COURT FILE NO.: CV-14-507831
DATE: 20180205
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christine Ammah Swani
AND:
The Corporation of the City of Toronto and Maple-Crete Inc.
BEFORE:
Allen J.
COUNSEL:
Darren Kirupa, for the Plaintiff
Paul E. F. Martin, for the Defendants
HEARD:
January 15 to January 18, 2018
REASONS FOR JUDGMENT
THE FALL AND INJURY
Examination-In-Chief
The Fall
[1] On March 23, 2014, Christine Swani, age 78 years at the material time and age 80 at trial, slipped and fell on a sidewalk in the vicinity of Eglinton Ave. E. and Markham Rd. in the City of Toronto ("the City"). Ms. Swani testified with the assistance of a Tamil interpreter. Claims were brought against the City and a contractor with the City, Maple-Crete Inc. ("Maple-Crete"). Maple-Crete was released from the action. The claim remains only against the City.
[2] At around 8:45 a.m. on Sunday, March 23, 2014, Ms. Swani was on her way from her church at 21 Markanna Dr. She walked eastbound on the south side of Eglinton Ave. E. towards the intersection of Markham Rd. Ms. Swani testified she then went southbound on the west side of Markham Rd.
[3] Ms. Swani was shown a copy of a Google map of the intersection of Markham Rd. and Eglinton Ave. E. She acknowledged that the yellow "X" marked the spot where she fell. The X is situated some distance south of Eglinton Ave. E. on the sidewalk on the west side of Markham Rd.
[4] Ms. Swani testified there were "glassy" areas on the sidewalk where she slipped. By the word "glassy" Ms. Swani meant "icy". She testified when she first left the church, she walked along Eglinton Ave. E. and she found the sidewalk to have icy areas "on and off". She turned right onto Markham Rd. and she found the sidewalk on the west side to be glassy "on and off'. She says she fell on an icy spot.
[5] Ms. Swani discarded the footwear she was wearing when she fell. She testified she was wearing shoes that came just under her ankle with a flat sole and a flat heel similar to the ones she showed the court she was wearing at trial.
The Injury
[6] Ms. Swani experienced great pain when she fell. A woman helped her up and took her home. She remained at home that day resting in bed. The next morning her right foot was swollen and her pain so severe that her son took her to the hospital. She was examined by a doctor and released to the care of her son. The next day the hospital called her to return for further medical treatment. The doctor examined her again and applied a cast. The doctor suspected she might have fractured her right ankle.
[7] Ms. Swani wore the cast for 1½ months. The doctor removed her cast and indicated she had suffered a sprain rather than a fracture. The parties agree that her injury was a sprain of her right ankle. Ms. Swani was given crutches, a walker and a wheel chair because she had trouble walking. She used the walker until the cast was removed. She could walk unsupported about two or three months after the fall. She received care from a personal support worker.
[8] Ms. Swani spoke about her activities of daily living before the accident. She indicated that she could do some cooking, cleaning and dusting in her home for a two-hour period each day. She stated that she was able to resume these duties about two years after the accident. Ms. Swani stated that she was hampered during those two years by the swelling and pain in her right ankle.
Cross-Examination of Ms. Swani
Inconsistent Evidence on the Fall
[9] Ms. Swani displayed some memory problems during her testimony.
[10] Ms. Swani was examined for discovery on September 8, 2015, almost four years before trial. Counsel for the City cross-examined Ms. Swani on prior inconsistent statements she made at discovery.
[11] Counsel for the City pointed out to Ms. Swani that she did not recall her name when he questioned her at discovery. The transcript reveals that when she was asked her age she said she was either age 76 or 78. Ms. Swani testified she did not remember saying that.
[12] At discovery, Counsel for the City asked Ms. Swani what is the address on the building where she resides. The transcript indicates Ms. Swani answered that only her son knows the correct address. At trial Ms. Swani denied she was asked that question.
