COURT FILE NO.: 19-59355

DATE: 2024-02-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Frances Marderosian

Plaintiff/Responding Party

– and –

Corporation of the City of Niagara Falls, Niagara Falls Transit a.k.a. Transportation Services and 123 Winter Contracting Ltd.

Defendants/Moving Party

Matthew C. MacIsaac, for the Plaintiff/Responding Party

Simone A. Bilato for the Corporation of the City of Niagara Falls, Defendant/Moving Party

No one else appearing

HEARD: January 30 and February 2, 2024

REASONS FOR JUDGMENT ON SUMMARY JUDGMENT MOTION

OF THE DEFENDANT, CITY OF NIAGARA FALLS

Justice L. Sheard

The Motion

[1] The plaintiff brings this action to recover damages she sustained when she slipped and fell on December 13, 2017.

[2] Although there are three named defendants, on this hearing, the Corporation of the City of Niagara Falls (referred to in these reasons as the “City”) acknowledges that it is responsible for the maintenance of City sidewalks and the plaintiff confirmed that her claim as against the other two named defendants would be abandoned or dismissed.

[3] The City moves for summary judgment dismissing the plaintiff’s action. The City raises the following three defences, any one of which, it asserts, entitle it to judgment dismissing the plaintiff’s claim:

(1) the plaintiff fell on private property, when she tripped over a snow-covered tree root, that the plaintiff estimated was about two or two and a half inches high. The City asserts that it had no responsibility to maintain the private property on which the plaintiff fell;

(2) the plaintiff’s claim is statute-barred pursuant to section 44(8) of the Municipal Act, 2001, S.O. 2001, c. 25, which provides that there can be no action as against the City for failure to maintain an untravelled portion of the highway; and

(3) the plaintiff’s claim is statute-barred because she failed to provide the City notice of her claim within 10 days of the accident as required by section 44(10) of the Municipal Act.

[4] The plaintiff resists the motion for summary judgment. Firstly, she submits that this matter is not suitable for summary judgment: 1) given the interplay of so many different legal issues; 2) that the court must exercise its power to draw inferences against the City or find that the evidentiary record does not allow the court to reach a fair and just determination of the case on its merits and that there are genuine issues requiring a trial; and, 3) the court must make credibility determinations, which cannot be determined on a paper record.[^1]

[5] The plaintiff also submits that the evidentiary record on this motion does not support the City’s motion. Among other things, the plaintiff submits that she has a reasonable excuse for failing to give notice of her claim within the requisite 10-day period and that, although she fell elsewhere, the reason she found herself off the City sidewalk was that the City had failed to meet its own standards to clear the sidewalk near a bus stop.

Preliminary Objections to the Evidence

[6] Objections were raised by both parties to affidavits each filed on this motion sworn by counsel.

[7] In submissions, counsel for the City advised the court that no reliance was being placed on the affidavit of lawyer Ian P. Newcombe, a partner in the law firm acting for the City on this Action. In his affidavit, Mr. Newcombe references the pleadings, the evidence given on examinations for discovery and the applicable sections under the Municipal Act. He then offers his interpretation of the evidence and his view on how the law does or should apply to the facts.

[8] To the extent that Mr. Newcombe’s affidavit repeated evidence given by the parties and, essentially performed the role that is usual to a factum, namely, setting out the law and how the law applied to the facts, I am not sure why his affidavit was necessary. In any event, I was not asked to, nor do I, give any weight to this affidavit.

[9] The plaintiff submitted an affidavit sworn by Fraser Gow, a partner in the law firm acting for the plaintiff, responding to the City’s motion. Mr. Gow’s affidavit goes beyond referencing the evidence given by the parties by adding his own interpretation and conclusions from the evidence in an apparent attempt to enhance or embellish the plaintiff’s evidence.

[10] Specifically, at paragraphs 3 to 7 of Mr. Gow’s affidavit, he appears to be offering his own evidence as to how the accident occurred, including his belief as to what was in the plaintiff’s mind prior to the fall. These paragraphs of Mr. Gow’s affidavit are clearly inadmissible.

[11] I also give no weight to the following paragraphs in Mr. Gow’s affidavit:

(i) paragraph 21, which contains Mr. Gow’s conclusions drawn from his review of the evidence;

(ii) paragraphs 27 and 37, which reference weather records obtained from the internet for Niagara Falls and Mr. Gow’s analysis of the records; and

(iii) paragraphs 28 to 31, which set out Mr. Gow’s beliefs concerning whether the City met its obligations to clear snow, including his own opinion that there was “snow/ice accumulation on the sidewalk margin and his conclusion that the plaintiff was “forced to leave the safety of the sidewalk due to it being impassable” (para. 31); and

(iv) paragraphs 38 and 39, to the extent they offer opinions expressed by Mr. Gow.

