanation as to why he would not have seen it, but agreed that if he had seen it he would have had it repaired, and he agreed that work crews as they go around doing their work are supposed to notice things that are in disrepair and report them.
[50] On cross examination he agreed that the records indicated that between January 1, 2009 and the date of the fall, February 3rd, 2009, there appeared to be no work done on any City sidewalks in Division 3 by any afternoon or night shift employees.
[51] Based upon the records produced, he agreed that he had scheduled two men to do manual sidewalk cleaning on route 5 on January 12, 2009, and that reports indicated that those two men spent one minute on the assigned sidewalk section of Arkledun Avenue on that date. That would include driving to and by that area in a pickup truck, and maybe getting out. That appears to be the last date that the City’s records can demonstrate any manual sidewalk cleaning by City staff prior to the accident.
[52] A review of days thereafter and leading up to the date of the accident indicates that on 10 occasions Mr. Johnson scheduled manual sidewalk cleaning to be done, but on those 10 days no sidewalk cleaning was done for Arkledun Avenue, even though it were scheduled to be done. Within that time period, on January 13th records show 3 cm of snow fell. On January 14, .6 cm fell and sidewalks were scheduled to be done manually but Arkledun was not done. Again on January 14, for a third day in a row, manual sidewalk cleaning was scheduled to be done on route 5 but was not done in respect of Arkledun Avenue. Again on January 15, three men were scheduled to do manual sidewalk cleaning on routes 4 and 5 but spent their time on school sidewalks and did no City sidewalks and nothing on Arkledun, although another .6 cm of snow fell that day.
[53] For January 16, again manual sidewalk cleaning was scheduled but there is no record of any shoveling being done on Arkledun. On January 17, 2009, 6.6 cm of snow fell but no manual sidewalk cleaning was scheduled. On January 18, 2009, 8.4 cm of snow fell and manual sidewalk cleaning was scheduled to be done on routes 4 and 5 but the worker so assigned spent 9.5 hours clearing bus stops, but did no work clearing City sidewalks. Accordingly for the January 17 – 18 period, 15 cm or 6 inches of snow fell without any attention to City sidewalks, and there is no record of any outside contractor work being done to clear snow of City sidewalks during that period of time.
[54] For January 19, 2009, .6 cm of snow fell but there is no record of any manual sidewalk snow removal being done on Arkledun, even though that is the day following the two days of snowfall. On January 20, 2009, there was a trace of snow reported and three workers were scheduled to do manual sidewalk clearing for all five routes in District 3. Those five routes total over 10 miles in length with 108 sidewalk sections that are supposed to be done. The three workers got 19 sites done out of the 108 in an 8 hour shift for the three of them, but there is no record of where they did their work.
[55] For January 21, 22, 23, 24, 25, 26 and 27, there was no manual sidewalk snow removal scheduled for route 5. Initially Mr. Johnson claimed he didn’t know whether that was true or not so plaintiff’s counsel took him through each of those days, and sure enough, no such work was scheduled.
[56] For January 26, the records show that only bus stop sidewalk clearing was done. For January 27, only school sidewalks were done. For January 28, while 11.6 cm or over 4 inches of snow fell, two workers were scheduled to do manual snow clearing but only on bus and school sidewalks.
[57] On January 29, there was a report of 2.8 cm of snow and two workers scheduled to do manual snow removal, but only school sidewalks were cleared. The records for that day indicate that the two workers spent 42 minutes cleaning one sidewalk site, which was not Arkledun. When it was suggested to Mr. Johnson that that amount of time spent must indicate that the sidewalk in that location was in bad condition, he refused to agree and offered that it could have taken that long because the men went on a break. When it was pointed out to him that those two men report having run out of salt in doing that one sidewalk portion, and accordingly that that would seem to suggest that other sidewalk areas in route 5 must have needed a lot of salt too, he had no answer.
[58] January 30, 2009, was another day where employees were scheduled to do manual sidewalk clearing but the records show that only bus stop and school clearing was done and no work done on City sidewalks. January 31 had a snowfall of 8 cm but no manual sidewalk clearing was scheduled.
[59] It became clear then on Mr. Johnson being led through the various records for January that no City crew manual sidewalk cleaning had occurred on Arkledun Avenue since January 12, three weeks before the fall in question.
