COURT FILE NO.: CV-13-482046 DATE: 2020/01/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIMOSTENIS karpouzis Plaintiff

• and - CITY OF TORONTO Defendant

Counsel: William C. Wolfe for the Plaintiff Gaynor J. Roger for the Defendant

HEARD: December 16, 2019

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] In 2011, in the middle of a June night - 2:00 a.m. to be precise - in the darkness of a City of Toronto park, the Plaintiff, Diomostenis Karpouzis, went skateboarding on an unlighted recreational path. He had an accident and suffered a left frontal contusion and a right occipital fracture extending to the skull base and some other injuries. It was a serious brain injury and he has been unable to return to work.

[2] In this action, he sues the City for negligence (occupiers’ liability) and for public nuisance. The City moves for a summary judgment dismissing Mr. Karpouzis’ action.

[3] For the reasons that follow, the City’s motion is granted.

[4] To summarize, there are no genuine issues requiring a trial and Mr. Karpouzis’ causes of action for occupiers’ liability and for public nuisance should be dismissed. In these circumstances, it is not necessary to decide the merits of the City’s defence that the claim for public nuisance is statute barred under the Limitations Act, 2002. [1]

B. Evidentiary Background

[5] The City supported its summary judgment motion with the following evidence:

a. The affidavit of Jorge Ture dated April 1, 2019. Mr. Ture was the City’s Park Supervisor for South Etobicoke, Wards 5 and 6. b. The affidavit of Stefan Rosenbaum dated April 1, 2019. Mr. Rosenbaum is a lawyer with Shibley Righton LLP, lawyers for the City. c. The City’s Request to Admit dated November 27, 2017 and Mr. Karpouzis’ Answer to the Request to Admit dated December 18, 2017. d. Excerpts from Examination for Discovery of Mr. Karpouzis.

[6] Mr. Karpouzis resisted the summary judgment motion with the following evidence:

a. Mr. Karpouzis affidavit of May 8, 2019, to which was appended: ii. The Investigative Reports of Paul Green of Paul S. Green & Associates – Special Investigators & Certified Fraud Examiners dated May 29, 2013 and June 12, 2017. Mr. Green is a private investigator. iii. The Will Say Statement of Rodrigo Fuentes dated May 29, 2017. Mr. Fuentes is a friend of Mr. Karpouzis, who came to his assistance after the accident in the park. iv. The Will Say Statement of Claudia Flores dated May 29, 2013. Ms. Flores is a family friend of Mr. Karpouzis (her brother is married to Mr. Karpouzis’ sister). She testified that she had seen another accident on trail caused by the lack of lighting. v. The medical report of Dr. Vincenzo Basile, a treating physician, dated March 14, 2015. b. The affidavits of William Lim dated May 22, 2019 and December 9, 2019. Mr. Lim is a lawyer with Wolfe Lawyers Professional Corporation, Mr. Karpouzis’ lawyers of record. c. The affidavit of David Liske dated July 8, 2019. Mr. Liske is the principal associate of Liske Accident and Injury Experts. He is a kinesiologist with a M.A. and is an accident reconstruction expert, who examined the scene of the accident and who had it tested for illumination including ambient moonlight. He is an accredited as a Traffic Accident Reconstructionist and is a Certified Professional Ergonomist with a specialization in Human Factors Forensics and Forensic Vision. He has been involved in approximately 300 cases where he has taken light measurements. He was retained to comment on the illumination of the trail in the park and its effect on the users of the trail including skateboarders. Mr. Liske was cross-examined. d. Excerpts for the Examination for Discovery of Mr. Ture, the City’s representative.

C. Legal Background

1. The Occupier’s Liability Claim

[7] In the case at bar, Mr. Karpouzis’ primary claim is governed by the Occupiers’ Liability Act. The relevant provisions of Act are sections: 1, 2, 3, and 4, which are set out below:

Definitions

1 In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises;

“premises” means lands and structures, or either of them, and includes, […]

Common law duty of care superseded

2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons

Occupier’s duty

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises

Risks willingly assumed

4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

Trespass and permitted recreational activity

4 (3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1)

(c) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

(ii) the person is not being provided with living accommodation by the occupier

Premises referred to in subs. (3)

