Ontario Superior Court of Justice

Court File No.: CV-22-00675289-0000
Date: 2025-02-28

Between

Eva Kotsopoulos and John Kotsopoulos, Plaintiffs
and
The City of Toronto, Alice Yoon Mun Mak, Maintenance Company X, John Doe, Naveed Munawar and Kausar Jehan, Defendants

Appearances:
Alex Wolfe, for the Plaintiffs
Nadia Marotta, for the Defendant, The City of Toronto

Heard: December 16, 2024

Justice: G. Dow

Reasons for Decision

Introduction

[1] The defendant, The City of Toronto, sought partial summary judgment, that is, dismissal of the action as against it on the basis of section 42(4)(b) of The City of Toronto Act, R.S.O. 2006, c. 11. This section provides that no action may be brought against it for damages caused by the condition of an “untravelled portion of a highway”.

[2] This decision does not resolve the action by the plaintiff as against the defendant, Alice Yoon Mun Mak, who owns a residential property adjacent to where the plaintiff, Eva Kotsopoulos, slipped in a ditch adjacent to the culvert running under the driveway towards Ms. Mak’s home. It does not end the action as against the next door neighbour (and owners, Naveed Munawar and Kausar Jehan). I was advised the plaintiffs and these defendants had agreed to their being released from the action. It does not end the action as against the defendant Maintenance Company X and John Doe, although I was advised of the plaintiffs’ intention to discontinue the action as against these defendants.

[3] The defendant, Ms. Mak, did not attend or submit material. I was advised, despite having served a Statement of Defence and Crossclaim for contribution and indemnity as against the co-defendants, including The City of Toronto, that it took no position on this motion.

Partial Summary Judgment and the Malik v. Attia Test

[4] Given the direction by the Court of Appeal limiting partial summary judgment, I would not have permitted the motion to be scheduled had it appeared before me in Civil Practice Court. I would have applied the three-part test under Malik v. Attia, 2020 ONCA 787 (at paragraph 62) to conclude the termination of this issue would possibly “prove cheaper” only to the City of Toronto. Similarly, the only party that may get its case “in and out of the court system more quickly” is the City of Toronto. In order to ensure no risk of “inconsistent findings by the multiple judges who will touch this divided case” I would have urged the City to serve a formal Rule 49 Offer to Settle and make its submissions at trial.

[5] However, having secured the date and having incurred the time and expense of preparation, I reluctantly heard this motion.

Background

[6] On October 17, 2020 at about 7:00 pm, Eva Kotsopoulos was walking her dog on a residential Scarborough street, Rouge Highlands Drive, which is near her own home. The roadway has two paved lanes for the vehicular traffic and pedestrians as there are no curbs or sidewalks. Instead, not unlike many residential areas across Toronto, there is a ditch beside the roadway whose primary purpose is to drain stormwater as required. The water passes under driveways through a metal tube or culvert. The grass from the ditch meets the pavement of the roadway without any gravel shoulder.

[7] Eva Kotsopoulos observed an oncoming car causing her to move off the paved portion of the roadway. A second car coming from the opposite direction caused her to take a further step away from the paved portion of the roadway where there was a hole at the mouth of the culvert and below the bottom level of the ditch. She fractured her ankle. It was not disputed the width of the City of Toronto road allowance extends beyond the ditch onto the front lawn to border against Ms. Mak’s property. There is nothing that separates or divides this grassy area between the Mak property and the paved roadway. Ms. Mak acknowledged maintaining the grass on her property and to the paved roadway.

[8] Three months earlier, Ms. Mak repaved her driveway in a manner which apparently attracted a Notice of Violation from The City of Toronto with regard to commencing same without a permit. The work was completed and the driveway may have been slightly widened so that the drop-off from the driveway to the ditch became more severe.

Analysis

[9] The legal test under section 42 of The City of Toronto Act, supra, states this statutory bar ought to be addressed before or in spite of any non-repair of the area in question. It is clear where the incident occurred is paramount. What constitutes the “untravelled portion” or more accurately the travelled portion of the highway, as a question of fact, has generally been guided by the comments of the Court of Appeal in MacDonald v. Lefebvre et al., para 12.

[10] That case involved two trucks approaching each other from the opposite direction on a two lane road near where a tree stump was determined to be about 18-24 inches off the travelled portion of the road and concealed by tall grass. One truck slowed and veered to the side where it struck the stump causing its rear to veer back towards the roadway striking the other truck.

