Charlotte Cromarty v. The Corporation of the City of Waterloo, 2022 ONSC 1322

COURT FILE NO.: C-15-4137-SR DATE: 20220311

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Charlotte Cromarty, Plaintiff

– and –

The Corporation of the City of Waterloo, Defendant

COUNSEL: Alexandra Victoros, for the Plaintiff Dawn Phillips-Brown, for the Defendant

HEARD: November 22 and 23, 2021 and submissions in writing

BEFORE: D.A. Broad, J.

[1] The plaintiff Charlotte Cromarty brings this action under the Simplified Procedure provided by Rule 76 of the Rules of Civil Procedure seeking damages for injuries which she sustained as a result of a trip and fall accident on July 30, 2014. The trip and fall occurred on a city-owned sidewalk in front of a property municipally identified as 312 Marsland Drive in the City of Waterloo.

[2] The parties have settled on the quantum of the plaintiff’s damages in the following amounts:

General Damages $42,000.00 Economic Loss $10,000.00 Future Rehab $2,000.00 Housekeeping $40,000.00 OHIP Subrogation $3,032.61 Sunlife Subrogation $1,591.44

TOTAL: $64,632.05

plus prejudgment interest at rate prescribed by the Courts of Justice Act, R.S.O. 1990, c. C.43.

[3] The trial was conducted as a summary trial under rule 76 and concerned the issue of liability only.

Statutory Framework

[4] The parties do not disagree on the applicable statutory framework for the determination of the liability of the defendant.

[5] The defendant’s exposure to liability derives from s. 44 of the Municipal Act, 2001, S.O. 2001, c. 25 which provides as follows:

Maintenance

44. (1) The municipality that has jurisdiction over a highway or bridge shall keep it in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge.

Liability

(2) A municipality that defaults in complying with subsection (1) is, subject to the Negligence Act, liable for all damages any person sustains because of the default.

Defence

(3) Despite subsection (2), a municipality is not liable for failing to keep a highway or bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the default from arising; or

(c) at the time the cause of action arose, minimum standards established under subsection (4) applied to the highway or bridge and to the alleged default and those standards have been met.

[6] The parties agree that while s. 44 speaks of “highways and bridges” sidewalks are included (see Worthey v. City of Hamilton, 2015 ONSC 3690 (S.C.J.) at para. 77, citing Anderson v. Hamilton (City), [2009] O.J. No.4358 (S.C.J.) at paras.21-23).

[7] As noted by the Court of Appeal in the case of Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 at para. 26, case law has established a four-step test for analyzing the statutory cause of action against a municipality as follows:

1. Non-repair: the plaintiff must prove on a balance of probabilities that the municipality failed to keep the sidewalk in question in a reasonable state of repair.
2. Causation: the plaintiff must prove the “non-repair” caused the accident.
3. Statutory Defences: proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.
4. Contributory Negligence: a municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s conduct caused or contributed to the plaintiff’s injuries.

[8] There is no dispute in the case at bar with respect to the second step, that of causation. In her affidavit constituting her evidence in chief, the plaintiff deposed that on the morning of July 30, 2014, as she walked past the sidewalk located in front of 314 Marsland Drive, she caught the right toe of her shoe on the raised edge of the sidewalk, closest to the street side and fell forward onto her right dominant arm, fracturing her wrist, injuring her shoulder and hitting her face.

[9] The municipality did not cross-examine the plaintiff and led no evidence that the accident was caused in any fashion other than as described by her.

[10] The parties agree that at the time of the trip and fall accident at issue the City had adopted the Minimum Maintenance Standards provided by O.Reg. 239/02, which, on that date, provided as follows respecting sidewalk surface discontinuities:

16.1 (1) The minimum standard for the frequency of inspecting sidewalks to check for surface discontinuity is once per calendar year, with each inspection taking place not more than 16 months from the previous inspection.

(1.1) A sidewalk that has been inspected in accordance with subsection (1) is deemed to be in a state of repair with respect to any surface discontinuity until the next inspection in accordance with that subsection, provided that the municipality does not acquire actual knowledge of the presence of a surface discontinuity in excess of two centimetres.

(2) If a surface discontinuity on a sidewalk exceeds two centimetres, the standard is to treat the surface discontinuity within 14 days after acquiring actual knowledge of the fact.

(2.1) A surface discontinuity on a sidewalk is deemed to be in a state of repair if it is less than or equal to two centimetres.

(3) For the purpose of subsection (2), treating a surface discontinuity on a sidewalk means taking reasonable measures to protect users of the sidewalk from the discontinuity, including making permanent or temporary repairs, alerting users’ attention to the discontinuity or preventing access to the area of discontinuity.

(4) In this section,

“surface discontinuity” means a vertical discontinuity creating a step formation at joints or cracks in the surface of the sidewalk.

(a) Was the sidewalk in question in a state of non-repair?