[60] On Sunday February 1, 2009, the temperature reached 3.4 degrees Celsius. No sidewalk cleaning was scheduled. Mr. Johnson indicated that was because they could let Mother Nature do the work. He also acknowledged that the City owned property to the right of the portion of the Arkledun sidewalk in question is higher than the sidewalk surface and accordingly it would be quite possible that as snow melted on that uphill lawn, the water would flow over the sidewalk, and that snow on the sidewalk would melt in that temperature. It then went down to -6.2 degrees Celsius that night. On Monday February 2, there were snow showers in the morning. No manual sidewalk cleaning was scheduled for route 5 except it was shown as being scheduled for the whole district but there are no records indicating that any snow removal was done.
[61] February 2, 2009, the day of the fall, temperatures remained below freezing.
[62] In the result, Mr. Johnson after being asked to do some calculations based on the City’s records acknowledged that the last time any City crew had done any manual snow clearing on the Arkledun sidewalk for which any record existed was on January 12, 2009. Between then and the date of the accident the records indicated 37.4 cm or approximately 15 inches of snow fell.
[63] He also acknowledged that January 16, 2009 was the last day the records indicated any salt was applied and that between January 16 and the date of the fall 30.85 cm or approximately 13 inches of snow had fallen since the last salting.
[64] He agreed that the portion of the Arkledun sidewalk in question is very busy, and that accordingly snow could get compacted down.
[65] When it was suggested to him that the City’s records of snowfall and only limited snow removal efforts in respect of Arkledun Avenue seemed to support the evidence of the plaintiff and her friend about the quantity of hard packed snow on the area in question, he would not agree, but agreed he couldn’t produce any records to show other removal efforts other than such as may have taken place by an independent contractor whose evidence was heard later in the trial.
[66] Mr. Johnson agreed that if there was ice, as opposed to just compacted snow, on the Arkledun sidewalk that a bobcat equipped with a front roller broom would not be able to handle the ice.
[67] Tony Filice testified that he is a winter operator for the City of Hamilton and works in District 3 and was previously a district investigator for the City. His role in this matter was to make enquiry through a City computer system called Hanson which is a computerized filing system for complaints made to the City by either members of the public or City workers and these complaints are filed by location. He found there were 18 complaints with respect to Arkledun Avenue, but none in respect of snow or ice removal, and that there was one for January 30, 2009 for the St. Joseph’s Drive location which seems somewhat confusing in that it reports as being resolved, but also the report indicates it was never inspected.
[68] Glen Kuik is on disability right now but normally works for Humber Landscaping, one of the independent contractors used by the City for snow removal when they are called in by the City. His evidence is that he ran a bobcat with a front bucket. He confirmed that the priority list they were given was school sidewalks first, then bus stops, and then City sidewalks. He has no memory of January or February 2009 but knows that his company did snow and ice removal at that time and that he worked that winter. He was shown a City generated equipment sheet indicating that he did some sidewalk cleaning using his bobcat in the early morning hours of January 29, 2009. On cross-examination however he agreed that he would have actually done it on the evening of January 28th as the priority list had him at some bus stops further up Arkledun Avenue and despite the priority list it made more sense for him to do the two bus stops and then come downhill with his bobcat and do the sidewalk on the way down.
[69] He testified that the slope of the sidewalk on the area in question was sufficiently steep that he would not drive the bobcat up the slope, but rather would go on the paved street to climb the slope, then turn onto the sidewalk, and traverse the sidewalk on the downward motion only. He testified that if you are dealing with ice and it has bonded to the cement of the sidewalk, then the front bucket equipped bobcat will not remove it and that salt would be required. He also testified however that if he saw ice which he could not remove he would generally report it to the City supervisor. He has no memory of the actual events on January 28 or 29, 2009. In his opinion the bucket would however do a “pretty good” job of removing hard packed snow. He was asked about the steepness of the grade at the location of the accident and estimated that it was about a nine percent grade, which he described as quite steep. He had no memory of the handrail but upon being shown the pictures agreed that if he had seen a handrail in that condition he would have reported it to the supervisor. He did not know why he would not have seen it while cleaning Arkledun.
Assessment of Credibility
[70] In my assessment both the plaintiff and Tracy Willson were honest, candid and forthright witnesses. They were consistent as between each other and each was consistent within her own evidence, and both were consistent with common sense and the realities of winter as we know them to be in this country. I accept their evidence as to the existing conditions both before and at the time of the fall. They are the only two witnesses presented who claim to have seen the location of the fall at the relevant time.
[71] Furthermore, their evidence is consistent with what one would expect, by in large, given the snowfall and the lack of manual sidewalk cleaning in the relevant area.
