COURT FILE NO.: 754/2001

DATE: 20030319

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

LAWRENCE HALLOK

Plaintiff

• and -

TORONTO HYDRO ELECTRIC SYSTEM LIMITED

Appellant (Defendant)

• and -

PARK LAWN CEMETERY COMPANY LIMITED and PARADISE MAUSOLEUM

Respondent (Appellant by Cross Appeal) (Defendant)

Mr. A. Evangelista, for the Appellant (Defendant)

Mr. R. Preyra for the Respondent

HEARD: February 19, 2003

THEN J.:

Overview

1Toronto Hydro and Park Lawn appeal from the decision, dated November 2, 2001, of Deputy Judge R. Priddle in favour of the plaintiff who is not a party to the appeal as he has been paid in full for damages to his electrical equipment.

2On July 20, 2000 a power surge occurred as a result of a broken limb from an elm tree located on Park Lawn’s property coming into contact with high voltage wires. The trial judge granted judgment in favour of the plaintiff against both defendants and apportioned liability on the basis of 20% for the appellant Toronto Hydro Electric System Limited (Toronto Hydro) and 80% for the respondent, Park Lawn Cemetery Company Limited (Park Lawn).

3At trial, both defendants filed Defendants’ claims against each other. Toronto Hydro sought to hold Park Lawn responsible in the amount of $4,766.62 for the damages incurred by the plaintiff and for the damages caused to Toronto Hydro’s equipment. Park Lawn sought contribution and indemnity against Toronto Hydro for any amount required to be paid to the plaintiff.

Relevant Facts

(i) Evidence as to the cause of the incident

4Subsequent to the incident Mr. Callighen, the Supervisor of Capital Work Maintenance for Toronto Hydro investigated the area where the hydro line had been broken and observed a blackened and charred branch. He also observed a “shiner” or a fresh wound in a tree above the top wires. This tree was located on Park Lawn’s property and was in proximity to the charred branch.

5Mr. Hall, a forestry inspector for Toronto Hydro also independently observed the charred branch but did not observe the “shiner” described by Mr. Callighen. In Mr. Hall’s view the branch which encountered the wires was a dead branch which fell from a “stone dead tree” in the area.

6No photographs were taken by these witnesses of either the branch or the “shiner” nor was the branch recovered.

(ii) Evidence as to the maintenance of the trees adjacent to the power lines

7Mr. Hall testified that Toronto Hydro has a comprehensive line pruning program which operates on a three year cycle premised on the species of trees and their respective growth rates. The forestry department undertakes to trim trees back from power lines and conductors, in order to provide sufficient clearance even if the trees are on private property. With respect to the instant case, he observed that all the trees behind the chain link fence on Park Lawn’s property were within clearance.

8Mr. Gordon Hunter, a Toronto Hydro forestry supervisor, was qualified as an expert witness in abroculture and testified that the standard for line clearing in the industry is a three year cycle. Mr. Hunter testified he did not find any evidence of a reasonable system of maintenance of Park Lawn’s trees on the part of Park Lawn. In his view the existence of dead wood in a tree is potentially dangerous. Ms. Enright a witness for Park Lawn admitted there was no system in place to identify limbs which may come down upon the power lines.

9There was no cross-examination nor evidence called to suggest that the Toronto Hydro clearance programme was not within industry standards.

10The trial judge in holding both defendants liable in negligence made the following finding of fact with respect to Toronto Hydro:

Also, despite Toronto Hydro’s three year cyclical program, employees should have been particularly alert to the potential hazard to its high voltage lines caused by extremely tall, slim elm trees.

11With respect to Park Lawn the trial judge found as follows:

Despite submissions of Park Lawn’s counsel to the contrary, Park Lawn did not have a program of routine inspection of trees on its property to identify potentially hazardous conditions. Having regard to the unusual growth habit of either Chinese or Siberian elms, Park Lawn failed to maintain an adequate inspection and maintenance program.

. . . Whether or not the broken limb that caused the problem was alive or dead, the fact seems to be that the branch from the tree on Park Lawn’s property broke and caused the power outage.

12The trial judge then concluded that both Toronto Hydro and Park Lawn were liable in negligence in the following terms:

In the circumstances of this case, each of the defendants, Toronto Hydro and Park Lawn, should have been aware of the potential damage that could be caused by elm trees on Park Lawn’s property, having regard to their height and their proximity to the high voltage power lines, and both failed to take appropriate precautionary measures to avert a power disruption, such as that occurred, or possible damage of other types to persons or property.

