File No. CV-14-00048986
SUPERIOR COURT OF JUSTICE
SUSAN KANNER
(Plaintiff)
v.
THE CORPORATION OF THE CITY OF HAMILTON
(Defendant)
T R A N S C R I P T O F P R O C E E D I N G S
HEARD BEFORE THE HONOURABLE JUSTICE C. BRAID
on July 26, 2017 at HAMILTON, Ontario
APPEARANCES:
D. D’Urzo Counsel for the Plaintiff
E. Lezau Counsel for the Defendant
WEDNESDAY, JULY 26, 2017
CITATION: Kanner v. The Corporation of the City of Hamilton, 2017 ONSC 6795
R U L I N G
BRAID J.:
OVERVIEW:
On January 22, 2013, Susan Kanner tripped and fell on a sidewalk in Hamilton. On January 30, 2013, she emailed the City of Hamilton to say that she fell. The next day her roommate gave additional details to the City regarding the location of a fall. A statement of claim was subsequently issued.
The City of Hamilton disputes that this incident occurred or that Ms. Kanner suffered any injury. Liability and damages are in dispute.
The City of Hamilton moves for summary judgment on the basis that it did not receive sufficient notice of the location of the trip and fall. The City also argues that it has been prejudiced by the insufficient notice.
The issues on this motion for summary judgment are:
(a) Is this an appropriate case for summary judgment?
(b) If yes, was the notice sufficient?
(c) If yes, was the City prejudiced by the insufficient notice?
For the reasons set out below, I find that the motion for summary judgment should be dismissed.
FACTS:
Ms. Kanner, the plaintiff, resides in the City of Hamilton, Ontario.
The City of Hamilton, the defendant, is a municipal corporation.
The following steps occur when the City receives notice of a claim:
(a) As a matter of general principle, the City receives notice of a claim via letter delivered to the City Clerk;
(b) When the City Clerk receives such a notice it immediately sends it to Risk Management Services for investigation and handling;
(c) For all personal injury claims, Risk Management immediately retains an independent adjuster who completes a thorough investigation;
(d) The independent adjuster will immediately obtain the location of loss to secure the evidence of the condition of the area, including taking photographs and measurements; and
(e) The independent adjuster will also interview staff and witnesses as soon as possible while matters are still fresh in their minds. He or she will also gather any relevant records.
On January 30, 2013, Ms. Kanner emailed the City and stated that she, “Was walking to MacNab on Main Street at 4:30 p.m. on Tuesday 22/13.” And that as she was walking she, “Tripped on the concrete and fell on my left knee.”
On that same day, Risk Management with the City of Hamilton contacted an adjuster to investigate the incident and report. Later that same day, the adjuster contacted Ms. Kanner seeking a more precise location of the alleged incident. Ms. Kanner’s friend provided a more precise description of where Ms. Kanner fell, namely on the north side of Main Street east of MacNab near the bus terminal in front of Centenary United Church.
On February 1, 2013, the adjuster went to the area of Main Street West and MacNab. He took four photos, three of which depict portions of the sidewalk in front of the church and immediately leading up to the church as they were described by Ms. Kanner and her friend. One of those photos depicted a portion of the sidewalk that was later identified by Ms. Kanner as the place that she tripped and fell.
On February 5, 2013, the adjuster contacted Ms. Kanner’s newly retained counsel. In that letter he stated the following: “We spoke briefly with your client’s friend, Shelley, on January 31, 2013. At that time Shelley indicated that she was advised by your client that the fall occurred on the north side of Main east of MacNab near the bus terminal in front of Centenary United Church.”
In that letter, the adjuster requested that Ms. Kanner mark with an X the exact location of the alleged loss on the photographs provided by the adjuster.
On April 9, 2013, the City received a letter from Ms. Kanner’s counsel providing notice of a slip and fall, dated February 19, 2013. The letter stated that, “Ms. Kanner tripped and fell on the lip of the sidewalk between the slabs on Main Street West near MacNab Street South.” However, there are a number of bays and slabs on Main Street near MacNab Street South.
The adjuster made five further attempts in an effort to have Ms. Kanner identify the precise location of her trip and fall. On five dates between June of 2013 and February of 2014, the adjuster sent a further letter to Ms. Kanner’s legal counsel requesting a response to his prior correspondence seeking that Ms. Kanner mark the photos with an X.
In the letter of February 3, 2014, the adjuster advised counsel that Ms. Kanner’s claim was denied, due to the failure to provide details sufficient to identify the alleged hazard and that the City has been prejudiced.
Having received no response to the repeated inquiries to have Ms. Kanner identify the location of the alleged trip and fall, the City closed its file.
In September of 2014 the City was served with a statement of claim stating that a trip and fall occurred on February 19, 2013. The City served a statement of defence, together with a letter, requesting clarification of the date of the alleged loss and the exact location.
In November of 2014, Ms. Kanner’s counsel requested the City’s consent to amend the statement of claim to reflect that the trip and fall occurred on January 22, 2013.
