2011 QCCA 614, 2011 QCCA 614

Unofficial English Translation Montréal (Ville de) c. Scanlan 2011 QCCA 614 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-019241-082 (500-17-019085-045) DATE: APRIL 1, 2011 CORAM: THE HONOURABLE JACQUES DUFRESNE, J.A. JACQUES A. LÉGER, J.A. RICHARD WAGNER, J.A. VILLE DE MONTRÉAL APPELLANT - Defendant v. MARNIE SCANLAN RESPONDENT - Plaintiff JUDGMENT [ 1 ] THE COURT: - On the appeal from a judgment rendered on November 17, 2008, by the Superior Court, District of Montreal (the Honourable Mr.

Justice Louis Lacoursière), which granted the respondent’s claim and condemned the appellant to pay her $113,193.10 with interest and the additional indemnity as of January 20, 2004. [ 2 ] After having examined the file, heard the parties, and deliberated; [ 3 ] For the reasons of Wagner J.A., with which Dufresne and Léger, JJ.A. agree: [ 4 ] DISMISSES the appeal with costs. JACQUES DUFRESNE, J.A. JACQUES A. LÉGER, J.A. RICHARD WAGNER, J.A.

Mtre François Tremblay TREMBLAY, SAVOIE, LAPIERRE For the appellant Mtre Luc Giroux FRASER MILNER CASGRAIN For the respondent Date of hearing: March 16, 2011 REASONS OF WAGNER, J.A. [ 5 ] The appellant, Ville de Montréal (the “City”), appeals from a judgment rendered on November 17, 2008, by the Superior

[ 5 ] The appellant, Ville de Montréal (the “City”), appeals from a judgment rendered on November 17, 2008, by the Superior Court, District of Montreal (the Honourable Mr. Justice Louis Lacoursière), which granted the respondent’s claim and condemned the appellant to pay her $113,193.10 with interest and the additional indemnity as of January 20, 2004. FACTS [ 6 ] The facts were well summarized by the trial judge, who stated: [ TRANSLATION ] [2] Ms. Scanlan, age 33, is a personal trainer employed by the Montreal Athletic Association (MAA).

She also trains clients privately. [3] On July 29, 2003, she was on her way to a client’s home located at ... Roslyn Street, between Sherbrooke Street and Côte St- Antoine Road in Westmount. [4] She left her apartment located at ... Côte St-Luc Road at approximately 9 a.m. She adjusted her helmet and got on her bicycle, an eighteen-speed hybrid. She took Côte St-Luc Road, which becomes The Boulevard in Westmount. [5] She headed east and turned right on Roslyn Street, without needing to stop at the traffic light.

She continued on Roslyn, which has a ten-degree slope, without pedalling and with her hands on the brakes. She estimates her speed to have been 15 km/h. She rode on the right side of the street while keeping some distance from the cars parked along the side of the road. [6] Approximately seventy metres from the intersection of The Boulevard and Roslyn, her front tire struck a depression in the street. She was thrown a certain distance, which is difficult for her to estimate, perhaps two car lengths. She used her arms to break her fall.

Her helmet cracked on impact. [7] Two Roslyn Street residents rushed to her side. [8] Ms. Weitzman, who lives at ..., which faces the depression in the road, called 911. She also took photos of the depression, which she described as being eight to twelve inches deep and approximately fourteen inches wide. [9] Ms. Arsenault, who lives at ..., was also quick to arrive on site and also took a photo. She noted that “it's an unusual hole in that the asphalt caved in”. Her assessment of the dimensions of the depression was similar to that of Ms. Weitzman. [10] Ms.

Scanlan was taken to the Montreal General Hospital, where she was hospitalized for five days and diagnosed with a fractured left shoulder. [11] On July 31, an orthopaedic surgeon performed an open reduction and osteosynthesis of the comminuted fracture at the base of the left humerus, combined with a rotator cuff repair. [12] Ablation of the osteosynthesis material was performed on March 29, 2007, during a one-day hospitalization. [1] [ 7 ] The positions of the parties were also well explained by the trial judge, who summarized them as follows: [ TRANSLATION ] [13] Ms.

Scanlan alleges that the City failed to properly maintain Roslyn Street and that the elevation drop, which caused the accident, constituted a trap. [14] She asserts that the City did not put appropriate measures in place to verify the condition of its roads and subsequently repair any problems and must therefore be held liable for the damages resulting from her fall. [15] According to the City, Ms. Scanlan was not careful, and there is no explanation for the fact that she did not see the depression.

