Townsend v. City of Kitchener, 2019 ONSC 817 (CanLII)

Full Decision

This is a case where a minor plaintiff tripped and fell over a raised concrete edge of a buried metal transformer box on municipal property.

The following defendants were named: Kitchener-Wilmot Hydro (“KW Hydro”) as the owner of the transformer box; the Corporation of the City of Kitchener (the “City”) as the owner of the apron of a driveway on the road allowance where the plaintiff’s fall took place; and Robert Alex MacLean (“MacLean”) and Donna Visee (“Visee”), the two adjacent property owners.

MacLean and Visee each moved for summary judgment, claiming they were not the occupiers of the driveway apron because the plaintiff fell within the municipal road allowance, and further, there are no special circumstances sufficient to make them occupiers.

KW Hydro opposed the motion, arguing that there is a genuine issue requiring a trial as to whether MacLean and Visee are “occupiers” of the land for the purposes of the Occupier’s Liability Act (“the Act”). KW Hydro further submitted that discoveries had not yet taken place, so there could be no determination yet as to duty of care.

There were three issues in this case. First, the court considered whether (1) there was a genuine issue requiring a trial with respect to whether the adjacent property owners owed a duty of care to the plaintiff, either as “occupiers” under the Act or (2) independent of the Act.

Lastly, the court also considered (3) if a determination on whether there is a genuine issue requiring a trial on the above-noted duty of care issue would be premature given the pre-discovery stage of the proceeding.

The completion of examinations for discovery is not required to bring a motion for summary judgment or to determine duty of care. The court is entitled to assume that the evidence led on the motion for summary judgment will be the evidence at trial. Based on the evidentiary record, the court found no genuine issue requiring a trial, and was satisfied that the motion materials allowed for the necessary findings of fact, in order to make a fair and just determination on the merits of the action without requiring the additional fact-finding powers granted by the summary judgement process.

The leading authority on the duty of care of adjacent property owners was outlined in the Court of Appeal decision in Bongiardina v York (Regional Municipality, 2000 CanLII 5408 (ON CA), [2000] O.J. No. 2751 (C.A.) at paras. 19-21 as follows:

(a)   A homeowner has a duty to ensure that his or her own property is maintained in a reasonable condition so that persons entering the property are not injured, and if the homeowner complies with this duty he or she should be free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks;

(b)   There are two exceptions to the foregoing general principle;

(c)   The first exception to the general principle is that a property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. This is known as the “special circumstances” exception; and

(d)   The second exception to the general principle is that the duty of care on the owner extends to ensuring that conditions or activities on his or her property do not flow off the property and cause injury to persons nearby. This exception may be referred to as the “flow exception.”

No duty of care at common law exists for adjacent owners for the maintenance of municipally owned road allowances and sidewalks independent of the Act, apart from those situations where he or she may be found to be in control of the municipal property and therefore an occupier, or to have allowed conditions or activities to flow off his or her property so as to cause injury.

In reviewing the case law and the evidentiary record before him, Justice D.A. Broad found that neither MacLean nor Visee had such control over the driveway apron as to make either of them an occupier for the purposes of the Act; neither of them were free to deal with the driveway apron as they wished, they had no authority to exclude others from the use of the driveway apron, and members of the public were free to use the driveway apron to pass between the municipal sidewalk and the travelled portion of the road allowance.

Further, there were no “special circumstances” that would confer on MacLean and Visee the degree of control over the driveway apron necessary to make them an occupier for the purposes of the Act. The “flow exception” likewise did not apply, as there was no evidence of any conditions or activities on MacLean`s or Visee’s property which flowed off the property so as to cause injury to persons nearby.

In considering whether the motion was premature, Justice D.A. Broad noted there was no requirement to wait for the completion of examinations for discovery before bringing a motion for summary judgment, and did not accept the suggestion that there may be further evidence that may be helpful following examinations for discovery.

The motions for summary judgment of the defendants MacLean and Visee were allowed, and the action and all cross-claims were dismissed as against them. The court recommended the parties agree upon costs, failing which they were to submit written submissions to the court for review.

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