4 (4) The premises referred to in subsection (3) are,

(f) recreational trails reasonably marked by notice as such; and,

[8] Under section 3 of the Act, the standard of care for occupiers is one of reasonableness and occupiers are not required to take unrealistic or impractical precautions against known risks. [2] The occupier is only required to take such care as in all of the circumstances is reasonable and the occupier is not required to guard against every possible accident that might occur and is required only to exercise care against dangers that are in the categories of contingencies normally to be foreseen. [3] The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard on premises does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons on the premises are reasonably safe while on the premises. [4]

[9] The measure of what is reasonable depends on the facts of each case including foreseeability, the gravity of the possible harm, the burden of the cost of preventive measures, industry practice, custom, and regulatory standards applicable to the circumstances. [5]

[10] In the leading case of Waldick v. Malcolm, [6] Justice Iacobucci in the Supreme Court of Canada stated:

After all, the statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation -- thus the proviso 'such care as in all circumstances of the case is reasonable'.

[11] In an occupier’s liability claim, the onus is on the plaintiff to prove, on a balance of probabilities, that occupier was in breach of a duty of care and that his, her, or its act or omission resulted in injury; the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury. [7]

[12] The Occupiers’ Liability Act sets a different and lower standard of care when a person enters premises for the purpose of a recreational activity, as in the case of using a recreational trail. [8]

[13] When a person enters premises for a recreational activity, then pursuant to s. 4(1) of the Occupiers Liability Act, the occupier owes a duty to the person: (a) to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property; and (b) to not act with reckless disregard of the presence of the person or his or her property. When the lesser duty of care applies, the occupier is under no positive duty to take reasonable care of the premises as described in Waldick v. Malcolm, supra. [9]

[14] Courts have found that recreational trails may have multiple purposes and are intended for multiple activities, have various types of signage, and may be partially paved. [10] In the case at bar, it was not disputed that the trail was a recreational trail and that Mr. Karpouzis’ negligence claim is governed by section 4 of the Occupiers’ Liability Act.

[15] In Cormack v. Mara (Township) [11] and in Schneider v. St. Clair Region Conservation Authority, [12] the Court of Appeal held that “acting with reckless disregard” means: doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the person present on his or her premises, not caring whether such damage or injury results.

[16] Reckless disregard is more than mere carelessness or negligence and should be determined objectively in consideration of the circumstances of the particular case. [13] To constitute reckless disregard, the conduct of the occupier must be such that the occupier knew or should have known that injury was likely to happen to a person present on anticipated to be present on the occupier’s premises. [14]

[17] In Herbert (Litigation Guardian of) v. Brantford (City), [15] at paragraph 26 Justice Whitten in describing what counts as reckless disregard, Justice Whitten described what an occupier should recognize as likely to cause damage or injury, as follows:

26. These conclusions have utility in interpreting “reckless disregard” as the concept includes an objective standard; namely, what he or she (the occupier) should recognize as something likely to cause damage. What is being referenced is something beyond what can be assumed by all of us, as ordinary people know, something unusual, something inherently harmful or dangerous. Whatever this danger it is clearly contextual. It may not be obvious. It may be hidden or concealed. It may contain an element of surprise for the user such that response times are diminished, if not eliminated. It may be that the user cannot extricate himself or herself from the situation. It may be of such a nature that, as some jurists have described (i.e.; Justice Potts in Onyschuk v. Silver Harbour Acres Ltd. (1984), 49 O.R. (2d) 762)), it is a "trap". The failure of the occupier to address a known danger of this magnitude would constitute "reckless disregard".

[18] It is not recklessness for an occupier to fail to warn or to take steps to protect a person on his or her premises from what ordinary persons would know and would appreciate or anticipate as common or usual dangers to be found on the premises. [16]

[19] The standard of care is lower under section 4 than under section 3. For example, inadequate signage giving warning of danger may breach a duty to take such care as is reasonable to see that persons entering on the premises are reasonably safe under section 3 of the Act but inadequate signage may not amount to reckless disregard under section 4 of the Act. [17]

D. The Public Nuisance Claim

[20] A public nuisance is any activity that unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort, or convenience. Whether a particular activity constitutes a public nuisance is a question of fact. Many factors may be considered, including the inconvenience caused by the activity, the difficulty involved in lessening or avoiding the risk, the utility of the activity, the general practice of others, and the character of the neighborhood. An individual may bring a private action in public nuisance by pleading and proving special damage. [18]