. . . This failure amounted to negligence attributable to the defendants, Toronto Hydro and Park Lawn.

13In assessing whether the trial judge has committed reversible error this court must be guided by the standard of appellate review posited by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 where at paras. 36-37 the Court states the following:

Questions of mixed fact and law involve the application of a legal standard to a set of facts. Where the question of mixed fact and law at issue is a finding of negligence, it should be deferred to by appellate courts, in the absence of a legal or palpable and overriding error. Requiring a standard of “palpable and overriding error” for findings of negligence made by either a trial judge or a jury reinforces the proper relationship between the appellate and trial court levels and accords with the established standard of review applicable to a finding of negligence by a jury. Where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. . . .

. . . A determination of whether or not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed fact and law, and is thus subject to a standard of palpable and overriding error, unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law, subject to a standard of correctness.

The Liability for Negligence of Park Lawn

14It would appear to be common ground that a property owner, such as Park Lawn, cannot be held responsible for damage resulting from a limb on a tree falling simply on the basis that the limb or tree fell. If the evidence does not establish that there was knowledge on the part of the defendant, Park Lawn, of a dangerous condition of a tree or that there was a dangerous condition of which the defendant Park Lawn ought to have knowledge, a finding of negligence is unavailable as a matter of law. (See: Culley v. Maguire, [1957] O.J. No. 52 (C.A.) at p. 1; Quinlan v. Gates, [2000] O.J. No. 5292 (S.C.J.) at p. 2; Buttoni et al. v. Henderson et al., 21 O.R. 309 (H.C.J.) at p. 371; Doucette v. Parent, [1996] O.J. No. 3493 (Gen. Div.) at p. 4; Gasho v. Clinton (Town), [2001] O.J. No. 4505 (S.C.J. (Small Claims) at p. 4).

15In the instant case, there was evidence that the power surge was caused by a dead limb in the opinion of Mr. Hall. Also, there was expert evidence from Mr. Hunter that the dead limbs constituted a hazard. However, there was evidence of Mr. Callighen that the power surge was caused by a live branch as evidenced by the "shiner” he observed.

16In the circumstances of this case, notwithstanding the evidence of Mr. Callighen, had the trial judge found as a fact that the power surge was caused by a dead branch, he could then have determined whether Park Lawn knew of the hazard posed by the dead branches in its trees or ought to have known of this hazard. Having found that Park Lawn had no adequate system of inspection in place it would then have been open to the trial judge to have found that Park Lawn was liable in negligence on the basis that it ought to have known of the hazard posed by the dead limbs in its trees had an adequate, or indeed, any system of inspection, been in place.

17However, the trial judge specifically made no finding as to whether the power surge was caused by a limb which was alive or dead but found that it was relevant only that a branch from one of Park Lawn’s trees caused the damage. In adopting this approach the trial judge erred in law. If as suggested by Mr. Callighen the limb was alive, then there is no evidence that limbs which were alive constituted a hazard. A fortiori no potential damage would have been foreseeable, nor indeed, would any potential damage from alive limbs be subject to detection, by any system of inspection no matter how sophisticated. (See: Doucette v. Parent, [1996] O.J. No. 3493).

18I adopt the following statement of law outlined by Quinn J. in 654287 Ontario Ltd. v. Windsor (City) at p. 2:

There was an onus on the plaintiff to prove on a balance of probabilities that the defendant was negligent. The fact of the tree falling does not shift the onus. Trees fall for many non-negligent reasons… In order for the defendant to be called upon to call evidence as to the reasonableness of its inspection system the plaintiff must first adduce direct or circumstantial evidence which establishes on a balance of probabilities a prima facie case of negligence.

19In my respectful view, in the absence of a specific finding of fact that the power surge was caused by a dead limb, there can be no prima facie case of negligence in the circumstances of this case. Pursuant to the authorities to which I have referred, neither the fact that a limb from Park Lawn’s property caused the power surge or that Park Lawn’s system of inspection was inadequate are sufficient in themselves to render Park lawn liable. Accordingly, the trial judge erred in applying the wrong test in holding Park Lawn liable. Therefore, at a minimum, the trial judge fell into palpable and overriding error.

