Court File and Parties

COURT FILE NO.: CV-09-377701 DATE: 20190318 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SUSAN CUMING and MARTIN GYOROKY, Plaintiffs – and – CITY OF TORONTO, THE TORONTO TERMINALS RAILWAY COMPANY LIMITED and TORONTO PORT LANDS COMPANY, Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Bryan Rumble and Alissa Goldberg, for the Plaintiffs Danette Cashman, for the Defendants, City of Toronto and Toronto Port Lands Company Jonathan Levy and Jordan Elmore, for the Defendant, Toronto Terminal Railway Company

HEARD: February 12, 2019

Endorsement

[1] In this double motion, the Defendants, City of Toronto and Toronto Port Lands Company (together the “City”), move under Rule 20.04 of the Rules of Civil Procedure for summary judgment dismissing the action. At the same time, the Defendant, Toronto Terminal Railway Company (the “Railway”), which has been released from the action by the Plaintiff, moves for summary judgment dismissing the City’s crossclaim against it.

I. The accident

[2] Although the record before me is voluminous, the factual background to the dispute is rather straightforward. Between 7:30 and 8:00 a.m. on November 4, 2008, the Plaintiff, Susan Cuming, had an accident while riding her bicycle in the area of Carlaw and Lakeshore Boulevard in Toronto. She was travelling at a normal speed on a route with which she was very familiar as she had travelled it many times before. The morning was sunny and the temperature above freezing. There were no mechanical problems with her bicycle.

[3] The Plaintiff was proceeding westbound on a dedicated bicycle path as she approached a pair of railway tracks that cross the bicycle path at an approximately 15º angle. That is an awkward angle for a bicycle to encounter railway tracks, as the tracks running almost-but-not-quite parallel to the rider’s direction form a groove which can catch the narrow bicycle wheel and topple the bicycle. The Plaintiff turned her wheel as she approached, making an effort to cross the tracks at something closer to a 90º angle, as recommended when encountering this type of obstacle.

[4] There is a strip of rubber padding just before the track that abuts the metal track itself. The Plaintiff deposed that as she maneuvered her bicycle to cross the railroad track, her wheel slipped on the rubber and caused her to fall. She fell hard enough onto the ground that her helmet cracked. Although it was not raining that morning, the Plaintiff testified that the rubber strip and tracks were wet with morning dew.

[5] As a result of the accident, the Plaintiff suffered clavicle, head, shoulder, back, and hand injuries. She states that she continues to experience a variety of symptoms, including physical problems as well as memory loss, anxiety, difficulties in concentrating, sleeping, and speaking. She pleads that she not only endured pain and suffering as a result of the accident, but that her activities and lifestyle have been impacted in a negative way.

II. The City’s motion

[6] Counsel for the Plaintiff has submitted an expert Engineering Assessment of the bicycle path and railway crossing by Scott P.W. Walters (the “Walters Report”). The Walters Report identifies the shallow angle at which the bicycle path crosses the railway track as a design flaw which ought to have been avoided. In this regard, he concludes that the railway crossing did not meet the requirements in the Guidelines for the Design of Bikeways and Ontario Bikeways planning Design Guidelines, nor did it meet the 1983 Guidelines for the Design of Bikeways and the 1996 Bikeways Planning Design Guidelines. It was Walters’ opinion that the bicycle path crosses the tracks at an unsafe angle, creating a hazard that is well recognized by bicycle safety experts.

[7] The Walters Report also notes that there are no roadway markings for the bicycle path at the railway crossing, nor are there any signs warning bicyclists that the tracks are approaching. It highlights as well the fact that there is a 2 cm elevation difference between the tracks and the bicycle trail and a reduced coefficient of friction as between the rubber pad that abuts the tracks and the asphalt bike path that meets it. The Walters Report opines that either or both of these factors increase the risk of a bicycle wheel slipping at precisely the spot where the Plaintiff’s fall occurred.

