Court File and Parties
COURT FILE NO.: CV-14-499810 DATE: 20170112 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DEMESEW TABOR KIDANEMARIAM, NAHOME DEMESEW, by her Litigation Guardian Selome Aemero Walelegne and SELOME AEMERO WALELEGNE personally Plaintiffs – and – CITY OF TORONTO Defendant
Counsel: Peter S. Carlisi, for the Plaintiffs Matthew Karabus, for the Defendant
HEARD: October 17, 2016
LEDERER J.:
Endorsement
[1] This is a motion for summary judgment.
[2] The plaintiff, Selome Aemoro Walelegne, alleges that, on April 10, 2012, she tripped on a “discontinuity” in the sidewalk on Wellesley Street East, in the city of Toronto. As a result, she was injured and has been unable to work. It is said that, as a result of the injuries she has suffered, her enjoyment of life has been lessened and her ability to carry on a “normal life” has been and remains impaired. As a result, she commenced this action against the defendant, the City of Toronto. It is the City that seeks summary judgment. It wishes to have the action dismissed.
[3] The plaintiff, Demesew Tabor Kidanemariam, is the husband of Selome Aemoro Walelegne; the plaintiff, Nahome Walelegne, is her daughter. They make claims pursuant to the Family Law Act, R.S.O. 1990, c. F.3. They allege that, by reason of the injuries suffered by Selome Aemoro Walelegne, they have lost the care, guidance and companionship they otherwise would have received from her had she not been injured.
Summary Judgment Standard
[4] A motion for summary judgment is brought pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended. Rule 20.04(2) stipulates:
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…
[Emphasis added]
[5] In this case, there is no genuine issue requiring a trial. The analytical approach to considering a motion of this kind is set by the now seminal case of Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; 366 DLR (4th) 641; 314 OAC 1; 37 RPR (5th) 1; 46 CPC (7th) 217:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they 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.
(Hyrniak v. Mauldin, 2014 SCC 7, supra, at para. 66)
Municipal Duty and Defences
[6] The City has a duty to maintain highways and a cause of action for its breach is legislated by statute:
- (1) The City shall keep a highway or bridge over which it has jurisdiction in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
(2) If the City defaults in complying with subsection (1), the City is, subject to the Negligence Act, R.S.O. 1990, c. N.1, liable for all damages any person sustains because of the default.
[7] The word “highway”, as it is found in the City of Toronto Act, 2006, includes sidewalks (Cumberbatch v. Toronto (City), 2015 ONSC 5090, at para. 71).
[8] This does not mean that, whenever there is a fall, the City is necessarily responsible. The legislation provides defences:
[42] (3) Despite subsection (2), the City is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) the City did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) the City took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established by a regulation made under section 117 applied to the highway or bridge and to the alleged default and those standards have been met.
[9] I start with the obvious. The City of Toronto is a large metropolis with many kilometres of sidewalks that fall under its care. There is and has to be a practical limit to the extent of the potential liability of the City:
The [Municipal] Act makes it clear that the duty on a municipality is to keep it sidewalks in a reasonable state of repair which would permit a person using ordinary care for his or her own safety to pass along them in safety. In the event a municipality fails to do so, it can be held liable in damages sustained by a person by reason of such default. However, a municipality is not required to maintain all it sidewalks in perfect level, or keep them free of imperfections or as smooth as a billiard table. It does not follow that, because an accident happens, a sidewalk is necessarily in a state of non-repair: Marshak v. The City of Toronto, [1953] O.W.N. 101 at 102 (H.C.J.); Stojadinov v. Hamilton (City) [1988] O.J. No. 2038 (H.C.J.)
Minimum Maintenance Standards
[10] There is regulation which sets minimum standards for the maintenance of highways in the City of Toronto. It deals with the responsibility to monitor the condition of a highway, including the sidewalk: first, by “patrolling” the highway; secondly, by “inspecting” sidewalks. The regulation is cited as Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06. I note that it was amended by Ontario Regulation 22/10, effective as of February 18, 2010. The text quoted within this decision is that of the regulation as it was between February 18, 2010 and January 24, 2013: the regulation as it read at the time of the alleged fall.
