ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FAY JOY WEILER, WILHELM WEILER and KIMBERLY RAMIREZ
Plaintiffs
– and –
THE CORPORATION OF THE CITY OF LONDON
Defendant
Anna Szczurko & Lauren Cullen, for the Plaintiffs
Paul Shand, for the Defendant
HEARD: May 14, 15, 2025
TRANQUILLI J:
REASONS FOR JUDGMENT
Introduction
1Fay Weiler sustained serious injury when she tripped and fell on a city-owned residential sidewalk near her home on Delphi Road in the City of London (“City”) on March 11, 2021. She and her family claim against the City for damages as result of her injuries.
2The parties do not dispute that the plaintiff tripped over a raised sidewalk edge, known as a “surface discontinuity”. They also do not dispute that the City was responsible for maintaining the sidewalk in accordance with the duties and standards established by the Municipal Act, 2001, S.O. 2001, c. 25. There is no dispute the City did not inspect the sidewalk in accordance with those standards in the year before the plaintiff’s unfortunate fall.
3At issue is the size of the surface discontinuity that caused the plaintiff’s fall and whether the City’s decision not to inspect the sidewalk can constitute a defence to the claim.
4The size of the surface discontinuity informs whether the City failed to keep the sidewalk in a reasonable state of repair in accordance with the maintenance standards set by the Municipal Act, 2001. Pursuant to these standards, the City is required to inspect sidewalks for surface discontinuities at least once per calendar year. At that inspection frequency, the sidewalk is deemed to be in a state of repair, provided the City does not acquire actual knowledge of a surface discontinuity exceeding two centimetres. A sidewalk with a surface discontinuity that is less than or equal to two centimetres is deemed to be in a state of repair. If a surface discontinuity exceeds two centimetres, the City is to treat the defect with warnings, protective measures and/or repairs within 14 days after it learns of the defect.
5The parties each photographed and measured the surface discontinuity that tripped the plaintiff. There appears to be agreement between the parties that they each accurately identified the area of the plaintiff’s fall. The images however demonstrate each party obtained different measurements by different methods. Differing expert opinions also put the size of the defect in these images at either “approximately” two centimetres or less than the “exceeds two centimetres” repair threshold.
6The plaintiff submits that the size of the surface discontinuity exceeded the repair threshold such that the sidewalk was not in a reasonable state of repair in the circumstances. Had the City followed its sidewalk inspection program as required by the standards, the defect would have been identified and the plaintiff’s injuries avoided.
7The City contends the plaintiff has not established that the surface discontinuity exceeded two centimetres and therefore cannot prove on a balance of probabilities that the sidewalk was not in a reasonable state of repair as required under the Municipal Act, 2001.
8However, if the court finds the surface discontinuity exceeds two centimetres, the City can not rely on a sidewalk inspection to nevertheless show that the sidewalk was in a reasonable state of repair or that it took reasonable steps to prevent the defect from causing injury. The City did not hire the temporary workers necessary for its annual sidewalk inspection because of the provincial and municipal states of emergency declared beginning in March 2020 as a result of COVID-19. The City claims it is immune from liability because the decision not to inspect sidewalks was a good faith policy decision made under legislative authority. Furthermore, in that unusual situation it could not reasonably have known about the state of repair of the sidewalk. The plaintiff submits the City’s sidewalk maintenance management during the public health emergency was no more than a series of ill-defined operational decisions. Moreover, the public health emergency did not permit the City to opt out of its statutory duty of care.
9The court must therefore determine whether this was a core policy decision for which the City is immune from liability or whether these unprecedented circumstances otherwise afford the City with a statutory defence to this claim under the Municipal Act, 2001.
10These reasons shall explain why the plaintiffs’ action is dismissed. In summary, I conclude the plaintiff has not established on a balance of probabilities that the City failed to keep the sidewalk in a reasonable state of repair. I find the plaintiff did not establish that the defect was greater than the regulation threshold of two centimetres. If I am in error and the surface discontinuity exceeds two centimetres, I nevertheless conclude that the failure to inspect the sidewalk was a core policy decision for which the City is immune from liability. The state of emergency required the City to take urgent steps to reduce services and personnel due to evolving health and financial factors. There is no evidence that this was an irrational decision or made in bad faith. Further, I am satisfied on this same evidence that the unique circumstances of the state of emergency were such that the City did not know and could not reasonably have been expected to know about the state of repair of the sidewalk.
Issues
11Section 44(1) of the Municipal Act, 2001 requires the City to keep a highway or bridge in its jurisdiction in a “state of repair that is reasonable in the circumstances, including the character and location of the highway or bridge”. Sidewalks come within the City’s statutory responsibility: Worthey v. City of Hamilton, 2015 ONSC 3690, at para. 77, citing Anderson v. Hamilton (City) (2009), 2009 72107 (ON SC), 315 D.L.R. (4th) 486 (Ont. S.C.), at paras. 21-23.
12A municipality that defaults in this obligation is liable for all damages any person sustains because of the default: Municipal Act, 2001, s. 44(2).
13Section 44(3) sets out three possible defences to this statutory liability. The City is not liable if: (1) it did not know and could not reasonably have been expected to know about the state of repair; (2) it took reasonable steps to prevent the default from arising; or (3) it met the minimum standards that applied to the sidewalk: s. 44(3).
14The minimum standards referenced as a defence pursuant to s. 44(3)(c) are set by regulation under the Municipal Act, 2001. The stated purpose of the regulation is to clarify the scope of the statutory defence by establishing maintenance standards that are “non-prescriptive as to the methods or materials to be used in complying with the standards but instead describe a desired outcome”: Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, ss. 2, 2.1 (“MMS”).
