On November 8, 2003, the 26 year old plaintiff fell at
an intersection in a high pedestrian traffic area, where a
construction project was taking place. She was on her way home from
the grocery store, walking along her usual route, carrying a modest
amount of groceries. She alleged that she crossed the road and
tripped while stepping onto the sidewalk. The plaintiff had mild
cerebral palsy which affected the left side of her body. She
injured her right shoulder in the fall.
The intersection had been under construction since May 2003. The
municipality had hired a general contractor to complete the road
rehabilitation and construction. The general contractor in turn had
hired a sub-contractor to pave the road. By the time of the
accident, most of the reconstruction had taken place. However, the
location of the plaintiff's fall had not been completed, and
she encountered a height differential of approximately 1.5 inches.
Upon completion of the construction project, the height
differential in the location of her fall was to be negligible. The
plaintiff testified, and the Court accepted, that the warning signs
regarding the ongoing construction had been removed, and she was
unaware that construction was still underway.
The Court found all three defendants (the municipality, the
general contractor and the subcontractor) liable. The Court noted
that one of the purposes of ramping at intersections was to ensure
that those with disabilities or accessibility needs were able to
negotiate crossing streets safely. The Court held that it was
foreseeable that, without temporary ramping in place and without
some warning that the sidewalk was incomplete, a height
differential of 1.5 inches was a tripping hazard, given that under
normal circumstances there would have been almost no height
differential. The Defendants knew or ought to have known about the
state of non-repair and failed to take the appropriate steps to
rectify that condition.
Although citing the Municipal Act, the Court also cited and
seemed to rely on the provisions in the Occupiers' Liability
Act in finding the municipality liable, noting that an occupier
cannot avoid its responsibilities by not paying attention to the
practices of a co-occupier. It is not clear whether the Court was
referred to section 10(2) of the Occupiers' Liability Act,
which specifically states that the Occupiers' Liability Act
does not apply to a municipality where it is the occupier of a
public road. In addition, it appears that the municipality's
defence may have been assumed by the contractor, and the extent to
which a separate defence was advanced on behalf of the municipality
In any event, the Court found that the facts in this case
demonstrated that all three defendants continued to be occupiers of
the intersection by virtue of their obligations to the public and
the fact that they each bore some responsibility for ensuring site
safety. The municipality had an inspector attending regularly to
monitor the progress of work, and the contractor also monitored the
work of its subcontractor. The primary responsibility, however,
rested with the sub-contractor as it had control over the site.
Accordingly, the Court held that the sub-contractor was 50% liable,
and the municipality and contractor were each 25% liable for the
Despite the fact that the plaintiff had safely navigated the
intersection before and was capable of negotiating modest changes
in elevation when walking, the Court found no contributory
Although not specifically addressed in this decision, this case
is a reminder of the importance of appropriate indemnification and
hold harmless language in favour of municipalities in contracts
relating to construction projects.
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
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