Lyng v. Ontario Place Corporation, 2022 ONSC 1861

Court File and Parties

Court File No.: CV-17-62908

Superior Court of Justice

Between:

Patrick Lyng

Plaintiff

- and -

City of Toronto, Ontario Place Corporation and The Province of Ontario Waterfront Toronto

Defendants

Reasons for Judgment

Before The Honourable Justice T. Skarica

On: February 16, 2022, at Hamilton, Ontario

Appearances:

J. Scarfone/J. Sazio, Counsel for the Plaintiff M. Forget/E. Murtha, Counsel for the Defendant Ontario Place

Reasons for Judgment

Skarica, J. (Orally):

This is regarding the trial of Patrick Lyng and Ontario Place Corporation.

Overview

Patrick Lyng, just 21 years old, attended a Toby Keith concert at Ontario Place on July 14th, 2016. After the concert was over, Patrick Lyng and his friend exited the concert and made their way to a bridge which provides the shortest distance to the nearby Go Station on most occasions. The bridge, however, was closed. The grounds were wet due to heavy rainfall that day. Patrick Lyng then followed his friend down a wet grassy hill beside the bridge. At the bottom of the hill, Patrick Lyng suffered a serious knee injury. Patrick Lyng at this trial seeks compensation for his injuries from Ontario Place pursuant to the Occupiers Liability Act.

Issues

1Regarding liability, did Ontario Place exercise reasonable care in the circumstances to make their premises reasonably safe?

2Regarding damages, what damages are payable to Patrick Lyng in order to compensate him for his injuries?

Patrick Lyng - Personal Details

The plaintiff Patrick Lyng is currently 28 years old and lives with his wife in St. Catharines. The couple are expecting their first child in August 2022. Mr. Lyng is an apprentice plumber who is expected to become a fully qualified journeyman plumber by approximately March of 2022.

Issue Number 1 – Liability

The Incident

I will refer to the circumstances regarding the injury as the incident.

Dan Anderson

The first witness I will refer to is Dan Anderson. Dan Anderson is a lifelong friend of Patrick Lyng. Mr. Anderson is a senior financial analyst with a local company. Dan Anderson attended the Toby Keith concert with Patrick Lyng. They took the Go train to the Exhibition Station. They got off at the station and followed the crowd to the concert. This is Dan Anderson’s evidence: They went initially east, then south to Lakeshore and then either directly east or south and then east to the concert. Mr. Anderson was not aware of the Indy Molson race. It started raining at about 7 to 7:30 p.m. during the concert. It rained heavily during the concert. They stayed until 11 p.m. Mr. Anderson’s estimate is that he and Patrick had no more than three beers each. When they left the concert, they followed the crowd to the bridge. There was a gate and a security guard blocking access to the bridge. The crowd then went down the side hills on either side. Mr. Anderson followed the crowd and went right down the hill. Mr. Lyng followed behind. The grass on the hill was wet and slippery. Mr. Anderson skidded down the hill, sliding a little as he gained speed. He reached the sidewalk and skidded down the remaining hill slowing himself down. At no time did Mr. Anderson fall to the ground. That was his testimony. It was fairly dark on the hill according to Mr. Anderson. Mr. Anderson, in cross-examination, indicated he did not see any danger in taking the slope down the hill. In his will-say, there is no mention of his skidding down the hill. Mr. Anderson indicated he had told Mr. Scarfone, the lawyer for the plaintiff, about the skidding but it did not get written down in the will-say. The sidewalk was not slippery. The remaining bit of grass between the sidewalk and the road was approximately 6 feet. He did not have any difficulty traversing it but he did skid on that grass. Mr. Anderson did not see Mr. Lyng’s fall. Mr. Anderson turned around and saw Mr. Lyng on the ground in the middle of the street. Mr. Lyng’s entire body was on the road. When Mr. Lyng leaned back, his head was above the curb. When the security guards and medics came, Mr. Anderson was sitting on the curb after calling them. Mr. Lyng was holding his injured leg. Mr. Lyng told the paramedics he had fallen and hurt his knee and could not get up. While it was fairly dark on the hill, there was more streetlight at the bottom of the hill facing the pavement and you could see where you were going. The medics were there for 10 minutes. They decided to take a cab to the hospital and Mr. Anderson went with Mr. Lyng to the hospital. I find Mr. Anderson to be a very credible and honest witness.

Patrick Hogan

Mr. Hogan on July 14th, 2016, worked as security guard for ASP Security Services. Mr. Hogan was part of a seven man/woman security guard team whose job it was to secure the grounds outside of Ontario Place during the concert. There were about 12,000 to 15,000 people, according to Patrick Hogan, who had attended the Toby Keith concert. The day was very hot with severe thunderstorms which subsided halfway through the concert. Everything was completely soaked and wet according to Mr. Hogan. The pedestrian bridge was closed. This bridge connects to the shortest path to walk to the Go Station and streetcars. The bridge was closed and there was a guard and a gate preventing people from going on to the bridge. There was no signage that the bridge was closed. There was no barrier preventing people from going down the hill on either side of the blocked bridge. There was nothing to prevent people from going up to the bridge upon exiting the concert. Mr. Hogan does not know if there were any announcements informing people they could not access the bridge. There were no posted instructions telling people they could not cross the bridge. Mr. Hogan fills out a daily occurrence report. He did so on July 14th, 2016, the day of the concert. In that report, Mr. Hogan indicates he found a person laying on the road outside Ontario Place. Mr. Hogan wrote the following on the occurrence report for July 14th, 2016, and this report appears at Exhibit 5A, tab 4, page 23, dated July 14th, 2016, authored by Patrick Hogan, shift time 1700 to 2300. There’s a note there at 2210 which states as follows, and Mr. Hogan confirmed that this was his note, “Security guard Hogan attended a patron who had fallen and hit his knee on the pavement. Security guard Hogan had the in-house medical attend to the man.” Mr. Hogan testified that the area near the gates where the injured man was found is not considered an area of danger. The bridge was closed at both ends of the bridge and a security guard was posted there to prevent access to the bridge. The bridge was closed because “they” did not want people to drop litter on the Lakeshore which was closed for the Molson Indy, and that is Lakeshore Road. There were heavy thunderstorms on and off during the concert. On the video taken at about 11 p.m., which was tendered as an exhibit, people can be seen exiting the concert. More people were going east than west. No one had entered the concert from the bridge as it had been closed. Regarding the injured man, Mr. Hogan recalls that the man was mildly intoxicated. In an email sent to Cliff Sampogna, Mr. Hogan’s supervisor, Mr. Hogan wrote on July 25th, 2016, this is 11 days after the event, the following, and this email can be found at Exhibit 5B, tab 23 at page 684. Mr. Hogan writes in the email, Monday, July 25th, 2016, 12:11 p.m., he indicates, “The only slip and fall that we attended was at 2210 as the show was letting out. An intoxicated young man said he fell onto his knee on pavement. Nobody from the shift saw the fall. But when I saw the man laying on the road, I attended. He said he heard a crack when he landed and did not try to get up. I called the on-side medical and stayed with him until they came out.” Mr. Hogan, in cross-examination, testified that when he first saw Mr. Lyng, Mr. Lyng was entirely on the road. Mr. Hogan indicated that Mr. Lyng was wearing flip-flops.

Kayla Goncalves

Mr. Goncalves is a paramedic. She was assigned as a paramedic with her partner Guiseppe Manduca to work the Toby Keith concert. Security called her over the radio shortly after 11 p.m. She can be seen on the video which was entered as Exhibit 5C at 11:15:05 as she was responding to the call. She and her partner followed the pathway to the area where the injured man was at the bottom of the hill at the bend on the roadway. The man was sitting on the curb leaning back on the curb. She has been trained to fill out on a clinical information report all important clinical information in her interactions with patients. She has been trained to sign and initial the form so that it can not be altered afterward. With reference to Patrick Lyng, they attended upon him at 2315 regarding a left knee injury. Mr. Manduca and her spoke to Mr. Lyng. They both heard what Mr. Lyng said. Mr. Manduca wrote Mr. Lyng’s comments down virtually as he was making them. She heard the comments, checked Mr. Manduca’s notes and confirmed on the report with her initials that the form accurately indicated what Patrick Lyng told her and Mr. Manduca. Under the column history of condition in the clinical information report, Mr. Lyng is reported to have told the two paramedics the following, and that report is found at Exhibit 3, tab 30, the joint medical brief. It indicates that, under nature of call, left knee injury, history of condition, “Patient jumped down hill. Patient landed on a straight left leg. Patient heard a pop and fell to the floor” and she has initialed it. She recalls Mr. Lyng telling her he was fooling around and jumped and landed on a straight leg. She gave him an ice pack and did not put a splint on the knee as Mr. Lyng wanted it done in a different way. She called an ambulance but there was an extensive delay. The paramedics were with him from 11:15 p.m. till approximately midnight. Mr. Lyng eventually left the scene in a cab with his friend. Mr. Lyng expressed that he had a couple of drinks but he was not intoxicated. Ms. Goncalves, in cross-examination, confirmed that both her and her partner heard Mr. Lyng’s comment that he jumped down the hill. Mr. Lyng told them he was on the path and jumped from the path to the asphalt below and he landed on a straight leg. She denied that he said he slipped. If Mr. Lyng had said he slipped, that would have been written on the report as jumping and slipping are important details in regard to what caused the knee injury.