[13] Ms. Swani agreed that she could communicate with her lawyer in Tamil. There is some discrepancy as to exactly where Ms. Swani fell. Counsel for the City directed Ms. Swani to a letter dated April 19, 2014 from Ms. Swani's counsel to the City. That letter states, "Our client slipped and fell on an unsalted patch of ice that had accumulated on the southwest corner of Markham Road and Eglinton Avenue East." [my italics]
[14] Counsel for the City also pointed to the amended statement of claim where the allegation is that Ms. Swani fell near the intersection of Eglinton Avenue East and Markham Road. There are many amendments to the claim before trial. There was no amendment to particularize exactly where Ms. Swani fell.
[15] Counsel for the City challenged Ms. Swani that the letter and statement of claim indicate she fell at a different location than she testified to under examination-in-chief at trial. He put to her that she fell near the intersection. Ms. Swani responded, "a little bit away, I slipped and fell." [my italics]
[16] Ms. Swani agreed that she could speak to her family doctor in Tamil. Ms. Swani's family doctor's clinical notes and records dated May 20, 2014 indicate that Ms. Swani fell in front of the church, which Ms. Swani estimated was some ten minutes away from the intersection of Eglinton Ave. and Markham Rd. Ms. Swani denied telling her doctor that.
[17] Counsel for the City also pointed to the discovery transcript where Ms. Swani testified she fell directly in front of an apartment building. At discovery she was not sure if the fall was in front of the entrance or further away. It was at discovery that Ms. Swani marked the X on the Google map referred to earlier.
[18] Counsel for the City referred Ms. Swani to a medical assessment that was ordered by her family doctor to assess her cognitive status. The assessment was conducted at the Scarborough Hospital Geriatric Clinic on July 7, 2015, two months before discovery. The assessment indicates Ms. Swani had been suffering from short-term memory loss for the past one to two years. It indicates she forgets names and dates and gets lost at times.
[19] Ms. Swani was asked whether she recalls going to that assessment and she indicated that she did not recall the appointment. To the information about memory problems she asserted that she has a "good memory. She remembers everything."
Conclusion on Location of Fall
[20] It is not at all clear from Ms. Swani's evidence where she fell in relation to the intersection at Eglinton Ave. E. and Markham Rd. There are three possible spots, right at or near the intersection, in front of the apartment building or in front of the church. Complicating this determination is of course Ms. Swani's poor memory which had been in decline at the time of the fall. At the time of the fall, Ms. Swani's memory had been about one year in decline according to the medical evidence.
[21] The family doctor's clinical note, made two months after the fall, indicates that the fall happened outside the church which would mean Ms. Swani did not walk any distance before she fell. It appears from Ms. Swani's evidence that she did walk for about ten minutes after she left the church. The question is how far she walked and where she fell. The doctor's note could be the result of the doctor's misunderstanding what Ms. Swani said or the result of an error in his note-taking. I discount the doctor's note for those reasons.
[22] Ms. Swani's memory that the fall occurred outside the apartment arose at discovery when by that time her memory had been in decline for about two years.
[23] It is the plaintiff’s burden on a balance of probabilities to prove that she fell and where the fall took place. The plaintiff takes the position that the fall occurred a distance away from the intersection, in front of the apartment building.
[24] I believe Ms. Swani did fall. I do not believe at all that Ms. Swani was purposely attempting to mislead the court. It was clear to me she was trying to do her best to assist with the evidence the court needs to make a decision. However, I do not find that the evidence Ms. Swani gave at discovery, when her memory was in the greatest decline, that she fell in front of the apartment building, is the most reliable evidence.
[25] I find the information she gave her lawyer included in the notice of intent to defend and that was pleaded in the amended statement of claim is more likely to be indicative of where she fell. I find that she fell at or close to the intersection of Eglinton Ave. E. and Markham Rd. and not in front of the apartment building or the church.
THE LAW
[26] Section 41 of the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A. ("the Act") sets out the conditions where liability is imposed on the City. Section 41(1) and (5) provides:
- (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.
