COURT FILE NO.: CV-15-00527725-0000
DATE: 20210720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HILDA FERNANDEZ
Plaintiff
- and -
CITY OF TORONTO, TORONTO TRANSIT COMMISSION and BONDFIELD CONSTRUCTION COMPANY LIMITED
Defendants
Sang Joon Bae for the Plaintiff.
Bronwyn M. Martin for the Defendants.
HEARD: June 18, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] As part of the project to extend the City of Toronto’s subway system, the Toronto Transit Commission (“TTC”) hired Bondfield Construction Company Limited as a general contractor. On the lengthy construction site, Bondfield was responsible for the snow and ice removal from a 220-metre walkway constructed on the pavement of Finch Avenue near the intersection of Keele Street and Finch Avenue. The walkway was adjacent to the construction site, and it provided pedestrian passage in lieu of the normal sidewalk along Finch Avenue which was incorporated into the construction site. On December 11, 2014, the Plaintiff Hilda Fernandez slipped and fell while walking on the walkway. On May 7, 2015, Ms. Fernandez sued the City, the TTC, and Bondfield for damages to compensate her for her injuries. The Defendants have resolved all crossclaims and now bring a motion for a summary judgment dismissing Ms. Fernandez’s action.
[2] For the reasons that follow, the Defendants’ motion is successful, and Ms. Fernandez’s action is dismissed.
B. Procedural Background
[3] Ms. Fernandez’s accident occurred on December 11, 2014.
[4] On May 7, 2015, Ms. Fernandez commenced an action against the City of Toronto.
[5] On June 30, 2015, the City of Toronto delivered its Statement of Defence.
[6] On September 10, 2015, Ms. Fernandez delivered an Amended Statement of Claim joining the TTC and Bondfield as party defendants.
[7] On November 3, 2015, the TTC delivered its Statement of Defence and Bondfield delivered its Statement of Defence.
[8] On November 26, 2015, the City delivered an Amended Statement of Defence with a Crossclaim against the TTC and Bondfield.
[9] The parties respectively delivered affidavits of documents.
[10] On October 18, 2016, Ms. Fernandez was examined for discovery.
[11] On March 6, 2017, Bondfield’s, the City’s and the TTC’s respective representatives were examined for discovery.
[12] On November 6, 2018, TTC and Bondfield brought a motion for summary judgment.
[13] There were cross-examinations and the exchange of factums and the summary judgment motion was argued on June 18, 2021.
C. Evidentiary Background
[14] The Defendants supported their summary judgment motion with the following evidence:
• The affidavit of Brad Smith dated October 31, 2018. Mr. Smith is a Construction Superintendent employed by Bondfield. Mr. Smith was cross-examined.
• The affidavit of Ryan Osmond dated October 31, 2018. Mr. Osmond is a Senior Construction Inspector employed by Morrison Hershfield, which was retained by the TTC for inspections of the construction of the subway extension. Mr. Osmond was cross-examined.
[15] I note that the City originally filed affidavits from Ann Khan and Dominic Guthrie, but the City was unable to produce these witnesses for cross-examination. In these circumstances, the Defendants withdrew the Khan and Guthrie affidavits. The Defendants did not rely on these witnesses and Ms. Fernandez asked that the affidavits be struck. I simply rule that the affidavits are not admissible.
[16] The Defendants also relied on the evidence from Ms. Fernandez’s Examination for Discovery.
[17] Ms. Fernandez resisted the summary judgment motion with the following evidence:
• The affidavit of Ms. Fernandez dated December 8, 2018. She was cross-examined.
• The affidavit of Dewan Karim, M.A. Sc. MITE, P. Eng. PTOE dated December 6, 2018. Mr. Karim is a professional engineer employed at -30- Forensic Engineering in Toronto, Ontario. He has degrees in civil engineering (Bangladesh University, 1998), Master of Applied Science (Civil Engineering/University of Tokyo, 2000) and Master of Applied Science (Civil Engineering/Ryerson University, 2006). He delivered an expert’s report dated December 5, 2018. He was cross-examined.
• The affidavits of Sukkyun Lee dated December 8, 2018 and May 9, 2019. Mr. Lee is a law clerk for the Plaintiff’s lawyer.