Where, when and why the plaintiff fell

[12] Notwithstanding my conclusions respecting the admissibility of the affidavits sworn by counsel, for the most part, the facts are not disputed.

[13] The plaintiff fell in the late morning on December 13, 2017, while out walking her dog. The fall occurred on or near 5624 Drummond Road, Niagara Falls, Ontario, not far from the plaintiff’s home at 5654 Drummond Road.

[14] The plaintiff left her house at approximately 11:10 a.m. and, using the sidewalk on the east side, walked northbound on Drummond Road. The sidewalk had been plowed. The plaintiff walked past the area where she fell on her return trip and did not notice anything unusual on her outbound trip.

[15] At some point in her walk, the plaintiff turned around and headed home, taking the same route and sidewalk until she was close to 5624 Drummond Road. At that point, she noticed five people standing near the bus stop, waiting for the bus. Her evidence is that they were blocking the sidewalk. The plaintiff said “excuse me” but no one responded, she asserts, as they were all on their phones.

[16] The plaintiff did not approach the people waiting for the bus but, instead, stepped off the sidewalk and cut over onto the snow-covered front lawn of the property abutting the sidewalk. The plaintiff walked behind a tree on the property, keeping close to it so as to encroach as little as possible onto the owner’s property. The plaintiff was behind the tree when she tripped over a tree root and fell, injuring herself.

[17] The plaintiff agreed that there was approximately three feet from the sidewalk to the tree behind which she fell.

[18] On this motion, both parties relied on a photograph of the scene, taken in warmer weather, and marked as Exhibit “1” on the plaintiff’s examination for discovery [CaseLines A11] (“the Photograph”). The Photograph (and others taken by the City) provided very helpful demonstrative evidence on this motion. For that reason, the Photograph is attached as Appendix “A” to these Reasons.

[19] The Photograph assisted the court to understand the route taken by the plaintiff when she left the sidewalk, the size and location of the tree behind which she fell, the approximate location of the fall, the location of the bus stop, the location and relative size of the sidewalk and the paved “margin”, located between the sidewalk and the road.

[20] The only evidence as to the location of the fall comes from the plaintiff. She was clear that she was not on the City sidewalk (being perhaps three feet from it), and, she assumed, was on privately-owned property.

[21] In its Factum, the City acknowledges that the back of the tree behind which the plaintiff fell, was 2.1 meters from the sidewalk and that the tree itself was on City property, i.e. the road allowance. Although the City asserts that the fall occurred on private property, it submits that even if the fall had occurred on the road allowance, as this is an “untravelled portion of the highway”, the City is protected from the plaintiff’s claim by s. 44(8) of the Municipal Act.

[22] The plaintiff submits that it does not matter where the plaintiff fell; what matters is that she was “forced” off the sidewalk because the City had failed to clear snow and ice, in breach of its duties under the Municipal Act.

[23] After falling, the plaintiff states that she had “excruciating” pain in her right foot and ankle. Although she was then closer to the bus stop than she had been when she had said “excuse me”, when the plaintiff asked for help, none of those waiting at the bus stop responded. The plaintiff then got herself up and “hopped” home, with her dog.

[24] The plaintiff was examined for discovery on September 9, 2020. On this examination, the plaintiff explained that leaving the sidewalk and going onto the grass was her “only option” because “the sidewalk was full of people” and her “house was just a couple houses down”. When the plaintiff was asked whether she had considered going out onto the roadway instead of onto the property, her counsel directed her not to answer.

Can this matter be determined on a Motion for Summary Judgment?

The Law on Summary Judgment

[25] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[26] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, there will be no genuine issue requiring a trial:

…when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[27] To be appropriate, summary judgment must provide a “fair and just adjudication” that allows the judge to “find the necessary facts and resolve the dispute. [T]he standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”[^2]

[28] Rule 20.04(2.1) of the Rules of Civil Procedure sets out the powers of the court on a motion for summary judgment:

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

(1) Weighing the evidence.

(2) Evaluating the credibility of a deponent.

(3) Drawing any reasonable inference from the evidence.

[29] Hyrniak offers a “roadmap” for a summary judgment motion, at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[30] The parties agree that the law on summary judgment is as set out in the City’s Factum. The following principles governing summary judgment have been taken from paragraph 20 of the City’s Factum:

(1) Parties are expected to put their best foot forward and the court will assume that all necessary evidence has been tendered;

(2) A motion judge is entitled to presume that the evidentiary record is complete and there will be nothing further if the issue were to go to trial; and

(3) A motion judge is not required to resort to the summary judgment enhanced powers to remedy a party’s evidentiary shortcomings.

