Court File and Parties

OSHAWA COURT FILE NO.: CV-13-83229-00 DATE: 20240419 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Dorothy Hamilton-Dawkins, Plaintiff – and – The Town of Ajax, Defendant

Counsel: Karim N. Hirani, for the Plaintiff Nadia Marotta, for the Defendant

Heard: February 13, 2024

TRIAL DECISION

Sutherland J.:

Introduction

[1] On May 9, 2011, the Plaintiff was walking eastbound on the sidewalk in a residential area on Clements Road East in the Town of Ajax (“the Town”).

[2] Around 12 noon on May 9, 2011, the Plaintiff tripped and fell in front of 38 Clements Road East. The Plaintiff’s trip and fall, and her resulting injuries, were caused by a surface discontinuity on or within the sidewalk in front of 38 Clements Road East.

[3] The location of where the Plaintiff tripped is evidenced by a photograph taken by the Plaintiff approximately one week after the fall.

[4] The parties have settled the quantum of all damages, OHIP’s subrogated claim, and prejudgment interest.

[5] It is not contested that the sidewalk surface discontinuity that caused the Plaintiff’s trip and fall and injuries constituted a state of non-repair within the meaning of section 44(1) of the Municipal Act, 2001 (“the Act”).

[6] This issue for this Court to decide is whether any of the defences under section 44(3) of the Act apply.

[7] For the reasons below, I find that the defences codified in section 44(3) of the Act do apply.

Factual Background

The trip and fall

[8] It was a sunny and clear day. The Plaintiff was out for a walk. She did not normally walk on Clements Road, but that day decided to take a different route. At around 12 noon, she was walking east bound by the driveway of 38 Clements Road. By the driveway, the Plaintiff tripped and fell on an area on the sidewalk that had a surface discontinuity.

[9] On May 12 or 13, 2022, the Plaintiff and her husband called the Town and registered a complaint and notice of the trip and fall that the Plaintiff had on the sidewalk on Clements Road.

[10] A day after the trip and fall, the Plaintiff and her husband drove by the area and noticed neon painting by the area of the trip and fall.

[11] A week after the fall, the Plaintiff went with her daughter-in-law went and took pictures. The Plaintiff took the picture that showed the area of the trip and fall and that the sidewalk bay and slab were replaced with a new concrete sidewalk bay and new asphalt around the sidewalk bay was placed.

The Town of Ajax

[12] The Town presented Dana Smith who has been employed with the Town since September 2006. He was then employed a Supervisor of Operations responsible for the day-to-day asphalt, sidewalk and road work. Since 2014, he has been the Manager of Operations. His duties are to manage road/sidewalk maintenance.

[13] Mr. Smith testified that the Town presently has 420 km of sidewalk. In 2011, the amount of sidewalk was slightly smaller. The sidewalks are made of concrete. In 2010-2011, the Town had a procedure in place for the inspection of sidewalks once a year. He testified that under legislation, the Town, like other municipalities in Ontario, are required to, at a minimum, inspect sidewalks once a year.

[14] The inspections take place between May and August each year. Though he was not involved in the training and methodology of this procedure in 2011, his understanding is that summer students were hired to walk around and inspect all the sidewalks in the Town. The summer students were provided with a GPS location device and are instructed to mark areas that they notice have maintenance issues. The GPS device is then downloaded at the Town.

[15] Mr. Smith testified that from speaking with his peers, it is his understanding that the students are instructed to indicate on the GPS device areas that show cracked panels, surface discontinuity, and areas that are not flush. The students are to measure three categories, 0-6 mm, 6-19 mm and over 19 mm. They are provided with measuring tape and indicate their findings on the GPS device. Any place with over 19 mm the students are to mark the area with orange paint to alert the public of the surface discontinuity. Areas with a surface discontinuity over 19 mm mandated a repair.

[16] He indicated that surface discontinuity may be caused by cracked bay where there is water infiltration and the effects of cold weather, the freeze and thaw, causes the panel to heave up. Further, ponding where there is a low point between two panels meet may also collect water and the freeze and thaw may result in surface discontinuity. Tree roots may also cause surface discontinuity by moving a bay.

[17] The data collected from the summer students’ GPS is used to determine areas that require repair. These repairs may be performed by Town staff or subcontractors retained by the Town. Surface discontinuity with safety issues are repaired, usually by Town staff, within 14 days of identification.

