Court File and Parties
COURT FILE NO.: CV-13-493997 MOTION HEARD: 22 August 2018
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Paraskevi Sfyndilis, Angelo Sfyndilis, Angela Colliopoulos, Angela Colliopoulos as Litigation Guardian of Niko Colliopoulos, Spyro Sfyndilis, Tom Sfyndilis, Tom Sfyndilis as Litigation Guardian of Angelo-Peter Sfyndilis, Christopher Sfyndilis and of Jordan Sfyndilis, Plaintiffs
AND:
City of Toronto, Defendant
BEFORE: Master Jolley
COUNSEL: Angela Assuras, Counsel for the Moving Party Plaintiffs K. Shani, Counsel for the Responding Party Defendant
HEARD: 22 August 2018
Reasons for Decision
[1] The plaintiffs bring this motion for answers to six questions refused on the defendant’s examination for discovery (Refusals 1, 2, 3, 10, 20 and 27).
[2] The plaintiff Paraskevi Sfyndilis slipped and fell on the sidewalk on Colbeck Street, Toronto on 3 December 2012. She alleges, among other things, that the defendant owed her a duty to take reasonable care to remove leaves from the roadway and the sidewalk. She alleges that the defendant failed to remove the leaves from the sidewalk and failed to properly remove the leaves from the roadway such that they were pushed onto the sidewalk and alleges that the defendant knew or could reasonably be expected to have known that the sidewalk posed a danger and a hazard based on complaints made to the defendant by area residents prior to her fall. She also claims in nuisance, breach of duty under the Municipal Act and the Occupiers’ Liability Act.
[3] The defendant pleads that it is responsible for clearing the roadway but not the sidewalk under the City of Toronto Act, 2006 (“those portions of the municipal road allowance”, per paragraph 3 of the statement of defence). It also alleges that if the sidewalk was in the condition alleged, it did not know of such condition and could not reasonably have been expected to know about the condition in all the circumstances. Alternatively, the defendant pleads that it took reasonable steps to prevent the situation from occurring.
Refusal 1 – Questions 158, 159 – to produce the records confirming how often in the three years prior to the plaintiff’s fall had the defendant’s by-law enforcement officers spoken to any homeowner on Colbeck Street about his or her obligation to remove leaves.
[4] The defendant position is that it has no responsibility to clear the sidewalk of leaves. If it receives a complaint about leaf accumulation on a sidewalk, it is required to speak to the homeowner about his or her obligation to remove the leaves under the applicable by-law and to advise the homeowner that he or she can be fined if the leaves are not removed. Under no circumstances does the defendant remove the leaves.
[5] Whether the defendant will succeed in its defence that it is not responsible for cleaning leaves on sidewalks or not depositing leaves on sidewalks and that it bears no liability if the work is not done by the homeowner will be determined at trial. At this stage, relevance is determined by the pleadings, the statement of claim as well as the statement of defence. Based on the pleadings, the issue of the defendant’s knowledge of the leaf accumulation in the area and the steps it took to deal with any accumulation is relevant. The plaintiffs plead that the defendant failed to enforce the city by-law. They further plead that the city permitted a nuisance and a hazard to remain on the sidewalk (paragraph 23 (z)). The defendant pleads that it took reasonable steps to prevent the condition that occurred. The defendant’s historical treatment of leaf accumulation on Colbeck Street over a limited three year period may be relevant to demonstrate the steps taken by the defendant to enforce the by-law, may go to the specific conditions of leaf accumulation on Colbeck Street and is relevant to the allegations in the claim.
Refusal 2 – Question 195 – to advise if it is possible that the sweeper could go so quickly that it has not cleaned up what it was supposed to as stated in the log on 3 December 2012.
[6] This is raised squarely in the fresh as amended statement of claim. Paragraph 12 alleges that a resident of Colbeck Street called the defendant the morning of and prior to the plaintiff’s fall and stated that “the city’s machine that was sent that morning had gone so quickly that he had not removed the leaves from the north or south side of Colbeck Street. The said resident specifically advised the City that the presence of leaves created a hazardous situation for the many children and elderly residents in the area.” Paragraph 23(i) alleges that the plaintiff’s injuries were caused by the negligence of the defendant in “failing to take reasonable care in removing the accumulation of leaves on the roadway of Colbeck Street such that, its machine (a sweeper) pushed the leaves and debris that had accumulated on the roadway of Colbeck Street towards the curb and onto the sidewalk abutting Colbeck Street (rather than removing the leaves) which created an unsafe and hazardous condition on the sidewalk.”