(i) Plaintiff’s Evidence

Plaintiff

[11] The plaintiff deposed in her affidavit that a little less than two weeks after her fall, she asked her son-in-law Mark Sandrock to take photographs of the area of the sidewalk where she fell. The plaintiff accompanied Mr. Sandrock and showed him the location of the fall and stood with him while he took photographs of the sidewalk. She observed Mr. Sandrock using a piece of cardboard which he laid across the higher level of sidewalk slab and using a ruler to measure the height difference. She deposed that the photographs showed the height discrepancy of slightly below to slightly more than 1 inch. She also deposed that the photographs show that the joint of the two sidewalk slabs are “very uneven” and “in a state of disrepair with dips and crumbling edges.”

[12] The plaintiff deposed further that at no time prior to her fall was the area painted in such a way as to draw her attention to the height discrepancy nor had there been any attempts to patch the area of the sidewalk so that it was not a trip hazard.

[13] The plaintiff deposed that Marsland Drive is a street with many offices and businesses and a thruway between Weber Street and University Avenue. She stated that pedestrians utilize the street frequently, walking between the different businesses and between Weber Street and University Avenue.

Mark Sandrock

[14] Mr. Sandrock deposed in his affidavit that he accompanied the plaintiff to the location of her fall approximately two weeks after the incident. He observed that the area of the sidewalk in question was an access area to the parking lot for the business located at 312 Marsland Drive and that cars and trucks drive over it to access and exit the parking lot.

[15] Mr. Sandrock deposed that the area where the plaintiff reported falling was “heaved” between two sidewalk slabs and there were “crumbling edges and a height discrepancy.” He observed no paint along the higher level of the sidewalk to draw pedestrians’ attention to the height discrepancy and no asphalt patch located in the area where the plaintiff fell.

[16] Mr. Sandrock took seven photographs of the sidewalk where the plaintiff advised that the fall occurred, using his phone camera. He used a ruler, measuring tape and a piece of paper or cardboard to lie on top of the higher sidewalk slab in order to measure the difference in height between the two slabs. According to his measurements, the height difference between the two sidewalk slabs ranged from just below 1 inch to over 1 inch, as depicted in the photographs. He stated that the sidewalk was also very eroded with pieces chipped out of it and irregular edges.

[17] On cross-examination Mr. Sandrock testified that he obtained the wooden ruler and piece of cardboard which he used to take the measurements from the plaintiff’s place of business. He did not utilize the tape measure that he brought with him as he found that it did not work properly. He did not have a level nor a combination square in his possession. He stated that the markings on the wooden ruler were divided into tenths of an inch and there were no metric markings. He confirmed that he did not use a level to gauge the straightness of the cardboard and did not put any weight on the cardboard or press it down onto the surface of the upper slab to ensure that it was flush with the sidewalk. He testified that he just placed the cardboard sitting flat on the surface of the slab. During cross-examination Mr. Sandrock testified that “we had no idea what we were doing” and that his intention, and that of the plaintiff, was to “try to get the City to fix it or to paint it.”

[18] On re-examination, in reference to the fifth photograph appended as exhibit “A” to his affidavit, Mr. Sandrock testified that the distance from the bottom of the wooden ruler to the top of the higher slab was “eight tenths of an inch and a bit” which he estimated to be “eight and one quarter tenths of an inch.” Mr. Sandrock testified that the sixth photograph, taken in the same area as the fifth photograph, showed the height as “between eight and nine tenths of an inch.”

[19] Although Mr. Sandrock acknowledged that he had never received formal training or taken any courses with respect to the measurement of height discontinuities on walking surfaces, on re-examination he testified that he had extensive experience taking measurements of large objects in his work in the trucking industry to ensure that loads could fit under bridges, requiring him to be precise in taking measurements. He confirmed that, at the time of his attendance with the plaintiff to take measurements, he had no knowledge of the Minimum Maintenance Standards respecting discontinuities in municipal sidewalks.

(ii) City’s Evidence

Timothy Andrew Conyard

[20] Timothy Andrew Conyard was Manager of Transportation Operations for the City from September 2009 to July 2021. He deposed in his affidavit in chief that in the summer months his position entailed overseeing the city’s roads network including, but not limited to, paving, landscaping and sidewalk maintenance.

[21] Mr. Conyard deposed that the city has always sought to comply with the Minimum Maintenance Standards since their inception by inspecting sidewalks on a yearly basis and by ensuring that all trip ledges that exceed 20 mm are addressed in accordance with the Minimum Maintenance Standards.

[22] Each summer, including in 2014, the city hired a summer student who was tasked with physically traversing all sidewalks within the city to document and note any deficiencies, trip hazards, or disrepair. The summer student was given a bike and a computer or tablet to input data. If the student identified potential deficiencies, trip hazards or disrepair, she/he was instructed to spray-paint it to mark it and to advise either himself or one of the supervisors that there was a potential issue. If the height differential exceeded 20 mm personnel would attend to inspect the spray-paint the area and determine the necessary course of action, including whether it needed to be filled with asphalt, ground down, or mud-jacked.

[23] Mr. Conyard confirmed that there had been no complaints or notifications from members of the public of any deficiencies, trip hazards, or disrepair for the sidewalk in the subject area at 312 Marsland Drive in either 2013 or 2014.

