Court File and Parties

COURT FILE NO.: CV-10-414965 DATE: 20160901 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Michelle Choma, Plaintiff AND: City of Toronto, 961488 Ontario Limited o/a Sanan Construction and Michael Crupi

BEFORE: S. F. Dunphy J.

COUNSEL: J. Ablaza, for the Moving Party Defendant City of Toronto B. Rumble and A. Goldberg for the Responding Party Plaintiff

HEARD: August 30, 2016

Endorsement

1This is a motion for judgment arising from a slip and fall accident that occurred on March 12, 2010. There is no dispute that the premises where the accident occurred (a grass “island” in an outdoor parking lot) was on land owned by the City of Toronto but leased to Humber College by the City on a long term lease since 2004.

2The City brings this motion alleging that the plaintiff has failed to demonstrate that the City created the alleged hazard that resulted in the accident and that, as landlord under a lease that transfers maintenance and the remedying of hazards to the tenant, the City is not an “occupier” under the Occupiers' Liability Act, R.S.O. 1990, c. O.2.

3The plaintiff amended the Statement of Claim to add the defendants 961488 Ontario Limited and Mr. Crupi after this motion was filed and such added defendants took no part in the motion.

4For the reasons that follow, I am granting the motion for summary judgment and dismissing the action. The plaintiff has failed to demonstrate that the alleged hazard – four long, up-turned bolts embedded in a concrete pad that formed the base of a light standard – was created while the City had control over the premises (prior to 2004). Further, the City is not an “occupier” under the Occupiers' Liability Act since it has no responsibility as landlord under its lease for controlling access to the premises or maintenance. Even if the City had created the alleged hazard (and I have found it did not), the risk of a pedestrian being injured by the hazard six years after the lease was entered into and possession transferred was not reasonably foreseeable given the obvious nature of the hazard (in daylight at least) to maintenance crews and given a lease that required the tenant to remedy any such hazards.

Factual Background

5There are no material facts in dispute save the origin of the alleged hazard, a fact about which neither side has much evidence at all.

6The accident in question occurred on March 12, 2010 on a grass boulevard or island in a parking lot at Humber College. The island separates the parking area from a driveway or drop-off area in front of a building. The plaintiff, an employee of Humber College at the time, tripped over a bolt protruding from the ground while crossing the island. Her evidence is that the accident occurred at night, in the rain and after dark and she was attempting to protect herself from the rain by holding her purse over her head when she tripped over one of the bolts.

7The evidence establishes that the bolt in question was the base of a light standard. It cannot be said whether it was the base of a light standard that had been removed at some point or the roughed-in base for a planned light standard that was never in fact installed. A photograph of the alleged hazard shows four solid, thick bolts protruding upwards several inches from a concrete base. In the middle two plastic conduits protrude (the longer of the two appearing to be approximately 1.5’ in height) of the sort that may once have contained (or been intended to contain) an electric cable to supply power.

8The photograph was taken some time after the accident. A letter from Humber College dated May 14, 2015 indicates that Humber College maintenance staff ground down the bolts thereby removing the alleged hazard after the accident was reported to them.

9The area where the accident occurred is the subject of a lease between the City and Humber College dated March 18, 1997 as amended on December 1, 2004 (which amendment added the subject land to the prior lease). The lease provided for rent of $1.00 per year for 99 years “net to the Landlord free and clear of any expenses in connection with the care, maintenance, and repair of or to” the land.

10Section 3.02 of the Lease provides as follows:

3.02 Subject to section 5.01, the Tenant shall throughout the Term repair, keep in repair and maintain at all times the Demised Lands, both inside and outside, so that the Demised Lands shall not constitute a hazard”.

11Section 5.01 (referenced in Section 3.02) provides for an indemnity in favour of the City from Humber College in respect of all claims arising during the term of the Lease from any injury to persons.