[21] While the whole public need not be affected by the nuisance, a substantial number of people must be in accordance with the principle that a public nuisance is a nuisance that is so widespread in its range or adverse effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large. [19]

[22] Liability for nuisance can arise in three ways: (a) the Defendant causes or creates the nuisance; (b) the Defendant by neglect of some duty permits the nuisance to arise; or, the Defendant fails to remedy the nuisance within a reasonable time after the defendant knew or ought to have aware of its existence. [20]

E. Facts

1. The Accident

[23] During the night of June 8-9, 2011, Mr. Karpouzis took his skateboard and went to the South Humber Park in the City of Toronto. He was then almost 35 years old (He was born on November 6, 1976). He was a very experienced skateboarder. He was sufficiently skilled that he did not have to be conscious of ground conditions, and he relied on his athleticism to adapt and adjust as necessary to surface conditions.

[24] The South Humber Park is an unfenced public recreational park located in the Etobicoke area of the City of Toronto. It is bounded by Stonegate Road to the north, the Humber River to the east, the Queensway to the south, and Stephen Drive to the west.

[25] The park is open to the public every day, 24hours a day. There is no artificial lighting on the trail in the park.

[26] In the South Humber Park, there is a trail known as the Humber River Recreational Trail.

a. Signage tells the public that the park is on the "Humber River Recreational Trail.” b. The trial is a scenic path that connects to the Humber Bay Arch Bridge and the Martin Goodman trail to the south. c. Signage advises that motorized recreational vehicles are prohibited on the trail. Signage advises cyclists that the speed limit is 20 km/hr on the trail and to yield to pedestrians. d. There are no signs prohibiting skateboarding or prohibiting using the trail at night. There are no signs warning of limited visibility or sudden changes in visibility on the trail. There are no signs advising that use of trail is at a person’s own risk. e. The path of the trail is covered with asphalt. The path has no sharp turns and its slope is gradual downward toward the south. It begins in an open grassed area and enters a wooded area.

[27] The City maintains the trail in all seasons except the winter. It is inspected and maintained by staff from both the Parks Department and the Municipal By-law Enforcement Department. Both departments inspect the trail. City staff will remove litter and debris and ensure that the pavement of the trail is structurally sound. City staff cut the grass and trim the bushes and trees adjacent to the trail. Inspection and maintenance of the trial occur approximately once a week.

[28] The City both before and after the accident that is the subject of this action has received no complaints, accident reports, warnings or any communications that the trail was deficient or hazardous.

[29] Four years after the accident, in 2015, the City repaved the trail for the Summer Pan-Am Games.

[30] On June 8-9, 2011, at around 2:00 a.m., riding his skateboard, Mr. Karpouzis entered Humber Park at its Stephen Dr. entrance. He was alone. He was sober. He was not wearing a helmet or any protective gear. He did not have a flashlight. He entered the trail for a cardio-workout.

[31] Mr. Karpouzis was familiar with the trail, having ridden his mountain bike on it quite often. This, however, was the first time of riding his skateboard on the trail. He was not concerned about the riding his skateboard at night because he wrongly believed that he could see well enough along the trail.

[32] Annexed is a photograph taken - during the daytime - from the perspective of the view of a person shortly after entering the trail.

[33] Mr. Karpouzis entered the trail at a grassy section and continued about 70 meters until he went around a slight bend that entered the treed section of the trail. It was very dark, and he testified that he was not able to see his own hands.

[34] There were no signs posted warning of visibility issues, and Mr. Karpouzis submits that with the lack of adequate signage or warning, coupled with the lack of lighting on a trail in a park open for nighttime use, the City acted with reckless disregard to his safety and other users of the trail.

[35] While he was in the dark, the wheels on his skateboard froze. Mr. Karpouzis assumes, but does not actually know, that his skateboard wheels were jammed with a piece of debris or rough terrain that he was unable to see and avoid due to darkness. He was thrown from the skateboard.

[36] Mr. Karpouzis does not know what in particular caused the wheels on the skateboard to freeze. He acknowledged that a small stone or a bottle cap or his moving off the paved path into rough terrain could have caused the wheels to freeze.

[37] The wheels suddenly freezing, Mr. Karpouzis fell off the skateboard. Mr. Karpouzis struck his head on the ground. He suffered a brain injury. Since the accident, he has been unable to continue his self-employed construction business.

