On Friday, October 21, 2011, the Court of Appeal dismissed the City of Toronto’s appeal in the action commenced by Ms. Veir Guy.

By way of background, this action arose as a result of a slip and fall accident that occurred on March 11, 1999, in part of a laneway running parallel to Danforth Avenue, between Greenwood Avenue and Linnsmore Crescent. Ms. Guy slipped and fell on what she described as a thick accumulation of ice concealed by snow.

The trial was held in October 2008 before Justice Stong of the Ontario Superior Court. There were three issues to be addressed at trial: whether the plaintiff’s claim was statute barred for failing to comply with the then 7 day notice period, liability and damages.

This action was commenced under the former Municipal Act, which required notice of a claim to be provided within 7 days after the accident. At trial, the Court held that Ms. Guy’s claim was not statute-barred on the basis that she had mailed the notice letter within the requisite time frame, and the City had not been prejudiced in its investigation of the claim.

Central to the determination of liability in this case was whether the laneway should receive the standard of maintenance of a roadway, fit for vehicular traffic, or a sidewalk, fit for pedestrian use. The Court considered the relevant statutory provision, section 284 of the then applicable Municipal Act which required municipalities to maintain roadways and sidewalks “in a state of repair that is reasonable in light of all of the circumstances, including [their] character and location.” In this case, the laneway was physically configured as a roadway, with no designated footpath. However, there was evidence that this part of the laneway was frequented by pedestrians accessing the TTC subway, two local schools and a number of businesses. A number of the abutting businesses had residential apartments above them, and tenants used the laneway for parking, as did employees and customers of the abutting businesses. The City collected garbage in the laneway, regulated parking in the laneway and maintained sewers and overhead lighting along the laneway. Accordingly, at trial, the Court held that, although physically configured as a roadway, this part of the laneway had also come to be used by pedestrians as a sidewalk. As a result, the Court found that the gross negligence standard applicable to claims arising from falls due to ice and snow on sidewalks applied in the circumstances of this case. Significantly, the Court also held that the laneway ought to have received the level of winter maintenance and care provided to sidewalks.

At trial, the City provided evidence regarding the winter maintenance steps taken. There had been a significant snow fall on March 6, 1999, 5 days before Ms. Guy’s fall. There was a City policy to salt the laneway when necessary, but not to plough the laneway. The laneway was salted within 3 days of the snow fall. The City’s evidence was that the snow on the ground then melted, and the laneway did not require another salting. The City received no complaints regarding the condition of the laneway after it was salted. A City foot patroller inspected the sidewalks adjacent to the laneway on the day of Ms. Guy’s fall, and looked down the laneway, but did not make a note of any conditions requiring the City’s attention. The City did not require foot patrollers to walk through laneways while conducting their inspections. Rather, foot patrollers would look through laneways from the sidewalks at either end. The City also gave evidence about the problems associated with ploughing in the laneway, including risk of damaging abutting property due to the narrow right-of-way, problems arising from creating windrows blocking access to garages and the possibility of causing water damming which could lead to flooding.

At trial, the Court accepted Ms. Guy’s evidence regarding the condition of the laneway – that is, thick ice obscured by snow. There was additional evidence from two abutting business owners that the laneway was generally poorly maintained, but it does not appear that this evidence specifically related to the day of Ms. Guy’s accident. The Court found that the winter maintenance steps taken with respect to the laneway were inadequate. Given the pedestrian use of the laneway, the “same reasonable efforts that were expended by the City in determining safe passage on the sidewalks ought to have been employed on this segment of this laneway.” The laneway should have received the same “close inspection” by foot patrollers as the sidewalks did. The Court noted that the sidewalks were monitored by foot patrollers and were ploughed and salted as needed, pursuant to the determination of the foot patroller. The Court found that the City’s policy of not conducting foot patrols of laneways which were also used as walkways amounted to a breach of the City’s statutory duty under the then applicable Municipal Act. The condition of the laneway could not be ascertained by having a foot patroller observe the laneway from the sidewalk at either end of it. The Court held that the relevant portion of the laneway should have been inspected by a foot patroller who would have observed the ice beneath the snow. The Court noted that, notwithstanding the difficulties of ploughing the snow in the laneway, some other method of snow removal ought to have been employed, such as using a snow blower to blow the snow into the back of a dump truck. In the circumstances, the City was held to be grossly negligent.

With respect to damages, Ms. Guy sustained a Colles–type fracture to her left wrist from which she largely recovered. Her total damages were assessed at $33,948.39.

The City’s appeal to the Divisional Court on September 30, 2010 was dismissed by Justices Jennings, Herman and Harvison-Young.

The City’s appeal to the Court of Appeal was heard on October 21, 2011 by Justices Armstrong, Laskin and Blair. The Court of Appeal rejected the City’s appeal and upheld the decision of the lower court. The Court of Appeal relied on s. 284 of the then applicable Municipal Act and held that the character, nature and use of the laneway was such that the laneway was akin to a sidewalk for the purposes of the City’s winter maintenance obligations and for the purposes of the gross negligence standard. The Court of Appeal upheld the lower Court’s finding of liability and dismissed the City’s appeal with costs of $25,000.

Going forward, this decision suggests that there may be instances where an area of the road allowance intended and configured for vehicles may well be considered akin to a sidewalk for the purposes of determining the appropriate level of winter maintenance. Courts will likely consider evidence regarding the location, use by pedestrians, nature of abutting properties, parking availability, proximity to amenities like schools, retail, parks and transit, and difficulties associated with winter maintenance in determining whether an area should be treated like a sidewalk for the purposes of establishing a municipality’s winter maintenance obligations.