COURT FILE NO.: 57331/17
DATE: 20220530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rebecca Whitlow
Plaintiff
– and –
Town of Fort Erie
Defendant
K. Book, for the Plaintiff
N. Chutko, for the Defendant
HEARD: May 17, 18, 19, 2022
the honourable justice l. walters
REASONS FOR JUDGMENT
Overview
[1] The plaintiff, Rebecca Whitlow, claims negligence against the Town of Fort Erie resulting from a trip and fall incident which occurred on May 1, 2015 on Schooley Road, in the Town of Fort Erie.
[2] The plaintiff alleges that Schooley Road was in a state of disrepair at the time of the accident, and that this non-repair was the cause of her trip and fall.
[3] The plaintiff further alleges that the defendant cannot take advantage of the statutory defences provided for in the Municipal Act.
[4] The position of the defendant, Town of Fort Erie, is that the roadway in question was not in a state of non-repair, and even if it was, the Town relies on the statutory defences outlined in the Municipal Act. The Town complied with all minimum maintenance standards prescribed.
[5] The parties have settled the issue of the plaintiff’s damages in the amount of $100,000.
[6] Accordingly, the issues for the court to determine are liability for the accident and what, if any, contributory negligence should be apportioned to the plaintiff.
Background Facts
[7] The facts for the most part are not in dispute. The parties filed as Exhibit 1, a very detailed agreed statement of facts, which I do not need to repeat for the purposes of these reasons.
[8] It is conceded that the defendant has jurisdiction over Schooley Road, and is responsible for maintenance of the road including repair of potholes in accordance with the minimum maintenance standards set out in Ontario Regulation 239/02.
Statutory Framework
[9] There is no dispute regarding the applicable statutory framework of the Municipal Act for the court to determine the issue of liability.
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. 2001, c. 25, s. 44 (1).
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.
Regulations
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
[10] In Lloyd v. Bush, 2017 ONCA 252 at para. 62, the Ontario Court of Appeal summarized the four-step test to be applied when a claim is made against a municipality for non-repair.
In Fordham v. Dutton Dunwich, (Municipality), 2014 ONCA 891, [2014] 327 O.A.C. 302, at para. 26, Laskin J.A. set out the four-step test to be applied when a claim is made against a municipality for non-repair. It can be summarized as follows:
• Non-Repair: The plaintiff must prove the existence of a condition of non-repair, that is, a road-based hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road, with a view to the circumstances including the “character and location” of the road.
• Causation: The plaintiff must prove that the condition of non-repair caused the loss in question.
• Statutory Defences: If the plaintiff has proven both non-repair and causation, a prima facie case is made out against the municipality. The municipality then bears the onus of proving that one of the three independently sufficient defences in s. 44(3) applies. These defences include proof that the municipality took reasonable steps to prevent the default from arising (s. 44(3)(b)).
• Contributory Negligence: If the municipality cannot establish any of the statutory defences, it will be found liable. The municipality can, however, still demonstrate that the plaintiff’s driving caused or contributed to his or her injuries.
[11] Further, at para. 64, “proof of a state of non-repair is not in itself enough to establish liability. Rather a municipality will only be liable for failing to salt and/or sand and clear the road of snow where it had actual or constructive knowledge that road conditions created an unreasonable risk of harm to users of the highway, and where the municipality unreasonably neglected that risk.”
[12] This principle of law is equally applicable to any alleged non-repair of the roadway be it snow removal or repair of potholes.
The Evidence
[13] The plaintiff testified that the accident occurred shortly after 9:00 p.m. on May 1, 2015. It was dark. At the time, she was walking her mother’s German shepherd dog and was with her daughter Darian. She was looking ahead as she walked and turned at times to speak with her daughter. Although the roadway had lights, the one closest to the accident site was out.
[14] She testified that her whole foot went into the hole up to her ankle. She described the depth as at least three and a half inches. The pothole was one or two inches wider than her foot and she wore a size seven-and-a-half to size eight shoe. The hole was five or six inches wide.
[15] She took no photographs of the subject pothole nor did she take any measurements.
[16] Her daughter Darian Hill testified that she placed her hand in the pothole and she could feel on her wrist where it came up to. It measured the width of the spread of her hand. She as well took no measurements or photos of the area.
[17] Darian testified that she brought her mother’s friend Keith Maracle to the location of the accident the next day and pointed out where the pothole was located. She did not remain behind while Keith took photos of the pothole.
[18] Those photographs have been filed as tab 10, Exhibit 2.
