Cuming v. Toronto, 2019 ONSC 1720

Full Decision

Material Facts:

This case revolved around an accident involving the Plaintiff, Susan Cuming, which occurred on November 4, 2008 while she was riding her bicycle in and around the area of Carlaw and Lakeshore Boulevard in Toronto. The accident occurred as the Plaintiff operated her bike on a dedicated bike lane approaching a pair of railway tracks that crossed the bicycle path at a 15 degree angle. When approaching, the Plaintiff turned her wheel as she approached, at something close to a 90 degree angle, as recommended when encountering an obstacle of this kind. As she maneuvered her bike to cross the track, the Plaintiff’s wheel slipped on a strip of rubber padding located just before the track, causing her to fall. The Plaintiff brought a claim against the City of Toronto, the Toronto Terminal Railways Company and Toronto Port Lands Company for damages for injuries sustained in this accident.


The Defendant, the City of Toronto and Toronto Port Lands Company moved under Rule 20.04 of the Rules of Civil Procedure for summary judgment dismissing the action in its’ entirety. Subsequently, the Defendant, the Toronto Terminal Railway Company, who had been released from the action by the Plaintiff, moved for summary judgment dismissing the City’s crossclaim against it.


At issue in the case, was both causation as well as the appropriate standard of care to be applied within the specific fact scenario. The Plaintiff submitted an expert Engineering Report which placed fault on the City of Toronto for substandard design, negligence construction and maintenance of the tracks and adjacent padding, and the absence of necessary signage. The City submitted a rebuttal report questioning the Plaintiff’s expert report and disagreeing with its findings and conclusions regarding causation. An additional source of contention arose. The City submitted that the bicycle path was a recreational trail of which the City was an owner and occupier. If deemed to be a recreational trail, a more stringent standard of care under the Occupiers Liability Act would apply In that case, the Plaintiff would need to demonstrate that the City showed “reckless disregard” for the safety of those using the path. The Plaintiff countered that accident took place on a “road allowance” which would attract a lower standard of care, that of reasonable care.


E.M. Morgan J cited the case of Raes v Rothwell at para 6 when stating “it is not for this court to weigh conflicting evidence or to reassess the relative merits of contradictory expert testimony”. He concluded that despite Hyrniak v Mauldin and the new landscape for summary judgment motions, it was not the role of this court to make a decision on the matter at hand when there were such difference and competing views on central issues such as causation and standard of care. The justice provided similar reasoning with respect to the Railways motion for summary judgment of the City’s crossclaim. E.M. Morgan J noted that the Railways motion could not be viewed in isolation and needed to be viewed amongst the context of the claim as a whole. And as noted, given the complexity of the issues referred and the inextricably intertwined nature of them between the parties, granting summary judgment for the Railway would serve to be an injustice at that stage of the claim. The concern for a just result overshadowed the advantages of time and efficiency posed by granting summary judgment.

Trial/Motion Decision:

The City of Toronto and Toronto Port Lands Company’s motion was dismissed. Similarly, the motion brought by the Toronto Terminal Railway Company was also dismissed.

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