Municipality, Contractor And Sub-Contractor Liable Where Plaintiff Fell At An Intersection Under Construction

Botosh v Ottawa (City), 2013 ONSC 5418

On November 8, 2003, the 26 year old plaintiff fell at an intersection in a high pedestrian traffic area, where a construction project was taking place. She was on her way home from the grocery store, walking along her usual route, carrying a modest amount of groceries. She alleged that she crossed the road and tripped while stepping onto the sidewalk. The plaintiff had mild cerebral palsy which affected the left side of her body. She injured her right shoulder in the fall.

The intersection had been under construction since May 2003. The municipality had hired a general contractor to complete the road rehabilitation and construction. The general contractor in turn had hired a sub-contractor to pave the road. By the time of the accident, most of the reconstruction had taken place. However, the location of the plaintiff's fall had not been completed, and she encountered a height differential of approximately 1.5 inches. Upon completion of the construction project, the height differential in the location of her fall was to be negligible. The plaintiff testified, and the Court accepted, that the warning signs regarding the ongoing construction had been removed, and she was unaware that construction was still underway.

The Court found all three defendants (the municipality, the general contractor and the subcontractor) liable. The Court noted that one of the purposes of ramping at intersections was to ensure that those with disabilities or accessibility needs were able to negotiate crossing streets safely. The Court held that it was foreseeable that, without temporary ramping in place and without some warning that the sidewalk was incomplete, a height differential of 1.5 inches was a tripping hazard, given that under normal circumstances there would have been almost no height differential. The Defendants knew or ought to have known about the state of non-repair and failed to take the appropriate steps to rectify that condition.

Although citing the Municipal Act, the Court also cited and seemed to rely on the provisions in the Occupiers' Liability Act in finding the municipality liable, noting that an occupier...