COURT FILE NO.: CV-20-29462
DATE: 2022-10-14
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kelly Strilchuck Plaintiff
– and –
Town of Tecumseh Defendant
Colleen Caza, for the Plaintiff
Jay Skukowski and Ned Bozalo, for the Defendant
HEARD: February 28, 2022
RULING ON MOTION
KING J.
A. Background
[1] This is a personal injury action for damages brought by Kelly Strilchuck (the plaintiff), against the Town of Tecumseh (the defendant), arising out of a slip and fall that occurred on a sidewalk owned by the defendant.
[2] The action was brought pursuant to the simplified procedure set out in r. 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 ("Rules").
[3] The defendant brought a motion for summary judgment, seeking to have the action dismissed on the basis that there is no genuine issue requiring a trial as prescribed in r. 20.04(1) of the Rules.
[4] The plaintiff brought a motion in the alternative for summary judgment with respect to liability on the basis that the defendant failed to keep the public sidewalk in a reasonable state of repair. The plaintiff asserts that the defendant cannot utilize the defences set out in s. 44(3) of the Municipal Act, 2001, S.O. 2001, c. 25 ("Municipal Act").
B. Evidence
[5] On December 4, 2018, the plaintiff was walking her dog. She alleges she tripped and fell on beach stones that were scattered on the public sidewalk at the north end of Little River Park in the Town of Tecumseh.
[6] The plaintiff is currently 57 years old. She has resided at the same address in this neighbourhood since 1996. She was familiar with the area.
[7] The incident occurred at approximately 9:30 a.m. It was a clear and cold day. There was no snow cover.
[8] She was walking her one-and-a-half-year-old Labrador Retriever dog. She was utilizing a dog training leash that required her to use both hands. She was wearing appropriate walking shoes. She was not in a hurry.
[9] The plaintiff had been walking on an asphalt path that ran in a north-south direction in the park. When she reached the street, she checked for traffic and began walking east on the sidewalk.
[10] The plaintiff alleges she was walking cautiously. She was not under the influence of any alcohol or drugs that might have impaired her perception or ability to walk safely.
[11] There does not appear to be an assertion by the plaintiff that the sidewalk itself was in a state of disrepair. She alleges the disrepair existed because of the stones laying on the sidewalk.
[12] There was a full-grown tree planted in the municipal park to the right of the sidewalk. The base of the tree is surrounded by stones.
[13] The plaintiff stated the stones were two to three inches in diameter. She was aware that these stones were situated at the base of the tree from her familiarity with the area.
[14] On this day, some of the stones were on the sidewalk at the edge of the point where the sidewalk abutted the stones at the base of the tree.
[15] According to the plaintiff, the trip and fall occurred suddenly. She acknowledges that she did not observe the beach stones prior to her fall, as she was looking at traffic and looking out for other dogs.
[16] On cross-examination, the plaintiff admitted that she did not look at the sidewalk. Had she been looking at the sidewalk, she would have been able to notice the stones and avoid them.
[17] The right foot of the plaintiff came into contact with the beach stones. This caused her to fall straight down onto her knees and her face. She lost consciousness for some period.
[18] She suffered some immediate physical injuries to her nose, which began to swell after it was lacerated and began to bleed. She lost a tooth.
[19] The plaintiff walked home after the incident and then sought immediate medical treatment. She attended that day at an urgent care medical centre and at her dentist.
[20] The plaintiff's husband returned to the scene of the incident and took pictures. A picture of the stones on the sidewalk was in evidence. It is attached as "Appendix A" to this decision.
[21] It was the observation of the plaintiff and her husband that the stones were often not properly contained at the base of the tree. There was no barrier to keep the stones off the sidewalk. The plaintiff's husband indicated that he would sometimes return the stones to the base of the tree. There was no evidence he ever notified the defendant about these occurrences prior to this incident.
[22] Sometime later, the plaintiff's husband returned to the scene of the incident and noted that the stones had been returned to the area beneath the tree.
[23] The defendant first became aware of the incident on December 10, 2018.
[24] Upon being made aware, the Town immediately removed the stones from the sidewalk and put them back at the base of the tree.
[25] The defendant conducts an examination of the sidewalk annually, with each inspection occurring no more than 16 months apart.
[26] There had been no record of any deficiency in the sidewalk in the two-year period prior to the incident.
[27] The plaintiff asserts the following:
i) The stones located next to the sidewalk were at the same height or higher than the sidewalk.
ii) There was no barrier to keep the stones from moving from the base of the tree to the sidewalk.
iii) There was no warning sign that stones might be on the sidewalk.
iv) The stones were of a similar colour to the sidewalk.
