COURT FILE NO.: CV-22-817-0000 DATE: 2024 07 29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE MICHAEL FADLER, by his Litigation Guardian Maria Lopes, MARIA LOPES, PHILIP MANUEL PAULINO FADLER, a minor under the age of 18 years by his Litigation Guardian Maria Lopes, GABRIELLA HELENE FADLER and JOAO PEDRO PAULINO LOPES

Adrian Nicolini and Francesco Vumbaca, for the Plaintiffs

Plaintiffs

• and -

TOWN OF MILTON, CANADA LIFE ASSURANCE COMPANY, JOHN DOE (MANAGEMENT COMPANY) and JOHN DOE (CONSTRUCTION COMPANY)

Charles Painter, for the defendant Corporation of the Town of Milton

Defendants

HEARD: July 9, 2024 by attendance

AMENDED REASONS FOR JUDGMENT The Honourable Justice Ranjan K. Agarwal

I. OVERVIEW

[1] On a clear spring day in May 2020, the plaintiff George Fadler lost control of his motorcycle outside a Milton shopping plaza. He careened across four lanes of traffic and the median, landing on the opposite side of the road. His injuries were catastrophic—he’s in a non-responsive, vegetative state.

[2] George and his family allege that the accident was caused by a pothole on the road outside the plaza. They sued the defendant Corporation of the Town of Milton for over $10 million in negligence.

[3] Milton moves for summary judgment. It argues that there’s no genuine issue requiring a trial that: (a) the road was in a state of repair; or (b) George’s driving caused the accident. The plaintiffs respond that: (a) this motion is premature because they haven’t discovered the case yet; and (b) their evidence raises a triable issue.

[4] As a result, the parties’ submissions raise several matters:

(a) should Milton’s motion be dismissed because it’s premature?

(b) is the plaintiffs’ hearsay evidence from their proposed expert admissible to show there’s a triable issue?

(c) did Milton fail to keep the road in a reasonable state of repair?

(d) if so, did this non-repair cause the accident?

(e) did Milton nonetheless meet the minimum standards applied to the road and to the alleged default?

[5] For the reasons discussed below, I order that the plaintiffs’ claim is dismissed. George’s accident and injuries are tragic. Him and his family are suffering immeasurable pain and loss. But the plaintiffs have failed to show, on the evidence before me, that there’s a genuine issue requiring a trial—they’ve failed to prove Milton’s negligence. I further order that the plaintiffs shall pay Milton’s costs of this action, fixed in the amount of $36,297.61.

II. BACKGROUND FACTS

[6] George was an experienced motorcyclist. On May 3, 2020, he exited the Milton Common shopping plaza on Thompson Road South. He lost control of his motorcycle and crashed. George was catastrophically injured.

[7] At the shopping plaza’s exit, there’s a catch basin grate on the road. There was a pothole on the right side of the grate. The pothole had a surface area of approximately 1400 cm 2 and was 4 cm deep.

[8] In April 2022, George and his family sued Milton, the defendant Canada Life Assurance Company (which owned the plaza), and two unknown defendants (the plaza’s management company and the construction company that allegedly repaired the road).

[9] Milton defended the action in July 2022. Milton hasn’t counterclaimed against the unknown defendants or commenced a third party claim. At the hearing, Milton assumed liability for any negligence by the repair company.

[10] The claim against Canada Life has since been discontinued.

III. LEGAL FRAMEWORK

A. Summary Judgment Motions

[11] 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. See Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 20.01(3). The court shall grant summary judgment if the court is satisfied that there’s no genuine issue requiring a trial with respect to a claim or defence. See Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 20.04(2).

[12] Rule 20 concerns itself with a simple question: does a specific action require a trial for its fair and just determination on the merits? 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: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious, and less expensive means to achieve a just result. See Hryniak v Mauldin, 2014 SCC 7, at para 49; Moffitt v TD Canada Trust, 2023 ONCA 349, at para 42.

[13] First, judges should decide whether there’s a genuine issue requiring trial based only on the evidence before them, without using the enhanced fact-finding powers enumerated in rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. If there appears to be a genuine issue requiring a trial, the judge should then determine whether the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). A judge may exercise those powers provided their use isn’t against the interest of justice. See Moffitt, at para 41.

[14] The onus is on the moving party to establish the existence or lack thereof of a genuine issue requiring a trial. But each side must “put its best foot forward” with respect to the existence or non‑existence of material issues to be tried. See Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v Aga, 2021 SCC 22, at para 25.