Guiseppe Manduca

Guiseppe Manduca was also called regarding the clinical information report reproduced at Exhibit 3, tab 30 at page 317. He is a fully licenced paramedic since 2015. On July 14th, 2016, he worked the Toby Keith concert at Ontario Place with Kayla Goncalves. A security guard called them to attend a patient. At about 11:15 p.m., they attended upon a man by the bridge near the section of grass between the bike path and the road. The man was sitting on the pavement. It was a well-lit area and the lighting was good. Mr. Manduca confirmed he filled out the clinical information report while they were alongside the patient. Patrick Lyng, the patient, told them that Patrick had a few drinks. The area was wet. Patrick indicated he jumped landing on a straight left leg and injured his knee. In cross-examination, Mr. Manduca confirmed Patrick told him he tried to go down the hill and knew it was slippery. As jotted down in the report, Patrick indicated he jumped down hill and landed on a straight left leg. Patrick heard a pop and fell to the floor. Mr. Manduca’s impression was that Patrick jumped from the pathway before the grassy area at the bottom of the road. Patrick said he had a few drinks. Patrick said, “I know better.” Patrick was not slurring his words and there were no signs of impairment.

I find that the two paramedics were very forthright in their evidence and they are credible witnesses and I accept their evidence in its entirety.

The incident according to Mr. Lyng

He testified that on July 14th, 2016, Mr. Lyng and his friend Dan Anderson went to the Ontario Place, Toronto to see a Toby Keith music concert. Mr. Lyng testified he does not believe he wore flip-flops but wore the sneakers depicted in Exhibit 2. Lyng and Anderson got off at the Go Station at Exhibition Stadium at about 6:30 p.m. and walked over to the concert at Ontario Place. The concert started at about 7 p.m. and ended around 10 p.m. Mr. Lyng consumed two to four beers during the concert. He testified he was not intoxicated. There was a heavy downpour near the end of the concert and Mr. Lyng’s clothes and shoes got wet. When leaving the concert, Mr. Lyng testified that a number of people who were leaving flowed east. However, Mr. Lyng went slightly west toward a bridge he had taken in the past in order to return to the Go Station. When he got there, the bridge had been blocked off by security guards. Mr. Lyng followed the crowd who went around a concrete embankment to enter onto a grassy area on a hill leading down to the roadway. Mr. Lyng does not recall lights being on. The first part of the hill was slippery. Page 15 at tab 4 of Exhibit 2 has a photo that depicts the accurate location of where he fell. Mr. Lyng indicated the grass was wet. Mr. Lyng testified he slipped on the grass and then pushed off the hill and landed on his foot with a straight leg and heard a pop and landed on his knee on the pavement and his knee got scraped. Mr. Lyng denied jumping down the hill and landing on a straight left leg. Mr. Lyng denied telling the security guard he jumped. Mr. Lyng denied that he jumped down the hill. Mr. Lyng testified in-chief that, regarding the comments noted at the joint medical brief, that is Exhibit 3, tab 1 at page 12, where it is indicated that he said he jumped, Mr. Lyng testified he does not recall explicitly saying he jumped. In cross-examination, Mr. Lyng indicated he was 21 years old at the date of the incident. Mr. Lyng testified he was not drunk and had two to four beers at the concert over three to four hours but he was not necessarily counting. It started to rain but the concert continued. There was a downpour and Mr. Lyng’s clothes and shoes were drenched. Mr. Lyng had no problems with walking and seeing. Mr. Lyng was shown a video, taken on July 14th, 2016, at 11 p.m. in the area where he left the concert. A lone security guard can be seen directing some people in an easterly direction. Only a relatively small portion of the actual crowd of 8,500 can be seen on the video. Mr. Lyng went around a hot dog stand and went west toward a bridge he had taken a year before. Mr. Lyng, after viewing the video, agreed there were no visibility issues walking to the bridge. It was well lit. Mr. Lyng said, however, it was not bright. As he got close to the bridge, security guards said it was closed. Some people turned back. Other people went around a concrete barrier and walked right of the bridge and walked down the lawn on the hill leading down to the road. Mr. Lyng made a decision to walk down the lawn on the hill. He knew the grass was wet. Mr. Lyng confirmed he walked down the hill onto a bike path. His right foot slipped on the incline just before the road. He pushed himself off the hill. Mr. Lyng admitted that he had seen his friend, who was 10 to 15 feet in front of him, slip and fall backward on the incline between the bike path and the road. His friend fell backwards and then got up. His friend was 15 feet ahead of Mr. Lyng. Mr. Lyng testified that he slipped in that same area. His right foot began to give way and he went forward. Mr. Lyng conceded he could have taken shorter steps or taken an alternative route further down the bike path where the pictures show that the bike path merges with the road. Mr. Lyng testified he had full knowledge of the danger when he was on the bike path after seeing his friend fall. He testified as follows in cross-examination at page 69 of the trial transcript of his evidence:

Q. You agree you had full knowledge of the danger that was according to your evidence, full knowledge of the danger that was in front of you?

A. Once on the danger, yes, sir. [that’s the answer]

Q. No, no, no, no. Not once you’re on the danger, at the time you’re standing on the bike path, you’re not in any danger, right?

A. Yes. [and the answers are Mr. Lyng’s answers]

Q. At the time, right?

A. I understand what you’re trying to say now, yes.

Q. Yeah. At the time you’re standing on the bike path you’ve already seen your friend fall?

A. Yes, sir.

Q. So you have full knowledge of the danger that, the potential danger that’s in front of you, right?

A. Yes, sir, after seeing my friend fall.

Q. And you understand at that point the presence of it, the risk of, you saw your buddy do it, you agree that you took the risk?

A. To get home, to follow my friend, that’s all I was trying to do.

Q. You wanted to get to the road and you took the risk that you were going to fall. Do we agree? Do you agree that you did that, sir?

A. I agree that there was a risk there. Like I said, I was just trying to get home. That’s all it was.

Q. You agree you took the risk of falling. You had full knowledge of it. You took the risk, sir, to get to the road?

A. Yes, sir.

Accordingly, Mr. Lyng confirmed he took the risk of falling in order to get on the road. Mr. Lyng repeatedly denied he jumped and repeatedly denied he told anyone he jumped. This testimony is contradicted by the statements attributed to Mr. Lyng by the following professionals who have an obligation and duty to write what happened on records:

1. The triage nurse’s notes at the Toronto Western Hospital taken on July 15 shortly after midnight, that’s at 1224, and this appears in Exhibit 3, tab 1, page 12. The triage notes indicate that there was a visit by Mr. Patrick Lyng, July 15, 2016 at shortly after midnight, 1224, and under history and assessment this note appears, “admits to drinking tonight, jumped down a hill and landed on left knee, stated heard a pop, CO left knee pain, unable to place weight on left knee. No numbness, tingling. Alert.”

2. The notes of the paramedics we have referred to. I think it is important to refer to them again. The notes of the paramedics who attended upon Mr. Lyng and who I found to be honest, credible witnesses, there is a note on the report that they prepared, dated July 14th, 2016 at 11:15 p.m. and this appears at Exhibit 3, tab 30, page 317 in the joint medical brief. As I have indicated and I will read it again, the history of condition jotted down by the two paramedics was that the “Patient jumped down hill. Patient landed on a straight left leg. Patient heard a pop and fell to the floor.”

There is a note that appears by a therapist, dated 2016/06/09 at page 225 of Exhibit 3 and this is the therapist Mat Mori and the date is 2016/06/09. I am assuming that is September 6, 2016. In any event, their note appears a follows, and this appears at Exhibit 3, tab 16, page 225, “patient injured knee, the left knee in June walking back from Toby Keith concert at Molson Amphitheatre and jumped down from little hill. Knee twisted a weird way. Went to ER, then had appointment with family doctor. Was able to get MRI and appointment with Dr. Mah the next day. Results were complete tear of ACL and meniscal tear and grade 1 MCL sprain”.

Mr. Scarfone for the plaintiff points out that two days after the incident on July 18, 2016, Mr. Lyng told a Dr. Woods as per Dr. Woods’ note at Exhibit 3, page 236, that Mr. Lyng told Dr. Woods he slipped and fell. This note just further affirms that Patrick Lyng was telling different people different things. The most credible version, in my opinion, comes from Patrick Lyng telling various medical personnel virtually contemporaneous with the event that he jumped. It is to be noted that two of those medical personnel, the paramedics, testified at this trial and gave credible evidence which I accept.