[19] The plaintiff identified the pothole in question by circling it on the second photo filed at tab 10 of the exhibit.
[20] There is no other evidence regarding the size of the pothole. There are no measurements of this pothole. Both experts, Mr. Forbes, on behalf of the plaintiff, and Mr. Malone on behalf of the defendant, confirm that they did not know the size of the pothole.
[21] Both experts agree one could not determine the size of the pothole by looking at photographs. Mr. Forbes further testified that he would be very leery of descriptions of measurements by lay people.
[22] The condition of Schooley Road was documented on April 27, 2015. A work order was generated on April 29, 2015 and the repair of the pothole was made on May 7, 2015.
[23] The Town of Fort Erie called three Town witnesses, namely George Stojanovich, Gerald Beteau, and Robert Puttick. All three testified that the Town practice was to fill and repair all potholes on a roadway marked for repair, regardless if they met the minimum maintenance standard size for repair. This was done so that they would not have to come back to the area for pothole repair.
[24] Mr. Puttick testified that if a pothole suggested that it was an immediate hazard, the supervisor would be called so that the matter could be taken care of.
[25] The plaintiff called Mr. Forbes as an expert who was qualified in the area of road maintenance and road safety.
[26] Mr. Forbes responded to the report of the defendant’s expert, Mr. Malone. Specifically, he opined that the Town fell below the minimum maintenance standards regarding patrol of the area as the Town missed a patrol which should have taken place in early April 2015. He disagreed with Mr. Malone that GPS records which showed that Town trucks traversed this area eight times between March 9 and April 27, 2015 were sufficient to discharge the Town’s statutory duty.
[27] Mr. Forbes also indicated that based on the information he received, he did not know if the pothole in question met the minimum maintenance standard dimensions to be classified as non-repair. However, the Town filled it and therefore he assumed it must have required action.
[28] Mr. Forbes agreed with Mr. Malone that the missing light on Schooley Road did not meet the definition of non-repair in the applicable minimum maintenance standards.
[29] Mr. Malone was also qualified as an expert in the area of road maintenance and road safety. In his opinion, he stated that the size of the pothole did not qualify as a required repair pursuant to the minimum maintenance standards. He used the information that was given to him from Keith Maracle in order to make this finding. It is of note that the court has no evidence with respect to the measurements taken by Mr. Maracle.
[30] Still, Mr. Malone opined that even though the depth of the pothole was not known, it was still reasonable to fix or repair it anyway.
[31] According to the minimum maintenance standards, the Town was obliged to patrol the roadway to check for conditions every 30 days. Town records confirm that a patrol was done on March 9, 2015. The next recorded patrol was on April 27, 2015, more than 30 days later.
[32] Mr. Malone was satisfied that the Town met the minimum maintenance standards for patrol of the roadway because, although they may have missed an earlier patrol in April 2015, GPS records filed with the court as Exhibit 5, show that Town vehicles traversed Schooley Road and the accident location on at least eight times between March 9, 2015 and April 27, 2015. In his view, this provided an opportunity for Town employees to patrol the area and make inspection of potholes. However, he was not in a position to state whether or not the Town employees took advantage of that opportunity.
[33] Mr. Malone also opined that the missing street light on Schooley Road did not satisfy the requirements for a state of non-repair in the minimum maintenance standards.
[34] The Town was provided with written notice of the claim for the first time on May 8, 2015.
Analysis
[35] In my view, this case turns on the first step – has the plaintiff proven on a balance of probabilities that the Town failed to keep the road in question in a reasonable state of repair?
[36] What constitutes a reasonable state of repair is a question of fact depending on all the surrounding circumstances.
[37] Schooley Road is a Class 5 road. A class of road is determined in accordance with the volume of traffic and the speed limit on the road. Classes range from 1 to 5 with 5 being the class which requires, according to Mr. Forbes, less attention and is “low in pecking order.”
[38] The photographs confirm that Schooley Road is a paved residential road that runs north/south and is located in the community of Crystal Beach in the Town of Fort Erie. Crystal Beach is a small community.
[39] Pursuant to the minimum maintenance standards, a Class 5 road has a speed limit of 50 kilometres or less and an average annual daily traffic count of between 50 to 499 motor vehicles.
[40] Photos of the road, taken the day after the incident, show a paved road with several imperfections and several potholes running down both sides of the roadway. There are ditches on both sides and a sidewalk only on one side. There are no traffic lights or pedestrian crossings. The area is lit with street lights but at the time of the accident one of the street lights, near the site of the incident, was burnt out. At the time of the accident there were approximately 11 to 12 houses on the roadway between Small Street and Rebstock Road.