12Section 3.06 of the Lease provides:

3.06 The Tenant shall not construct, build, erect or install any improvements, fixtures, or other installations on the Demised Lands without the approval of the Landlord, except as may be required in order to comply with the Tenant’s obligation to repair.

13Approximately six months prior to entering into the amended lease in December 2004, a contractor working for the City completed the paving of the parking lot where the accident occurred. The call for tenders in respect of the project to build the parking lot sought no electrical qualifications nor did it require any electrical work. The project as described was limited to excavating, paving and installing curbs.

14The City claims no knowledge of how the light standard base came to be where it was on March 12, 2010. The affidavit of Mr. David Chapman establishes that the land had formerly been part of Colonel Samuel Smith Park, a park that falls under his jurisdiction. His affidavit claims the City was not involved in the installation of the alleged hazard. While establishing a negative fact is of course a difficult matter at the best of times, Mr. Chapman had no knowledge of how the light standard base came to be located there, although his own tenure dated only to 2010. His predecessor Mr. Jorge Ture (in place 2007-2010) similarly had no information and was similarly of the view that the City was not involved in the installation of the alleged hazard. Unfortunately, Mr. Bill Reid, who occupied Mr. Chapman’s position prior to 2007, is now deceased and his evidence is therefore unavailable.

15Although in Mr. Chapman’s experience the accident location would have been inspected regularly by City parks staff, there is no record of those inspections from prior to 2004. However, the parking lot at the location of the accident was only created in 2004 and inspections prior to that time would thus have preceded the accident and been looking for matters consistent with the then-use of the property.

16The tender documents for the contract to construct and pave the parking lot contain no mention of anything resembling the alleged hazard. A search of Parks Department records shows no record confirming the City was involved in the installation of the light standard (or base). Similar searches in the Real Estate Services division or Capital Projects division were also fruitless. No records of any requests from Humber College for permission to perform improvements to the area were located either. In Mr. Chapman’s evidence, no other City departments would be likely to have relevant records.

17There is no first-hand information from Humber College before me on this motion. The plaintiff has filed an affidavit attaching a letter from Humber College addressed to her lawyer dated May 14, 2015 stating that “Humber College has no record of, or information about any work done by the College or by any contractor to the light standard that you have inquired about”. The same letter noted that maintenance staff had ground down the bolts at the base of the light standard after the incident.

18The plaintiff’s affidavit also confirms that the contractors who excavated and paved the parking lot for the City in 2004 (who have now been added as defendants) have no documentation relevant to the claim either. The contractor completed its work under the paving contract in early June 2004 (prior to the hand-over to Humber College).

Issues to be decided

19Is a trial required to determine who created the alleged hazard resulting in the accident?

20If not, has the plaintiff discharged its onus of establishing that the City created the alleged hazard?

21If the City created the alleged hazard, can the City be considered an “occupier” in respect of an accident that occurred in 2010 when it transferred control of the land in 2004?

22Is a trial required to consider whether they City had a common law duty of care in relation to an alleged hazard created more than six years prior to the accident?

23If not, did the City owe a duty of care?

Analysis and discussion

(a) Is a trial required to determine who created the alleged hazard resulting in the accident?

24The question to be determined is whether the interests of justice require a trial to determine the question of how and when the alleged hazard was created or whether I can fairly answer the question from the evidence before me. In deciding whether the question of who installed the light standard base (or uncovered it) raises a triable issue, Rule 20.04(2.1) of the Rules of Civil Procedure grants me jurisdiction to weigh the evidence and make inferences from it “unless it is in the interest of justice for such powers to be exercised only at a trial”.

25In my view, a trial judge would find him or herself in substantially the same position as I now occupy in attempting to weigh the question of whether the City bears responsibility for the creation of the alleged hazard.