B. Municipal Liability

[15] The Municipal Act, 2001, S.O. 2001, c. 25, s 44, provides a cause of action against a municipality that fails to keep its roads in a reasonable state of repair. The plaintiffs must prove that:

(a) Milton failed to keep the road in a reasonable state of repair (non-repair); and

(b) the “non-repair” caused George’s accident (causation).

[16] The burden then shifts to Milton to prove that it met the minimum standards applied to the road and to the alleged default (the other two defences under section 44(3) aren’t at issue) (statutory defences). If Milton can’t prove a defence, then it’s liable, subject to showing that George’s driving contributed to his injuries (contributory negligence). See Stamatopoulos v Harris, 2022 ONCA 179, at para 6.

[17] Under the regulations, a pothole on Thompson Road South (a Class 2 road) is deemed to be in a state of repair if its surface area is 800 cm 2 or less, or its depth is 8cm or less. See Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, s 6.

IV. ANALYSIS AND DISPOSITION

A. Issue #1: is Milton’s motion premature because it’s before discoveries?

[18] The plaintiffs argue that this motion is premature because documentary and oral discoveries haven’t been completed yet. They point to two undiscovered issues:

• they don’t have any information about who repaired the pothole around the catch basin grate after the accident, which the plaintiffs say is relevant both to their claim against Milton and for discovery of the identity of the defendant John Doe Construction Co.
• the five witnesses to the accident haven’t been examined for discovery

[19] I don’t accept this argument for two reasons: (a) the plaintiffs could’ve sought to discover the defendants long before this motion; and (b) the plaintiffs didn’t avail themselves of several procedural tools open to them on the motion.

[20] The plaintiffs started this case in April 2022. The pleadings closed in July 2022. The plaintiffs didn’t take any discovery steps:

• by September 2022, the parties should’ve agreed to a discovery plan (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 29.1.03(2))
• if Milton refused to agree, the plaintiffs could’ve moved for imposition of a discovery plan before discoveries (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 29.1.05(2))
• or the plaintiffs could’ve served an affidavit of documents (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 30.03(1)) and served a notice of examination for discovery (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 31.04(2))
• if Milton’s representative failed to attend at the examination, the plaintiffs could’ve then moved for a discovery plan or sanctions (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 34.15)
• the plaintiffs could’ve interviewed all of the accident witnesses or moved for leave to discover a non-party (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 31.10)

[21] The plaintiffs respond that they were taking a “cooperative” approach. The parties agreed that they needed Halton Regional Police Service’s records before taking next steps. Halton Police produced its records and responded to the plaintiffs’ follow-up questions by July 2023.

[22] In September 2023, the plaintiffs proposed that the parties schedule oral discoveries or a summary judgment motion. Milton advised that it intended to move for summary judgment. The plaintiffs didn’t object or seek to timetable documentary and oral discoveries.

[23] In November 2023, Milton served a notice of motion for summary judgment, with an affidavit from Jordan Cutler, an external lawyer. The affidavit’s only purpose is to adduce Halton Police’s records. In February 2024, Milton emailed a report from its expert, Sam Kodsi, for use on the summary judgment motion. In May 2024, Milton served an affidavit from Mr. Kodsi, attaching the expert’s report. In June 2024, Milton served another affidavit from Mr. Kodsi, attaching an addendum expert’s report, and another affidavit from Mr. Cutler, attaching some emails between the lawyers. Milton also filed its request to admit and the plaintiffs’ response.

[24] In early June 2024, the parties emailed each other about the motion. The plaintiffs said they would serve their responding motion record “at least four days” before the motion in accordance with the rules. Milton responded that it needed the plaintiffs’ affidavits sooner so it could cross-examine the plaintiffs’ deponents. The plaintiffs proposed that the hearing be adjourned to allow for cross-examinations. Milton opposed any adjournment, but it offered to produce Mr. Kodsi for cross-examination before the hearing. The plaintiffs abandoned their request for an adjournment, and didn’t seek to cross-examine either Mr. Kodsi or Mr. Cutler. The plaintiffs served their motion record four days before the hearing. They filed an affidavit from Carlyle Mazankowski, a lawyer at the plaintiffs’ law firm, and a request to admit. Milton responded to the request to admit just before the hearing.