[18] Ms. Fernandez also relied on:
• The transcript of the Examination for Discovery of Kushan De Silva, the TTC’s representative.
• The transcript of the Examination for Discovery of Hector Moreno, the City’s representative.
• The transcript of the Examination for Discovery of Claudio Ruoso, Bondfield’s representative.
D. Facts
1. The Slip and Fall
[19] The TTC retained Bondfield as the general contractor for the subway expansion project known as the Toronto-York Spadina Subway Extension.
[20] Near the intersection of Finch Avenue and Keele Street, the construction site included the sidewalk. The sidewalk was replaced with a temporary 200-metre walkway erected by Bondfield. The walkway was located on the asphalt of Finch Avenue. A photograph of the walkway is below. The walkway provided temporary pedestrian access and was used by Bondfield workers to access the construction site.
[21] Under the construction contract, Bondfield was responsible for ice and snow removal and for maintaining temporary works, sidewalks, and access routes at and near the construction site. The contract stated:
SC 16 CONTRACTOR’S RESPONSIBILITIES
The following supersedes GC21 – CONTRACTOR’S RESPONSIBILITIES in its entirety and any cross reference thereto:
- The Contractor shall have the sole responsibility for the design, supply, erection, operation, maintenance and removal of temporary structural and other temporary works and the design and execution of construction methods required for same.
1 Temporary Works are installations providing access, protection, support or services for workers, equipment and materials during construction, renovation, maintenance or demolition of permanent works; and
2 temporary service or support for any of permanent Works until the permanent Works have achieved a state of completion allowing the temporary works to be removed.
- PUBLIC CONVENIENCE AND SAFETY
9.1 Maintain sidewalks, decked and paved areas at and adjacent to the Site in a safe condition throughout the Contract. Promptly remove ice and snow.
- ACCESS AND EGRESS TO SITE
10.4 Keep access routes, sidewalks, Site roads, trailer area, storage areas as well as Work areas free of ice and snow to maintain safe operating conditions and to maintain progress of the Work. Remove cleared snow from the Site within twelve (12) hours of a snow fall or as directed by the Commission’s Representative.
[22] On December 9 and 10, 2014, the days before Ms. Fernandez’ slip and fall, there was some snowfall. On the following day, December 11, 2014, a significant amount of snow began falling at 2:00 a.m. The snow continued throughout the day eventually accumulating to a depth of 17.4 cm.
[23] There was 12 cm. of snow accumulated on the walkway by 6:00 a.m. on December 11, 2014.
[24] At 6:00 a.m. Mr. Smith arrived at the construction site near Finch Avenue and Keele Street. When they arrived, he instructed six Bondfield employees to clear ice and snow from the site and from the pedestrian areas including the walkway. The labourers started work around 7:00 a.m. They worked first on the construction site and then outwards to the perimeter of the property where the walkway was located. The labourers came to the walkway around 9:30-9:45 a.m.
[25] At the walkway, two labourers used a small skid steer tractor to clear ice and snow, and four workers controlled the pedestrian traffic. While the tractor was working, one of the labourers used a snow shovel to remove remaining snow. After or while the tractor was finishing its work, one of the labourers spread ice melt along the walkway by hand.
[26] Ms. Fernandez lives in an apartment near the construction site. She has lived in the area since 2000. On December 11, 2014, at around 9:30-10:00 a.m., she was walking westbound on Finch Avenue toward the Finch Avenue and Keele Street intersection for a medical appointment. Her doctor’s office was located at 1240 Finch Avenue, which is west of the intersection. She was wearing new boots with good ridges, and she was not rushing.
[27] Ms. Fernandez arrived at the walkway between 9:45-10:00 a.m. She saw that a Bondfield labourer was using a small snowplow to clear the snow from the walkway. Other labourers told her to wait until the labourers using the small tractor had completed their work. She watched the snow being removed, and she watched labourers using hand shovels to remove remaining snow.
[28] Ms. Fernandez entered the walkway, and she slipped and fell on what she believed to be a snow-covered patch of ice. She fell at approximately the midpoint of the walkway. After her fall, although she experienced what she described as excruciating pain, she got up and continued her walk to her doctor’s office.