Sidewalks
(5) Except in the case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk.
[27] Sidewalks are covered by s. 41(1). "Gross negligence" is not defined under the Act. The Supreme Court of Canada defined gross negligence as "very great negligence" and the Court of Appeal held that assessing gross negligence requires the use of common sense: Holland v. City of Toronto, 1926 CanLII 10 (SCC), [1927] S.C.R. 242 (S.C.C.) and Crinson v. Toronto (City), 2010 ONCA 44 (Ont. C.A.). What is considered a state of repair is determined on the particular facts of the circumstances.
[28] The evidence I accept is that Ms. Swani fell on ice on the sidewalk at or near the corner of Eglinton Ave. E. and Markham Rd.
[29] The City is responsible for keeping 7,000 km. of roadway in a state of repair during the winter months. It is a gargantuan task for the City to ensure that roads and sidewalks remain in reasonable condition. The City cannot reasonably be expected to clear every inch of a roadway or sidewalk that the public uses.
[30] There are two steps in the court's analysis of liability:
First, the court must determine whether the sidewalk was in a state of repair at the time of the accident. The burden falls to the plaintiff at this step; and
Second, if the sidewalk is found not to be in a state of repair, the City must demonstrate that the non-repair existed despite all reasonable efforts to ensure it repaired or sought to repair the damage. The burden is on the City at this step.
[Billings v. Mississauga (City), 2010 ONSC 3101 (Ont. S.C.J.)]
[31] The Act provides at s. 41(3)(a) to (c) three defences that the City can raise. The City indicated that if required to it will rely on the first two defences as follows:
- The City did not know and could not reasonably have been expected to know about the state of repair of the highway or bridge;
- The City took reasonable steps to prevent the default from arising.
[32] The City records before the court are admitted into evidence as business records for the purpose of s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("the C.E.A.") and accepted as an exception to hearsay. The required Notice of Intention under s. 35 of the C.E.A. was filed.
[33] The City called the evidence of a field investigator, a field patrol officer, a field supervisor and an employee of Maple-Crete, the company on contract with the City to provide snow ploughing services. These witnesses played various roles in addressing the snow and ice conditions on roadways and sidewalks in the Eglinton Rd. E. and Markham Rd. area during the relevant time.
[34] Bill Head, the field supervisor, explained the systems and data sources the City has in place to determine the need for service for snow and ice on roadways and sidewalks in the winter:
- the Road Weather Information System ("RWIS") which provides weather data;
- the Minimum Maintenance Standards System ("MMS") which provides the standards for maintaining roadways and sidewalks;
- the use of patrollers that patrol the roadways 24/7; and
- the 311 phone number where the public can call in a complaint; and
- the Toronto Maintenance Management System ("TMMS") that records complaints from the public.
[35] The RWIS contains snow advisories that record current and forecasted weather conditions, roadway and roadside conditions and operations in relation to weather events on recorded days and times. The weather records before the court pertain to March 12 to March 24, 2014.
[36] The pertinent weather advisories for the purposes of this trial are those closest in time to Ms. Swani's fall at 8:45 a.m. on March 23, 2014.
[37] The last snow event before March 23rd was on March 12th.
[38] The snow advisory for March 12th for Scarborough, which covers the area in question, for 9:00 a.m. forecasted 8 - 13 cm of snow. The actual accumulation was "trace cm". The current weather conditions data predicted 5 -7 cm with temperatures in the minus teens. Clearing and salting operations were done on the sidewalks and roadways. The data for 12 noon showed an accumulation of 5 cm of snow. Sidewalks were ploughed and salted. The 4:00 p.m. report shows a 10 cm accumulation of snow and indicates sidewalks and roadways were cleared and salted. At 6:00 p.m. snow accumulation was 12 - 13 cm and sidewalks and roadways were being ploughed and salted. The same data was recorded for 10:00 p.m.
[39] The snow advisories for the period March 14th to March 21st show zero accumulation of snow.
