



COURT OF APPEAL FOR ONTARIO

CITATION:
Graham v. Toronto (City), 2022 ONCA 149

DATE: 20220216

DOCKET: C69418

Simmons, Pardu and Brown JJ.A.

BETWEEN

Robyn
    Graham and David Mitchell

Plaintiffs (Respondents)

and

City of Toronto

Defendant (Appellant)

Edona C. Vila, for the appellant

Joel P. McCoy and Alan C. Preyra, for
    the respondents

Heard: February 10, 2022 by video conference

On
    appeal from the order of Justice Eugenia Papageorgiou of the Superior Court of Justice,
    dated April 6, 2021, with reasons reported at 2021 ONSC 2278, 15 M.P.L.R. (6th)
    293.

REASONS FOR DECISION

Overview

[1]

On January 2, 2018 the respondent, Robyn Graham,
    tripped on a pothole in a pedestrian crosswalk in mid-town Toronto. As a result
    of the injuries she suffered, Ms. Graham and her husband, the respondent David
    Mitchell, sued the appellant, the City of Toronto.

[2]

Section 42(6) of the
City of Toronto Act,
    2006
, S.O. 2006, c. 11, Sched. A (the Act) provides that no action shall
    be brought for the recovery of damages against the City for its failure to
    maintain a highway in a reasonable state of repair unless the claimant provides
    the City with written notice of the claim and the injury complained of within
    10 days after the occurrence of the injury. Ms. Graham did not give the City
    notice of her claim until March 22, 2018, just short of three months after her
    trip and fall.

[3]

The City moved for summary judgment dismissing
    the action by reason of Ms. Grahams failure to provide timely notice.

[4]

The motion judge dismissed the Citys motion,
    holding that Ms. Grahams failure to provide the 10-day notice did not bar her action
    as there was a reasonable excuse for the want or sufficiency of the notice and
    the City was not prejudiced in its defence: s. 42(8) of the Act. As well,
    notwithstanding the absence of a cross-motion by Ms. Graham and Mr. Mitchell,
    the motion judge granted them summary judgment dismissing the Citys statutory
    notice defence and declaring that the respondents action was not
    statute-barred by s. 42(6) of the Act, a form of the so-called boomerang or
    reverse summary judgment.

[5]

The City appeals. At the hearing, we dismissed
    the appeal, with reasons to follow. These are those reasons.

[6]

The City advances two grounds of appeal.

First ground:
    The summary judgment was the product of an unfair process

[7]

The City submits that the motion judge acted in
    a procedurally unfair manner by granting the respondents reverse summary
    judgment in the absence of a notice of cross-motion seeking such relief or
    notice to the City of the motion judges intention to grant such a judgment.

[8]

We are not persuaded by this submission.

[9]

As this court observed in
Drummond v.
    Cadillac Fairview Corporation Limited
, 2019 ONCA 447, at paras. 11-12,
    summary judgment motions are intended, in part, to achieve fair and just
    results. Consequently, where a responding party has not filed a notice of cross-motion
    that seeks summary judgment against the moving party yet the motion judge
    intends to grant judgment against the moving party, the court must give the
    moving party some notice of that litigation risk so that the moving party can
    address it. The lack of such notice may render any resulting reverse summary
    judgment unfair.

[10]

There are numerous ways by which a court can
    ensure that, in the absence of a formal cross-motion, a moving party has notice
    of the litigation risk of a reverse summary judgment, including: (i) in those
    judicial regions where scheduling a summary judgment motion must pass through
    some form of triage or practice court, the motion scheduling request form can
    inquire whether the responding party intends to ask for a reverse summary judgment;
    (ii) at the start of a motion hearing, the judge can inquire whether a reverse
    summary judgment will be sought; (iii) if, during the course of the hearing,
    the judge forms the view that he or she might grant a reverse summary judgment,
    the judge should so inform the parties to allow them to respond; or (iv) if,
    during the course of preparing reasons disposing of the motion the presiding
    judge forms the view that granting a reverse summary judgment might be
    appropriate in the circumstances, the judge should so inform the parties and
    afford them an opportunity to make further submissions.

[11]

In the present case, the motion judge adopted
    the latter approach. While her decision was under reserve, the motion judge
    emailed counsel to advise that she usually referred to some well-established
    precedents in my summary judgment decisions. She identified four decisions,
    providing pinpoint cites to specific paragraphs in each. The motion judge
    requested that counsel inform her if they wished to make submissions on the
    cases. Counsel advised that they did not wish to make submissions.

[12]

One of the four cases identified by the motion
    judge was
Meridian Credit Union Limited v. Baig
, 2016 ONCA 150, 394
    D.L.R. (4th) 601, leave to appeal refused, [2016] S.C.C.A. No. 173, with a
    pinpoint citation to para. 17, where LaForme J.A. wrote:

[17] I pause to note that Meridian had not
    brought a cross-motion asking for summary judgment in its favour. However, the
    motion judge did not err by granting summary judgment. Counsel for the
    appellant submitted that all of the relevant evidence was before the court and
    explicitly invited the motion judge to render a decision in favour of either
    party. Two recent decisions from this court make it clear that it is
    permissible for a motion judge to grant judgment in favour of the responding
    party, even in the absence of a cross-motion for such relief:
King Lofts
    Toronto I Ltd. v. Emmons
, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras.
    14-15; and
Kassburg v. Sun Life Assurance Company of Canada
, 2014 ONCA
    922, 124 O.R. (3d) 171, at paras. 50-52.