20Section 134 of the Courts of Justice Act outlines the powers of a court to which an appeal is taken:

Powers on appeal

134. (1) Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

Determination of fact

(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case,

(a) draw inferences of fact from the evidence, except that no inference shall be drawn that is inconsistent with a finding that has not been set aside;

(b) receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs; and

(c) direct a reference or the trial of an issue, to enable the court to determine the appeal.

New trial

(6) A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.

Idem

(7) Where some substantial wrong or miscarriage of justice has occurred but it affects only part of an order or decision or some of the parties, a new trial may be ordered in respect of only that part or those parties.

21In applying s. 134 to the facts of this case, Mr. Evangelista on behalf of Toronto Hydro urged the Court not to order a new trial on the issue of the liability of Park Lawn but to find, on the basis of what he described as “overwhelming” evidence, that the power shortage was caused by a dead limb, and thereafter, to hold Park Lawn liable in view of the finding of fact made by the trial judge as to the inadequacy of its system of inspection.

22In my view, it would be inappropriate for this court to accede to Mr. Evangelista’s request in the circumstances. Given that there is conflicting evidence from Mr. Callighen and Mr. Hall, both witnesses called by Toronto Hydro, on the issue of the cause of the power surge, it is uniquely for the trial judge to determine on the whole of the record how the power surge was caused, and, then to determine the liability of Park Lawn based on that finding as well as any other finding as to hazards presented by the condition of the trees in the context of any system in place to detect those hazards.

23I am unable to say that the approach taken by the trial judge to the liability of Park Lawn has not caused a substantial wrong or miscarriage of justice. Accordingly, the cross-appeal of Park Lawn shall be allowed and there shall be a new trial pursuant to s. 134(1) and (6) of the Courts of Justice Act before another judge of the Small Claims Court on the issue of the liability of Park Lawn.

The Liability for Negligence of Toronto Hydro

24The uncontradicted evidence before the trial judge was that Toronto Hydro had adhered to a three year cyclical program of tree inspection which conformed to industry standards in terms of duration and species of trees and which had kept the trees within clearance limits on the date of the incident. Nevertheless, the Deputy Judge in assigning liability to Toronto Hydro concluded that “employees should have been particularly alert to the potential hazard to its high voltage lines caused by extremely tall, slim elm trees”.

25Counsel for Park Lawn seeks to support this terse conclusion on the basis that the trial judge was implicitly applying the high standard for the maintenance of trees proximate to power lines imposed on power companies by the Supreme Court of Canada in Amos (next friend of) v. New Brunswick Electric Power Commission, 1976 160 (SCC), [1977] 1 S.C.R. 500. However, in Amos, supra, there was only causal evidence of a system of inspection once every four to seven years which the Power Commission may or may not have adhered to.

26In the present case there was uncontradicted evidence of a three year cyclical inspection, which had been adhered to, which conformed to industry standards, and which had resulted in sufficient clearance in terms of industry standards. In the face of this evidence and given that the trial judge made no finding of fact as to whether the power surge was caused by a live or dead branch, it was incumbent upon the trial judge to explicitly identify the standard of care on the part of Toronto Hydro and to then determine, on the basis of the evidence adduced, whether the system of inspection was adequate. In the absence of any analysis whatever, and in the absence of any consideration of the evidence of system of inspection adduced by Toronto Hydro, there is grave risk that the bare conclusion of the trial judge may be based on a misapprehension of highly relevant evidence or a disregard of relevant evidence. In the circumstances of this case, I am not satisfied that the trial judge either appreciated the legal test to be applied to Toronto Hydro to determine liability or even if he did, whether he properly applied the evidence to that test. It follows that in assessing the liability of Toronto Hydro the trial judge fell into palpable and overriding error.

27I am unable to say that the approach taken by the trial judge to the liability of Toronto Hydro has not resulted in substantial wrong or miscarriage of justice. Accordingly, the appeal of Toronto Hydro is allowed and a new trial is ordered pursuant to s. 134(1) and (6) of the Courts of Justice Act on the issue of the liability of Toronto Hydro before another judge of the Small Claims Court.

28The appeal and cross-appeal are allowed and a new trial is ordered.

29Success is divided and accordingly there shall be no order as to costs.

Then J.