[24] From his review of the records, Mr. Conyard deposed that the sidewalk in front of 312 Marsland Drive was inspected on or about May 7, 2013 and again on July 10, 2014. The student patroller who performed the inspection on July 10, 2014 was Leila Simpkins. She reported no deficiency in the location of the plaintiff’s fall.

[25] On cross-examination Mr. Conyard testified that if an inspection disclosing a discontinuity of over 20 mm was brought to his attention, he would attend at the location to verify that it exceeded 20mm and, if so, to determine if it required fixing. He was only concerned with trip ledges which were determined to “exceed regulation” – that is, those that were over 20mm. When he attended to inspect in these instances, he took a ruler and a tape measure. He placed the ruler horizontally on the higher sidewalk slab and measured the height with the tape measure placed vertically.

[26] Mr. Conyard testified that that he was familiar with Marsland Drive and described it as “mostly an industrial area” with commercial businesses. It was not a residential street and there were no schools located in the vicinity. There was a park and a bar located at the corner of Marsland and Columbia.

[27] Mr. Conyard testified that he would not take the presence of a bar or club into consideration in assessing risks of falls but was more concerned if elderly persons, who would be more apt to fall, or children frequently used a particular sidewalk.

Leila Simpkins

[28] In her affidavit in chief, Leila Simpkins deposed that she was the individual who performed the sidewalk inspection on July 10, 2014. On cross-examination she testified that she started in April or May of 2014 and had been in the role as a sidewalk inspector for approximately two months on July 10.

[29] She described her duties as including biking and/or walking all of the sidewalks in the city in order to monitor the sidewalk condition closely and look for trip hazards, cracks and ponding. She was provided with measuring tools, a tablet, spray paint and potentially other items which she used regularly as required.

[30] As she monitored sidewalks, she would measure and record on a tablet any defects she found. She measured any identified height differentials with a yardstick supplied by the city. The yardstick had a marking at 20 mm. She would place the yardstick against the trip ledge with the bottom resting on the lower level and would find the largest gap to measure at that point.

[31] She testified that if she found a height differential of over 20 mm, she was to report it immediately to her supervisor.

[32] The Routine Patrol Information Details provided to her for review in advance of trial indicated that the area in question was patrolled on July 10, 2014 and the only trip ledge found in the area was in front of the Tire Team Centres Inc. property at the intersection of Marsland Drive and University Avenue and not in front of 312 Marsland Drive. She deposed that she has no recollection of the area in issue from the summer of 2014 nor the specific trip ledge in question. She did not have a detailed recollection of the training provided by the city before she started in her role as a sidewalk inspector, however she does remember attending training where she was provided with details on what to do, and had the opportunity to ask questions.

William Black

[33] William Black was employed from March 20, 2006 to August 31, 2016 as Claim Investigator and Loss Control Inspector for the Regional Municipalities Insurance Pool. He testified that he has also had thirty (30) years’ experience as an insurance adjuster.

[34] Mr. Black deposed in his affidavit in chief that he attended the reported site of the incident on Marsland Drive on September 11, 2014 and observed a raised sidewalk joint which he measured using a combination square, which is a fixed measuring device, with a movable flat part that extends out from a ruler at a 90° angle.

[35] He measured the raised sidewalk joint at its the highest point being 18 mm (equating to 0.7 inches).

[36] Mr. Black described the functionality of the combination square. The part extending out can be placed on the upper of the two sidewalk slabs while the bottom of the ruler can sit on the lower of the two slabs. The two pieces can be locked together and a measurement taken from the ruler. He stated that the height/measurement represents what would be facing a person’s toe when approaching a sidewalk joint.

[37] On or about September 25, 2014 Mr. Black received a letter from the plaintiff’s counsel with photographs noting the exact location of the loss and he was able to confirm that the sidewalk depicted in the photographs was the same section that was measured by him to be 18 mm at its highest point.

[38] On October 6, 2014 Mr. Black engaged the services of Mr. Doug Johnson of WalterFedy to measure the vertical difference in elevation between the adjacent slabs at a control joint in the sidewalk located in the driveway to 312 Marsland Drive. It is understood that WalterFedy is a firm engaged in, among other things, engineering and related services.

[39] On cross-examination, Mr. Black testified that the sidewalk slab in question is approximately four (4) feet wide. He took measurements at four (4) locations across the width of the joint and took three (3) photographs of the measurements he took at each location. He stated that, in conducting measurements, he generally looks for the highest area first and then takes additional measurements.

[40] Mr. Black advised that, in conducting measurements of sidewalk discontinuities, he is not concerned with the bubble in the level on the combination square but rather pays attention to the ruler sitting on the lower slab and the black part of the combination square resting on the upper slab. His objective is to place the bottom piece (the ruler) so that as much as possible of the end of the ruler (one inch wide) is on the slab, with as much as possible of the black piece resting on the upper slab. He indicated that the bubble is irrelevant for his purposes in carrying out the measurements.