Mr. Lyng testified he does not recall making statements that he jumped. He denies jumping and denies telling anyone he did. An obvious untruth.

A review of other witnesses who were with Patrick Lyng at or shortly after the fall reveal important contradictions with Patrick Lyng’s version of events. For example, Patrick Lyng’s evidence is contradicted by the following sworn evidence on material important details of the incident:

1. Patrick Lyng testified he saw his friend Dan Anderson fall down on the very hill that he, Patrick Lyng, slipped on and then Lyng fell forward onto the road pavement. Mr. Anderson testified he skidded down the hill, sliding as he went. Mr. Anderson testified that at no time did he, Mr. Anderson, fall to the ground. I find Mr. Dan Anderson to be a credible, honest witness. I find that Mr. Anderson did not fall to the ground as described by Mr. Lyng.

2. Patrick Hogan, the head ASP Security guard, testified that on July 14th, 2016, it was a very hot day with severe thunderstorms which subsided halfway through the concert. Everything was completely soaked and wet. Mr. Lyng testified that he wore sneakers as depicted in Exhibit 2 in his testimony. Mr. Lyng testified he does not “believe” he wore flip-flops. Patrick Hogan testified that when he approached the injured Patrick Lyng, Mr. Lyng was wearing flip-flops. Other than overestimating the size of the crowd, I find Mr. Hogan’s evidence to be credible and reliable. Mr. Hogan documented his involvement shortly after the incident although he did not document the flip-flops that he saw, but I accept that he did.

3Kayla Goncalves testified that she and her fellow paramedic Guiseppe Manduca attended upon the injured Patrick Lyng. She testified that both her and Manduca heard Mr. Lyng give the following account which Manduca wrote down on the clinical information form. I have already read it two times but for a third time: “Patient jumped down the hill. Patient landed on a straight left leg. Patient heard a pop and fell to the floor.” Ms. Goncalves initialed Manduca’s note regarding Mr. Lyng’s account of what happened. From her recollection, she recalls Mr. Lyng telling her he was fooling around and jumped and landed on a straight leg. I find Ms. Goncalves, as I have indicated, to be an honest, forthright witness who with Mr. Manduca made immediate notes contemporaneous with what Mr. Lyng was telling both Manduca and Goncalves.

4Guiseppe Manduca also testified that he and Kayla Goncalves attended upon the patient Patrick Lyng. The area was wet. Mr. Manduca confirmed he filled out the clinical information report while he and Kayla were alongside Mr. Lyng. Mr. Manduca testified he wrote down Mr. Lyng’s account as follows, for a fourth time, “Patient jumped down hill. Patient landed on a straight left leg. Patient heard a pop and fell to the floor.” Mr. Manduca testified that Patrick Lyng said he had a few drinks and said, “I know better.” I find Mr. Manduca, as I have indicated also, to be an honest forthright witness who carefully documented his interactions with Mr. Lyng virtually contemporaneous with the event.

Putting it all together, I do not believe Patrick Lyng’s version of events regarding his fall. Patrick Lyng’s version is materially contradicted by witnesses called by both the plaintiff and defendant and notes of medical professionals who had a duty to make accurate notes, and they were also made contemporaneous with speaking to Mr. Lyng.

I conclude that they hill was very slippery and wet after a day long substantial downpour. Patrick Lyng had a few drinks and was fooling around as could be expected from a 20 year old young man. He decided to jump over the last six feet of the hill. He was wearing flip-flops. I find, based on all the evidence, that Patrick Lyng after jumping, landed awkwardly on his straight left leg and tore his ACL.

Read-ins

Patrick Lyng was examined for discovery on January 16, 2019. Excerpts read in include the following:

1. Mr. Lyng could not recall the pathway he took to get to Ontario Place.
2. The bridge was blocked. There was no signage. Mr. Lyng did not interact with the security guards.
3. When Mr. Lyng walked on the front part of the hill he had no difficult traversing the first portion of the grass and then walked onto the sidewalk.

Scott Walters

Scott Walters was called by the plaintiff as an expert. He was qualified to give expert opinion regarding industrial safety and human factors with a particular expertise in slips and falls. Mr. Walters reviewed a series of photos provided to him by the plaintiff. Those are photos 1 to 4 in his report. Photos 5 to 11 in his report were taken by Mr. Walters on March 25, 2021 at 7:55 to 8:15 p.m. when it became twilight and later in the evening when it was dark. Mr. Walters measured the slope of the hill. The slope of the hill from the bridge walkway to the paved bicycle path sidewalk was 17 percent. The slope of the approximately six feet of grass from the paved bicycle path to the roadway/driveway was 44.8 percent. This steeper slope would put greater downhill force on people walking on it. Photos 6 to 9 in his report accurately reflect what he saw. As revealed in the photos, it gets darker as you progress down the hill slope until you reach the driveway or the roadway. Mr. Walters reviewed two publications. They are at Exhibit 4B, tab 16, The US Event Safety Guide 2013, which relies on a similar document from the United Kingdom, the UK Event Safety Guide, Second Edition; see Exhibit 4C, tab 17. These guides were prepared by a group of professionals setting the safety and design of event venues.

These guides place objective standards put forward by the industry for event design and safety for both people and property. According to Mr. Walters, these event guides are relevant to safety guidelines at event venues which would include the Ontario Place Amphitheatre and the exit routes including the bridge exit in question. The authors of the US guide indicate that it is not their intention to provide a roadmap to assign liability for tragedies, but they are aware that these guides can be used for that purpose and are comfortable with that ancillary effect. See page 5 of the US guide.

Mr. Walters pointed out what he felt were applicable relevant guides to this litigation. Mr. Walters reviewed the US and UK guides in his testimony and pointed a variety of recommendations in the guides that he said were applicable to this litigation. In my opinion, these recommendations are just common sense precautions and I choose not to rely on either the US or UK guides. Instead, I choose to rely on common sense considerations and factors and approach endorsed in the case law. See, for example, Justice Perell’s comments at paragraph 29 in Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, a decision which I will refer to later.

Glen Harden

Glen Harden was called by the defendant. Mr. Harden is the manager of loss prevention and security for Ontario Place which was described as a family-oriented entertainment park. Ontario Place opened in May 1971. The Molson Amphitheatre was completed in May 1995 with a capacity limit of 16,000. It is an open structure where people are able to sit on a gentle grass slope in addition to a regular seating area. Security arrangements are made on a coordinated effort basis with liaison meetings by a variety of attendees including Molson Indy, Toronto police, Ontario Place, the Exhibition grounds and Live Nation Entertainment Corp. Live Nation hires it own security to monitor the area outside the gates, ASP Security. The pedestrian bridge, which is the most direct route from Ontario Place and the Exhibition Go Station is closed for the Molson Indy. There has never been a problem closing the bridge. Ontario Place does nothing outside the gates. However, they do do risk management. For example, they inspect the premises regularly and they rent flood light towers near the gates for extra lighting. The exit areas have fixed lighting and there is light from the parking lot. On July 14, 2016, the Lakeshore was closed for the Molson Indy race. There was a need to install fencing and curbing for the race. The pedestrian bridge was closed due to the need to have equipment moving back and forth for the Molson Indy preparation. Barricades are placed on either end of the bridge and two guards are placed at the barricades at either end to ensure no one goes on the bridge. Ontario Place is responsible for the south end and the Exhibition Grounds are responsible for the north end of the bridge. People would need to be directed by ASP Security staff, who it is anticipated would give directions that the bridge is and was closed. Mr. Harden received the incident report prepared by Patrick Hogan on July 14, 2016. See the report at Exhibit 5A, tab 4, page 23. I have already referred to it.

Crawford Adjusters were contacted and they were to investigate on behalf of the Ministry of Consumer and Corporate Affairs. There were no security changes made as a result of the fall and injury incident relating to Mr. Lyng. There were approximately 240 concerts in 2016 through 2019, approximately 80 per year.

In cross-examination, Mr. Harden agreed that that if he foresees a safety concern, Ontario Place can plan for it. ASP, the security agency, is contracted to have seven total security guards on site for one hour before the gates close and one hour after the gates closed. Of the 80 concerts per year, there are only one or two events per year that the bridge is closed.

Live Nation or ASP security does not reach out to people ahead of time to let them know that the pedestrian bridge is closed. The concert crowd comes out at the centre entrance gates. There are eight gates, four on each side. The people in the crowd go in all directions. Some people will go to the bridge even though it is closed. The two security guards at the pedestrian bridge can give directions. Mr. Harden agreed that if the security guards were not giving directions, that would be a concern. There was no signage indicating that the bridge was closed. Mr. Harden does not know if there were any announcements made at the concert regarding the bridge being closed or whether there were any announcements made giving any directions upon exiting the concert.