[40] A request for maintenance was called on March 15, 2014 ("the Service Request") at 6:03 p.m. for Markham and Eglinton Ave. on the 311 line from a resident Monica Bewlee. The Service Request states "caller fell due to slippery conditions". A hearsay question arose in relation to that statement.
[41] Ms. Bewlee unfortunately passed away before this trial so she was not available to testify about her complaint. Ms. Swani's counsel sought to have the contents of the Service Request admitted for the truth of its contents. He argues that the contents of the document meet the tests of reliability and necessity. Those tests if satisfied provide an exception to hearsay for an out-of-court statement: [R. v. Khelowan, 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.)] Counsel for the City argues that while the City records before the court in general are admissible as an exception to hearsay under s. 30 of the CEA the statement in question is second-hand hearsay and inadmissible for unreliability.
[42] I find the statement meets the test of necessity in that Ms. Bewlee will not be available to confirm or deny the information on the Service Request as entered by the 311 employee that took the call. However, I find reliability lacking. There is an intervening factor. The court cannot be certain that the employee who took Ms. Bewlee's call correctly noted what she said. Neither was the 311 employee before the court to speak about taking the complaint.
[43] Moreover the probative value of that statement to Ms. Swani's slip and fall is minimal in my estimation. Ms. Swani fell eight days after Ms. Bewlee's complaint. And further, it is far from a certainty that Ms. Bewlee fell in the same location at the intersection that Ms. Swani fell. Ms. Swani fell at the southwest corner. The Service Request does not state which corner at the intersection that Ms. Bewlee fell.
[44] I will admit the statement as part of the background narrative for the witnesses from the City to provide context for their testimonies about the March 15th Service Request.
[45] Back to the City's response to the March 15th Service Request. According to the City records, that Service Request was re-assigned on March 16th to the supervisor, Michael Lehman, who was the supervisor of the Morningside yard. Mr. Lehman has been retired from the City for four years. He testified at trial by video feed from the U.S. He had documents before him that were relevant to his involvement at the pertinent time.
[46] Mr. Lehman testified he responded to the Service Request on March 16th. His diary notes of March 17th indicate he sent out Maple-Crete contractors on March 17th at 11:30 p.m. to plough the assigned area which included ploughing, salting and sanding at Eglinton Ave. E. and Markham Rd. Mr. Lehman said he went out to inspect the area including the intersection of Eglinton Ave. E. and Markham Rd. on two occasions, once after Maple-Crete arrived and then after Maple-Crete completed the work. Maple-Crete's equipment was out in the area until about 10:30 a.m. the next morning.
[47] Mr. Lehman testified that he interpreted that the location on the March 15th Service Request, "Address: Eglinton Ave. E.; Cross Street 1: Markham Rd.; Offset: 0"”, referred to the four corners of the intersection. This is where he sent Maple-Crete to undertake their operations. He testified all he would have inspected at Eglinton Ave. E. and Markham Rd. would have been the sidewalks at the four corners of the intersection. He found the sidewalks at the four corners satisfactorily ploughed, salted and sanded when he inspected.
[48] This is the extent of Mr. Lehman's involvement with supervising the conditions at Eglinton Ave. E. and Markham Rd.
[49] There is no snow advisory report for Scarborough for March 22nd, the day before Ms. Swani's fall. A March 22nd report for North York was put in evidence. The forecasted snow accumulation on that snow advisory at 6:00 a.m. was 2 - 4 cm. The actual accumulation was 1 cm. The current weather conditions data predicted a temperature in the afternoon at above freezing, at 3 to 5 C. The weather was predicted to turn colder in the evening with no weather events forecasted. On March 22nd, the roadways were being salted and patrolled. The road conditions were for the most part dry and clear of ice and snow. There were no plough and salt operations for sidewalks. The data for 7:30 a.m. did not change from the earlier report at 6:00 a.m.
