COURT FILE NO.: 16-58661 DATE: 20200102 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ELIZABETH FERNANDEZ VARGAS Plaintiff – and – CITY OF HAMILTON, 1398238 ONTARIO CORP. o/a ST. PETER’S CARE CENTRES AND SCHUTTEN BROS. HOLDINGS LTD. o/a HERITAGE GREEN LANDSCAPE CONTRACTORS Defendants
A. Palazzo, for the Plaintiff D. Lezau, counsel, for the Defendant, City of Hamilton
HEARD: December 10, 2019 The Honourable justice R. B. Reid
Introduction:
[1] The plaintiff (“Ms. Vargas”) sued the defendants following a slip and fall incident on April 5, 2016 in which she alleges she suffered personal injuries.
[2] The defendant, the City of Hamilton (the “City”), owned the sidewalk where the slip and fall is said to have occurred. The defendant, 1398238 Ontario Corp. o/a St. Peter’s Care Centers (“St. Peter’s”) was the owner of the property adjacent to the sidewalk and the defendant, Schutten Bros. Holdings Ltd. o/a Heritage Green Landscape Contractors (“Heritage Green”) was contracted to St. Peter’s to provide snow removal and salting services in an area which included the sidewalk in question.
[3] On consent, the claims against the defendants, other than the City, were dismissed pursuant to their summary judgment motion.
[4] The City brings this motion for summary judgment in which it seeks a dismissal of the plaintiff’s remaining claim.
[5] For the reasons set out below, there will be judgment dismissing Ms. Vargas’ claim against the City.
Background Facts:
[6] April 5, 2016 was a cold, cloudy day. According to the Government of Canada records for Hamilton, the temperature at 7:00 a.m., shortly before the incident occurred, was about minus 9.8°C. There had been freezing rain overnight. Ms. Vargas was aware from watching television on the evening of April 4 that icy conditions were predicted.
[7] Ms. Vargas left her home in Hamilton shortly after 6:30 a.m. following her regular weekday routine and traveled by bus, transferring once, to a bus stop on Redfern Avenue. She exited the bus with the intention of walking one to two minutes to her daughter’s home to babysit her grandchildren. The sidewalk was ice covered. The time was about 7:30 a.m. She took approximately four steps, walking very carefully in what she described to be good boots, and then slipped and fell. By that time, the bus had driven away and there were no witnesses. She did not recall seeing salt on the sidewalk. Ms. Vargas managed to stand up and walk to her daughter’s home nearby. She was taken to the hospital.
[8] Ms. Vargas indicated the location of the fall on photographs during her cross-examination, which she described as a little before the intersection of two sidewalks, one of which runs along Redfern Avenue and the other of which leads to St. Peter’s Residence.
[9] Ms. Vargas’ daughter attended in the area of the fall at about 11:00 a.m. on April 5 and observed no salt on the sidewalk.
[10] The City maintains the area of the bus stop and about 25 feet of the adjacent sidewalk. The incident appears to have occurred outside that area.
[11] The City relies on adjoining property owners, in this case St. Peter’s, for removal and clearing of snow and ice from sidewalks which the City’s bylaw requires be completed within 24 hours of the cessation of a winter storm event.
[12] The records of Heritage Green indicate that on April 5, 2016, in addition to its trucks working on site, a representative attended at St. Peter’s from 7:00 a.m. to 8:00 a.m. performing handwork, using five bags of salt. The records noted that the conditions were “ice”, “slippery” and “melting”.
The Test for Summary Judgment:
[13] This summary judgment motion is brought pursuant to the provisions of rule 20 of the Rules of Civil Procedure R.R.O. 1990, Reg. 194. Subrule 20.04(2) requires the court to grant summary judgment if it is satisfied that there is no genuine issue requiring a trial. The powers of the court are set out in subrule 20.04(2.1), and include the weighing of evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.
[14] Each party is expected to put its best case forward in bringing or responding to the summary judgment motion.
[15] As the Supreme Court of Canada made clear in Hryniak v. Mauldin (2014 SCC 7) at paragraph 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the 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.
[16] In considering the interest of justice, the court in Hryniak held at paragraph 57:
On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact finding.
[17] Endorsing the expanded powers set out in rule 20.04(2.1), and following Hryniak, courts have interpreted the summary judgment rules broadly, favoring proportionality and fair access to affordable, timely and just determination of disputes. Where some or all of the issues can be disposed of without the need for a lengthy and costly trial, summary judgment is an appropriate remedy.
[18] In this case, most of the evidence provided by the parties in the summary judgment motion was undisputed. Plaintiff’s counsel submitted that further evidence of weather conditions might be provided if the matter proceeds to trial. While that may be the case, there is no requirement on summary judgment for the evidence to be the equivalent of that anticipated at trial as long as the judge has confidence that the dispute can be resolved fairly. Based on the applicable law as set out below, I conclude that additional evidence about weather conditions leading up to the incident will not be of significance and as such does not make the weather a genuine issue requiring a trial.
[19] Likewise, it was submitted on behalf of the plaintiff that the business records provided by Heritage Green in its affidavit of documents as to the work done at St. Peter’s before and around the time of the incident were not under oath and therefore should be given little weight. However, the plaintiff did not cross-examine a representative of Heritage Green in response to its summary judgment motion as to the accuracy of its business records. I see no reason to question the veracity of the records which appear to have been made in the ordinary course of business. The City is entitled to rely on the documents, and the plaintiff must do more than simply speculate that they might not be accurate for there to be a genuine issue requiring a trial.