Moreover, she should have been riding farther over on the side of Roslyn Street, which would have prevented the accident. [16] The City adds that it took all reasonable measures in regard to the maintenance of its public roads, that it did not commit any fault, and in the alternative, that the damages claimed are exaggerated. [2] GROUNDS OF APPEAL [ 8 ] Two categories are raised in the appellant’s factum. [ 9 ] The first concerns its liability per se.

The appellant asserts that the trial judge erred in fact and in law in concluding that the depression that caused the respondent’s fall was a trap and that the appellant committed a fault by failing to take reasonable measures to ensure that Roslyn Street was in safe condition. [ 10 ] The second concerns an error of law committed by the trial judge with respect to the application and

interpretation of art 1611 CCQ as well as an error of fact and of law in the assessment of the quantum of non-pecuniary damages. [ 11 ] During the hearing, counsel for the appellant’s arguments were focused exclusively on the reasoning adopted by the trial judge, which he claims would require the appellant to modify its contracts with third-party contractors to require them to report any dangerous situation that they might come across while performing their duties. [ 12 ] Such reasoning, he argues, encroaches on the political sphere of the municipal government, which cannot be held liable in the absence of bad faith or gross negligence. I will get back to this below.

LIABILITY [ 13 ] The uncontradicted evidence establishes that the respondent fell when the front wheel of her bicycle struck a depression that was eight to twelve inches deep and fourteen inches wide. [ 14 ] The evidence also establishes that in the days preceding the accident, the appellant had retained a contractor to indicate the speed limit on the road in white paint, which covered up part of the depression.

Further, unlike traditional potholes, the depression did not have a jagged edge. [ 15 ] Before concluding that this constituted a trap, the trial judge heard and considered the testimony of Lori Weitzman and Peter Kalichman, both Roslyn Street residents, as well as that of Suzanne Arsenault and the respondent, Marnie Scanlan. [ 16 ] Ms. Scanlan affirmed that she did not see the depression when the front wheel of her bike struck it. All she saw was a large freshly painted number 30. Moreover, she had not taken this route recently. [ 17 ] The trial judge accepted the testimony of Ms. Weitzman and Mr.

Kalichman that the depression was not clearly visible even though it had been present for several days before the accident. [ 18 ] The appellant asserts that the trial judge never established that the depression on Rosyln Street was not visible. This argument cannot succeed. [ 19 ] In concluding that the depression constituted a trap, the trial judge stated: [ TRANSLATION ] [42] From the evidence, the Court concludes, first of all, that the depression on Roslyn Street had been present for a few days and second, that it constituted a trap. ... [46] The photos taken by Ms. Weitzman and Ms. Arsenault speak volumes.

They show that the elevation drop in the road interfered with the painting process, creating a slight smudge of white paint between the numbers 3 and 0 . This illustrates the significance of the depression. [47] Moreover, unlike a pothole, which has a jagged edge where the asphalt has broken, the depression was somewhat camouflaged, and the fresh paint around it prevented a cyclist, even a careful one, from suspecting that the spot was inappropriate for cycling.

On the contrary, you would not normally find fresh paint on an elevation drop in the road…. [48] The elevation drop on Roslyn Street on July 29, 2003, constituted a trap. [3] [ 20 ] The Court notes that the trial judge is in a privileged position to assess the credibility of the witnesses heard.

Unless a palpable and overriding error in the assessment of the evidence is established, the Court will not substitute its assessment for that of the trial judge. [ 21 ] That being said, the trial judge’s conclusion that the depression constituted a trap was based on the uncontradicted evidence of a significant subsidence that was partly camouflaged by freshly applied paint, which could have led road users who were previously unaware of the subsidence to believe that the surface was safe. [ 22 ] The trial judge referred to the definition of [ TRANSLATION ] “trap”, which usually requires a danger that is hidden rather than apparent and a situation that is inherently dangerous. [4] [ 23 ] These grounds of appeal do not disclose any error in the assessment of the facts by the trial judge, who concluded that the depression constituted a trap in the circumstances.

This ground is dismissed. ERROR OF LAW IN REGARD TO A MUNICIPALITY’S OBLIGATION OF MEANS [ 24 ] At the outset, the trial judge set out the applicable legal rules as follows: [ TRANSLATION ] [17] The principles that must guide the Court are as follows: 1) The plaintiff must establish that the City committed a fault; 2) There is no presumption of fault when an accident occurs on a street or sidewalk belonging to a municipality, which is held to an obligation of means, the violation of which must be established by the plaintiff.