26I am entitled on a motion such as the present one to assume that the parties have placed before me in some form all of the evidence upon which they intend to rely at trial. They were both obliged to place their “best foot forward” and it is no answer to this motion to say that further inquiry might potentially turn up new evidence. To this latter point, the time since the accident (six years and counting), the age of the motion (almost three years since it was originally filed), the years since the City’s last direct involvement with the land (almost twelve years since the Amended Lease was entered into) and the time since the Paving Contractor was added to the action (more than one year) gives me great comfort that there has been more than enough opportunity for either party to look for further probative evidence to resolve the enigma of how the uncovered light standard base came to be found on the grass-covered island between two portions of the Humber College parking lot on that dark night in March 2010.

27The bolts in question have now been ground down and the hazard removed. They have not been preserved for inspection nor did any party seek to undertake such an inspection (beyond taking photos) before Humber College prudently resolved the hazard. Neither the City nor Humber College have indicated that they have any relevant records. The newly-added Paving Contractor similarly has none. There are no material credibility issues raised by the evidence before me.

28I conclude that the interest of justice does not require a trial in order to determine whether the City placed the alleged hazard in place. The record before me is not likely to be materially improved by a trial and I am therefore of the view that I may fairly determine the question based on the record I have and armed with the presumptions of its completeness that I have stated. Where, as here, there are no material credibility issues, the evidence is largely undisputed (even if its weight and the inferences to be drawn from it are not) and there are definable issues that would be dispositive of the case, summary judgment is a particularly efficient means of proceeding.

(b) If not, has the plaintiff discharged its onus of establishing that the City created the alleged hazard?

29In my view, the plaintiff has failed to establish that the alleged hazard was in place at the time the City handed over control of the area pursuant to its Amended Lease with Humber College on December 1, 2004.

30There are a number of ways in which the light standard base may have become a hazard on the night of March 12, 2010. The standard may have been roughed in as part of the creation of the parking lot in 2004. It may have been the base of a light standard that stood there from an earlier time and was removed without removing the base at that time. In either scenario (the installation of a roughed-in base for a planned standard or the removal of an existing one), the base and protruding bolts may have been left uncovered the entire time or it may have been covered in some fashion and then uncovered some time before the accident.

31When I refer to the “creation of the alleged hazard” in these reasons, I am referring to the creation of the situation whereby the base became a hazard. Had it, for example, been securely covered in some fashion for a number of years with the cover being removed through some incident or another, the physical object would have acquired the status of potential hazard only when the covering that had previously rendered it safe was removed.

32The problem with the evidence in this case is not its credibility but its paucity. There is simply no evidence of how the base came to be where it was on March 12, 2010. Where solid evidence is lacking, however, reasonable inferences can be drawn.

33The City does not bear the burden of establishing when or by what means the hazard came into being. I am satisfied that the City has diligently searched for records in all the places where such records ought, in the usual and ordinary course of the City’s business, have been kept. There is no evidence of such a record.

34The failure to locate any such records despite a diligent search suggests that I may consider inferring that the City was not involved in the creation of the alleged hazard (whether by installation of the light standard or removal of whatever once covered it). Whether I ought to do so requires a weighing of the surrounding circumstances.

35The inference becomes more compelling where, as here, the City yielded possession and responsibility for maintenance of the area and specifically the obligation to secure hazards under a 99 year lease and did so six years prior to the incident. The alleged hazard in this case was perfectly plain and obvious. Lawn mowers would have had to detour around it. The plastic cable conduits emerging from it acted almost as flag poles alerting any maintenance crews to its anomalous existence (whether they would or should have been seen by a pedestrian taking a short-cut in the rain at night with her purse covering her head is a matter about which I have no reliable evidence and am not required to make any conclusions).

36It is simply inconceivable that the alleged hazard in this case would not have been remarked upon by Humber College maintenance staff over a six year time period if it was already in existence in 2004 when possession was transferred under the Amended Lease. Far from creating doubt as to the timing of the creation of the hazard, the lack of records of Humber College tends to support the thesis that the hazard was indeed of very recent date in March 2010. If the alleged hazard came into being in early 2010 (whether by being installed or a cover being removed through, for example, winter ploughing) much would also be explained, including the lack of records of the alleged hazard on the part of Humber College (since such a recently-created hazard might not yet have come to the attention of Humber College maintenance crews in late winter). It would also explain the un-weathered, pristine condition of the bolts.

