In a recent slip and fall decision, Zaravellas v.
Armstrong, 2016 ONSC 3616, the Court found that the City of
Toronto (the "City") sidewalk in question was not in a
dangerous condition and that the City was not grossly negligent.
Note that this decision also includes reasons for dismissing a
separate personal injury action brought by the Plaintiff against
the Toronto Transit Commission.
At about 5:30 p.m. on December 23, 2007, the Plaintiff was
walking eastbound on the north side of Huntingwood Drive from his
home on Blueberry Drive to catch a bus to the Scarborough Town
Centre. One week prior, the City had experienced a severe
snowstorm. Although the City had worked hard to clear the snow and
ice, the Plaintiff testified that the sidewalk on Huntingwood was
"very bad" on the date of loss and covered by a one-inch
thick layer of ice. Despite the weather conditions, the Plaintiff
wore the same rubber-soled shoes that he wore throughout the year.
As he was walking eastbound, the Plaintiff allegedly stepped into a
hole in the ice, lost his balance and fell. He sustained a right
The Trial Judge reviewed the applicable law with respect to the
City's obligation to keep the roadways and sidewalks in a
reasonable state of repair. He recognized that the clearing of snow
and ice in Toronto is a mammoth task and that the City cannot
reasonably be expected to clear every inch of road or walkway used
by the public. In particular, the Court referred to section
42(5) of the City of Toronto Act, 2006, which states that
"except in the case of gross negligence, the City is not
liable for a personal injury caused by snow or ice on a
sidewalk." In determining whether the City was grossly
negligent in this case, the Trial Judge cited the two-part test,
which has emerged from the case law:
Was the municipality's general
policy with respect to ice and snow removal a reasonable one?
Was the municipality's response
on the occasion in question (that is to say, the implementation of
its policy) reasonable?
The Court found that the City had in place various
mechanisms to observe and deal with the presence of snow and ice on
roads and sidewalks at the time of the accident. Such mechanisms
included, among other tools, road patrols by field investigators,
roadway ploughing following eight centimetres of snowfall, winter
maintenance patrollers on arterials roads on a 24-hour basis and a
public call-in complaint system.
The Court also found that the City's response on the
occasion in question was reasonable. The City initiated its snow
ploughing operations when the heavy snowfall began on December 16,
2007 and continued to clear snow until the weather conditions
improved on December 21, 2007. The weather records indicated that
the temperature stayed above freezing from December 22, 2007 until
shortly after the accident occurred. Although the Plaintiff argued
that there was a lack of salting on the date of loss, the Court
held that it is not unreasonable for roads and sidewalks to remain
unsalted when the overnight temperatures remained above freezing.
Accordingly, the Court concluded that the sidewalk in question was
not in a dangerous condition on the date of loss and that the City
was not grossly negligent in the circumstances, and dismissed the
action against the City.
Although not necessary, the Court went on to assess contributory
negligence and damages. The Plaintiff was found to be 25%
contributorily negligent for wearing shoes that were unfit for icy
weather conditions despite knowing that a snowstorm had occurred a
week earlier. His right shoulder fracture was assessed at $30,000
but reduced to $22,500 to reflect contributory negligence.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
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