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Compliance with Minimum Maintenance Standards Assists in Establishing Statutory Defences Under Section 42(3)

On February 16, 2018, the Ontario Court of Appeal released its reasons in Kidanemariam v. Toronto (City), 2018 ONCA 167 dismissing the plaintiff’s appeal of the lower court’s dismissal of the action on summary judgment.

The plaintiff alleged that she tripped and fell as a result of a sidewalk discontinuity on Wellesley Street East in Toronto. The motion judge found that the plaintiff fell on “a section of the sidewalk that was not intended for the passage of pedestrians” and that was constructed of square pavers presumably intended to be aesthetically pleasing. One of the pavers was missing at the location of the alleged incident.

The City of Toronto (the “City”) moved for summary judgment dismissing the plaintiff’s claim on the basis of the statutory defences contained in section 42(3) of the City of Toronto Act, 2006 (the “Act”):

  1. the City did not know and could not reasonably have been expected to have known about the state of disrepair (the “reasonable knowledge” defence);
  2. the City took reasonable steps to prevent the default from arising (the “reasonable steps” defence); or
  3. the City complied with the applicable minimum maintenance standards (“MMS”) at the time the state of disrepair arose (the “MMS defence”).

The motion judge accepted the field investigator’s records and sidewalk foot inspection records [which did not identify any state of disrepair at or near the location of the plaintiff’s fall] as evidence that the City had completed regular twice weekly drive-by patrols of Wellesley Street East and the annual sidewalk walk-over inspection as required by the MMS. On that basis, the motion judge found that the “reasonable steps” defence applied, as well as the “reasonable knowledge” defence. The motion judge found that City staff had done what was required to learn of the broken or missing paver and acted reasonably to discover faults in the sidewalk.

The motion judge found it significant that the plaintiff chose to walk on a section of the sidewalk not intended for passage of pedestrians, proceeding to the curb next to a newspaper box where she allegedly placed her foot where the paver should have been. The motion judge found that, given the location of the missing paver, it would not necessarily have been identifiable as an impediment to safe passage even if it had been discovered by City staff. Further, the plaintiff bore the responsibility of looking where she was going having moved away from the expected path of pedestrians.

The Ontario Court of Appeal agreed with the motion judge’s finding that the City could avail itself of each of the complete defences set out in sections 42(3)(a), (b) and (c) of the Act and that there was no need for trial in the circumstances, and upheld the dismissal of the action on summary judgment.

Decision Significance

It is notable that the motion judge considered the higher “gross negligence” standard for claims involving snowy/icy sidewalks, noting that while section 42(5) had no direct application to the circumstances in this case, it applied in principle such that people are expected to take “more care, to be more responsible for their own actions” where there are unusual circumstances, including where they have chosen to stray from the portion of the sidewalk intended for pedestrians.

While the motion judge did not expressly comment on whether the MMS defence set out in section 42(3)(c) provided the City with a defence in and of itself, the finding that the City met the MMS in conducting routine road patrols and the annual foot inspection led to the conclusion that the City was entitled to rely on both the “reasonable knowledge” and “reasonable steps” defences. As such, the ability of a municipality to rely on compliance with the MMS to avail itself of the complete defences set out in section 42(3) of the Act goes a long way towards setting “a practical limit to the extent of the potential liability” of municipalities.

  • Par : Jeremy Ablaza