[28] The plaintiff obtained and filed an Engineering Assessment Report ("Engineering Report"). In the report, engineers Hai Huang and Scott Walters state the following:
i) The stones were mis stepping hazards.
ii) The stones contributed to the plaintiff's fall.
iii) It was reasonably foreseeable that the stones would migrate from the base of the tree on to the sidewalk from pedestrian and maintenance vehicle traffic.
iv) The stones were round. This would have contributed to the plaintiff's fall, as her foot would have rolled or rotated over the stone or stones.
v) The stones were situated below the plaintiff's visibility limit.
vi) Having stones at the base of the tree was different than all other parks owned by the defendant.
C. Issues
[29] Based on the foregoing, the issues to be determined on this motion are summarized as follows:
Is there a genuine issue that requires a trial to determine if the defendant negligently left the area of the sidewalk where the incident allegedly occurred in a state of disrepair?
More specifically, has the moving party established that the plaintiff will be unable to establish at trial that the sidewalk was in an unreasonable state of non-repair?
Even if the plaintiff might be able at trial to establish that the sidewalk was in an unreasonable state of non-repair, can one or more of the exceptions prescribed in s. 44(3) of the Municipal Act be established without a trial?
In the further alternative, if the defendant's motion for summary judgment does not succeed, should the plaintiff be granted summary judgment with respect to liability on the basis that it can be determined that the sidewalk was in an unreasonable state of non-repair without a trial?
D. Applicable Legal Principles
a) Summary Judgment Motions
[30] Rule 20.01(3) of the Rules provides that:
A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
[31] It is not disputed that "summary judgment motions must be granted wherever there is no genuine issue requiring a trial": see Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 ("Hryniak"), at para. 45.
[32] Rule 20.04(2)-(2.1), in part, provides:
(2) The court shall grant summary judgment if,
a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
(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 trial:
Weighing the evidence.
Evaluating the credibility of the deponent.
Drawing any reasonable inference from the evidence.
[33] In Hryniak, Karakatsanis J. made a number of observations applicable to this case, and I have taken these observations into account in making this decision. They are as follows:
a) The procedure used to adjudicate a civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interest involved, then it will not achieve a fair and just result: para. 29.
b) A genuine issue requiring a trial will not exist when the judge is able to reach a fair and just determination of an action on the merits on a motion for summary judgment. This will occur when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than a trial: para. 49.
c) When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. However, a process that does not provide a judge with confidence in her conclusions can never be a proportionate method to resolve a dispute: para. 50.
d) On a summary judgment motion, the evidence need not be equivalent to that at trial, but it must be such that the judge is confident that they can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony [pursuant to r. 20.04(2.2) in Ontario] is often sufficient to resolve material issues fairly and justly: para. 57.
e) The standard of fairness is, therefore, not whether the procedure utilized to resolve the parties' dispute is as exhaustive as a trial but whether it gives the judge confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute: para. 50.
f) The fact-finding powers under r. 20.04(2.1) are discretionary and are presumptively available to the motion judge. They "may" be exercised unless it is in the interest of justice for those powers to be exercised only at trial: para. 45.
g) In determining whether "it is in the interest of justice" that the r. 20.04(2.1) fact-finding powers only be exercised at trial, the motion judge may be required to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial, including the cost and speed of both procedures. The determination may also involve a comparison of the evidence that will be available at trial and the evidence available on the motion, as well as the opportunity to fairly evaluate that evidence. However, even when the evidence available on the motion is limited, there may be no reason to think better evidence will be available at trial: para. 58.
h) When a judge is able to fairly and justly adjudicate a claim through the use of the new fact-finding powers, it will generally not be against the interest of justice to do so. What is "fair and just" turns on the nature of the issues, the nature and strength of the evidence, and the corresponding proportional procedure in all the circumstances: para. 59.
i) In considering whether the use of the fact-finding power accords with the "interest of justice", a judge must consider the consequences of the motion and the context of the litigation as a whole. For instance, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. Conversely, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost-efficient approach: para. 60.
j) On a motion for summary judgment the judge should first determine if there is "a genuine issue requiring trial" based only on the evidence before the court, without using the new fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the fact-finding powers under rr. 20.04(2.1) and (2.2). The judge may, at their discretion use those powers provided that their use is not against the interest of justice: para. 66.
k) While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary, thereby giving the judge some flexibility in deciding the appropriate course of action in the context of a particular motion: para. 68.
b) Statutory Provisions
[34] Section 44(1) of the Municipal Act requires a municipality to keep highways and bridges in its jurisdiction "in a state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge."
[35] There is no dispute that the sidewalk in issue constitutes a highway for the purposes of s. 44(1) of the Municipal Act: see Barbeau v. City of Kitchener, 2017 ONSC 24, at para. 6.
