Ruling on Motion

Neutral Citation No.: 2018 ONSC 199 Court File No.: CV-14-975 Ontario Superior Court of Justice

Between: Sean Nicholson, Plaintiff and Town of Penetanguishene, Defendant

Before: The Honourable Mr. Justice McCarthy Heard: Wednesday, December 13, 2017 at 75 Mulcaster Street, Barrie, Ontario

Appearances: Counsel for the Plaintiff: Mr. R. Laing Counsel for the Defendant: Mr. A. Painter

MCCARTHY J: (Orally)

Nicholson v. Penetang. The present action is a claim for damages arising out of an incident which took place on December the 19th, 2012 at the intersection of Moreau Court and Thompson Road in the Town of Penetanguishene. The plaintiff claims to have sustained bodily injuries when he leaned up against a pole, causing the street name sign affixed to the pole to become dislodged and to topple down on his head and neck.

There are three motions before me, all opposed. The plaintiff moves for leave to amend the Statement of Claim. The defendant moves for summary judgment and for an order dismissing the plaintiff's claim, and the plaintiff moves by cross-motion for summary judgment in respect of liability.

I am prepared to grant the plaintiff's leave to amend the Statement of Claim to advance a claim for damages for public nuisance. Rule 26.01 directs the court to grant leave to amend a pleading on terms, unless prejudice would result that could not be compensated for by costs or an adjournment.

I was not directed to any authority which calls for a court to scrutinize the proposed amendment for viability or chance of success, nor can I find any prejudice which the defendant would suffer if leave were granted.

The material facts have not changed. The notion that the damages alleged to have occurred as a result of the incident might have been caused by the presence of a nuisance is not unimaginable on the facts as pleaded.

Nuisance can reasonably be seen to be a cause of action, which if not specifically pleaded, might logically flow from the unchanged facts. The defendant will not be prejudiced since it has conducted its investigation of the incident in exactly the same way had nuisance been originally pleaded or not.

We are a good distance from trial. The defendant can seek further discoveries. The defendant can conduct legal research. The defendant can plead the limitation period in a responding defence. It can still move for particulars, move to strike the pleading, or move for summary judgment on the issue. I would therefore allow that part of the plaintiff's motion and grant leave to amend the statement of claim as proposed in the notice of motion on the following terms:

a) The plaintiff shall serve and file its amended Statement of Claim within 30 days of this order.

b) The defendant shall have 20 days from the service of the amended Statement of Claim to serve and file its Statement of Defence.

c) The defendant is entitled to plead and rely upon all defences, including limitation defence.

d) The defendant shall be entitled to demand particulars, move to strike the pleading, and to move for summary judgment in respect of the new amended pleading.

I am not prepared to grant summary judgment to either the defendant or the plaintiff. To begin, I do find that the incident in question took place on the untraveled portion of a municipal highway, sufficient to bring it within the purview of the Municipal Act, and in particular, s. 44 of that Act. I am satisfied that the street sign in question was located on a municipal road allowance sufficient to invoke the duty of repair requirement as set out in subparagraph one of the section. Indeed, it is the alleged negligence of the defendant in maintaining, inspecting, and repairing the sign which undergirds the plaintiff's claim for damages. That being the case, the notice provisions in s. 44(10) do apply. Having said that, I am not prepared to grant summary judgment in favour of the defendant for the plaintiff's noncompliance with notice requirements set out in that subsection.

The defendant concedes that it has not been prejudiced by the insufficiency of notice. That leaves only the first part of the conjunctive exception test for the court to consider; namely, whether there is a reasonable excuse for the want or insufficiency of the notice.

Clearly, there was notice given via an e-mail to the Town by the plaintiff on December the 24th 2012. However, the e-mail does not comply with the strict requirements of the notice provision in subsection (10). This requires written notice of the claim and of the injury complained of, including the date, time, and location of the occurrence to be served upon or sent by registered mail to the clerk of the municipality. There was insufficiency in the notice given by the plaintiff. However, I find that there is a reasonable excuse for that insufficiency for the following reasons:

1. The e-mail of December 24th, 2012 did constitute notice in writing sent within the statutory ten-day notice period;

2. Following the e-mail, the Town contacted the plaintiff by telephone on December 26th or 27th, 2012;

3. A claims adjuster from the Town came by the plaintiff's residence which was quite proximate to the accident location on December the 28th 2012;

4. At that time, the plaintiff gave and signed a complete statement and handed over the evidence from the scene;

5. The claims adjuster provided the plaintiff with a claim number;

6. The claims adjuster never requested a strictly compliant notice letter;

7. To the extent that the notice letter was deficient, the statement provided all of the requisite information that the Town sought and needed to conduct its investigation;

8. In all of the circumstances, it would have been redundant for a legal representative to provide a notice letter after the ten-day notice period since the claim was already constituted.