Broadgrain Commodities Inc. v Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 7

Analysis

[31] As noted above, the essential facts of the accident are not in dispute. Where there appears to be some disagreement relates to the plaintiff’s evidence as to why she chose to cross onto the snow-covered front lawn and whether she left the plowed sidewalk by reason, even in part, of a breach of the City’s duties under the Municipal Act.

[32] The disagreement appears to arise from the apparent conflict between the evidence given by the plaintiff when she was examined for discovery on September 9, 2020, and what she said in her May 3, 2023 affidavit, responding to this motion.

[33] When examined on September 9, 2020, the plaintiff’s evidence was that on the day of the accident, she took her usual wintertime route, proceeding north on Drummond Road because the sidewalk on the east side of Drummond Road was usually plowed.

[34] The plaintiff stated that she recalled no hazards prior to falling and stated that she was walking on the sidewalk the entire time except when she crossed to the opposite side of North Street because they only plow one side of the street, the school side. On her return trip, she again had to cross North Street, returning to Drummond Road. The plaintiff stated that she recalled no particular hazards on that roadway.

[35] On her trip home, the plaintiff repeated her route. When she came to the corner of Drummond Road and North Street, she noticed that there were five people on the sidewalk because there was a new bus stop and there was not a lot of room. The following is taken from the discovery transcript:

Q. 107 Other than the people, was – how was the sidewalk, had it been – cleared of snow?

A. I do not remember.

Q. 177 At any point from when you went off the sidewalk to where you re-entered the sidewalk, was there any snowbanks or anything that you had to climb over?

A. No.

Q. 178 Why is it that you chose to go up onto the – onto the grass, was it just to get around the people?

A. It was my only option.

Q. 179 And why was it your only option?

A. Because the sidewalk was full of people and my house was just a couple houses down.

Q. 180 At any point did you consider going out onto the roadway instead of onto the property?

A. No, I ...

MR. MACISAAC: Hold on, hold on. How is that relevant?

MR. GREVE: [No audible response].

MR. MACISAAC: I’m asking you how it is relevant.

MR. GREVE: Well she made a decision to go up onto the grass as opposed to the roadway, I’m wondering if there’s any reason that she made that decision.

MR. MACISAAC: I – I’m going to – I’m not going have her answer it now, I’ll reflect upon whether I think she ought to, though.

[36] When she was examined for discovery on September 9, 2020, the plaintiff was clear that she could not remember if the sidewalk was cleared of snow. She was asked whether she considered going out onto the roadway and after initially answering “No, I…”, her counsel directed her not to answer any more questions on the basis that they were irrelevant.

[37] However, in her affidavit sworn on May 3, 2023, almost three years after her examination for discovery, the plaintiff, who previously could not recall the state of the sidewalks on the morning of her walk, offers evidence concerning the snow on the “margin” which, she says, was covered with deeper snow than the snow on the neighbouring property and would not be safe to walk on. She now also volunteers that she did not attempt to bypass the bus stop by walking on the road, as Drummond Road was a busy road and that attempting to do so would be unsafe.

[38] The City submits that where the plaintiff’s discovery evidence conflicts with what she says in her May 3, 2023 affidavit, the former should be preferred. In particular, the court should reject the plaintiff’s 2023 evidence concerning the snow on the sidewalk, given that in September 2020 her evidence was that she could not recall if had been cleared of snow.

[39] The City also submits that, notwithstanding what she says in her May 2023 affidavit, the plaintiff’s answers to questions 177 to 180 on her examination for her discovery – that her only option was to walk on the grass because the sidewalk was full of people and her house was a couple of houses down – explain why she chose to cut across a neighbour’s lawn. [Emphasis added.]

[40] The City disagrees that the evidence given by the plaintiff on her examination for discovery and what she says in her May 3, 2023, affidavit give rise to a triable issue of credibility. Rather, the City urges the court to base its factual findings on the plaintiff’s discovery evidence.

[41] The plaintiff submits that whether the plaintiff fell on City or on private property is not the key issue to be determined. Rather, “the finding that determines liability” will be a determination of whether the plaintiff was forced to cut across a lawn because the sidewalk was “impassible” by reason of the City’s negligence.

[42] The plaintiff submits that, as she was not cross-examined on her May 3, 2023 affidavit, I must accept it at face value. I disagree.

[43] In my view, it is open to me to accept the evidence given by the plaintiff on her examination for discovery that she chose to cut across her neighbour’s lawn because the sidewalk was full of people and her house was just a couple of houses down. Similarly, it is open to me to accept the plaintiff’s evidence in September 2020 that she could not recall whether there was snow on the sidewalk.