With two security guards occupied at the closed bridge, that would leave four security guards closer to the apron. The ASP occurrence report at Exhibit 5A, tab 4, page 23, has no entries regarding anyone giving directions. Mr. Harden conceded there was no safety plan regarding the giving of directions. There were no additional measures implements relating to a dark stormy, rainy evening and the closing of the pedestrian bridge.

Ontario Place gets a percentage of revenues and Mr. Harden is aware that some people will have several beers and will be influenced by alcohol. See for example, the notes in that security report at page 23, Exhibit 5A, tab 4.

The Ontario Place maintenance department has 20 to 30 barriers that it can access. Mr. Harden has the authority to direct where and when barriers can be erected. Regarding the area at the bridge, at Exhibit 1, tab 2, page 6, barriers could have been placed in a position that would have prevented people from going down the hill. It could be done but it has never been done. Mr. Harden indicated that esthetically it would not look right and further it would serve no purpose. The hill does have a steep slope at the bottom at a 45-degree angle. Mr. Harden denied the wet hill was a hazard. Mr. Harden indicated, despite the tree shading and a rainy dark night, there is extra night lit for the concerts. The video shows it was light. Mr. Harden indicated that 8,593 people attended the concert.

Read-ins

The plaintiff read in portions of Mr. Harden’s examination for discovery on April 23rd, 2019. Significant portions include:

1. Mr. Harden testified he gave directions to Patrick Hogan that due to the Molson Indy they were to direct guests east or west in order to exit the park. There were no written instructions.
2. Mr. Harden, at the time of the incident, had directed the pedestrian bridge to be closed because of the Molson Indy.
3. There was no signage directing people where to go. There were staff specifically on the gates so no one would get over the gate.
4. Security people were assigned at the bridge to ensure no one obtained access to the bridge.

5Mr. Harden was aware that patrons blocked by the bridge had several options including going back to the two paths or going down the grass onto the pathway.

6There was no signage put up to prevent people from going down the slope of the grass because physical bodies were there to give directions.

7Mr. Harden agrees that there were no fencing or barriers to stop somebody or prevent somebody from going down the grass embankment. Mr. Harden, when asked if the combination of slope and wet grass would be a slip hazard, answered, “yes, it could be.”

Law

The law regarding Occupiers’ Liability

Section 3 of the Occupiers’ Liability Act indicates as follows:

Occupier’s duty

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Section 4(1) of the Occupiers’ Liability Act reads:

The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

The leading case regarding Occupiers’ Liability are the Waldick v. Malcolm cases. The Supreme Court of Canada version is at 1991 2 SCR, which basically approves of most of the comments made by the Ontario Court of Appeal in the same case and the Court of Appeal version is reported at , 1989 70 O.R. (2d) 717.

Justice Iacobucci, in the Supreme Court of Canada decision, supports the Ontario Court of Appeal decision and dismisses the appeal. Justice Iacobucci indicates as follows at a variety of paragraphs. Paragraph 32:

I am unable to agree with the Malcolms' submissions for several reasons. First of all, I do not agree with the premise of their argument, i.e., that the lower courts failed to consider local custom. In my view, both Austin J. and Blair J.A. gave ample consideration to all the factors which could enter into an assessment of what constitutes reasonable care, including the alleged custom in the rural community involved. A close reading of the judgments below reveals that the learned judges considered, among other things: the weather, the time of year, the size of the parking area, the cost of preventive measures, the quality of the footwear worn by Waldick, the length of the pathway, and the fact that these were rural and residential premises.

Paragraph 33:

The mere fact that the alleged custom was not decisive of the negligence issue does not in any way support the conclusion that it was not considered. After all, the statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation -- thus the proviso "such care as in all circumstances of the case is reasonable". One such circumstance is whether the nature of the premises is rural or urban. Another is local custom, which Blair J.A. explicitly mentions and I view his reasons as considering and rejecting the alleged custom.

At paragraph 46 through 49 of the Supreme Court decision, paragraph 46:

As Blair J.A. noted, several recent decisions of this Court have clarified the volenti doctrine and its place in the current state of the law of torts. In Dube v. Labar, supra, at p. 658, Estey J. reduced the scope of the volenti defence, holding that it will only arise:

...where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant's part. The acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise ...only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to.

Common sense dictates that only rarely will a plaintiff genuinely consent to accept the risk of the defendant's negligence.

Paragraph 47:

Wilson J. further emphasized the exceptional and somewhat anachronistic nature of volenti in light of the current trends in the law of torts. She said at p. 1202 of Crocker v. Sundance Northwest Resorts Ltd., supra:

Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity....

Paragraph 48:

In my view, the legislature's intention in enacting s. 4(1) of the Act was to carve out a very narrow exception to the class of visitors to whom the occupier's statutory duty of care is owed. This exception shares the same logical basis as the premise that underlies volenti, i.e."that no wrong is done to one who consents. By agreeing to assume the risk the plaintiff absolves the defendant of all responsibility for it": per Wilson J. in Crocker, supra at p. 1201. Rare may be the case where a visitor who enters on premises will fully know of and accept the risks resulting from the occupier's non-compliance with the statute. To my mind, such an interpretation of s. 4(1) accords best with general principles of statutory interpretation, is more fully consonant with the legislative aims of the Act, and is consistent with tort theory generally.

Paragraph 49:

Both Austin J. and Blair J.A. were of the view that Waldick did not consent to the legal risk or waive any legal rights that might arise from the negligence of the Malcolms. I agree with their disposition of this ground of appeal and conclude that Waldick is not barred from recovery by the operation of s. 4(1) of the Act.

Blair J.A. in the Court of Appeal decision in Waldick stated as follows, paragraph 19, he refers to, in paragraph 18, to Section 3(1) of the Occupiers’ Liability Act:

Paragraph 19:

A similarly worded statement of an occupier's duty occurs in all other Occupiers' Liability Acts. All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers' liability with the modern law of negligence. The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable". The trier of fact in every case must determine what standard of care is reasonable and whether it has been met. Occupiers are also not liable in cases where the risk of injury is "willingly assumed" by persons entering the premises or to the extent that such persons are negligent. The nature and extent of these two exceptions will be examined later.

So dealing with the Section 4(1) exception, the Court indicates as follows as paragraph 40:

The Act, which is a product of concerns about occupier's liability in the last half of this century, must be taken to reflect current trends in the law of tort. It is consistent with these trends that the operation of s. 4(1) should be restricted to the narrow basis available under the volens doctrine. The narrowness of this doctrine was recently emphasized by Wilson J. in Crocker v. Sundance Northwest Resorts Ltd. [and I will omit the citation]

Since the volenti defence is a complete bar to recovery and therefore anomalous in an age of apportionment, the courts have tightly circumscribed its scope. It only applies in situations where the plaintiff has assumed both the physical and the legal risk involved in the activity.

Regarding the other exception, contributory negligence, the Court of Appeal indicates as follows, paragraph 41:

The learned trial judge rejected the appellant's contention that the respondent was contributorily negligent in failing to take reasonable care for his own safety. Section 9(3) of the Act states:

9(3) The provisions of the Negligence Act apply with respect to causes of action to which this Act applies.

The Negligence Act provides for apportionment where both parties are negligent.

In the case of Gohm v. York, 2013 ONSC 7118, these comments are made regarding Section 3 of the Occupiers’ Liability Act. Justice Gunsolus indicates at paragraphs 20 to 22 and paragraphs 50 and 51 as follows. Paragraph 20:

It has been held in a number of cases that the Act establishes a duty of care only and not a presumption of negligence.

Paragraph 21:

If a person is injured on a premises, a plaintiff must still be able to pinpoint some act or failure to act on the part of the occupier, which caused the injury complained of, before liability can be established.

Paragraph 22:

A reasonable standard is not one of perfection, rather it is a reasonable standard.

Paragraph 50:

His conduct would be deemed negligent if it created an objectively reasonable risk of harm. Under the provisions of the Occupier’s Liability Act, in order to avoid liability, a person must exercise a standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case including foreseeability, the gravity of possible harm and the burden of cost which would be incurred to prevent the injury. In addition, indicators of reasonable conduct, such as custom, industry practice and statutory or regulatory standards can be considered. In the case before me, as I have already said, the plaintiff has not pointed to the act or failure to act on the part of York which caused her injury. She could point to no breach of custom, industry practice, statutory or regulatory standards, by-laws or manufacturer’s recommendations which York breached.

Paragraph 51:

As stated by Goodman, J. in Miltenberg v. Metro Inc., to quote:

There is some inherent risk involved in everyday interactions between individuals in society. An occupier is not required to sanitize their environment to such a degree to negate all inherent risk. What is required is balancing what may be a reasonable course of conduct against the potential for harm. The standard of care for occupiers is one of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks.

In the case of Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, Justice Perell elaborates at paragraphs 9, 10 and 29. I have referred to this case earlier.

