Reasons for Decision

Court File No.: CV-23-00002225-0000
Date: May 13, 2025
Ontario Superior Court of Justice

Between:
Farzin Mongabadi, Plaintiff
– and –
The Corporation of the Town of Aurora, Defendant

Appearances:
Farzin Mongabadi, Self-Represented Plaintiff (Not Appearing)
Charles Painter, Counsel for the Defendant (Moving Party)

Heard: May 2, 2025

Justice S.E. Fraser

I. Nature of the Motion

[1] The Defendant brings this motion for summary judgment arguing that there is no genuine issue requiring a trial.

[2] The Plaintiff commenced this action under the Simplified Procedure after an accident on a municipal road (“highway”) in Aurora, Ontario.

[3] The Plaintiff alleges that he was traveling eastbound on an electric “kick scooter” on Henderson Drive on May 25, 2021 when he hit a crack or pothole near a sewer plate/maintenance hole (“the accident”). He claims that as a result he fell forward over his handlebars and suffered serious personal injuries.

[4] The Plaintiff claims under the Municipal Act, 2001, SO 2001, c 25 (“the Act”) that the Defendant failed to keep the highway in a state of repair that is reasonable in the circumstances.

[5] At the time of the accident, Aurora had no bylaw under the Highway Traffic Act, RSO 1990, c H.8, as amended, permitting the use of electric kick scooters on any of its highways, including on Henderson Drive.

[6] The Defendant makes two principal arguments for why this matter does not require a trial. First, it asserts that the pothole was deemed in a legal state of repair as it met and exceeded the minimum standards. Second, it asserts that its duty does not apply to highway users operating recklessly or not using ordinary care. It asserts that the Plaintiff does not enjoy the protection of s. 44 as he was using a mode of transportation that was expressly forbidden by statute.

[7] The Plaintiff did not appear. At the outset of the motion, I determined that it should be heard. The motion for summary judgment is granted, for the reasons set out below.

II. Issues

[8] I begin with setting out the issues to be decided. They are:

a. Should the motion proceed?
b. What is the test for summary judgment?
c. What is the legal framework for claims against a municipality for alleged non-repair of highways?
d. On this evidence, can this Court fairly and justly adjudicate this matter without a trial?

[9] I address each of the issues in turn.

III. Analysis

A. Should the Motion Proceed?

[10] The Plaintiff did not appear at the hearing of the motion despite receiving notice of the hearing, despite being paged by the Court, and despite the Court waiting.

[11] I decided that the motion should be heard and gave reasons orally for my decision. In short, the Defendant served its Notice of the Motion well in advance of the hearing and while the Plaintiff was represented by counsel, the Plaintiff has failed to respond to this motion, and it appears that he has been receiving correspondence from counsel and the Court.

[12] The earliest notice of the substance of this motion was on July 4, 2024, when the Defendant served its Rule 53 Expert Report. On October 22, 2024, the Defendant served its Notice of Motion for summary judgment. The affidavits relied on in support of the motion were served on October 22, 2024 and November 19, 2024. No other evidence was served. The factum was served on November 20, 2024 and the Motion Record on February 24, 2025.

[13] This matter was spoken to at Triage Court on March 4, 2025, which had been scheduled on October 24, 2024. The Plaintiff did not attend. RSJ Edwards ordered that the Plaintiff would be permitted to file materials until April 15, 2025, and any cross-examinations were to be completed by that date. The Plaintiff’s factum was to be served by April 30, 2025.

[14] The Plaintiff filed no materials.

[15] On April 9, 2025, this Court granted a motion brought by the Plaintiff’s counsel, removing counsel from the record. The Plaintiff is now self-represented.

[16] The Plaintiff has not responded to this motion despite having notice of it for over six months. He has been contacted by court staff and counsel. The emails did not bounce back and were not replied to. In my view, it is in the interests of justice for this matter to proceed given the Plaintiff’s total failure to respond to the process.

B. Summary Judgment Test

[17] Rule 20.04(2) provides that the court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[18] Under subrule (2.1), to determine whether there is a genuine issue requiring a trial, a judge may weigh the evidence, evaluate credibility of a deponent, and draw reasonable inferences from the evidence.

[19] Summary judgment motions must be granted when there is no genuine issue requiring a trial. 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 allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. See: Hryniak v. Mauldin, 2014 SCC 7, paras 47-51.

[20] A responding party must put its best foot forward rather than wait for future evidence to materialize. See Boltyansky v. Joseph-Walker, 2024 ONCA 682, para 15.

C. Legal Framework for Claims Against a Municipality for Alleged Non-Repair of Highway

[21] The Plaintiff claims under s. 44 of the Act. Under s. 44, a municipality is required to keep its highways in a state of repair that is reasonable in the circumstances. If it fails to do so, it is liable unless one of the statutory defences is made out or there is a common law defence.

[22] In Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, paras 25-26, Justice Laskin set out the four-step test for analyzing the statutory cause of action. First, 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. Next, the plaintiff must prove the “non-repair” caused the accident.