15The MMS define a “surface discontinuity” to mean in part a vertical discontinuity creating a step formation at any joint or crack in the surface of a sidewalk: MMS, s. 16.1(5). The MMS require the City to check sidewalks for surface discontinuity once per calendar year, with each inspection taking place not more than 16 months from the previous inspection. A sidewalk inspected in this manner is deemed to be in a state of repair with respect to any surface discontinuity until the next inspection, provided the City does not acquire actual knowledge of a discontinuity that requires repair. If a surface discontinuity on or within a sidewalk exceeds two centimetres, the standard is to treat the surface discontinuity within 14 days after acquiring actual knowledge by taking reasonable measures including permanent or temporary repairs, warning users or preventing access to the area. A surface discontinuity on or within a sidewalk less than or equal to two centimetres is deemed to be in a state of repair: MMS, ss. 16.1(1)-(5).
16The Court of Appeal has recognized a four-step test that informs the assessment of this “statutory cause of action” against a municipality. First, the plaintiff must prove on a balance of probabilities that the municipality failed to keep the sidewalk in a reasonable state of repair. Second, the plaintiff must prove the non-repair caused the accident. Third, the proof of non-repair and causation establish a prima facie case of liability against the City. The City has the onus of proving that at least one of the three defences in s. 44(3) applies. Fourth, if it cannot establish a defence, the municipality has the option and onus of proving the plaintiff caused or contributed to her injuries: Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, at paras. 25-26.
17There is no dispute that the fall caused the plaintiff’s injuries. The City’s liability will turn on the determination of the following outstanding questions:
Did the City fail to keep the sidewalk in a reasonable state of repair?
Was the failure to inspect the sidewalk a core policy decision?
Does the City have a statutory defence?
Did the plaintiff cause or contribute to her injuries?
18The hearing was conducted in accordance with the summary trial procedure under r. 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with evidence in chief adduced by affidavit, followed by cross-examination and reply. The City amended its defence shortly before the trial on motion in April 2025 to expressly plead its reliance on core policy immunity and provincial law and regulations as a defence. By order of April 17, 2025, the court permitted the amendment but without right of further discovery of the defendant. The court found the amendments did not raise a new issue and that the plaintiff had ample notice of the evidence relied upon in the trial affidavit and opinion evidence.
19The City raised an objection to the plaintiff’s trial affidavits and sought orders striking some of the evidence at the outset of trial. The affidavits included the transcripts of the three plaintiffs’ examination for discovery as an exhibit to their respective trial affidavit. The court ordered those paragraphs and exhibits incorporating the examination for discovery struck from each affidavit for several reasons. Transcripts of examinations for discovery are only used in evidence in limited circumstances as set out in r. 31.11 of the Rules of Civil Procedure. The parties would also have to navigate necessity and threshold reliability depending upon the circumstances. The transcript could be used for the purpose of impeachment, but such portions would not go in for its truth unless adopted by the witness.
20The City also objected to the inclusion of evidence of the plaintiff’s injuries from her sidewalk fall. As damages had been settled, photographs of her injuries, descriptions of her course of recovery, and details of her OHIP subrogated interest were not relevant and prejudicial through their inflammatory effect. The plaintiff submitted the evidence was nevertheless useful context and narrative for the court. I agreed the photographs of the plaintiff’s injuries and particulars of the subrogated interest were irrelevant and struck, without prejudice to the plaintiff’s ability to seek admission during trial. I permitted the brief descriptions of the plaintiff’s injuries in her affidavit to remain in evidence as helpful narrative for the court. It would not be prejudicial to the defendant given the limited and factual nature of the information and the attenuated risk of misuse of that information in this judge-alone trial.
Overview of Evidence
21Ms. Weiler’s husband, Wilhelm Weiler, and her daughter, Kimberly Ramirez, are plaintiffs to this action by virtue of their claims pursuant to the Family Law Act, R.S.O. 1990, c. F.3. Damages were resolved. Given the liability focus of this trial, the balance of these reasons principally refer to “the plaintiff” Ms. Weiler in the singular.
22The size of the surface discontinuity was the only significant factual dispute. The evidence was otherwise unchallenged or uncontroversial. It is the interpretation of the factual matrix that is in material issue.
The Fall
23The plaintiff, Fay Weiler, was 85 years old at the time of the fall and 89 years old at trial. She and her husband, Wilhelm Weiler, had been to the grocery store early on the morning of March 11, 2021. Mr. Weiler dropped the plaintiff off at the sidewalk near their house on Delphi Road so she could get some exercise and walk the short distance home.
24The weather was sunny and clear. The plaintiff was wearing running shoes and was familiar with the route. She was looking ahead in the direction she was walking when she tripped over a “large crack” between two sidewalk slabs. She was not looking down, so she did not see the crack until after she fell. She had not noticed the discontinuity before and had not tripped in that area before. She did not have any general problems with walking but was aware her right foot would have a lower or shorter step than her left foot.
25A security camera at a neighbour’s front door captured the unfortunate moments when the plaintiff’s right forefoot caught the raised edge of a sidewalk slab as she stepped forward and then fell forward onto the sidewalk. This video was the subject of careful review with the lay and expert witnesses. It appears consistent with the plaintiff’s description of her movements and the fall.
26She suffered a left distal femoral fracture and facial injuries for which she was admitted to hospital. She underwent surgery on March 13, 2021, and was discharged home after a course of rehabilitation on May 14, 2021.
The Investigation
27The plaintiff and her family put the City on notice of her injuries by report dated March 17, 2021. City Risk Management Specialist, Christine Jeffery, reviewed the report and a copy of the security camera video. The Risk Manager attended the Delphi Road sidewalk on March 26, 2021, to photograph and measure the surface discontinuity. She was satisfied from her assessment of the sidewalk and review of the security video that the plaintiff had tripped on a vertical discontinuance between two sidewalk slabs.
28The City Risk Manager also measured the surface discontinuity with a hand made device designed to measure the vertical discontinuity between two sidewalk slabs. The device consists of two blocks of wood, with a standard metal ruler affixed to one block and a black metal level line attaching the two blocks together and allows each block to move separately in a vertical plane when placed together on a surface. When both blocks are sitting on a uniformly even surface, the level line sits at “0” on the ruler. If the blocks are placed on an uneven surface, such as on either side of a discontinuity, one block shifts upwards and the black level line is then expected to show the corresponding measurement of the discontinuity on the ruler. The Risk Manager testified the City used this device for these sidewalk measurement inquiries since she began working there in 2014. She was confident it demonstrates an accurate measurement of the height difference.