[13]

The motion judge was communicating with counsel
    for parties, not a self-represented litigant. Her reference to para. 17 of the
Meridian
    Credit Union
case clearly put counsel on notice that she was considering granting
    a reverse summary judgment; there was no other possible reason for the
    reference. By so doing, the motion judge put the parties on notice of the
    litigation risk of a reverse summary judgment and afforded them an opportunity
    to make submissions, which they declined. In those circumstances, we see no
    unfairness in the procedure followed by the motion judge.

Second ground: The motion judge erred in not
    finding the respondents action barred by s. 42(6) of the Act

[14]

The City submits that the motion judge erred in
    applying the twofold requirements of s. 42(8) of the Act: reasonable excuse and
    no prejudice to the City.

Reasonable
    excuse

[15]

As to the motion judges conclusion that Ms.
    Graham had demonstrated a reasonable excuse for not providing earlier notice,
    the City contends her analysis was tainted by several errors: misinterpreting s.
    42(6); effectively changing the two-prong legal test contained in the Act; and
    improperly considering Ms. Grahams subjective awareness of the significance of
    her injury rather than merely the fact of her injury, thereby wrongfully
    elongating the 10-day notice period.

[16]

We are not persuaded by these submissions.

[17]

As to the first alleged error, the motion
    judges reasons disclose that she identified and applied the prevailing
    jurisprudence of this court concerning ss. 42(6) and 42(8) of the Act. Her
    references to the interpretative principle of reasonableness and the notion of
    a modest excuse were both taken from recent jurisprudence of this court (
Azzeh
    v. Legendre
, 2017 ONCA 385, 135 O.R. (3d) 721, at fn. 4 and para. 75,
    leave to appeal refused, [2017] S.C.C.A. No. 289). In any event, the reasons
    clearly indicate that the motion judge never lost sight of the statutory
    obligation on Ms. Graham to demonstrate a reasonable excuse.

[18]

The other two errors alleged by the City essentially
    amount to asking this court to reweigh the various factors and evidence that
    led the motion judge to conclude Ms. Graham had demonstrated a reasonable
    excuse. We see no basis for this court to do so. To determine whether a
    plaintiff has demonstrated a reasonable excuse, a court must ascertain whether,
    in all of the circumstances of the case, it was reasonable for the plaintiff
    not to give notice until she did:
Seif v. Toronto (City)
, 2015 ONCA
    321, 125 O.R. (3d) 481, at para. 26,
per
Hoy A.C.J.O. (dissenting in
    part, but not on this point). The motion judges reasons disclose that she took
    into account all the circumstances, did not fail to appreciate relevant
    evidence, did not misapprehend the evidence, and did not draw any unreasonable
    inferences. In those circumstances, we see no basis for appellate intervention
    with her finding that Ms. Graham had demonstrated a reasonable excuse.

No prejudice

[19]

The City further submits that the motion judge erred
    in concluding that no genuine issue requiring a trial exists on the issue of
    whether the City would not be prejudiced in its defence by Ms. Grahams failure
    to give the 10-day notice. We are not persuaded by this submission.

[20]

The motion judge noted that the Citys affiant
    admitted that the alleged prejudice rested solely on the fact that the City did
    not take measurements of the pothole before it was repaired. Such measurements
    would be relevant to any defence by the City that it was not liable for keeping
    the crosswalk in a reasonable state of repair because at the time of Ms.
    Grahams fall it had met the minimum regulatory maintenance standards: Act, s.
    42(3)(c). The motion judge identified a large body of evidence that led her to
    conclude that the delay in giving notice would not prejudice the City in its
    defence: (i) Ms. Graham took clear photos of the pothole within the 10-day
    period; (ii) Mr. Mitchell gave evidence that he inspected the pothole on the
    day of the incident and estimated its depth at six inches; (iii) the City took
    photos of the pothole on January 19, 2018, seventeen days after Ms. Grahams
    fall, in response to a complaint about the hole by another person; (iv) the
    City field investigator who took the photos determined the pothole required
    repair, which was quickly done; (v) the City did not adduce any evidence
    explaining why the field investigator did not measure the dimensions of the
    pothole, although it had the opportunity to do so; and (vi) the respondents
    filed an expert report that opined on the dimensions of the pothole using the various
    January 2018 photos, yet the City did not cross-examine the expert.

[21]

Accordingly, ample evidence supported the motion
    judges conclusion that Ms. Graham had satisfied the no prejudice to the City
    in its defence element of s. 42(8) of the Act. We see no reversible error in
    that conclusion.

[22]

Finally, we do not accept the Citys argument
    that the motion judges decision somehow gives rise to the spectre of an
    inconsistent finding being made at trial. The motion judge did not make a
    finding about the dimensions of the pothole. Her decision does not preclude the
    City from advancing a defence that the crosswalk was in a state of proper
    repair based on the minimum standards for pothole repair set out in s. 6 of
Minimum
    Maintenance Standards

for Highways in the City of Toronto
, O.
    Reg. 612/06. Nor does it preclude the trial judge from rejecting the
    respondents experts evidence concerning the dimensions of the pothole.

DISPOSITION

[23]

For the reasons set out above, the appeal is
    dismissed.

[24]

The City shall pay the respondents their costs
    of the appeal fixed in the amount of $17,500, inclusive of disbursements and
    applicable taxes.

Janet
    Simmons J.A.

G. Pardu
    J.A.

David
    Brown J.A.


