ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-467930
DATE: 20151124

BETWEEN:

GEORGE CHRYSANTHIS

Plaintiff

– and –

ELZBIETA RUTKOWSKA,

KHOUNG DUY TRAN, 2283262 ONTARIO INC. operated as ROCKSOLID INTERLOCKING & LANDSCAPING, PATRICK SIMONE also known as PASQUALE SIMONE, and

GIUSEPPE GIANFORCARO

Defendants

Jane Lo, for the Plaintiff

David P. O’Brien, for the Defendant Elzbieta Rutkowska

Michael Unea, for the Defendant Khoung Duy Tran

HEARD: November 19, 2015

ENDORSEMENT

DIAMOND J.:

Overview

[1] The defendants Elzbeita Rutkowska (“Rutkowska”) and Khoung Duy Tran (“Tran”) are neighbours. Rutkowska resides at 11 Elmhurst Drive, Toronto, Ontario. Tran resides next door at 9 Elmhurst Drive, Toronto, Ontario.

[2] In or around mid-November 2010, both Rutkowska and Tran had hired the defendant Patrick Simone (“Simone”) to carry out certain landscaping work at their respective properties. The contracts were made orally, and Simone was to be paid upon completion of the work. The landscaping work at both properties commenced at some point during the week of November 14, 2010.

[3] On November 19, 2010, the plaintiff was driving his van eastward on Elmhurst Drive when he was suddenly involved in a motor vehicle accident. The plaintiff alleges that his van came into contact with a boulder on the roadway. The plaintiff further alleges that the boulder was to be installed as part of the landscaping work at one of the two properties, and the boulder had fallen out of the “scoop” of a front-end loader utility vehicle parked in the driveway of 11 Elmhurst Drive (Rutkowska’s property).

[4] At the time of the motor vehicle accident, neither Rutkowska nor Tran were at home. Simone did not defend this action, and has been noted in default.

[5] Rutkowska and Tran (“the moving defendants”) now collectively bring motions for summary judgment seeking an order dismissing this action as against them on the basis that there are no genuine issues requiring a trial. While the plaintiff has conceded that several of his original causes of action are no longer tenable on the record, he resists the motions for summary judgment on the basis that there are genuine issues requiring a trial relating to the torts of private nuisance, public nuisance and the rule in Rylands v. Fletcher.

[6] For the reasons which follow, I grant the moving defendants’ motions for summary judgment.

Summary of Relevant Facts

[7] Tran was first to hire Simone to carry out landscaping work at 9 Elmhurst Drive. It is Tran’s evidence that Simone did not share any particulars with him about the scope or timing of the work, including whether Simone intended to obtain any municipal permit.

[8] After Simone began working on Tran’s property, Rutkowska observed Simone’s landscaping work and approached him with a view to retaining Simone’s services to carry out similar landscaping work at 11 Elmhurst Drive. It is Rutkowska’s evidence that she retained Simone’s services pursuant to an oral agreement whereby Simone agreed to place boulders adjacent to the municipal sidewalk (much like he was doing at 9 Elmhurst Drive). Rutkowska was not advised by Simone as to when and how the landscaping work would be carried out. She simply provided Simone with permission to use the property and the driveway (if necessary) to commence and complete the project.

[9] Simone was apparently working at both 9 and 11 Elmhurst Drive during the week of November 14, 2010. On the date of the motor vehicle accident (November 19, 2010) neither Tran nor Rutkowska were at home.

[10] While the plaintiff’s original affidavit evidence seemed to change or expand in key areas during his cross-examination, the key facts leading up to the accident are as follows:

(a) The accident took place between 8:15 a.m. – 8:30 a.m. on November 19, 2010.

(b) Weather did not appear to be a contributing factor.

(c) The plaintiff was driving his vehicle eastbound on Elmhurst Drive, and travelling at approximately 40 km/h.

(d) When the plaintiff was approximately 150 metres away (i.e., west of) 11 Elmhurst Drive, he noticed a front-end loader utility vehicle parked in “a driveway”, and a boulder inside the “scoop” of the utility vehicle. It is not in dispute that the utility vehicle was in fact parked in the driveway of 11 Elmhurst Drive. The plaintiff cannot recall whether the boulder in the “scoop” was elevated or at ground level when he noticed it (approximately 150 metres away).

(e) According to the plaintiff, there were no parked cars or other obstacles on Elmhurst Drive.