[44] In determining whether this is a case that can be decided on a motion for summary judgment or whether there is a triable issue, including one of credibility that is more appropriately resolved at a trial, I note that, the plaintiff’s evidence is the only first-hand evidence concerning the state of the sidewalk on the day she fell.

[45] Nowhere does the plaintiff say that the sidewalk was impassible. To the contrary, she gave evidence that this was her usual winter route because the snow was cleared on the sidewalk and that when she walked down the very same sidewalk on her outbound route, she encountered nothing unusual.

[46] As for whether there was snow on the margin, the City’s witness has already testified that the snow on the sidewalk was plowed toward the margin. I accept that evidence and conclude that there was snow on the margin.

[47] I conclude that the plaintiff’s clear and straightforward evidence was that she chose to leave the sidewalk when she saw people standing on it. She did not approach the people but, as was clearly illustrated by the Photograph, she chose, instead, to step off the sidewalk some distance away from the bus stop and the people standing near it.

[48] The plaintiff’s evidence was also clear and unequivocal that not one of the five people reacted or responded to her when she said, “excuse me”. It was winter. They were on their phones and not paying attention to her. There is no evidence from the plaintiff – who is the only person available to give such evidence – that any of the people heard her or saw her. That is not an inference to be drawn; it is the evidence she presented.

[49] However, to the extent, if any, in reaching those conclusions I have resorted to the powers available to me under r. 20.04 (2.1) to weigh, evaluate the credibility, and/or draw reasonable inferences from the plaintiff’s evidence, I have done so after concluding that it is not in the interest of justice for such powers to be exercised only at a trial.

Disposition: A Motion for Summary Judgment is appropriate.

[50] Given the issues and that, except as described above, the facts are not in dispute, in my view, this case is ideally suited for a motion for summary judgment.

[51] I do not agree with the plaintiff that there are “important credibility disputes” in this case. As explained, I have accepted her evidence. In my view, on the record presented, I have confidence that I am able to find the necessary facts and to apply the relevant legal principles so as to resolve the dispute; that summary judgment does provide a “fair and just adjudication” in this case.

The Law Applicable to Liability

[52] As noted above, the City has raised three defences, any one of which, it asserts, entitle it to judgment dismissing the plaintiff’s claim. Both the City’s duties and its defences are found in s.44 the Municipal Act, the relevant sections of which are as follows:

Maintenance

(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. 2001, c. 25, s. 44 (2).

Untravelled portions of highway

(8) No action shall be brought against a municipality for damages caused by,

(a) the presence, absence or insufficiency of any wall, fence, rail or barrier along or on any highway; or

(b) any construction, obstruction or erection, or any siting or arrangement of any earth, rock, tree or other material or object adjacent to or on any untravelled portion of a highway, whether or not an obstruction is created due to the construction, siting or arrangement. 2001, c. 25, s. 44 (8).

Sidewalks

(9) Except in case of gross negligence, a municipality is not liable for a personal injury caused by snow or ice on a sidewalk. 2001, c. 25, s. 44 (9).

Notice

(10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to,

(a) the clerk of the municipality; or

(b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities. 2001, c. 25, s. 44 (10); 2017, c. 10, Sched. 1, s. 4.

Exception

(12) Failure to give notice or insufficiency of the notice is not a bar to the action if a judge finds that there is reasonable excuse for the want or the insufficiency of the notice and that the municipality is not prejudiced in its defence. 2002, c. 24, Sched. B, s. 42.

[53] I first address the issue of notice.

Is the plaintiff’s claim barred pursuant to s.44 (10) of the Municipal Act?

[54] It is undisputed that the plaintiff did not provide the City with written notice of the claim and the injury fall within 10 days of December 13, 2018, as required by s. 44(10) of the Municipal Act. I accept Mr. Gow’s evidence that his firm was retained on February 14, 2018, and sent a notice to the City on February 21, 2018, some 70 days after the fall. The notice incorrectly described the location of the fall as the west sidewalk on Drummond Road and I accept that this error was inadvertent.

[55] The plaintiff submits that the “exception” set out in s.44(12) of the Municipal Act applies in this case: the failure to give notice and/or its insufficiency does not bar the plaintiff’s action because she has established that she had a “reasonable excuse” for her failures. The plaintiff also submits that the City has failed to establish that it was prejudiced in its defence by reason of the late and/or deficient notice.