[41] On re-examination Mr. Black testified that, in taking his measurements, he was conscious of the need not to place the ruler of the combination square into the crevice between the upper and lower slabs.

Doug Johnson

[42] Doug Johnson was employed at WalterFedy from 1998 until his retirement on December 31, 2018 and was the Manager of Investigative Engineering Services from 1999 to 2018. He has been a member of the Professional Engineers of Ontario since 1976 and was affiliated with the following organizations:

Canadian Association of Technical Accident Investigators and Reconstructionists International Association of Arson Investigators Canadian Association of Fire Investigators National Association of Fire Investigators International Association of Electrical Inspectors

[43] Mr. Johnson deposed that he has completed numerous courses offered by various organizations and institutes on various topics relevant to his role as an investigative engineer.

[44] On consent of the parties, Mr. Johnson was qualified as an expert to give opinion evidence with respect to measurements of sidewalk slab discontinuities.

[45] On cross-examination Mr. Johnson estimated that he had been retained by the Region of Waterloo Insurance Pool to conduct measurements of sidewalk discontinuities a “couple of times a year.” He stated that he had never read the Minimum Maintenance Standards and that at the time that he attended to conduct the measurements in October 2014 he understood that the Province was developing minimum standards but he had no information on the details. Specifically, the 20 mm number never came up. He stated that he “just went out to take measurements.”

[46] In his affidavit in chief Mr. Johnson deposed that he provided an investigative report to Mr. Black on October 14, 2014 which thoroughly described his investigation/examination and findings. In summary his findings concluded:

(a) the maximum difference in elevation between the two slabs of the control joint was 11/16” (17.5 mm);

(b) the maximum difference in elevation between the edge of the higher slab and the walking surface next to the trowel mark on the lower slab was 9/16’ (14 mm); and

(c) the difference in elevation between the edge of the high slab to the walking surface next to the trowel mark on the lower slab best represents the vertical difference that a pedestrian would encounter when walking over the control joint.

[47] Mr. Johnson described the considerations which must be taken into account when measuring the height difference between two sidewalk slabs.

[48] If adjacent slabs are on the same level with each other, the troweled edges will be flush and the walking surfaces will be at the same level. If one sidewalk slab is higher than the other and both slabs are level, the height difference at the troweled edges will be the same as the height difference between the walking surfaces. The height differences between the troweled edges are readily measured with a ruler, however, care must be taken to not have the ruler slip into the gap in the control joint. A ruler that slides through a square is a good tool to make this measurement because it holds the ruler at right angles to the joint, thereby preventing the ruler from dropping into the control joint, thereby exaggerating the difference.

[49] Mr. Johnson deposed that when the adjacent slabs are both level the height difference between the two walking surfaces can be easily measured by using a straight edge to extend the upper level to the lower adjacent slab. This can be readily done with a level in the square used at the edge. In Mr. Johnson’s experience, measuring a trip ledge is more complicated if either of the adjacent sidewalk slabs are out of level, which was the case with the subject sidewalk, as it has a higher slab that slopes upward to the control joint of interest. Mr. Johnson measured this slope and it was 3.8%, while the slope of the lower slab was 2%. The upper slab was pitched up 1.8% relative to the lower slab.

[50] As a result, using a straight edge to extend the elevation of the sloped upper slab to the lower slab will result in an exaggerated measurement. He deposed that a ruler that slides through a square is a better tool to make this measurement because the square holds the ruler at right angles to the joint, preventing the ruler from dropping into the control joint which would exaggerate the difference.

[51] Mr. Johnson deposed that the square which he used was attached to a level and care was taken to extend the elevation of the upper surface to the walking surface of the lower slab.

[52] Mr. Johnson reviewed the photographs taken by the plaintiff and Mr. Sandrock and expressed the opinion that the plaintiff’s measurements are not an exact measurement of the height differential between the two sidewalk slabs. He identified the following problems and concerns with the plaintiff’s measurements as depicted in the plaintiff’s photographs:

(a) Photograph # 1 – it is not possible to determine the measurement in this photograph as the tape measure appears to be well into the control joint, therefore exaggerating the measurement. Further, the camera is at a high level resulting in an exaggeration due to parallax;

(b) Photograph # 2 - the ruler extends into the control joint exaggerating the measurement. Further, the sheet of material used to extend the walking surface past the troweled edges exaggerates the measurement and is clearly warped which further exaggerates the measurements;

(c) Photograph # 3 - the warp in the sheet of material was again evident, exaggerating the measurements;

(d) Photographs # 4 and # 5 - the ruler extends into the control joint exaggerating the measurement.

[53] Mr. Johnson was cross-examined at length regarding the methodology he used to measure the height discontinuity between the two sidewalk slabs and the photographs he took depicting his measurements. The cross-examination touched the importance, if any, of the combination square (also referred to as a “carpenters square”) being level while taking a measurement, whether the location of his measurements (being at 6 inch intervals across the width of the sidewalk) matched exactly the location where the plaintiff tripped, and the difference between measurements taken right at the joint between the slabs or further out at the walking surface of the lower slab. He was also cross-examined on his opinion, expressed in his affidavit in chief, with respect to the deficiencies in Mr. Sandrock’s measurements as depicted in the photographs produced by the plaintiff.

