Editor’s note: Erratum released February 15, 2015. Original judgment has been corrected, with text of erratum appended.
CITATION: Morand v.Corp. of the City of Brampton, 2015 ONSC 877
COURT FILE NO.: CV-12-4673-00
DATE: 20150209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATIE MORAND
Plaintiff
– and –
CORPORATION OF THE CITY OF BRAMPTON and DANIEL KHOURY and GRECE SABA and PARTACC DEVELOPMENTS INC.
Defendants
Charles Painter, for the City of Brampton, Applicant, Defendant and Defendant to Crossclaim by Partacc
Joshua Henderson, for the Partacc Developments Inc., Respondent, Defendant, Plaintiff by Crossclaim
HEARD: January 28, 2015
REASONS FOR JUDGMENT
TRIMBLE J.
[1] On December 25, 2010, the Plaintiff slipped and fell on snow or ice, in front of a new house at 25 Tenant Drive in Brampton, injuring herself. She said that the slip and fall happened on the sidewalk in front of the house. On November 19, 2012, the Plaintiff sued the City, the owners of the home, and the Developer, Partacc. The City and Partacc defended and crossclaimed against their co-defendants. Examinations for Discovery have been completed.
[2] The City of Brampton moves for Summary Judgment, dismissing Partacc’s crossclaim against it. No one appeared on the record for the Plaintiff, although served. A student from the Plaintiff’s solicitor’s firm audited the motion.
ISSUES:
[3] This motion gives rise to the following issues:
Is this case amenable to summary judgment or is there an issue which requires a trial?
Where did the Plaintiff fall?
Is the City liable for the road on December 25, 2010 by virtue of section 44(1) and 31(4) of the Municipal Act?
Is the City liable for the sidewalk on December 25, 2010 because of contractual obligations, or other Municipal Act Sections?
DISPOSITION:
[4] Based on the record, I find that I can fairly and justly resolve this matter by Summary Judgment. There is no issue requiring a trial. The Plaintiff fell on the private driveway of 25 Tenant Drive. The City has no responsibility to clear ice and snow from the spot where the Plaintiff fell. Partacc’s crossclaim against the City of Brampton is dismissed. The parties may make submissions as to who pays costs and in what amount. These submissions are limited to three typed pages, not including bills of costs. These submissions are due not later than February 28, 2015.
FACTS:
[5] Partacc is a developer. On November 29, 2005, Partacc entered into a Subdivision Agreement with the City of Brampton whereby Partacc would develop a residential subdivision. Under section 17.5 of the Subdivision Agreement, the City and Partacc agreed that between the time the properties in the subdivision became occupied and the time that the Plan of Subdivision was finally accepted by the City, the City would provide and maintain “vehicular access”, including clearing snow from any road, once the base course of asphalt had been laid. The contract says that the City is Partacc’s agent and is not deemed by the contract to have accepted the streets or be an occupier thereof.
[6] The City cleared the roads of snow and ice on roads in the subdivision pursuant to its contractual obligation under the Subdivision Agreement.
[7] The Plaintiff fell on December 25, 2010 and sued on November 19, 2012.
[8] On January 7, 2012, the City passed a by-law formally assuming the roads within the Plan of Subdivision which included Tenant Drive. Until that time, the City had not specifically assumed jurisdiction over the roads within the subdivision.
[9] On October 25, 2013, on consent, the Plaintiff dismissed the action against the City. The City’s only exposure thereafter was to Partacc’s crossclaim.
ANALYSIS:
Issue 1: Is this case amenable to summary judgment or is there an issue which requires a trial?
[10] I find that there is no issue in this case that requires a trial. In my view, this is the appropriate case for summary judgment, and that summary judgment should issue.
[11] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial,” as in Rule 20.04(2)(a). The Court also considered when it is against the “interest of justice” for the new fact-finding powers in Rule 20.04(2.1) to be used on a summary judgment motion.
Rule 20.04 provides:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent
Drawing any reasonable inference from the evidence
(2.2) A judge may, for the purposes of exercising any of the powers set out in sub-rule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[12] When can summary judgment be granted? The Supreme Court of Canada stated, at para. 49:
[49] There will be no genuine issue requiring trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[13] The overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication.” The Court went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”
[14] Where the interests of justice require a hearing of some aspect of a case in order to provide a fair and just adjudication, the powers available under Rules 20.04(2.1) and (2.2) are available. They only become unavailable where it is in the interest of justice for such powers to be exercised only at trial. The Supreme Court noted: “The interests of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.”