[56] The plaintiff acknowledged that she was unaware that she was required to provide the City with notice of her fall within 10 days. She offers the following additional explanations for failing to give notice within the 10-day period, including that between December 14, 2017, and February 14, 2018:

(a) she was solely focused on trying to heal her injuries;

(b) she was “stuck at home” with low mobility;

(c) she attended physiotherapy several times, hoping she would overcome her injuries;

(d) she attended her doctor several times and realized that her condition was not improving; and

(e) until February 14, 2018, she believed that her injuries would improve and that pursuing a claim for damages would not be necessary.

[57] At paragraph 36 of his affidavit, Mr. Gow asserts, as evidence, that the City was not prejudiced by the delay, that although the City was given notice on February 21, 2018, it did not investigate until March 3, 2018. The plaintiff submits that the court ought, therefore, to infer that “the City was not in any hurry to investigate the area, and would not have been had notice been provided within the prescribed time period”. Given that the City was investigating a fall that had taken place 70 days earlier, I do not accept the plaintiff’s submission that a negative inference against the City ought to be drawn.

[58] I did not admit the portion of Mr. Gow’s affidavit respecting generic weather records respecting the City. The plaintiff sought to have this admitted as evidence that the sidewalk conditions would have changed even within the ten-day notice period. However, there is other evidence on which the plaintiff might rely to show that the sidewalk conditions had changed after the plaintiff’s fall: the City’s evidence was that the sidewalk was plowed the same day as the accident, which would have altered its snowy state.

[59] In addition, in my view, absent special weather events, it is reasonable for the court to take judicial notice that winter snow conditions may change over a 10-day period.

Law and Analysis

Was there a reasonable excuse for the want or insufficiency of the notice?

[60] The City references Spence v. The Corporation of the City of Brantford, et al., 2018 ONSC, unreported. In Spence, as here, the plaintiff acknowledged that she had not served a notice within the 10-day period. In Spence, the delay was for a period of one year.

[61] I accept and adopt the approach taken by Braid, J. At page 7 of the decision, she notes that a lack of awareness of the notice requirement, by itself, does not constitute a reasonable excuse: Crinson v. Toronto, 2010 ONCA 44 and Azzeh v. Legendre, 2017 ONCA 385. She observes that most plaintiffs would not be aware of the 10-day notice requirement until so advised by a lawyer and, on that basis, any failure to comply would be forgiven unless and until the plaintiff retained counsel. Braid, J. concludes that that is not the intent of the legislation: Argue v. Tay (Township), 2012 ONSC 4622; appeal dismissed 2013 ONCA 247.

[62] I agree with and adopt that reasoning here.

[63] In her decision, Braid, J., noted that changing weather conditions may have taken place and that an examination of the sidewalk may not have been fruitful even if notice had been given within a few days after the fall. However, as a significant period of time had elapsed, Braid J. concluded the delay in receiving notice deprived of the defendant of the opportunity to investigate the incident through examining the sidewalk conditions, interviewing witnesses and making inquiries, all of which caused significant prejudice.

[64] I again agree with, and adopt that reasoning here.

[65] I accept the plaintiff’s evidence that she was aware of her injury from the time she fell, for which she sought immediate and ongoing medical care. However, I do not accept that as a “reasonable excuse” for not providing notice to the City.

[66] The plaintiff’s assertion that she was essentially housebound conflicts with her evidence that she sought medical treatment for her injuries, including physiotherapy. On that basis, I find, as did Braid, J., that the plaintiff was both physically and mentally capable of investigating her legal rights and of taking steps to protect them following the accident.

[67] I therefore conclude that the plaintiff has failed to provide any reasonable excuse for her failure to provide the City with notice of her fall within the required 10-day period.

Can the court find that the City was not prejudiced in its defence?

[68] The plaintiff also submits that the City has not led any evidence of actual prejudice it has suffered.

[69] The City responds that prejudice is presumed, and that the onus is on the plaintiff to disprove or rebut the presumption of prejudice. I accept those submissions.

[70] In Argue v. Tay, the court stated that when notice has not been provided within 10 days, prejudice is presumed. The court stated that a plaintiff can overcome the presumption of prejudice if the plaintiff can show that there are other available sources of information about the circumstances. These include establishing that the City had taken steps to investigate the accident notwithstanding not having received notice, providing timely photographs taken of the scene by the plaintiff, or by the plaintiff having obtained the name of witnesses to the accident.

[71] There is no such evidence in this case.

[72] In Langille v. Toronto (City), 2010 ONSC 443 at para. 15, the motions judge considered whether the plaintiff had provided evidence of the kind identified in Argue v. Tay, sufficient to rebut the presumption of prejudice. In Langille, as here, there was no evidence that the city had investigated the accident prior to receiving notice of it, no evidence that the plaintiff took timely photographs of the scene or obtained the names or statements of any witnesses. For that reason, the court determined that the requirements of s.44(12) had not been met.

