In a recent action, Campana v. The City of Mississauga, the defendants, the City of Mississauga and Peel Condominium Corporation #89, moved to dismiss a civil suit against them. The civil suit in question arose when the plaintiff tripped and fell on a boulevard in Mississauga. The City also sought to dismiss any counterclaims against it.
The City argued that the boulevard where the plaintiff fell was in a reasonable state of repair and therefore, the City of Mississauga bears no liability under the Municipal Act s. 44(1). However, if there is a finding of non-repair, the City argued that it did not know and could reasonably not have known about the alleged state of non-repair, and also, it took all reasonable steps to prevent the alleged non-repair, per s. 43(3) of the Act.
Peel Condo Corp (‘PCC89’) based its motion for summary judgement on the argument that the slip and fall occurred on a City road allowance and not on the adjacent property owned by PCC89. The Condo Corp also asserted that even if they are found to be an occupier, there is no evidence that they failed to do anything they reasonably ought to have done and therefore, there are no grounds for a finding of liability or a trial.
Background
The plaintiff fell after visiting her father who lived at PCC89, located at 98 Falconer Drive in Mississauga. She was walking on a boulevard located between the sidewalk and Bow River Crescent when she stepped into a hole, tripped and fell. She alleged that as a result of the fall, she suffered serious and permanent injuries including a fractured fibula.
At her Examination for Discovery, the plaintiff testified that she had walked this route before and admitted she was looking straight ahead while she was walking. She estimated that the hole that caused her to trip was circular and small, perhaps 3 X 3 inches in size, and covered with grass. She also testified that the hole blended in with the rest of the boulevard, there was some grass covering the hole, and the area had been recently mowed.
When the Condo Corp was informed of the accident by the plaintiff’s father, the property manager for PCC89 asked his landscaper to fill the hole with soil.
Position of the City of Mississauga
The City gave evidence that they conduct sidewalk inspections, on foot, every one or two years, and although adjacent boulevards are not necessarily inspected during these patrols, inspectors report any hazards on the boulevard that are noted. The City’s roads are also patrolled according to the minimum maintenance standards for municipal highways, and road inspectors report any obvious hazards on the boulevards. The City had no report of a problem at 98 Falconer Drive before the plaintiff’s notice of claim; however, the City acknowledged that municipalities do not specifically inspect boulevards as a routine.
PCC89 inspected the boulevard on a weekly basis and the Condo’s landscapers regularly cut the grass on the boulevard, as well. The boulevard was inspected monthly by PCC89’s property manager and landscapers were also required to report any ‘issues’.
The City argued that “a 3 X 3-inch hole covered by grass could not reasonably have been detected by any cost-effective system of inspection”, and the City had no reason to believe that they were lacking in boulevard inspections.
Alternatively, the City asserted that it adhered to period inspections as minimally required and thus took reasonable steps to prevent the danger from occurring.
Position of Peel Condominium Corp
PCC89 denied that they have any liability for the plaintiff’s injury because they were not the occupier of the premises where the accident occurred — the hole is on the City’s boulevard, not on PCC89’s property, and an adjacent occupier can only be held liable for accidents on municipal property if they have control over said property or if they allowed a condition to spread and create a danger on the municipal property. PCC89 submitted that their only involvement with the boulevard was mowing the lawn.
They further argued that even if the Condo Corp was an occupier of the municipal boulevard, the plaintiff is still required to prove that they did not adhere to a standard of care of a reasonable and prudent occupier, as set out in the Occupiers’ Liability Act. Finally, PCC89 noted that the small hole was likely hidden by grass and not visible to the naked eye. Based on all these arguments, PCC89 asserts that the claim against them is inappropriate and there is no triable issue with respect to their liability.
Plaintiff’s position
The plaintiff asserted that the City and PCC89 are liable because both are occupiers of the boulevard and owed a duty of care to the plaintiff, given that the City owns the property and PCC89 exercises some control over, and responsibility for, the property. PCC89 has, for some years, employed a landscaping firm to maintain the boulevard and also periodically inspect this area. Upon learning of the hole, PCC89 requested their landscaper to fill the hole.
The plaintiff also pointed out that the hole was large enough to allow her entire size-10 foot to go into it, which means it was detectible and rendered the boulevard in a ‘state of non-repair’. Therefore, the City cannot claim an exception pursuant to the Municipal Act, as a ‘reasonable person’ could have detected a whole of that size. The plaintiff also noted that the City admitted that inspections on their boulevards are not governed by standards or policies.
Conclusions
The City had argued that, even if the boulevard is determined to be in state of non-repair, the City adhered to period inspections as minimally required and thus took reasonable steps to prevent the danger from occurring. Justice Fragomeni disagreed with this argument and found that that the City of Mississauga was negligent in carrying out regular inspections on the boulevard and also, their inspections were not guided by any policies or standards, at the time of the trip and fall accident.
The property manager for PCC89 gave evidence that he contacted the Condo’s landscaper after the trip and fall to request them to find the hole and fill it so that no other people step into it, although he acknowledged that he had no idea where the hole was. When asked about the responsibilities of the landscape contractor, the manager stated that the landscaper’s only responsibility is to cut the grass on the ‘City’ boulevard and inform him if they see a problem that makes the area ‘not presentable’, such as a dead tree. In the event of a dead tree, they may give a quote for the work and “we get things done”. When questioned on the frequency of inspections, the manager replied that he didn’t know whether the landscaper carried out regular inspections but, according to their contract, inspections were supposed to be made weekly and if there were any concerns related to landscaping, they should be reported to him. When asked whether he would be expected to be informed of a hole in the ground, he replied “if they saw it”.
Based on the property manager’s testimony, Justice Fragomeni decided that “the factual basis to ground PCC89’s position is not clear”. The property manager’s responses for questions pertaining to the landscaper’s responsibilities were often vague, for example, when he stated “They cut the grass and they trim and they do all that stuff.” There was also no clear understanding of what is in PCC89’s contract with the landscaper – the manager stated “Whatever is in the contract would be their responsibility, based on the contract”.
Justice Fragomeni was not satisfied that there are no genuine issues for trial in this case. The judge found he could not reach a fair and just determination based on the evidence presented and accordingly, Justice Fragomeni decided that a trial is required. Some of the issues that were identified to be resolved in a trial included:
- the actual size of the whole
- whether the landscaper’s duties in maintaining the boulevard extended beyond cutting the lawn
- whether PCC89 had control over the property due to its employment of the landscaper and whether PCC89 took an active role in maintaining the condition of the boulevard, therefore placing it within the definition of an occupier
- if PCC89 is not determined to be an occupier, does it have any liability?
- whether the City’s policy for inspecting the boulevard is reasonable
- was the boulevard in a state of non-repair, and if so, did the City take all reasonable actions to prevent the non-repair from arising?
Accordingly, Justice Fragomeni dismissed the summary judgement motions to dismiss the action against the City of Mississauga and Peel Condo Corp #89.
If you were injured in a slip, trip and fall accident caused by a negligent party or unsafe property, call Kotak Law to find out whether you have valid grounds for commencing a claim. At Kotak Law, our experienced team has reached favourable settlements for many clients who sustained injuries in a slip and fall, and we have both the expertise and resources necessary in building a strong case for you or your loved one.
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