DATE: 20050517
DOCKET: C40936
COURT OF APPEAL FOR ONTARIO
CRONK, GILLESE and MACFARLAND JJ.A.
B E T W E E N :
SHARON DOYLE AND CHRISTOPHER LANG
Terry R. Shillington for the appellant
Plaintiffs
(Respondents)
- and -
THE CORPORATION OF THE TOWN OF PETROLIA
Carl E. Fleck, Q.C. and Catherine Wilde for the respondents
Defendant
(Appellant)
Heard: May 2, 2005
On appeal from the Judgment of Justice John A. Desotti of the Superior Court of Justice dated October 14, 2003.
MacFARLAND J.A.:
[1] The appellant, the Corporation of the Town of Petrolia (the “Town”) challenges the trial judge’s judgment on two grounds. First, it argues that, in imposing liability upon the Town for Ms. Doyle’s injuries, the trial judge failed to apply the requisite standard of care under s. 3(1) of The Occupiers’ Liability Act as articulated by this court in Alchimowicz v. Schram, [1999] O.J. No. 115 at para. 13. Second, it submits that the trial judge erred by fixing liability on the Town as the result of a Town Councillor’s failure to immediately report to the police or other authorities, the damage to the park bench that he witnessed about 30 minutes prior to Ms. Doyle’s accident.
[2] The facts which give rise to this appeal are as follows. On New Year’s eve in 1999, the Town, having a population of 4,600, invited its residents to attend a New Millennium celebration at Victoria Park. This park is small being less than an acre in size. The residents were invited to come to Victoria Park to observe fireworks scheduled to be set off at adjacent Bridgeview Park.
[3] Other events planned by the Town for the evening included a Gala Dance at Victoria Hall (located just adjacent to Victoria Park) and a family dance at Greenwood arena. The fireworks were scheduled to go off at midnight and people began arriving in the park around 11 p.m.
[4] Ms. Doyle attended at Victoria Park on the evening in question with a small group of friends and one of her grandchildren, shortly after 11 p.m. She observed an unoccupied park bench and immediately ran to it for the purpose of reserving it for the use of the members of the group. She sat down on the bench in what she described as a normal fashion, whereupon the bench toppled over causing her to fall and sustain injury. Her actions in no way contributed to the collapse of the park bench.
[5] Shortly before Ms. Doyle’s arrival at the park, Mr. Vanderwal, one of the Town Councillors who had been attending the Gala Dance at Victoria Hall, was out on a balcony which overlooked the park, having a cigarette. He observed a person running across the park. The runner did not stop when he got to the bench. He kept running, putting one foot on the seat of the bench and one foot on the back of the bench. Mr. Vanderwal observed the bench flip over onto its back. Mr. Vanderwal stated, “they had to have broke it”. He considered the bench to be broken and incapable of being put back up. Although he couldn’t see the legs of the bench from his vantage point, he assumed that they were broken off because of the Town’s practice to bolt the benches down. Unless the legs were broken, the fasteners would have kept the bench in an upright position. He did not report the incident to anyone.
[6] Between Mr. Vanderwal’s observations, which he placed at between 11 p.m. and 11:30 p.m., and Ms. Doyle’s fall sometime soon after 11 p.m., someone returned the bench to an upright position on its broken legs. There was nothing which alerted Ms. Doyle to the fact that the bench was damaged.
[7] The trial judge found the Town liable on two bases. First, he found the Town liable for its failure to retain on-site security. In this respect, the trial judge stated:
I find that the destruction of the park bench and the actions of the individual hurdler would have been plainly seen by any one on site security and could have been rectified or perhaps even prevented. Certainly, at the very least, the bench would not have been used by the plaintiff Sharon Doyle and she would not have sustained any injuries. The municipality breached its duty of care to the plaintiffs in its failure to retain on site security and is thus liable under the Occupier’s Liability Act.
[8] Second, he found a positive duty on Mr. Vanderwal to report the vandalism he observed to someone in authority. In the trial judge’s view, his “complete failure” to react to this destruction of property contributed to the injuries to the plaintiff.
[9] The duty owed by an occupier of premises is set out in s. 3(1) of the Occupier’s Liability Act:
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.
[10] This duty, as it relates to a municipality, was described by this court in Alchimowicz, supra at para. 13 in these terms:
In fulfilling its duty as an occupier, it was not incumbent upon Windsor to guard against every possible accident that might occur. Windsor was only required to exercise care against dangers that were sufficiently probably to be included in the category of contingencies normally to be foreseen.
[11] The trial judge failed to apply these principles to the facts of this case in respect of both bases upon which he found the Town liable. In so doing, he erred in law. As this court noted in Woods v. Ontario (Ministry of Natural Resources), [2003] O.J. No. 1165 at para. 22, quoting from the Supreme Court of Canada decision in Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577:
It is settled law that the determination of whether or not the standard of care was met by the defendant involves the application of a legal standard to a set of facts, a question of mixed fact and law. This question is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law.
[12] The actions of the “hurdler” in causing damage to the bench were not the cause of Ms. Doyle’s injuries. Had nothing more been done after the “hurdler” incident, the bench would have remained in its upended position and it would have been obvious to all that the bench was not useable. The problem here arose because someone, after Mr. Vanderwal’s observations, returned the bench to its upright position. To do so, it was necessary to take a broken park bench and return it to its normal upright position in such a way that it made the bench appear like all the other benches in the park. This occurrence was not, in our view, sufficiently probable to be included in the category of contingencies normally to be foreseen by the Town, as required by the test in Alchimowicz.
[13] To hold otherwise in these circumstances would render the Town an insurer. That is not the law.
[14] For these reasons the appeal is allowed, the judgment below is set aside, and the action is dismissed. The appellant is entitled to its costs here and below. Costs of the appeal on the partial indemnity scale are fixed in the sum of $7,500.00 inclusive of disbursements and G.S.T.
RELEASED: May 17, 2005 “EAC”
“J. MacFarland J.A.”
“I agree E.A. Cronk J.A.”
“I agree E.E. Gillese J.A.”