[15] The motion judge must engage in a comparison between the advantages of proceeding by way of summary judgment and proceeding by way of trial. Such a comparison may include an examination of the relative cost and speed of each medium, as well as the evidence that is to be presented and the opportunity afforded by each medium to properly examine it. The court noted that, “when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so.” However, the inquiry must go further, and must also consider the consequences of the motion in the context of the litigation as a whole.
[16] In its approach to a motion for summary judgment, the Supreme Court stated that the following analysis should apply:
The judge should determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-findings powers. There will be no genuine issue requiring trial if the summary judgment process provides the trial judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
If there appears to be a genuine issue requiring a trial, the judge should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The motion judge may, at his discretion, use those powers unless it is against the interest of justice to do so. It will not be against the interest of justice if use of the powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[17] In Hryniak, the Supreme Court of Canada left undisturbed the pre-Hryniak law with respect to the ongoing obligations of a party responding to a summary judgment motion. The responding party must still put his/her best foot forward, presenting sworn evidence of specific facts showing that there is a genuine issue requiring a trial, or, to put it another way, that there is an issue that has a ‘real chance of success’ [see: Canadian Imperial Bank of Commerce v. Mitchell, 2010 ONSC 2227, [2010] O.J. No. 1502 (Ont. S.C.J.), Guarantee Co. of North America v. Gordon Capital (1993), 3 S.C.R. 423, and Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764]. Without detracting or deviating from Hryniak, the parties have the duty to place all available, relevant evidence before the court to consider on the motion. The court must determine whether the evidence before it, including any evidence that may be obtained through the additional powers under Rule 20.04, is sufficient to make the findings needed to arrive at a final determination of the issue. If yes then judgment can be made on the summary motion. If not then a trial or some procedure crafted under Rule 20.04 is required.
[18] In this case, the issue of the City’s liability is a legal one. There are no facts in dispute that touch on the City’s liability.
[19] The question of where the Plaintiff fell is a factual one. The only evidence on where the Plaintiff fell, however, is the Plaintiff’s. She does not remember whether she fell on the driveway or the municipal sidewalk. Based on Hryniak, I must ask myself whether I can make a fair and just determination of the issue on the evidence in the record or using the powers under Rule 20.4(2.1), or whether a full trial of the issue is required.
[20] I conclude that I can make a fair and just determination of the issue of where the Plaintiff fell, based on the record. While she does not remember where she fell, the Plaintiff gives enough evidence on the record to reach a conclusion on the issue of where she fell on the balance of probabilities. Further, there is no contradictory evidence offered to that of the Plaintiff.
Issue 2: Where did the Plaintiff fall?
[21] Partacc argues that I ought not to make any finding on the issue of where the Plaintiff fell as the Plaintiff was not present to make submissions. I disagree. The Plaintiff was served with all the motion material. She could have attended to make submissions, but elected not to. She could have asked for an adjournment so she could participate. She did not object to the motion’s going ahead. Her lawyer sent a student to audit the motion.
[22] The Plaintiff pleads that she fell on “the sidewalk”, which was covered in ice and snow [see Statement of Claim, paragraph 7]. This statement is ambiguous in that she does not plead that it was the municipal sidewalk or a sidewalk leading from the steps to 25 Tenant Drive, to the municipal sidewalk.
[23] Counsel for Partacc conducted a thorough Examination for Discovery of the Plaintiff. Based on the Plaintiff’s own evidence at her Examination for Discovery I find, on a balance of probabilities, that she fell while on the driveway of 25 Tenant Drive, and not on the municipal sidewalk.
[24] The Plaintiff said that she left the house from the rear door, and proceeded to the front along a snow-covered, paving slab walkway, toward the front of the house. The walkway turns in front of the house, passes in front of and abuts the front stairs, and ends at the driveway near the house.
[25] The driveway for 25 Tenant Drive runs perpendicular to the street between the garage at the front of the house to the sidewalk. Three photographs produced in the Supplementary Motion Record of the City (one of which was identified and marked as an Exhibit at Discovery) show that the driveway is wide enough to hold two cars. It is long enough hold two mid-sized sedans, touching bumpers, with the lead car touching the garage door at the house-side end of the municipal sidewalk.
[26] The Plaintiff admitted in her Examination for Discovery that at the time she fell, she had no clear memory of where she fell (page 61, question 338). She could not see where she was. Snow on the ground obscured the dividing line between the driveway and the municipal sidewalk (page 31, question 143). Hence, she could not tell whether she slipped on the driveway or the sidewalk.