[38] Although he does not remember it, Mr. Karpouzis used his cell phone to call his friend Rodrigo Fuentes. Mr. Fuentes drove to the park, and using a flashlight, he located Mr. Karpouzis and carried him out of the park. Mr. Karpouzis went home and the next day he was taken to the hospital.

[39] Mr. Fuentes did not make observations of the scene of the accident, and he also does not know why the accident occurred. He did say that the trail was very dark and that he would not have been able to find Mr. Karpouzis without a flashlight.

[40] Mr. Karpouzis submits that the area where the accident occurred was inherently dangerous and the City knew or should have known that accidents like that experienced by him would eventually happen. The place of the accident was covered by a canopy of trees that eliminated natural light at night. There are no signs posted at the entrances or along the trail advising to not use the trail at night, that the trail is subject to sudden changes in visibility, or that visibility along the trail is limited.

[41] Mr. Liske, who provided expert evidence for Mr. Karpouzis, said in his report that light on the trail went from 19.0 LUX (a measure of illumination) at the start of the trail, to between 2.5 to 7.0 LUX at the entrance to the trail, to an undetectable level of LUX where the accident occurred.

[42] It was Mr. Liske’s opinion that the rapid change in lighting conditions would have had an effect on a person's ability to perceive and to react to hazards and/or changing conditions at they travelled along the trail. It was Mr. Liske’s opinion that the rapid change in illumination explains what caused Mr. Karpouzis to fall from his skateboard.

[43] Mr. Karpouzis submits that the City is liable for occupier’s liability and liable for creating a public nuisance. He submits that his and the public’s rights to health and safety were interfered with in an unreasonable manner by the sudden change in visibility and lack of visibility on the trail such which amount to nuisances that interfered with the public's interests.

[44] Mr. Karpouzis submits that the City created a public nuisance by: (a) planting trees that developed into a canopy that limits natural light; (b) planting trees that caused the change in visibility and lack of visibility that occurred on the trail; (c) neglecting to maintaining the trail in a manner safe for use at all times that the park was open; and (d) failing to remedy the nuisance within a reasonable amount of time after it was or ought to have been aware of its existence.

[45] Mr. Liske in his report suggested that the City had several options to eliminate the hazard created by the unlighted trail including: (a) closing the trail for night-time usage; (b) adding a lighting for night-time use; (c) providing guard rails or access barriers to prevent pedestrians from entering the subject trail at night; or, (d) providing signs that indicate the trail is not lit at night or that the trail is closed at night.

2. Investigation and Procedural History

[46] Almost two years later, on May 10, 2013, Paul S. Green, a private investigator, inspected the scene of the accident. He had been retained by Mr. Karpouzis lawyer.

[47] Several weeks later, on June 5, 2013, Mr. Karpouzis commenced this action against the City. He alleged that the City was negligent in: (a) failing to properly inspect and maintain the trail; (b) failing to remove debris from the trail; and (c) failing to properly light the trail. He did not allege public nuisance.

[48] On January 20, 2014, the City delivered its Statement of Defence.

[49] On April 19, 2016, Jorge Ture, the City’s representative, was examined for discovery.

[50] On June 3, 2016, Mr. Karpouzis was examined for discovery.

[51] On November 27, 2017, the City delivered a Request to Admit and on December 18, 2017, Mr. Karpouzis delivered an Answer to the Request to Admit.

[52] In February 2018, Mr. Karpouzis brought a motion to amend his Statement of Claim to plead public nuisance. His motion was granted without prejudice to the City’s right to plead that the public nuisance claim was statute barred under the Limitations Act, 2002.

[53] On July 24, 2018, Mr. Karpouzis delivered his Amended Statement of Claim.

[54] On August 16, 2018, the City delivered an Amended Statement of Defence.

[55] On April 6, 2019, Janice Wornak conducted a site investigation for Mr. Liske of Liske Accident & Injury Experts. Ms. Wornak’s qualification have not been revealed to the court, and Mr. Liske did not explain the nature of his firm’s relationship with her because she was in full time employment with another employer.

[56] On April 7, 2019, Ms. Wornak conducted another site investigation.

[57] In May 2019, the City moved for a summary judgment dismissing Mr. Karpouzis’ causes of action.

[58] On May 15, 2019, Mr. Karpouzis delivered a Preliminary Assessment Report signed by Mr. Liske. Relying on this report, Mr. Karpouzis sought an adjournment of the summary judgment motion in order that a second site inspection be conducted on the anniversary of the accident in order to study the illumination of the trail in conditions resembling those at the time of accident in 2011.