[8] In addition, the Walters Report conducted a site inspection at the location of the accident. It is noted in the report that one can see on inspection several sections of rubber padding missing or deteriorated at the railway crossing point. Plaintiff’s counsel extrapolates from the Walters Report that this failure to properly maintain the rubber padding and railroad crossing constitutes one more causal factor leading to the accident.

[9] In its conclusion, the Walters Report places the fault of the injury on the City for the substandard design, the negligent construction and maintenance of the tracks and adjacent padding, and the absence of necessary signage. In the view of the Plaintiff’s expert, had the track been properly designed, maintained, and demarcated with warning signs at the spot where it crosses the bike path, the Plaintiff “would have been unlikely to have steered in order to cross the tracks perpendicularly and risk sliding on the reduced coefficient of friction of the rubber pad compared to the asphalt bike path, lose control, and fall.”

[10] The City has responded to the Walters Report with an expert report produced by Sam Kodsi dated November 3, 2017 (the “Kodsi Report”). In the Kodsi Report, the City takes issue with the Plaintiff’s expert and submits that the Walters Report is unrealistic in identifying the design of the tracks as faulty. According to the Kodsi Report, there was insufficient room at the point where the tracks cross the bicycle path to widen the bicycle path to allow for a 90º angle.

[11] Unlike the Plaintiff’s expert, the City’s expert never visited the site of the accident. The City attempted to supplement the Kodsi Report by providing first-hand knowledge in the form of an affidavit of Jacqueline Hayward Gulati, its head of infrastructure management. Though knowledgeable in the area, Ms. Gulati is not, of course, an expert witness in this case; rather, she is a senior employee of one of the parties and therefore a subjective rather than an objective witness. She is also not permitted to proffer opinion evidence, although she can depose to factual matters on behalf of the City.

[12] In any case, Ms. Gulati stated that the City considered the rubber padding that abuts the tracks to be best practices for safety. She further indicated in her evidence that with the placement of the rubber pad and fillers, the City was doing its best to provide a safe transition from the trail to the railway track crossing. According to Ms. Gulati, there is evidence of hundreds of users during wet, rainy days, let alone when there is possibly dew on the trail, who appear to have had no issue negotiating the railroad track crossing. In fact, she stated that in August 2014 the rubber padding was removed from the tracks at this very spot, and a series of accidents was reported upon its removal. There is apparently no other reported case of someone losing control on the tracks while the rubber pads were in place.

[13] Counsel for the Plaintiff points out that the Province of Ontario’s Traffic Manual Cycling Facilities Guideline (Queens Park, December 2013) – a Guideline that Ms. Gulati was herself involved in producing – suggests, at p. 156, that the shoulder of a road be widened in advance of a railway crossing to allow cyclists to compensate for the narrow angle of the crossing. The Walters Report indicates that there was indeed sufficient space to widen the shoulder at the crossing point, but that for unknown reasons this was not done. Likewise, it indicates that signage, pavement markings, gates, and stop signs are all recommended in the Guideline, but that none of these were installed by the City despite the danger recognized in a Guideline authored by the City’s own official.

[14] The Walters Report opines that the rubber pads themselves were not sufficient to neutralize the biking hazard. It recommends all of the same things that the Guidelines do; in particular, it states that the bikeway and shoulder should have been widened to allow riders to cross the track “as close to perpendicular as possible”.

[15] For its part, the Kodsi Report takes issue with this conclusion. It states that there was sufficient traction at the crossing point to counter any slipping hazard. It also opines that no wider turning angle was necessary at this particular spot, regardless of what the Province sets out in its Guidelines.

[16] It is worth noting that the question of whether the widening of the path’s shoulders was feasible is a matter of factual debate between the parties. Ms. Gulati testified that the bicycle trail is as wide as it can be at the point of crossing without going outside of the pathway itself. Plaintiff’s counsel responds by indicating that the record contains copies of the design drawings from 2001 when the eastern portion of the Gardiner Expressway came down and the bicycle trail was built. There appears to be no indication that the trail could not have been widened to allow for a right or near-right angle crossing when first designed, although Ms. Gulati’s evidence suggests that was not a physically realistic option.