[36] A municipality is liable for all damages any person sustains because of default in complying with the section 44(1) requirement to maintain a highway in a reasonable state of repair: see s. 44(2) of the Municipal Act.
[37] However, notwithstanding the failure to comply with the requirement that a highway be maintained in a reasonable state of repair, subsections 44(3) and 44(4) provide exceptions from municipal liability in three circumstances:
(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.
(4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them.
[38] There are no minimum standards regulated that have application to this matter.
E. Analysis
[39] For the reasons that follow, I am granting the defendant's motion for summary judgment on the basis that there is no genuine issue requiring a trial.
Was the sidewalk in a state of non-repair?
[40] The defendants rely on the decision in Stojadinov v. Hamilton (City), [1988] O.J. No. 2038 (Ont. H.C.) ("Stojadinov"), at para. 5, where MacFarland J. states as follows:
The duty on the municipality is to keep the sidewalks in repair which is to say in such a condition that a person using ordinary care for his or her own safety can pass along it in safety. In my view it would be requiring the impossible of a municipality to require that it maintain all its sidewalks in perfect level. As has been said in these cases over the years, it does not follow because an accident happens, that a sidewalk is necessarily in a state of non-repair.
[41] I agree.
[42] I find that the condition of the sidewalk as referenced in the evidence and depicted in the photograph ("Exhibit A") was such that a person using ordinary care could pass safely.
[43] I note that the stones did not cover the width of the sidewalk at any point. Over one-half the width of the sidewalk is free of stones. At no point do the stones on the sidewalk appear to be situated on top of each other. That is, each stone is situated on the sidewalk only.
[44] The plaintiff was familiar with the area and walked on that sidewalk regularly. However, that evidence is not an integral factor in this conclusion because I find that any person, regardless of whether they were familiar with the area, could have passed safely by exercising ordinary care.
[45] I agree with the sentiment expressed in Stojadinov that it would be requiring the impossible for municipalities to "maintain all sidewalks in perfect level." This is particularly so when the issue is not a problem with the sidewalk itself (i.e., cracked, missing or uneven) but the intermittent addition of a foreign object.
[46] There are any number of objects that can be found on sidewalks from time to time. In addition to stones, there can be waste, leaves, animal excrement, bicycles, scooters, skateboards or other such devices, that end up on sidewalks for varying periods of time.
[47] Short of a municipal employee noticing stones or other debris or items on a sidewalk, or someone reporting that a sidewalk is in a purported state of disrepair, municipalities would be required to maintain an hourly or daily oversight on all such property. That is both unrealistic and, more relevantly, not what the law requires.
[48] In summary, I find that the accumulation of stones on the sidewalk as described, did not, in and of itself, constitute an unreasonable state of non-repair.
[49] As the moving party references at the beginning of its factum, "a stone on a public highway does not disrepair make." That comment was stated by Festeryga J. in Copeland v. Hamilton (City), [2009] O.J. No. 3370, 2009 ONSC 4250, at para. 11.
[50] The plaintiff relies on the decision of this court in Stangret v. Toronto (City), 2007 CarswellOnt 8620 (S.C.J.), at para. 39, where Judson J. concluded that the defendant municipality was liable as a result of a metal object being on a sidewalk that caused it to be in a state of disrepair. However, the decision also provided that the metal stump should have been removed, and that the municipality had acknowledged that the object was on the sidewalk and was a serious danger to all users of the sidewalk.
[51] That case is distinguishable because the evidence established that municipality knew of the existence of the object but did not take steps to remove same.
[52] The plaintiff also wants to rely on an Engineering Report it had prepared by engineers Hai Huang and Scott Walters to establish that the sidewalk was in a state of disrepair.
[53] The points raised in the report are summarized as follows:
Because the stones were round, this was "likely" to have caused the plaintiff's ankle to pivot causing her to lose balance.
The manner of her fall was consistent with her description of her walking and stepping on an unstable surface.
Because she was looking ahead at traffic and other dogs, she had "lower visibility limit" and the stones "would not necessarily become apparent to her."
The area where the stones were built up beneath the tree were higher than the sidewalk stones could easily migrate to the sidewalk.
The tree situated nearby may have partially blocked the plaintiff's view of the stones.
This appears to be the only park owned by the moving party municipality that used beach stones in this manner.
The use of mulch or a tree grate would likely have reduced or eliminated the risk of mis stepping.
[54] The defendant submits the court should not rely on this report because the claim has been brought by simplified procedure, such that they have been unable to cross-examine on the report.