[72] In my assessment Mr. Johnson was in a difficult position for two reasons. Number one, he is an employee of the defendant. Secondly, he is one of the superintendents charged with the responsibility of fulfilling the City’s snow and ice removal duties. He was trying here to prove a level of sidewalk cleaning performance, but based only on records. And sometimes he did not have the necessary records or any explanation as to why he did not have them or whether he ever had them, and why, if they were not made or turned in, why nothing was done about it. Over and above that, some of the records maintained by the City and identified by him showed that on nine or ten occasions in the course of January City employees did not do what they were scheduled to do on Arkledun Avenue.
[73] In my assessment there were several occasions when he was evasive and argumentative with counsel and either would not or would be slow in admitting the obvious. On several occasions he sought to add additional information in response to questions that did not ask for it. The admissions he was finally forced to make during cross-examination were only reluctantly made, and really go to support the evidence of the plaintiff.
[74] Mr. Felice seemed to be a straightforward witness but he was only called to reflect what the City complaint records contained. Mr. Kuik presented as amiable and as an experienced contractor. He had no recollection of the day in question, or the days before that, and instead relies on City records and what they suggest to him he would probably have done. For instance, he testified that if he had seen the broken handrail, he would have reported it. If he cleaned the sidewalk as he claims in reliance on the City record, he could not have missed the handrail.
Findings of Facts
[75] I find as a fact that:
• The entire sidewalk travelled by the plaintiff from the end of the stairs near the top of the Mountain down to the accident scene were covered with a layer of snow that had been much travelled and accordingly compacted down into a somewhat slippery but generally passable state, by a pedestrian utilizing care.
• That at the scene of the actual fall there was a sheet of ice over the sidewalk with loose freshly fallen snow covering it such that it could not be seen as ice by a pedestrian descending on the path until the plaintiff had fallen and in so doing pushed the fresh snow aside to reveal the ice.
• I find that the plaintiff was using appropriate care in walking the sidewalk – paying attention, using deliberately short steps as one does on a slippery surface, and watching where she was going.
• I find that the handrail was erected by the City at some past time as an aid to pedestrians because of the severe slope that existed on the sidewalk at the bottom end of Arkledun Avenue on the north side.
• I find that the handrail had been allowed by the City to fall into such disrepair that it was falling over in a direction away from the sidewalk such as to be unusable.
• I find that, as the plaintiff said, if one reached over to her right to try and grasp this handrail as she descended the slope on the sidewalk, her centre of gravity would have been leaning over so far to the right as to constitute more of a danger than would exist by ignoring the handrail as she did.
• I find that there was no salt or sand on the sidewalk on Arkledun Avenue and in particular at the scene of the fall.
• I find that the City has provided no evidence that any manual winter maintenance was provided to this sidewalk since January 12, 2009, 22 days before the accident, and that in that period of time approximately 15 inches of snow had fallen and had been trampled down by pedestrians without any effort to clean it up using manual cleaning efforts by City staff so as to meet the City’s obligation under its own by-law.
• I find that the only evidence of efforts made to clean this portion of the sidewalk on Arkledun Avenue prior to the fall was at best the evidence generated by the one machinery record indicating that Humber’s Mr. Kuik had used his bobcat with a front end bucket to try and clear snow from this sidewalk on the early morning of January 29, 2009, although his evidence is that he would have in fact have done it on the evening of January 28th as part of what he recorded as doing two bus stops on Arkledun that night.
• I find that the plaintiff’s fall was the direct result of a sudden slip on ice that was hidden from view by a layer of freshly fallen snow and that the ice could only be seen after the fall during which the fresh snow covering was moved away.
• I accept the evidence of the plaintiff and Ms. Willson, and find as a fact that the portion of the sidewalk in question had been neglected in terms of snow removal by City staff, using manual methods, for several days, and that salt had not been applied for several days, nor had sand.
Gross Negligence
[76] Section 44(9) of the Municipal Act renders a municipality liable for personal injury caused by snow or ice on a sidewalk only in cases of gross negligence.
[77] In Crinson v. Toronto (City), (2010),2010 ONCA 44, 100 O. R. (3d) 366 the Court of Appeal observed that the law has not developed an accepted and precise definition of what constitutes gross negligence. As further observed in that case, it is more than just a breach of duty of care, but must be more than that, and whether or not that standard is reached, it depends upon the facts of each particular case. It requires the application of common sense. At paragraph 54 of that case, it was held that “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 … a City must take reasonable steps to keep the sidewalks free of dangerous conditions”.