[59] The adjournment request was granted with the summary judgment motion rescheduled and made returnable on July 30, 2019.

[60] At the time of the adjournment, it was not disclosed that the Preliminary Assessment Report was authored by Ms. Wornak and not by Mr. Liske.

[61] On June 9, 2019, Ms. Wornak conducted another site investigation and reported to Mr. Liske the results of her investigation.

[62] On June 28, 2019, Mr. Karpouzis delivered an expert report signed by Mr. Liske and his associate Tyler Weaver accompanied by Mr. Liske’s affidavit. Mr. Weaver is another kinesiologist who is associated with Mr. Liske’s firm. The report was based on the information provided by Ms. Wornak. Mr. Liske, himself, had not visited the site but did have photographs of the site.

[63] On July 8, 2019, Mr. Liske swore his affidavit for the summary judgment motion. He relied on the investigations conducted by Ms. Wornak.

[64] On July 30, 2019, the summary judgment motion was adjourned for a cross-examination of Mr. Liske. The summary judgment motion was again rescheduled and adjourned to December 16, 2019.

[65] On August 15, 2019, Mr. Liske attended at the trial for his first personal investigation. He confirmed the measurements that had been taken by Ms. Wornak.

[66] On September 25, 2019, Mr. Liske was cross-examined. During his cross-examination, he said that moon illumination was not meaningful in determining the adequacy of the illumination of the trail and that it did not provide sufficient illumination to be able to discern surface hazards.

[67] Mr. Liske testified that the level of illumination in similar conditions to the time of the accident was below 2.5 LUX, which is below the perception of human eyesight. He said that 3.0 LUX illumination was at the borderline for pattern or shape recognition but a person would not be able to discern what was being perceived.

[68] In his report, Mr. Liske stated that rapid change in the lighting conditions on the trail in the park would have had an effect on a person’s ability to perceive and to react to hazards. During cross examination, Mr. Liske said that in the immediate case the change began 50 metres before the wooded area of the trail began.

[69] Although I am going to admit Mr. Liske’s evidence and give it the weight that it deserves, the City submitted that Mr. Liske should be disqualified as an expert witness for partisanship, want of expertise, want of qualifications to opine about illumination or visibility and because of his devious testimony on his cross-examination where attempted to keep hidden Ms. Wornak’s involvement in the investigation, her authorship of the preliminary report, and that he personally had not attended at the accident site at the trail until August 15, 2019.

[70] For examples of his deviousness, Mr. Liske was directly asked what he observed when he attended on April 6, 7, or June 9, 2019, and he responded without mentioning that he had not attended at the trail and was rather reporting the observations of Ms. Wornak. He was disingenuous when asked the question: "So the first time that you went was in April 2019?", when he answered affirmatively and left the impression that he rather than his representative, Ms. Wornak, attended at the park. There are other examples of his deviousness.

[71] Mr. Liske should be very embarrassed by his unprofessionalism and the manner of his testimony because there would have been nothing wrong by his being forthcoming and candidly reporting about Ms. Wornak’s qualifications and about her observations, which were confirmed by measurements with photographs, light sensor/meter readings, and drawings and by Mr. Liske’s attendance at the park.

[72] In the case at bar, I am not going to exclude information derived from Ms. Wornak’s work as analyzed by Mr. Liske. Mr. Liske is qualified, both in accreditations and work experience to provide evidence regarding human factors forensics, accident reconstructions, and light measurements. His evidence was useful as far as it went. His evidence added some science to what one might have expected. The City did not actually challenge the evidentiary contribution made by Ms. Wornak and Mr. Liske, which ultimately was not much more informative than Mr. Karpouzis’ testimony that there was adequate ambient lighting on the trail up until he entered the treed area and then it was so dark that he could not see his hands.

[73] The City conceded that the trail is dark at night but argued that this darkness at the wooded part of the trail would have been plainly visible from the entrance to the trail.

[74] Common sense would tell anyone that open spaces are more illuminated than treed areas with a canopy and shadows. Mr. Liske’s evidence added some science to the common sense and added the kinesiology of how the darkness might affect a skateboard athlete’s reaction time.

