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April 21, 2010

Court Appeal Rules Summary Judgment is not available in Small Claims Court

Van de Vrande vs. Butkowsky, [2010] O.J. No. 1239 (C.A.)

The Court of Appeal has held that summary judgment is not available in Small Claims Court, clarifying an area where there were two separate lines of case law.

In this case, the defendant was retained to perform an assessment in the context of a custody dispute between the plaintiff and his spouse. The plaintiff alleged that instead of simply conducting and submitting an assessment, the defendant took on an additional role of mediator in the dispute. The defendant brought a motion seeking summary judgment and the court granted the motion pursuant to Rules 1.03 (2) and 12.02 of the Small Claims Court Rules, on the basis that in his capacity as a court appointed assessor, the defendant was immune from suit pursuant to the doctrine of expert witness immunity. The deputy judge also found that the action had been commenced outside of the applicable limitation period.

The Court of Appeal held that the absence of a summary judgment procedure in the Small Claims Court Rule is not a gap but rather a deliberate omission. It is not up to the court to read in such provision, since Rule 12.02 specifically addresses the ability to bring a motion similar to that contemplated by Rules 20, 21 & 76 of Rules of Civil Procedure. The court held that Rule 12 is similar to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on filing affidavit evidence. It involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be inflammatory, a waste of time or a nuisance.

Although the court has now clarified that summary judgment is not available in Small Claims Court, Rule 12 remains a valuable tool that can assist in disposing of cases that are without merit without the need to progress to a full blown trial.

April 15, 2010

Amendments to MMS

Final comment from Jennifer Stirton on the new Ontario Municipal Maintenance Standards:

7. Inspection for Sidewalk Discontinuity

The MMS now require annual inspections of sidewalks to check for surface discontinuities. There was no previous annual inspection requirement. In addition, municipalities are now required to treat sidewalk surface discontinuities that exceed two centimetres within 14 days after becoming aware of the fact. The constructive knowledge provision discussed above will also apply. Treating a surface discontinuity on a sidewalk involves taking reasonable measures to protect users of the sidewalk from it, including permanent or temporary repairs, alerting users’ attention to it or preventing access to the area of discontinuity.

April 13, 2010

Amendments to MMS

More from Jennifer Stirton on the new Municipal Maintenance Standards:

6. Expanded Sign Inspections

The MMS previously required road sign repairs where signs were illegible, improperly oriented or missing. There is now an additional requirement to repair road signs that are obscured. There is also a new requirement to conduct annual inspections of road signs to ensure that they meet the retro-reflectivity requirements of the Ontario Traffic Manual.

April 8, 2010

Amendments to MMS

More comments on the new Minimum Maintenance Standards, by Jennifer Stirton.

4. Slush Included in Snow Accumulation

The MMS have also been criticized for failing to address slushy road conditions.[1] The MMS now provide that snow accumulation on a road includes new fallen snow, wind-blown snow and slush. Snow clearing standards are triggered when snow accumulation reaches a prescribed depth.

[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 94-97 (S.C.J.). Note that although it was argued by counsel, the trial judge did not agree that the failure to address slush in the MMS was a gap in the regulation.

5. Annual Inspection of Luminaires

The MMS now provide for annual inspections of all luminaires to ensure that they are functioning. There was no previous inspection requirement.

April 6, 2010

Amendments to MMS

More commentary on the recent amendments to the MMS, by Jennifer Stirton.

3. Additional Winter Patrolling Requirements

One of the criticisms of the MMS was that the patrolling requirements were inadequate to respond to winter road conditions.[1] The MMS now provide that during the winter maintenance season, municipalities must conduct the routine patrols that were previously required but must also patrol highways that are representative of its highways, as necessary, for snow and ice conditions. The standard also allows patrolling to be done by patrollers or by winter maintenance operators. As neither “representative” nor “as necessary” are defined terms and, we expect to see claims challenging municipal decisions about representative highways and necessary patrol frequencies.

[1] See Thornhill (Litigation Guardian of) v. Shadid, [2008] O.J. No. 372 at paras. 98-103 (S.C.J.).

April 1, 2010

Amendments to MMS

More commentary on the recent amendments to the MMS, by Jennifer Stirton.

2. Application of MMS Not Restricted to Motor Vehicles

The MMS previously provided that they applied only in respect of motor vehicles using highways. This provision has been repealed, which suggests that the MMS now apply to pedestrians and bicycles using highways. This may be a response to recent case law which held that where roads are kept in a reasonable state of repair for vehicular traffic, which can include MMS compliance, a municipality may not be liable to pedestrians injured while walking on the road surface. Holmes v. Kingston (City), [2009] O.J. No. 1838 (S.C.J.).