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Toronto Sidewalk Slip and Fall: Aggressive Summary Judgment Motion by Contractor Against City Fails

In a slip and fall case against a city / municipality in Ontario, there is a difficult standard of care for plaintiffs to prove against the City in respect of the gross negligence standard. It is typical for a plaintiff to sue both the City and the actual contractor company hired by the City to perform the snow and ice clearing work.

In a recent decision, an interesting case whereby the plaintiff chose not to sue the contractor, thereby leaving it to the City to commence a Third Party Claim against the contractor. Early in the action, before Discoveries, the contractor brought a summary judgment motion against the City seeking a dismissal of the Third Party claim: Toronto (City) v. Maple-Crete Inc., 2014 ONSC 528 (CanLII).

Despite the contractor’s submissions that their own records indicate that the subject city sidewalk was cleared of snow/ice, in accordance with the City’s instructions, prior to the slip and fall accident, the Court dismissed the summary judgment motion. It was found that the contract between the City and contractor could potentially support a situation where the contractor was found to have negligently failed to perform their duties; it was also held that the City was not to be held to have failed to present their ‘full case’ in the absence of the plaintiff’s Examination for Discovery evidence (as Discoveries had not yet been held).

As explained by Judge Morgan:

[8] Contrary to Maple’s position, the contract between Toronto and Maple does not exclude the possibility that Maple may be liable to contribute or indemnify Toronto for its own liability to an injured member of the public. Schedule C, Section GC 6.02 of the contract provides:

The Contractor shall indemnify and hold harmless the Owner and the Contract Administrator, and each of their elected officials, officers, employees and agents (hereinafter referred to collectively as the ‘indemneties’) from and against all claims, demands, actions, suits or proceedings which may be brought against or made by third parties, hereinafter called ‘claims’, directly or indirectly arising or alleged to arise out of the performance of or the failure to perform the Contract.

This indemnity clause makes it clear that it is not contractually impossible for the Third Party Claim to succeed. While Toronto has taken on itself certain responsibilities under the contract, the manner in which Maple, as contractor, carries out those responsibilities delegated to it can be the subject of a lawsuit by members of the public. See Belitchev v Grigorov, 2000 Carswell BC 1046, at para 36 (BC SC). A contractor can certainly be found to have breached a duty of care to pedestrians if it falls below contractual maintenance standards, where those standards are equal to or less than a reasonable standard. Giuliani v Halton (Regional Municipality), 2010 CarswellOnt 6399, at para 174 (SCJ), aff’d 2011 Carswell Ont 14436 (Ont CA), leave to appeal denied 2012 Carswell Ont 8121 (SCC).

[9] The Toronto-Maple contract required Maple to clear the sidewalks until they are free of snow. Further, Maple’s representative at discovery acknowledged that this included clearing and de-icing the sidewalk. It will be for the trial court, after considering all of the evidence (including that of the Plaintiff), to determine whether or not the clearing done by Maple on the day of the Plaintiff’s fall met the requisite standard of care.

[10] Without the Plaintiff’s participation in this motion, there inevitably will remain a genuine issue requiring a trial. The test for summary judgment in Rule 20.04(2)(a) has therefore not been met. The Third Party Claim must remain intact, to be tried together with the main action. Maple’s motion is dismissed.

PS – on the issue of slip and falls on city / municipal properties, beware that you are required to give immediate notice of your fall to the City – you have 10 days to do so – or risk losing the right to sue. This rule can apply even if you are in the hospital healing from a broken foot or fractured wrist, etc.

Gregory Chang

Toronto Insurance and Personal Injury Lawyer