Category: Municipal liability

Marderosian v. City of Niagara Falls, 2024 ONSC 1043

The plaintiff fell during the winter when she stepped off of a municipal sidewalk onto the snow covered front lawn of the property abutting the sidewalk to get around a group of people waiting for a bus. She tripped over a tree root and fell, injuring herself. The plaintiff notified the City of the incident 70 days later. The City brought a successful motion for summary judgment.

The motion judge held:

(1) The plaintiff’s late notice barred the claim as she did not have a reasonable excuse for the delay. The plaintiff was physically and mentally capable of investigating her rights during that period and she failed to rebut the presumption of prejudice to the City.

(2) The City met the applicable standard of care in removing snow form the sidewalk on the day before the incident.

(3) In the event the plaintiff fell on a City-owned road allowance, the City did not owe the plaintiff a duty of care in respect of her use of the road allowance. The plaintiff chose to depart from the sidewalk to get around people waiting for a bus. The City had no control over the persons standing on the sidewalk and was not required to plow the margins of the sidewalk.

Beardwood v. Hamilton (City), 2023 ONCA 436

This action arose from an accident wherein the plaintiff fell off his motorcycle due to a longitudinal discontinuity or lip in the pavement of a municipal roadway. At trial, Justice Krawchenko found that the existence of the discontinuity at an irregularly angled intersection created a risk of harm to ordinary reasonable drivers such as the plaintiff, and that the accident was caused by the plaintiff’s motorcycle coming into contact with the lip. However, Justice Krawchenko further held that the City had a complete defence under s. 44(3)(c) of the Municipal Act as it complied with the Minimum Maintenance Standards (MMS) at the material time, and therefore dismissed the plaintiff’s claim as against the City.

On appeal, the plaintiff disputed that the MMS apply to the pavement discontinuity that caused the accident, and in the alternative argued that the City failed to meet its onus of proving compliance with the MMS. The Court of Appeal held that the trial judge made a palpable and overriding error in in holding that the evidence established that the height of the discontinuity met the MMS. The City failed to introduce evidence that the discontinuity complied with the MMS, and it was insufficient for the City to simply critique the evidence of the plaintiff and the plaintiff’s expert. The defences under s. 44 of the Municipal Act are positive defences that require a municipality to prove they have met a particular burden, rather than a reverse onus on a plaintiff. The Court of Appeal further held that the trial judge committed a palpable and overriding error in finding the plaintiff 50% responsible for the accident. The Court of Appeal held that the City was 100% liable for the accident as there was insufficient evidence to establish contributory negligence on the plaintiff’s part.

Strilchuck v. Tecumseh (Town of), 2022 ONSC 5841

This personal injury action arose from a slip and fall that occurred on a sidewalk owned by the defendant municipality. The plaintiff was walking her dog and slipped on stones laying on the sidewalk. The defendant brought a summary judgment motion seeking to have the action dismissed. The plaintiff brought a motion in the alternative for summary judgment with respect to liability on the basis that the defendant failed to keep the sidewalk in a reasonable state of repair, and that the defendant could not utilize the defences set out in s. 44(3) of the Municipal Act. Justice King granted the defendant’s motion and dismissed the action. Justice King found that the condition of the sidewalk as referenced in the evidence was such that a person using ordinary care could pass safely. The stones did not cover the width of the sidewalk at any point, and the stones were not stacked on each other. Any person could have passed using ordinary care and the stones did not constitute an unreasonable state of non-repair. Justice King affirmed that it would be impossible to require municipalities to maintain all sidewalks to a perfect level.

Psaila v. Kapsalis, 2022 ONCA 37

The plaintiff was injured in a motor vehicle accident, and brought an action for damages against the City of Toronto and two individual defendants. The allegations against the City related to its design of the intersection where the accident occurred. The accident occurred on March 28, 2015 and the City did not receive notice until April 2, 2018, which far exceeded the 10-day notice requirement set out in s. 42(6) of the City of Toronto Act. The City brought a successful motion for summary judgment in which Justice Vella held that the claim was barred since the plaintiff did not have a reasonable excuse for failing to provide notice in a timely manner. The Court of Appeal upheld Justice Vella’s decision.