[54] Mr. Johnson testified that what he was looking for in taking his measurements was the height differential between the two slabs right at the edge. He stated that the slope has minimal impact on the measurement at the edge. He acknowledged that he was not able to say that if the combination square was not level it would have no impact. He stated that given that he was measuring to the nearest 1/16 of an inch, if the instrument were out of level, it would not change the measurement more than 1/32 of an inch.

[55] Mr. Johnson testified that in his opinion there was a high probability that the section of sidewalk in question was in the same condition at the time of the plaintiff’s fall as on the date of his attendance 70 days later. There had been no opportunity for frost heaving and no evidence of any excavation in the intervening period. Most rubber-tired vehicles would be unlikely to cause concrete to settle. Since the sidewalk appeared to be on a high spot and both the sidewalk and the street were sloped, rainwater would drain away and would be unlikely to have any effect on the height differential between the sidewalk slabs.

[56] On re-examination Mr. Johnson confirmed that the highest differential that he measured was 17.462 mm. If adjusted by 1/32 on at inch, the differential would be 17.704 mm. He went on to state that if he had tried to ensure that the bubble in the level was in the centre, the difference or “margin of error” may take the height differential to no more than 18.5 mm.

[57] Subject to his acknowledgement that, if the measurements were taken with the square level with the bubble centred, the measurement at the highest point could be increased from 17.704 mm to 18.5 mm, his expert opinion was not undermined on cross-examination. However, he did not acknowledge that it was necessary to have the combination square level to derive an accurate measurement. It was more important, for his measurements, that the bottom of the ruler be in good contact with the troweled edge of lower slab.

[58] On re-examination, Mr. Johnson confirmed that the cardboard laying on the surface of the upper slab depicted in Mr. Sandrock’s photographs clearly had a curve, warp or bow in it, and expressed the opinion that he was unable to look at those photographs and find them to be accurate. He also noted that the markings on the ruler utilized by Mr. Sandrock were 1/10 of an inch or 2.5 mm apart.

Positions of the Parties

[59] Counsel for each of the parties delivered their closing submissions in writing, in accordance with the direction of the court. The plaintiff’s written submissions in chief consisted of 13 pages, the defendant’s 21 pages and the plaintiff’s reply submissions comprised an additional 7 pages. I have read the submissions carefully. The following summaries are not intended to be fully reflective of the parties’ submissions in their entirety, particularly their reviews of the evidence, but rather seek to capture the essence of their respective positions.

Position of the plaintiff

[60] The plaintiff submits that she has satisfied the onus on her of showing on a balance of probabilities that the sidewalk in question was in a state of disrepair on July 30, 2014, that she suffered damages as a result, therefore meeting the causation test, and that the defendant municipality is not able to avail itself of any of the defences in section 44(3) of the Municipal Act, as the inspection and training of the inspectors was not reasonable and the defendant did not take any steps to prevent the default from arising. The plaintiff further submits that there should be no finding of contributory negligence as she was wearing appropriate footwear and was not distracted in any way at the time of the fall.

[61] With respect to the issue of whether the sidewalk was in a state of disrepair, the plaintiff relies upon the evidence of Mr. Sandrock describing and photographically depicting the measurements he took of the discontinuity between the sidewalk slabs, using a standard ruler, showing it to be in excess of 2 cm at the location where the plaintiff tripped.

[62] The plaintiff took issue with the accuracy of the measurements taken by each of Mr. Johnson and Mr. Black, both of which used a combination square to carry out their measurements. With respect to Mr. Johnson’s measurements, the plaintiff took issue with the fact that the combination square was not shown to be level in the photographs, with the bubble in the level component situated between the two black lines, which she says could impact the accuracy of the measurements.

[63] The plaintiff also took issue with the fact that both Mr. Johnson and Mr. Black measured using the combination square, a component part of which was a one-inch wide ruler, which did not sit flush on the lower level of the sidewalk due to the trowel strip along the edge. As a result, she says that the carpenter square was actually measuring the vertical difference one inch back from the joint and not the actual joint, as the joint is beveled down.

[64] Finally, the plaintiff argues that in the interval between her fall and when Mr. Johnson took his measurements drainage and rainfall and heavy vehicle traffic could have made a difference when measured in millimetres.

[65] Plaintiff submits that even if it is found that the vertical height difference between the adjacent sidewalk slabs was not 20 mm or more, the court must still consider the location in terms of whether it is a heavy or light pedestrian location when deciding whether the sidewalk was in a state of disrepair. The evidence indicated that there was a bar/club, school and park in the vicinity, which would give rise to increased pedestrian traffic.

[66] The plaintiff submitted that the requirement for causation has been satisfied by the undisputed evidence that she fell as a result of catching her foot on the raised edge of the sidewalk.