(f) Prior to the accident, a vehicle behind the plaintiff’s vehicle was attempting to overtake him on the left hand side as a left turn lane was present. As the other vehicle was passing him, the plaintiff leaned out of his driver’s side window and there was an interaction between the plaintiff and the other driver.

In his affidavit, the plaintiff stated that he signaled to the other driver to slow down as there were children attempting to cross the road. On cross-examination, he testified that with his left hand on the bottom of the steering wheel, he used his right hand to “shoot the finger” at the other driver, turning his body and head towards the driver’s side window in order to extend his right hand towards the other driver.

(g) While engaged with the other driver, the plaintiff testified that he did move his vehicle to the right, presumably to provide additional space between his vehicle and the passing vehicle.

(h) The accident occurred when the plaintiff turned his body forward to look in the direction that his van was travelling (eastbound). The plaintiff testified that he did not see any boulder on Elmhurst Drive before the accident.

(i) The plaintiff could not confirm or deny whether the boulder was still located in the “scoop” or was in fact on the roadway (Elmhurst Drive).

[11] According to the plaintiff, the force of the impact pushed the boulder to ultimately land on the curb adjacent to a hydro pole in front of 7 Elmhurst Drive (i.e., two properties over).

[12] After the accident, the police were contacted and officers did attend the scene. From photographs produced by the parties, it appears that after the accident, Simone drove the utility vehicle to retrieve the boulder, and then parked the utility vehicle at 9 Elmhurst Drive (Tran’s property).

[13] The plaintiff did not obtain or produce a copy of the police investigation file. At his cross-examination, the plaintiff undertook to request that the file be produced. As of the date of the hearing of these motions, the plaintiff had apparently yet to receive a substantive response to his request. Presumably, the police investigation file would contain at least some relevant information, although the parties do not believe that any accident reconstruction exercise took place.

Statement of Claim

[14] The plaintiff sued Rutkowska, Tran, Simone, Simone’s landscaping company Rocksolid Interlocking & Landscaping (“Rocksolid”), and Simone’s alleged partner in Rocksolid Giuseppe Gianforcaro (“Gianforcaro”).

[15] As stated, Simone never defended this action and has been noted in default. The plaintiff dismissed its action as against Rocksolid and Gianforcaro.

[16] The pleaded theories of liability against Rutkowska and Tran are:

(a) vicarious liability for the acts and omissions of Simone based upon a principal and agent relationship;

(b) vicarious liability for the acts and omissions of Simone pursuant to the provisions of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2;

(c) vicarious liability as Simone’s employers, and thus owners of the boulder involved in the motor vehicle accident;

(d) negligence;

(e) causing a private nuisance;

(f) causing a public nuisance; and

(g) liability pursuant to the rule in Rylands v. Fletcher.

[17] At the outset of the hearing of these motions, counsel for the plaintiff conceded that there was no evidence supporting the plaintiff’s claims for the first four causes of action against Rutkowska and Tran. As such it is the plaintiff’s position that there are genuine issues requiring a trial relating to his claims for private nuisance, public nuisance and the rule in Rylands v. Fletcher. The motion proceeded upon that basis.

Summary Judgment

[18] Rule 20.04(2)(a) of the Rules of Civil Procedure now provides that the Court shall grant summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”. As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.

[19] In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada established a road map in terms of how a motions judge should approach a motion for summary judgment. The Court must first determine whether there is a genuine issue requiring a trial based only upon the evidence filed with the Court and without using the new fact finding powers set out in the 2010 amendments. Summary judgment will thus be available if there is sufficient evidence to justly and fairly adjudicate the dispute, with the motion being an affordable, timely and proportionate procedure.

[20] If the Court finds the presence of a genuine issue requiring a trial, the motions judge must then determine if the need for a trial can be avoided by using the new, enhanced powers under Rules 20.04(2.1) and (2.2).

[21] It is important to remember that the applicable evidentiary principles developed under the previous incarnation of Rule 20.04 continue to apply. The motions judge must still take a “hard look” at the evidence to determine whether it raises a genuine issue requiring a trial, and as a result each party must still put its “best foot forward” and submit cogent and compelling evidence to support or oppose the relief sought. A moving party has both a legal and evidentiary onus to satisfy the Court that there is no genuine issue requiring a trial. It is the moving party’s obligation to present a record that can enable the Court to avail itself of the enhanced powers under Rule 20.04 if the record warrants the exercise of such discretion.

