ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-15-520499
DATE: 20151120
BETWEEN:
UNDINE PARKINSON
Plaintiff
– and –
THE CORPORATION OF THE CITY OF BRAMPTON, FOUR SEASONS SITE DEVELOPMENT LTD., GURSEWAK GILL, SUKHJINDER GILL, MADHAV KHANAL AND SITA KHANAL
Defendants
No one appearing for the Plaintiff
Eric J. Adams, for the Moving Party, Four Seasons Site Development Ltd.
Andy C. Jairam, for the Respondent, The Corporation of the City of Brampton
HEARD: November 9, 2015
Lederman J.
Nature of Motion
[1] The moving party, Four Seasons Site Development Ltd. (“Four Seasons”), seeks summary judgment dismissing the plaintiff’s claim and the cross-claims against it; and a declaration that the plaintiff’s slip and fall accident did not arise out of the operations of Four Seasons.
[2] The plaintiff’s action is based on an alleged slip and fall on a municipal sidewalk in the City of Brampton (“Brampton”). Four Seasons is a sidewalk winter maintenance contractor that was under contract with Brampton at the time of the alleged incident.
[3] The plaintiff, although represented by counsel, did not file any responding material or appear at the hearing of the motion.
[4] Brampton submits that the record before the court is insufficient to address the genuine issues raised in both the plaintiff’s claim and Brampton’s cross-claim against Four Seasons and submits that the matter should proceed to trial.
Background Facts
[5] The plaintiff delivered a statement of claim against multiple defendants, including Brampton and Four Seasons, for personal injuries which were allegedly sustained in a slip and fall incident on the sidewalk in the vicinity of 592 and 594 Ray Lawson Boulevard in Brampton. She alleges that she was walking on the sidewalk when she slipped and fell on “ice and/or snow”. Brampton and the other defendants have cross-claimed against Four Seasons.
[6] There is no sworn evidence from the plaintiff regarding the location of her alleged slip and fall or the condition of the sidewalk on the date of her alleged fall.
[7] The statement of claim alleges that the fall occurred on February 8, 2013; however, it appears the fall may have occurred on February 7, 2013 on the basis of other information available.
[8] Four Seasons is a municipal snow removal contractor who performs snow removal services for the area in question on an “on call” basis, attending only when requested to do so by Brampton. Four Seasons was called out to provide services to the location in question on January 31, 2013. It was not called out between February 1, 2013 and February 7, 2013. Four Seasons was called out again on February 8, 2013 after the fall was alleged to have occurred.
Motion for Summary Judgment to Dismiss the Plaintiff’s Claim
[9] The plaintiff has not adduced any evidence whatsoever showing that Four Seasons left the sidewalk in an unsafe or dangerous condition on either January 31, 2013 or on any date or time prior to the alleged fall. More importantly, the plaintiff has not even adduced any admissible evidence that there was a fall or that she suffered any injuries arising therefrom. As there is an obligation on a responding party to adduce evidence and put his or her best foot forward, the failure of the plaintiff to even participate in the motion, certainly indicates no basis for the action let alone a suggestion that there is a genuine issue requiring a trial. There is just no case for Four Seasons to meet.
[10] Although Brampton submits that it is not appropriate for it to advance the plaintiff’s position, it submitted that Four Seasons owes a duty to the plaintiff. The manner in which Four Seasons as an independent contractor carried out its contractual duties may make it liable to the plaintiff. A contractor will be in breach of its duty of care to the users of the sidewalk if it is in breach of the contractual maintenance standards provided that the contract standards are within the municipality’s duty of care and are equal to or less than a reasonable standard determined by the court.
[11] However, in a case where the plaintiff does not lead any admissible evidence at all about the slip and fall or her injuries and does not take issue with the Moving Party’s position, a defendant such as Four Seasons is able under Rule 20 to move for summary judgment dismissing the action as against it. On this basis, there will be judgment, accordingly, dismissing the plaintiff’s claim as against Four Seasons.
Motion for Summary Judgment to Dismiss Brampton’s Cross-Claim
[12] Four Seasons submits that there is no admissible evidence:
(a) That Four Seasons did not perform the snow removal services required of it on January 31, 2013;
(b) That it was required by Brampton to perform snow removal services after January 31, 2013 but before the plaintiff allegedly fell;
(c) That Four Seasons left the subject sidewalk in a hazardous or unsafe condition on January 31, 2013 or at any time before the plaintiff allegedly fell;
(d) As to whether (or how) the condition of the sidewalk on January 31, 2013 had an impact or relationship to the condition of the sidewalk at the time the plaintiff allegedly fell;
(e) That the condition of the sidewalk was hazardous or unsafe at the time of the plaintiff’s alleged fall;
(f) As to the condition of the sidewalk at the time the plaintiff allegedly fell;
(g) That the plaintiff fell; or
(h) That the plaintiff sustained an injury.