The municipality is not the insurer of the users of its streets and sidewalks; 3) The standard of conduct expected of a municipality was set out by the Court of Appeal as follows: [translation] Although legislation and case law recognize that a municipality is required to be reasonably vigilant in regard to the maintenance of its

public roads, taking into consideration several factors including temperature variations and the extent of its territory, the municipality’s actions must be assessed against the standard of the reasonably prudent and diligent person. [5] [ 25 ] The evidence revealed that the appellant had put a system in place to allow it to detect problems and ensure the proper maintenance of the streets and sidewalks within its territory.

The trial judge summarized the measures adopted by the municipality as follows: [ TRANSLATION ] [28] First of all, at the relevant time, i.e. in 2003, an asphalt crew comprised of five or six persons travelled around the City one or two days a week, slightly more often in the spring, to repair potholes and depressions in the streets. The team was sometimes given a list of work to perform that was prepared by a supervisor.

Other times its work was unplanned and random, depending on what it saw as it surveyed the streets. [29] Further, the public security department, supervisors, City employees, and citizens could inform the City of maintenance problems involving public roads. [30] Finally, a systematic inspection of the streets in Westmount was conducted each spring, during which the condition of each street was assessed by the road superintendent, who decided whether reconstruction or resurfacing was required. [6] [ 26 ] In this case, the appellant had retained an independent contractor to repaint the numbers indicating the speed limit on the road surface of Roslyn Street.

The employees of its mandatary did not alert it of the existence of a significant depression in the road before applying the paint, which, as the trial judge noted, partly camouflaged the depression and contributed to the creation of a trap. [ 27 ] The appellant claims that the trial judge erred in law by confusing a political decision of the municipal government with an operational decision.

It asserts that it was not aware of the existence of the subsidence, that it was never informed of it by its mandatary or by the citizens, and that because of the measures it put in place to properly maintain its streets and sidewalks, it met its obligation of means.

It adds that it was not required to ensure that its mandatary informed it of every problem affecting the streets that it was required to maintain or on which it was required to perform work. [ 28 ] The appellant submits that the reasoning of the trial judge raised the burden of municipalities by substituting an obligation of result for an obligation of means. [ 29 ] As acknowledged by the appellant, [ TRANSLATION ] “the legal relationship between a city and the public is not altered by the fact that the city decides to delegate its obligation to maintain its property and facilities to a contractor”. [7] It follows that the municipality’s obligation of reasonable diligence must be reflected in the facts, taking into consideration the agreements by which it is bound and pursuant to which it may be held liable, to determine whether it has complied with this obligation of means. [ 30 ] The trial judge noted: [ TRANSLATION ] [52] Even if the contractor responsible for painting the streets was not directly supervised by the City, the contractor nevertheless travelled up and down the streets to perform work at the City’s request.

The Court is of the view that the contractor’s workers: - must have seen a significant depression on Roslyn Street; - performed painting work on the area surrounding this depression; and - did not ostensibly inform the City of its existence. [53] According to Mr.

Caluori’s testimony, if the workers assigned to the painting work had been employed by the City, they would have likely informed it of the problem on the street and immediately repaired it or blocked access to it, which would have prevented the accident. [54] The situation cannot be different because the persons assigned to the painting work, for the City, on City streets, were not its employees.

The Court sees no reason why the obligation to report problems affecting the streets in Westmount would apply to its employees but not to its contractors that are also performing work on City streets. [55] Taking that logic farther, the City could avoid its obligation of means by retaining contractors to perform all of its street maintenance and traffic signalization work.

This defies common sense. [56] The reasonable measures to keep itself informed of the condition of the streets should have included the exchange of information between the contractor required to survey the streets for painting, and the City. [8] [ 31 ] Relying on its

interpretation of Lewis , [9] the appellant submits that its mandatary did not commit a fault and that it cannot be held liable because its liability would flow from its failure to include an obligation of denunciation in the contract it concluded with the third-party contractor.

This constitutes an illegal incursion into the political sphere, in regard to which it may only be held liable in cases of gross negligence or bad faith. [ 32 ] I am of the view that this argument is futile and a red herring. [ 33 ] It appears from the judgment that the trial judge concluded that the mandatary retained by the City committed a fault that contributed to the creation of the trap by applying a layer of paint on the subsidence. This gave users the false impression that the road was safe. All the essential elements to establish the municipality’s liability were present.