[17] It is not only the issue of causation that is a matter of expert debate. The applicable standard of care is also contentious as between counsel and the respective experts.

[18] According to the City’s counsel, the bicycle path is a recreational trail of which the City as owner and caretaker is occupier. She submits that s. 4 of the Occupiers Liability Act, RSO 1990, c. O.2 (“OLA”) applies and that under that statutory provision the Plaintiff must demonstrate that the City has shown a “reckless disregard” for the safety of those who use the path. That standard of care is, of course, lower than the standard of reasonable care that would prevail at common law. To the extent that the OLA applies, the reckless disregard standard displaces the reasonable standard that would otherwise be imposed on the City in these circumstances.

[19] Plaintiff’s counsel responds that the spot at which the accident took place is not a recreational trail, but rather falls within the City’s road allowance. He points out that s. 45 of the City of Toronto Act, 2006, SO 2006, c. 11, Sched A, talks about unused parts of the roadway and sidewalks as being part of the roadway. If that description covers the bicycle path, then the place of the Plaintiff’s accident would be covered by an exclusion contained in s. 10(2) of the OLA: Guse v City of Thunder Bay, [1998] OJ No 3257, at para 16 (Gen Div). In that case, the higher common law standard of care would apply.

[20] Although Ms. Gulati appears to have agreed with that proposition in cross-examination, counsel for the City submits that in fact the bicycle path is not a road or a highway. She argues that any indication that this trail is part of the road allowance is only a description of how the City came to own the land, not its current function. Today it is a recreational trail and belongs within the OLA. For this reason, it is the City’s position that the lower standard of care applies.

[21] The Walters Report contends that the requisite standard of care is set out in detail in the various Manuals and Guidelines it cites. That is, although these documents are not legally binding as legislative enactments, they provide the specialized guidance on standards to be met by municipalities: see Smith v Safranyos (2018), 2018 ONCA 760, 143 OR (3d) 22, at paras 47-51 (Ont CA). Thus, Plaintiff’s expert states that re-positioning and widening the bicycle path at the point of contact with the rails, together with additional signage warning of the upcoming hazard, were all part and parcel of the reasonable standard of care.

[22] The Kodsi Report, supported by Ms. Gulati’s evidence, is that the rubber padding was best practices for safety at railway crossings. They contend that having taken this preferred course, any other steps (such as those proposed in the Walters Report) would have been superfluous.

[23] The Court of Appeal declared in Raes v Rothwell, [1990] OJ No 2298, at para 6 that, “It is not for this court to…reassess the relative merits of contradictory expert testimony.” Accordingly, even in the wake of the Supreme Court of Canada’s judgment in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, which changed much of the landscape for summary judgment motions, two competing expert opinions on central issues such as standard of care and causation do no lend themselves to judgment in the absence of a trial.

[24] While the Rules permit me to weigh credibility where necessary, the sizing up of experts with diametrically opposed positions cannot generally be done on the basis of a paper record alone. Actually hearing the experts testify in chief and in cross-examination is necessary for such a contest: Maracle v Mascarin, 2016 ONSC 537, at para 40.

[25] It is today well established that “a trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, [and] apply the law to those facts”: Hyrniak, at para 4. On the other hand, the powers of a motions court to achieve a final resolution of a civil action may not be exercised if “it is in the interest of justice for them to be exercised only at a trial”: Rule 20.04(2.1), Hyrniak, at para 45.

[26] In the circumstances, the competing expert reports and the irreconcilably conflicting views of the experts on the key issues of causation and standard of care, lead me to conclude that there are a number of important and genuine issues requiring a trial. This is therefore not a case where summary judgment is appropriate: see Rule 20.04(2)(a).