[50] Referring to the “Sidewalk and Bus Stop Snow Clearing Level of Service Table”, Mr. Head testified about the City's snow clearing policy for sidewalks. He testified that for the winter months of March and December the City deploys the contractors to salt and sand sidewalks when snow accumulation is 8 cm or more and for January and February, at 5 cm or more.
[51] Mr. Head testified snow clearing and salting was not ordered for sidewalks on March 22nd because there was only a light dusting of 1 cm snow that day and, with a temperature of 3 -50 C that day, the snow would have melted by the time the City deployed operations.
[52] Mr. Head explained, in accordance with the MMS, that field supervisors like himself were required twice every seven days to travel by City vehicle to inspect arterial (main) roads which, includes Eglinton Ave. E. and Markham Rd., for such problems as damaged areas, downed trees and for ice and snow. His last report before March 23rd was made on March 18th which is negative for any issues, that is, roadways in his view were safe and passable.
[53] Mr. Head also testified about winter patrols. If there is a snow event, salters and ploughs are called out. The Toronto Maintenance Management System (the "TMMS") report records maintenance requests for roadways, sidewalks and boulevards. The TMMS for the period March 10 to March 31, 2014 was before the court on which three service requests were made for the area in question.
[54] Iqbal Patel, a winter patroller, testified that winter patrols are conducted during three eight-hour shifts, 24 hours a day, seven days a week. He testified the patrollers patrol a sampling of the roadways in Scarborough since it is not possible to patrol every roadway. An indicator map guides the patrollers as to which streets they are to patrol. Eglinton Ave. E. and Markham Rd. are included among the sampling of streets.
[55] Mr. Patel testified he patrols for road and weather conditions. He records on log forms the date and time and the weather forecast. As patrollers travel about, they record the operations at play and the temperatures of the air and roadway. They log their observations every one-half hour on a daily basis. The primary function of the patrollers is to patrol the roadways but they also make observations of sidewalks up to the curbs. The patrollers' observations are sent to the supervisor who makes decisions about deploying personnel and equipment.
[56] Mr. Patel referred to the Winter Maintenance Inspection Log for the period from 10 p.m., March 21st to March 22nd at 6 a.m. On March 22nd at 4:00 a.m., the air temperature was 20 C and the road temperature was 10 C. There was light snowfall and the roadways bare and wet. There was no snow accumulation or snow operations by that time.
[57] There are observations from 6:00 a.m. to 6:00 p.m. on March 22nd and March 23rd. At 6:30 a.m. on March 22nd the air temperature was 00 C and a salting operation was undertaken for a snowfall. At 9:00 a.m. on March 22nd the air temperature was 20 C and the road temperature was 10 C. There were no weather events reported. All salt operations were completed on March 22nd by 10:11 a.m.
[58] On March 22nd at 11 p.m., at the intersection of Eglinton Ave. E. and Markham Rd., the air and road temperatures were both -10 C, the roads were bare and dry and there were no snow operations undertaken. At 9:00 a.m., on March 23rd, the approximate time Ms. Swani fell, at another intersection close to the intersection at issue, the air temperature was -70 and the road temperature was -50 There were no weather events. Roadways were bare and dry and no operations were undertaken.
ANALYSIS
[59] For reasons set out above, I believe Ms. Swani slipped and fell at or near the southwest corner at the intersection of Eglinton Ave. E. and Markham Rd.
[60] I accept that there might have been an area on the southwest corner that had some ice that contributed to Ms. Swani falling. Ms. Swani spoke about ice being “off and on” along the sidewalk on her route from church.
[61] Problematic for Ms. Swani is the fact that she did not wear snow boots on that morning. She was wearing shoes much the same as the ones she wore to court, a pair of ankle-high shoes that had a flat sole and heal with no gripping treads. Ms. Swani is also of a senior age and, according to her doctor's clinical note of July 30, 2014, has a history of falling in the basement. Perhaps, it was owing to her memory deficits that she did not recall the previous fall.
