Court File and Parties

COURT FILE NO.: C-1113-17

DATE: 2019-02-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANIEL TOWNSEND, by his Litigation Guardian JENNIFER TOWNSEND, and JENNIFER TOWNSEND, Plaintiffs

AND:

THE CORPORATION OF THE CITY OF KITCHENER, THE REGIONAL MUNICIPALITY OF WATERLOO, ROBERT ALEX MACLEAN, DONNA VISEE and KITCHENER-WILMOT HYDRO, Defendants

BEFORE: D.A. Broad

COUNSEL: Cameron Malcolm, Counsel for the Defendant Robert Alex MacLean Michelle Packer, Counsel for the Defendant Donna Visee Chris Morrison, Counsel for the Defendant Kitchener-Wilmot Hydro

HEARD: January 22, 2019

ENDORSEMENT

Background

[1] The Plaintiff Daniel Townsend, a minor child, claims damages by his litigation guardian arising from a trip and fall over a raised concrete edge of a buried metal transformer box owned by the defendant Kitchener-Wilmot Hydro (“KW Hydro”). The fall occurred on December 23, 2015. The transformer box was located on the apron of a driveway on the road allowance owned by the defendant the Corporation of the City of Kitchener (the “City”) adjacent to properties owned by the defendants Robert Alex MacLean (“MacLean”) and Donna Visee (“Visee”). The defendant the Regional Municipality of Waterloo is no longer a party to the action.

[2] The Statement of Claim alleges negligence against all of the named defendants and also alleges that each of the named defendants were “occupiers” under the Occupier’s Liability Act R.S.O. 1990, c. O. 2 (the “Act”) and are liable under the Act.

[3] MacLean and Visee have each defended the action and have each cross-claimed against all of their co-defendants for contribution and indemnity in respect of any amounts awarded against them in favour of the plaintiffs, as have each of KW Hydro and the City.

[4] MacLean and Visee (the “moving defendants”) have each brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure seeking dismissal of the action and all cross-claims as against them. They say there are no issues requiring a trial with respect to their liability as the area where the plaintiff fell was within the municipal road allowance, they were not occupiers of the driveway apron as defined in the Occupier’s Liability Act R.S.O. 1990, c. O. 2 (the “Act”) and there are no special circumstances sufficient to make them occupiers.

[5] Neither the plaintiffs nor the City oppose the moving defendants’ motions. KW Hydro opposes the motions.

[6] The facts are not largely in dispute.

[7] The transformer vault is part of the underground electrical grid which provides electrical power to various homes in the area of the properties owned by MacLean and Visee. It was installed by the developer of the subdivision for Kitchener Public Utilities Commission (“Kitchener PUC”) when the subdivision was developed in the 1970’s. KW Hydro subsequently acquired the electrical distribution assets of Kitchener PUC including the vault in question.

[8] MacLean purchased his property in August 2005. Visee acquired her property in or about 2006. At the time of the purchase of their respective properties the vault was already installed on the driveway apron. The asphalt driveway had been constructed at the time of installation of the vault.

[9] Visee’s only involvement with the driveway apron was driving her vehicle over it, removing snow and ice, and applying salt when needed. She has made no repairs to the driveway.

[10] The only involvement that MacLean had with the driveway apron prior to the incident was driving his vehicle over it, removing snow and ice and carrying out some minor weeding and lawn care where the driveway apron meets the grassy area. He made no repairs to the driveway or driveway apron prior to the plaintiff’s fall, with the exception of the application of a liquid driveway sealer between April 2009 and September 2011. He applied sealer again after the incident in the summer of 2016. When asked on cross-examination why he applied sealer he explained that it was “an aesthetic thing” and it protects the driveway to some extent from deteriorating.

[11] MacLean also acknowledged that he performed some maintenance work on the area around the electrical vault after the incident.

[12] Israel Briand, the Operations Engineer for KW Hydro, deposed in his responding affidavit that the developer or builder of the subdivision placed the driveway apron for the two residences around the hydro vault and that at the time the driveway was created “the surface would be flush with the hydro vault.” However it was acknowledged in submissions that that KW Hydro is not in possession of any plans, specifications or inspection reports confirming the order in which the driveway apron and the vault were installed or whether they were flush when installed.