[25] The plaintiffs have known since September 2023 that Milton was moving for summary judgment. They took no steps to discover this case for this motion:

• the plaintiffs could’ve sought documentary and oral discovery from Milton any time between then and now, including after Milton moved for summary judgment
• they could’ve sought to examine the five eyewitnesses under Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.03 (to the extent that they couldn’t get affidavits from them)
• if they were unsatisfied by Milton’s failure to provide evidence from one its employees, they could’ve examined them under Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.03
• after receiving Milton’s expert’s report in February 2024, they could’ve notified Milton that they intended to cross-examine Mr. Kodsi
• or they could’ve served a notice of examination any time after receiving Mr. Kodsi’s affidavit in May 2024
• if they couldn’t serve their affidavit before cross-examining Mr. Kodsi or examining any other witnesses, or until just before the hearing, they could’ve moved to adjourn the hearing so they could take these steps

[26] As the motion developed, the plaintiffs could’ve also moved for directions. At such a motion, they could’ve argued that the motion had become too long or complex, such that it wouldn’t “sufficiently advance the litigation, or serve the principles of proportionality, timeliness and affordability.” See Hryniak, at para 72. Or they could’ve sought a timetable for affidavits, Rules of Civil Procedure, R.R.O. 1990, Reg. 194 rule 39.03 examinations, and cross-examinations.

[27] The plaintiffs’ failure to do any of this suggests that they were prepared to argue the merits of the motion on Milton’s record and their affidavit. A motion judge can presume that the evidentiary record is complete, and there will be nothing further if the issue were to go to trial. See Carmichael v GlaxoSmithKline Inc., 2020 ONCA 447, at para 141. Having used none of the discovery tools available, they can’t now argue that the motion is premature because they need documentary or oral discovery.

[28] The plaintiffs also argue that Milton’s motion is really for partial summary judgment because they will still have a claim against the road repair company. First, Milton has assumed all liability for that company’s alleged negligence. Second, the plaintiffs can’t fail to discover the company’s identity (for example, through an FOI request) or prosecute the claim against it, and then argue that Milton can’t get summary judgment.

[29] The plaintiffs’ approach here suggests an old way of thinking, from before the Hryniak culture shift. This style presumes that cases proceed from pleadings to documentary discovery to oral discovery to undertakings motion to mediation to pre-trial conference and then, finally to trial, with a summary judgment motion being an exceptional step, not the final step. But, for over 10 years now, summary judgment motions are, along with trials, one of several “final-adjudication-on-the-merits procedural tools”. See Moffit, at para 28.

[30] If a respondent isn’t prepared to litigate the merits at a summary judgment motion, then they must show that a trial is necessary. It’s unlikely that a plaintiff could agree to schedule the trial of the action but then argue, on the first day of a trial, that the trial should be adjourned because they haven’t started documentary or oral discoveries. So too here.

B. Issue #2: is the plaintiffs’ hearsay evidence admissible to show there’s a triable issue?

[31] Mr. Mazankowski’s affidavit describes a call between him and “representatives from 30 Forensic Engineering.” Mr. Mazankowski testifies about several observations made by 30FE:

• maintenance on only the left side of the pothole left it in a “state of disrepair”
• the catch basin doesn’t comply with provincial standards
• the slope of the road leads to a higher rate of deterioration around the catch basin

[32] Mr. Mazankowski’s evidence is that 30FE provided him a “preliminary verbal opinion”:

…it was probable that George’s motorcycles [sic] front tire impacted the pothole as he accelerated during his right turn, and at the slope rate of 5 degrees, was likely the reason for him losing control of the motorcycle.

[33] Under Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.02, an affidavit for use on a summary judgment motion may be made on information and belief. If the hearsay evidence in an affidavit goes to a “fundamental contested aspect” of the summary judgment motion, the motion judge should first determine whether the evidence would be admissible under the rules governing admissibility at trial. If the evidence meets those criteria, it’s admissible on the motion. If the evidence doesn’t meet the criteria for admissibility at trial, the party proffering the evidence must justify some expansion of the rules governing admissibility in the context of the motion. See Drummond v Cadillac Fairview Corporation Limited, 2019 ONCA 447, at para 24.

[34] The plaintiffs argue that hearsay evidence can be used on a summary judgment motion to show that there’s a genuine issue requiring a trial, even if the evidence isn’t admissible for the truth of its contents. See Gilbraith v Intact Insurance Company, 2019 ONSC 1875, at para 27. In doing so, the plaintiffs concede that Mr. Mazankowski’s evidence isn’t admissible under the evidentiary rules applicable at trial.