[73] I reach the same conclusion here: this element of s.44(12) has not been met.

Disposition: The Action is barred pursuant to s.44(10) of the Municipal Act.

[74] For the reasons set out, I conclude that the plaintiff’s action is barred by s. 44(10) of the Municipal Act.

[75] I now address the alternate defences raised by the City.

Did the City owe a duty of care to the plaintiff?

[76] Section 44 (1) of the Municipal Act requires that the City keep highways, i.e. roads and sidewalks, in a reasonable state of repair. Pursuant to s. 44 (9), except in case of gross negligence, the City is not liable for personal injury caused by snow or ice on a sidewalk.

[77] The plaintiff’s evidence, which I accept, is that the east sidewalk of Drummond Road was plowed. In addition, I accept the evidence given by the City, that the east sidewalk of Drummond Road had been plowed on December 12, 2017 and again on December 13, 2017, sometime after the plaintiff’s fall (of which, the City had no notice until February 21, 2018).

[78] It is not asserted that the plaintiff fell on the City sidewalk. What the plaintiff is asserting is that the City failed to follow its own maintenance policy which, the plaintiff submits, required the City to undertake additional snow clearing at bus stops, after plowing the sidewalk.

Snow clearing on the sidewalk – was the City “grossly negligent”?

[79] Brian Gahn, who was a “Trackless Operator” (a trackless is a kind of sidewalk plow) was produced on behalf of the City. His evidence was that the sidewalk on the east side of Drummond Road was “somewhere around” four feet wide. The trackless plowed used a five-foot blade, angled toward the margin. Mr. Gahn described the space between the road and the sidewalk as a “margin” and that the plow left snow on the “margin”, which is also identified by a (computer-generated) red circle on the Photograph.

[80] Mr. Gahn’s evidence was that the sidewalk snow was deposited on the margin and that it was not his job, nor was he asked to remove snow from the margin in front of the bus stop. In answer to undertakings, the City confirmed that as at December 2017, the City Parks department did not clear bus stops or bus shelters. It is reasonable to assume that, if any snow had been piled from the sidewalk to the margin in front of the bus stop, pedestrians getting on and off the bus, would have had to walk through any accumulated snow.

[81] The City posts its Winter Maintenance Policy Plan on its website. The City’s Policy as of March 8, 2017 provided, in part, that snow removal and salting was completed at “selected bus stops and falls under the responsibility of the City Transportation Department. The Policy further provides that the contractor is to clear a “navigable passage for pedestrians from the sidewalk/walkway or roadway to the adjacent roadway of a minimum of three (3) feet in width in such a manner as to provide safe footing to the best of their ability.

[82] The City’s evidence was that as at December 2017, the City was implementing the 2006 policy that provides that sidewalks are to be plowed according to a priority system. This policy is silent on the issue of snow clearing at bus stops.

[83] The plaintiff submits that, had the City implemented its 2017 policy, the sidewalk and the margin would have been plowed leaving sufficient space for people waiting for the bus to stand in those using the sidewalk to pass.

[84] The Photograph shows that the subject bus stop had been created by affixing a sign on the existing Hydro pole; there was no bus shelter.

[85] The plaintiff asserts that the change in the City’s policy respecting snow removal “at selected bus stops” [2017 Winter Maintenance Policy, para. 10, A164] is evidence that the City recognized that its earlier policy was inadequate and that the changed policy should be taken into account by the court in determining whether the City was “grossly negligent”.

[86] The plaintiff asserts that the City’s 2017 Winter Maintenance Policy required it to clear the margin near the bus stop and, had the City done so, the plaintiff would not have been required to step off the sidewalk, which led to her fall. Stated differently, the plaintiff asserts that the City was grossly negligent when it failed to implement its 2017 Winter Maintenance Policy Plan and to ensure that its contractor had cleared a “navigable passage for pedestrians from the sidewalk/walkway or roadway to the adjacent roadway of a minimum of three (3) feet in width in such a manner as to provide safe footing to the best of their ability”.

[87] The City’s position is that the 2017 Winter Maintenance Policy contemplates that the snow clearing at “selected” bus stops is such that the pedestrians are provided with safe footing from the sidewalk to or from the bus.

[88] There was no evidence from either party, as to whether the bus stop on Drummond Road was a “selected” bus stop. However, in my view, liability in this case does not depend on whether the City had an obligation under its own Policy to clear the margin near the bus stop given the plaintiff’s evidence that she did not even approach the four or five people standing on or near the sidewalk and, instead, she walked approximately three feet from the sidewalk, into ankle-deep snow, stepped behind a tree, where she tripped, she thinks, on a tree root.