[78] It has long been recognized that citizens in Canada must be taken as being familiar with our Canadian winters and winter weather and be taken to know that sidewalks and streets can be slippery at that time of the year: Cole v. Deep River (Town of), 2003 23542. The plaintiff knew this and acted appropriately. It is also recognized in the jurisprudence that perfection is not the appropriate standard: Huycke v. The Town of Cobourg, 1937 93 (ON CA) and Bogoroch v. Toronto (City), 1991 CarswellOnt. 1554.
[79] In Sutherland v. North York (City of), 1997 736, the Court of Appeal, at page 10 observed that it is unwise for courts to rewrite policies or dictate priorities or street maintenance by municipalities.
[80] On the evidence in this case I find that the defendant was grossly negligent. Its employees did no snow removal, or sanding, or salting for many days prior to the fall, during which time snow fell in appreciable and accumulating amounts, on a particularly steep and well used sidewalk which was the City’s responsibility. The independent contractor services available to the defendant were not utilized in the 5 days before the fall, and on the evidence would have been ineffective as the snow had been compacted and bonded to the sidewalk. The contractor’s machine would have admittedly been ineffective as against the layer of ice on the sidewalk where the fall occurred. In my opinion the facts of this case squarely fall within the parameters of gross negligence as described in para. 54 of Crimson.
The Handrail
[81] The presence of the handrail in its obvious state of disrepair is a factor already discussed under gross negligence. The plaintiff’s position is that regardless of the court’s finding on the issue of gross negligence, the appropriate test of the City’s duty in respect of the handrail as a separate issue is that ordinary negligence is enough to attract liability.
[82] With respect to the defective steel handrail adjacent to the sidewalk in the area where the plaintiff fell, it is to be remembered that the pedestrian sidewalk was between the paved roadway and the steel handrail.
[83] The defendant argues that s. 44(8)(a) of the Municipal Act prevents a cause of action based on the alleged non-repair of the handrail in question. That section provides that “no action shall be brought against a municipality for damages caused by: (a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway”. The case law provided by the defendant consists of cases dealing with defective guardrails, steel cables or other types of roadside barriers designed to prevent injury caused by vehicles leaving the road, or injuries caused by people who strike such barriers.
[84] It is clear to me, and I find, that the only reasonable conclusion on the evidence in this case is that the steel handrail was erected by the City of Hamilton at some point in the past in recognition of the fact that this was a steep section of sidewalk, one that would be more safely passed over by pedestrians if a handrail was available to them by way of extra support. As the handrail is on the other side of the sidewalk from the roadway, it would offer no protection to pedestrians from injuries sustained by vehicles leaving the roadway. This handrail is not within the category of other devices listed in the section relied upon by the defendant.
[85] In Hopper v. County of Bruce 1950 64 (ON CA), [1950] O. R. 284 the Court of Appeal held that s. 480 prohibited an action based on the absence of a guardrail. But in Talbot v. Gan General Insurance (2003) 2003 38964 (ON SC), 64 O.R. (3d) 294 (S.C.) it was held that once a municipality had chosen to erect guardrails, an injuries arising from a failure to properly maintain them was actionable and not prevented by section 284.
[86] Similarly here, in my opinion, the previous recognition by the City that a handrail was necessary to assist pedestrians travelling on this steep section of sidewalk carried with it a duty to maintain the pedestrian handrail in a useable state of repair, and that s. 44 (8) is not a bar to an action based on negligence.
[87] But in my opinion the failure of the defendant to properly maintain its pedestrian handrail in a proper and useable condition is properly considered as a factor supporting the finding of gross negligence on the part of the City. The condition of the handrail did not cause the fall. The snow and ice did. A handrail in proper condition may well have prevented the fall, just as proper snow removal and salting and sanding may have. I consider the unusable condition of the handrail to have been proven, but I am of the view that it is an element supporting the finding of gross negligence, rather than being a separate actionable wrong upon proof of simple negligence in failing to maintain it.
Contributory Negligence
[88] I find there was no contributory negligence on the part of the plaintiff. For reasons already stated, I reject the contention that the pedestrian handrail could usefully have been used or that it should have been used as I find that it could only be grasped by someone whose feet were on the sidewalk if they leaned sideways far to the right, which in my opinion would have increased the level of danger.