29The Risk Manager took several photographs showing the device placed over the surface discontinuity, with a block on each adjacent sidewalk slab. She measured and photographed the surface discontinuity at various points along the adjacent slabs. She measured surface discontinuities of 1.3, 1.4, 1.7 and 1.8 centimetres. However, no measurement exceeded the 2 cm MMS threshold that would require the City to treat the discontinuity.
30Nevertheless, the Risk Manager sprayed the surface discontinuity with orange paint and requested a repair. She did this out of prudence given the plaintiff’s report of her fall; not because the MMS required the repair.
31Mr. Weiler and his daughter, Kimberly Ramirez, also photographed the sidewalk on March 18 and May 15, 2021, to demonstrate the surface discontinuity. They also used a measuring tape to demonstrate the size of the discontinuity in the May 15, 2021, images, which also shows the orange spray paint applied by the City Risk Manager to the sidewalk edge. Ms. Ramirez testified she made sure the tape measure was straight and level to the best of her ability when she took the photograph. She testified the surface discontinuity appeared to be at least an inch, if not more. This was at odds with her discovery evidence, where she estimated the elevation could have been an inch and half but that she could not recall. She explained she might have confused this based on memories of looking at the photographs. She was confident it was more than one inch.
32The City repaired the surface discontinuity on or about May 26, 2021, by replacing the section of sidewalk. The City’s work records in respect of this project could not be located to provide a recorded reason for the repair and other findings, if any.
Engineering Opinions
33The parties each retained professional engineers to conduct reviews of both sets of photographs and measurements along with other data such as the surveillance video of the fall. Each were qualified to offer their professional opinion on the size of the surface discontinuity and whether the sidewalk was in a state of repair at the time of the plaintiff’s fall. Neither attended for site inspections as the surface discontinuity had been removed and could not be examined.
34The plaintiff’s expert, Alex Caskanette, concluded the plaintiff’s photographs showed the measured surface discontinuity to be approximately two centimetres but was of the view this was a conservative estimate. In his view, while the City’s measurements showed readings less than two centimetres, he was unfamiliar with the measurement tool, and the readings were taken at arbitrary locations. It was possible both sets of images failed to measure the surface discontinuity at its largest maximum height. The City’s application of orange spray paint to the discontinuity after the plaintiff’s fall and the completed repair shortly thereafter would also support the probability that the discontinuity was at least two centimetres.
35Defence expert, Sam Kodsi, concluded a reasonably accurate measurement of the surface discontinuity could be obtained from the images. The surface discontinuity in the area of the plaintiff’s fall measured approximately 1.6 centimetres in height and therefore would not have required repair in accordance with the MMS.
The Sidewalk Inspection Program
36The City called four employees to testify to the City’s inspection program and what happened to it in 2020. The court heard testimony from two City Directors: Douglas MacRae, Director, Transportation & Mobility and Kyle Murray, Director, Financial Planning and Business Support. Each Director reports to a Deputy City Manager who in turn reports to the City Manager, who reports to City Council. The court also heard from Joel Gillard, Division Manager, Road Operations, who reports to the Transportation Director and has direct responsibility for sidewalk inspection and maintenance operations. The City filed thousands of pages of documents in support of the trial affidavits, generally consisting of policies, plan reviews, records, committee reports, reports to council and almost daily email updates from the City Manager to City staff between approximately March and October 2020.
37As of 2020, the City had approximately 1,500 kilometres of sidewalk to maintain and annually inspect in accordance with the MMS standards. The City usually hires and trains two summer students from Fanshawe College to complete the annual sidewalk inspection. The students generally work full time weekday hours from May until August. They are each equipped with an iPad containing a GPS locating program, a measuring tool and orange spray paint. They are tasked with walking each City sidewalk over the course of the summer to identify surface discontinuities that exceed two centimetres and require repair per the MMS. The inspector logs the identified sidewalk issue into the GPS program with details such as whether it may require milling or replacement. The inspector then marks the surface discontinuity with the orange spray paint. This system, employed by the City for sidewalk inspections in accordance with MMS standards, is similar to those described in earlier decisions: Barbeau v. City of Kitchener, 2017 ONSC 24, at paras. 28-36; Hamilton-Dawkins v. Town of Ajax, 2024 ONSC 2152, at paras. 13-17.
38Each City sidewalk is inspected in this fashion at least once annually. Delphi Road was last inspected before the incident on or about July 10, 2019. Some surface discontinuities near the area where the plaintiff fell were identified and milled about one month later in August 2019. No findings were recorded in respect of the area of the sidewalk in issue at this trial.
39As of March 2020, the City’s hiring process of the two summer students for the annual sidewalk inspection program was nearing completion, with an anticipated start date for the inspections in May 2020.
State of Emergency
40However, on March 17, 2020, the Province issued a Declaration of Emergency under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 (“EMCPA”). The Declaration identified that COVID-19 constituted a danger of major proportion that could result in serious harm to persons and declared an emergency pursuant to s. 7.0.1 of the EMCPA in the whole of the Province: Declaration of Emergency, O. Reg. 50/20.
41Beginning March 17, 2020, the Province issued, renewed and amended a series of emergency orders throughout the declared public health emergency under the authority of the EMCPA. The emergency orders addressed limiting the spread of COVID-19, continuity of critical services, supporting businesses and vulnerable sectors and providing financial relief. Initial orders identified which non-essential businesses were to close and which operations were essential and could continue with public health restrictions: Ontario, Treasury Board Secretariat, Report on Ontario’s Provincial Emergency from March 17, 2020 to July 24, 2020 (Toronto: King’s Printer for Ontario, October 14, 2020, Updated: January 16, 2024).