[18] Concerning this action, the sidewalk area was inspected a year before on May 27, 2010. At that time, the chart indicated a cracked bay, a hairline crack at 38 Clements Road East which is indicated by a pink circle on the GPS map. On the street near 38 Clements Road East, there is no indication of a surface discontinuity over 19 mm. This data did not trigger the requirement of a surface repair.

[19] On May 13, 2012, the Plaintiff reported the accident as evidenced by an Accident/Incident Report Detail form dated May 13, 2012.

[20] The area was inspected by the Town and the Town retained the services of a subcontractor, Peltar Paving and General Contracting Company Limited to repair the sidewalk and the sidewalk was repaired within one week of it being reported.

[21] From cross examination, it was apparent that Mr. Smith was not involved and did not have any direct knowledge of the procedure of the inspection by the summer students in the summer nor did he have direct knowledge on the training, if any, received by the summer students to perform their task. Nor did he have information on the accuracy of the information indicated by the summer students. There was no written policy of the Town in 2010 on any training to the summer students to perform their inspections or on the process of inspecting and reporting. There was no written material on the training of the summer students. As far as Mr. Smith knew, the training was oral.

[22] Mr. Smith did indicate that after this accident, the Town did change its policy and created a written policy.

[23] Mr. Smith also conceded that on the GPS print outs downloaded in 2010 which required repair that the repairs may not been performed for months after the Town having knowledge of the need for a repair. He indicated that this delay could be due to lack of resources and budgetary constraints.

Applicable Legislation

[24] The relevant statutory and regulatory provisions to be applied are section 44 of the Act and section 16.1 of the Minimum Maintenance Standards for Municipal Highways (“the Regulation”).

[25] Section 44 reads:

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

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. 2001, c. 25, s. 44 (3).

Regulations (4) The Minister of Transportation may make regulations establishing minimum standards of repair for highways and bridges or any class of them. 2001, c. 25, s. 44 (4).

[26] Section 16.1 of the Regulation reads:

Sidewalk surface discontinuities 16.1 (1) The minimum standard for the frequency of inspecting sidewalks to check for surface discontinuity is once per year. O. Reg. 23/10, s. 10.

(2) If a surface discontinuity on a sidewalk exceeds two centimetres, the minimum standard is to treat the surface discontinuity within 14 days after becoming aware of the fact. O. Reg. 23/10, s. 10.

(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. O. Reg. 23/10, s. 10.

(4) In this section, “surface discontinuity” means a vertical discontinuity creating a step formation at joints or cracks in the surface of the sidewalk. O. Reg. 23/10, s. 10.

[27] The Regulation mandates that the Town to inspect sidewalks once per year any repair any surface discontinuity, that such a discontinuity of more than two centimetres with in fourteen days. The meaning and interpretation of “once a year” was not in issue. So the Court need not determine whether “once a year” meant once anytime within a calendar year or once every twelve months.

[28] It was not contested that the statutory regime applies to sidewalks in a municipality which in this case includes the Town. It is not disputed that once liability has been established, the onus shifts to the Town to establish that one or more of the defences applies.

Questions to Answer

[29] The questions for this Court to answer are:

a. What is the extent of the Town’s liability?

b. Do the defences in section 44(3) avail the Town with a complete statutory defence on liability?

What is the extent of the Town’s liability?

Legal Principles

[30] The Ontario Court of Appeal in Fordham v. Dutton Dunwich, 2014 ONCA 891 at paragraph 26 set out the four-step test established by the case law. The Court indicated:

[26] Case law has established a four-step test for analyzing this statutory cause of action against a municipality.

1. Non-repair: The plaintiff must prove on a balance of probabilities that the municipality failed to keep the road 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 driving caused or contributed to the plaintiff’s injuries.

[31] There is no dispute that the four-step test applies, and that the Plaintiff has proven the first two steps of non repair and causation. This is conceded by the Town.

[32] The question now is whether the Town can establish any of the statutory defences.

Do the statutory defences in section 44(3) avail the Town with a complete defence to liability?

[33] Under section 44(3), there are three defences. These defences are:

a. The reasonable knowledge defence - s. 43(a).

b. The reasonable steps defence - s. 43(b).

c. The minimum standards defence - s. 43(c).