[27] Examining counsel obtained the Plaintiff’s evidence regarding the location of the car and her proximity to it in order to determine where the Plaintiff fell. The Plaintiff testified that she intended to get into the front passenger seat of the car. The car was parked facing the garage door, close enough to the garage door that she could not walk between the front of the car and the garage (page 28, question 115). She had to walk around behind it.
[28] The Plaintiff confirmed that the car’s location on the date of loss is the same as the car located on the photograph which was produced at tab B to the Supplementary Motion Record (page 26, question 108). She admitted that she was walking around the rear corner of the car when she fell. She did not recall whether she had her hand on the rear of the car to steady herself, but said it was possible. In any event, she said that she was close enough to the car when she fell that she could have reached it with her hand (page 29, question 129-131).
[29] Based solely on the Plaintiff’s sworn evidence at her Examination for Discovery, I find on a balance of probabilities that she fell on the snow covered driveway. It is the only possible conclusion, once I accept the Plaintiff’s uncontradicted evidence about the location of the car, her proximity to it, and the length of the driveway.
[30] This finding, alone, is enough to support the order for Summary Judgment dismissing Partacc’s crossclaim against the City.
[31] Partacc argued (although not strongly) that the contract requiring the City to clear snow and ice from the roads imposed on the City a duty to clear driveways, too. The operative parts of the snow clearing provision of the Subdivision Agreement read:
“17.5 The Developer agrees that in the event that any dwelling units constructed within the Plain are occupied before the streets on the Plan have been fully accepted by the City, the City, through its servants, contractors or agents may provide and maintain proper vehicular access and the City shall be deemed to have acted as agent for the Developer and shall not be deemed in any way to have accepted the streets within the Plan upon which such work was done. … Subject to the conditions above, the City hereby agrees to provide snow removal on any road upon which the base course has been completed and where the occupancy of buildings so requires. To facilitate this operation, all catch basins and all other services and appurtenances, including manholes, must be installed flush with the base course, to be raised at this time of application of the final course of asphalt.”
[32] Partacc argues that a driveway provides “vehicular access” to people living in the Plan, and therefore, the City has a contractual obligation to maintain them free and clear of ice.
[33] I do not accept this argument. Partacc produced no authority for the provision. Second, section 17.5 provides that the City is the agent for Partacc. The latter is responsible for the acts of the former. Third, the overall context of section 17.5 is that the City is to clear snow and ice from roadways, not driveways or sidewalks. Finally, 25 Tenant Drive had been sold, and was occupied by its new owners at the time of the slip and fall. Section 17.5 did not exist for the benefit of the home owners in the subdivision.
Issue 3: Is the City liable for the road on December 25, 2010 by virtue of section 44(1) and 31(4) of the Municipal Act?
[34] Given my findings on where the slip and fall occurred, I do not need to address other arguments. Partacc, however, raised arguments that require addressing. Those questions assume that the Plaintiff fell on the municipal sidewalk. Notwithstanding my finding, above, I accept that possibility for the purposes of analysis.
[35] The City of Brampton’s “jurisdiction over a highway” and duty to keep it in reasonable repair, comes from s. 44(1) of the Municipal Act. With respect to sidewalks, s. 44(9) imposes liability for only gross negligence on the part of the City. Section 31(4) of the Municipal Act dictates when the duty in section 44(9) attaches to the City. It is only after the Municipality has, “…by by-law assume[d] the …highways for public use” that section 44 applies. “[S]ection 44 does not apply to the highways until the municipality has passed the by-law” with respect to “2. A road allowance, highway, street or land shown on a registered plan of subdivision.” Lest there be any confusion, section 31(2) says that a highway does not become a highway until a by-law establishes a piece of land as a highway. Activity on or with respect to the land by the municipality or anyone else, including the spending of public money, does not make the land a highway under the Act.
[36] The by-law by which the City assumed jurisdiction over the roads in the Subdivision Agreement was passed on January 5, 2012. As of December 25, 2010, the roads in the subdivision had not been assumed by the City. Therefore, the City’s jurisdiction over the roads and possibility of liability for the repair of roads in the subdivision, did not arise before January 5, 2012.
[37] There is no common law duty of care on a City to maintain sidewalks. That duty is statutory [see Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, para. 78 and 79]. The Municipal Act is a complete code with respect to the liability of the Municipality for care of highways in its jurisdiction [see Thornhill v. Shadid, 2008 3404 (Ont. S.C.J.) at para 26].