42On March 20, 2020, the Acting Mayor of the City followed suit and declared a state of local emergency pursuant to a “public health emergency” and s. 4(1) of the EMCPA, thereby authorizing the municipality to take action necessary to implement an emergency plan and to protect the property, health, safety and welfare of the inhabitants of the emergency area.
43The City immediately moved to minimal operations and essential services in order to manage health and safety of the employees and the community and further to the provincial orders. On April 6, 2020, the City Manager announced deferrals of start dates for temporary employees and placed casual staff on emergency leave, affecting approximately 1,100 people. The measures were explained as doing everything they could to follow the orders and precautions in place to slow the spread of COVID-19. By late April, civic administration reported an anticipated budget shortfall as a result of the pandemic. Administration sought and received approval for a budget mitigation plan that involved savings from reduced services caused in part by public health measures that affected staffing levels. As of June 2020, civic administration also sought and received approval for additional measures to further mitigate the financial pressures caused by COVID-19. These measures involved service reductions and hiring suspensions.
44The City was unable to inspect all 1,500 km of its sidewalks that 2020 season due the reduction in staff and shifts in service priorities. The City reduced its sidewalk maintenance to a minimal or emergency-only level. Mr. Gillard and two other full-time staff undertook sidewalk inspections in addition to their evolving work duties. Given their limited time and the size of the area, City staff focused on inspecting the sidewalks on main roads and/or those roads with bus routes. Delphi Road, where the plaintiff fell, was therefore not inspected in summer 2020, as it otherwise would have been.
Analysis
1. Did the City fail to keep the sidewalk in a reasonable state of repair?
45Pursuant to s. 44(1)(a) of the Municipal Act, 2001, the plaintiff must prove on a balance of probabilities that the City failed to keep the sidewalk in a reasonable state of repair: Fordham, at para. 26.
46It does not follow that because an accident happens, the sidewalk is in a state of disrepair. The standard is not perfection. A municipality does not need to keep its sidewalks perfectly level or as smooth as a billiard table. Not every crack or hole in a sidewalk amounts to a non-repair for which a municipality is liable: Anderson, at paras. 24-32.
47The parties both provided authorities that remind the court of the overarching evidentiary principle that all the circumstances must be considered when determining whether a condition of non-repair of the sidewalk existed. Factors that have been considered include whether it is a heavy or light pedestrian location, the surrounding locality, and its accident history: Worthey, at paras. 81-83; Anderson, at paras. 24-32.
48The parties agreed the MMS informs whether the City failed to keep the sidewalk in a reasonable state of repair on the facts of this case. The plaintiff argued other “standalone” factors could also remain to ground liability in addition to the MMS; however, she did not refer the court to authority for this proposition or explain how this established the City’s negligence in these circumstances.
49In any event, the primary focus of the parties’ evidence on this point was the surface discontinuity size. The MMS only requires the City to treat a surface discontinuity that exceeds two centimetres. A surface discontinuity on or within a sidewalk is deemed to be in a state of repair if it is less than or equal to two centimetres: MMS, ss. 16.1(2), (3).
50The MMS also defines the state of repair in terms of compliance with the frequency of sidewalk inspection: s. 16.1(1.1). There is no dispute a sidewalk inspection was not done. However, nothing turns on this omission unless the plaintiff proves on a balance of probabilities that the surface discontinuity measured in excess of two centimetres.
51The extent to which the MMS inform or supplant the factors that determine the reasonableness of the state of repair under s. 44(1) are unclear. A plain reading of s. 16.1 of the MMS and s. 44 would suggest that the measurement of the surface discontinuity is determinative of the question of the state of the repair of the sidewalk and therefore, a municipality’s liability in this circumstance. That said, previous decisions appear to acknowledge both common law factors and the MMS when determining the reasonableness of the state of repair, going only so far as to find that the MMS have removed the need for a “judicial rule of thumb” in respect of a reasonable height differential: Barbeau, at paras. 67-73; Cromarty v. Waterloo (City), 2022 ONSC 1322, at paras. 98-99. The Court of Appeal had occasion to review the MMS in the context of a motor vehicle incident claim under the Municipal Act, 2001, but addressed the correct interpretation of the standard expressly without deciding whether the MMS applied to the pavement discontinuity and the state of repair: Beardwood v. Hamilton (City), 2023 ONCA 436, at para. 8.
52The plaintiff did not submit that the height differential for repair for this area of sidewalk should be anything other than as established by the MMS. While the plaintiff invited me to use the “judicial rule of thumb” as an alternative guide to determining the City’s prima facie liability for the state of the sidewalk, I cannot see any justification for doing so on this record and share the view that this regulatory measurement replaces the “judicial rule of thumb”: Barbeau, at paras. 67-73. I acknowledge that the plaintiff’s expert opined that abrupt elevation changes greater than 12 mm, and therefore less than the MMS, are known to pose a hazard to pedestrians. However, he acknowledged that if this discontinuity in issue was less than two centimetres, it would have been in a state of repair per the MMS. The court heard Delphi Road is a smaller residential street with no bus routes. It was not argued that the sidewalk or neighbourhood had other characteristics such that a lower height differential than the MMS ought to have applied. In these circumstances, I find that the MMS standard of a surface discontinuity in excess of two centimetres is representative of a reasonable state of repair for this sidewalk. This is consistent with the approach taken in other decisions when determining the state of repair in conjunction with the MMS: Barbeau, at paras. 70-73; Cromarty, at paras. 97-100.
53Therefore, in these circumstances the specific question that determines whether the sidewalk was in a reasonable state of repair is whether the plaintiff has proven on a balance of probabilities that the surface discontinuity was in excess of two centimetres.
54Professional forensic engineer, Alex Caskanette, reviewed the surface discontinuity on behalf of the plaintiff. Mr. Caskanette observed that both sets of photographs showed that the measurements appeared to have been taken in arbitrary locations along the trip ledge. Based on his review of the plaintiff’s photographs, the height of the surface discontinuity was “approximately” two centimetres. The measurement did not appear to capture the discontinuity at its maximum height. He contended the orange spray paint blurred the definition of the surface edge in the image such that it was actually higher than it appeared. Therefore, the measurement was “almost one inch”, or greater than 2 centimetres.