[34] The Town need not prove all three defences to be able to avail itself of the statutory defence. The Town need only establish, on the balance of probabilities, one of the defences. If one of the statutory defences applies in the circumstances, the Town has a complete statutory defence to any liability.

[35] I will deal with the statutory defences.

The reasonable knowledge defence - s. 43(a)

[36] The Town argues that reasonable knowledge has not been established. There is no evidence of direct knowledge by the Town of the surface discontinuity. Nor is there any evidence that the Town could have known. The test is a specific test. The test is what the Town knew of the specific area of concern and not a general knowledge test of all areas with sidewalks. The Town directs the Court to the decision of Leach J. in McLeod v. General Motors of Canada Limited et al., 2014 ONSC 134. At paragraphs 160 and 161, Leach J. wrote:

[160] In my view, the question is not merely whether the municipality knew or ought to have known of the highway’s general state of repair.

[161] Rather, viewed within the wider context of the legislative scheme established by s.44, the natural and ordinary meaning of the s.44(3)(a) preamble and sub-paragraph text requires a court, considering possible availability of this particular statutory defence, to determine whether or not the municipality knew or ought to have known of the specific condition which justified a finding there was a failure, under s.44(1) and 44(2), to keep the highway in a reasonable state of repair at the time of an accident.

[37] The Town argues that there was no presented evidence that there was a singular issue of the surface discontinuity before May 12-13, 2011. The Town points out that the failure of this evidence is fatal in that there is no evidence for this Court to rely upon proving on the balance of probabilities that the Town knew or should have know of a surface discontinuity before the trip and fall on May 9, 2011. (See McLeod v. General Motors of Canada Limited et al., at paras. 164-169; and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 148).

[38] The Plaintiff cautions the Court on the level of the bar required for the Town to have knowledge. The bar cannot be so low that the Town cannot take proper steps to inspect areas, particularly areas with noted concerns, or to not take or keep proper records to show a lack of knowledge. A lack of a formal written procedure or written instructions cannot be used by the Town as a means of not having reasonable knowledge. To support this argument the Plaintiff directs the Court to two decisions specially dealing with sidewalks: Sauvé v. Ottawa Hydro-Electric Commission, [1993] O.J. No. 688 (Ont. Gen. Div.), and Bourgoin v. Leamington, [2006] O.J. No. 1474 (Ont. S.C.).

[39] I do not find the cases directed to be useful. It goes without saying that the factual matrix of each case is determinative of the decision of the Court.

[40] In Sauvé the facts were that the plaintiff tripped and fell when their right foot became entrapped in a depression in the corner of the junction between a hydro grate and the sidewalk. Chadwick J. allowed the action against the City but dismissed the action against Hydro. Chadwick J. found on the evidence presented that the City failed to inspect a highly travelled area. The annual inspection of a drive-by was not accurate and the Court concluded that an adequate inspection would have discovered the depression and the depression should have been patched before the trip and fall.

[41] The facts in Bourgoin were that the plaintiff slipped and fell on a highly traveled area where she walked three times per week. The plaintiff was walking and talking with a friend looking ahead and not down when she tripped and fell on an 11/4” indentation in the sidewalk. The municipality knew of the indentation and planned on repairing but did not immediately do so due to budgetary constraints. Because the municipality did not follow its own policy of inspection and repair, the Court found the municipality liable.

[42] In analyzing whether the Town has established the first defence, I am mindful of the cautionary statements of Leach J. in McLeod “that a municipality should not readily benefit from its own failure to document or circulate complaints properly, and/or from a policy that insists on written complaints, (which may very well operate, intentionally or intentionally, to discourage and discount complaints).” (See McLeod, at para. 167, citing Rutherford v. Niekrawietz, [1994] O.J. No. 2439 (Gen.Div.), at paragraphs 16, 22 and 35; and Brown v. Gravenhurst (Town), [1995] O.J. No. 561 (Gen.Div.), at paragraphs 56-58).

[43] The Town at the time of this slip and fall knew that there was a concern on the sidewalk and that there was a crack. From Mr. Smith’s evidence, cracks in a bay can lead to surface discontinuity when water penetrates, and the normal freezing and thawing cycle occurs.