[89] On the issue of contributory negligence, it has previously been held that running shoes are not appropriate winter footwear and constitute contributory negligence on the part of their wearer: Hawman v. Regina Exhibition Association Limited, 1999 CarswellSask. 705; Lear v. London (City), 1999 CarswellOnt. 2990. As I read those cases, the footwear was but one factor in the finding of contributory negligence. In neither case do I see any mention of expert evidence on the issue of whether running shoes are less safe than boots.
[90] I reject the contention that the plaintiff was contributorily negligent by wearing running shoes. I have no evidence that running shoes, although perhaps not warm or waterproof and in that sense not practical, do not grip on packed snow or ice as well as other footwear. The evidence I have is that many of the people walking that path also used running shoes. In my opinion judicial notice can be taken of the fact that running shoes have a tread pattern on them. I think it to be common knowledge that winter tires are recommended for winter driving in Canada because they have a softer rubber compound which grips better in cold weather than do the harder compound summer tires. Running shoes have soft rubber compound soles.
[91] Furthermore, as previously indicated, I find as a fact that the plaintiff was acting in a careful, watchful and attentive manner as she traversed this section of the sidewalk where the fall occurred.
Sufficiency of the Notice
[92] Section 44(10)(a) requires written notice of the claim and of the injury within 10 days after the occurrence of the injury.
[93] Section 44(12) provides that insufficient notice is not a bar if the judge finds that there is a reasonable excuse for the insufficiency of notice, and the municipality is not prejudiced in its defence.
[94] In this case, it is conceded by the municipality that it was not prejudiced by any delay in providing notice in this case.
[95] In determining whether or not in the circumstances of this case the plaintiff has a reasonable excuse for the slightly untimely notice the following circumstances are relevant:
• This notice is only 27 days late.
• The plaintiff had no knowledge of the 10 day notice requirement.
• The plaintiff had not spoken to any lawyer about her fall and any claim against the City.
• I find that the plaintiff, in looking for information as to how to advise the City, found the appropriate portion of the City’s website dealing with snow on sidewalk issues and I find as a fact that it did not alert the plaintiff to any limitation period for notice.
• I accept her evidence and find as a fact that she honestly did not know how long it would take for her symptoms to resolve or how troublesome her symptoms would prove to be.
• I accept her evidence and find as a fact that she could did not intend to claim against the City for anything if her injuries had resolved as she reasonably hoped and expected they would.
• I accept her evidence and find as a fact that she only reported this matter to the City when her symptoms were persisting and she had exhausted her own private coverage benefits for chiropractic services.
[96] Many previous cases dealing with winter condition slip and falls have taken judicial notice of the dangers inherent in walking in our winter climate. In the same vein I think it is safe to take judicial notice that the vast majority of Canadians at some point in their lives slip and fall on snow or ice whether it be on a roadway, driveway, sidewalk, or on a ski hill or a skating rink. Further, I take notice that many such people get a good shaking up as a result of the fall on the hard surface and for a period are unsure as to whether they are injured, and if so how badly. It can be quite a jarring experience often resulting in sore elbows, sore wrists, sore posteriors and the like. I suggest it is common that people hope that the effects will clear up in a matter of days without any medical intervention, and that most do, but that sometimes only time will tell. There are other injuries in such cases however which are immediately obvious and urgent involving broken bones.
[97] In my assessment, it is reasonable for a person with no knowledge of the 10 day notice period, who suffers a fall of the type occasioned to this plaintiff to want to wait a few days, or even a few weeks to see whether her symptoms retreat and resolve before proceeding to initiate proceedings or to notify anyone of blame. The plaintiff was willing to exhaust her own chiropractic treatment allowance before seeking any relief from the City.
[98] In these notice cases, often reliance is placed on the nature and extent of the injury, but in the opposite sense that it was sufficiently serious that the plaintiff could not be expected to attend to the notice requirement earlier. I say, at the opposite end of the spectrum, there are injury consequences, such as those here, which it is reasonable to hope will cure themselves and to wait to see if that occurs, within a reasonable time, before taking any action. I suggest many responsible citizens would think it to be the right thing to do. In my opinion doing what many would think of to be right can qualify as constituting a reasonable excuse. I conclude that the plaintiff’s approach in this case was sensible in the circumstances given the uncertainty of her symptoms, both as to severity and as to persistence. I find that her failure to report earlier was not the result of ambivalence or carelessness, but rather that of a reasonable attitude for someone who within the 10 days could not reasonably be certain of what was going to happen.