[20] The City submitted that there was uncontradicted evidence that the sidewalk at the location of loss was cleared of snow and ice and salted by Heritage Green. That evidence was based on the Heritage Green records to the effect that its representatives were present at St. Peter’s for hand clearing and hand salting as early as 7:00 a.m. on April 5, 2016. In my view, the evidence does not go that far. What the evidence does show is that the Heritage Green representatives were present and working at the St. Peter’s premises generally. The evidence does not specifically indicate that the area of the incident was cleared and salted. In any event, and to repeat my previous comment, the plaintiff did not avail herself of the opportunity to cross-examine Heritage Green about the area to which its services were provided for St. Peter’s on April 5, 2016, and the area which Heritage Green was contractually obligated to clear did include the site of the incident.
[21] Based on the foregoing and the applicable law as set out below, I conclude that additional evidence about what services were provided by Heritage Green to the sidewalk in the specific area of the incident is not essential and does not give rise to a genuine issue requiring a trial.
[22] In summary, I am satisfied that it is proportionate, more expeditious and less expensive to deal with the plaintiff’s claim by way of summary judgment. It is not necessary for me to access the extended powers available under subrule 24.01(2.1) in order to reach a fair result in the interest of justice.
The Legal Obligation of the City:
[23] The Municipal Act, 2001, S.O. 2001, c. 25 provides at section 44(9) that: “except in case of gross negligence, a municipality is not liable for any personal injury caused by snow or ice on a sidewalk.”
[24] The concept of gross negligence is not easy to define. It must be a higher degree of negligence than ordinary negligence which is typically considered to be the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Gross negligence has sometimes been described as a failure to exercise even that level of care that a careless person would use. There must be a great neglect of duty. In any event, the determination of gross negligence depends on the facts of each case, considered in context.
[25] By its bylaw 03–296, the City imposed an obligation on every occupant or owner of property to clear snow and ice from adjacent municipal sidewalks.
[26] The presence of a bylaw does not relieve the City of its liability for personal injury where gross negligence exists. In other words, and consistent with the decision of the Ontario Court of Appeal in Bongiardina v. York (Regional Municipality), [2000] O.J. No. 2751, the Municipal Act does not impose civil liability on the owners of property adjacent to municipal sidewalks. The potential liability rests with the municipality.
[27] The bylaw in effect makes the adjoining property owner a type of compulsory agent of the municipality to whom the sidewalk clearing obligation is delegated. Failure to comply can result in a penalty under the Provincial Offences Act, R.S.O. 1990 c. P.33.
[28] The proper legal questions then become: (1) whether the icy condition of the sidewalk at the time of the incident gave rise to a dangerous condition sufficient to constitute a state of non-repair, and (2) whether the City, through its agent, St. Peter’s, was grossly negligent in failing to address that state of non-repair.
[29] The bylaw provides at section 5:
That every occupant or owner shall, within 24 hours of the cessation of a Winter Storm Event, or within 24 hours of the cessation of a series of Consecutive winter storm events, remove and clear all snow and ice from sidewalks abutting the highways in front of, or along side, or at the rear of any occupied or unoccupied lot, or vacant lot.
A “winter storm event” is defined in the bylaw as “any precipitation and/or accumulation of snow or ice”.
Subsequent sections provide that the City may remove the snow or ice at the expense of the owner or occupant in the event of a failure to comply with the bylaw’s requirements and provides for enforcement.
[30] Assuming for the moment that the condition on the morning of April 5, 2016 was sufficiently dangerous to constitute a state of non-repair, is there evidence of gross negligence?
[31] St. Peter’s, through its contract with Heritage Green, was under an obligation to keep the municipal sidewalk clear and there was evidence of hand clearing at the St. Peter’s premises on April 4 and April 5, 2016. The hand clearing included the use of salt. The efforts at snow and ice clearing occurred within 24 hours of the winter storm event.
[32] The case law is clear that a municipality does not ensure the safety of the public from the hazards of snow and ice. As noted by this court in Theiventhirampillai v. Balakrishnan, 2012 ONSC 215 at para. 22, although users of a sidewalk are entitled to have those sidewalks kept in a reasonable state of repair, perfection is not the standard. There was no special danger at the site of the incident which might have required specific attention.
[33] The uncontradicted evidence in this case is that the City imposed through its bylaw a winter maintenance program which was acted upon by St. Peter’s through its contract with Heritage Green. That program, which required the clearing of sidewalks within 24 hours of a winter storm event, was a reasonable one. The response of Heritage Green was also reasonable.
[34] As to the plaintiff, she immigrated to Canada from Columbia in July 2002. As of April 5, 2016, she had lived at her residence in Hamilton for approximately four years. She must have been familiar with the circumstances of Canadian winters. She was aware of the impending freezing rain event, dressed appropriately and chose to maintain her existing routine of travel by foot and bus from her residence to that of her daughter. She was aware that the sidewalk was icy and attempted to tread carefully but slipped and fell nonetheless.
[35] There is simply no evidence of gross negligence on the part of the City, either directly or through its imposed agency on St. Peter’s.
[36] Therefore, and for the foregoing reasons, the summary judgment motion is granted and the plaintiff’s claim is dismissed.
[37] Subsequent to the motion hearing, the parties advised that by agreement, costs should follow the event in the amount of $5,000. Therefore, there will be an order that the plaintiff pay to the defendant, the City of Hamilton, the all-inclusive sum of $5,000 within 90 days.
Reid J.