[35] I disagree with the plaintiffs’ submission. Mr. Mazankowski’s evidence of 30FE’s observations and conclusions is inadmissible.

[36] First, in Gilbraith, the court did treat an expert’s report as “some evidence” of a triable issue. But, in that case, the plaintiff filed an expert’s report. In the two cases cited in Gilbraith, expert’s reports were also filed. See Huang v Fraser Hillary’s Ltd., 2015 ONSC 7645, and Beatty v Waterloo (Regional Municipality), 2011 ONSC 3599. The issue in all three cases was whether the report was inadmissible because it wasn’t an exhibit to the expert’s affidavit. Here, there’s no report at all—just Mr. Mazankowski’s hearsay evidence of what 30FE told him it would say at trial.

[37] Second, the plaintiffs haven’t complied with Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 39.01. The source of 30FE’s information hasn’t been specified in the affidavit. And opinion evidence provided by an expert witness for a motion must include the information listed under Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 53.03(2.1). The maker of 30FE’s statements was only disclosed in the plaintiffs’ factum (though it was served at the same time as Mr. Mazankowski’s affidavit). The expert’s qualifications, their instructions, the basis for their opinion, and an acknowledgment of expert’s duty haven’t been included. The court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. See Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 20.02. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would contradict the party’s case, or at least wouldn’t support it. See S Lederman, M Fuerst & H Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed (LexisNexisCanada, 2022), at ¶6.509.

[38] The purpose of these rules are to allow the adverse party and the court to assess the validity and strength of the hearsay evidence. That’s impossible to do without an expert’s report. If Mr. Mazankowski testified at trial or a mini-trial about 30FE’s preliminary findings, this evidence wouldn’t be enough to respond to Milton’s expert, even if it were admissible. The situation might be different if the plaintiffs had filed an expert’s report from 30FE, even if it weren’t attached to an affidavit from the expert. But the plaintiffs can’t make “vague references” about the evidence the expert “might” introduce at trial to create a triable issue. See Caithesan v Amjad, 2016 ONSC 5720, at para 28.

C. Issue #3: have the plaintiffs proven liability against Milton?

1. Non-Repair

[39] A municipality has a duty to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. Ordinary reasonable drivers aren’t perfect drivers; they make mistakes. See Deering v Scugog (Township), 2010 ONSC 5502, at para 154, aff’d 2012 ONCA 386, leave to appeal ref’d, [2012] SCCA no 351; Fordham v Dutton-Dunwich (Municipality), 2014 ONCA 891, at para 28.

[40] The plaintiffs argue that condition of the pothole and the catch basin grate show that Milton failed to keep the road in reasonable state of repair. They argue that the facts here show that there was an “obvious deficiency or risk”. See Lloyd v Bush, 2017 ONCA 252, at paras 69-75. Alternatively, they argue that there’s a triable issue whether the pothole created an unreasonable risk.

[41] The determination that a road is in a state of non-repair is contextual and fact-driven. The circumstances that must be considered in determining the reasonably applicable standard of repair includes the character and location of the roadway. See House v Baird, 2017 ONCA 885, at para 36. For a road to be in a state of non-repair, it must present a hazard that poses an unreasonable risk of harm to ordinary, non-negligent users of the road in the circumstances. See Lloyd, at para 71. The overriding question remains: in all the circumstances, does the condition of the road pose an unreasonable risk of harm to reasonable drivers? See Lloyd, at para 75.

[42] The plaintiffs haven’t led any admissible evidence to prove non-repair. First, they argue that there are several “unanswered questions” because they haven’t discovered the case. They point to two examples:

• “when, why, or who was responsible for the repair of only the opposite side of the catch basin grate”
• the eyewitnesses haven’t been asked about “a pothole or any other intervening cause”

[43] As I discuss above, it’s too late now to argue that they need to discover the case. Again, the plaintiffs could’ve examined Milton for discovery or interviewed the witnesses to discover these facts and “put their best foot forward”.

[44] Second, the plaintiffs assert that there was an “obvious deficiency” or “unreasonable risk”:

• George was driving a motorcycle (two wheels) not a car (four wheels)
• the pothole was “large and deep” and surrounded the catch basin grate
• it was located at the bottom of a “sloped driveway”
• Milton repaired only one part of the pothole

[45] The problem with these arguments is that there’s no admissible evidence for most of them. There’s no dispute that George was driving motorcycle. But the plaintiffs haven’t introduced any admissible evidence for their other assertions:

• the effect of potholes on motorcycles
• the relevancy of the pothole’s area (1400 cm 2) when it’s depth is only 4 cm
• the effect of the slope of catch basin grates on deterioration of the road
• how repairing one side of the pothole (if that’s in fact what happened) creates an unreasonable risk

[46] Alternatively, the plaintiffs argue that FE30’s evidence creates a triable issue. But, again, this evidence is inadmissible, even to show a triable issue.