[13] With respect to the cross-claim, Brampton submits that the following genuine issues must be addressed:
(a) Whether Four Seasons was in compliance with the levels of service under the contract, namely, Four Seasons was required to drop both sand and salt on the sidewalk during its deployment and was required to clear the sidewalk to “bare surface” and was required to distribute the sand evenly across the entire width of the sidewalk;
(b) Whether any failure to comply with the levels of service could have caused or contributed to the plaintiff’s incident.
[14] In respect of both of these issues, the weather conditions between January 31, 2013 and February 7/8, 2013 are of importance. It is Brampton’s position that the weather during that period was moderate and that if the plaintiff fell on an icy patch on the sidewalk, it is causally connected to the services or inadequacy of service provided by Four Seasons on January 31st. Since there was no significant change in weather, it would suggest that on January 31st, Four Seasons did not clear the sidewalk to its bare surface or failed to properly distribute sand and salt across the surface as it was required to do pursuant to its contract.
[15] Both sides adduced evidence in relation to the weather conditions.
[16] Four Seasons tendered a copy of the Environment Canada record for February, 2013 which on its face shows snow fall on February 2 of 0.2 cm and on February 6 of 0.2 cm and on February 7 of 2.6 cm. However, the same record indicates that snow on the ground never exceeded 1 cm on any day from February 1 through February 7.
[17] Brampton tendered Weather Network forecasting showing that:
(a) Nothing more than flurries was ever expected during this period;
(b) The temperatures were forecasted to remain well below zero throughout this period; and
(c) There was no Environment Canada weather warnings issued for the period in question.
[18] Brampton contends that as the temperatures were well below zero, there would have been little risk of ice created by a freeze thaw cycle. Further, the Weather Network records indicate that any snowfall would have been limited to flurries; and given the weather pattern from February 1 – 7, 2013, there should have been no reason for the sidewalk to be covered in snow and ice as the plaintiff alleges, but for the substandard snow removal services provided by Four Seasons on January 31st.
[19] Four Seasons complains that there was a failure on the part of Brampton to call an expert to give evidence as to the actual weather conditions during the period in question. At best, Brampton produced only a forecast. Without more explanation, the forecast is confusing as it would appear to show that 3.1 cm of snow fell between January 31st and February 6th. No expert provided any interpretation of the contents of the “forecast”. The same may be said, however, for Four Seasons in that it is necessary to hear from an expert in order to interpret the record it produced from Environment Canada.
[20] The evidence on this important issue (i.e. the amount of snowfall after January 31st and whether it constituted a hazard) is insufficient for determination on this motion as to whether there could be any causal connection between the services that Four Seasons delivered on January 31, and the condition of the sidewalk at the time of the plaintiff’s alleged fall.
[21] It is acknowledged that it is not generally open to a third party to force a defendant to prove an aspect of the plaintiff’s case in order to resist a summary judgment motion in the third party proceeding (Cuillerier v. Andrés Sales and Services Limited 2011 ONSC 5310). In this case, however, Four Seasons asks the court to assume for the purposes of this motion that the plaintiff is able to establish liability as against Brampton. It argues that even with that stipulation, Brampton has failed to adduce any evidence demonstrating either breach of contract, or breach of duty of care, by Four Seasons such as to warrant contribution or indemnity.
[22] That may be so, but in issue on the cross-claim is whether there is sufficient evidence for a summary judgment motion court to determine the important genuine issue as to the nature of the weather conditions between January 31, 2013 and the date and time of the plaintiff’s alleged slip and fall. That is a genuine issue for trial requiring the appropriate experts to interpret the meteorological data for that period of time. Accordingly, Four Seasons’ motion for summary judgment dismissing the cross-claims as against it is dismissed.
Conclusion
[23] Four Seasons’ motion for summary judgment as against the plaintiff is granted and the action will be dismissed as against it. Four Seasons does not seek any costs as against the plaintiff. Nor should Brampton be liable for any costs to Four Seasons on that part of the motion for the failure of the plaintiff to adduce any evidence.
[24] Four Seasons’ motion for summary judgment to dismiss the cross-claims brought against it is dismissed.
[25] With respect to the motion in relation to the cross-claims, counsel indicated that they may be able to settle upon an appropriate disposition of costs. If they are unable to do so, they may make written submissions within 30 days.
Lederman J.
Released: November 20, 2015
COURT FILE NO.: CV-15-520499
DATE: 20151120
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
UNDINE PARKINSON
Plaintiff
– and –
THE CORPORATION OF THE CITY OF BRAMPTON, FOUR SEASONS SITE DEVELOPMENT LTD., GURSEWAK GILL, SUKHJINDER GILL, MADHAV KHANAL AND SITA KHANAL
Defendants
REASONS FOR JUDGMENT
Lederman J.
Released: November 20, 2015