[11] “Patrolling a highway consists of observing the highway, either by driving on or by electronic monitoring the highway, and may be performed by persons responsible for patrolling highways or by persons responsible for or performing highway maintenance activities.” The regulation includes a table which provides the minimum standards for “patrolling frequency” for each of five classes of highway. Wellesley Street East is classified as an “arterial” road, which is the equivalent of a class 2 highway. Pursuant to the table, a class 2 highway is to be patrolled “2 times every 7 days” (Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06 at s. 3(3)).
[12] Based on the available records, the Field Investigator, John Carter, patrolled Wellesley Street East on April 3, 5 and 10, 2012. The minimum standard was met.
[13] The Minimum Maintenance Standards for Highways in the City of Toronto also provides for the inspection of sidewalks. “The minimum standard for the frequency of inspecting sidewalks to check for surface discontinuities is once per year” (O. Reg. 612/06, s. 16.1(1)). The annual sidewalk foot inspection was conducted on May 25 and May 27, 2011 and no state of disrepair was noticed in respect of the sidewalk at or near the location where the fall in question is said to have taken place. On this basis, this standard set by the regulation was also met.
[14] Counsel for the plaintiff observed that the affidavit which produced the records was deposed to, not by John Carter, but by Kim Hegazy, also a Field Investigator. It transpires that, in the interim, John Carter has retired. Kim Hegazy is now responsible for patrolling the area in question. The records relied on to report on the patrols and inspections are part of a regular system of reporting utilized by the staff of the City of Toronto. Counsel for the City advised that notice, pursuant to s. 35 of the Evidence Act, R.S.O. 1990, c. E.23, had been given “months ago”:
(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.
(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.
(Evidence Act, R.S.O. 1990, c. E.23, supra, at s. 35(2) and (3))
[15] I have no trouble accepting these records as evidence that the patrols and inspection referred to did take place and to point out that they comply with the minimum standard outlined in the regulation.
[16] The regulation also sets a physical standard for sidewalk abnormalities that require attention and action from the City. It defines “surface discontinuity” as:
…a vertical discontinuity creating a step formation at joints or cracks in the surface of the sidewalk.
(Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06, at s. 16.1(4))
[17] The regulation sets a standard for when a response is required and the time within which that response is to take place:
If a surface discontinuity on a sidewalk exceeds 2 cm, the minimum standard is to treat the surface discontinuity within 14 days after becoming aware of the fact.
(Minimum Maintenance Standards for Highways in the City of Toronto, O. Reg. 612/06, at s. 16.1(2))
Application to Facts
[18] There was evidence as to the depth of the discontinuity located at the point where Selome Aemoro Walelegne says she fell. The incident from which this action arises did not take place on the sidewalk where it is a flat and continuous surface. Rather, it was at a place removed from the general area of passage, next to a box from which newspapers are sold. The surface was constructed from square paving stones (each 200 mm. by 200mm), presumably intended to vary the face of the sidewalk and to be aesthetically pleasing. The discontinuity at issue was a point where one of these “pavers” (the paving stones) was missing.
[19] Counsel for the plaintiff proposed that it was a failing of the City that it did not go back and produce a history or records of the construction of this portion of the sidewalk. As I understood it, the point of this was to demonstrate that the sidewalk had been properly assembled in the first place. It seems counsel believes the missing paver may never have been put in place. The plaintiffs retained an architect to examine the site. He opines that it “[t]he missing paver appears never to have been installed”. He confirmed this by reference to a picture, retrieved through “Google Street view” of this location from 2007. In the label, he has written “no paving bricks?” This seems to be a question rather than a statement. The quality of the picture is such that it is impossible to tell what the condition of the sidewalk, at the point of interest, was. In any case, it is not clear to me what such information would add to this situation. So far as I am aware, there is no indication in the record as to how long there has been a sidewalk on Wellesley Street East or when it was last rebuilt. Could it have been in the five years between 2007 and the date of the alleged fall? The fact remains that neither the twice weekly drive-by patrols nor the annual walk-over inspections have resulted in an expression of concern by the field inspectors of the City or a complaint from any other member of the public. It would be an odd proposition and inconsistent with the acceptance that business records can be admitted without further proof to require the City to produce field inspectors, going back to the original construction of the sidewalk, to prove that there was no risk that proper investigation would have and, presumably, should have revealed. I would be loathe to do anything that would suggest that there was such an onus on the City. To my mind, it is far more important to note that the plaintiff, Selome Aemoro Walelegne, chose to walk on a section of the sidewalk that was not intended for the passage of pedestrians. As a result of the people in the area at the time, Selome Aemoro Walelegne moved away from the travelled portion of the sidewalk and proceeded through a narrow gap, the width of the curb, next to a newspaper box. The discontinuity (or missing paver) was in front of the box, which faced down the length of the sidewalk, away from the direction that Selome Aemoro Walelegne was walking. To my eye, the missing pavers would not have been visible to Selome Aemoro Walelegne until she began to move around or passed that box. It is immediately in front of the newspaper box. If an individual chooses to pass over such an area, they take on the responsibility of heightened care that comes with such a choice.