[47] Simply put, there’s no evidence of an obvious deficiency or unreasonable risk created by the pothole. In contrast, Milton points to the regulations, which deem a pothole less than 8 cm in depth to be in a state of repair. Though Milton’s duty isn’t necessarily limited to these minimum standards, the regulations inform whether the risk of harm was unreasonable.

[48] I find that the plaintiffs haven’t proven that Milton failed to keep the road in a reasonable state of repair. If I’m wrong, I consider causation.

2. Causation

[49] The plaintiffs argue that the non-repaired pothole caused George’s injuries. To begin, they repeat their arguments about the lack of discovery and rely on 30FE’s opinion. Neither submission can assist them for the reasons I’ve already discussed.

[50] They also point to information that they say shows George lost control of his motorcycle because of the pothole:

• Kathy Musleh, an eyewitness, told the police that George didn’t “have control over his motorcycle as the handlebars were twisting in different directions”
• Ms. Musleh, in a subsequent call with Adrian Nicolini, the plaintiffs’ lawyer, told him that George’s front tire “immediately wobble[d] upon getting onto Thompson Road South” and George “immediately” lost control
• Detective Constable Cormier’s drawing shows George losing control as soon as he exited the plaza, which was based on the eyewitnesses and roadway evidence
• Detective Constable Cormier opined that the pothole might have contributed to George’s accident
• George was an experienced driver, and the weather was clear and the road dry

[51] Ms. Musleh’s and Officer Cormier’s evidence is hearsay:

• Ms. Musleh’s witness statement and Officer Cormier’s letter were attached to Mr. Mazankowski’s affidavit
• Ms. Musleh’s subsequent statement was provided to Mr. Nicolini, who then presumably advised Mr. Mazanowski
• the plaintiffs didn’t file affidavits from Ms. Musleh or Officer Cormier or examine them as witnesses on the motion

[52] Mr. Mazankowski’s evidence of what Ms. Musleh or Officer Comier might say at trial is inadmissible, and can’t be used to prove causation. Absent this evidence, there’s nothing that proves that the non-repair caused George’s accident. Mr. Kodsi’s opinion is the only admissible evidence on causation.

[53] Mr. Kodsi concludes that George left the parking lot at a speed of 57 to 70km/hr. The typical turning speed is 15 to 20 km/hr and the posted speed limit is 60 km/hr. Mr. Kodsi’s conclusion is: “a high rate of speed and/or acceleration caused the incident, and an inadequate lean angle and handlebar control contributed to the vehicle’s loss of control.”

[54] The plaintiffs don’t challenge the admissibility of Mr. Kodsi’s opinions. The plaintiffs haven’t identified any prejudicial effect from his evidence. In any event, I find that the probative value of his evidence far outweighs any prejudicial effect. See White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, at para. 19.

[55] As a result, I find that the plaintiffs have failed to prove that the pothole caused George’s accident.

[56] The plaintiffs make an alternative argument that Ms. Musleh’s and Officer Cormier’s information creates a triable issue. Like with 30FE’s information, the plaintiffs aren’t relying on this evidence for the truth of its contents. But this evidence is slightly different from 30FE’s statements to Mr. Mazankowski because their statements were attached to his affidavit.

[57] In other words, the plaintiffs are arguing that a comparison between Mr. Kodsi’s opinion, on one hand, and Ms. Musleh’s and Officer Cormier’s anticipated evidence, on the other hand, raises credibility issues. I disagree. Their statements don’t say anything about George’s speed or handlebar control, in part because they were never asked about these specific issues. Their evidence is, at best, vague on this material issue. Also, Mr. Kodsi’s opinion is based, in part, on Ms. Musleh’s and Officer Cormier’s written statements. He considered the same information the plaintiffs are relying on to reach his conclusion.

[58] The situation might’ve been different if the plaintiffs introduced admissible evidence from Ms. Musleh or Officer Cormier that George was driving under the speed limit, didn’t accelerate out of the plaza parking lot, or lost control after hitting the pothole. Or if the plaintiffs had cross-examined Mr. Kodsi, and he qualified or changed his opinion based on different facts. That type of evidence might have created a triable issue. But there’s no genuine issue requiring a trial based on the evidence before me.