[75] In its factum, the City submitted that exact illumination levels are not material to the legal issues in the immediate case. It submitted that the court does not need illumination levels measured 8 years after the fact to understand that it was dark on the trail.

[76] Having regard to the position taken by the City, I see no reason to disregard Mr. Liske’s evidence.

F. Discussion and Analysis

1. Is the Case Appropriate for a Summary Judgment?

[77] Rule 20.04 (2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”. With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[78] In Hryniak v. Mauldin [21] and Bruno Appliance and Furniture, Inc. v. Hryniak, [22] the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[79] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. [23]

[80] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. [24] Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. [25]

[81] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [26] The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination. [27]

[82] The case at bar is an appropriate case for a summary judgment about liability. There are no meaningful credibility issues, and the forensic evidence is not going to improve. In the immediate case, on the issue of liability, the parties may not only be taken to have put their best evidentiary foot forward, but also there are actually no more evidence that could be proffered with the City having decided not to call any accident reconstruction evidence to counter Mr. Liske’s evidence.

[83] There is nothing more to be learned about the facts of the accident, and the parties are in agreement about what is known or not known about how it occurred. What is left is just legal argument. The parties and the administration of justice does not need the attributes of a trial to fairly determine whether or not the City is liable for occupiers’ liability or for public nuisance.

2. The Occupier’s Liability Claim

[84] In the immediate case, there is no dispute that: (a) the City is an occupier; (b) Mr. Karpouzis entered a recreational trail that was reasonably marked as such; (c) he is deemed to have willingly assumed all risks from his use of the trail; and (d) the City owed him the duty of care prescribed by section 4 of the Occupiers’ Liability Act and not the higher duty of care prescribed by section 3 of the Act. It needs to be kept in mind that the City does not have the duty of care prescribed by section 3 of the Occupiers’ Liability Act. The City does not have the duty of taking such care as in all the circumstances is reasonable to see that persons entering the trail are reasonably safe while on the trail.

[85] Apart from the fact that under the statute Mr. Karpouzis is deemed to have willingly assumed the risk associated with his activity on the trail, the evidence establishes that to be the case. He was overconfident in his skills as a skateboarder and entered the trail without protective equipment and without a flashlight. Amongst the normal risks of a skateboarder are that the wheels of the skateboard will freeze or that the skateboarder will stray of his or her path causing him or her to lose balance and fall. These are risks willingly assumed by Mr. Karpouzis. He willingly assumed the risks associated with skateboarding on a paved recreational trail at night.

[86] Mr. Karpouzis conceded that the City did not create a danger with the deliberate intent of doing harm to persons using the trail. Thus, for Mr. Karpouzis to ultimate succeed, he must show that the City acted with reckless disregard of persons using the trail at nighttime. In this regard, it is his argument that the City, with reckless disregard: (a) omitted to post signs warning of the hazards of nighttime use on the trail because of the inadequate lighting or rapid changes in illumination; (b) omitted to light the trail for nighttime users; or (c) omitted to close the park at night and to post signage prohibiting the use of the trail at night.

[87] There is no evidence that the City acted with reckless disregard in maintaining the trial or in removing the hazards of debris on the trail or on its perimeters. The evidence establishes and I find as fact that the City performed regular inspections and maintenance of the trail. The City was not aware and not made aware of any hazardous conditions; there were no complaints about the condition of the trail before the accident. In general, by regularly inspecting, maintaining, and keeping the trail clear of debris the City did not show that it had reckless disregard for users of the trail.

[88] Thus, the immediate case narrows to the question of whether the City acted with reckless disregard of persons using the trail at nighttime. Since this is a summary judgment motion and the City is the moving party, it follows that for the purposes of this summary judgment motion, the onus is on the City to show that there are no genuine issues requiring a trial that the City acted with reckless disregard with respect the nighttime usage of the trail.

[89] I find as a fact that the City did not act with reckless disregard of persons using the trail at night. Anyone entering the trail at night would readily be able to observe the slope and gradual curve of the trail and that the trail entered a wooded area where it was seeable that the area was dark and possibly had twigs, stones, leaves, and other things typically found in a treed setting.

[90] Mr. Karpouzis did not need to be warned of these obvious conditions including the lack of illumination or of rapid changes in illumination. The lack of illumination on the trail was anticipated not unexpected or a surprise. The darkness of the trail was not a trap, and on a summer night, it would have been self-evident without signage that visibility would be reduced on a trail leading into a forested area as a traveler moved from the open spaces beside the trail to the canopy of the trees over the path of the trail.