[99] In Cena v. Oakville (Town) [2009] O.J. No. 251 (SC) the plaintiff was held to have a reasonable excuse, even though notice was not given until 67 days after the fall. The motion judge in that court accepted the plaintiff’s evidence that she had not seen sufficient improvement in her symptoms and accordingly became concerned about making a recovery and sought legal advice and then served the notice. Her evidence was that she initially did not give notice, as she thought her injury would heal without difficulty and that she accordingly would be making no claim. Justice Murray held that the phrase “reasonable excuse” should be given a “broad and liberal interpretation”. The other prong of the test, the lack of prejudice to the municipality, was not to be given that same broad interpretation.
[100] The Ontario Court of Appeal looked at the issue in Crinson (supra), where the plaintiff gave notice of his claim four months after it had occurred. The trial judge had given the matter the same restrictive interpretation as had been applied in Kors v. Toronto (City) [2006] O.J.2636 (that the injury incapacitated the plaintiff so as to prevent the giving of notice), but the Court of Appeal instead followed Cena v. indicating that “the words ‘reasonable excuse’ should be given their plain and ordinary meaning and that the court should consider all the circumstances of the particular case in determining whether the plaintiff has indeed established a reasonable excuse …”. There, the court found the plaintiff to have a reasonable excuse because he did not know the notice period, and had not considered whether or not a legal action was to be brought until he spoke with counsel.
[101] The above cases are to be distinguished from those where there has been a long delay in giving the notice. In Delahaye v. Toronto (City), [2011] O.J. No. 4066, it was held that failure to give notice for more than 17 months fell beyond any reasonable interpretation of “reasonable excuse”. In Argue v. Tay (Township), 2012 ONSC 4622, [2012] O.J. No. 3776, it was held that the length of the delay is a consideration to be factored in when examining the reasonable excuse question and there a delay of almost 2 years was found to fall short. Eighteen months delay in giving notice was to be a factor negating “reasonable excuse” in the case of Hennes v. Brampton (City), 2014 ONSC 1116, [2014] O.J. No. 783.
[102] In Seif v. Toronto (City), 2014 ONSC 2983, [2014] O.J. No. 2294 (SC), summary judgment was given dismissing an action where notice was not given for four months after the injury and the evidence was that the plaintiff had no intention to commence a lawsuit regarding the accident initially and her indecision was the reason for the late notice. There the motion judge held that the reasonable excuse has to somehow be the result of the injury.
[103] An appeal to the Court of Appeal on the Seif matter was argued January 19, 2015 and judgment was reserved. When this case was argued the following week, counsel asked that I await the appeal decision. That judgment was released on May 8, and on the notice issue the court was unanimous in holding at paragraph 28 that the plaintiff had a reasonable excuse “as she did not intend to sue the City at the outset because at first she did not think her injuries were serious. She followed a course of treatment. She decided to explore legal action only when she found out that she would suffer pain and limitations in her fractured wrist for the rest of her life”. She then acted promptly. In other words, a decision to wait and see if injuries disappear is a factor which can be considered as part of the “reasonable excuse” analysis.
[104] Following the release of Seif I was advised by both counsel that a further attendance was not necessary and that brief written submissions would suffice. I received those submissions promptly. I am not persuaded by the submissions on behalf of the defendant that the rationale in Seif is not applicable in this case given the facts as I have found them to be.
[105] I find that the plaintiff has established a reasonable excuse for the late notice and falls within the exception provided in s 44 (12).
The Result
[104] For these reasons I find the defendant to be liable to the plaintiff and judgment shall issue for the damages as previously agreed upon between the parties.
[105] In the event that the parties are unable to agree on costs, written submissions may be forwarded to my chambers at the Court House, 7th Floor, 85 Frederick Street, Kitchener, Ontario, N2H 0A7. Such submissions should not exceed 5 pages in length exclusive of bills of costs, copies of relevant offers, and relevant authorities. Those of the plaintiff should be forwarded within 21 days of the release of these reasons, and those of the defendant within 21 days after receipt of those of the plaintiff. If no submissions are received within those time lines or such extensions as may be sought and granted, the issue of costs will be deemed to have been agreed upon between the parties and no order for costs shall be made.
C.S. Glithero J.
Released: May 22, 2015
CITATION: Bramer v. City of Hamilton, 2015 ONSC 713
COURT FILE NO.: 10-24238
DATE: 20150522
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KELLY BRAMER AND KEVING BRAMER
Plaintiffs
- and –
CITY OF HAMILTON
Defendant
REASONS FOR JUDGMENT
CSG:mw/vt
Released: May 22, 2015