[29] After her doctor’s appointment, Ms. Fernandez walked back the way she came. At around 11:30 a.m., she walked across the walkway. She testified that it was cleared of ice and snow down to the pavement.
[30] The snowfall continued throughout the day, and Bondfield labourers returned to the walkway from time to time to remove more accumulating snow.
2. The Expert Evidence of Dewan Karim
[31] Mr. Karim of -30- Forensic Engineering was retained to assess the maintenance responsibilities for the walkway where Ms. Fernandez fell.
[32] Mr. Karim’s investigation determined that there was no clear understanding of who was responsible for maintaining the walkway in violation of the communication requirements of Ontario Traffic Manual (OTM) Book 7. He concluded that had the City, TTC, and Bondfield properly defined the temporary work zone, then the walkway conditions would have been addressed before Ms. Fernandez reached the walkway. In the summary of his conclusion in his expert’s report, he states:
Although the documentation indicated that Bondfield started clearing snow on the subject walkway, Bondfield started after the busiest peak hours and was therefore late to address the heavy snowfall. It is not known what ice prevention treatment, if any, was performed on the walkway at any time leading up to the incident. In addition, no City snow clearing equipment was noticed prior to or during the fall or on Ms. Fernandez’s return. As a result, the walkway may not have been maintained promptly according to acceptable safe conditions during the incident period.
Had the City, TTC, and Bondfield coordinated and properly defined the temporary work zone per the OTM Book 7 requirements, and established the required clear communication protocols, the walkway conditions would have been addressed prior to Ms. Fernandez reaching the area.
[33] Mr. Karim’s opinion, however, is not helpful to Ms. Fernandez. The opinion is counterfactual, and he did not have the benefit of the evidence advanced for the summary judgment motion. When Mr. Karim prepared his opinion, he understood that there was no snow removal before Ms. Fernandez arrived at the walkway and that the area was completely covered with accumulated snow when she fell; however, my findings of fact are to the contrary.
[34] In their Reply Factum, the Defendants objected to the admission of Mr. Karim’s report on the basis that he gave meteorological evidence about which he had no expertise. Mr. Karim, however, did not stray from his expertise in engineering. He was qualified to give the expert evidence that he gave, and much of it was of assistance to the court. However, as I have already indicated, ultimately, the report did not assist Ms. Fernandez because it was counterfactual or addressed matters that were irrelevant to the actual events associated with Ms. Fernandez’s slip and fall case.
E. Discussion and Analysis: Methodology
[35] Such being the evidentiary background to the Defendants’ summary judgment motion, in the discussion and analysis that follows, in Part F, I shall consider whether the case is appropriate for a summary judgment, and I conclude that the case may be decided summarily and that a trial is not necessary to do justice.
[36] In Part G, I shall consider Ms. Fernandez’s case as a matter of the law associated with occupier’s liability.
[37] In Part H, I shall consider Mr. Fernandez’s case as a matter of a municipality’s liability for maintaining roads and sidewalks.
F. The Availability of Summary Judgment
[38] The first issue to determine is whether the case is an appropriate one for a summary judgment.
[39] Rule 20.04(2)(a) of the Rules of Civil Procedure[^1] 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:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[40] 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.[^2] 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.[^3]
[41] In Hryniak v. Mauldin[^4] and Bruno Appliance and Furniture, Inc. v. Hryniak,[^5] 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.
[42] 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.[^6]
[43] 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: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.[^7] 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.[^8]
[44] In the immediate case, there is ample evidence to resolve the issues, and they can be fairly and proportionately resolved by a motion procedure.
[45] Ms. Fernandez’s affidavit evidence was inconsistent, but her cross-examination and discovery evidence in the main confirms the evidence of the Defendants, and in many respects Ms. Fernandez’s evidence was not helpful to her slip and fall case to establish that the Defendants acted negligently or that the City was grossly negligent. Her affidavit fails to disclose matters that she testified to during her examinations; for instance, that she was stopped from entering the walkway and that she saw the small snowplow at work.
[46] The parties disagree about how to apply the law, but I have a clear picture of the facts. The case at bar is an appropriate one for a summary judgment.