[44] No evidence was presented on any policy or procedure that the Town has on the staff or contractor retained on reporting any occurrence of surface discontinuity during the snow plowing of sidewalks during the cold months. There was no evidence provided that there were any complaints of the sidewalk in front of 38 Clements Road having a surface discontinuity during or after the winter of 2011 before the trip and fall of the Plaintiff.

[45] The factual matrix of this case is significantly different than that of Sauvé and Bourgoin. As indicated, there is no evidence here that the Town knew or could have known of the surface discontinuity or did not follow their own policy of inspection and repair or did not comply with the regulation concerning surface discontinuity.

[46] What leaves this Court with some discomfort is that after the surface discontinuity was reported by the Plaintiff, the Town took no steps to document the surface discontinuity by either a video or pictures of the area or in a written report on the degree of the surface discontinuity or took any measurements of the surface discontinuity before the repair was performed. Especially, given the Town’s evidence that its instruction to summer students in 2010 when inspecting sidewalks was to measure the extent of the surface discontinuity. The Town did not do so here before repair and in effect extinguished evidence of the surface discontinuity and the extent of that discontinuity for any use later, including for the purpose of litigation. (There was no argument for a rebuttable negative inference due to spoliation. Further, I would not expect a resident of the Town that tripped and fell to think of immediately retaining someone or do themselves an inspection of the area with pictures and measurements.) If the factual circumstances of this case were different, this action by the Town could have taken on greater significance. Consider if the trip and fall was after the expiry of the one year period, if there was a lack of proper instructions to the summer students or faulty inspection by the Town, evidence of the weather in the winter/spring of 2011, the freeze and thaw, or whether a reasonable inference could have been made that the Town should have taken more specific action to inspect the crack.

[47] Concerning the Plaintiff, per the statutory framework, the Town had a year to inspect the sidewalks. The last inspection was on May 27, 2010. The trip and fall occurred the next year in early May 2011. There was no evidence provided that there were any complaints of the sidewalk in that location prior to May 2011 that could have reasonably compelled the Town to have taken steps to repair or at least inspect before May 9, 2011.

[48] Moreover, in analyzing the Town’s establishment of the statutory defence under section 44(3) of the Act, it is not for this Court to determine whether there could be a better process or policy to report or inspect than what was implemented by the Town, unless the procedure or policy to inspect, report and repair does not comply with the Act or regulations or prohibits the reporting and inspection which could affect the determination of the knowledge of the Town.

[49] Though there was no evidence of the training for the summer students to perform their tasks, there is evidence that the summer student assigned to inspect the areas, which included the area of concern, did do such an inspection, and made notations on the GPS device given. No evidence was provided that the task performed by the summer student was not as recorded or was performed negligently in that there was a surface discontinuity of some measure in May 2010. If there was such evidence, this would affect the knowledge of the Town to the surface discontinuity in front of 38 Clements Road.

[50] Consequently, there was no evidentiary basis that supports a finding by the Court that on the balance of probabilities the Town knew or could have reasonably known the state of repair of the sidewalk before May 9, 2011.

[51] The conduct of the Town in its lack of written policy, lack of written training, failure to record the name of the student that did the inspection and failure to record the surface discontinuity before the repairs, leaves the Court with some discomfort but does not leave the Court with a conclusion that the Town knew or could have reasonably have been expected to have known about the state of repair of the sidewalk at the time of the trip and fall.

[52] I therefore conclude that the Town has established the statutory defence per section 43(a) of the Act.

[53] Having concluded that the Town has met the first the defence in s. 43(a), I need not deal with the other defences.

Disposition

[54] The Town has established the defence in section 43(a) of the Act and as such has established a statutory defence to the Plaintiff’s claim.

[55] The action is hereby dismissed against the Town.

[47] If the parties are unable to resolve costs, the Defendant to serve and file its submissions for costs within thirty days from the date of this decision, and the Plaintiff will have thirty days thereafter to serve and file her submissions. The submission to be no more than four pages, double spaced, exclusive of any cost outline and offers to settle. Any case law is to be hyperlinked in the submissions. There is no right to reply. Submissions are to be filed with the court. If no submissions are received within the time set out herein, an order will be made that there will be no costs.

Justice P. W. Sutherland Released: April 19, 2024