Choma v. City of Toronto, 2016 ONSC 5510

Given a proper evidentiary record, a Court may draw reasonable inferences and grant summary judgment in favor of a party who is seeking to prove that, on the balance of probabilities, an event is unlikely to have occurred, so long as the party can show that it exercised due diligence and that a trial would not change anything in that regard or show different evidence.

Released September 1, 2016 | Full Decision [CanLII]

This case arose from a trip-and-fall incident that occurred on March 12, 2010, on a grass island adjacent to a parking lot. The parking lot had been constructed in 2004 by a contractor hired by the defendant, the City of Toronto, and was leased to Humber College by the City pursuant to a “carefree net lease” since December 2004. It was alleged that the plaintiff was crossing the grass island when she tripped over a bolt protruding from the ground. The bolt was one of four embedded in the base of a light standard. The light standard itself was gone, but its base had been left in place.

The City claimed no knowledge of how the light standard base came to be where it was on the date of loss. The City moved for summary judgment on the basis that the Plaintiff failed to demonstrate that the City created the alleged hazard that resulted in the accident. The City had the burden of showing that a trial was not necessary to prove, on a balance of probabilities, that it did not create the hazard. The difficulty was that the City had no positive evidence to indicate which party had created the hazard; therefore, it essentially had to prove a negative.

Based on the evidence, the Court made the following findings:

  • If the City had removed or approved the removal of the light standard, it would have generated a record of that removal;
  • The City conducted a diligent search of every department that might reasonably have records of the light standard’s removal, and found none; and
  • The evidentiary record would not improve with a trial.

The Court indicated that the question to be determined is whether the interests of justice require a trial to determine the question of how and when the alleged hazard was created and whether it can fairly answer the question from the evidence before it. Ultimately, the Court found that a trial was not required to determine whether the City placed the alleged hazard in place. It found that the Plaintiff failed to demonstrate that the alleged hazard was created while the City had control over the premises prior to December 2004. There was simply no evidence of how the base came to be where it was on the date of loss. The Court held that where solid evidence is lack, reasonable inferences can be drawn. The City did not bear the burden of establishing when or by what means the hazard came into being.

The Court further found that the City was not an “occupier” under the Occupier’s Liability Act since it had no responsibility as a landlord under its lease for controlling access to the premises or maintenance. Even if the City has been involved in the creation of the alleged hazard, there was nothing to suggest that a trial would be required to decide whether a duty of care was owed to possible users of the premises six years later.

The Court considered three factors when determining that the City did not owe a duty of care to the Plaintiff with respect to the alleged hazard on the date of loss: 1) the passage of time following the City surrendering possession and maintenance responsibility for the property in 2004; 2) Humber College’s explicit duty thereafter to maintain the land remedy any hazards to persons that might arise thereafter; and 3) the plain and obvious nature of the alleged hazard to any grounds crew or maintenance people who would be expected to have remarked upon it between 2004 and 2010 if it had existed in 2004 (a fact the Plaintiff failed to prove).

The summary judgment was granted in favour of the Defendant.

Read the full decision on CanLII
Einav Shlomovitz
Written by

Einav practices exclusively in civil litigation. Her practice focuses on motor vehicle accident, accident benefits, occupier’s liability, slip/trip and falls, dog bites, medical malpractice, solicitor negligence, class action, employment and sexual assault claims.

During her free time, Einav takes improv and Spanish lessons. She enjoys being active, traveling, and spending time with family and friends.