Court File and Parties

Court File No.: CV-12-468963 Date: 20180822 Superior Court of Justice - Ontario

Re: Christine Latania Rose, Plaintiff/Responding Party And: Toronto Community Housing Corporation, Defendant/Moving Party

Before: P. J. Monahan J.

Counsel: Daniel D’Urzo, for the Plaintiff/Responding Party Sophia Souffront for the Defendant/Moving Party

Heard: August 21, 2018

Endorsement

[1] The Plaintiff, Christine Letania Rose, has commenced an action seeking damages from the Defendant, Toronto Community Housing Corporation (“TCHC”) as a result of a slip and fall which occurred on January 3, 2011. TCHC has brought a motion for summary judgment seeking dismissal of the action against it on the basis that there is no genuine issue requiring a trial. In particular, TCHC argues that the uncontradicted evidence on the motion is that the Plaintiff suffered the injury while walking on a road owned and maintained by the City of Toronto. Therefore, there is no legal basis for establishing liability on the part of TCHC for the injuries suffered by the Plaintiff.

[2] For the reasons that follow, I would grant the motion for summary judgment and dismiss the Plaintiff’s action against the TCHC with costs.

Facts

[3] The Plaintiff resides at a residential apartment building managed and maintained by the TCHC, located at 6 Replin Road in the City of Toronto (“City”). On the morning of January 3, 2011 she was walking home after dropping her daughter off at her daughter’s nearby school. She was initially walking south along a sidewalk running along the west side of Replin Road. However that sidewalk ended at 4 Replin Road. After passing 4 Replin Road, the Plaintiff continued walking south towards her residence by walking directly on Replin Road itself. While walking along the road she slipped and fell on some ice or snow on the road.

[4] The Plaintiff was examined for discovery on November 25, 2014. In the course of her examination she identified the exact location of her fall on Replin Road by placing a square symbol on a site plan, as well as an asterisk on a Google Maps image. These markings indicate clearly that the fall occurred while she was walking on Replin Road itself and that prior to the accident she had not reached or entered upon TCHC property.

[5] Replin Road is a municipal road owned by the City. Pursuant to Ontario Regulation 612/06, enacted under the City of Toronto Act, 2006, the City is responsible for maintaining its roads in proper repair, including addressing concerns arising from snow accumulation or ice formation in the winter months. In January 2016, counsel for TCHC received confirmation from the City that TCHC had not assumed any maintenance responsibilities for Replin Road.

[6] On November 30, 2012, the Plaintiff commenced this action, alleging that the TCHC was liable for her injuries either as a result of its negligence or pursuant to the Occupiers' Liability Act (“OLA”). TCHC delivered its defence on April 24, 2013. Following the examination for discovery of the Plaintiff, which indicated that the Plaintiff’s fall occurred while she was walking on Replin Road, the TCHC brought a third party claim against the City. Counsel for TCHC also made numerous attempts to advise Plaintiff’s counsel that the City should be named as a defendant and seeking a release of TCHC from the action. Plaintiff’s counsel did not act on these suggestions.

[7] On June 20, 2017, TCHC brought this motion for summary judgment seeking dismissal of the claim against it. The motion initially came before me on August 21, 2017. However, due to lack of diligence by her counsel, the Plaintiff did not file any materials responding to the motion for summary judgment. I therefore adjourned the matter so as to permit the Plaintiff to file responding materials. The Plaintiff subsequently filed a Factum, Book of Authorities and a Motion Record consisting of a three-page affidavit by her counsel.

Summary Judgment

[8] The principles applicable to motions for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure are well known. Pursuant to amendments to Rule 20 made in 2010, a party is entitled to summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. As the Supreme Court of Canada confirmed in Hryniak v. Mauldin, 2014 SCC 7, a trial is not required if a summary judgment motion allows for a fair and just adjudication, in that it provides a process whereby a motions judge can make necessary findings of fact and apply the law to those facts. Moreover, on a summary judgment motion parties are required to “put their best foot forward”, and the motions judge is entitled to assume that the record contains all the evidence the parties would present at trial: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at paragraphs 26 – 27.

[9] TCHC submits that there is no genuine issue requiring a trial in order to resolve the allegations of negligence and statutory liability made by the Plaintiff. The uncontradicted evidence of the plaintiff herself is that she suffered her injuries while walking along a roadway owned and maintained by the City. TCHC had no responsibility or role in maintaining the road in question. Nor is there any evidence to suggest that any act or omission by TCHC contributed in any way to the fall suffered by the Plaintiff. As such, there is no legal basis for the claim against TCHC and it is entitled to summary judgment dismissing the action against it.

[10] The Plaintiff resists the summary judgment motion on the basis that she has not yet examined either the TCHC or the City. As such it has not been determined whether there was an overlap of snow and ice clearing responsibilities for the area in question. Nor is it clear whether any acts or omissions of TCHC may have contributed to the buildup of ice on Replin Road.