[23] Proof of “non-repair” and causation will establish a prima facie case of liability against a municipality. The next step is to address any statutory defences. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.

[24] Last, the Court will examine any contributory negligence.

[25] The standard of care is assessed as against a road user driving without negligence and the duty of care does not extend to reckless drivers or drivers not exercising ordinary care. See Morsi v. Fermar Paving Limited, 2011 ONCA 577, paras 18-22; Deering v. Scugog (Township), 2010 ONSC 5502, para 155, affirmed: 2012 ONCA 386, 33 M.V.R. (6th) 1, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 351.

D. Is There a Genuine Issue Requiring a Trial?

(i) Step One: Proof of Non-Repair

[26] The existence of a pothole does not establish a state of non-repair. The Plaintiff has not established that the pothole was not in a reasonable state of repair. It is the Plaintiff’s burden to establish this, and it has offered no evidence in this regard.

[27] The case can be decided on this issue alone as it is the Plaintiff’s burden to prove non-repair. However, I will go on to consider the other steps of the analysis.

(ii) Step Two: Causation

[28] The Plaintiff admitted that the pothole is the cause of the fall (as opposed to other issues with the roadway). In my view, this admission supports that the Plaintiff points to nothing other than the pothole as the cause of the accident. However, I have no evidence of causation as the Plaintiff has not filed materials.

[29] I cannot find therefore that the pothole caused the accident.

(iii) Step Three: Is There a Statutory Defence?

[30] In my view, the Defendant has established statutory defences. First, there is no evidence about the length of time that the pothole was present or whether the Defendant knew about it or could have been reasonably expected to know about it.

[31] There was no evidence before the Court about when the pothole formed and no evidence about how frequently the municipality should have been patrolling the highway. The Plaintiff has the burden to demonstrate that the municipality should have known and fixed the pothole before the accident.

[32] Therefore, the Defendant can successfully defend under s. 44(3)(a), had step one and step two been proven, which they have not.

[33] The Defendant also has a defence under s. 44(3)(c) as the evidence establishes the depth of the pothole at the time the cause of action arose, and that the depth of the pothole was less than the permitted depth of the pothole.

[34] I reach these conclusions based on the Affidavit of Michael Bat and the expert report and Affidavit of Sam Kodsi.

[35] The Defendant tendered the Affidavit and Expert Report of Mr. Kodsi as a Rule 53 Expert. I found that his evidence was relevant, necessary, and that he was a properly qualified expert in motor vehicle accident reconstruction. This included determining the depth of potholes. There was no exclusionary rule applying to his evidence. See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. I found the expert evidence admissible and persuasive.

[36] I accept the evidence of Mr. Bat and Mr. Kodsi and therefore make the following findings:

a. At the time of the accident, the Defendant had not passed a bylaw to legalize the use of electric kick scooters;
b. The posted speed limit on Henderson Drive was 50 km/hr and the calculated number of vehicles per day is approximately 8,712;
c. As a result, Henderson Drive is a Class 3 highway under O. Reg. 239/02: Minimum Maintenance Standards for Municipal Highways;
d. The permissible depth of a pothole on a Class 3 highway is 8 cm;
e. The maximum depth of the pothole on the date of the cause of action was 4 cm;
f. The pothole was not of greater depth than that permitted by the minimum maintenance standards set out in O. Reg. 239/02.

(iv) Conclusions on Whether There Is a Genuine Issue Requiring a Trial

[37] I find that there is no genuine issue requiring a trial. I can fairly and justly determine the issues raised by the claim. There is no evidence that Henderson Drive was not in a reasonable state of repair. Even if the Plaintiff could establish that, the Defendant has statutory defences which defeat a claim of non-repair. The Plaintiff’s action cannot succeed.

[38] As the motion fails under the Act, I need not deal with whether the Plaintiff was reckless by riding an electric kick scooter when it was unlawful to do so at the time.

IV. Disposition

[39] The motion is granted. The Plaintiff’s action is dismissed. The Defendant shall have its costs of this motion and of the action.

[40] The Defendant seeks costs on a substantial indemnity basis in the amount of $20,234.47 inclusive of HST and disbursements.

[41] The Defendant offered to resolve this matter for a dismissal of the action upon payment of its costs within 30 days in the amount of $7,500. This offer was made March 25, 2025, and remained open until 5 minutes after the commencement of the hearing of this motion. While this is a Rule 49 offer, the cost consequence of Rule 49.10(2) do not entitle a Defendant to substantial indemnity costs where the judgment is as or less favourable.

[42] While I agree that this motion need not have been brought, I do not see anything on this motion that would attract substantial indemnity costs. The partial indemnity costs sought by the successful Defendant are fair and reasonable. The Defendant has efficiently worked to bring this matter to a resolution.

[43] The Plaintiff shall pay to the Defendant costs on a partial indemnity basis fixed at $15,148.02 inclusive of HST and disbursements within 30 days of this decision.

[44] Order to go in accordance with these reasons and as signed by me today.

Justice S.E. Fraser
Date: May 13, 2025