Private Nuisance

[22] In St. Pierre v. Ontario (Ministry of Transportation & Communications), 1987 60 (SCC), [1987] 1 S.C.R. 906 (S.C.C.) the Supreme Court of Canada defined private nuisance as follows:

“A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or of an interest in land, where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.”

[23] In Smith v. Inco Ltd. (2011) 2011 ONCA 628, 107 O.R. (3d) 321 (C.A.), the Court of Appeal for Ontario made it clear that private nuisance is a tort against land, i.e., real property. While the damage may take the form of physical damage or an unreasonable interference with the land, nuisance does not apply to cases where the damages are to personal property, or for personal injuries.

[24] Counsel for the plaintiff attempted to argue that the above definition is a “working definition”, and the scope of the tort could encompass damages to personal property and/or personal injury. I do not agree. The development of the tort of nuisance was based upon the concept of land ownership, and more importantly a person’s right to physical dominion over his/her land. The tort of nuisance stepped in to balance the interests of competing neighbours or other property owners where the actions of one unlawfully interfered with another’s property or enjoyment of the property.

[25] As the plaintiff sues for damages for personal injury and to his vehicle, the tort of private nuisance does not apply to his claims. As such, there is no genuine issue requiring a trial with respect to the plaintiff’s claim for private nuisance.

Public Nuisance

[26] Both parties rely upon the Supreme Court of Canada’s decision in Ryan v. Victoria (City) 1999 706 (SCC), [1999] 1 S.C.R. 201 (SCC) wherein Major J. defined public nuisance as “any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience”. While a person may bring a private action for public nuisance by proving special damages, such actions typically involve allegations of unreasonable interference with a public right of way such as a street or roadway.

[27] As the plaintiff testified that he was not necessarily even aware of whether the boulder was in fact on the roadway (as he did not see it), and there is no actual evidence confirming that the boulder somehow “escaped” the scoop and (presumably) rolled onto Elmhurst Drive, it is certainly arguable on the record before me that the plaintiff cannot prove on a balance of probabilities that his vehicle even struck the boulder on Elmhurst Drive. However, even accepting the plaintiff’s factual theory of his case, his claim based in public nuisance fails.

[28] The plaintiff submits that the public’s safety interest was unreasonably interfered with when the boulder came to rest on Elmhurst Drive. It is thus important to analyze the nature of the “public interest element” and its place in the tort of public nuisance. Rutkowska and Tran rely upon the decision of Justice Lauwers (as he then was) in Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality) 2010 ONSC 1123, [2010] O.J. No. 3715 (S.C.J.), affirmed 2011 ONCA 179 (C.A.) wherein Justice Lauwers stated as follows:

“Importantly, however, while the whole public need not be affected by the nuisance, a substantial number of people must be. See: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law 8th Ed. (Canada: LexisNexis Canada Inc., 2006) at 561. This is in accordance with the pronouncement by Lord Denning that ‘public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large’.”

[29] The boulder involved in the accident was only on Elmhurst Drive (if at all) for a matter of seconds. Had Simone been storing extra boulders for the purpose of completing his landscaping work on Elmhurst Drive, with the actual or apparent authority of Rutkowska and Tran, the plaintiff may have been able to satisfy the public interest element. However, the evidence is clear that when the plaintiff saw 11 Elmhurst Drive from approximately 150 metres away, both the boulder and the utility vehicle were on the driveway. The plaintiff thus cannot satisfy the requirement that the boulder’s location (for a matter of seconds) affected “a number of people”.

[30] The boulder’s escape from the scoop was, at its highest, an inadvertent short-term occurrence. The plaintiff has conceded that he has no evidence of negligence on the part of Rutkowska or Tran. As such, there is no genuine issue requiring a trial with respect to the plaintiff’s claim for public nuisance.

The Rule in Rylands v. Fletcher

[31] The rule in Rylands v. Fletcher imposes strict liability upon a defendant for damages caused to a plaintiff’s property by the escape from the defendant’s property of a “substance likely to cause mischief”. There is no dispute that the Supreme Court of Canada has recognized the rule in Rylands v. Fletcher as a continuing basis to impose strict liability upon a defendant. In Tock v. St. John’s (City) Metropolitan Area Board 1989 15 (SCC), [1989] 2 S.C.R. 1181 (S.C.C.), the Court held that not every use to which land is put brings the rule in Rylands v. Fletcher into play, as the defendant must use his/her land in some special way to bring with it increased dangers to others (i.e., not the ordinary use of the property).