[ 34 ] In fact, the City’s representative acknowledged that he expected the mandatary to inform him of any problems in the performance of its work. Thus, the trial judge was well founded in concluding that the employees of the City’s mandatary committed a fault.

Therefore, the principles set out in Lewis remain relevant and were correctly applied by the trial judge. [ 35 ] The appellant had the legal obligation to ensure citizens’ safety and correct dangerous situations that could cause accidents for users of the roads, and it should have ensured that the mandataries it hired to assume its obligations, even if only in part, informed it of any potential danger.

This obligation is implicit, and the appellant cannot escape liability solely by pleading that it retained a third party to assume part of its obligations. [ 36 ] In any event, since Prud'homme , [10] if the appellant seeks to limit the application of the rules of civil liability, it is required to establish that public law principles prevail over the civil law rules. It did not meet this burden. [ 37 ] This ground of appeal does not reveal any error of law on the part of the trial judge, who found the appellant liable because its mandatary committed a fault in the execution of its contract.

DAMAGES [ 38 ] In his assessment of the extent of the respondent’s physical injuries, the trial judge held that the accident did not deprive her of her employment income but had a significant impact on her quality of life and caused her bodily injury, a type of non-pecuniary damage. [ 39 ] The appellant did not file an expert report on damages. [ 40 ] The respondent filed three reports, those of Dr. Caroll A. Laurin dated December 10, 2003, and November 16, 2007, and that of Dr.

Morris Duhaime dated January 25, 2008. [ 41 ] The trial judge considered and analyzed the conclusions of these reports, in which the authors assessed the respondent’s partial permanent incapacity (PPI) to be between 9% and 11%. [ 42 ] The appellant criticizes the trial judge’s decision to fix the respondent’s PPI at 10% since Dr. Laurin found it to be 9% and Dr. Duhaime concluded that it was 11%. According to the appellant, the judge should have set the respondent’s PPI at 9% in view of the contradictory medical evidence.

This argument must fail. [ 43 ] In the presence of expert reports supporting different rates of partial permanent incapacity, the trial judge must rule using his or her discretion judicially. [ 44 ] In this case, the difference between the two reports is minimal, and in fixing the respondent’s PPI at 10%, the trial judge was exercising his discretion. There is no reason to question this on appeal.

INTERPRETATION OF ART. 1611 CCQ [ 45 ] Called upon to determine the extent of the respondent’s future damages resulting from her injuries, the trial judge noted that she will need to undergo further surgery that will cause a total PPI of between 14% and 18%. The trial judge fixed it at 15%. [ 46 ] Art. 1611 provides the following: 1611. The damages due to the creditor compensate for the amount of the loss he has sustained and the profit of which he has been deprived. Future injury which is certain and able to be assessed is taken into account in awarding damages. [ 47 ] This

article must be read in conjunction with art 1615, which states: 1615. The court, in awarding damages for bodily injury, may, for a period of not over three years, reserve the right of the creditor to apply for additional damages, if the course of his physical condition cannot be determined with sufficient precision at the time of the judgment. [ 48 ] The appellant challenges the trial judge’s decision to apply

article 1611 CCQ by setting an additional rate of partial permanent incapacity resulting from an additional surgical procedure to be performed in the future, in regard to which the damages alleged are not capable of being assessed. In other words, the future injury is not certain and cannot be assessed. [ 49 ] In support of its argument, the appellant cites Dr. Laurin’s expert report, presented by the respondent at trial. Dr. Laurin refers only to total temporary incapacity and makes no conclusions in regard to partial permanent incapacity. [ 50 ] The appellant fails to mention, however, that Dr.

Laurin concluded in his reports of December 10, 2003, and November 16, 2007, that [ TRANSLATION ] “it is indeed difficult to imagine that she will not one day be a candidate for a total shoulder arthroplasty leading, obviously, to an increase in her total temporary incapacity” .

[ 51 ] In his report of January 25, 2008, Dr. Morris Duhaime concluded that the total arthroplasty that the respondent will have to undergo will result in partial permanent incapacity of between 14% and 18%, affecting the whole person. [ 52 ] The trial judge accepted Dr.