Fernandez v. Toronto (City of), 2021 ONSC 5106

The plaintiff slipped on snow/ice on a walkway near a construction site for the City of Toronto’s extension of the TTC subway system. She had witnessed contractors cleaning snow in the area just before walking through the walkway. She slipped and fell on what she believed to be a snow-covered patch of ice. The plaintiff sued the City of Toronto, Toronto Transit Commission, and the general contractor, Bondfield Construction Company.

The defendants brought a motion for summary judgment. Justice Perell granted the motion and dismissed the action, holding that there was no breach of duty under the Occupiers’ Liability Act, and no gross negligence by the City. Justice Perell found that the systems in place for winter maintenance were reasonable.

Despite disagreement between the defendants as to whether the winter maintenance policy was strictly followed, Justice Perell found there was no genuine issue requiring a trial about that issue because as a matter of fact the walkway conditions were addressed before the plaintiff reached the area. Justice Perell specifically noted that there was no suggestion that the plaintiff was careless in crossing the walkway, rather this was a case of an accident occurring without anyone being careless.

Miller et al. v. Canadian National Railway et al., 2021 ONSC 4806

The plaintiff was injured when he fell 15 feet into a rocky creek bed while taking a shortcut over a railway trestle. He sustained serious injuries and sued Canadian National Railway (which owned the railway lands) and the City of Quinte West (which conducted certain lawn maintenance on adjacent land). The plaintiff sued the City on the basis that it ought to have made access to the railway lands more difficult. The plaintiff’s primary argument against the City turned on the City having mowed a large patch of grass that led to the rail lands.

The City brought motion for summary judgment, which CNR did not oppose. Justice MacLeod granted the City’s motion and dismissed the claim against it. He found that there could be no liability against the City as it did not occupy the land in question had no other duty of care with respect to the CN lands. Further, the City did nothing on adjoining lands which created a hazard of materially increased the risk of injury.

Petitpas v. Kingston (City), 2021 ONSC 1521

The plaintiff fell on a sewer grate hole and sued the City of Kingston for damages. The City brought a summary judgment motion, in which it relied on an expert report which concluded that the sewer grate met the applicable Ontario Provincial Standards Drawing when it was installed in 2001. Justice Rogers dismissed the motion, reasoning that the City did not lead any evidence that: (1) the sewer grate was appropriate and met standards in place as of the time of the subject fall; and (2) the sewer grate was in a proper state of repair as of the time of the subject fall.

Beniuk v. Leamington (Municipality), 2020 ONCA 238

The plaintiffs are homeowners in the municipality of Leamington. They allege that their home suffered property damage as a result of increased truck traffic on the road near their home. They argued, among other things, that s.44 of the Municipal Act applied and the municipality was liable for damage to the home. The claim was dismissed on summary judgment. On appeal, the Court held that the matter should be addressed at trial and that the language of s. 44 did not necessarily exclude such a claim.

Lloyd v. Bush, 2020 ONSC 842

The plaintiff sustained injuries in a motor vehicle accident and sued the County of Lennox and Addington and the Town of Greater Napanee (and others) for the subject roadway being in a state of non-repair due to snow. Justice Mew held that the road in question was in a state of non-repair. He was persuaded by the following facts: (a) the accident occurred at a “hot spot” known to be hazardous in winter conditions; (b) a specific concern about the condition of the road had been expressed by a Road Supervisor just 4.5 hours before the accident and he felt the road needed immediate attention; (c) despite the Road Supervisor’s concern, there was not evidence that the issue had been adequately responded to before the accident occurred; (d) it was the evidence of some witnesses that shortly after the accident, conditions were slippery and there was no evidence of winter maintenance operations; (e) a witness testified that on his arrival at the scene less than 30 minutes after the accident he saw no evidence of salt or sand application; and (f) the attending police officer saw no indication that the road had been ploughed, sanded, or salted. Justice Mew apportioned 50% liability to the County and the Town, 33% liability to the defendant truck driver, and found the plaintiff 17% contributorily negligent.

Onley v. Town of Whitby, 2020 ONSC 20

The plaintiff suffered an electrical shock injury at a soccer game at a municipal park. She sued the Town of Whitby for damages. Justice Koke dismissed the claim, holding that the harm to the plaintiff was not a known or reasonably foreseeable harm. Even if the harm had been reasonably foreseeable, Justice Koke found that the Town had taken reasonable steps to ensure the safety of park users. With respect to damages, Justice Koke would have awarded $85,000 in damages for PTSD, $50,000 for future PTSD treatment, and $18,195.75 for past expenses.