[11] The Court of Appeal held the definition of the travelled portion of a highway “is limited to that portion that has been provided and is intended for ordinary and normal use for that purpose or which has in fact been commonly and additionally used by the public for that purpose.”

[12] To that end, each side in this matter marshalled evidence, which will not be repeated in any detail, as to the frequency with which the ditch was used by vehicles and pedestrians. The plaintiffs relied on a photo of one other person observed in the ditch. The defendant, The City of Toronto, relied on evidence from Ms. Mak not observing any individual using the ditch over her 20 plus years living at that address (Examinations for Discovery, questions 43-46, Case Center pages B-1-66-7). Further, The City of Toronto relied on one of its employees' evidence that parking vehicles on the side of the roadway at this spot is not being permitted, despite the absence of any “No Parking” signs (or enforcement having occurred).

[13] The plaintiff relied on engineering evidence as to the configuration of the ditch being below required standards, the obvious one being a hole beside the culvert that aided the flow of stormwater into the culvert rather than the bottom of the ditch being at the same level as the bottom of the culvert. However, I agree with the position of The City of Toronto that evidence or any finding in that regard is not part of the analysis as to whether there is “ordinary and normal use” of where the incident occurred or if there were facts supporting it was “commonly and additionally used by the public for that purpose” (MacDonald v. Lefebvre et al., supra at paragraph 12).

[14] I find this location where the incident occurred is neither “intended for ordinary or normal use” nor “commonly or additionally used by the public”. The absence of curbs and sidewalks are the result of infrequent or little use by vehicles or pedestrians in the area. Pedestrians walking in the area use the paved roadways given the volume of traffic is so infrequent. When vehicle traffic occurs, motorists have a statutory onus to take care. The prudent pedestrian can retreat to the relatively level, grassy portion beside the pavement (which I find from photographs contained in the motion material and the site investigation by the plaintiffs’ engineering expert to be between 0.6-1.0 meters wide (See Case Center, pages A-59 and A-71)). This is wide enough for an individual to stand or walk until the vehicles pass by.

[15] Similarly, and for the same reasons, the area where the incident occurred was not “commonly and additionally used by the public”. I take guidance from the reasons and decision in Belo v. City of Hamilton, 2024 ONSC 5457 (at paragraph 25) where the area in question appeared to have been worn down from public travel. Those factual circumstances, which also found the incident occurred on the “untravelled portion” of the highway, were more favourable to the plaintiff than the facts before me.

Conclusion

[16] As a result, this action, against the defendant, The City of Toronto is dismissed.

[17] I raised and there were discussions about what, if any, effect such a decision has on the crossclaim by the defendant, Mak as against The City of Toronto. As this was not part of the relief sought in The City of Toronto’s Notice of Motion and in the absence of the defendant, Mak, I make no finding or further comment regarding same.

Costs

[18] As required under Rule 57.01(6) (and with my thanks), both parties had prepared and exchanged Costs Outlines in the event they were successful. The plaintiff’s Costs Outline set out incurred time and partial indemnity fees totalling $52,358.80 plus HST. This compared to The City of Toronto having separated its Costs Outline into one for the motion and another for the action. The former sought $30,597.50 for partial indemnity fees inclusive of HST and disbursements of $1,254.98, for a total of $32,440.08. The latter added $28,451.20 for partial indemnity fees inclusive of HST plus disbursements of $13,481.97 for a total of $41,933.17.

[19] I was also directed to letters dated January 13, 2023 and October 16, 2024 where the City of Toronto offered to consent to dismissal of the action as against it without costs. I raised whether any additional level of costs were being sought in the event they were successful and was advised that only partial indemnity costs were being sought. Considering the similarity of the quantum claimed by each party, and mindful of the factors set out in Rule 57.01, I am prepared to and fix costs as requested, that is fees, including HST, totalling $59,048.70.

[20] Regarding the list of disbursements, upon review of same, I note it included “Expert Fees – Angela Blazkowski - $5,824.12” and “Surveillance Invoice – Xpera Investigation” for $4,621.60. Neither expense was detailed, raised or referred to in submissions before me. To that end, I question whether they are reasonable or required to defend this action, particularly given The City of Toronto’s reliance on section 42(4) of The City of Toronto Act, supra. Therefore, I reduce the disbursements allowed to $1,678.31.

[21] Therefore, the total award of costs payable by the plaintiffs to the defendant, The City of Toronto is in the total amount of $60,727.01, inclusive of partial indemnity fees, HST and disbursements, payable forthwith.

Released: February 28, 2025

G. Dow