By Van Krkachovski

In the recent decision of Cromarty v. Waterloo (City),¹ Justice D.A. Broad of the Ontario Superior Court of Justice dealt with the applicability of the Minimum Maintenance Standards² as a defence to municipal liability in the case of a pedestrian trip and fall on a municipally-owned sidewalk.

The Basic Facts

The Plaintiff claimed damages as a result of her trip and fall injuries against the City of Waterloo for allegedly failing to keep the sidewalk in a reasonable state of repair pursuant to section 44 of the Municipal Act.³ The trial proceeded summarily on the issue of liability alone.

The Legal Framework

First, Justice Broad noted that "while s. 44 speaks of 'highways and bridges' sidewalks are included".⁴ Justice Broad then identified a four-part test⁵ for analyzing liability under section 44:

1. Non-repair: the Plaintiff must prove on a balance of probabilities that the municipality failed to keepthe sidewalk in question in a reasonable state of repair.

2. Causation: the Plaintiff must prove the “non-repair” caused the accident.

3. Statutory Defences: proof of “non-repair” and causation establish a prima facie case of liability against a municipality. The municipality then has the onus of establishing that at least one of the three defences in s. 44(3) applies.

4. Contributory Negligence: a municipality that cannot establish any of the three defences in s. 44(3) will be found liable. The municipality can, however, show the plaintiff’s conduct caused or contributed to the Plaintiff’s injuries.

The parties agreed that at the material time, the City had adopted the Minimum Maintenance Standards which, in Section 16, set out:

• The standard for the frequency of inspections for surface discontinuity is once per year and a maximum of every 16 months.
  
  
• A sidewalk inspected within the above noted timeframe is deemed to be in a state of repair, provided that the municipality does not acquire actual knowledge of the presence of a surface discontinuity greater than 2 centimetres.
  
  
• If a surface discontinuity exceeds 2 centimetres, the discontinuity is to be remedied within 14 days of acquiring this knowledge.
  
  
• A surface discontinuity is deemed to be in a state of repair if it is less than or equal to 2 centimetres.
  
  
• Treating a surface discontinuity on a sidewalk means taking reasonable measures to protect users of the sidewalk from the discontinuity, including making permanent or temporary repairs, alerting users' attention to the discontinuity or preventing access to the area of discontinuity.
  

Download the Minimum Maintenance Standards Chart for Ontario compliments of MB. The information in this chart has been reviewed at the time of this article's publication, and we found no changes to the information since 2018.

Evidence

The Plaintiff testified that:

• there was roughly a 25 millimetre difference between the relevant slabs, based on her son's observation using a ruler and piece of cardboard,
• the differential was not marked, and
• this sidewalk has heavy pedestrian traffic.

...all of (the City's) sidewalks were inspected once per year by a summer student...

The City testified that:

• all of its sidewalks were inspected annually by a summer student retained to carry out these inspections,
• no complaints had been received regarding this location in the preceding two years,
• the City's expert, an investigative engineer, measured the sidewalk differential to be roughly 17.5 millimetres, and
• this sidewalk, located in an industrial area, has light pedestrian traffic.
  

Analysis

Justice Broad's analysis needed to determine whether the Plaintiff proved on a balance of probabilities that the sidewalk was in a state of disrepair. This involved considering both the character of the sidewalk and its location.

Justice Broad found a middle ground between the submissions of the Plaintiff and the City and determined that this was an area of 'moderate pedestrian traffic'. Justice Broad then found that the City had not identified this discontinuity as a defect in the preceding two annual inspections, nor had the City received any complaints regarding the subject sidewalk. Finally, Justice Broad accepted the evidence of the City's expert that the differential in this case was between 17.5 and 18.5 millimetres on the date of the accident.

Citing a case that he had decided in 2017,⁶ in which he had determined that a 20 millimetre differential was reasonable in the context of a "small residential street", Justice Broad determined that 20 millimetres was a similarly reasonable standard in the context of a sidewalk with 'moderate pedestrian traffic'. As a result, Justice Broad found that the Plaintiff had failed to satisfy her onus of proving that the sidewalk was in a state of non-repair and dismissed the action.

Conclusion

This case shows that the Minimum Maintenance Standards play an important role in determining whether a municipality has discharged its duties to keep sidewalks in a state of repair in the context of personal injury actions for slip/trip and falls, and, if followed, can serve as a defence to liability under the Municipal Act.

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1. Cromarty v. Waterloo (City), 2022 ONSC 1322
2. Minimum Maintenance Standards, (O.Reg. 239/02)
3. Municipal Act, 2001, S.O. 2001, c. 25
4. Justice Broad cited the following in support of this: Worthey v. City of Hamilton, 2015 ONSC 3690 (S.C.J.) at para. 77, citing Anderson v. Hamilton (City), [2009] O.J. No.4358 (S.C.J.) at paras 21-23
5. This test derives from Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 at para. 26.
6. Barbeau v City of Kitchener, 2017 ONSC 24.

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