[91] An occupier of a recreational trail does not create a hazard when the risks inherent in entering the entering the recreational trail are obvious. In the immediate case, in terms of the duty of care imposed by section 4 of the Occupiers’ Liability Act, it was not necessary to post signs to warn that at nighttime, an obviously unilluminated path leading into a wooded area would have slow to rapid changes in illumination and inadequate lighting for a pedestrian, cyclist, rollerblader, or skateboarder travelling without a flashlight.

[92] In my opinion, the City did not show disregard by not closing the trail at night or in not illuminating the trail. The trail was well maintained during the daytime, and the City could anticipate that users of the trail at night would not venture forth without a flashlight particularly if they were riding on a bicycle or a skateboard. It is not inherently reckless to allow nighttime use of a park or recreational trial. The case at bar is not like those cases where, for instance, a municipality is found to have shown reckless disregard by placing a bollard on a recreational bicycle trail where this obstacle might be unexpected or those cases where the municipality fails to warn of a dangerous turn in the recreational bicycle trail or of a dangerous change in grade on the trail. In contrast to those case, in the immediate case, it would and should have been obvious without signage that at nighttime, Mr. Karpouzis needed to skateboard with a flashlight or not skateboard at all.

[93] I find that the evidence establishes and there is no genuine issue for trial that the City did not Act with reckless disregard in the circumstances of the immediate case.

3. The Public Nuisance Claim

[94] For similar reasons, there is no genuine issue requiring a trial that Mr. Karpouzis does not have a claim for public nuisance.

[95] Keeping a forested park open at night with an unilluminated trail does not interfere with the public’s health safety, morality, or convenience. Ironically, light pollution from urbanization is blamed for compromising health and the enjoyment of natural environments. In the summertime, for those who do not leave the city for cottages or camping, it is the opposite of a nuisance to have a place to walk in the nighttime, and like campers and cottagers, urbanites, do not need to be warned that it is dark in the forest.

[96] In the immediate case, I find as a fact that the City did not create a nuisance, did not neglect some duty that allowed a nuisance to arise, and did not fail to remedy a nuisance.

G. Conclusion

[97] For the above reasons, I grant the City’s summary judgment motion and dismiss Mr. Karpouzis’ action on its merits.

[98] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the City’s submissions within twenty days of the release of these Reasons for Decision followed by Mr. Karpouzis’ submissions within a further twenty days.

Perell, J.

Released: January 8, 2020

COURT FILE NO.: CV-13-482046 DATE: 2020/01/08 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DIMOSTENIS karpouzis Plaintiff - and - CITY OF TORONTO Defendant