The excuse for the insufficiency of the formal notice was therefore objectively and subjectively reasonable as of December 28, 2012. The plaintiff believed that the Town had a thorough understanding of the elements to the claim sufficient to fully investigate it. This was objectively reasonable as well. As of December the 28th, 2012, there was nothing the Town would have understood or learned from a letter that strictly complied with the notice provision that it did not already know.

I am not prepared to grant summary judgment in favour of the defendants because of the purported bar represented by s. 44(8) of the Municipal Act. Subparagraph (b) of that subsection under the subtitle "Untraveled Portions of the Highway" states that:

"No action shall be brought against a municipality for damages caused by any construction, obstruction, or erection, or any siting or arrangement of any earth, rock, tree, or other material or object adjacent to or on any untraveled portion of a highway whether or not an obstruction is created due to the construction siting or arrangement."

While at first blush the wording in that subsection would appear to be wide enough to bar a claim of the kind in the case at bar (a street sign collapsing or falling on a pedestrian), I would adopt and rely upon the conclusions reached by MacPherson JA in Ouellette v. Hearst (Town) [2004] Carswell, Ontario, 1064 (Ont.C.A.) para 20.

In analyzing the predecessor subsection to the present s. 44(8) of the Municipal Act MacPherson JA reasoned as follows:

"The purpose and language of s. 284(3) is to protect municipalities from actions where drivers leave the highway and strike an object erected or constructed by the municipality adjacent to the highway. In the present case, s. 284(3) would have precluded Ouellette's action if he had driven off the highway and struck the utility pole where it has been placed. That is not what happened. Ouellette was injured when the pole struck his van while he was driving on the highway.

In short, section 284(3) seeks to protect municipalities from actions by drivers who go where they are not expected to go (off the highway); it does not protect them from injuries to persons in vehicles on the highway."

Applying that interpretation and that logic to the present case, it can hardly be said that s. 44(8) was designed or intended to protect a municipality from actions by non-motorists or passengers of vehicles (i.e. pedestrians) from negligent non-repair of signage on the untraveled portion of the highway. If that were the case, a person walking their dog across the untraveled portion of a municipal roadway (for example, the boulevard between the traveled portion of the highway and a sidewalk) would be barred from bringing an action against a municipality if a street sign or a light standard had collapsed or fell on the individual's head. Yet, that same individual would be able to maintain an action if they happened to have one foot on the traveled portion of the roadway or on a sidewalk at the time that the same sign or light standard struck that person. This would create an absurdity. It would also mean that the municipality would have no duty of care to maintain or repair signage off of the traveled portion of the highway. This simply cannot be the case.

Indeed, the Town, in the case at bar, does conduct drive-by inspections of signage as part of its policy and operational functions, and it puts forth that evidence in support of its position here today that there is no genuine issue for trial on the breach of the standard of care.

I am unable to find that s. 44(8) of the Municipal Act acts as a bar to a pedestrian making a claim for municipal negligence in respect of signage on the untraveled portion of a highway. I can give no weight to the assertion made by Keith Kelly for the Town that this area of signage is not a place where pedestrians are intended by the Town to go walking because it is a grassy area. Not only is that assertion not supported by any documentation from the Town (such a bylaw), but it would not accord with the common everyday experience of most townspeople who routinely walk along and across boulevards and other grassy areas owned and maintained by the Town in residential areas.

I am, therefore, not prepared to grant summary judgment to the defendant on the basis that the claim is barred under s. 44(8) of the Municipal Act.

I cannot agree with either party's assertion that there is no genuine issue for trial in respect of liability. The very wording of s. 44(1) of the Municipal Act leaves no doubt that what constitutes reasonable state of repair of the signage will depend on the circumstances, including the character and location of the highway. A trial judge will be called upon to make findings in respect of standard of care, foreseeability, and causation. That is simply not possible on the evidentiary record before me.

I heard no evidence of what similarly sized or situated municipalities use to erect, maintain, inspect, or repair signage. The character and location of the signage will be important to consider. In order to assess standard of care, a trial judge may wish to consider whether the character and location of the particular sign warranted a higher or lower level of care or attention than for example speed advisory signs, stop signs, or other traffic signs.