[13] Mr. Briand deposed that, having inspected the vault, any issue with height variance is not related to any shifting or deterioration of the vault. He says that it has to do with deterioration of the driveway apron itself, however he offered no detail or information on how the driveway apron was deteriorated or, if it was deteriorated, whether any such deterioration occurred during the time that the defendants owned their respective properties.

[14] There is no evidence on the record before me that the development of any height differential between the top of the vault and the top of surrounding driveway apron surface occurred during the period of ownership of either MacLean or Visee. Indeed Visee testified on cross-examination that, during her period of ownership, the height differential had been always about the same. MacLean testified that, during his period of ownership, he noticed no changes in the height differential.

[15] KW Hydro takes the position that there is a genuine issue requiring a trial as to whether MacLean and Visee, as adjacent owners to the municipally-owned property where the plaintiff’s fall took place, are “occupiers” of the land for the purposes of the Act.

[16] KW Hydro also submits that, while the cause of the “deterioration” of the driveway identified by Briand has not been determined, the action is still at an early stage and discoveries have not taken place and therefore it cannot be stated that there is no issue of a duty of care at this stage of the proceeding.

Issues

[17] The issues for determination are therefore:

(a) Is there a genuine issue requiring a trial with respect to whether MacLean and/or Visee owed a duty to the plaintiff as “occupiers” under the Act?

(b) Is there a genuine issue for trial with respect to whether MacLean and/or Visee owed a duty of care to the plaintiff independent of the Act?

(c) Is it premature at this stage of the proceeding to determine whether there is a genuine issue requiring a trial on the duty of care issue?

Finding

[18] For the reasons set forth below, I find that there is no genuine issue for trial that the moving defendants owed any duty of care to the plaintiff under the Act or otherwise. I am able to reach a fair and just determination on the merits of the action based upon the motion material. The summary judgment process has allowed me to make the necessary findings of fact and to apply the law to the facts. I find further that summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result in this case. I am able to make a determination that there are no genuine issues requiring trial based only on the evidence before me, without using the fact-finding powers in sub rules 20.04(2.1) and (2.2). The motions should therefore be allowed and the action and all cross-claims dismissed as against the defendants Robert Alex MacLean and Donna Visee.

Discussion

[19] There is no disagreement between the moving parties and the responding party on the general principles confirmed by the Court of Appeal in Bongiardina v York (Regional Municipality, 2000 5408 (ON CA), [2000] O.J. No. 2751 (C.A.) at paras. 19-21 as follows:

(a) A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured, and if the homeowner complies with this duty he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks;

(b) There are two exceptions to the foregoing general principle;

(c) The first exception to the general principle is that a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. This is known as the “special circumstances” exception; and

(d) The second exception to the general principle is that the duty of care on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby. This exception may be referred to as the “flow exception.”

[20] The Court of Appeal cited at para. 20, as examples of the special circumstances exception, the cases of Bogoroch v. Toronto (City), [1991] O.J. No. 1032 and Moody v. Toronto (City), 1996 8229 (ON SC), 31 O.R. (3d) 53 (Gen Div.). In Bogoroch the court held that a store owner who used the adjacent sidewalk to display its wares on a continuing basis was an occupier of the sidewalk and subject to the duties imposed by the Act. In Moody the court held, in dismissing a motion for summary judgment, that the owners of what was then called the SkyDome in Toronto might be an occupier of the public walkways adjacent to the stadium because of the special circumstances relating to those walkways, including the almost exclusive use of them by SkyDome patrons and the lack of alternatives to the walkways.

[21] As an example of the flow exception the Court of Appeal cited the case of Brazzoni v. Timmins (City), [1992] O.J. No. 254 (C.A.) where the court held both the City of Timmins and the Toronto-Dominion Bank liable for injuries suffered by a person who fell on snow and ice on a public sidewalk near the bank. In relation to the bank’s liability, the court found that water had flowed from the bank’s property across the sidewalk at the time the plaintiff fell. By allowing the water from melting snow to accumulate on its property and to run across the sidewalk which was covered with snow and ice, the bank created a dangerous condition that it knew or ought to have known could cause injury to pedestrians using the sidewalk.

