COURT OF APPEAL FOR ONTARIO
DATE: 20000127
DOCKET: C31778
RE: JOSEPH PATRICK MOLONEY, personally and as
Litigation Guardian of OLIVER BENEDICT MOLONEY AND
MOLLIE STEPHANIE MOLONEY, Minors and MARIANNE
MOLONEY (Plaintiffs/Respondents) v. THE
CORPORATION OF THE TOWN OF PARRY SOUND and THE
CANADIAN NATIONAL RAILWAY COMPANY
(Defendants/Appellant)
BEFORE: CARTHY, DOHERTY and FELDMAN JJ.A.
COUNSEL:
Michael M. Miller
for the appellant, Corporation of Town of Parry
Sound
Angela M. Costigan
for the respondents
HEARD: January 19, 2000
On appeal from the order of the Honourable Mr. Justice N.M. Karam
dated February 19, 1999.
E N D O R S E M E N T
[1] The appellant contends that the accident occurred on a
“recreational trail” and that the trial judge erred in failing to
determine liability under s. 4(1) of the Occupiers’ Liability
Act.
[2] The accident occurred on a paved roadway used regularly by
cars for access to and egress from a parking lot. The roadway
was also part of the fitness path established and maintained by
the appellant. We agree with the trial judge that the regular
use of the roadway by vehicles precluded the application of s. 4
of the Act to this part of the fitness path. This part of the
path was also a roadway used regularly for vehicular traffic. It
was more than a “recreational trail.”
[3] As we conclude that s. 4 of the Act has no application, we
do not have to address the trial judge’s conclusion that the
appellant’s conduct amounted to a reckless disregard for the
safety of those who bicycled along the path.
[4] The trial judge’s finding that there was no contributory
negligence cannot be disturbed. The appellant does not allege
that the trial judge misapprehended any relevant evidence and we
cannot say that his finding that the respondent was not negligent
is unreasonable.
[5] We see no connection between the trial judge’s conclusion
that the conduct of the appellant amounted to a reckless
disregard for the safety of those who bicycled along the path and
his conclusion that the respondent was not negligent at the time
of the accident. The former finding did not prevent the trial
judge from properly addressing the question of contributory
negligence.
[6] The trial judge awarded substantial general damages. The
injuries suffered by the respondent were significant albeit not
as serious as some. Unfortunately, the injuries have had a very
serious impact on the respondent’s lifestyle. While it may be
said that the general damages awarded were high, we cannot say
that they were so excessive as to warrant appellate intervention.
[7] We agree with the appellant that the trial judge, having
concluded there was no loss of future earnings, erred in awarding
$50,000 to the respondent as compensation for loss of competitive
advantage which he equated with loss of future earning capacity.
The evidence supporting any loss of future earning capacity was
meagre. There was evidence that the respondent and her husband
had worked together to build three houses over a three-year
period. The last of those houses was built some five years prior
to the accident. The respondent’s husband had a full-time job
apart from construction.
[8] There was no evidence quantifying the value of the
respondent’s contribution towards the building of the three
homes.
[9] This evidence could not support a finding of a loss of
future earning capacity or a loss of competitive advantage. On
the evidence adduced in this case, there was no basis upon which
to distinguish between loss of future earnings and loss of
competitive advantage or earning capacity. The award for loss of
competitive advantage must be set aside.
[10] The respondent will be unable to help her husband with some
physical tasks which she was able to perform prior to the
accident. This limitation on her future activity deserves
compensation. In our view, the substantial general damages
awarded to the respondent take into account this loss suffered by
her.
[11] The respondent cross-appealed the award with respect to loss
of competitive advantage seeking a substantial increase in the
amount awarded. It follows from our determination, that the
appeal must succeed on this point and that the cross-appeal must
fail.
[12] The appeal is allowed in part and the judgment below is
varied to accord with this endorsement. The cross-appeal is
dismissed.
[13] It is agreed that in the light of this court’s variation of
the damage assessment, that the order for solicitor-and-client
costs made at trial cannot stand. The respondent should have her
costs on a party-and-party basis at trial. There should be no
costs on the appeal or cross-appeal.