REASONS FOR DECISION PERELL J. Released: January 8, 2020

[1] S.O. 2002, c. 24, Sched. B. [2] Gohm v. York, 2013 ONSC 7118 at paras. 50-51; Miltenberg v. Metro Inc., 2012 ONSC 1063 at paras. 32-33. [3] Alchimowicz v. Schram, [1999] O.J. No. 115 at para. 13 (C.A.); Wade v. Canadian National Railway Co. (1978), 80 D.L.R. (3d) 214 (S.C.C.); McLean v. London (City), [2001] O.J. No. 4366 (S.C.J.). [4] Gohm v. York, 2013 ONSC 7118; (Canada) Attorney General v. Ranger, 2011 ONSC 3196 at para. 31; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232 at para. 21. [5] Gohm v. York, 2013 ONSC 7118 at para. 50. [6] Waldick v. Malcolm, [1991] 2 S.C.R. 456 at p. 472. [7] Tondat v. Hudson’s Bay Company, 2018 ONCA 302; Turner v. Oakville, 2018 ONSC 5647; Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640, [2009] O.J. No. 3667 (C.A.), leave to appeal to the S.C.C. refused, [2009] S.C.C.A. No. 445; Cormack v. Mara (Township), [1989] O.J. No. 647 (C.A.); Cannito v. Madison Properties Inc., 2018 ONSC 6190; Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467; Goody v. Costco Wholesale Corp. [2009] O.J. No. 3025 (S.C.J.); McLean v. London (City), [2001] O.J. No. 4366 (S.C.J.); Garofalo v. Canada Safeway Ltd. [1998] O.J. No. 302 (Gen. Div.). [8] Turner v. Oakville, 2018 ONSC 5647 at para. 28; Pierce v. Hamilton (City), 2013 ONSC 6485 at paras. 19, 34; Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.); Herbert (Litigation Guardian of) v. Brantford (City), 2010 ONSC 2681, aff’d 2012 ONCA 98; Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640, [2009] O.J. No. 3667 (C.A.), leave to appeal to the S.C.C. refused, [2009] S.C.C.A. No. 445; Genua (Litigation guardian of) v. North York (City), [2006] O.J. No. 5647 (S.C.J.); Dally v. London (City), [2004] O.J. No. 3231 (3d) 133 at paras. 44-45 (S.C.J.). [9] Pierce v. Hamilton (City), 2013 ONSC 6485 at para. 38; Dally v. London (City), [2004] O.J. No. 3231 (3d) 133 at paras. 44-45 (S.C.J.). [10] Turner v. Oakville, 2018 ONSC 5647 (bicycle accident on bicycle trail maintained by the municipality); Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.) (bicycle accident on recreational bicycle pathway) Pierce v. Hamilton (City), 2013 ONSC 6485 (pedestrian at night wandering from recreational path in woods and falling into ravine); Herbert (Litigation Guardian of) v. Brantford (City), 2010 ONSC 2681, aff’d 2012 ONCA 98 (bicycle accident on recreational pathway); Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640, leave to appeal to the S.C.C. refused, [2009] S.C.C.A. No. 445 (cross-country skier in park leaving marked trail); Kennedy v. London (City), [2009] O.J. No. 1040 (S.C.J.) (bicycle accident on path in parklands); Genua (Litigation guardian of) v. North York (City), [2006] O.J. No. 5647 (S.C.J.) (pedestrian in wooded undeveloped park area struck by bicycle); Dally v. London (City), [2004] O.J. No. 3231 (3d) 133 (S.C.J.) (roller-blading accident on recreational nature trail); Moloney v. Parry Sound (2000), 183 D.L.R. (4th) 121 (Ont. C.A.) (roadway and not recreational trail). [11] Cormack v. Mara (Township), [1989] O.J. No. 647 at para. 23 (C.A.). [12] Schneider v. St. Clair Region Conservation Authority (2009), 2009 ONCA 640, 97 O.R. (3d) 81 at para. 42 (C.A.), leave to appeal to the S.C.C. refused, [2009] S.C.C.A No. 445. See also Labanowicz v. Fort Erie (Town), 2018 ONCA 343. [13] Pierce v. Hamilton (City), 2013 ONSC 6485 at para. 39. [14] Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640 at para. 44, leave to appeal to the S.C.C. refused, [2009] S.C.C.A. No. 445. [15] Herbert (Litigation Guardian of) v. Brantford (City), 2010 ONSC 2681, aff’d 2012 ONCA 98. [16] Herbert (Litigation Guardian of) v. Brantford (City), 2010 ONSC 2681 at paras. 23-24, aff’d 2012 ONCA 98; McErlean v. Sarel (1987), 61 O.R. (2d) 396 (C.A.). [17] Cotnam v. National Capital Commission, 2014 ONSC 3614 (Div. Ct.); Herbert (Litigation Guardian of) v. Brantford (City), 2010 ONSC 2681 at paras. 23-24, aff’d 2012 ONCA 98. [18] Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Tock v St. John's (City) Metropolitan Area Board, [1989] 2 SCR 1181; Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality), 2010 ONSC 1123, aff’d 2011 ONCA 179; Danco v. Thunder Bay (City), [2000] O.J. No. 1208 (S.C.J.), aff’d [2001] O.J. No. 3442 (C.A.). [19] Sunnybrae Springbrook Farms Inc. v. Trent Hills (Municipality), 2010 ONSC 1123, aff’d 2011 ONCA 179; Sutherland v. Canada (Attorney General) 2002 BCCA 416 at para. 32; Attorney General v. P.Y.A. Quarries Ltd., [1957] 2 Q.B. 169 (Eng. C.A.). [20] Beatty v. Waterloo (Regional Municipality), 2011 ONSC 3599. [21] Hryniak v. Mauldin, 2014 SCC 7. [22] Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8. [23] Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001. [24] Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. [25] Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798. [26] Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50. [27] Hryniak v. Mauldin, 2014 SCC 7 at paras. 51-55; Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 at paras. 320-336; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2016 ONSC 5784 at paras. 122-131.