On November 3, 2015, Ms. Kanner was examined for discovery. Looking at the three photos of the area that had been taken by the adjuster, she marked with an X the exact location where she testified that she fell. The X was marked on the sidewalk in front of a building immediately adjacent to the church. Counsel for the City agree the place where the X was marked fits within the description of the location provided by Ms. Kanner and her friend in January of 2013. The concern raised by the City, however, is that the description was not precise enough and that they did not know the exact location until the X was marked on the photo during this Examination for Discovery.
Ms. Kanner was never hospitalized from the date of the incident to the present. She does not explain the failure to respond to the previous letters to her counsel asking for an X on the photos.
The City states that it did not receive any complaints in regard to the sidewalk and the location of loss and did not make any repairs during this time-frame.
The City has filed Sidewalk Inspection Reports for 2012 and 2013. In the affidavit in support of this motion, the affiant makes a blanket statement that these reports show that the inspections revealed no issue with the portion of the sidewalk where the alleged incident occurred. However, the chart itself appears to record three sidewalk deficiencies in that specific area. The title of the chart is “Ward 2 Sidewalk Deficiencies”. Based on the column headings the reports appear to record every location where a repair is required. One of the three noted deficiencies in the area in question notes a “heave” in the sidewalk. There is no legend provided for some of the codes used in this chart and it is impossible to determine what the chart really says. However, these reports appear to record the exact opposite to what the affiant has stated what they say. They appear to reflect that there were three locations within the area described by Ms. Kanner that had deficiencies.
ANALYSIS:
A. Is this an appropriate case for summary judgment?
The court shall only grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. Pursuant to Rules 20.04(2)(a) and (2.1) of the Rules of Civil Procedure, the court shall consider the evidence submitted by the parties and may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interests of justice for such powers to be exercised only a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
In Hryniak v. Mauldin 2014 SCC 7, the Supreme Court of Canada clarified the test to apply on a summary judgment motion. There will be no genuine issue requiring a 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.
What is fair and just depends on the nature of the issues, and the nature and strength of the evidence. There is an obligation on each party to put its best foot forward. The responding party must present its best case or risk losing.
(Canada Mortgage and Housing Corporation v. Greenspoon 2015 ONSC 6882.)
In light of the narrow issues raised on this motion, I find that I am able to determine these issues on a summary judgment motion.
B. Was the Notice Insufficient?
The City argues that these proceedings are barred pursuant to subsection 44(10) of the Municipal Act. The City states that the notice was vague and insufficient as it did not identify the specific area where Ms. Kanner fell. The City did not become aware of the exact location of Ms. Kanner’s fall until her Examination for Discovery in November of 2013.
In its submissions, the City relies on the case of Seif v. Toronto 2015 ONCA 321. In that case, notice was provided to the City approximately five months after the slip and fall. The Seif v. Toronto case is distinguishable on its facts because that court was dealing with whether the plaintiff had a reasonable excuse for the delay and whether the City was prejudiced as a result of the delay.
In this case, counsel for the City was unable to provide a case in which a court articulated the exact level of precision that is required in a notice, in terms of providing the exact location of the injury. Counsel for the City agrees that this is a question of fact based on the particular circumstances of each case.
In Myshrall v. Toronto 2001 CanLII 24165 (ON CA), [2001] OJ No. 481, the Ontario Court of Appeal examined the purposes of the notice provisions in the Act. The court articulated that the notice provision gives the municipality a reasonable opportunity to investigate the accident and take any necessary corrective action to prevent a similar occurrence. As long as the notice gives enough information about the claim to permit the municipality to achieve these purposes, it will comply with s. 284(5). The courts should read the notice generously, bearing in mind that the time to deliver it is brief and that, in many cases, it will be prepared by a person without legal training.
I agree with and adopt the comments of the Court of Appeal in the Myshrall case.
In the matter before this court, Ms. Kanner prepared the notice on her own and it was supplemented by comments of her friend to the adjuster. The notice should be read generously in those circumstances.
Section 44(10) of the Municipal Act reads as follows:
No action shall be brought for the recovery of damages unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of... has been served upon or sent by registered mail to,
(a) the clerk of the municipality; or
(b) if the claim is against two or more municipalities jointly responsible for the repair... the clerk of each of the responsible municipalities.
Section 44(10) only requires that a party provides written notice of the claim. The Act does not state that the notice need to pinpoint the exact location of the injury. In addition, counsel could not point me to any case that has interpreted the provision to impose such a requirement.
The purpose of Section 44(10) of the Municipal Act, is to ensure that a municipality has a timely opportunity to investigate the place and circumstances of the accident. (See Seif v. Toronto 2015 ONCA 321). Notice within the prescribed time period gives the City an opportunity to investigate the source of the accident, the place where it happened, and the circumstances under which it happened. The greater the lapse of time between the happening of the occurrence and the investigation, the less is the opportunity of the City to investigate and there may come a time when all opportunity to investigate is lost. (See Schoeni v. King [1943] O.J. No. 116).