[32] Counsel for Rutkowska and Tran questioned whether the rule in Rylands v. Fletcher can even apply to a claim for personal injury and/or damages to personal property. In Smith v. Inco Ltd., the Court of Appeal for Ontario found that the rule in Rylands v. Fletcher would “probably” apply to an action for personal damages. However, even proceeding on that assumption, I find that the plaintiff’s claim for breach of the rule in Rylands v. Fletcher fails.

[33] There are four prerequisites for the rule in Rylands v. Fletcher to apply:

● the defendant made a “non-natural” or “special” use of his/her land;

● the defendant brought on to his/her land something that was likely to do mischief if it escaped;

● the substance in question in fact escaped; and

● damage was caused to the plaintiff’s property as a result of the escape.

[34] In my view, the only element satisfied on the evidentiary record before me is the second prerequisite, as the boulder was something which was likely to “do mischief” if it escaped. It is arguable that the boulder in fact did not escape, as it is feasible that the plaintiff’s vehicle struck the boulder either inside the scoop, or if it fell out of the scoop then at the end of the driveway of 11 Elmhurst Drive. (and I question whether that specific area is property owned by Rutkowska or the City of Toronto).

[35] Regardless, I do not find that landscaping services are a “non-natural” or “special” use of the properties. Once again, in Smith v. Inco Ltd. the Court of Appeal for Ontario held as follows:

“The emphasis in Tock at para. 13 on a “user inappropriate to the place” and, at para. 10, to ‘changing patterns of existence’ demonstrate that the distinction between natural and non-natural use cannot be made exclusively by reference to the origin of the substance in issue. To decide whether a use is non-natural, the court must have regard to the place where the use is made, the time when the use is made, and the manner of the use. Planning legislation and other government regulations controlling where, when and how activities can be carried out will be relevant considerations in assessing whether particular use is a non-natural use in the sense that it is a use that is not ordinary.

The approach to non-natural user taken in Tock and in Cambridge Water Co. restricts those situations in which Rylands v. Fletcher applies. The non-natural use requirement of the Rylands v. Fletcher rule serves a similar role to the “give and take between neighbours” principle that is applied when determining when one person’s interference with another person’s use and enjoyment of his property constitutes a natural nuisance. Like the reasonable user inquiry in cases involving amenity nuisance, the non-natural user inquiry seeks to distinguish between those uses of property that the community as a whole should accept and tolerate and those uses where the burden associated with accidental and unintended consequences of the use should fall on the user. The nature and degree of the risk inherent in the use is obviously an important feature of this inquiry, but as Tock demonstrates, it is not the entire inquiry. See: Cambridge Water Co. at pp. 299-300.”

[36] In my view, landscaping work, and in particular the placement of boulders upon one’s property is a use which any reasonable community would accept and tolerate. Landscaping work to residential properties is quite common, and typically carried out with a view to improving both the aesthetic and financial value of a property. In essence, it is a type of “home improvement” step, but to the exterior of the residence.

[37] I thus find that landscaping work is not a “non-natural or special” use of residential property. Accordingly, the motions for summary judgment are granted and the claim as against Rutkowska and Tran is dismissed.

Costs

[38] I would urge the parties to resolve the costs of these motions and the action. If such efforts prove unsuccessful, Rutkowska and Tran may serve and file their respective written costs submissions (totaling no more than 4 pages including a Costs Outline) within 10 business days of the release of this decision.

[39] The plaintiff shall thereafter serve and file his responding costs submissions (also totaling no more than 4 pages including a Costs Outline) within 10 business days of the receipt of the costs submissions of Rutkowska and Tran.

Diamond J.

Released: November 24, 2015

COURT FILE NO.: CV-12-467930
DATE: 20151124

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE CHRYSANTHIS

– and –

ELZBIETA RUTKOWSKA,

KHOUNG DUY TRAN, 2283262 ONTARIO INC. operated as ROCKSOLID INTERLOCKING & LANDSCAPING, PATRICK SIMONE also known as PASQUALE SIMONE, and

GIUSEPPE GIANFORCARO

ENDORSEMENT

Diamond J.

Released: November 24, 2015