[67] Concerning the defences available to the defendant pursuant to subsection 44(3) of the Municipal Act, the plaintiff submits that the inspections of sidewalks throughout the City carried out by the defendant must be reasonable. The inspection carried out by Ms. Simpkins in the vicinity failed to detect the trip ledge, demonstrating that her inspection was performed negligently. The plaintiff relies on the case of Grayling v. The Corporation of Haldimand County, 2014 ONSC 198 at paras. 46-50.

[68] Finally, with respect to the question of contributory negligence, the plaintiff submits that for the defendant to suggest that she should have been looking down in order to avoid a finding of contributory negligence, the defendant must first concede that the sidewalk was in a state of disrepair which necessitated her to be looking at the ground as she walked. The plaintiff submits that she should not be found to have been contributorily negligent.

Position of the defendant

[69] The defendant submits that the applicable legal test for liability under subsections 44(1) and (3) of the Municipal Act have not been established by the plaintiff. Specifically, the plaintiff failed to meet the onus of establishing that the sidewalk was in a state of non-repair at the time of her fall and since no non-repair has been established, a non-repair did not cause her loss.

[70] Moreover, the defendant submits that, even if a non-repair is found to have caused the plaintiff’s loss, the defendant has a complete defence under the Minimum Maintenance Standards. This is because the defendant has a reasonable system of inspection in place, and it met the minimum maintenance standard for sidewalks in Ontario, as the ledge at issue has been proven to be less than 20 mm. The sidewalk in question is therefore deemed to have been in a state of repair, providing the defendant with an iron-clad defence to the plaintiff’s claim.

[71] Finally, the defendant submits that the plaintiff was contributory negligent for failing to keep a proper lookout in an area that she was familiar with and had walked daily for 12 to 13 years without issue or complaint.

[72] With respect to the measurements taken of the surface discontinuity in question, the defendant submits that Mr. Sandrock’s photographs were shown to be unreliable, misleading and not useful in determining the height of the ledge at issue.

[73] The defendant submits that Mr. Black’s photographs and the device he used, namely a combination square (or carpenters square), are far more accurate and reliable than Mr. Sandrock’s photographs and the make-shift measurement tool he utilized.

[74] The defendant pointed to the expert evidence of Mr. Johnson that when measuring at the joint, even with a margin of error considered, and where the bubble level was not level, it was his opinion that there is no possibility that the ledge in issue exceeded 19 mm and in fact was at its highest likely closer to 17.46 mm. Mr. Johnson was clear that the impact of the level bubble issue raised by counsel for the plaintiff is minuscule and could not have increased his measurements to near the 20 mm mark.

[75] The defendant submits that the measurements of Mr. Black and Mr. Johnson are to be preferred over those of Mr. Sandrock, as they are more reliable, better documented and taken using a combination square, a method approved by the court.

[76] The defendant submits that, given the statutory defences now available to municipalities under the Minimum Maintenance Standards deeming any ledge on the sidewalk found to be at or below 20 mm (or 2 cm) to be in a state of repair, an analysis of the location of the sidewalk is not required where the measurement is 20 mm or less.

[77] The defendant submits that the plaintiff’s reliance on Grayling fails to consider the Minimum Maintenance Standards and the statutory 2 cm deeming rule established thereby which came into effect after Grayling was decided.

[78] The defendant submits:

(a) even under the historical case law prior to introduction of the Minimum Maintenance Standards, the ledge in the sidewalk was less than the three-quarter inch “judicial rule of thumb” and was located in an industrial area with no evidence of significant pedestrian traffic. Accordingly, it should not be found to have been in a state of non-repair;

(b) pursuant to subsection 44(3)(b) of the Municipal Act a municipality is not liable if it did not know and could not reasonably have been expected to have known, about the state of repair. The defendant had received no complaints about the area and the plaintiff, who was very familiar with the location, never noticed or complained. The defendant has a complete defence under subsection 44(3)(b);

(c) subsection 44(3)(b) of the Municipal Act provides that a municipality is not liable if it took reasonable steps to prevent the default from arising. The defendant has a reasonable system of inspection in place and a system of addressing non-repairs, thereby conferring a defence under subsection 44(3)(b);

(d) subsection 44(3)(c) of the Municipal Act provides that a municipality is not liable if the Minimum Maintenance Standards applied to the sidewalk in question and the standards have been met. The Standards required annual inspections and that all discontinuities over 20 mm be addressed by repair within 14 days. The standards also deemed all surface discontinuities equal to or under 20 mm to be in a state of repair. The defendant therefore has a complete defence with respect to the discontinuity at issue under subsection 44(3)(c) and section 16.1 of the Minimum Maintenance Standards.

[79] On the issue of contributory negligence, the defendant points out that sidewalks are not inherently perfectly smooth and all pedestrians in the province should keep a lookout where they are walking and cannot assume that there will be no discontinuities whatsoever.

[80] The defendant submits that the court has repeatedly held that a municipality is not an insurer and as such, reasonable pedestrian hot to pay reasonable attention to see upcoming height differentials on the sidewalk surface.