III. The Railway’s motion

[27] The City’s crossclaim is in negligence, seeking payment from the Railway in the event the City is found liable to the Plaintiff. As indicated, the Plaintiff has agreed to release the Railway from her claim, but the City has not agreed to release the Railway from its claim for contribution and indemnity.

[28] Counsel for the Railway starts his argument by submitting that evidence from the Plaintiff’s discovery transcript can be relied on in this motion to determine the nature of the accident: see Morand v City of Brampton, 2015 ONSC 877, at para 23. At discovery, the Plaintiff expressed the view that the front tire of her bicycle slipped on the wet surface of the first rubber pad as she approached the railway track. As the Railway’s counsel sees it, this establishes that the installation or state of repair of the rubber padding had nothing to do with the accident. That is, it was the fortuitous presence of dew on the pad, and nothing for which the Railway could be faulted, that caused the Plaintiff’s fall.

[29] The Railway’s counsel goes on to submit that the Railway played no part in the design or location of the bicycle path and trail. The Railway’s affiant indicates that the Railway relied entirely on the engineering firms hired by the City to do this design work.

[30] It is also the Railway’s position that it was the City, not the Railway, that was responsible for water-related maintenance (i.e. snow removal and other operations relating to what the Railway personnel refer to as “mother nature”). Counsel for the Railway emphasizes that the Plaintiff’s testimony was not that her bicycle tire got caught in the railway track, but rather that her tire slipped on the wet rubber. He submits that whatever else the Railway may have been responsible for, it had no responsibility for keeping the rubber pads free of moisture.

[31] As the Railway sees matters, it had nothing to do with the design, installation, material selection, or maintenance of the tracks. Accordingly, the Railway’s counsel submits that the Railway had nothing to do with the accident, and that the crossclaim raises no issue requiring a trial.

[32] In response, the City argues that the Railway was indeed responsible for crucial aspects of the track and bicycle path juncture. Specifically, the Railway was responsible for oversight of the construction of the crossing where the accident occurred.

[33] The Railway does not exactly counter this point, except to note that the Plaintiff’s claim, and therefore the City’s indemnity claim, does not allege faulty construction. It is more focused on design flaws and maintenance shortcomings. In this respect, the Railway places full responsibility on the City as the party that not only designed the bicycle path but that maintained the path and the tracks on an ongoing basis.

[34] The Railway’s counsel argues that even if daily maintenance were the responsibility of the Railway – which it denies, pointing to an agreement it has entered with the City making the City responsible for daily upkeep of the bike path and crossing – the Plaintiff’s allegation of faulty maintenance would, in effect, impose unachievable demands. For one thing, it would require that the path, tracks, and rubber padding be kept dry at all times. He points out that the Court of Appeal has indicated on previous occasions that perfection is not a reasonable standard of care: Nandlal v TTC, 2014 ONSC 4760, aff’d 2015 ONCA 166, at paras 7-10. To this end, he asks rhetorically, “Was [the Railway] obliged to wipe the moisture off the wet bumper on the morning of the accident?”

[35] The Railway contends that it is not an “occupier” for the purposes of the OLA, and that it therefore owes no duty whatsoever to users of the bicycle path. It then goes on to state that even if it is an occupier that owes a duty of care to the Plaintiff, the standard of care is no higher than a reasonableness standard. To this effect, the Railway cites Waldick v Malcolm, [1991] 2 SCR 456, where the Supreme Court of Canada stated that under the OLA the goal is for occupiers to make an area “reasonably safe”, not absolutely safe. Counsel for the Railway submits that it has met that standard.

[36] Counsel for the Railway goes on to contend that even the City’s own officials agree with the Railway’s position. In making this point, he relies on statements made to this effect by Robert Orpin, the City’s manager of transportation and its affiant in this motion. In cross-examination, Mr. Orpin conceded that responsibility for maintenance in this area has been contractually allocated to the City [Qs 250-255]:

Q: …it is the City’s departments of…Transportation department and the Parks and Rec department that are responsible for making sure the trail is clean and safe? A: Correct, yes. Q: And in 2008…the [City’s] inspection would include…the portions of bike path that are made up of rubber bumpers that are traversing the railway track, correct? A: Correct. Q: Okay. And, again, I think you mentioned that that is all with a view to making sure the path is safe for pedestrians and cyclists, is that… A: Very much so, yes.