G. Occupier’s Liability
1. Law
[47] In the immediate case, although it came late in the course of the litigation, the Defendants TTC and Bondfield accept that they were occupiers. Their duty of care and liability, if any, arises from the Occupiers’ Liability Act.[^9] For present purposes, the relevant provisions of the Act are sections 1, 2, 3, and 6, which state:
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; (“occupant”)
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 on the premises.
Idem
(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.
Liability where independent contractor
6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.
Idem
(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.
Idem
(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor.
[48] The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard 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.[^10] The standard of care for occupiers is one of reasonableness and occupiers are not required to take unrealistic or impractical precautions against known risks.[^11] 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.[^12]
[49] In the leading case of Waldick v. Malcolm,[^13] 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'.
[50] The duty of care imposed on the occupier does not extend to the removal of every possible danger; the standard of care is one of reasonableness and not perfection.[^14] If a plaintiff is injured on premises, to succeed in an occupier’s liability claim, 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.[^15]
2. Analysis and Discussion
[51] Applying the law of occupiers’ liability to the facts of the immediate case, the evidence establishes that there was no negligence and that the conduct of the Defendants was reasonable. There was a heavy snowfall and the snow removal work had been underway some two or three hours before Ms. Fernandez arrived at the walkway. She watched the labourers at their labour and there is no basis upon which to conclude that they were careless in attending to their work.
[52] Ms. Fernandez was not careless in crossing the walkway but pedestrian accidents do occur without anyone being careless and slips and falls are not uncommon occurrences during heavy snowfalls. The defendants had a duty of care but they did not breach it and they are not liable for occupiers’ liability in the circumstances of the immediate case.
H. Municipal Liability for Roads and Sidewalks
1. Law
[53] Pursuant to s. 42 of the City of Toronto Act, 2006,[^16] the City of Toronto is responsible for maintaining roads, bridges, and sidewalks in a state of repair that is reasonable in the circumstances; however, except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk. For present purposes, the relevant provisions of s. 42 state:
Maintenance of highways and bridges
42 (1) The City shall keep a highway or bridge over which it has jurisdiction in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.
Liability
(2) If the City defaults in complying with subsection (1), the City is, subject to the Negligence Act, liable for all damages any person sustains because of the default.
Defence
(3) Despite subsection (2), the City is not liable for failing to keep a highway or bridge in a reasonable state of repair if,
(a) the City did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;
(b) the City took reasonable steps to prevent the default from arising; or
(c) at the time the cause of action arose, minimum standards established by a regulation made under section 117 applied to the highway or bridge and to the alleged default and those standards have been met.
Sidewalks
(5) Except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk.
[54] Users of the sidewalk are entitled to have the sidewalk kept in a reasonable state of repair; however, perfection is not the standard and the test is reasonableness.[^17] The gross negligence standard takes account of the fact that it takes time for the municipality to clear every sidewalk in a city following a snowfall or other inclement weather.[^18]
2. Analysis and Discussion
[55] Assuming that in the circumstances of the immediate case pursuant to s. 42 of the City of Toronto Act, 2006, the City is responsible for maintaining the walkway as part of its responsibility for roads, bridges, and sidewalks, which is a disputed point in the immediate case, then pursuant to s. 42 (5) of the Act, except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk.
[56] Quite simply there is no evidence of negligence much less gross negligence in the immediate case.[^19]
[57] Based on Mr. Karim’s opinion, the worst that can be said is that the removal of snow in the heavy snowfall that occurred on December 11, 2014 should have started earlier enough so that the sidewalk would have been cleared by the time of Ms. Fernandez’s arrival.
[58] The evidence, however, establishes that Mr. Karim’s opinion was based on the contrary to fact assumption that the snow removal had not occurred when Ms. Fernandez arrived at the walkway. The truth, however, is that the snow removal was underway and Ms. Fernandez watched it being completed. Unfortunately, she had an accident and slipped and fell. There is no evidence that what was occurring insofar as the ice and snow was being removed was unreasonable, negligent, or grossly negligent.