[81] The defendant pointed to case law finding plaintiffs in trip and fall cases involving sidewalk discontinuities contributorily negligent, in ranges between 20% to 50%. In the case at bar the plaintiff was walking her dog on the sidewalk, which she admitted having walked almost daily for 12 to 13 years and admitted that she was not looking down at the sidewalk but was looking forward. The defendant submits that she was negligent, thereby contributing to her own loss, and should be found to be responsible for 50% of the agreed damages.

Analysis

[82] The plaintiff, in her affidavit in chief, identified the sidewalk location where she experienced the trip and fall as being to the front of 314 Marsland Drive, whereas the other affiants, including Mr. Sandrock, identified the sidewalk area in question as being in front of 312 Marsland Drive. I am satisfied that there is no disagreement between the parties on the location where the trip and fall occurred and that all measurements were taken at the same location.

[83] The first step in the analysis, as indicated above, is to determine whether the plaintiff has proven on a balance of probabilities that the sidewalk in question was not kept by the defendant municipality in a state of repair reasonable in the circumstances, including its character and location.

[84] In the case of Worthey v Hamilton (City), (2015) ONSC 3690, Glithero, J. noted at para. 81 that it is a question of fact in each case whether a condition of non-repair exists in respect of the sidewalk location in issue and that all of the circumstances must be considered.

[85] At para. 83, Glithero, J. observed that, in considering whether a particular location falls below a reasonable state of repair, the court should consider the location in terms of whether it is a heavy or light pedestrian location, and the accident history.

[86] As indicated above, the plaintiff described Marsland Drive as a street with many offices and businesses and as a thruway between Weber Street and University Avenue and stated that pedestrians use Marsland Drive frequently. Mr. Conyard described Marsland Drive as mostly an industrial area with commercial businesses and not a residential street. He stated that there were no schools located in the vicinity. However, there was a park and a bar located at the corner of Marsland and Columbia. Neither the plaintiff nor Mr. Conyard indicated how far the park and bar were from the location of the plaintiff’s fall, nor did they indicate that the presence of either the park or the bar caused elevated pedestrian use in the vicinity of 312 Marsland Drive. There was no indication in the evidence that there were many, if any, retail establishments in the vicinity.

[87] I find that there was nothing in July, 2014 about the character and location of the sidewalk in the vicinity of 312 Marsland Drive which would identify it as an area requiring special attention and scrutiny in respect of design, construction or maintenance by the defendant due to high pedestrian traffic. I find on the evidence that the area of Marsland Drive in question was neither a heavy nor a light location for pedestrian traffic, but rather was an area of moderate pedestrian traffic.

[88] I find that the discontinuity between the sidewalk slabs where the plaintiff caught her toe and tripped was not identified as defect in the annual inspections conducted by City personnel on May 7, 2013 and again on July 10, 2014. Similarly, the defendant had no record of any complaints concerning the subject sidewalk, including from the plaintiff who used it frequently, in 2013 or to the date of the plaintiff’s fall in 2014. The plaintiff led no evidence of any incidents of tripping or any complaints concerning the condition of the sidewalk.

[89] With respect to the conflict between the measurements of the discontinuity between the adjoining sidewalk slabs conducted by Mr. Sandrock using a wooden ruler with measurement markings divided into 1/10-inch intervals and a piece of cardboard, on the one hand, and the measurements taken by Mr. Black and Mr. Johnson, respectively, each utilizing a combination square, I prefer the methodology utilized by Messrs. Johnson and Black, and find their measurements to be more reliable.

[90] In Barbeau v. Kitchener (City), 2017 ONSC 24 I found at para. 62 that the use of a combination (or carpenters) square to measure the discontinuity between the two sidewalk slabs in that case was reasonable and appropriate. I likewise find the use of combination square by Messrs. Black and Johnson in the case at bar to have been reasonable for the purpose of assisting the court to determine the height of the discontinuity. A combination square is designed to be used as a measuring instrument and is capable of measuring the height differential between two horizontal planes.

[91] In contrast, Mr. Sandrock readily acknowledged that his purpose in carrying out his measurements with a ruler and piece of cardboard was to seek to demonstrate to the defendant municipality that it should take remedial action with respect to the trip ledge,. His purpose was not to prove with precision the extent of the height differential in the context of a court proceeding.

[92] I find that a ruler and a piece of cardboard are not designed to be used together as a reliable measuring system. In this case they represented a makeshift method of carrying out Mr. Sandrock’s limited purpose of alerting the defendant to a problem. The cardboard material which Mr. Sandrock laid on the surface of the upper slab was shown in a photograph to be bowed upwards and not flush to the surface of the concrete, thereby exaggerating the measurement of the height differential. Moreover, a ruler used alone is an inferior device to a combination square for the purpose of measuring height differentials between two horizontal planes. A combination square has a square apparatus at a 90-degree angle to the steel ruler which can sit flush to the upper slab, with the bottom of the ruler resting on the lower slab. The square apparatus may be locked to the steel ruler for the purpose of taking an accurate measurement.