Paragraph 9:

The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons on the premises are reasonably safe while on the premises...

Paragraph 10:

The duty of care imposed on the occupier does not extend to the removal of every possible danger; the standard of care is one of reasonableness and not perfection...

Paragraph 29:

It is important for a court to use common sense when applying the statute... Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.

Regarding causation in negligence cases

The Ontario Court of Appeal in Campbell v. Bruce County, 2016 ONCA 371 sets out the causation test as follows at paragraph 53.

Paragraph 53:

The test for causation in a negligence action is the ‘but for’ test – the plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred”.

In the case of Galka v. Stankiewicz, reported initially at 2010 ONSC 2808, affirmed later by the Ontario Court of Appeal at 2011 ONCA 428, application of the ‘but for’ test appears in an Occupiers’ Liability case. Justice Baltman indicates in the lower court decision as follows.

Paragraph 80:

It is true that archery, by its very nature, can be hazardous and cause potentially catastrophic injuries, as this case makes clear. But so can golf, swimming and numerous other activities, where courts have declined to impose liability on the occupier upon finding the plaintiff was responsible for his own demise or the occurrence itself was simply unforeseeable. The governing principle was articulated by the Ontario Court of Appeal in Alchimowicz v. Schram...:

[The City of] Windsor was only required to exercise care against dangers that were sufficiently probable to be included in the category of contingencies normally to be foreseen. In our view, an adult diving off the dock at night into shallow water was not one of these contingencies. To exact a standard as suggested by the appellant would effectively make Windsor an insurer against all possible risks. The law imposes no such duty.

Paragraph 81:

Similarly, in Doyle v. Petrolia...the Court of Appeal overturned the trial judge’s finding of negligence against the Town of Petrolia, on the basis that the occurrence was not “sufficiently probable to be included in the category of contingencies normally to be foreseen by the Town, as required by the test in Alchimowicz...

Paragraph 82:

In this case, in the same vein, I conclude that the incident in question was so unpredictable that the City could not have been expected to foresee or prevent it.

After determining that the two parties were each 50 percent liable, Justice Baltman indicates as follows. Causation, paragraph 85:

In case I am wrong in my conclusion that the City bears no liability, I will also address the issue of causation.

Paragraph 86:

The parties agree the applicable test is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant... The “but for” test is intended to ensure that a plaintiff will receive compensation for negligent conduct only where a substantial connection exists between the injury and the defendant’s conduct. Where the plaintiff’s injuries may well be due to other factors that are not connected to the defendant, no liability will be found.

Both counsel referred me to numerous other cases. I do not find them to be of much assistance. As indicated in Waldick, the duty of reasonable care does not change the factors, which are relevant to an assessment of what constitutes reasonable care, will necessarily be very specific to each fact situation.

Factors relevant to the assessment of reasonable care in this case

I accept Mr. Hogan’s evidence that July 14, 2016 was a very hot day with severe thunderstorms which subsided halfway through the concert. Mr. Hogan testified that everything was completely soaked and wet. I accept that evidence. The evidence clearly establishes that the grass, including the grass on the hill where Mr. Lyng injured himself, was slippery and wet.

I accept Mr. Anderson’s evidence that the grass on the hill was wet and slippery and that he skidded down the hill, both before and after the sidewalk/bike path that is approximately six feet from the roadway.

Mr. Harden testified that the pedestrian bridge in question was closed for the Molson Indy. There were barricades on both the Exhibition end and the Ontario Place end of the bridge. There were two guards placed at the Ontario Place end of the bridge to ensure that no one went onto the bridge. Mr. Harden testified that it was anticipated that APS staff would give direction that the bridge was closed. The pedestrian bridge is the most direct route from Ontario Place to the Exhibition Go Station. Mr. Harden testified regarding what measures were or were not taken.

1. ASP Security does not reach out to people ahead of time to let pedestrians know the bridge is closed.
2. There were 8,593 people at the concert. The concert crowd comes out at the eight centre gates, four on each side. The people in the crowd go in all directions. Some people will go the bridge where security guards “can” give directions. Mr. Harden agreed that if the security guards were not giving directions that would be a concern. The occurrence report of July 14, 2016 at Exhibit 5A, tab 4, page 23 has no entries regarding anyone giving directions. There was no evidence of security guards giving directions with the exception of the video taken at Ontario Place where you can see a security guard seem to speak to a couple of people. It seems to me that if an unknown number of people, which could be dozens, hundreds, possibly thousands of people, were moving in the direction of the bridge, it would be virtually impossible for two guards to provide directions to that many people. It is reasonably foreseeable that once the crowd, however big or small, was blocked from going onto the bridge, that crowd would flow around the bridge and go down the slippery, wet hill which is exactly what happened.
3. Mr. Harden indicated there was no signage that the bridge was closed.
4. Mr. Harden does not know if there were any announcements made regarding the bridge being closed or whether there were any announcements made giving directions.
5. Mr. Harden is aware that alcohol was being served at the concert and people in the crowd would be influenced by alcohol.
6. Ontario Place has 20 to 30 barriers it can access and Mr. Harden has the authority to direct where and when barriers could be erected. Mr. Harden testified that barriers could have been placed in a position that would have prevented people from going down that slippery hill. Mr. Harden said it has never been done and indicated that esthetically it would not look right.
7. Mr. Harden testified that the hill does have a steep slope, 45 degrees at the bottom, and agreed that the hill was wet. However, at trial he denied that the wet hill was a hazard.

8Mr. Harden indicated there was sufficient lighting on the hill due to extra lighting at the concert. Regarding the sufficiency of light at the hill, there was conflicting evidence at this trial and I do not consider it as a factor contributing to the incident. For example, in Mr. Lyng’s cross-examination at page 56, Mr. Lyng testified as follows:

Q. You see the path where you ended up?

A. Yes, sir.

Q. Right. Okay. So you see this, and you can see the bridge in the background of that photograph?

A. Yes.

Q. Right. And you agree that you can clearly see, if you’re standing on that path you can clearly see there’s an incline down towards the road?

A. There’s an incline, yes.

Q. Okay. And you can clearly see that there’s a curb?

A. Yes, sir.

Q. Further down you can clearly see the road?

A. Yes.

Q. You agree that you had no, once you were on the path you have no issues of visibility at all?

A. No, I could see, sir. Yes.

9In the examination for discovery, Mr. Harden indicated he was aware that patrons blocked by the bridge had several options including going down the grass.

10In his examination for discovery, Mr. Harden agreed there were no fences or barriers preventing someone from going down the grass embankment. Mr. Harden, when asked if the combination of slope and wet grass would be a slip hazard, he answered “yes, it could be.”

Putting it all together, Ontario Place blocked the pedestrian bridge and placed two guards to prevent entry onto the bridge. Ontario Place was aware there were heavy downpours for a large part of the day of this concert. This made the hill at the side of the blocked bridge slippery and wet, especially at the steep 45-degree slope at the bottom. I find that Ontario Place was aware that the hill was a slip and/or fall hazard.

Further, Ontario Place was aware that potentially thousands of people would leave the concert and potentially could go anywhere, including the bridge. Without signage or other assistance, it is not reasonable to expect two guards to give adequate directions to an unknown number of people which could include up to hundreds or even thousands of people. It is reasonable to foresee that a significantly sized crowd would approach the blocked bridge and then would go around it onto the wet, slippery, hazardous hill, a situation created by Ontario Place’s blocking of the pedestrian bridge.

Most days a crowd going around the bridge would not be a problem. However, after significant downpours, which Ontario Place was aware of, the wet hill was a hazard. By blocking the pedestrian bridge and making no reasonable effort from preventing the crowd, a number who have been drinking alcohol, from going onto that wet hazardous hill, Ontario Place failed in its duty to take care that persons were reasonably safe while on its premises. Ontario Place had barriers on hand but did not use them. A simple sign on top of the hill could have warned people not to travel down that hill. No such warning sign existed according to the evidence before me. Signs and barriers could have been placed giving directions to the crowd not to approach the closed pedestrian bridge. The bridge was only about 100 feet from the exit gates and it would have been a simple matter to have closed, by barriers, people being able to go up to the closed bridge. The costs of implementing these measures would be minimal. There were absolutely no risks arising from their implementation.

The follow comments by Weekes J in Hutchison v. Daredevil Park Inc., are largely applicable to the present case. In that case, Justice Weekes indicated as follows at paragraph 18.

Paragraph 18:

On balance, I am persuaded that by failing to install a simple sign and a line with a warning not to step beyond it the defendant did not take such care as is reasonable in the circumstances to ensure the users were reasonably safe. It ought to have been within the contemplation of Daredevil Park that an attendant might fail to instruct a customer on how to get into the waterslide. The sign and warning line would have provided the same sort of information as the attendant was required to provide. They would have served as a backup in the event that the attendant failed to perform her duty. The costs associated with implementing these measures would be minimal. There are no risks that arise from their implementation. Mr. Hutchison is an intelligent man who was using the facility in a careful, although misconceived, manner. While it is clear that Mr. Hutchison fell by stepping from the entry tub into the chute itself, had there been a sign warning Mr. Hutchison to sit in the entry tub behind a warning line I believe the accident would likely have been avoided.

