Introduction

[1] There was a major snow storm in Toronto on January 7, 2009. The following day, Maria Christoforou slipped and fell on a Toronto sidewalk, fracturing her ankle. Ms. Christoforou then brought an action against the City of Toronto and Maple-Crete Inc. (the contractor retained by the City to clear the sidewalk), claiming that they failed to clear the sidewalk of snow and ice. The City and Maple-Crete also brought cross-claims against each other.

[2] The City and Maple-Crete now bring a motion for summary judgment, arguing that there is no genuine issue requiring a trial. They submit that there is sufficient evidence on this motion to determine the issues. The issues are as follows: 1) Was the City grossly negligent?; 2) Can the City rely on the statutory defences set out in s. 42(3)(a) and (b) of the City of Toronto Act, 2006, S.O. 2006, c.11,Sched.A?; and 3) Did Maple-Crete Inc. breach its contractual winter maintenance obligations and/or duty of care?

[3] For the reasons that follow, I find that there is no genuine issue requiring a trial. The evidence on this motion establishes that the City had a reasonable general policy with respect to snow and ice, and acted reasonably in responding to the snow fall on January 7. Thus, the City was not grossly negligent. Moreover, the evidence supports the finding that the City has a statutory defence as it took reasonable steps and did not know, and could not reasonably be expected to know, about any danger on the sidewalk arising from the snow. Finally, on the evidence, Maple-Crete complied with its contractual obligations and acted properly and reasonably in dealing with the snow.

[4] I do not propose to outline the facts, but will refer to them as necessary in my analysis. I will start out by setting out the legal framework for summary judgment motions. I will then turn to the issues raised.

Legal Framework for Summary Judgment Motions

[5] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. In Hryniak v. Mauldin, 2014 SCC 7, at para. 49, Karakatsanis J. explained that 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.

[6] In considering a motion for summary judgment, the court should first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers set out in Rule 20.04(2.1) and (2.2). The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and summary judgment would be a timely, affordable and proportionate procedure.

[7] Pursuant to Rule 20.0(2), a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. Each side must put its best foot forward with respect to the existence or non-existence of material issues to be tried. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27; aff’d 2014 ONCA 878.

Analysis

Issue One: Is a trial required on the issue of whether the City was grossly negligent?

[8] Pursuant to s. 42(5) of the City of Toronto Act, the City will not be held liable for personal injury claims caused by snow or ice, except in the case of gross negligence.

[9] In determining whether the City has been grossly negligent, the court should consider two factors: Billings v. Mississauga (City), 2010 ONSC 3101, at para.7. First, was the City’s general policy with respect to ice and snow removal reasonable? Second, was the City’s response to the particular snow event in question reasonable? I propose to consider each factor in turn.

Was the City’s general policy on snow and ice removal reasonable?

[10] Most of the submissions for counsel for Ms. Christoforou focused on the City’s response to the snow storm the day before she fell, rather than on the general policy of the City with respect to snow and ice removal. In my view, this is for good reason, as the evidence clearly establishes that the City’s policy was reasonable.

[11] The evidence on the motion establishes that the City hires independent contractors, such as Maple-Crete, to plough and salt city sidewalks. At the time Ms. Christoforou fell, the City had a Salt Management Plan, which mandated that city sidewalks should be ploughed and salted when there had been eight centimeters of accumulated snowfall. While there was some flexibility, this would generally be done with 24 hours after a snow event ended.

[12] The City also had a Level of Service policy. Under this policy, the City would order the deployment of the snow removal contractors when there was snow accumulation of five centimeters. If five to 15 centimeters of snow fell, the City would deploy the snow removal contractors to clear the areas they were responsible for twice. The City would monitor and rely on weather forecasts, as well as information from patrollers on the ground, when determining what level of service would be required under the policy. Armed with that information, the City would then provide phone instructions to its snow removal contractors.

[13] During the relevant time, the machines used by all of the City’s snow removal contractors, including Maple-Crete, were always equipped with both a plough and salt dispenser. By default, the City would order both a ploughing and salting operation to be done at the same time. All contractors would be supplied with a salt/sand mix to apply to sidewalks to allow for greater traction for pedestrians.

[14] In my view, there is no doubt that the evidence on this motion makes clear that the general policy of the City was reasonable. As noted in Theiventhirampillai v. Balakrishnan, 2012 ONSC 215, at para. 22:

As Canadians we live in a winter climate. As such, while users of the sidewalk are entitled to have their sidewalks kept in a reasonable state of repair, perfection is not the standard. The test is one of reasonableness: users of a sidewalk are not entitled to expect a perfectly smooth and even sidewalk as this would be tantamount to insuring every pedestrian.

[15] I turn now to consider whether the specific response of the City to the snow storm on January 7, 2009 was reasonable.

Was the specific response of the City to the snow storm on January 7 reasonable?

[16] Given the weather forecasts for January 7, 2009, the City deployed its snow removal contractors to begin ploughing and salting at 11:00 a.m. Approximately 11 centimeters of snow fell on January 7, but most of that was before the afternoon, when the snow began to taper off.

[17] The Maple-Crete snow removal contractor assigned to the area where Ms. Christoforou fell started at 10:30 a.m. The snow plough he was operating was equipped with a GPS. The GPS data shows that this plough passed the sidewalk where Ms. Christoforou fell four times on January 7, 2009: 1) southbound between 11:45 a.m. and 11:52 a.m.; 2) northbound between 1:22 p.m. and 1:30 p.m.; 3) southbound between 1:30 p.m. and 1:35 p.m.; and 4) northbound at 9:30 p.m.