Duhaime’s assessment and acknowledged that there was an intangible aspect to the current assessment of PPI because of the eventual surgery but held that the range of 14% to 18% was sufficiently precise to allow him to rule without any risk of injustice. [ 53 ] Exercising his discretion, the judge fixed the total of the respondent’s partial permanent incapacity at 15%, whereas the appellant recommended a rate of between 10% and 14% and the respondent suggested 16%. [ 54 ] Essentially, the appellant argues that in the presence of a rate that could vary between 14% and 18%, the trial judge could not apply

article 1611 CCQ and conclude that the injury was sufficiently certain to rule for the future. [ 55 ] In my view, this argument must also fail. [ 56 ] When the trial judge chooses a rate of partial permanent incapacity from a well-defined range, this does not imply that the future injury is uncertain. It is clear from the judgment that the trial judge was convinced that the eventual arthroplasty would result in damages. This conclusion flows logically from the opinions of Drs. Laurin and Duhaime. The uncertainty, if any, was limited to the resulting rate of incapacity.

That said, determining the rate of partial permanent incapacity is a matter of discretion for the trial judge who heard the testimonies and assessed the probative value of the expert reports submitted before him. [ 57 ] In fact, the trial judge clearly explained the basis of his reasoning at paragraphs 83 and following of his judgment, which read as follows: [ TRANSLATION ] [83] Moreover, the Court is of the opinion that it is possible to determine with sufficient precision the progression of Ms.

Scanlan’s physical condition after the operation that she will have to undergo. [84] Indeed, according to the three experts consulted, she will inevitably undergo a complete shoulder arthroplasty. [85] Dr. Laurin described the radiological assessment of her shoulder as follows: [ TRANSLATION ] The x-ray taken today at our request confirms a serious and significant fracture with loss of substance from the humeral head and a major modification of the glenohumeral space.

It is indeed difficult to imagine that she will not one day be a candidate for a total shoulder arthroplasty leading, obviously, to an increase in her total temporary incapacity. It would thus be best, in my view, to delay the resolution of this matter as long as possible, as physical examination does not reveal the extent of the injuries that can be seen on the x-ray. Unfortunately, there is no criterion based on the x-ray image, and we must use the range of motion limitations observed during physical examination.

The patient’s occupation and excessive motivation may explain the surprising range of motion, considering that the x-ray image suggests a very negative long-term prognosis. [86] Two factors remain unknown: the date of the operation and the assessment of the resulting incapacity. [87] First of all, Ms. Scanlan has not scheduled the arthroplasty, and the medical reports do not address this issue. Clearly, Ms. Scanlan has no intention of rushing things. [88] Further, according to Dr.

Duhaime, total arthroplasty generally results in PPI that varies between 14% and 18%, affecting the whole person. [89] There is of course an intangible aspect to the current assessment of the PPI resulting from the eventual operation. The range that the expert Duhaime suggests is 14% to 18%, which is sufficiently narrow for the Court to rule without any risk of injustice. [90] Counsel for the City suggests that the eventual operation will increase PPI from 10% to 14%, while counsel for Ms.

Scanlan suggests 16%. [91] In view of the uncertainty of the date of the operation that will lead to the increase in PPI, the Court sets Ms. Scanlan’s total PPI at 15%. [ 58 ] The certainty of the future injury must be assessed in accordance with the standard of probability. The appellant did not file an expert report, and the judge had to rule on the basis of the only evidence presented to him.

This constitutes a reasonable exercise of discretion and is a task of the trial judge that an appellate court should not overturn absent a palpable and overriding error. [ 59 ] That is not the case. [ 60 ] Moreover, the regime of art 1615 CCQ is of no assistance because it limits the recourse to a period of three years, whereas the arthroplasty could take place after that time. In such case, there would not be full compensation of the damages. This provides ample justification for the trial judge’s decision not to apply this regime.

MITIGATION OF DAMAGES [61] The trial judge noted that the respondent, who is a trainer employed by the Montreal Athletic Association (MAA), hasresisted taking medication and postponed the total arthroplasty so as not to rush things. [62] I see nothing in these observations that comes close to a refusal to mitigate the damages, as the appellant argues, and the trialjudge was well founded in dismissing these assertions. [63] I find that the grounds of appeal disclose no palpable and overriding error of law or fact in the judgment.

The trial judgeexercised his discretion judicially, and his judgment reflects a rigorous and careful analysis based on all the evidence. In my view, theappeal should be dismissed with costs. RICHARD WAGNER, J.A. [9] Lewis (Guardian ad litem of) v. British Columbia, (SCC), [1997] 3 SCR 1145.