I find that it would have been a simple matter for Ontario Place to have blocked access to the bridge, a simple matter to have put barriers to prevent people from going down that slippery hill, and a simple matter to warn people to avoid that hill as it was a slip and fall hazard after a heavy rain. Accordingly, the defendant Ontario Place has failed in its duty as prescribed by Section 3 of the Occupiers’ Liability Act.

Regarding Section 4(1), the defendant argues that Patrick Lyng assumed the risk of going down the hill and Section 4(1) absolves the defendant of liability. This argument fails for two reasons. One, ironically, the defendant’s argument rests on Mr. Lyng’s testimony at this trial at page 69 through 70 that he saw his friend fall and that he took the risk of falling as well. As already summarized, I find that Mr. Anderson did not fall and I believe his evidence that he did not fall. I reject Mr. Lyng’s evidence that he fell. Mr. Lyng, I find, jumped that last portion of the hill. Secondly, it is clear that courts have ruled that Section 4(1) is to be construed narrowly and only applies where Mr. Lyng has assumed both the physical and legal risk in the activity. See Waldick v. Malcolm, Supreme Court of Canada judgment at paragraphs 46 through 49, and the Ontario Court of Appeal judgment at paragraph 40.

There is no evidence before me that Mr. Lyng consented to the legal risk or waived any legal rights given to him by law. In the result, I find that the defendant is liable to the plaintiff for breaching its duty under the Occupiers’ Liability Act.

Apportionment of Liability

I have found that the defendant is liable to the plaintiff under the Occupiers’ Liability Act. I have also found that the plaintiff jumped on flip-flops on a balance of probabilities after drinking alcohol and he injured himself. By jumping, he was negligent.

Regarding causation, the plaintiff should never have been on that wet, steep, slippery hill. It was the defendant’s acts which put him there. Blocking the bridge and not preventing the crowd from going down a fairly steep, slippery, wet hill, which I find was a hazard known to Ontario Place and it was entirely foreseeable that the crowd, once it was blocked from going onto the bridge, would then go on to the hazardous hilly area.

According, the ‘but for’ test is applicable as there is a substantial connection between the injury of the plaintiff and the defendant’s conduct. See Campbell v. Bruce County, at paragraph 53; and Galka v. Stankiewicz at paragraph 86, the ONSC decision.

How should the degree of fault be apportioned?

As indicated in Snushall v. Fulsang, 2005 O.J. No. 4069 (Court of Appeal), Justice Juriansz, quoting from Heeney v. Best, indicates:

... "negligence only contributed to the damages he suffered, the respondent being wholly to blame for the negligent act which set in train the events that caused the ultimate injury or damage to the appellant".

The court went on to conclude at paragraph 54 that:

...contributory negligence is found only for not wearing a seatbelt, its award should fall within a range of 0 per cent to 25 per cent; that the upper limit of the range, that is 25 per cent, is available only in those cases where the jury is satisfied that substantially all the damages could have been prevented by wearing a seatbelt...

Conclusion regarding Issue 1 – Liability

Patrick Lyng jumped over the hill after drinking and while wearing flip-flops. All his damages could have been prevented had he not jumped. However, to repeat, it was the defendant’s negligent acts that set off the train of events which placed the plaintiff at the bottom of a wet, hazardous, slippery hill which was a hazard known to Ontario Place; it was foreseen and could have been easily prevented.

Accordingly, I would apportion liability as follows: 75 percent liability to the defendant, 25 percent liability to the plaintiff.

Regarding damages

Issue # 2 – Damages

Patrick Lyng’s testimony

Mr. Lyng tore his ACL in his left knee plus he suffered meniscus damage. He had surgery on October 13, 2016, which was successful. Mr. Lyng was able to walk within a week. Given Dr. Mah’s statements that further surgery may be necessary, Mr. Lyng restricts his sports activities. He no longer plays team sports like soccer. Mr. Lyng, however, continues to cycle and play golf. He was able to go on a vacation to Ireland in August 2016. From to July to October 2016, Mr. Lyng worked on strengthening his knee. He used canes and crutches during that period, including the time he spent on vacation in Ireland. In September, Mr. Lyng could drive and do errands. He was able to enroll in school at Mohawk in the fall and successfully completed the course. On October 13, 2016, Mr. Lyng underwent surgery. After a week, he started walking on crutches. The medical reports, dated October 19, 2016 and November 14, 2016, indicated the operation was a success and his knee recovered very well. Mr. Lyng was asked to wear a brace during physical activity. By January 25, 2017, Mr. Lyng had full motion in his knee with a slight atrophy in the vastus medialis. Mr. Lyng was doing physio and was told to work harder during physio. However, Mr. Lyng was still not cleared for work. By March 24, 2017, Mr. Lyng was indeed back at work as a plumber and was discharged from Dr. Mah’s care. Mr. Lyng testified that he had no issues working except for some muscle pain going up and down the stairs. Mr. Lyng went back to work in mid-February 2017 and he was able to work from then on without any setbacks. Mr. Lyng last saw Dr. Mah on December 22, 2017. His knee was doing well. He was playing golf again. Mr. Lyng did have a complaint regarding intermittent discomfort in his knee in November 2017. In that month, records show, this is at Exhibit 4A, tab 5, page 96 to 97, they show that Mr. Lyng worked 188 hours doing difficult work. Mr. Lyng was able to work consistently throughout 2018 and 2019. See Exhibit 4A, tab 6, page 100. Mr. Lyng made approximately $76,000 in 2019. He made less in 2020 due to a change in his pay rate and reduced work hours which had nothing to do with his knee. In December 2021, Mr. Lyng started a job at Marks Supply Inc. He sells products to general contractors. It is a desk job at a slightly higher pay than he made in 2020. Mr. Lyng also helps out in the warehouse. His current job is less stressful on his knee.

Jessica Lyng testimony

Jessica Lyng is Mr. Lyng’s wife. After the injury to Mr. Lyng, Mr. Lyng was not mobile and could not drive. After a few days he was able to use crutches. After long work days, Jessica indicates that Mr. Lyng favours his injured knee. Mr. Lyng no longer performs a number of sports as in the past. For example, he no longer plays soccer, hockey and skiing. His current desk job helps his knee. Regarding his desk job, he could make more money or less according to his wife. His salary can sway one way or another. Mr. Lyng was satisfied with Dr. Mah’s treatment and his recovery.

Anne Lyng

Anne Lyng is Patrick Lyng’s mother. When she saw Patrick the day after the incident, Patrick was on the couch and he was exhausted. His knee was sore. Up to the surgery in October 2016, Patrick was upset and frustrated and depressed. The surgery was successful. After the operation, Patrick was extremely sore. He was depressed but pushed himself through to recovery. His knee is still stiff and sore. Future wear and tear in his knee is on Patrick’s mind. Patrick worked on his knee prior to his surgery and made progress. He was able to go to Ireland and successfully completed his Mohawk course in the fall of 2016. In 2018, Patrick moved out of the house and she still sees him two to three times per month.

Joseph Lyng

Joseph Lyng is Patrick Lyng’s father. When Joseph saw Patrick the day after Patrick was injured, Patrick was in a lot of pain and was upset about being injured. Patrick’s knee surgery went well. However, Patrick has stiffness in his knee when driving or sitting for long periods of time. His leg gets tired. During the Ireland trip, walking on uneven ground was painful and he had to rest quite a bit. Before the surgery, Patrick played a lot of golf. Patrick played football and soccer in high school. Since the surgery, he has played golf sporadically. Post-surgery, Patrick recovered well. He returned to work full-time in February 2017 doing modified duties. Patrick, during his recovery, did physio and exercises to improve his knee condition.

Regarding damages, the read-ins by the defendant are as follows:

Mr. Lyng helped out with vacuuming at his parent’s home after the surgery. When Mr. Lyng moved into his new house in August 2018, he had been able to do everything he has wanted to do at his new house. Mr. Lyng intends to start his schooling in the fall of 2019. Certification tests for Mr. Lyng’s journeyman credentials are offered on a monthly basis.

The plaintiff’s loss of income immediately following the injury

The plaintiff testified, supported by the record of employment Forest Mechanical at page 102 of Exhibit 4A, that he was off for 30.5 weeks. Deducted from this time off is one week for a holiday in August 2016 and eight weeks attending Mohawk College in October to December 2017. His income loss immediately following the accident was 21.5 weeks times 857.38 per week which equals $18,433.67.