[38] Therefore, even if the Plaintiff fell on the sidewalk, the highways, of which the sidewalk were a part, had not been assumed by a by-law. By virtue of section 31(4), the City had no jurisdiction over, and no liability for the maintenance of the sidewalks.
Issue 4: Is the City liable for the maintenance of the sidewalk on December 25, 2010 because of contractual obligations, assumed jurisdiction or other by-laws or Municipal Act Sections?
[39] Assumed Jurisdiction: Partacc argues that by agreeing to plow the roads, by making the Developer subject to all by-laws, and by collecting property taxes, the City has assumed jurisdiction, implicitly, over the Subdivision. In its argument, Partacc relies on Scott v. City of North Bay, (1977 1977 1221 (ON CA), 18 O.R. (2d) 365 [ONCA], and Davies v. Clarington, 2006 10212 (O.N.S.C.), which both held that assumption of a road by a City may be inferred from work done by the City on a road, or other expenditure of public money in improving or maintaining the road or street.
[40] In my view, Scott and Davies have no application. Those cases are based on the Municipal Act before it was amended in 2001 to add section 31(4). Based on section 31(2) and (4), implied jurisdiction is no longer available. The City can only assume jurisdiction over (and hence liability for) a road only by a by-law that specifically identifies “A road allowance, highway, street or lane shown on a registered plan of subdivision.”
[41] Liability by Contract and Nuisance: Partacc says that the City is liable in nuisance. Since the only basis on which liability may be founded, given my findings above, is in contract, I must determine whether the contract applies. Partacc says that because of its contract with the City, independent of the argument that by contract, the City assumed jurisdiction, the City is liable.
[42] The contract argument must fail, for several reasons. First, Partacc’s crossclaim does not mention a cause of action based in contract, nor is one implied. Partacc says that the references to the City’s “contractors” in the Partacc’s crossclaim implies a contractual cause of action. The reference, however, speaks to the actions of contractors retained by the City to do its work in clearing the snow under section 17.5 of the Subdivision Agreement, not the contract with Partacc for the City to clear snow in section 17.5. Further, the allegations in the crossclaim are for contribution and indemnity, only. This, by its nature, excludes a claim in contract. The claim in contract is statute barred.
[43] Even if a claim in contract was pleaded, the claim must fail. The contract requires the City to maintain roads for “vehicular” traffic. There is no issue that the word “highway” includes all things on the road allowance, including sidewalks. Section 17.5 refers to clearing snow from the “road”. “Road” is not defined in the Subdivision Agreement. The definition of “road” at common law does not include a sidewalk [see Anderson v. City of Hamilton, 2009 56739 (Ont. S.C.J.), paragraph 22]. In the Subdivision Agreement, “works” was defined, and includes sidewalks [see Affidavit, page 3, paragraph 10, Supplementary Motion Record]. In section 17.5, there is no obligation to maintain the road or sidewalk fit for pedestrian traffic. In any event, Partacc led neither evidence as to the standard of care the City ought to have met in maintaining the sidewalk nor any facts as to whether it failed to meet that standard. No evidence is led with respect to the nature of the nuisance. Partacc has not put its best foot forward in respect of these two arguments.
[44] Finally, the effect of section 31(2) is that the contractual obligations under section 17.5 of the Subdivision Agreement do not make the road a “highway” within the meaning of the Municipal Act for which the City might be liable, irrespective of section 31(4).
[45] Did other By-Laws Meet the Requirement of section 31(4)? Partacc argues that other sections of the Municipal Act and by-laws met the requirements of section 31(4) of the Municipal Act. While these arguments were advanced as part of the argument that the City had assumed jurisdiction, they also stand alone. No authority (aside from a by-law or section of the Municipal Act, was cited for any of these arguments. Each is incorrect. Partacc says:
The City passed by-law 144-2006 which pre-dates the Plaintiff’s fall, and specifically applied to the lots and part lots within the Subdivision Agreement. This, too is incorrect. Section 11 of the Municipal Act allows the City to pass. First, section 31(4) contemplates that before any of section 44 can apply, the City must enact a by-law which specifically assumes the streets and roads within a subdivision. By-law 144-2006 does not specifically assume the roads and streets for the purposes of section 44. Second, by-law 144-2006’s limited purpose, on its face, is to suspend the application of section 50 of the Planning Act, which bars subdivision of a property by an owner. Section 50 would have prevented Partacc from selling individual homes as they were completed. Without by-law 144-2006, the Subdivision Agreement would be frustrated.