[55] I do not need to adjudicate whether I should consider the report in determining this summary judgment motion. Even if I were to admit the Engineering Report and accept the assertions set out within, for the purposes of determining this summary judgment motion, the report does not assist me in concluding that there is a genuine issue requiring a trial in this case.
[56] Firstly, none of the conclusions set out in the report provide me with further insight into this matter than I already have by reviewing the evidence.
[57] Given the size and shape of the stones, I accept that a person unknowingly stepping on one or more of the stones could fall. I am able to draw that conclusion without an engineering report. However, that fact alone does not establish that the sidewalk was in an unreasonable state of non-repair.
[58] Various objects can, and are, situated on municipal sidewalks from time to time. It is irrefutable that stones such as these might cause a trip hazard to a person stepping on them while walking. The test is, however, did this configuration of stones constitute an unreasonable state of non-repair. I have determined that it did not.
[59] This was a small gathering of stones easily visible to a person walking, jogging, or riding on this sidewalk. It would have been easily avoidable to a person traversing this sidewalk exercising a reasonable amount of care.
[60] Furthermore, s. 44(3)(a) of the Municipal Act provides that a municipality is not liable if it did not know and could not reasonably be expected to know about the state of repair of the sidewalk.
[61] Regardless of the engineering analysis of the shape and size of the stones, their position on the sidewalk and the possibility of them gravitating from the base of the tree onto the sidewalk, there is no evidence before the court that the municipality was aware that the stones were on the sidewalk.
[62] This was not an instance of a situation such as a snow or ice storm for which the municipality would know or could reasonably be expected to know about the state of disrepair, or potential that the sidewalk could be in a state of disrepair.
[63] There is no evidence before the court that this situation was made known to the defendant and that the municipality then failed to take the necessary steps to have the stones removed.
[64] The plaintiff's husband would observe stones on the sidewalk from time to time and return them to the base of the tree. It was an easy thing to detect.
[65] It is ironic that the plaintiff's husband never reported this problem to the defendant, but the plaintiff suggests that the defendant knew or ought to have known of the state of disrepair of the sidewalk.
[66] The Engineering Report sets out that the plaintiff "may have been looking up towards traffic and other dogs" does not affect that conclusion either. The test from Stojadinov is based on a person using ordinary care to pass along safely. This report confirms that the plaintiff was not using ordinary care. In the vernacular, "she was not looking where she was going."
[67] Similarly, I cannot determine how the tree prevented the plaintiff from observing the stones as she turned onto the sidewalk. From the photograph, it is apparent the plaintiff would have had to walk on the sidewalk for several feet once she walked past the tree and onto the subject sidewalk.
[68] As well, the fact that other parks owned by the defendant used different materials at the base of trees does not, in and of itself, make this sidewalk on which the plaintiff was walking, training her dog by using both hands on the leash and looking to the horizon, and not looking down to where she was walking, in an unreasonable state of non-repair.
[69] This case is similar to Lewis v. The City of Toronto, [2004] O.J. No. 5411, 2004 ONSC 50140. In that matter, a plaintiff's claim resulting from a fall due to a "significant accumulation of dead leaves" on a sidewalk was dismissed because the judge found that the state of the sidewalk did not amount to a state of disrepair.
[70] McCartney J. found that the claim could not succeed because the plaintiff was in a better position to know about the danger, admitted she knew about the danger and caused the misfortune in failing to protect herself. That same rationale applies in this matter.
F. Conclusion
[71] It is regrettable that the plaintiff allegedly fell and suffered injuries. However, I am granting the defendant's motion for summary judgment on the basis that there is no genuine issue requiring a trial.
[72] I am satisfied that based on the evidence before the court, the plaintiff cannot establish at trial that the relevant portion of the sidewalk was in an unreasonable state of non-repair. Furthermore, and in the alternative, even if the sidewalk was in an unreasonable state of non-repair, it is established on the evidence that the defendant did not know and could not reasonably have been expected to have known about the state of repair of the sidewalk. Accordingly, the exemption prescribed in s. 44(3)(a) of the Municipal Act applies.
[73] Based on the principles set out in Hryniak, summary judgment is appropriate in these circumstances.
[74] For all these reasons, the summary judgment motion of the defendant is granted.
[75] Given that I have granted the defendant's summary judgment motion, it is unnecessary to consider the plaintiff's motion for summary judgment.
G. Costs
[76] In the event the parties are unable to resolve the issue of costs within 30 days, the parties may contact the trial coordinator to advise and to determine next steps.
Original signed by Justice George W. King
George W. King Justice
Released: October 14, 2022
Appendix "A"
COURT FILE NO.: CV-20-29462
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Kelly Strilchuck and Town of Tecumseh
RULING ON MOTION
King J.
Released: October 14, 2022