The plaintiff’s past loss of wage differential

The loss of 21.5 weeks has resulted in Patrick delaying his advance in plumbing apprenticeship levels. Fifth year apprentices earn 80 percent of journeyman’s basic rate of $44.79 per hour which calculated on a 36-hour work week works out to $1,612.44. See pages 66 and 92 of Exhibit 4A.

I accept the 36-hour work week calculation as this appears to be consistent with the work records and Mr. Lyng’s evidence that there was lots of work available. As I have indicated, it was in November of 2017 he worked an enormous amount of hours.

The plaintiff calculates his income loss for wage differential as a result of the injury as $1,612.44 times 20 percent which equals $322.49 per week. The total wage differential claimed is $322.49 per week times 21.5 weeks which totals $6,933.54 wage loss.

Dr. Mah

Dr. Mah was qualified to give expert opinion as an orthopedic surgeon. He has done 14,000 surgeries. Two-thirds of them have been knee surgeries approximately. Patrick Lyng was referred to his clinic by Dr. Woods. The chronology of treatment is as follows:

July 18, 2016, Exhibit 3, tab 9, page 204.

Dr. Mah was told that Patrick, when exiting a concert, slipped on the wet grass and heard a pop. X-rays were negative. Dr. Mah suspected an ACL tear and a possible meniscus tear. Dr. Mah requested an urgent MRI.

July 25, 2016, Exhibit 3, tab 9, page 199.

Patrick’s pain was resolving and he was 2 to 3 out of 10 in pain with the aid of two Advil per day. The MRI of the left knee revealed a complete ACL tear and a medial meniscus posterior root injury. There was also a grade 1 PCL sprain and a grade 1-2 MCL sprain. Patrick has consented for arthroscopic surgery of the left knee with ACL substitution using hamstring autograft. Dr. Mah’s clinical note indicates that the risks, benefits and alternatives were explained to Patrick and Patrick consented to the surgery.

October 13, 2016, Exhibit 3, tab 9, page 197

The meniscus tear was repaired using three screws. The ACL was replaced successfully. Dr. Mah testified that an ACL replacement lasts 10 to 15 years and this was explained to Mr. Lyng. The operative note indicates that the patient tolerated the procedure well. Dr. Mah’s testimony was that Patrick not return to work for one year.

December 21, 2016, Exhibit 3, tab 10

This visit to Dr. Mah was three months after the surgery. On examination, there was no effusion and full range of motion. Patrick wanted to return to work but Dr. Mah felt it was too early.

January 25, 2017, see Exhibit 3, tab 10, page 210

Patrick’s ACL substitution was doing well. There was full movement to the knee and slight atrophy to the vastus medialis. Patrick was told to do more physiotherapy.

March 24, 2017, Exhibit 3, tab 10, page 209

Patrick’s knee was doing well. Patrick was now working as a plumber. Patrick had full movement in both his knees. Patrick was able to skip in one position without difficulty. This is Dr. Mah’s test to discharge a patient and Patrick was discharged. Patrick was told to be careful in his activities. Patrick was told that after 10 to 15 years, the graft can get frayed and can break.

November 10, 2017, see Exhibit 3, tab 12, page 216

This is the first narrative report provided to plaintiff’s counsel. Dr. Mah repeats that the ACL substitution lasts about 10 years. Dr. Mah reported that Patrick is doing well after six months of physiotherapy. The repair of the lateral meniscus was assumed to have healed. Future potential problems were deemed to be hypothetical. There were no restrictions on Patrick’s ability to work as a plumber and he was not anticipated to have any problems. Given Patrick’s young age, there was no risk of knee replacement in the foreseeable future.

The defendant objects to the admission of that report and I will deal with that subsequently.

Dr. Mah testified that if there is a problem with ACL substitution, problems will show up early. It is obvious that did not occur here.

December 22, 2017, Exhibit 3, tab 11, page 214

Patrick attended Dr. Mah’s office due to intermittent discomfort in his knee. The knee appeared normal with full range of motion. Dr. Mah did not feel any medical attention was required. Patrick reported that he was doing excessive work as a carpenter during the period of discomfort which has resolved. The work records show that during November 2017, Patrick worked 188 hours.

There were two more narrative reports, February 8, 2019, seen at Exhibit 3, tab 13, page 219; and also a third report that appears at Exhibit 3, tab 4, at page 222, dated April 22nd, 2021. The defendant objects to the admission of these reports as well as the first narrative report and I will deal with that objection in a minute before referring to narratives 2 and 3.

All indications from the entire medical record is that Patrick has had a successful surgery and is doing well at the present time.

Dealing now with what I call the Westerhof objection

The defendant objected to the admissibility of the three narrative reports tendered by the plaintiff. The defendant argues that Dr. Mah is a participant expert and cannot give opinion evidence as a litigation expert without a Rule 53.03 notice. There is no such notice in this case. The Ontario Court of Appeal in the leading case of Westerhof v. Gee Estate, 2015 ONCA 206 indicates as follows at paragraph 60 and 61.

Paragraph 60:

...I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where

the opinion to be given is based on the witness' observation of or participation in the events at issue; and

the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Paragraph 61:

Such witnesses have sometimes been referred to as "fact witnesses" because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as "fact witness" risks confusion because the term "fact witness" does not make clear whether the witness' evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as "participant experts".

Paragraph 62:

Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

Regarding narrative report number 1 then, dated November 10, 2017

That report is sandwiched between reports dated March 24th, 2017 and December 22, 2017. On those two dates, it is clear that Dr. Mah was still acting as a treating doctor to Patrick Lyng. The opinions expressed in narrative number 1 are consistent with opinions that Dr. Mah provided to Patrick Lyng during treatment. For example, when Dr. Mah discharged Patrick on March 24, 2017, Dr. Mah told Patrick to be careful in his activities. Patrick was told that after 10 to 15 years the graft he received can get frayed and can break. I am satisfied that the opinions in the narrative number 1 report can be admitted into evidence without complying with Rule 53.03 as those opinions are based on the ordinary exercise of Dr. Mah’s skill in participating in the events in issue as outlines at paragraph 60 of Westerhof.

Regarding the opinions outlined in narratives 2 and 3, dated February 8, 2019 and April 22, 2021

Patrick Lyng had not been seen by Dr. Mah for years. They really are reports that would be categorized as being prepared by a litigation expert requiring compliance with Rule 53.03. Accordingly, I rule that the opinions expressed in narratives 2 and 3 are not admissible and I will not refer or rely on them.

General damages

Patrick Lyng, at 21 years of age, suffered a significant knee injury, including a tear to the lateral meniscus, an ACL tear and chondromalacia to the medial tibial plateau. See Exhibit 3, tab 9, page 197. Patrick was off work for six months. I have already summarized the pain and suffering he endured both before and after his successful surgery on October 13, 2016. He needs to continue to exercise his knee and wear a brace during sports activities. At the current time, his knee has healed completely with minimal discomfort. At some point in the future, perhaps 10 to 15 years after surgery, he may have to go through another procedure if his ACL replacement frays and breaks as it is expected to do so.

The plaintiff has provided a number of cases that suggest his general award could be adjusted for inflation anywhere between $80,000 to $200,000. The plaintiff suggests $100,000 for general damages.

The cases relied upon by the plaintiff appear to me to involve older patients with knee injuries that have not healed as well at Patrick Lyng’s injuries.

The defendant relies on a different set of cases and suggest the appropriate range of general damages is $10,000 to $50,000, and suggest the appropriate award in this case would be in the $30,000 to $50,000 range.

In the case of Dorion v. Ecodevelopments Windsor Inc., 2021 ONSC 820, Justice Howard indicates the factors that I should consider at paragraph 35. Paragraph 35 of that case:

I have considered “the inexhaustive list of common factors … that influence an award of non-pecuniary damages” that was enumerated in Stapley v. Hejslet, being:

a. age of the plaintiff; b. nature of the injury; c. severity and duration of pain; d. disability; e. emotional suffering; f. loss or impairment of life; g. impairment of family, marital and social relationships; h. impairment of physical and mental abilities; i. loss of lifestyle; and j. the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff)

And that case, I am not sure if I gave the citation, but is reported at 2021 ONSC 820.

I have reviewed the cases provided by counsel and in my opinion the closest fact situation to the present situation appears in Burrough v. Town of Kapuskasing, reported at , 1987 60 O.R. (2d) 727. Desmarais DCJ, back then we were District Court judges, he indicates at pages 2 and 7 of the case and he outlines the facts as follows, at page 2 of the case:

Page 2:

Facts

On August 27, 1984, the plaintiff who was then 33 years of age, was playing in a tennis tournament at the Riverside Tennis Club located on Riverside Dr. in the Town of Kapuskasing. He is an avid player, considered to be one of the top 10 or 12 in the town. In 1981, he was the club's singles' champion.

During the course of play in the tournament in question, the plaintiff made a backhand volley at the net and, upon completing same, his right toe got lodged in a crack on the court as shown on exs. 4(a) and (b). The resulting injury was a severe one. He suffered torn ligaments and a partial tear of the cartilage to the right knee.