The City passed by-law 242-76 pursuant to its power under section 11 of the Municipal Act, by which it asserted jurisdiction over the roads and sidewalks within the Subdivision Agreement. This, too is incorrect. Section 11 of the Municipal Act allows the City to pass by-laws affecting the health, safety and well-being of its citizens. The by-law does not assume jurisdiction. It imposes on the occupant of land adjacent to the sidewalk, the duty to clear it of snow and ice. If the occupant fails to do so, the City “may” arrange to have it cleared and the cost of doing so added to the occupier’s tax bill. In other words, it expands the City’s “sphere of jurisdiction” to include the right to clear sidewalks at the abutting occupier’s expense. Partacc says that whether the City elects to clear the snow is an operational decision and a triable issue. It is not. The by-law is permissive, not mandatory. In any event, the by-law does not assume jurisdiction with the specificity claimed by section 31(4).
Section 46 of the Municipal Act says that sections 44(4) to (15) apply to a claim brought in nuisance. Therefore, section 44(9) of the Municipal Act (which sets the standard of care as gross negligence) still applies as to claims in nuisance, regardless of there being no road assuming by-law under section 31(4). This argument puts the cart before the horse. The by-law contemplated by section 31(4) assuming jurisdiction over a road must be passed before any part of section 44 can operate in respect of imposing liability on the Municipality. The fact that section 31(4) does not mention section 46 is of no moment. Section 31(4) says that until the City has assumed the roads pursuant to a by –law, the whole of section 44 does not apply. The City has no liability for the highway’s state of repair or maintenance. In my view, section 46 extends the application of sections 44(8) to (15) to cases founded in nuisance, because section 44, does not address actions brought in nuisance, a separate and distinct cause of action at common law. But for section 46, the procedural requirements in section 44(8) to (15) might not apply to causes of action founded in nuisance.
[46] For all of these reasons, Partacc’s Crossclaim against the City of Brampton must be dismissed.
COSTS:
[47] The City is presumed entitled to its costs. The parties may make written submissions as to who should pay costs to whom, and in what amount. Submissions will not exceed three pages, excluding bills of costs and offers to settle. These must be submitted to me in Milton not later than February 28.
Trimble J.
Released: February 9, 2015
CITATION: Morand v.Corp. of the City of Brampton, 2015 ONSC 877
COURT FILE NO.: CV-12-4673-00
DATE: 20150215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATIE MORAND
Plaintiff
– and –
CORPORATION OF THE CITY OF BRAMPTON and DANIEL KHOURY and GRECE SABA and PARTACC DEVELOPMENTS INC.
Defendants
REASONS FOR JUDGMENT
Trimble J.
Released: February 9, 2015
CITATION: Morand v.Corp. of the City of Brampton, 2015 ONSC 877
COURT FILE NO.: CV-12-4673-00
DATE: 20150212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATIE MORAND
Plaintiff
– and –
CORPORATION OF THE CITY OF BRAMPTON and DANIEL KHOURY and GRECE SABA and PARTACC DEVELOPMENTS INC.
Defendants
Charles Painter, for the City of Brampton, Applicant, Defendant and Defendant to Crossclaim by Partacc
Joshua Henderson, for the Partacc Developments Inc., Respondent, Defendant, Plaintiff by Crossclaim
HEARD: January 28, 2015
erratum
TRIMBLE J.
[48] Correspondence was received from counsel for the parties indicating that the following corrections should be made to my Judgment dated February 9, 2015. Accordingly, the following three corrections should be made:
The last sentence of paragraph 1 (page 1), which reads: “There is no evidence whether the owners or occupiers of 25 Tenant Drive were served or defended the action.” should be deleted altogether.
The first line of paragraph 23 (page 6), should read: “Counsel for Partacc conducted a thorough Examination for Discovery of the Plaintiff.”
The second line of subparagraph 2 to paragraph 45 (page 11) should read: “Agreement. This, too is incorrect. Section 11 of the Municipal Act allows the City to pass”.
Trimble J.
Released: February 12, 2015
CITATION: Morand v.Corp. of the City of Brampton, 2015 ONSC 877
COURT FILE NO.: CV-12-4673-00
DATE: 20150212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KATIE MORAND
Plaintiff
– and –
CORPORATION OF THE CITY OF BRAMPTON and DANIEL KHOURY and GRECE SABA and PARTACC DEVELOPMENTS INC.
Defendants
ERRATUM
Trimble J.
Released: February 12, 2015