55Mr. Caskanette acknowledged the City’s photographs showed measurements of between “approximately” 1.6 and 1.8 centimetres. He had not seen the City’s measurement device before and queried if it had been calibrated. Mr. Caskanette allowed that if the surface discontinuity measured less than 2 centimetres as shown on the City’s measurements, then as per the MMS, the area of the fall was in a “state of repair” and no remediation was required. However, he postulated that the City’s actions in flagging the discontinuity and later replacing the slab supported the probability that the maximum height of the discontinuity was “at least two centimetres” at the time of the fall. Further, with the failure of the City to meet the mandated MMS inspection frequency in 2020, it appears the sidewalk condition was allowed to deteriorate into a condition where it posed a trip hazard. A timely inspection as required would have allowed for implementation of a permanent solution and avoided the plaintiff’s fall.
56Consulting forensic engineer, Sam Kodsi, reviewed the surface discontinuity on behalf of the defendant. Mr. Kodsi concluded that reasonably accurate measurements of the surface discontinuity could be obtained from the City’s images and that these readings demonstrated that it would not have required repair according to the MMS. Mr. Kodsi compared the video with the sidewalk photographs and concluded the plaintiff tripped near the middle of the sidewalk slab. In Mr. Kodsi’s view, the surface discontinuity in that area measured approximately 1.6 centimetres. He agreed the orange spray paint on the discontinuity limited the definition of the raised edge in the images taken by the plaintiff. He agreed with Mr. Caskanette’s opinion that the discontinuity appeared to be approximately two centimetres. But unlike Mr. Caskanette, Mr. Kodsi concluded that the apparent height was likely overstated. In addition to the obscured definition, the height and angle from which the camera pointed down to capture the image also exaggerated or skewed the measurement.
57In Mr. Kodsi’s view, the measurements as recorded with the City’s device were more reliable than as shown on the plaintiff’s images. The device was not a carpenter’s square and no level was used, but it did show close to a 90 degree or perpendicular angle, making for a more accurate height estimation.
58The plaintiff submits she has proven on a balance of probabilities that the City failed to keep the sidewalk in a reasonable state of repair. The “approximate” discontinuity measurement of two centimetres as demonstrated in her evidence is likely conservative. The City also cannot establish that its measurements of the discontinuity are reliable. The whole of the circumstances establishes the state of non-repair. The City’s own marking and eventual replacement of the sidewalk slab support this conclusion.
59The City submits the plaintiff has failed to discharge her onus. The plaintiff cannot establish that the surface discontinuity exceeded two centimetres as required by the MMS. The court may therefore conclude the sidewalk was in a reasonable state of repair and the action should be dismissed. The plaintiff’s measurements are unreliable, as shown by expert opinion, including the plaintiff’s own expert. The steps taken by the City to first flag and then repair the discontinuity are not an admission of either that the sidewalk was in disrepair or that the size of the defect exceeded two centimetres.
60I have carefully considered all the evidence provided by the parties on this record. This has been a source of anxious consideration given the compelling images of the plaintiff’s fall and the approximation of the plaintiff’s measurement to the MMS repair threshold. However, I am not persuaded the plaintiff has met the onus of establishing on a balance of probabilities that the surface discontinuity was in excess of two centimetres. Plaintiff counsel’s compelling submissions cannot bridge the evidentiary shortfall to this meaningful empirical requirement.
61At its highest, the plaintiff’s evidence supports a height estimate of “approximately” two centimetres. There is no support for Ms. Ramirez’s recollection of the raised edge being more than one inch. In any event, this approximation of two centimetres falls short of the MMS standard for the measurement to be “in excess” of two centimetres. While this may appear to be an arbitrary measurement to an observer, those terms are in the regulation for a purpose and are to be given their plain and ordinary meaning by this court.
62I am not persuaded that these circumstances require the court to engage in how one weighs the evidence or determines the question with an approximate measurement just at, but not over the cusp, of requiring repair. In my view, the circumstances of the City’s photographs of its measurements would tend to support Mr. Kodsi’s position that the plaintiff’s approximate measurement, just at the cusp of the repair threshold, was an overestimation. The plaintiff clearly made good faith efforts to make precise measurements of the raised sidewalk edge. However, I agree that where the tape measure does not appear to be sitting at horizontal plane, the orange spray paint obscures the appearance of the surface edge and the angle of the image (as shown by the shadow) would all tend to overestimate the one’s perception of the measurement as shown on the photograph.
63I do not accept that the City’s subsequent actions in first marking and then repairing the sidewalk make it probable that the discontinuity was in excess of two centimetres or that these acts were otherwise an admission of a state of non-repair in the circumstances: Sandhu v. Wellington Place Apartments, 2008 ONCA 215, at paras. 54-63; Furlong v. Cambridge (City), 2009 72077 (Ont. S.C.), at para. 19. The Risk Manager explained she decided to mark the discontinuity and submit a repair request out of prudence, not because it was deemed to require repair per the MMS. I have no reason to discount her straightforward and direct testimony. This is a reasonable explanation where the Risk Manager was responding to the plaintiff’s notice of her injuries for which she was hospitalized.
64In contrast, the City’s images demonstrated measurements that are below the MMS repair threshold by a meaningful degree, casting further doubt on the perceived “approximation” of two centimetres in the plaintiff’s images. Mr. Kodsi was able to scale these photographs to estimate height differentials along the surface discontinuity in a range between 1.2 and 1.7 centimetres, with 1.6 centimetres being in the area that was suggested to correlate with what is seen on the security camera. These compare favourably with the measurements as recorded by the Risk Manager. Unlike the base of the measuring tape in the plaintiffs’ images, the ruler demonstrably sits on a horizontal plane, and the wooden device demonstrates the corresponding height of the surface discontinuity on the affixed ruler. I accept that the device, while unusual, produced reasonably reliable measurements.