[41] There is no evidence that there had been any other accidents at this location, or that the Town had been called regarding the state of the roadway. As there was a sidewalk on only one side of the road, it is reasonable to assume that pedestrians would need to cross the roadway in order to access the sidewalk.
[42] On the night in question, the plaintiff testified that she stepped in one of the potholes, turned her ankle and fell to the ground.
[43] She identified the pothole in question by circling it on a photograph.
[44] The court has no measurements of this pothole. Both experts confirm that they did not know the size of the pothole. At the time of the accident, Darian was 13 or 14. We have no evidence of her palm spread or hand size.
[45] The plaintiff testified that the hole was one or two inches longer than her foot and that the hole was at least three-and-a-half inches deep.
[46] Her daughter said she was able to insert her palm into the hole and splay her fingers.
[47] Again, however, we have no actual measurements nor do we have any photos of a foot in the hole or a palm in the hole.
[48] There is no reliable measurement of the depth.
[49] Both experts agreed one could not determine the size of the pothole by looking at photographs.
[50] The individual who took the photos filed in Exhibit 2, Keith Maracle, was not called as a witness. He apparently gave some measurements that were referred to by the experts, but are not in evidence at the trial. When asked why he was not called, plaintiff’s counsel explained that he was out of province and likely his evidence would be unreliable. An adverse inference is drawn that his evidence would not accord with that of the plaintiff. The plaintiff argues that since the Town marked the pothole for repair, and it ultimately was repaired on May 7, 2015, that this is an admission that the pothole needed to be repaired in accordance with the applicable minimum maintenance standards.
[51] That is not the only assumption that can be made. The three Town witnesses called by the defendant all agreed that the Town routinely filled and repaired all potholes on a roadway marked for repair, regardless if they met the minimum maintenance standards size for repair.
[52] In Barbeau v. City of Kitchener, 2017 ONSC 24, Broad J. confirmed at para. 72 “that the fact that the City carried out repairs to the sidewalk in the area where Ms. Barbeau fell in 2014 cannot be taken as an admission of liability.”
[53] I agree.
[54] In Holmes v. The Corporation of the City of Kingston, 2009 CanLII 22556, Pedlar J. stated at para. 19, “Roads are primarily intended for motor vehicle traffic and pedestrians using them cannot reasonably expect them to be in a perfectly flat and level condition at all times in all locations.”
[55] Although the Town would be aware that pedestrians would use this roadway, this is certainly not a situation where the surrounding circumstances of this location would result in an increased standard of care because of pedestrian use of the roadway.
[56] On the basis of the evidence before me, I am not satisfied that there is sufficient reliable evidence as to the actual size of the pothole on Schooley Road that caused the plaintiff’s fall. In these circumstances, I am not satisfied that the plaintiff has established that there existed a condition of “non-repair” in accordance with the Municipal Act.
[57] There is no evidence before the court that the conditions of Schooley Road at the time of the incident created an unreasonable risk of harm to users of the road.
[58] Given that the plaintiff has failed to meet the first branch of the test required under the provisions of the Municipal Act, I need not consider whether the Town is able to rely on any of the defences set out in ss. 44(3) of the Act.
Contributory Negligence
[59] The incident took place on the street where the plaintiff resides. Although not frequently, she did travel southbound on this portion of the roadway. She was aware the road was bumpy and that there were potholes. On the night in question she was walking down the middle of the roadway holding a 100-pound German shepherd on a leash. She was not using any lighting from, for example, a flashlight or a cell phone, she was talking to her daughter, and by her own testimony was looking ahead and not at her feet as she was walking. In these circumstances, the plaintiff was obligated to pay reasonable attention to the roadway surface. I would find her to be contributorily negligent to the extent of 15 percent.
Order
[60] The plaintiff’s action is dismissed.
[61] If the issue of costs cannot be resolved between the parties, the parties are to provide me with written submissions not to exceed five pages in length, attaching any offers to settle, within 30 days of today’s date to the judicial assistants’ email at St.Catharines.SCJJA@ontario.ca. If no such submissions are filed within 30 days, the matter of costs shall be deemed resolved.
L. Walters J.
Released: May 30, 2022
COURT FILE NO.: 57331/17
DATE: 20220530
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rebecca Whitlow
Plaintiff
-and-
Town of Fort Erie
Defendant
REASONS FOR JUDGMENT
L. Walters J.
Released: May 30, 2022