This case is helpful to demonstrate how litigants can streamline cases that are perhaps not worth a lot of money, but are still important to the litigants. I addressed this is my paper entitled “Personal Injury Claims in Small Claims Court: The Nuts and Bolts” when I raised the prospect of using a Small Claims Court proceeding for this purpose, but also recognizing that there were other options. In this regard, I said the following:
“This paper is not intended to assess whether the Small Claims Court process is the best mechanism for adjudicating any particular personal injury claim because parties do have many options to try and obtain a cost effective and expeditious result for some of the “smaller-valued” cases such as the simplified procedure, summary trials, mini-trials and motions for summary judgment. This paper is simply a guide to explain how the Small Claims Court is but one option, and one that happens, for better or worse, to be free of any formal Affidavit of Document requirements, mandatory mediation requirements, examinations for discovery, juries, and any potentially profound costs consequences.”
In this instance, the parties agreed to damages, and proceeded with a summary trial. Through this process, the decision provides some helpful legal principles on the issues to be addressed in a sidewalk non-repair case against a municipality, as follows:
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- The plaintiff must establish, on a balance of probabilities, that the sidewalk in question was not kept by the defendant municipality in a state of repair reasonable in the circumstances, including its character and location; and
- the adoption by a municipality of the Provincial Minimum Maintenance Standards has removed the need to rely upon a “judicial rule of thumb” derived from caselaw that predated their adoption.
After considering the sidewalk in question to be a small residential sidewalk with just average or normal traffic, the court said that the maximum height differential of two centimeters (20 mm), as provided for in the Minimum Maintenance Standards, represented a reasonable standard (even though it might not be considered reasonable in other contexts).
Given that the sidewalk deflection was less than 20 mm, the plaintiff failed to satisfy the onus on her of proving on a balance of probabilities that the defendant municipality failed to keep the sidewalk in a state of repair that was reasonable in the circumstances. Given this finding, it was not necessary for the court to go on to consider whether the other potential defences available to the municipality under subsection 44(3) of the Municipal Act applied to save the defendant municipality.
Cromarty v. Waterloo (City), 2022 ONSC 1322
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc1322/2022onsc1322.html