37Further evidence in support of inferring the non-existence of the alleged hazard during the City’s period of stewardship is to be found in the tender documents for the paving contract that make no mention of a requirement to install, remove or rough-in an installation for a light standard. There is no mention of a requirement for an electrician. The Contractor (now defendant) has confirmed that it has no relevant records either. All of this suggests that the alleged hazard is not a vestige of work performed in 2004.

38In favour of finding that the City was responsible for the creation of the hazard in some fashion, the principal evidence offered by the plaintiff consists of a single short letter sent by Humber College to the plaintiff’s lawyer and appended as an exhibit to the plaintiff’s affidavit in response to the motion. While Humber College denies having created the hazard, the unsworn letter of a Humber College employee contains none of the level of detail offered by the City as to the extent and reliability of the due diligence performed. Further, as I have said, the very fact that Humber College maintenance crews have no record of such an obvious potential hazard is strongly suggestive of the hazardous condition being of quite recent vintage in 2010. It certainly does not establish as a fact that the hazardous condition existed at the time the City relinquished control over the area.

39In my view, the plaintiff has failed to demonstrate on a balance of probabilities that the City was involved in the creation of the alleged hazard either by having installed the light standard in question or for having removed it (or its cover). I find that it is more probable than not that the base was either roughed in at some point after 2004 or that a light standard or cover that once sat on the base and protected it was removed by some means after 2004. I need not find how placed the alleged hazard came to be there in March 2010, I need only determine that the evidence does not support the conclusion that the City was involved.

40Unless the plaintiff can establish that the City was an “occupier” in March 2010 under the Occupiers' Liability Act with a positive duty to keep the area free of hazards at that time, this finding is dispositive of the claim.

(c) If the City created the alleged hazard, can the City be considered an “occupier” in respect of an accident that occurred in 2010 when it transferred control of the land in 2004?

41In my view, the City was not an “occupier” of the subject land on March 12, 2010. Section 3 of the Occupiers' Liability Act imposes the responsibility to maintain premises reasonably free of hazards upon the “occupier”, a term defined in section 1 as follows:

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises;”

42As landlord, City clearly did not satisfy part (a) of the definition in 2010. The terms of the Lease also establish that the City did not have responsibility for and control over the condition of the premises or control over persons authorized to enter so as to satisfy part (b) of the test either. Humber College is responsible for maintenance and removal of hazards (Lease s. 3.02). That responsibility belonged to Humber College on March 12, 2010 even if the City originally created the hazard prior to the Lease coming into effect. The City satisfies neither branch of the definition.

43The fact that the City’s consent is required for new constructions, fixtures or improvements does not grant the City control over the condition of the premises. There is no evidence that the City was asked by Humber College to approve anything in relation to the light standard. Indeed, Humber College considered itself at liberty to remove the hazard by grinding down the bolts without seeking the City’s permission (permission that, in my view, was not required in any event).

44The plaintiff points to the case of Davis v. Grand to argue that the City’s liability as an occupier might continue after entering into the Lease in 2004 if it had created the alleged hazard in the first place. I disagree.

45Firstly, I have found that the plaintiff has not proved the fact of the City’s involvement in the creation of the alleged hazard. The absence of that foundation fact undermines this theory of the plaintiff’s case.

46Secondly, even if I had found otherwise on the facts, the duties upon the City under the Occupiers' Liability Act and the duties considered by the Court of Appeal under the Municipal Act, R.S.O. 1990, s. M.45 in Davis v. Grand are quite distinguishable.