[7] The defendant states that the question calls for speculation. The plaintiff is entitled to know whether the defendant is going to challenge the statement set out in paragraph 12 of the fresh as amended statement of claim as being impossible and is entitled to an answer to this question.
Refusal 3 – Question 262 - to advise when the field inspectors were receiving training three years prior to 2012.
[8] The defendant has provided a copy of the sheet given to its field investigators with respect to leaf collection. Its position is that when the sheet was given to the inspectors or when the training took place is irrelevant. The fresh as amended statement of claim raises the training of the field inspectors as an issue in paragraph 23(u) where it alleges that the defendant failed to properly train, instruct and/or supervise their servants, contractors, agents or employees in the procedure for repairing and maintaining roadways and sidewalks. The timing and frequency of training, if any, is relevant to the issues raised in the claim and the potential liability of the defendant (Alexander Proudfoot Co. of Canada v. Storwal International Inc. 1090 CarswellOnt 1994, paragraph 6).
Refusal 10 – Question 295 – for the deponent, Jeff Hunt, Supervisor of Roads and Sidewalks with the defendant, to advise whether he would agree that if the leaves are on the sidewalk that could pose a hazard to a pedestrian.
[9] The defendant objects on the basis that the question is speculative. The plaintiff alleges that the leaves were a danger (paragraph 23(g) and a hazard (paragraph 23(z) and alleges that the defendant was negligent in permitting the hazard to remain. She is entitled to know whether or not the defendant agrees that leaves on the sidewalk could pose a hazard to a pedestrian as it is an issue she has raised in her pleading.
Refusal 20 – Question 321 – to produce the GPS records of the field investigator’s vehicle from 26 October 2012 to 6 December 2012.
[10] The defendant has produced or agreed to produce the records from 26 October 2012 to 4 December 2012 but has refused to produce the records for December 5 or 6. The plaintiff fell on 3 December 2012.
[11] The defendant argues that its actions post-incident are irrelevant. I disagree. First, the plaintiff has pleaded facts about the defendant’s conduct post the plaintiff’s fall in paragraph 16 of its fresh as amended claim.
[12] Second, the conduct of the defendant in the days following the fall may demonstrate that it took remedial measures. The courts have held that “remedial measures” such as changes in training, operations or alerts that may be instituted following and possibly as a result of an incident could provide evidence of what was reasonable in the circumstances, whether a defendant took reasonable care and whether a defendant met a reasonable standard – Murapov v. Metron Construction Inc. 2014 ONSC 3535 at paragraph 23. See also Algoma Central Railway v. Herb Fraser & Associates Ltd. (1988), 66 O.R. (2d) 330 at paragraphs 334 and 335 which held that the exploration of remedial measures has at least some probative value and that “matters of admissibility and the weight to be given to such evidence at trial should be left to the trial judge to determine”.
Refusal 27 – Question 339 – to advise of lawsuits or claims that were made against the City three years prior to the incident for slip and falls on leaves on Colbeck or Windermere.
[13] The defendant argues that this is irrelevant. Both the statement of claim and the statement of defence put in issue the knowledge of the city with respect to the accumulation of leaves and the creation of a nuisance. If the defendant was aware of a significant number of claims arising from pedestrian falls on leaf-covered sidewalks on Colbeck or Windermere, that information may be relevant based on the pleadings as drafted. I find the question to be relevant.
Costs
[14] The plaintiffs were successful on their motion and are entitled to their costs. Their costs outline totalled $13,179.01 on a partial indemnity basis. The defendant’s costs outline totalled $2,043.16. The plaintiffs did prepare a small factum and a casebook, both of which were helpful and the defendant did not take those steps.
[15] All the same, the costs sought by the plaintiffs on a short refusals motion are disproportionate. In my view the all-inclusive sum of $4,000 is a fair and reasonable amount that the defendant could expect to pay for costs in all of the circumstances of the motion.
[16] The defendant shall pay the plaintiffs their costs of the motion in the all-inclusive amount of $4,000 within 30 days of the release of this decision.
[17] The plaintiffs may recover the submitted transcript of the examination of the defendant’s representative from the court file from Christine Meditskos on the 6th floor on or before 7 September 2018.