I find as a fact that the notice was sufficient in this case. The initial email notification gave the area and Ms. Kanner’s friend provided more specific detail of the location of the trip and fall. The information provided was sufficiently specific to permit the adjuster to identify the area. He went to the area and photographed a very small portion of a sidewalk in front of the church and a portion of the sidewalk in front of the adjacent building.
Although the photograph does not depict the entire area, it does appear that these photographs depict only a fraction of a city block. While the adjuster was at the location he would have had an opportunity to take as many photographs as he wished. He could have taken measurements or conducted any other investigation of the area that he felt was necessary. The notice was sufficient and the action is not statute barred.
C. Was the City Prejudiced by the Insufficient Notice?
If I am wrong about the sufficiency of the notice, I find that there is no evidence that the City was prejudiced by an insufficient notice.
Notice is important. With the passage of time and the absence of notice, the city may be unable to properly investigate and respond. Documents may be destroyed due to retention policies. The condition of a location may also change due to changing seasons or other intervening acts. Without proper notice it may not be possible to obtain timely evidence which would otherwise have been available from city staff and potential witnesses.
In this case, the City took photographs of three possible areas where the trip and fall may have occurred. It is true that the description was not so precise as to describe the exact bay or slab of sidewalk where the trip and fall had occurred. However, the City took these photos. They were able to measure and examine the locations set out in the photos. It could not have taken much more effort to examine the entire area set out in these three photos rather than just one slab. The City also obtained inspection reports from this area.
The City has not suffered prejudiced because of the lack of notice of the exact precise location where the trip and fall occurred.
CONCLUSION
In the result, the motion for summary judgment is dismissed. Rule 20.05(1) of the Rules of Civil Procedure states that, where summary judgment is refused, the court may make an order specifying what material facts are not in dispute.
I make the following orders:
I find that the City of Hamilton was provided with proper notice under Section 44(10) of the Municipal Act, that included a sufficient description of the location of loss and date of loss. This material fact is no longer in dispute.
Any part of the statement of defence that makes reference to lack of notice shall be struck out because the notice is no longer an issue.
R U L I N G
BRAID J.:
On the issue of costs I have considered the submissions of both parties. I have reviewed the bill of costs provided by plaintiff’s counsel. The plaintiff seeks to be reimbursed on a substantial indemnity basis in the amount of $7,700. No real basis has been provided to me in terms of ordering costs on a substantial indemnity basis. On a partial indemnity basis counsel says that his costs are $5,585, including H.S.T. and disbursements.
I cannot agree that this motion was completely without merit. I understand that part of the reason that this motion was brought on was due to the failure of plaintiff’s counsel to respond to inquiries from the City. Although I have found that notice was sufficient, the issue of notice and the concerns raised were exacerbated because the plaintiff’s counsel failed to respond to numerous letters sent by the City. Counsel for the plaintiff acknowledged this was an oversight and that they did not provide timely responses to the requests for the specific location. This is unfortunate and it has contributed to the City’s wish to bring this motion.
Although I have dismissed the motion and made findings which will be binding at trial, it is not a complete waste of time because that issue is now decided upon and will hopefully reduce the amount of trial time required because the issue will no longer be raised at trial. The City of Hamilton spent a lot of time putting together materials in support of their position on the motion. The ruling on this issue will reduce some of that material and the time required to argue and litigate the issues at trial.
In all of the circumstances, I find that the City of Hamilton should pay some costs. Costs ordinarily follow the cause, but I will temper them significantly because of all of the factors that I have articulated.
I, therefore, find that it is appropriate that the City of Hamilton pay costs to the plaintiff in the amount of $2,000 inclusive of disbursements and H.S.T.
THE COURT: How much time do you need to pay that? MS. LEZAU: Thirty days.
THE COURT: Madam Registrar do you have a calendar? Thank you.
So I have made the following endorsement. Today’s date. Mr. D’Urzo for the plaintiff. Responding party Ms. Lezau for the defendant moving party.
For reasons noted orally:
The motion for summary judgment is dismissed.
Pursuant to Rule 20.05(1), the court orders that the following material facts are no longer in dispute:
i. The City of Hamilton, the defendant, was provided with proper notice pursuant to Section 44(10) of the Municipal Act that included a sufficient description of the location and date of loss. This material fact is no longer in dispute.
ii. Any part of the statement of defence that makes reference to lack of notice is struck out, because the notice is no longer in issue.
On the matter of costs, the City of Hamilton is required to pay costs of this motion to the plaintiff in the amount of $2,000, inclusive of disbursements and H.S.T. These costs shall be paid by August 31, 2017.
Do counsel wish to receive copies of that endorsement? MS. LEZAU: Yes please; and thank you.
THE COURT: I do not have written reasons but if anyone wishes to order a transcript you may do so. Here is the endorsement.
Thanks very much everyone.
COURT ADJOURNS
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Linda Abbott
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
Kanner v. City of Hamilton
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
45 Main Street East, Hamilton
(Court Address)
taken from Recording
4799_604_20170726_105232__10_BRAIDC (1).dcr
, which has been certified in Form 1.
(Date)
(Signature of Authorized Person(s))