47The duty of care under consideration in Davis v. Grand was a positive duty to keep the highway in a reasonable state of repair. That duty existed at the time ownership of the highway was transferred. Furthermore, the accident in Davis occurred shortly after the transfer and before the (involuntary) transferee had an opportunity to discover the issue. In the present case, the duty upon the City under the Occupiers' Liability Act (assuming the hazard existed in 2004) did not necessarily extend to repairing and thereby removing the hazard. The duty under s. 3 of the Occupiers' Liability Act was to “to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises”. That duty is not worded as a continuing duty after the person has ceased to have control of the premises nor is it one that could only be discharged by removing the hazard. It therefore cannot be said that the City was in continuing breach of a statutory duty at the time it ceased to be an “occupier” in 2004 upon the Amended Lease coming into effect.

(d) Is a trial required to consider whether they City had a common law duty of care in relation to a hazard created six years prior to the accident?

48I cannot find that the interests of justice would require me to wait until a trial can be held in order to make a finding as to whether the claimed duty of care in negligence exists. There are no material disputed facts relevant to the question on the record before me save as regards the origin of the hazard and I have already dealt with why no trial is needed to rule on that matter. If the City was not involved in the creation of the hazard, there is no basis to impose a duty of care. Even if the City had been involved in the creation of the alleged hazard, there is nothing in the record to suggest that a trial would be required to decide whether a duty of care was owed to possible users of the land six years later.

(e) If not, did the City owe a duty of care?

49The plaintiff suggests that even if the City is found not subject to the duty in s. 3 of the Occupiers' Liability Act by reason of not being an “occupier”, it might nevertheless be found liable under the common law tort of negligence.

50The plaintiff argues that s. 2 of the Occupiers' Liability Act replaces the rules under the common law applying to the liability of “occupiers”. If the City is correct that it is not an “occupier”, then s. 2 of the Occupiers' Liability Act does not apply to it. Further, the plaintiff relies on the case of Hebditch v. Birnie Estate, 2013 ONSC 6458 where the learned judge cited a passage from Janet E. Smith in “Cause of Action: Occupier’s Liability”, (Toronto, Carswell, 2011) to the effect that a defendant found not to be an occupier may still attract liability based on common law negligence principles.

51In my view, it is not necessary for me to determine whether the City might owe a duty of care to the plaintiff if found not to be an occupier within the meaning of the Occupiers' Liability Act. Varpio J.’s pre-Hryniak decision in Hebditch made no such finding, finding only that the question raised a triable issue.

52Three factors are determinative of the lack of a subsisting duty of care owed to the plaintiff by the City in respect of the alleged hazard in 2010. These are: (i) the passage of time following the City surrendering possession and maintenance responsibility for the property in 2004, (ii) Humber College’s explicit duty thereafter to maintain the land and remedy any hazards to persons that might arise thereafter; and (iii) the plain and obvious nature of the alleged hazard to any grounds crew or maintenance people who would be expected to have remarked upon it between 2004 and 2010 if it had existed in 2004 (a fact that the plaintiff has failed to prove).

53In my view, the City did not owe a duty of care to the plaintiff in respect of the alleged hazard in March 2010.

Disposition

54For the foregoing reasons I am allowing the motion and dismissing this action as against the City with costs. As previously noted, the other defendants were added after this motion was commenced and have not taken part in it.

55If the parties are unable to agree on the matter of costs, I shall receive submissions in writing (not to exceed five pages excluding outlines of costs). Cases may be cited but need not be attached unless not available on-line. The City shall deliver its Outline and written submissions within thirty days of the date of release of these reasons. The plaintiff shall have fifteen days to respond. Reply from the City, only if necessary, shall not exceed two pages. I would ask the City to collect the submissions of both sides and deliver same to me in electronic format via my assistant or by way of hard copy or fax to Judge’s Administration at Room 107, 361 University Avenue. If the parties concur in extending the timetable to enable discussions, they may do so but should advise me in writing (jointly) by the same route.

S.F. Dunphy J.