Special Circumstances Exception

[22] The nature of the control which must be exercised by an adjacent owner to make her or him an occupier for the purposes of the Act was considered by Sachs, J. in the case of Graham v. 7 Eleven Canada Inc. [2003] O.J. No. 544 (S.C.J.). In that case a patron of the 7 Eleven store alleged that he slipped and fell coming out of the store when he stepped off a raised tile area abutting the municipal sidewalk. Specifically, his leading right foot slipped when he contacted some ice on the sidewalk and buckled under him. The owner of the property in which 7 Eleven was a tenant brought a motion for summary judgment seeking dismissal of the action against it.

[23] Sachs, J. found that there was no evidence that the sidewalk in question was almost exclusively used by the patrons of the convenience store and there was no evidence that the use by patrons of the convenience store made it more difficult to see hazards on the sidewalk. She also found that the fact that patrons of the convenience store must use the portion of the sidewalk when going into and coming out of the store did not, in and of itself, make the landlord of the store an “occupier” of the sidewalk.

[24] Graham was specifically referred to and applied by D.A. Wilson, J. in the case of Mark v. Bhangari, 2010 ONSC 4011, [2010] O.J. No. 3014 (S.C.J.). In Mark the plaintiff was riding his bicycle on the sidewalk immediately adjacent to the property owned by the defendants. To avoid a pedestrian the plaintiff moved his bicycle onto a strip of grass running between the sidewalk and the defendants’ house and, while on the grass, it was alleged that the plaintiff struck a metal stump in the lawn causing him to fall off his bike causing injury to his wrist.

[25] Wilson, J. found on the record before her that there was no evidence that the defendant was controlling the grassy area where the plaintiff fell. The fact that he mowed the grass because he was of the mistaken belief that the grassy area was his property was of no consequence. He was not free to deal with that area as he wished. She also found that there was no evidence that the defendant had “exclusive” control of the municipal road allowance but rather he owned the house next to the grassy area and mowed the grass because he believed it was part of his property.

[26] Justice Wilson noted that, if on the facts of Graham where a store owner was not found to be an occupier of the municipal property located right outside his doors which its customers must use to enter and exit the store, then, on the facts of the case before her, the defendant could not be found to be an “occupier” of the grassy area owned by the municipality which could be used by any member of the public who are not entering or exiting his house.

[27] KW Hydro points to the case of Gribowski v. Singh 2013 ONSC 744, [2013] O.J. No. 795 (S.C.J.) in which Daley, J. dismissed a motion for summary judgment brought by the owner of property adjacent to a driveway apron owned by the municipality where the plaintiff was alleged to have fallen.

[28] Justice Daley noted at para. 19 that there were no Canadian cases deciding liability in respect of a failure to maintain a private driveway apron.

[29] It is noted that Justice Daley’s decision in Gribowski predated the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7 which ushered in a major shift in the law relating to summary judgment. The Supreme Court pointed out, at paragraph 4, that the Ontario Court of Appeal placed too high a premium on the “full appreciation” of evidence that can be gained at a conventional trial.

[30] Daley, J. made specific reference in his decision at para. 7 to the then prevailing “full appreciation” test stating “the court must determine whether can achieve a full appreciation of the evidence and the issues at stake to make dispositive findings on the basis of the motion record, or whether the determinations to be made can only be achieved at trial on a full and tested evidentiary record.”

[31] At para. 18 Justice Daley stated that “actions involving novel and unresolved issues of law are inappropriate for summary judgment motions particularly where the issues at stake involve public concerns.”

[32] At para. 37 Justice Daley found that a full appreciation of the evidence and issues that would be required to make dispositive findings could not be achieved on the evidentiary record before him and that the subtleties as to the question of occupancy could not be fully appreciated and adequately weighed on that record.