[89] The plaintiff’s own evidence was that she did not approach the other pedestrians; she did not “go directly up to their face” but said “excuse me” from the point at which she was “cutting over”, angling herself from that point, across the unshovelled walkway, to directly behind the tree. On her discovery, the plaintiff identified the grassy portion where she left the sidewalk as the place where the “girl with the red bag” is shown in the Photograph.

[90] The Photograph may be reproduced in black and white in these Reasons, so, to assist the reader of these Reasons, I have added the following letters to the Photograph:

(a) “A” identifies the girl with the red bag;

(b) “B” identifies the tree behind which the plaintiff fell, and where a “young lady” is standing in the Photograph; and

(c) “C” identifies the bus stop.

[91] The “red circle” described by the parties is visible in front of the bus stop.

[92] I accept the plaintiff’s evidence that she left the sidewalk because there were five people standing at or near the bus stop.

[93] I do not accept the plaintiff’s submissions that the presence of snow on the margin establishes that the City was “grossly negligent”.

[94] The evidence put forth on this motion establishes that the City was diligent in clearing the sidewalk of snow: it had done so on the day prior to the accident and the day of the accident. The plaintiff’s own evidence confirms that the sidewalk was plowed and that she had used it on her outbound trip. What had changed was the presence of people on the sidewalk.

[95] Based on the evidence, I find that the City cleared the sidewalk of snow thereby creating a safe path of approximately four feet in width. The plaintiff had safely travelled on the sidewalk on her outbound walk. In consideration of that evidence, there is no basis on which to find that the City breached its duty of care to clear the sidewalk of snow, let alone that there was a breach that could be properly described as gross negligence: see, Crinson v. Toronto, (City) 2010 ONCA at paras. 46, 47.

Is the City liable for an accident that occurred not on the sidewalk?

[96] The plaintiff submits that even though the plaintiff’s fall did not occur on the City’s sidewalk, the 1987 decision of Anvirs v London (City), 4244 (ON SC) supports her submissions the City could be held liable for injuries suffered by a plaintiff who suffered injuries when she fell on the road, after stepping off the sidewalk.

[97] Briefly, in Anvirs, the plaintiff attempted to walk on the sidewalk but found the snow was so deep that when she broke through its crust, the snow came halfway up to her calf. The plaintiff’s evidence was that the sidewalk was “hazardous” and that they determined to use the roadway instead. It was on the roadway that the plaintiff fell. In determining that the City was liable, the trial judge determined that the sidewalk had not been plowed for a period of 13 days during which, a total of 57 cm of snow had fallen. The judge specifically found that the portion of the sidewalk on which the plaintiff attempted to travel was “so difficult to traverse that it was foreseeable that most or many people would have left the sidewalk and would have walked on the roadway”. On that basis, he concluded that, in the circumstances, her choice to take the road was “a very reasonable one”.

[98] In her submissions on this motion, the plaintiff submits that in leaving the sidewalk, she took “the most reasonable route available”. For reasons already given, I disagree.

[99] The facts in this case are not analogous to those in Anvirs. In this case, the sidewalk had been plowed and was passible to the plaintiff who had used it, without incident, on her outbound walk. It was not the snow, something over which the City had responsibility and some control, but the presence of people waiting for the bus, that impeded the plaintiff’s journey on the sidewalk.

[100] Based on the facts presented in this case, it could not have been foreseeable to the City that, having cleared the snow from the four-foot-wide sidewalk, there would not be sufficient room for a pedestrian to make her way past those waiting for the bus. To the contrary, it would be reasonable to expect that a pedestrian confronted with other sidewalk-users, would approach one or more of those users and ask them, directly, to allow the pedestrian to pass. Such requests are made, and accommodated, routinely by those who share the sidewalk.

[101] Even if the evidence could support a finding that the City’s own policy required it to clear the margin near the bus stop – which I conclude it does not – I cannot find that a failure to plow the margin in this case resulted in a dangerous situation at the bus stop or that snow on the margin did, in fact, cause or in any way contribute to the plaintiff’s fall.

[102] I have considered the plaintiff’s evidence as a whole, and do not accept her submission that the reason she left the sidewalk and crossed over her neighbours’ snow-covered front lawn was attributable to the City’s failure to plow the margin. Rather, based on her evidence, I conclude that she chose to cut across a neighbour’s lawn rather than to approach the four or five people waiting for the bus and ask them to allow her to pass.