[18] Counsel for the City argues that GPS data establishes that the City responded reasonably to the snow storm on January 7. Counsel for Ms. Christoforou counters with two arguments. First, he argues that Carmine Forgione, the Vice-President of Maple-Crete, testified at examination for discovery that the plough only passed over the sidewalk once. Second, he submits that even if the plough passed over the sidewalk as suggested by the GPS data, that does not prove that the blades of the plough were actually down. He submits that given the discrepancy between Mr. Forgione’s evidence and the GPS data, and the absence of evidence with respect to whether the plough’s blade was down when it passed over the sidewalk, it is impossible to determine if the City responded reasonably to the snow event of January 7. He asserts that witnesses, including, potentially, expert witnesses, will need to testify to resolve the issues. I cannot agree for the following reasons.

[19] First, contrary to the assertion of counsel for Ms. Christoforou, Mr. Forgione did not testify that the plough only made one pass over the sidewalk on which Ms. Christoforou fell. Rather, he said that he assumed that it made one pass. But at the time Mr. Forgione made that comment, he did not have the GPS data in front of him. And that GPS data clearly shows that his assumption was wrong.

[20] Second, in my view the only reasonable inference to be drawn from the evidence is that the plough had its blade down when it passed over the sidewalk. There was a snow event. The snow plough drove over the sidewalk four times. Why would the Maple-Crete snow removal contractor drive the plough four times over a sidewalk that he was obligated to clear of snow, without putting the blade down? The suggestion that he might have been negligent and might have failed to put the blade down, amounts to nothing more than speculation.

[21] Moreover, the photograph taken of the sidewalk on the day Ms. Christoforou fell supports that the Maple-Crete snow removal contractor did, in fact, have the blade down when he drove the plough over the sidewalk. Over 11 centimeters of snow had fallen. If the sidewalk had never been cleared, or only cleared once, there would be more snow evident on the sidewalk in the picture. There was certainly snow on the sidewalk on the day that Ms. Christoforou fell. But the picture does not suggest that the snow and ice gave rise to a dangerous situation. This supports that when the Maple-Crete contractor passed over the sidewalk four times, the blade of the plough was down.

[22] A trial is not required to deal with issue of whether the Maple-Crete snow removal contractor did his job properly and had the blade down when operating the plough. The only evidence leads to the inference that he did; any suggestion to the contrary is speculative. Further, a trial is not required to determine whether the City acted reasonably in response to the snow event of January 7. The evidence on the motion is sufficient to establish that the City did act reasonably.

Issue Two: Can the City rely on the statutory defences set out in s. 42(3)(a) or (b) of the City of Toronto Act?

[23] Pursuant to s. 42(3)(a) and (b) of the City of Toronto Act, the City has a statutory defence for personal injury claims where the City can establish: a) that the City did not know and could not have been expected to know about the state of repair of the highway or bridge; or b) that the City took reasonable steps to prevent the default from arising. I will consider each in turn.

[24] First, there is no evidence that the City knew of any dangerous situation with respect to the sidewalk. Nor could they reasonably have been expected to know. The City had deployed snow removal contractors to deal with the snow. At no time between when the snow storm began and when Ms. Christoforou fell, did the City receive any complaints to suggest that the contractor had failed to clear the sidewalk properly.

[25] Second, for the reasons set out above, I find that the City took reasonable steps to prevent the default from arising. The City had a reasonable general policy with respect to how to deal with a snow event, and to ensure that sidewalks were maintained appropriately. They put that policy into effect on January 7. As noted in Ondrade v. Toronto (City), [2006] O.J. No. 1769 (S.C.), at para. 67, the “question is not whether something different or something more intensive could have been done – rather, the issue is whether the steps that the City did take were reasonable.”

[26] The steps taken by the City were reasonable. The evidence on this motion establishes that the City did not know, and could not reasonably be expected to know, that there was a dangerous situation with respect to the sidewalk. Further, the evidence shows that the City took reasonable steps to prevent a dangerous situation. The City has a statutory defence. No trial is required on this issue.

Issue Three: Did Maple-Crete Inc. breach its contractual winter maintenance obligations and/or duty of care?

[27] In my view, the evidence on the motion establishes that Maple-Crete complied with its contractual winter maintenance obligations and/or duty of care. As set out above, over the course of almost 10 hours, the Maple-Crete snow removal operator drove the plough over the sidewalk four times. The only reasonable inference is that when he did so, he complied with his obligation and actually ploughed and salted the sidewalk. The suggestion that he might have failed to put the blade down is speculative.

[28] The evidence on the motion establishes that Maple-Crete complied with its contractual obligations and duty of care. No trial is required to resolve this issue.

Conclusion

[29] The evidence on the motion clearly establishes both that the City had a reasonable general policy with respect to snow and ice, and that the City acted reasonably in responding to the snow fall on January 7. As a result, the City was not grossly negligent. Further, the evidence supports that the City can avail itself to two statutory defences; 1) it took reasonable steps, and 2) did not know, and could not reasonably be expected to know, about any dangerous situation on the sidewalk arising from the snow. Finally, on the evidence, Maple-Crete complied with its contractual obligations and acted properly and reasonably in dealing with the snow.

[30] There is no genuine issue requiring a trial. Summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result. As a result, the motion for summary judgment is granted. Ms. Christoforou’s action and the cross-claims of the City and Maple-Crete are dismissed.

Costs

[31] I encourage the parties to see if they can agree on costs. If the parties are unable to agree on costs, the City and Maple-Crete shall serve and file with my office written costs submissions within 15 days. Ms. Christoforou shall serve and file with my office any responding costs submissions within 15 days thereafter. The written submission shall not exceed three pages in length, excluding the Costs Outline.

Justice Heather McArthur

Date: May 15, 2018

Christoforou v. City of Toronto and Maple-Crete Inc., 2018 ONSC 2982

Case Summary

Introduction

Legal Framework for Summary Judgment Motions

Analysis

Conclusion

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 1