[20] I note that the City of Toronto Act, 2006, s. 42(5) provides that the City is not liable for a personal injury caused by snow or ice on the sidewalk except in the case of gross negligence. This has no direct application here. There was no ice or snow. However, it does demonstrate that, with changed conditions or unusual circumstances, we expect people to take more care, to be more responsible for their own actions. The principle applies here, though not to the extent as in the case of ice and snow.
[21] I turn to the question of whether or not the “discontinuity” breached the standard referred to in the regulation: was it deeper than 2 centimetres? The evidence is mixed, the result uncertain and the impact on the results of this motion a question without an obvious answer. At some point in time, one of the counsel acting for the plaintiff attended and took a measurement of the depth of the drop (the discontinuity) along the edge of the sidewalk immediately next to where the missing paver would have been. Selome Aemoro Walelegne, when cross-examined in the preparation for this motion, acknowledged that the depths shown was less than 2 cm (“1.75 centimetres, maybe”, (Transcript of the Cross-Examination of Selome Aemoro Walelegne, at Q. 127-128)). Later, the architect examined the depth. He visited the site on February 1 and 10, 2016, which is to say, nearly four years after the alleged fall. He did not take a measurement. Instead, he leaned a coin (a quarter) against the edge of the contiguous sidewalk and then, presumably at a later time, measured the coin. He says it is 2.35 centimetres across, through its centre (its diameter). Quite apart from the inexact nature of this approach, there is a problem. The photograph of the coin shows it to be leaning. The architect acknowledged this when he was cross-examined (Transcript of the Cross-Examination of Carson Woods at Q. 95-96). Moreover, while it is not clear, it appears to me that the top of the coin is slightly higher than the top of the sidewalk. The point being, whatever the height, it is something less than the 2.35 centimeter diameter of the coin. In his report, the architect acknowledged that:
There is controversy over the exact dimensions of the edge vertical height.
[22] When cross-examined, he said that, at the edge, the discontinuity:
It is I think right at 2 centimetres, or a millimetre or two more
(Transcript of the Cross-Examination of Carson Woods at Q. 88).
[23] The architect did more than just lean the quarter against the edge of the sidewalk. He considered the depth in the middle of the area that would have been covered by a paver if one was in place. He did not measure the depth. He estimated it. The architect was cross-examined in preparation for the motion. He was asked to “guesstimate” how much deeper it was in the middle. The earth was not flat. It was shaped like a dish. As he “recollected”, it was “about another 13 millimetres” (1.3 centimetres) deeper in the middle than at the edge. This would be in excess of the 2 centimetres referred to in the regulation. He said this when asked question in “re-examination (Transcript of the Cross-Examination of Carson Woods at Q. 383-388).
[24] There is a lack of precision in this evidence.
[25] Moreover, it is not possible to know how this changed in the four years between the day of the alleged fall and the time this estimate was made. The report of the architect notes:
It is apparent in my viewing of the photograph taken shortly after the fall and from my own recent visit that the depression is still uneven and is of a somewhat soft surface texture. My own photograph shows mud as a result of the melting of a recent light snowfall.
(Report of February 17, 2016 (Carson Woods) at p. 4)
[26] “Mud” and “melting” at least suggests the possibility of change and erosion.