[59] As a result, I find that the plaintiffs haven’t proven causation.

3. Statutory Defence

[60] Even if Milton is liable for negligence, the regulations establish a minimum standard, and Milton met that standard. The plaintiffs don’t disagree with Mr. Kodsi’s opinion that the pothole was 4 cm in depth. The regulation deems a pothole on this class of road to be in a state of repair if it’s depth is less than 8 cm. Under the regulation, it doesn’t matter that the pothole’s area was more than 800 cm 2. As a result, I find that, at the time the cause of action arose, Milton met the minimum standards applicable to the road and the pothole.

4. Conclusion

[61] Based on the evidence before me, there’s no genuine issue requiring a trial that:

• the pothole didn’t pose an unreasonable risk of harm to reasonable drivers
• even if were an unreasonable risk, the pothole didn’t cause George’s accident
• even if the pothole caused the accident, Milton met the minimum standards under the regulations

[62] As a result, I order that the plaintiffs’ claim is dismissed.

V. COSTS

[63] As the action is dismissed, Milton, as the successful party, is presumptively entitled to its costs. It seeks $45,043.07 on a substantial indemnity basis. The plaintiffs concede that, if successful, Milton is entitled to costs on a partial indemnity basis, fixed in the amount of $36,297.61.

[64] Subject to the provisions of an act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. See Courts of Justice Act, R.S.O. 1990, c. C.43, s 131.

[65] In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, together with the result in the proceeding and any offer to settle or to contribute made in writing, the factors listed in Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.01.

[66] In the usual case, costs are awarded to the prevailing party after judgment has been given. The traditional purpose of an award of costs is to indemnify the successful party in respect of the expenses sustained either defending a claim that in the end proved unfounded (if the successful party was the defendant), or in pursuing a valid legal right (if the plaintiff prevailed). Costs awards are “in the nature of damages awarded to the successful litigant against the unsuccessful, and by way of compensation for the expense to which he has been put by the suit improperly brought”. See British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, at paras 20-21.

[67] The main objective is to fix an amount of costs that’s objectively reasonable, fair, and proportionate for the unsuccessful party to pay in the circumstances of the case, rather than to fix an amount based on the actual costs incurred by the successful litigant. See Boucher v Public Accountants Council (Ontario), 71 OR (3d) 291 (CA), at para 26.

[68] Milton relies on Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.06, which provides that the court may fix costs of a motion for summary judgment by a party on a substantial indemnity basis if: (a) the party acted unreasonably by making or responding to the motion; or (b) the party acted in bad faith for the purpose of delay. I don’t find that the plaintiffs acted unreasonably in responding to this motion, or acted in bad faith to delay the motion. Though I don’t believe the plaintiffs put their best foot forward, I don’t believe that’s grounds for costs sanctions.

[69] Milton also relies on an offer to settle, dated February 20, 2024. Milton offered to settle the action by paying $500 in damages to the plaintiffs, along with $325 in costs and disbursements. If the moving party obtains an order as or more favourable than the terms of a Rules of Civil Procedure, R.R.O. 1990, Reg. 194 Rule 49 offer to settle, it’s entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise. See Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r 49.10(1), 49.02(2). Unfortunately, Milton’s costs outline doesn’t show its substantial indemnity fees after the offer. As a result, I can’t fix Milton’s costs using Rules of Civil Procedure, R.R.O. 1990, Reg. 194 rule 49.10(1).

[70] I endorse an order that the plaintiffs shall pay Milton’s costs of this motion, fixed in the amount of $36,297.61. Given the plaintiffs’ concession, this amount is fair, proportional, and reasonable in the circumstances of this case.

VI. CONCLUSION AND ORDER

[71] I’m sorry for George’s and his family’s loss. It’s clear that George lost control of his motorcycle, which caused the crash. But the plaintiffs haven’t proven that the pothole, or Milton’s negligence more broadly, led to this horrific and tragic accident.

[72] As a result, I grant summary judgment dismissing all of the claim in the statement of claim, and order that the plaintiffs pay Milton’s costs, fixed in the amount of $36,297.61.

Agarwal J. Released: July 29, 2024

COURT FILE NO.: CV-22-817-0000 DATE: 2024 07 29 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: George Fadler and others Plaintiffs - and - Town of Milton and others Defendants AMENDED REASONS FOR JUDGMENT Agarwal J .