[93] In utilizing a combination square Mr, Black measured the height differential between the two sidewalk slabs at the highest point at 18 mm. Mr. Johnson, also using a combination square, independently measured the highest differential at 17.462 mm, a difference of 0.538 mm. The height measured by Mr. Black was therefore 3.1% greater than that measured by Mr. Johnson.

[94] Mr. Sandrock deposed that according to his measurement, the height differential ranged between “just below one inch” to “just over one inch,” an inch being 25.4 mm. Using one inch as his measurement, the height measured by Mr. Sandrock was 41.1% greater than that measured by Mr. Black and 45.54% greater than that measured by Mr. Johnson.

[95] As noted above, Mr. Johnson was qualified as an expert, on consent of both parties, to give opinion evidence with respect to measurements of sidewalk slab discontinuities. I find that Mr. Johnson carried out his measurements conscientiously and fairly. He did not seek to skew the results to achieve a desired result. Indeed, he testified that at the time he carried out his measurements he was not aware of what the Minimum Maintenance Standards provided for height differentials between sidewalk slabs for municipal sidewalks. I also find that the methodology he utilized was reasonable, including taking measurements at 6-inch intervals across the sidewalk and the placement of the combination square at the measurement points.

[96] In giving his evidence Mr. Johnson fairly conceded certain propositions put to him on cross-examination, including that if he had set the combination square so that the bubble was centred it would have resulted in a higher measurement. He also conceded that the one-inch width of the ruler on the carpenters square prevented the measurement from being taken right at the joint between the two slabs and that the possible presence of rainwater in the interval between the date of the plaintiff’s fall and when he took his measurements could possibly result in a different measurement. However, he maintained that these variables would have minimal effect, if any, and in particular that taking the measurement with the bubble in the level centred would not result in the measurement exceeding 18.5 mm at the highest point.

[97] I find on a balance of probabilities that the height differential between the two sidewalk slabs in question at the highest point was between 17.462 mm and 18.5 mm on the date of the plaintiff’s trip and fall.

[98] In Barbeau v. Kitchener (City) I found at para. 70 that the adoption by a municipality of the Provincial Minimum Maintenance Standards has removed the need to rely upon a “judicial rule of thumb” derived from caselaw that predated their adoption.

[99] I also found at para. 73 the maximum height differential of two centimetres (20 mm) provided for the Minimum Maintenance Standards to be reflective of a reasonable standard in the context of the “small residential street” described in that case. I similarly find that a height differential of two centimetres (20 mm) represents a reasonable standard of repair in the context of the sidewalk with moderate pedestrian traffic at issue in this case. As in Barbeau, I offer no comment on whether it would be considered reasonable in other contexts.

[100] I find that the plaintiff has failed to satisfy the onus on her of proving on a balance of probabilities that the defendant municipality failed to keep the sidewalk in question in a state of repair that was reasonable in the circumstances. Given this finding, it is not necessary to proceed on to consider whether the defendant may avail itself of one or more of the defences provided in subsection 44(3) of the Municipal Act.

(b) Contributory negligence

[101] The defendant has alleged that the plaintiff was negligent which contributed to the damages that she suffered.

[102] The onus is on the defendant to prove that the plaintiff was contributorily negligent. In Worthey Glithero, J. observed at para. 80 that a municipality is not required to maintain perfectly even sidewalk surfaces. The standard of repair of the municipal sidewalk is not that of perfection. A reasonable pedestrian ought therefore to pay reasonable attention to see upcoming height differentials on the sidewalk surface (see Barbeau at para. 75). The evidence was that the plaintiff was very familiar with length of the sidewalk on Marsland Drive, having walked along the sidewalk daily, weather permitting, for approximately 12 or 13 years. She deposed in her affidavit that on the date in question she did not notice the raised edge of the sidewalk prior to her fall as she was looking ahead while she was walking. It is therefore evident that at the time that she tripped she was not observing the sidewalk in front of her.

[103] There is no suggestion that the plaintiff was wearing inappropriate footwear for the conditions.

[104] In Barbeau, which involved a very similar circumstances, I found the plaintiff contributorily negligent to the extent of 20% (see para. 75). I make the same finding in the case at bar.

[105] As indicated above, the plaintiff’s gross damages have been agreed to in the total sum of $64,632.05. Deducting 20% in respect of the finding of contributory negligence yields a net amount of $51,705.64. This amount would bear pre-judgment interest at the rate prescribed by the Courts of Justice Act, calculated from July 30, 2014.

(c) Disposition

[106] For the reasons set forth above, the plaintiff’s action is dismissed.

(d) Costs

[107] Counsel are strongly encouraged to agree on costs. If they are unable to do so, they may deliver written submissions on costs - the defendant within 14 days of the date of release of these Reasons for Judgment and the plaintiff within 10 days of receipt of the defendant’s submissions. Such submissions shall not exceed five (5) double-spaced pages, exclusive of bills of costs or costs outlines and offers to settle. All submissions shall be delivered by email to the Trial Coordinator at Brantford at the email address utilized for releasing these Reasons for Judgment.

D.A. Broad, J. Released: March 11, 2022