



COURT OF APPEAL FOR ONTARIO

CITATION:
Bondy v. London (City), 2014 ONCA 291

DATE: 20140415

DOCKET: C56843

Feldman, Rouleau and Hourigan JJ.A.

BETWEEN

Jo Ann Bondy

Plaintiff (Appellant)

and

The Corporation of the City of London and Elona
    Helen Lyszczek

Defendants (Respondents)

Douglas M. Bryce and Maciek R. Piekosz, for the
    appellant

Stephen R. Schenke and Jasmine T. Akbarali, for the
    respondent, Elona Helen Lyszczek

Geoffrey P. Belch, for the respondent, The Corporation
    of the City of London

Heard and released orally: April 2, 2014

On appeal from the judgment of Justice Kelly A. Gorman of
    the Superior Court of Justice, dated February 27, 2013.

ENDORSEMENT

[1]

The appellant appeals the decision of Justice Gorman that dismissed her
    action for a slip and fall injury brought against both the City of London and
    the property owner adjacent to where she fell. The action against the City of
    London is based on s. 44(1) of the
Municipal Act
, S.O. 2001, which
    provides the municipality that has jurisdiction over a highway or bridge shall
    keep it in a state of repair that is reasonable in the circumstances, including
    the character and location of the highway or bridge.

[2]

The appellant fell on a sloped boulevard between the street and the
    sidewalk. She fell on the paved portion of the boulevard which connects to the
    driveway of the adjacent property owner, the respondent, Ms. Lyszczek. That
    boulevard is city property. The fall occurred at 10:00 a.m. after freezing rain
    had fallen. All parties acknowledge that the boulevard is a highway, within the
    meaning of the
Municipal Act
. Therefore, the highest standard to which
    the area needs to be maintained by anyone is as a highway for vehicles, not as
    a passageway for pedestrian traffic, subject to any special circumstances.

[3]

The appellant submits that because from time to time people will cross
    the road in the middle between intersections that that creates a special
    circumstance that elevates the standard of maintenance. We do not agree.

[4]

This is a common situation. The fact that people may cross at
    undesignated places on a road does not create or impose on the Municipality a
    higher level of maintenance obligation. We would dismiss the appeal as against
    the City.

[5]

As against the adjacent property owner, the appellant says that the
    respondent is an occupier in fact, within the meaning of the
Occupiers
    Liability Act
, RSO 1990, c O-2, ss 1 3(1) and because of the street By-law
    of London. We reject those submissions.

[6]

First, we agree with the trial judge where she stated in
    para. 76 of her reasons that the By-law does not impose a duty on the
    respondent, Ms. Lyszczek, to remove snow and ice. Nor is there anything in the
    By-law which makes the respondent an occupier within the meaning of the
Occupiers
    Liability Act.
Second, there are no
    special circumstances on the facts of this case that place the respondent in
    control of the boulevard, within the meaning of the
Occupiers
    Liability Act
. We agree with Justice
    Gorman at para. 83 of her reasons, where she stated:

On the facts before me I am unable to conclude that Ms.
    Lyszczek exercised any control over the boulevard. She certainly did not
    restrict others from accessing it. Indeed she did not salt it, on her evidence,
    because she did not think it was her responsibility to do so. Accordingly,
    while it is possible for an adjacent property owner to be held liable under the
Occupiers Liability Act
, I find that Ms. Lyszczek is not liable.

[7]

In the result, the appeal is dismissed with costs agreed at $10,000,
    inclusive of HST plus disbursements, payable by the appellant to the respondent,
    Lyszczek, and in the reduced amount of $7,500, inclusive to the City in order
    to reflect costs on a partial indemnity basis.

K. Feldman
    J.A.

Paul Rouleau
    J.A.

C. William Hourigan J.A.