[59] In determining whether the City has been grossly negligent, the court should consider: first, whether the City’s general policy with respect to ice and snow removal was reasonable; and second, whether the City’s response to the particular snow event (that occurred between December 9-11, 2014) was reasonable.[^20]
[60] In the immediate case, there was no question that the City’s general snow removal policy for sidewalks was reasonable and although there was a dispute amongst the defendants about whether the responsibility for snow removal at the site was outside the City’s general policy, assuming that the policy applied, the genuine issue in the immediate case was whether or not the snow removal came too late under the policy. There is, however, no genuine issue requiring a trial about that matter. The evidence rather was the order for snow removal was made around 7:00 a.m. and the work was nearing completion when Ms. Fernandez arrived.
[61] In the immediate case, I do not need to decide whether there ought to have been better communication and coordination among the City, TTC, and Bondfield because as a matter of fact the walkway conditions were addressed before Ms. Fernandez reached the area.
[62] Once again, I do not suggest that the accident happened because of Ms. Fernandez’s carelessness in crossing the walkway. Accidents do occur without anyone being careless and the immediate case is an example.
I. Conclusion
[63] For the above reasons, the action is dismissed.
[64] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendants’ submissions within twenty days of the release of these Reasons for Decision followed by the Plaintiff’s submissions within a further twenty days.
[65] I alert the parties that my present inclination is to dismiss the Plaintiff’s action without costs. Based on my review of the record, the litigation was prolonged by the infighting amongst the Defendants. The infighting concerned who contractually or legally was responsible for maintenance of the walkway and for snow removal. It was only late in the litigation that the defence position consolidated on addressing the central issues of whether there was negligence or gross negligence by anybody with respect to Ms. Fernandez’s unfortunate slip and fall.
Perell, J.
Released: July 20, 2021
COURT FILE NO.: CV-15-00527725-0000
DATE: 20210720
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HILDA FERNANDEZ
Plaintiff
- and -
CITY OF TORONTO, TORONTO TRANSIT COMMISSION and BONDFIELD CONSTRUCTION COMPANY LIMITED
Defendants
REASONS FOR DECISION
PERELL J.
Released: July 20, 2021
[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[^2]: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11; Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 814 (ON CA), 18 O.R. (3d) 481 (C.A.).
[^3]: Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.
[^4]: 2014 SCC 7.
[^5]: 2014 SCC 8.
[^6]: 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.
[^7]: Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50.
[^8]: 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.
[^9]: R.S.O. 1990, c. O-2.
[^10]: 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.
[^11]: Gohm v. York, 2013 ONSC 7118 at paras. 50-51; Miltenberg v. Metro Inc., 2012 ONSC 1063 at paras. 32-33.
[^12]: Gohm v. York, 2013 ONSC 7118 at para. 50.
[^13]: 1991 71 (SCC), [1991] 2 S.C.R. 456 at p. 472. See also Przelski v Ontario Casino Corp., [2001] O.J. No. 3012 (S.C.J.).
[^14]: Hamilton v. Ontario Corp. No. 2000533 (c.o.b. Toronto Community Housing Corp.), 2017 ONSC 5467; Nandlal v. Toronto Transit Commission, 2014 ONSC 4760; Gohm v. York, 2013 ONSC 7118; George v. Covent Garden Market Corporation, 2007 ONSC 29276, at para. 35; Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (S.C.J.).
[^15]: Gohm v. York, 2013 ONSC 7118, at paras 20-21; Miltenberg v. Metro Inc., 2012 ONSC 1063; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232; St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721 at para. 27 (S.C.J.); Whitlow v. 572008 Ontario Ltd., [1995] O.J. No. 77 (Gen. Div.).
[^16]: S.O. 2006, c. 11, Sched. A.
[^17]: Vargas v. Hamilton (City), 2020 ONSC 38; Christoforou v. City of Toronto and Maple Crete Inc, 2018 ONSC 2982 at para. 14; Theiventhirampillai v. Balakrishnan, 2012 ONSC 215 at para. 22.
[^18]: MacKay v. Starbucks Corp., 2017 ONCA 350 at para. 15.
[^19]: Vargas v. Hamilton (City), 2020 ONSC 38.
[^20]: Christoforou v. City of Toronto and Maple Crete Inc, 2018 ONSC 2982 at para. 9; Billings v. Mississauga (City), 2010 ONSC 3101, at para.7.