



COURT OF APPEAL FOR ONTARIO

CITATION: Kidanemariam v. Toronto (City), 2018 ONCA 167

DATE: 20180216

DOCKET: C63342

Hourigan, Roberts and Nordheimer JJ.A.

BETWEEN

Demesew
    Tabor Kidanemariam, Nahome Demesew,

by her
    Litigation Guardian Seole Aemero Walelegne and

Selome Aemero Walelegne
    personally

Plaintiffs

(Appellants)

and

City of Toronto

Defendant

(Respondent)

Nicholas P. Kapelos, for the appellants

Erin D. Farrell, for the respondent

Heard and released orally: February 13, 2018

On appeal from the judgment of Justice Thomas Lederer of
    the Superior Court of Justice, dated January 12, 2017.

REASONS FOR DECISION

[1]

This is an appeal of the motion
    judges order dismissing the appellants claim against the City of Toronto
    arising from a fall on a sidewalk. The appellants also seek leave to appeal the
    costs award made by the motion judge.

[2]

The appellant, Selome Walelegne,
    sustained injuries when walking in front of a building located at 8 Wellesley
    Street East, Toronto.  Ms. Walelegne testified that she veered briefly off the
    concrete sidewalk and walked on an adjoining narrow strip that was covered with
    paving stones. She said that as she was walking on the strip, she felt as if
    she was pushed.  Her foot landed on a section of the strip that was missing a
    paving stone.  Ms. Walelegne then fell to the sidewalk and suffered a shoulder and
    other injuries.

[3]

Ms. Walelegne brought an action in
    negligence against the City, alleging that it failed to maintain the sidewalk
    in order to make it safe for pedestrian use. Her husband and daughter asserted
Family
    Law Act
, R.S.O. 1990, c. F.3 claims.

[4]

The City brought a motion for
    summary judgment relying on the defences contained in s. 42(3) of the
City
    of Toronto Act
,
2006
, S.O. 2006, c.11, Sch. A. The motion judge held that the
    City did not know, and could not reasonably have been expected to have known,
    about the alleged state of non-repair, given that it was not revealed in its
    annual walking inspection or in its twice weekly road patrols.  There was also no
    record of complaint about the area. The motion judge further found that the
    City took reasonable steps to prevent the default from arising. Accordingly, he
    concluded that the defences in s. 42(3)(a) and (b) of the
Act
were available to the City.

[5]

The appellants submit that the
    motion judge erred in his application of the summary judgment rule and
    misconstrued the evidence.  We disagree.

[6]

The motion judge carefully
    considered the evidence from the City that it undertook reasonable steps to
    prevent any default or state of non-repair from arising. That evidence was
    essentially unchallenged and the motion judge therefore made no error in
    finding that the City could avail itself of each of the defences in s. 42(3)(a);
    (b) and (c) of the
City of Toronto Act
.
Those
    defences are a complete answer to the appellants claims. There was no need for
    a trial in these circumstances.

[7]

With respect to the motion for
    leave to appeal the costs award, we are not satisfied that the motion judge erred
    in principle in making his costs order. The City as the successful party was
    entitled to its costs of the action and, after a thorough review of the bill of
    costs, the motion judge made a substantial reduction to the amount claimed.

[8]

The appeal is dismissed and the
    motion for leave to appeal the costs award is denied.

[9]

The City did not seek costs of the
    appeal.  Consequently, there is no order for costs of the appeal.

C.W. Hourigan J.A.

L.B. Roberts J.A.

I.V.B. Nordheimer J.A.