[103] These observations should not be interpreted as an allocation of contributory negligence as between the plaintiff and the City. Rather, I conclude that the City met its obligations under the Municipal Act and, also, that, having found no “gross negligence”, the plaintiff’s claim is barred by reason of s. 44(12).

Does the City owe a duty of care respecting private property located on the City’s right-of-way?

[104] The Municipal Act provides a complete code with respect to the liability of the municipality for care of highways under its jurisdiction: Morand v. Corporation of the City of Brampton, 2015 ONSC 877, at para. 4.

[105] In addition to the defences already considered, I also accept the City’s submission that, whether the fall occurred on private property or on property occupied and maintained by private homeowners and located on the City-owned road allowance, there is no duty owed by the City under the Municipal Act: see, Grosbeak v. Abram, 2014 ONSC 1674 at paras. 26-27, quoting, with approval, Guse v. Thunder Bay (City), [1998] O.J. No. 3257 (Gen. Div.). The court stated that the purpose of s. 284 (3) of the Municipal Act (the predecessor section) was to protect the municipality from liability arising from defects existing beyond the travelled portion of the highway arising from conditions of non-repair in locations where the public would not be expected to go.

[106] In this case, as in Rose v. Toronto Community Housing Corporation, 2018 ONSC 5004, there is no allegation or evidence that the City assumed any responsibility in respect of the maintenance or repair of the front lawn where the plaintiff fell. I conclude that there is no obligation, statutory or otherwise, on the City to maintain the road allowance where the plaintiff fell, if, indeed, she did fall on the City-owned road allowance located at 5624 Drummond Road. See also Lytle v Toronto (City), 12155 (ON SC).

[107] I do not accept the submissions made by the plaintiff that s.44(8) of the Municipal Act applies only to incidents involving vehicles. In support of those submissions, the plaintiff cites Ouelette v. Hearst (Town), 2004 36122 (ON CA), [2004] O.J. No. 1120 (ONCA), at para. 20, whose facts are distinguishable from these here. In Ouelette, the plaintiff was injured when a utility pole struck the plaintiff’s van. In was in that context that the court noted that s.284 (3) was to protect municipalities from actions were drivers leave the highway and strike an object.

[108] The second case referenced by the plaintiff, Nicholson v. Penetanguishene (Town), 2017 91018, involved a plaintiff who was injured when a street sign fell off a city pole.

[109] In both these actions, the city was at fault. The same cannot be said here. In this case, there is no statutory obligation upon the City to maintain the private yard where the plaintiff fell, even if the yard was located over the city right-of-way.

Disposition: Did the City owe the plaintiff a duty of care? If so, did the City breach that duty?

[110] For the reasons set out above, I conclude that the City owed the plaintiff no duty of care with respect to the property at 5624 Drummond Road, where she fell. I also conclude that the City did owe the plaintiff a duty of care with respect to the sidewalk and that the City met its duty of care.

[111] As a result of those findings, I conclude that s.44(8) or s.44(9) the Municipal Act each operate as a bar to the plaintiff’s claim.

Orders made:

[112] For the reasons set out, I grant the City’s motion for summary judgment and dismiss the plaintiff’s claim in its entirety.

Costs

[113] As the successful party, the City is presumptively entitled to its costs of this motion and of the action.

[114] The parties are urged to attempt to reach an agreement on costs, if they are unable to do so, written costs submissions may be made as follows:

1. The parties’ written costs submissions are not to exceed three pages, double-spaced, together with draft bills of costs, evidence of docketed time, and copies of any relevant offers to settle.

2. Within 21 days of the date of the release of this decision, the City shall deliver its written costs submissions,

3. Within 14 days of service of the City’s costs submissions, the plaintiff is to deliver her responding submissions,

4. Within 7 days of service of the plaintiff’s responding submissions, the City may deliver its reply submissions, if any, not exceeding one page in length.

5. If no submissions are received within 35 days of the date of the release of these reasons, the parties shall be deemed to have resolved the issue of the costs and no decision shall be made by this court.

Justice L. Sheard

Released: February 21, 2024

COURT FILE NO. 19-59355

DATE: 2024-02-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Frances Marderosian

Plaintiff/Responding Party

– and –

Corporation of the City of Niagara Falls, Niagara Falls Transit a.k.a. Transportation Services and 123 Winter Contracting Ltd.

Defendants/Moving Party

REASONS FOR JUDGMENT ON

DEFENDANT’S SUMMARY

JUDGMENT MOTION

L. Sheard J.

Released: February 21, 2024

[^1]: See Thompson v. Herschel Rescue and Training Systems 2023 ONCA 845 at paras. 10,11.

[^2]: Ibid, at para. 50.