[33] It is noted that Daley, J. did not find the adjacent owners to the driveway apron to be “occupiers” for the purposes of the Act but rather he found, in applying the former “full appreciation” test for summary judgment, that he could not achieve a dispositive finding on that issue on the evidentiary record before him. Moreover, he found at para. 38, that, in view of the lack of any jurisprudence as to the liability for maintenance of driveway apron areas, and taking into account the public policy considerations, the determination of the question as to who is an occupier of a driveway apron space and the scope of the duties that flow from that should be determined at trial on a fully contested evidentiary record.

[34] I therefore find that Gribowski is of limited or no assistance to KW Hydro.

[35] KW Hydro also points to the case of Campana v. The City of Mississauga, 2016 ONSC 3421 (S.C.J.) involving a trip and fall which occurred on a boulevard between the sidewalk and the road adjacent to a condominium development. The plaintiff stepped into a hole and tripped causing her injury. She brought an action against the municipality as well as the adjacent owner, a condominium corporation.

[36] The municipality and the condominium corporation each brought a motion for summary judgment seeking dismissal of the action against them. At para. 30 Fragomeni, J. found that he was not satisfied on the evidentiary record before him that there were no “genuine issues for trial” given the nature of the issues and the findings of fact that must be made. He found that the trial judge would be in the best position to assess the credibility of the witnesses and make the necessary findings of fact relevant to the liability issues identified by the parties. In particular, he quoted at length from the examination for discovery of a representative of the condominium corporation and concluded at para. 32 that the factual basis to ground the condominium corporation’s position was not clear.

[37] As in Gribowski Justice Fragomeni made no finding that the adjacent owner was an occupier for the purposes of the Act but rather the matter was sent on to trial because there were factual issues relating to its position that could not be resolved without a trial. It is noted that two of the issues identified by Justice Fragomeni were 1) did the condominium corporation, by retaining a contractor to maintain the boulevard, have control of it, put it within the definition of occupier? and 2) if the condominium corporation is not found to be an occupier, does any liability attach to it in negligence?

[38] I find that Campana is similarly of little to no assistance to KW Hydro.

[39] The only other reported case in which the liability of an adjacent owner for maintenance of a driveway apron was in issue was the case of Bondy v. London (City), 2013 O.J. No. 1281 (S.C.J.), aff’d [2014 O.J. No. 1791 (C.A.).

[40] In Bondy the plaintiff sued the municipality and the adjacent owner when she suffered a slip and fall, following a freezing rainstorm, on a driveway apron, being a portion of the boulevard abutting the city sidewalk. After making reference to the Bongiardina and Mark cases Gorman, J. found that, on the facts before her, she was unable to conclude that the adjacent owner exercised any control over the boulevard (or driveway apron). The adjacent owner certainly did not restrict others from accessing it, and she did not salt it because she did not think it was her responsibility to do so.

[41] The Court of Appeal agreed with Gorman, J.’s finding and reasons and in particular noted that there were no “special circumstances” that placed the adjacent owner in “control” of the boulevard within the meaning of the Act.

[42] It is well known that the party responding to a motion for summary judgment is required to “put its best foot forward.” I am therefore able to assume that the evidence on the motion will be the evidence at trial.

[43] I am unable to find on the evidentiary record before me that either MacLean or Visee had such control over the driveway apron as to make either of them a occupier for the purposes of the Act. Neither of them were free to deal with the driveway apron as they wished. Indeed they had no authority to exclude others from the use of the driveway apron. As was evident from the presence of the plaintiff on the apron at the time of his fall, members of the public were free to use the driveway apron to pass between the municipal sidewalk and the travelled portion of the road allowance. The driveway apron was open for motorists to use to turn their vehicles. KW Hydro led no evidence on the frequency of use or passage over the driveway apron by members of the public and therefore the degree of exclusivity that MacLean and Visee exercised over it.

[44] The fact that MacLean performed some maintenance work on the area around the electrical vault after the incident does not contribute to a finding that he exercised the requisite degree of control prior to the incident to make him an occupier.

