Plaintiff was struck by streetcar while attempting to cross road at median planted with trees, and onto fixed rails. Plaintiff commenced action against operator of streetcar, transit agency, and city. Transit agency brought motion for summary judgment. Motion sought dismissal of action against city. Transit agency admitted legal responsibility for maintenance and structure of trees on median. Motion dismissed. Agency and city had different view regarding responsibility for trees and mediation. Transit agency’s admission could not bind another party. Section 398(1) of City of Toronto Act, 2006 did not require that claim against city be struck. To apply, s. 398(1) required that claim relate to transit agency’s property. Median and trees were owned by city. Agreement between transit agency and city to share costs and responsibility of maintenance did not alter result. Transit agency’s wish to assume all liability did not automatically remove city as co-defendant. Plaintiff was entitled to continue action against potentially liable city.
Agarwal v. Lee (Jul. 3, 2015, Ont. S.C.J., Hood J., File No. CV-08-00356047) 256 A.C.W.S. (3d) 711.