Sfyndilis v. City of Toronto, 2018 ONSC 5088 (CanLII)
City of Toronto ordered to produce, inter alia, GPS records post-incident, details about prior lawsuits and when field inspectors were trained.
Date Heard: August 22, 2018 | Full Decision [PDF]
This action arises as a result of a slip and fall incident. The Plaintiff alleges she fell on a City of Toronto sidewalk due to an accumulation of leaves that the Defendant failed to remove from the sidewalk and from the roadway such that the leaves were pushed onto the sidewalk. The Plaintiff further alleges that the Defendant knew the sidewalk posed a danger due to the leaves based on complaints made to the Defendant by residents of the area prior to her fall.
The Defendant pleads that while it is responsible for clearing the roadway, it is not responsible for the sidewalk under the City of Toronto Act, 2006. It also alleges that if the sidewalk was in the condition alleged, it did not know of such condition and could not reasonably have been expected to know. Alternatively, the Defendant pleads that it took reasonable steps to prevent the incident from occurring.
The Plaintiff brought a refusals motion following examinations for discovery. Master Jolley ordered the Defendant to answer a number of the refused questions, including:
- To produce the GPS records of the field investigator’s vehicle from October 26, 2012 to December 6, 2012.
The incident occurred on December 3, 2012. The Defendant agreed to produce the records from October 26, 2012 to December 4, 2012. It refused to produce the records for December 5 or 6 arguing relevance. Master Jolley held the records post-incident were relevant stating “the conducting of the Defendant in the days following the fall may demonstrate that it took remedial measures. The courts have held that “remedial measures” such as changes in training, operations or alerts that may be instituted following and possibly as a result of an incident could provide evidence of what was reasonable in the circumstances, whether a defendant took reasonable care and whether a defendant met a reasonable standard.”
- To advise of lawsuits that were made against the City three years prior to the incident for slip and falls on leaves on Colbeck or Windermere.
The Defendant refused this undertaking based on relevance. Master Jolley ordered that it was a relevant question given both the Statement of Claim and the Statement of Defence put the Defendant’s knowledge relating to the accumulation of leaves on the sidewalk into question. If the Defendant was aware of a significant number of claims arising from pedestrian falls on leaf-covered sidewalks, that information would be relevant based on the pleadings.
- For the deponent, Jeff Hunt, Supervisor of Roads and Sidewalks with the Defendant, to advise if he agrees that leaves on the sidewalk could pose a hazard to a pedestrian.
The Defendant refused to answer this question on the basis that it was speculative. Master Jolley held the Plaintiff was entitled to know if the Defendant agreed that the leaves on the sidewalk could pose a hazard to a pedestrian as it was an issue raised in the Statement of Claim.
The Defendant was also ordered to produce records confirming how often in the three years prior to the incident a by-law enforcement officer had spoken to residents of the area about obligations to remove leaves; if it was possible for the sweeper the City used to clean the roads could go so quickly that it did not clean what it was supposed to and; lastly, to advise when the field inspectors received training in the three years prior to the incident.
Read the full decision [PDF]