[45] In my view the fact that MacLean and Visee by necessity had to pass over the driveway apron if they wished to access their property with a vehicle is not determinative of control any more than the fact that patrons of the convenience store in Graham by necessity had to pass over the municipal sidewalk to access the store.

[46] The Court of Appeal in MacKay v. Starbucks Corp. [2017] O.J. No. 2228 (C.A.) stated at para. 36:

The factors established by the case law will tend to have the effect of making some storeowners rather than homeowners liable as occupiers of portions of sidewalks immediately adjacent to their store. The volume of customers that use the sidewalk immediately adjacent to the entrance to enter and exit a particular store, to the virtual exclusion of others, has been a factor in a number of cases.

[47] I find that there are no “special circumstances” in the evidentiary record before me that would confer on MacLean or Visee the degree of control over the driveway apron necessary to make either of them an occupier for the purposes of the Act.

Flow Exception

[48] KW Hydro’s position with respect to the flow exception can be readily addressed. As indicated above, for the exception to apply there must have been conditions or activities on the adjacent owner’s property which he or she allowed flow off the property so as to cause injury to persons nearby.

[49] As indicated previously, there is no evidence that the differential between the height of the electrical vault and the height of the driveway apron resulted from activities of MacLean or Visee during their period of ownership of their respective properties. The evidence indicated that no change to the height differential between the electrical vault and the surrounding apron occurred during their tenure.

[50] Even if driving over the apron with vehicles could be analogized to permitting conditions and activities to “flow” off MacLean’s and Visee’s properties, the act of driving their vehicles over the apron to access their respective properties cannot be found to have led to the injury suffered by the plaintiff since there is no evidence that such activity affected the height differential.

Common Law Duty of Care in Negligence

[51] KW Hydro did not argue that any duty of care on the part of MacLean and Visee existed with reference to the municipally owned driveway apron apart from a possible finding that they were occupiers for the purposes of the Act pursuant to either the special circumstances exception or the flow exception.

[52] The jurisprudence makes it clear that an adjacent owner has no duty of care at common law for the maintenance of municipally owned road allowances and sidewalks apart from those situations where he or she may be found to be in control of the municipal property and therefore an occupier, or to have allowed conditions or activities to flow off his or her property so as to cause injury.

[53] I therefore find that there is no issue requiring a trial with respect to the existence of any duty of care, independent of the Act, owed by the moving defendants to the plaintiff in negligence at common law.

Are the Motions Premature?

[54] Rule 20.01(1) provides that a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[55] There is no requirement that a defendant must await the completion of examinations for discovery before bringing a motion for summary judgment.

[56] As indicated previously, the court is entitled to assume that the evidence led on the motion for summary judgment will be the evidence at trial.

[57] KW Hydro had all the means necessary to put its “best foot forward” on the motions. It responded to the motions with affidavit evidence and exercised the right to cross-examine the moving defendants on their affidavits. Should KW Hydro have wished to have the evidence of any non-parties for use on the motions it could have examined such persons pursuant to rule 39.03.

[58] It is not evident that KW Hydro sought an adjournment of the motions to permit it to gather expert or other evidence.

[59] I am not satisfied that the suggestion that there may be further evidence that may be helpful to KW Hydro following examinations for discovery is a basis for denying the motions.

Disposition

[60] For the foregoing reasons the motions for summary judgment of the defendants Robert Alex MacLean and Donna Visee are allowed and the action and all cross-claims as against them are dismissed.

Costs

[61] The parties are strongly urged to agree upon costs. If they are unable to do so, the defendants Robert Alex MacLean and Donna Visee may make written submissions as to costs within 15 days of the release of this Endorsement. The defendant KW Hydro has 10 days after receipt of the said defendants’ submissions to respond and the defendants Robert Alex MacLean and Donna Visee have a further 5 days to reply. Each party’s initial written submissions shall not exceed 5 double-spaced pages, exclusive of Offers to Settle, Bills of Costs or Costs Outlines and authorities, while the moving defendants’ reply submissions, if any, shall not exceed 2 double-spaced pages. All submissions shall be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad, J.

Date: February 7, 2019