[27] In the circumstances, we do not know what the depth of the “discontinuity” was at the time the fall is alleged to have taken place. It was close to or in the area of 2 centimetres. It could have been more; it could also have been less. The answer to this question is not determinative of liability or this motion for summary judgment. In saying this, I rely on the defences provided for in the City of Toronto Act, 2006, at s. 42(3) (see: para. [8], above). Given its size and the length of the highways it is responsible for, the City took reasonable steps to guard against the alleged default (the supposed fall). It undertook a regular program of “patrols” and “inspections”. That this should be accepted as sufficient is confirmed by the fact that these “patrols” and “inspections” met the minimum standards set by the regulation. The defence found at the City of Toronto Act, 2006, at s. 42(3)(b) (“the City took reasonable steps to prevent the default from arising”) applies. These same facts suggest the applicability of the defence found at s. 42(3)(a) (“the City did not know and could not reasonably have been expected to have known about the state of repair of the highway…”). The staff of the City did what was required to learn of the broken or missing “paver”. As it is, and understanding that the staff acted reasonably to discover such faults in the sidewalk, the City cannot reasonably be expected to have known about the missing paver. Even if discovered, this would not necessarily have been readily identifiable as an impediment to safe passage. This “discontinuity” was not on a portion of the sidewalk intended for walking. It is immediately in front of a newspaper box where individuals might stop to purchase or (assuming there was no charge) take one of the papers left there. In this case, Selome Aemoro Walelegne chose to walk down the curb, next to the newspaper box and then, as she passed the box, to turn sharply where she is said to have placed a foot where the missing paver should have been. There is a measure of confirmation of this in the Statement of Claim, where it states:
…the Plaintiff Selome walked around the newspaper stands located on Wellesley Street and as she commenced walking to the sidewalk it felt as if someone behind the Plaintiff Selome had pushed the Plaintiff Selome and she was walking to return to the sidewalk when her right foot came in to contact with a crevice in the sidewalk causing her to fall forward…
(Statement of Claim, at para. 7)
[28] On a busy downtown street, having moved from the path people are expected to take and as she moved pass the newspaper box that would have blocked her view, Selome Aemoro Walelegne bore the responsibility of looking where she was going.
Cause of Fall
[29] Finally, throughout these reasons, I have referred to the “alleged fall” and, latterly, to the “supposed” fall. There is reason for this. In describing what is said to have happened, Selome Aemoro Walelegne says it felt as if she was pushed. The records of the physicians who attended Selome Aemoro Walelegne after the fall record that she was pushed by someone:
- Dr. Ahn, orthopedic surgeon, dated April 13, 2012: (“She describes that she was on the street when someone pushed her from behind…”);
- Dr. Birinder Singh, dated May 1, 2012, “The above patient was seen here April 10, 2012. She was pushed from behind while on way to work [sic]…”); and,
- Dr. E. Norris, dated August 7, 2012, (“Osteoporosis history demonstrates a single previous facture from April 2012 of the right distal radius. This occurred after being pushed from behind while walking.”).
[30] Selome Aemoro Walelegne says she never told the doctor she had been pushed, only that she “felt” that she had been pushed. It is not clear to me whether each of the three doctors understood that he, or she, was being told by Selome Aemoro Walelegne that she had been pushed or whether the second and third of the three doctors were merely reporting what they had been told by the first physician. In the circumstances, were I required to do so, I would utilize the authority given to me pursuant to r. 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and find, on a balance of probabilities, that Selome Aemoro Walelegne was pushed. It is difficult to understand how one can “feel” as if they were being pushed and not, in fact, have been pushed. I am inclined to the view that the doctor (or doctors) would have accurately recorded what they were told and that what they were told, so soon after the fall, reflected more accurately what happened.
Conclusion
[31] The motion for summary judgment is granted. The action is dismissed.
Costs
[32] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:
- On behalf of the defendant, the City of Toronto, within 15 days of the release of these reasons. Such submissions are to be no longer than three pages, double-spaced, excluding any Bill of Costs, Costs Outline or case law that may be referred to;
- On behalf of the plaintiffs, within 10 days thereafter. Such submissions are to be no longer than three pages, double-spaced, excluding any Bill of Costs, Costs Outline or case law that may be referred to; and,
- On behalf of the defendant, the City of Toronto, in reply if necessary, within five days thereafter. Such submissions are to be no longer than two pages, double-spaced.
LEDERER J. Released: January 12, 2017
Judgment
COURT FILE NO.: CV-14-499810 DATE: 20170112 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DEMESEW TABOR KIDANEMARIAM, NAHOME DEMESEW, by her Litigation Guardian Selome Aemero Walelegne and SELOME AEMERO WALELEGNE personally Plaintiffs – and – CITY OF TORONTO Defendant
JUDGMENT
LEDERER J. Released: January 12, 2017