The expert opinion of the defendant engineer would be subject to scrutiny and weighing by the court. The court may or may not choose to draw an inference about what caused the sign to fall and to become dislodged from its post-top mounting bracket. Was it maintenance, age, wind, the elements, neglect, vandalism, an external upward force (and if the latter, who applied that force, when, and how?) Should it have been obvious that such force had been applied or would be applied in that particular location such that a different kind of inspection and maintenance was called for? Was the dislodged sign the result of a combination of factors? If so, were these factors reasonably foreseeable? Was the damage to the sign reasonably preventable by inexpensive and/or routine corrective measures? Or was there some intervening force in play? Was there something particular about the location in question which made the pole and sign more vulnerable to exposure to the elements, damage by vandalism, or snow plowing activities?

The entire dichotomy of whether the inspection routine of the Town stems from an operational or policy decision will need to be considered by the court. A finding that the Town inspection routine was a true policy decision might serve to insulate the defendant from any finding of negligence. This is a question of mixed law and fact that is best left to be decided by a trial judge on a fulsome evidentiary record.

In my view, the engineer, Sam Codsi, has it right when he suggests that,

"It is expected that if there was an apparent issue with the street sign for Thompsons Road and Moreau Court that it would have been identified and rectified during and as a result of the regular stop sign inspections."

If that were the case, then it would be open to a trial judge to find that the state of disrepair of the sign was such that it should have been observed by a reasonably attentive person even during a passing inspection of the signs.

There is also the issue of contributory negligence which, in my view, cannot be properly dismissed or assessed on the present evidentiary record.

Under rule 20.04(2.1), I am invited to evaluate the credibility of a deponent. In addition to what I have noted above (that I can give no weight his assertion that pedestrians are not intended to be walking in the vicinity of this pole), I note that the deponent, Kelly, suggests that he is not aware of any municipality that does a physical inspection of these types of street signs. I accept that he is not aware of this; but Mr. Kelly does not tell us who he asked, what he discovered or what inquiries he made about inspection routines of other municipalities. His affidavit states that he is a mere employee, but he does not give his title. His evidence lacks authority and credibility. At a minimum, I would expect to receive some evidence from a supervisor at public works. Ideally, an affidavit from a supervisor in a similarly situated or comparably sized municipality would give the court a glimpse into what happens in other municipalities. This might offer the court some assistance in arriving at the proper standard of care for roadside sign inspection for Penetanguishene.

It strikes me as odd as well that a mere employee would wade into what the Town can or cannot afford or justify doing, or how much the work would cost in wages and equipment. I cannot imagine what equipment beyond a stepladder, a pair of hands and set of eyes would be necessary to conduct the kind of inspection Mr. Kelly suggests would be additional to the informal routine of a visual inspection now in place in the Town. I can attach little or no weight to the evidence in that affidavit for the purposes of a summary judgment motion.

The plaintiff's argument for summary judgment boils down to one of res ipsa loquitur: because the defendant has no explanation for how the incident happened, it should be found liable. At paragraph (m) of the plaintiff's cross-motion for summary judgment, he suggests that,

"The defendant has provided all its evidence with respect to the Town's inspection and maintenance process and has no explanation as to why the incident occurred. There will be no new evidence available to the defendant at trial that has not already been produced."

With respect, this is not grounds upon which to grant summary judgment to the plaintiff on liability. The plaintiff still bears the onus of proving that the defendant fell below the standard of care, that the incident was reasonably foreseeable, and that the defendant's conduct caused the alleged damages.

Moreover, and quite inexplicably, the plaintiffs have failed to produce any expert opinion either from a municipal standards professional or an engineer which might assist the court in making findings either in respect of standard of care or in respect to the mechanical reason for the failure of the sign.

I was not asked nor am I prepared to request oral evidence on a mini-trial under rule 20.04(2.2). There is nothing to be gained from such an exercise; no court time will be saved. Staging such a mini-trial on liability would amount to nothing more than a bifurcation of the issues. No motion was sought for that relief.

For the reasons set out above, the plaintiffs are granted leave to amend the Statement of Claim on the terms set out above. The defendant's motion for summary judgment is dismissed, and the plaintiff's cross-motion for summary judgment is similarly dismissed. Order to go accordingly.

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

I, Natasha Malozewski, certify that this document is a true and accurate transcript of the recordings of Nicholson v. Town of Penetanguishene in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, Ontario taken from recording CD# 3811-motionsroom-20171213 which was certified in Form 1.

Date Signature of Authorized Person