Graham v. Toronto, [2009] O.J. No. 4633

This is a decision of A. Sosna J. of the Ontario Superior Court of Justice.

I think this is an interesting decision because the judge dismissed the claim against the City of Toronto even though the plaintiff had tripped and fallen over a "metal frame" left lying in the middle of the sidewalk. The claim was dismissed because the City had good record keeping which showed that it had inspected the highway (including the sidewalk) just 8 hours before the trip and fall. Therefore the City had met the standard of care required of it.

Facts: A claimant tripped and fell after stepping into the interior of a metal frame lying on the sidewalk. Apparently he saw the metal frame, stepped into it and while exiting, caught his left foot on the frame. As a result, he lost his balance and fell, suffering two broken bones in his left arm. A metal rod had to be inserted into his arm.

The Municipal Act, 2001, s. 44, governs liability. It provides that a municipality is liable for all damages sustained for failing to keep highways (which includes sidewalks) in a state of repair that is reasonable in the circumstances. It also includes a defence that a municipality is not liable if it did not know and could not reasonably have been expected to have known about the state or repair of the highway.

The City provided evidence that an inspection of the highway, including the sidewalk, had taken place approximately eight hours before the trip and fall. The City employee who conducted the inspection says that he would have immediately removed the metal frame had it been noticed. Further, there was no record of any complaint or notice given to the City about the metal frame on the sidewalk.

The trial judge held that it is a question of fact in each case whether a condition of non‑repair or hazard exists and if so, whether the municipal authorities’ response is reasonable, timely and properly executed. The judge held that the inspector had not observed the rectangular metal frame lying on the sidewalk and the accuracy and reliability of his observations were not undermined or negated during cross-examination. Therefore, despite the “tragic and unfortunate injuries to the plaintiff”, the defendant met its evidentiary burden of establishing that it had met the requirements of the Municipal Act, 2001, and as such should not be held to a standard of perfection.

The trial judge then dismissed the plaintiff’s claim.

The trial judge went on to assess damages at $50,000.00 and interestingly would have assessed contributory negligence at 50%.