65I therefore conclude the plaintiff failed to satisfy her onus of proving that the City failed to keep the Delphi Road sidewalk in a state of repair that was reasonable in the circumstances. While there is no doubt that her trip over the surface discontinuity caused her injuries, I find the surface discontinuity between the two sidewalk slabs ranged from between 1.2 and 1.7 centimetres. Having reviewed the surveillance in combination with the experts’ analysis of the frames in cross reference to the photographs, I accept that the plaintiff’s foot struck the surface discontinuity in the area where it measured at 1.6 centimetres. In any event, the discontinuity by all measurements was deemed to be in a state of repair within the MMS, which I have found to be reflective of the standard for this sidewalk.
66If I am in error in this finding, the City will have failed to keep the sidewalk in a reasonable state of repair as the defect measured in excess of two centimetres and it cannot point to having conducted the MMS sidewalk inspection. There is no question the non-repair caused the plaintiff’s injuries. I will therefore proceed to determine whether the City has a defence to the plaintiff’s prima facie liability claim in the alternative to the primary disposition of this claim.
2. Was the failure to inspect the sidewalk a core policy decision?
67The City acknowledges it has a statutory duty to keep the sidewalk in a reasonable state of repair and that in the normal course, a failure to follow one’s own inspection program or policy would likely be fatal to a City’s defence against a negligence claim: Worthey, at para. 91; Cerilli v. Ottawa (City), 2008 ONCA 28.
68However, the City submits that this is one of those rare circumstances where it can rely on s. 450 of the Municipal Act, 2001 for immunity from liability arising from its failure to undertake the sidewalk inspection in 2020. This protects the municipality from a negligence claim in connection with the exercise or non-exercise of a discretionary power or the performance or non-performance of a discretionary function, if the action or inaction results from a policy decision made in good faith.
69Core policy decisions by public authorities, like the City, are shielded from negligence liability. Core policy decisions of the legislative and executive branches involve weighing competing economic, social, and political factors and conducting contextualized analyses of information. These are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith. Core policy decisions are not based only on objective considerations but also require value judgments on which reasonable people can and do legitimately disagree. If courts were to weigh in, they would be second-guessing the decisions of democratically elected government officials and simply substituting their own opinions: Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55, at paras. 44, 51.
70Conversely, there are good reasons to hold public authorities liable for negligent activities falling outside this core policy sphere where they cause harm to private parties. Municipalities function in many ways as private individuals or corporations. Citizens have ever-increasing reliance on public officials who are charged with the implementation of various policies. Municipalities are therefore accountable to citizens for their operational activities: Nelson, at para. 48.
71The question of what distinguishes a core policy decision from an operational decision is a “vexed one” for which the Supreme Court of Canada provided renewed guidance in Nelson by way of a four-factor contextual framework that helps to assess the nature of the decision: (1) the level and responsibilities of the decision maker; (2) the process by which the decision was made; (3) the nature and extent of budgetary considerations; and (4) the extent to which the decision was based on objective criteria. These factors are assessed and weighed with a focus on the nature of the government decision, the extent to which it was based on public policy considerations and the extent to which the underlying separation of powers rationale is engaged: Nelson, at paras. 49-50, 54-56 and 60-61.
72The City submits the emergency declaration and provincial orders authorized and required it to make necessary, urgent and discretionary decisions to reduce services for health, safety and budgetary reasons. The demands of the unprecedented crisis meant the City used its discretion to not inspect residential sidewalks during the provincial emergency. The City submits this decision aligns with the factors considered within the Nelson framework such that core policy immunity applies: Nelson, at para. 3. Notwithstanding the failure to perform the MMS sidewalk inspection, it follows that the City is shielded from liability for its failure to keep the sidewalk in a reasonable state of repair.
73The plaintiff submits the City failed to demonstrate that its failure to inspect the sidewalk was the result of a core policy decision. The plaintiff contends there is, in fact, no evidence the City made a core policy decision with respect to its duty to carry out sidewalk inspections. No “policies” were produced that related to any decisions made about impacts to the sidewalk inspection for 2020. At most, a decision was made by those in authority not to hire students. No decision was communicated by those in authority that the sidewalks would therefore not be inspected. To the extent there were “decisions”, these were all operational in nature, vague in scope and evolved with the nature of the pandemic. In any event, the City cannot use a “policy” to contract out of its statutory duty to maintain its sidewalk in a reasonable state of repair: Kennedy v. Waterloo County Board of Education (1999), 1999 3746 (ON CA), 45 O.R. (3d) 1 (C.A.).
74The court must consider the extent to which the City’s decision not to undertake the sidewalk inspection was based on public policy considerations and the extent to which those considerations impact the underlying purpose of the immunity: to protect the legislative and executive branch’s core institutional roles and competencies necessary for the separation of powers: Nelson, at para. 60.
75In applying the Nelson framework and weighing those factors, I conclude that the evidence overwhelmingly demonstrates the decision not to inspect the sidewalk was based on public policy considerations for which the City should not be second-guessed by the court. Any liability arising from failure to inspect the sidewalk is subject to core policy immunity.
76The nature of this decision must be assessed within the context of the states of emergency declared by the Premier of Ontario and the City further to the extraordinary emergency management powers under the EMCPA. The legislation authorized democratically elected officials with sweeping discretionary powers that clearly engage with weighing economic, social and political factors and making value judgments.
77The purpose of making emergency orders under the EMCPA is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms: ss. 7.0.1, 7.0.2(1). The City mayor was similarly empowered to declare an emergency and to take such action and make such orders considered necessary and not contrary to law to implement the City’s emergency plan: s. 4(1). Both the provincial and municipal level of government had the responsibility and discretion to implement plans and take actions to protect the property, health, safety and welfare of individuals for the duration of the declared emergency. It is well-recognized that the pandemic represented an unprecedented challenge for governments. Individuals, families, and communities looked to governments to take urgent action to reduce the transmission of the virus, mitigate its threat, and manage its consequences: Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134, 166 O.R. (3d) 81, at para. 1, leave to appeal refused, [2023] S.C.C.A. No. 40711.