[62] Courts have held that the presence of ice or snow alone is not sufficient to establish liability. There must be more. The presence of snow and ice must give rise to a dangerous condition. Billings v. Mississauga sets out factors the plaintiff must establish:
- that the alleged snow and/or icy conditions on the sidewalk gave rise to a dangerous condition sufficient to constitute a state of non-repair; and
- that the City was grossly negligent in failing to address that state of non-repair.
[Billings and Mississauga (City), 2010 ONSC 3101 (Ont. S.C.J.)]
[63] It is not every fall on ice that results in injury that attracts liability. Occhino v. Winnipeg addresses the reasonable limits placed on a municipality's obligation:
The duty to protect the public from the hazards of snow and ice is far from absolute. The City is not an insurer of safety. It must take reasonable steps to keep sidewalks free of dangerous conditions, but its failure to do so does not necessarily result in liability to everyone who falls and is injured.
[Occhino v. Winnipeg (City), 1988 CanLII 5647 (M.B.C.A.)]
[64] The evidence does not establish that the condition of the sidewalk at the intersection of Eglinton Ave. E. and Markham Rd. was in disrepair. There is no evidence the conditions were dangerous to the public.
[65] I find that I can make a determination based on the plaintiff’s counsel not satisfying the first step in Billings v. Mississauga. Ms. Swani was not able to prove through the evidence before the court that the conditions at or near the corner of Eglinton Ave. E. were in disrepair.
[66] The last notable snow event before Ms. Swani's fall was 11 days earlier. The snow accumulation on subsequent days amounted to at most 5 cm on the days when there were snow falls. Many of the days had no snowfall at all. Hence, there was no need on some days for the City to send out contractors for removal or for salting and sanding the roads and sidewalks. Many of the days were either above zero Celsius or in the low single digits below zero. The only snow fall close in time to the date of Ms. Swani's fall was 1 cm on the morning of March 22nd. Salting and sanding operations were undertaken to address that snow.
[67] Late in the evening of March 22, the temperature was -10 C, the roadways were clear and dry. On the morning of the fall at a nearby intersection the temperature was -70 C, it did not snow, and the roadways were clear and dry.
[68] On March 22, there was no ploughing or salting of sidewalks. This was the case since, according to Mr. Head there was only a dusting of snow that day and no significant accumulation because the temperature was above freezing. That would have caused any snow to melt. The patroller, Mr. Patel, testified during his patrols of the area in question he watched for any snow and ice conditions on sidewalks. He made notes every one-half hour and testified he did not observe snow or ice conditions at Eglinton Ave. E. and Markham Rd.
[69] Counsel for Ms. Swani placed some emphasis on the March 15th Service Request which the City responded to on March 17th, six days before Ms. Swani's fall. The employee who took the 311 call noted a complaint that a resident had fallen at the intersection where Ms. Swani fell. I am satisfied by Mr. Lehman's evidence that there was snow clearing, salting and sanding by the contractors that addressed any ice or snow accumulation that might have been there on March 17th. Mr. Lehman personally investigated the four corners of the intersection himself to satisfy himself that Maple-Crete had completed the operation.
[70] Mr. Lehman's evidence is consistent with the evidence on City’s maintenance systems records and compatible with other witnesses' observations of the conditions of the roadways and sidewalks leading up to the morning of March 23, 2014.
CONCLUSION
[71] Ms. Swani was not able to satisfy the court on a balance of probabilities that the intersection of Eglinton Ave. E. and Markham Rd. on the southwest corner was in a state of disrepair when she slipped and fell and sprained her ankle on March 23, 2014.
DISPOSITION
[72] I dismiss the action.
COSTS
[73] The City waives a claim for costs against Ms. Swani.
Allen J
Date: February 5, 2018
COURT FILE NO.: CV-14-507831
DATE: 20180205
ONTARIO
SUPERIOR COURT OF JUSTICE
Christine Ammah Swani
Plaintiff
and -
The Corporation of the City of Toronto and Maple-Crete Inc.
Defendants
REASONS FOR JUDGMENT
Allen J.
Released: February 5, 2018