At our weekly meeting, Chris MacDonald discussed the recent Superior Court decision in Fernandez v. Toronto (City of), 2021 ONSC 5106. In this decision, Justice Perell considered a summary judgment motion brought by the defendants to dismiss the plaintiff’s action.
On the morning of December 11, 2014, after a night of heavy snowfall, the plaintiff slipped and fell on a temporary walkway that ran adjacent to a construction site. She was able to get up and continue on her walk to a doctor’s appointment, and later used the walkway again while on her way back from the appointment.
The plaintiff sued the City of Toronto, the TTC and Bondfield for damages for her injuries. The plaintiff alleged that TTC and Bondfield were “occupiers” of the walkway under the meaning of the Occupiers’ Liability Act (“OLA”), and that they were negligent in failing to ensure that walkway was reasonably safe for persons using it.
The plaintiff further alleged that the City of Toronto was grossly negligent for failing to keep the walkway in a reasonable state of repair, contrary to section 42 of the City of Toronto Act, 2006.
The construction site was part of a project to extend Toronto’s subway system. As part of a project to extend Toronto’s subway system, the Toronto Transit Commission (“TTC”) hired Bondfield Construction Company Limited (“Bondfield”) as a general contractor.
A provision in the construction contract between TTC and Bondfield stipulated that Bondfield was responsible for snow and ice removal from sidewalks and paved areas adjacent the construction site. Despite this provision, there was some dispute amongst the defendants about who was responsible for maintaining and removing snow from the walkway.
The Court considered three primary issues:
- Was this case was appropriate for summary judgment?
- Were the TTC and/or Bondfield negligent for failing to ensure the walkway was reasonably safe for persons using it, in breach of the OLA?
- Was the City of Toronto grossly negligent for failing to keep the sidewalk in a reasonable state of repair?
Issue 1: Was this case was appropriate for summary judgment?
Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if it is satisfied there is no genuine issue requiring a trial with respect to a claim or defence. In its analysis, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may weigh the evidence, evaluate the credibility of the deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial.
After considering leading jurisprudence and guiding principles for summary judgment motions, the Court concluded that the case was appropriate for summary judgement as there was ample evidence to fairly and proportionately resolve the issues at hand.
Issue 2: Were the TTC and/or Bondfield negligent for failing to ensure the walkway was reasonably safe for persons using it, in breach of the OLA?
TTC and Bondfield conceded they were occupiers under the OLA. Accordingly, their duty of care and liability, if any, arose from the OLA.
The Court noted that the duty of care imposed on the occupier does not extend to the removal of every possible danger. The standard of care is one of reasonableness and not perfection.
If a plaintiff is injured on the premises, to succeed in an occupier’s liability claim, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury.
The Court concluded that the evidence established there was no negligence and that the defendants’ conduct was reasonable. Prior to the accident, snow removal work had been underway for two or three hours before the plaintiff arrived at the walkway. The plaintiff watched as the snow removal work took place and there was no basis upon which to conclude that the work was done carelessly.
Issue 3: Was the City of Toronto grossly negligent for failing to keep the sidewalk in a reasonable state of repair?
Pursuant to 42 of the City of Toronto Act, 2006, the City of Toronto is responsible for maintaining roads, bridges, and sidewalks in a state of repair that is reasonable in the circumstances; however, except in case of gross negligence, the City is not liable for a personal injury caused by snow or ice on a sidewalk.
The Court stated:
Users of the sidewalk are entitled to have the sidewalk kept in a reasonable state of repair; however, perfection is not the standard and the test is reasonableness. The gross negligence standard takes account of the fact that it takes time for the municipality to clear every sidewalk in a city following a snowfall or other inclement weather.
While the City disputed that it was, in this case, responsible for maintaining the walkway as part of its responsibilities under section 42 of the Act, the Court held that even if the City was responsible, there was simply no evidence of negligence or gross negligence.
As discussed above, the Court found that the case could be decided summarily and that a trial was not necessary to do justice. Justice Perell granted the defendants’ summary judgment motion and the action was dismissed.
With respect to costs, the Court accepted that the parties could make submissions if they could not come to an agreement. However, His Honour mentioned he was inclined to dismiss the plaintiff’s actions without costs, as the litigation was prolonged by infighting amongst the defendants with respect to who was contractually and legally responsible for maintenance of the walkway and snow removal.