78It would be unrealistic to expect that the City could produce a “policy” that evidenced a formal process that specifically examined a cost/benefit assessment and review of the consequences of suspending the sidewalk inspection program to the plaintiff’s satisfaction. In my view, such indicia were not required in these circumstances and misplaces the focus of “the decision”. The sidewalk inspection program was a casualty of the urgent measures taken by the City in its process of prioritizing budget allocations and municipal services when they also had to balance measures to alleviate the outbreak with maintaining essential services. The word or label “policy” can be misleading and is not determinative. While core policy might be expected to be reduced to writing, this may depend on the public authority and the circumstances. The focus is on the nature of the decision itself rather than the format or the label for the decision: Nelson, at para. 59. As I shall explain, I am satisfied the suspension of the sidewalk inspections was the result of a decision-making process within the executive hierarchy that was then authorized by democratically accountable officials as part of the civic administration’s recommendations to manage the financial impacts of COVID-19. While it was done in a quick fashion with broad directions, this is consistent with the nature and purpose of the state of emergency. The decision-making process that led to the suspension of sidewalk inspections nevertheless has the hallmarks of deliberation and transparency. It is “core policy” in nature.
79The state of emergency and provincial orders caused the City to move to minimal operations and essential services. Review of communications and reports throughout the material time demonstrate efforts by the civic administration to assess the impact of the public health emergency on the organization and propose measures to continue services, support the public health response and manage the expected financial shortfalls. Review of these reports shows that sidewalk inspections were only one of countless services suspended or reduced by the emergency and that competing interests and responsibilities were being continually evaluated. I am satisfied that the sidewalk inspection was identified and considered by those decision-makers charged with assessing and balancing public policy considerations in the course of the ongoing, sweeping and complex decisions made by the City during this period of time. The level of decision-making authority involved speaks to the decision being core policy in nature: Nelson, at para. 62.
80The City Transportation Director participated in the City’s “COVID Team” which was led by the City Manager to address the ongoing impacts throughout City operations caused by the state of emergency. The Transportation Director was also involved in preparing service area planning updates on affected services and the financial impacts within that portfolio. In early April 2020, City staff identified that transportation would focus its operations on an essential services model. Sidewalk inspections using students, among other regular seasonal operations, were identified in the planning document as a delayed service.
81Pursuant to the EMCPA, the Province issued Work Deployment Measures for Municipalities, O. Reg. 157/20 (“Work Deployment”), on April 17, 2020. The regulation authorized municipalities to take work deployment and staffing measures to prevent, reduce or mitigate the effect of COVID-19 on critical municipal services delivered by its employees. Municipalities were also authorized to cancel or postpone services not related to responding to, preventing or alleviating the outbreak of the virus or services that are not deemed to be critical by the municipality’s emergency plan: Work Deployment, ss. 3, 4.
82In late April 2020, the City advised its departments that it would not hire students that summer. The City Manager reported that although the City immediately moved to minimal operations, the provincial orders and pandemic impacts to service delivery and day-to-day operations required further staff reductions.
83The City’s Strategic Priorities and Policy Committee (“the Committee”) is established by Council and comprised of the mayor and members of Council. In April 2020, the City Manager and Chief Financial Officer advised the Committee of significant financial challenges for many individuals, businesses and the City caused by the public health emergency. The City’s projected budgetary impact was estimated in the range of $22 million to $33 million and proposed priorities and measures to provide relief and manage the anticipated economic shortfall. The Committee was reminded that the Municipal Act, 2001 prevents a municipality from running an operating budget deficit and from issuing debt to fund deficits. Civic administration sought the Committee’s direction to finalize the recommended approach to mitigate the projected budget shortfall. The Committee was told additional hiring of non-critical positions was suspended and all civic service areas were directed to limit discretionary spending wherever possible. At that time, the estimated net impact of the pandemic to roadway maintenance was projected as cost savings due to anticipated delays in hiring and reduced expenditures. Committee minutes from April 28, 2020, show the Committee unanimously supported a motion to accept the financial report and support this direction. City Council minutes also confirm that council in turn unanimously approved the financial report and recommendations for mitigation of the budget shortfall as proposed at its meeting on May 5, 2020.
84In June 2020, civic administration reported taking actions to minimize financial impacts on the City while balancing essential service levels with the health and safety of staff and the community. The City had therefore significantly reduced the number of temporary and casual employees to be hired for the summer season. Adjustments to services caused by social distancing and other provincial orders also had service level and financial impacts. Civic administration proposed a reduction in transportation and roadway services, including sidewalk repairs, to be on an emergency basis only. On June 23, 2020, the City’s Strategic Priorities and Policy Committee voted in unanimous support of civic administration’s recommendation. City council minutes again confirm the council unanimously approved the financial report and recommendations, including the reduction in sidewalk maintenance, at its meeting on June 29, 2020.
85I also find the EMCPA and regulations authorized the City to exercise discretion to not undertake sidewalk inspections, which would be otherwise contrary to its competing statutory duties under s. 44(1) of the Municipal Act, 2001. I find that Kennedy does not apply to this factual matrix as urged by the plaintiff. Kennedy concerned an ostensible school board core policy decision to remove bollards that were involved in a catastrophic injury to the plaintiff while on school property. Among other findings, the Court of Appeal held the school board could not make a policy decision to absolve itself of or reduce its statutory duty of care under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
86In contrast, the provisions of the Work Deployment regulation, (which was in effect as of April 16, 2020) in combination with its authorizing statute, the EMCPA, expressly authorize the City to reduce its services at its discretion and notwithstanding a countervailing statutory duty. Section 3 expressly authorizes a municipality to take any reasonably necessary measure with respect to work deployment and staffing to respond to the public health emergency. Section 4 then expressly gave the City the broad authority to opt out of its Municipal Act, 2001 duties in these exigent circumstances. Section 4(1) states:
“Without limiting the generality of section 3, and despite any other statute, regulation, order, policy, arrangement or agreement, including a collective agreement, municipalities are authorized to do the following: … 5. Cancel or postpone services that are not related to responding to, preventing or alleviating the outbreak of the Virus, or services that are not deemed to be critical by a municipality’s emergency plan” [emphasis added].