The learned justice goes on to indicate at page 7:

The injuries sustained by the plaintiff were serious and debilitating. I have reviewed the medical reports provided and noted that he suffered a tear of one ligament (anterior cruciate) and partial tear of lateral (meniscus) in the right knee. Surgery was required leaving some extensive scars. He was incapacitated for some eight to nine months. He has recuperated to the point where he has now returned to certain athletic activities such as hockey. Although he has attempted a return to tennis, his apprehension and the requirements of the game has caused him to stay away. The prognoses are good. I would assess general damages at $19,000.

$19,000 in 1987 given inflation could arguably be equated to approximately $50,000 in 2022 money. Further, I find an award of $50,000 would be consistent with the factors as outlined in the Dorion case.

Accordingly, I assess general damages at $50,000.

Income loss

Patrick Lyng, as summarized earlier, estimated his past income loss based on $23 per hour for 36 hours per week for 21.5 weeks for total past loss income of $18,433.67. Mr. Lyng also claims a loss of $6,933.54 for a wage differential loss. The documentation attached to the income loss calculation by the plaintiff provides an evidentiary basis for these calculations. These documents can also be found at Exhibit 4A at the following places: page 102 at tab 7, 124 at tab 8; page 92 of tab 4; and page 66 of tab 4.

I find that the total past income loss is proven to be $25,367.21.

Finally, loss of competitive advantage

The concept of loss of competitive advantage is outlined in the case of Schrump et al v. Koot et al, reported at , 1977 18 O.R. (2d) 337, as follows. The Court of Appeal indicated at pages 4, 5 of the case:

In this area of the law relating to the assessment of damages for physical injury, one must appreciate that though it may be necessary for a plaintiff to prove, on the balance of probabilities, that the tortious act or omission was the effective cause of the harm suffered, it is not necessary for him to prove, on the balance of probabilities, that future loss or damage will occur, but only that there is a reasonable chance of such loss or damage occurring. The distinction is made clear in the following passages in 12 Hals., 4th ed., pp. 437, 483-4:

1137. Possibilities, probabilities and chances. Whilst issues of fact relating to liability must be decided on the balance of probability, the law of damages is concerned with evaluating, in terms of money, future possibilities and chances. In assessing damages which depend on the court's view as to what will happen in the future, or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will happen or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.

1138. Proof of damage. The plaintiff must prove his damage on a balance of probabilities. In many cases, however, the court is called upon to evaluate chances, such as the chance of a plaintiff suffering further loss or damage in the future; in these cases the plaintiff need only establish that he has a reasonable, as distinct from a speculative, chance of suffering such loss or damage, and the court must then assess the value of that chance.

The principle concisely stated in the passage quoted is directly applicable in this case. Speculative and fanciful possibilities unsupported by expert or other cogent evidence can be removed from the consideration of the trier of fact and should be ignored, whereas substantial possibilities based on such expert or cogent evidence must be considered in the assessment of damages for personal injuries in civil litigation. This principle applies regardless of the percentage of possibility, as long as it is a substantial one, and regardless of whether the possibility is favourable or unfavourable. Thus, future contingencies which are less than probable are regarded as factors to be considered, provided they are shown to be substantial and not speculative: they may tend to increase or reduce the award in a proper case.

The proper test to be applied is discussed in Davies v. Taylor... This case involved an assessment of damages under fatal accident legislation. It was held that the plaintiff, who had deserted her husband some time before his death, had to prove that there was a significant prospect, as opposed to a mere speculative possibility, of a reconciliation with her husband if he had lived. Lord Reid observed...:

When the question is whether a certain thing is or is not true -- whether a certain event did or did not happen -- then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.

But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.

"Injury" in the Fatal Accidents Act does not and could not possibly mean loss of a certainty. It must and can only mean loss of a chance. The chance may be a probability of over 99 per cent but it is still only a chance. So I can see no merit in adopting here the test used for proving whether a fact did or did not happen. There it must be all or nothing.

If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent and a 40 per cent probability. The 40 per cent case will get nothing but what about the 60 per cent case. Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent case fails altogether but the 60 per cent case gets 100 per cent. But it would be almost absurd to say that the 40 per cent case gets nothing while the 60 per cent case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case.

The same approach is found in the judgment of the British Columbia Court of Appeal...in Kovats et al. v. Ogilvie et al.... On this point, the judgment of the Court given by Robertson, J.A., is accurately summarized in the headnote...:

In assessing damages for personal injuries the award may cover not only all injuries actually suffered and disabilities proved as of the date of trial, but also the "risk" or "likelihood" of future developments attributable to such injuries. It is not the law that a plaintiff must prove on a balance of probabilities the probability of future damage; he may be compensated if he proves in accordance with the degree of proof required in civil matters that there is a possibility or a danger of some adverse future development.

The Court of Appeal indicates at page 7:

In charging the jury, the presiding Judge will, in a proper case, warn them to exclude from their consideration remote, fanciful or speculative possibilities. He will leave for their consideration any real and substantial risk, with the higher degree or the greater chance or risk of a future development attracting a higher award. In the present case, the risk of future surgery was substantial and supported by medical evidence. It follows that the award of $20,000 was not an inordinately high one, and therefore did not represent a wholly erroneous assessment of the respondent's general damages. I would dismiss the appeal.

In a more recent case, Cerilli v. City of Ottawa, C. McKinnon J indicated at paragraph 5, she does make an interesting comment at paragraph 1:

The month of January does not attract hordes of tourists to the City of Ottawa. It is a cold and miserable month, characterized by falling snow and icy conditions... It is a happy month for those who enjoy winter sports, but a depressing one for drivers and pedestrians.

I am not sure under the present circumstances if all that can be said. But in any event, at paragraph 5, the judge indicates that the complainant “Assunta (Sue) Cerilli was 42 years of age and a self-employed hairdresser.”

At paragraph 65 and 66, regarding future lost income, the Court indicates as follows:

Paragraph 65:

I prefer to deal with the Plaintiff’s future lost income claim on the basis of her loss of competitive advantage. I am satisfied that because of her injuries Ms. Cerilli will suffer economic loss because of the impairment of her ability to compete for employment... Damages for loss of competitive advantage have been awarded where the injury could have some impact on the Plaintiff’s future employability... I would find that Ms. Cerilli’s marketability as an employee has been substantially affected by her injury... The fact that she is now unable to continue to work full-time in the area she chose to work, namely that of being a hairdresser, is compensable in damages.

Paragraph 66:

In Ms. Cerilli’s case, because of her injury, she might well be required to retire earlier or alternatively reduce her work hours because of the pain and discomfort arising from her injury. I conclude that on balance, she will likely lose the full capacity to participate in the workplace for as long as she might otherwise do so, and I assess her loss, subject to normal life contingencies, in the global amount of $80,000.

The application of law to our circumstances

Mr. Lyng suffered a serious knee injury when he was 21. His ACL was repaired in surgery. However, the reconstructed ACL, according to Dr. Mah, will fray or break in about 10 to 15 years. Further surgery will be required at that time. Mr. Lyng, at that time, will only be 31 to 36 years of age and will have another 30 to 35 years left until a normal retirement age of 65. I believe a lump sum of $100,000 would be a reasonable sum in compensation for his anticipated future loss of competitive advantage.

The conclusion then, actually issue two, total damages assessment

I find that the plaintiff is entitled to the following damages award:

1. Non-pecuniary general damages at $50,000 plus prejudgment interest calculated at 2 percent per year from July 16, 2016
2. Past loss of income assessed at $25,367.21 plus prejudgment interest calculated at 2 percent per year from July 16, 2016

The total for items 1 and 2 is $75,367.21 minus a 25 percent contributory negligence deduction of $18,841.80 so the total would be $56,525.41 plus prejudgment interest at 2 percent per year from July 16, 2016 to today’s date.

In addition, there will be an award for the loss of competitive advantage of $100,000 minus the 25 percent contributory negligence deduction so that would result in an award of $75,000.

So the order is as follows:

1. The defendant is liable pursuant the Occupiers’ Liability Act to compensate the plaintiff for the following damages: a) for non-pecuniary general damages plus past loss of income, the sum of $56,525.41 plus prejudgment interest calculated at 2 percent per year from July 16, 2016 to today’s date of February 16, 2022.

Plus in addition, there will be an award for loss of competitive advantage to be paid of $75,000.

2. In addition, the defendant is liable to pay costs on a partial indemnity basis to the plaintiff subject to any consideration for any offers made by the defendant that exceeds the total award of $56,525.41 plus prejudgment interest plus $75,000 which would equal total award of $131,525.41 plus prejudgment interest on the $56,525.41 portion.

So that is the judgment.

...DISCUSSION RE HOW TO DEAL WITH COSTS IF REQUIRED

...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED