Restoule et al. v. Strong (Township), (1999) 123 O.A.C. 346 (CA)

• Judge: Carthy, Moldaver and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 13, 1999
• Jurisdiction: Ontario
• Citations: (1999), 123 O.A.C. 346 (CA)

Restoule v. Strong (1999), 123 O.A.C. 346 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. AU.020

Beverly Restoule, René Restoule, Gail Haggart, Bernie Haggart, Wanda Haggart, Jodie Haggart, Derek Haggart and Patricia Haggart (plaintiffs/appellants) v. Corporation of the Township of Strong (defendant/respondent)

(C26907)

Indexed As: Restoule et al. v. Strong (Township)

Ontario Court of Appeal

Carthy, Moldaver and Borins, JJ.A.

August 13, 1999.

Summary:

The plaintiff suffered a compression frac­ture of a vertebra when she slipped and fell on ice on a public roadway. She sued the municipality. Her husband and children claimed under the Family Law Act.

The Ontario Court (General Division), in a decision reported 24 O.T.C. 86, dismissed the action. The court provisionally assessed damages. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial before another judge. The court held that because the result of the trial was based on a com­bination of incorrect legal principles and problematic findings of fact, it did not feel that it was capable of giving the decision that should have been given.

Municipal Law - Topic 1730

Liability of municipalities - Highways and streets - Dangerous highway conditions - Standard of care - Icy patches - [See Mu­nicipal Law - Topic 1805 ].

Municipal Law - Topic 1805

Liability of municipalities - Negligence - Standard of care - Maintenance of streets and highways - Section 284(1) of the Municipal Act, as it read at the time of the plaintiff's fall on an icy roadway in a municipality, placed a duty on a munici­pality to keep its highways "in repair" and provided that a municipality in default of its duty was civilly liable "for all damages sustained by any person by reason of such default" - The Ontario Court of Appeal held that as a result, the only issue was whether the municipality breached its duty under s. 284(1) - This made it unnecessary to enter upon a "policy/operational" analy­sis to determine the municipality's liability - See paragraphs 1 to 17.

Municipal Law - Topic 2985

Duties of municipalities - Particular duties - Maintenance of highways and streets - [See Municipal Law - Topic 1805 ].

Practice - Topic 5285.5

Trials - General - Opening and closing address - Reply - The plaintiff sued a municipality respecting injuries suffered in a fall on an icy roadway - In his closing address, the defendant's counsel raised a new argument - The trial judge, in a non-jury trial, did not allow the plaintiff to reply - The Ontario Court of Appeal held that the trial judge should have exercised his discretion to permit the plaintiff the opportunity to reply to the defendant's closing argument respecting the new issue raised - See paragraphs 22 and 23.

Torts - Topic 9156

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Highway authorities - [See Municipal Law - Topic 1805 ].

Cases Noticed:

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 9].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 9].

Swinamer v. Nova Scotia (Attorney Gen­eral) et al., [1994] 1 S.C.R. 445; 163 N.R. 291; 129 N.S.R.(2d) 321; 362 A.P.R. 321, refd to. [para. 9].

R. v. Côté - see Kalogeropoulos and Mil­lette v. Côté et al.

Kalogeropoulos and Millette v. Côté et al., [1976] 1 S.C.R. 595; 3 N.R. 341; 51 D.L.R.(3d) 244, refd to. [para. 9].

Kennedy et al. v. Board of Education of Waterloo County (1999), 122 O.A.C. 122 (C.A.), refd to. [para. 13].

R. v. East Sussex County Council; Ex parte Tandy, [1998] A.C. 714 (H.L.), refd to. [para. 15].

Gartlan v. Toronto (City), [1942] 3 D.L.R. 523 (Ont. C.A.), refd to. [para. 16].

Griffin v. Arnprior, [1953] 2 D.L.R. 321 (Ont. H.C.), affd. [1954] 1 D.L.R. 176 (Ont. C.A.), refd to. [para. 16].

Bleau v. Nepean (City) (1983), 21 M.P.L.R. 217 (H.C.), affd. [1984] O.J. No. 139 (C.A.), refd to. [para. 16].

Statutes Noticed:

Municipal Act, R.S.O. 1990, c. M-45, sect. 284(1) [para. 8].

Counsel:

Andrew Kerr and Lisa D. Belcourt, for the plaintiffs/appellants;

Brian E. Lucas, for the defen­dant/respon­dent.

This appeal was heard on March 11, 1999, by Carthy, Moldaver and Borins, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was released on August 13, 1999, by Borins, J.A.