Analysis

[11] In my view, it is plain and obvious that there is no legal basis for the claim brought by the Plaintiff against TCHC. The factual issues relevant to the liability of TCHC are not in dispute. The uncontradicted evidence of the Plaintiff herself is that she was walking on a roadway owned and maintained by the City when she suffered a fall. At no time prior to or at the time of the accident did she enter onto lands owned or maintained by the TCHC. As such, the TCHC was not an “occupier” of the roadway pursuant to the OLA. Nor is there any evidence in the record before me suggesting that any acts or omissions of TCHC contributed in any way to the fall suffered by the Plaintiff.

[12] The Plaintiff maintains that she has not yet had an opportunity to examine representatives of TCHC or the City. To the contrary, the adjournment that was granted at the Plaintiff’s request in August 2017 was precisely to allow any such examinations to take place. Plaintiff’s counsel failed to avail themselves of that opportunity, instead taking the default position that the motion should be dismissed in order to permit discoveries to take place. As Myers J. held in ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910 at paragraph 44, this represents an attempt to default to a “trial model” of civil litigation, which is no longer acceptable in light of the amendments to Rule 20 and the Supreme Court’s decision in Hryniak.

[13] The Plaintiff also relies on certain cases which have held that a property owner may be liable for accidents that occur on an immediately adjacent property. For example, in Gribowski v. Singh, 2013 ONSC 744, a plaintiff suffered injuries when she fell on the “apron area” of the Defendants’ driveway. The apron is the area of a driveway between the road and the sidewalk that in this particular case was legally owned by the municipality. The court refused the Defendants’ motion for summary judgment on the basis that it could not be determined, based on the evidentiary record, whether or not the Defendant driveway owners were “occupiers” of the municipal land where the accident actually occurred. Similarly, in Campana v. The City of Mississauga, 2016 ONSC 3421, the Plaintiff tripped over a hole in the ground on a boulevard owned by a municipality that was inspected and maintained by the adjacent property owner, a condominium corporation. The court refused to grant summary judgment dismissing the action against the condominium corporation since, through its regular inspections and maintenance of the lands in question, it may have assumed a duty of care to the Plaintiff and breached that duty.

[14] The cases relied upon by the Plaintiff are clearly distinguishable from the facts in the case at bar. In both Gribowski and Campana, there was evidence that the Defendant had assumed some responsibility for maintaining the adjacent property. On this basis, the courts in those cases were unable to conclusively determine the Defendant’s potential liability on a summary judgment motion. Here, however, there is no evidence whatsoever that the TCHC has assumed any responsibility in respect of the maintenance or repair of Replin Road. As Sanfilippo J. noted in Hamilton v. Ontario Corporation #20005330 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 at paragraphs 44 – 50, an inference of causation must be based on objective facts rather than conjecture or speculation. The suggestion that the TCHC may have somehow contributed to her being responsible for the Plaintiff’s fall, either as an occupier pursuant to the OLA or otherwise in negligence as an adjacent property owner, is entirely speculative and without any factual foundation. Mere speculation or conjecture, absent any evidentiary foundation whatsoever, does not give rise to a genuine issue requiring a trial.

Conclusion

[15] There is no genuine issue requiring a trial with respect to the liability of the TCHC to the Plaintiff. The Plaintiff suffered her injuries through a fall that occurred on lands owned and maintained by the City. There is no evidence indicating that the TCHC had assumed any responsibility for the maintenance or repair of the road in question. Nor is there any evidence to suggest that the TCHC in any way contributed to the fall suffered by the Plaintiff. As such, the TCHC is entitled to summary judgment dismissing the action against it, and I so order.

[16] With respect to costs, TCHC has submitted a Bill of Costs indicating that 7 lawyers worked on this file and spent a total of over 200 hours in respect of the defence of the action as well as the motion for summary judgment. It seeks costs on a substantial indemnity basis, claiming fees of approximately $41,000, HST of approximately $5300 and disbursements of approximately $1500.

[17] In my view, this amount of time was excessive given the issues raised and the basis upon which the summary judgment motion was advanced. The motion was based on a pure question of law, with no factual issues in dispute. Although a number of attendances were required, the arguments advanced both in writing and orally were simple and straightforward. I would further observe that I previously awarded costs in favour of TCHC of approximately $2800, due to the fact that the motion could not proceed in August 2017 because of the lack of diligence of the Plaintiff's counsel.

[18] Taking into account these factors and circumstances, I would award costs in favour of the TCHC in the amount of $20,000, inclusive of HST and disbursements. This costs order is in addition to the previous order made in August 2017.

P. J. Monahan J. Date: August 22, 2018