87The Work Deployment regulation was issued pursuant to the province’s emergency order powers under ss. 7.0.2(4) and 7.1 of the EMCPA. Section 7.2(4) provides than in the event of a conflict between an order made under these provisions of the EMCPA and “any statute, regulation, by-law, other order or instrument of a legislative nature”, the EMCPA order prevails unless the other statute or regulation specifically provides that it is to apply despite the EMCPA: s. 7.2(4). The plain meaning of these provisions demonstrate the City could reduce or suspend its s. 44(1) duty under the Municipal Act, 2001 while this regulation and the public emergency were in effect. This is not absurd and is entirely consistent with the nature and purpose of the EMCPA and its process that requires transparency and accountability, such as by way of reports to the legislature after termination of the emergency: s. 7.0.10.
88The decision was made in the context of taking urgent action in a public health emergency that required prompt decisions. As evidenced by civic administration’s reports to the Committee and Council, those prompt decisions involved value judgments and consideration of competing economic, social, political and health factors in an environment of evolving information about the disease and its impact. The decision-making closely involved both the executive hierarchy and democratically elected officials: Nelson, at para. 62. While the process was swift and global in its approach, it was deliberative, involved input from the department about the impact on its services and was intended to have broad application: Nelson, at para. 63. The decisions involved the City’s budgetary allotments and a mitigation plan for the projected financial shortfall and are therefore also more likely to fall within the core competencies of the legislative and executive branches: Nelson, at para. 64. The more a government decision weighs competing interests and requires making value judgments, the more likely that the separation of powers will be engaged because the court would be substituting its own value judgment: Nelson, at para. 65. In these circumstances, it is not for this court to weigh in on whether the suspension of sidewalk inspections was reasonable in the circumstances.
89For these reasons, I am satisfied the decision-making process that led to the suspension of sidewalk inspections bears all the hallmarks of being subject to core policy immunity. These are decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor taken in bad faith.
3. Does the City have a statutory defence?
90The City submits the same evidence also raises a defence under each of the three statutory defences under s. 44(3) of the Municipal Act, 2001. These are known as the “reasonable knowledge defence”, the “reasonable steps” defence and the “minimum standards” defence: Hamilton-Dawkins, at para. 33.
91Of the three statutory defences, I do not agree that either the “reasonable steps” or “minimum standards” defences under ss. 44(3)(b) or (c) apply.
92The City did not point to any “reasonable steps” it took to prevent the default from arising to raise a defence under s. 44(3)(b). In fact, its argument was that it could not take those steps, such as an inspection, because of the emergency measures. The “minimum standards” defence under s. 44(3)(c) requires the City to have shown that “those standards have been met”. The MMS speaks to the state of repair both in terms of the surface discontinuity size and the inspection frequency. The City did not complete the inspection. Therefore, the City did not, in fact, meet the minimum standards.
93However, the City need not prove all three defences to be able to avail itself of the statutory defence: Hamilton-Dawkins, at para. 34. The defendant has satisfied me on a balance of probabilities that it has a defence pursuant to s. 44(3)(a): the City did not know and could not reasonably have been expected to have known about the state of repair because it did not undertake a sidewalk inspection.
94It may seem irrational, perhaps outrageous, that the City can rely on a lack of actual knowledge by reason of its failure to conduct an inspection. I am mindful of the caution that a municipality should not readily benefit from its own failure to document or properly circulate a complaint or from a policy that insists on written complaints: Hamilton-Dawkins, at paras. 38-42.
95However, this conclusion is confined to the very unique circumstances of the public health emergency within this factual matrix, and I suspect would fail on efforts at a broader application. The same evidence and analysis that forms the foundation for the core policy immunity conclusion applies with equal force to my conclusions about the availability of this defence. The City had no actual knowledge of the surface discontinuity until after the plaintiff fell. In these unique circumstances, where the inspection program was not undertaken due to emergency measures, the City could not reasonably have been expected to have known about the state of the sidewalk. For the reasons previously explained, as this decision occurred within the context of a public health emergency, the regulations and provisions of the EMCPA allowed for the City to reduce its services notwithstanding the City’s countervailing statutory duty under s. 44(1) of the Municipal Act, 2001.
4. Did the plaintiff cause or contribute to her injuries?
96The City concedes there was nothing remarkable about the plaintiff’s conduct but submits there is still a basis for a modest reduction in damages by 25% for her failure to take reasonable care. She admitted to looking straight ahead rather than towards the pavement. The plaintiff contends there is no evidence to support a reduction and that the City has not met its onus.
97The plaintiff was dressed appropriately for the weather. Her running shoes were appropriate for the clear sidewalk. She was walking at a reasonable pace, although her gait seemed somewhat slow or restricted as if by mild weakness. The defence expert, Mr. Kodsi, acknowledged there was nothing in the plaintiff’s manner of walk or dress that would cause him to conclude her conduct had a role in her fall. The plaintiff acknowledges looking straight ahead as opposed to slightly down towards the pavement, for which other courts have found contributory negligence: Barbeau, at para. 75. However, from my review of the video, I cannot conclude that anything about the plaintiff’s slow, deliberate pace while looking ahead, was unreasonable. The defendant has not demonstrated the plaintiff was contributorily negligent.
Disposition
98The action is dismissed for the foregoing reasons.
99If the parties are unable to resolve costs, the defendant shall deliver its written submissions by May 15, 2026 and the plaintiffs their written submissions by June 5, 2026. There is no reply without leave. The written submissions shall not exceed three (3) pages exclusive of bills of costs or costs outlines and offers to settle. In the event no submissions are received within these timeframes the parties are deemed to have settled costs.
Justice K. Tranquilli
Released: April 13, 2026