[37] The problem with this line of argument, however, is that one cannot determine today whether a trial judge will agree that the City’s inspection duties extended beyond checking for deterioration and repair of the rubber pads. That is, the City appears to have been contractually obliged to keep the bicycle path maintained to an appropriate level of cleanliness and usability, and it also was obliged to carry out periodic inspections to ensure that the path and rubber padding were in a good state of repair; however, daily maintenance of the rubber pads themselves and the track that they abut is a slightly different question.

[38] Most importantly, it is a question that will be necessary for the trial judge to determine. And therein lies the challenge for the Railway in seeking summary judgment. Although the City concurs with the Railway’s assessment that the Plaintiff’s level of maintenance demands are not viable, it is unwilling to dismiss its crossclaim unless and until a court agrees with this view of the Plaintiff’s claim. That determination, of course, will not take place until trial.

[39] Counsel for the City therefore answers the Railway’s rhetorical question with a rather astute observation of her own: it is unfair to dismiss the City’s crossclaim on the grounds that it is not reasonable to expect the Railway to wipe the dew off the rubber pads every morning, when a trial judge one day may find that the dew should have been wiped off the rubber pads every morning.

[40] In this respect, the Railway’s motion for summary judgment of the crossclaim is much like a motion for partial summary judgment. It may seem to be a cogent request when looked at in isolation, but is problematic in context of the overall action. In Butera v Chown, Cairns LLP, 2017 ONCA 783, at para 39, Pepall JA observed for a unanimous Court that when “the litigation as a whole has been considered, partial summary judgment would not have been an appropriate award as it would not serve the objectives of proportionality, efficiency, and cost effectiveness.” This is especially the case where the issues are, as here, inextricably intertwined.

[41] The Court of Appeal has been especially concerned to warn against granting partial summary judgment in pre-trial motions where it is possible for a trial judge to do precisely what the City’s counsel envisions might happen here – i.e. to come to a diametrically opposed conclusion on a finding that impacts on liability: see Healthy Lifestyle Medical Group Inc. v Chand Morningside Plaza, 2019 ONCA 6, at para 9. Indeed, this point was made in the Hyrniak case itself. Karakatsanis J., at para 60, made a distinct point of identifying partial summary judgment as falling outside of the scope of the new thinking on trials and summary judgment that Hyrniak otherwise introduced:

For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice.

[42] The reason for this caution is self-evident and logical; it is foreseeable that the trial judge “will develop a fuller appreciation of the relationships and the transactional context than the motions judge” which could risk “inconsistent findings and substantive injustice”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, at para 37. As the Court of Appeal most recently observed in Mason v Perras Mongenais, 2018 ONCA 978, at para 44, “nothing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to a ‘fair process and just adjudication’” [citation omitted].

[43] Given that the issues of causation, duty, and standard of care will inevitably be revisited by the trial judge in the main claim, summary judgment of the crossclaim is not appropriate at this time. The possibility of inconsistent findings is very real, which raises the spectre of a judgment at this point working an injustice. The advantages of time and efficiency that would push for summary judgment are overshadowed by the concern that the resolution of the overall case be a just one.

[44] Accordingly, there remains a genuine issue for trial on the crossclaim, which should be tried together with the main claim.

IV. Disposition

[45] The City’s motion for summary judgment on the Plaintiff’s claim is dismissed.

[46] The Railway’s motion for summary judgment on the City’s crossclaim is likewise dismissed.

[47] Counsel may make brief written submissions on costs. I would ask that all parties have their submissions to me within two weeks of today. They should be comprised of Cost Outlines together with written argument of no longer than 2 pages in length.

Morgan J.

Date: March 18, 2019