





CITATION:
Guy v. Toronto (City), 2011 ONCA 689



DATE: 20111107



DOCKET: C53219



COURT OF APPEAL FOR ONTARIO



Laskin, Armstrong and Blair JJ.A.



BETWEEN



Veir Guy



Plaintiff/Respondent



and



City of Toronto



Defendant/ Appellant



Peter C. Williams and Gaynor J. Roger, for the appellant



Barry A. Percival, Q.C. and Allan Preyra, for the respondent



Heard and released orally:
October 21, 2011



On appeal from the judgment of the Divisional Court (Justice
          J.R.R. Jennings, Justice T.P. Herman and Justice A.L. Harvison-Young) dated September
          22, 2010.



ENDORSEMENT



[1]

The City seeks to set aside the judgment of Stong J. dated
    September 22, 2010, awarding the plaintiff damages for injuries sustained when
    she slipped and fell on an icy patch in a laneway near the subway stop at
    Danforth and Greenwood in the City of Toronto.

[2]

We would dismiss the appeal.

[3]

Section 284 (1) of the
Municipal Act
requires that the
    municipality must "keep [a highway] in a state of repair that is
    reasonable in light of all the circumstances including the character and
    location of the highway."  We do not accept Mr. Williams able submission
    that the trial judge judicially declared the laneway to be a sidewalk.  Instead,
    he found that the laneway  designated as a commercial roadway  was used both
    as a vehiclar roadway and a pedestrian passageway and the city knew that many
    pedestrians were using it on a regular basis in that fashion.  It was open for
    him to take this approach on the record.  The trial judge therefore declined to
    apply the seven-day notice requirement that applies to sidewalks, but when it
    came to determining the standard of care, decided to apply the higher standard
    of gross negligence that applies in sidewalk cases.  This favoured the city and
    we see no error in these circumstances in his doing so.

[4]

The trial judge found on the evidence that the city was grossly
    negligent.  We need not decide whether the standard of gross negligence was
    called for here.  As noted, it favoured the city, and in the particular
    circumstances of this case, we see no basis for interfering with his
    conclusion.

[5]

The Divisional Court affirmed the trial judge's decision.  Again,
    we see no error.

[6]

The appeal is therefore dismissed.  Costs inclusive of the motion
    for leave to appeal, are fixed in the amount of $25,000 all inclusive.

John Laskin J.A.

R.P. Armstrong J.A.

R.A. Blair J.A.


