CITATION: Singer v. Hamilton (City), 2009 ONCA 559
DATE: 20090710
DOCKET: C48063
COURT OF APPEAL FOR ONTARIO
Laskin, Juriansz and Epstein JJ.A.
BETWEEN
Margaret Singer, Robert Singer and Adam Singer, Lauren Singer and Andrew Singer minors, by their Litigation Guardian, Robert Singer
Plaintiffs (Respondents)
and
The Corporation of the City of Hamilton, The Regional Municipality of Hamilton-Wentworth, Venator Group Canada Inc./Group Venator Canada Inc. c.o.b. as The Bargain! Shop, Ancorp Holdings Ltd., and Dufferin Construction Ltd.
Defendants (Appellants)
Martin P. Forget, for the appellants
Gregory P. McKenna, for the respondents
Heard: April 9, 2009
On appeal from the judgment of Justice William J. Festeryga of the Superior Court of Justice dated November 5, 2007 and reported at 2007 CanLII 46251 (ON S.C.).
Juriansz J.A.:
[1] The Corporation of the City of Hamilton (“Hamilton”) and Dufferin Construction Ltd. (“Dufferin”) appeal from the judgment of the trial judge finding them liable for damages suffered by Margaret Singer (“Ms. Singer”) when she fell into a trench excavated by Dufferin on property owned by Hamilton. They also appeal the quantum of non-pecuniary damages that the trial judge awarded in the amount of $110,000.
[2] By cross-appeal, the members of Ms. Singer’s family appeal the quantum the trial judge awarded on their claims under the Family Law Act, R.S.O. 1990, c. F.3, namely $3,000.
[3] I would dismiss both the appeal and the cross-appeal.
The Appeal
[4] Dufferin was retained by Hamilton to do some construction work on King Street. The work involved removing the existing sidewalk and excavating a trench four to six feet deep on the southerly edge of the street alongside the storefronts. Ms. Singer, who was 78 years old at the time, was walking along King Street intending to go to The Bargain! Shop. She entered the construction zone, fell into the trench outside The Bargain! Shop, and was injured.
[5] The appellants, Hamilton and Dufferin, submit that the trial judge erred by finding that Ms. Singer’s injury was caused by their negligence. They also submit that the trial judge erred by failing to find that Ms. Singer voluntarily assumed the risk under s. 4(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, or was contributorily negligent and should therefore be found partially or completely at fault for the accident.
[6] I begin by considering the standard of appellate review in negligence cases.
Standard of Appellate Review
[7] The most frequently cited authority on the standard of appellate review, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, was a negligence case. In Housen, the plaintiff, who was a passenger in a car that had failed to negotiate a sharp turn, suffered injuries when the car went off a rural road. The driver had been drinking heavily. The trial judge found that the plaintiff was 15 percent contributorily negligent in failing to take reasonable precautions for his own safety in accepting a ride from the driver. He apportioned the remaining joint and several liability 50 percent to the driver and 35 percent to the municipality on the basis that the municipality was negligent in failing to post warning signs on the road. The Saskatchewan Court of Appeal overturned the trial judge’s finding of negligence against the municipality. The Supreme Court restored the trial judge’s decision and emphasized the limited scope of appellate review.
[8] In its reasons, the Supreme Court stated the general principles that questions of fact are reviewed on the standard of palpable and overriding error, questions of law are reviewed on the standard of correctness, and a trial judge’s finding on a question of mixed fact and law is entitled to deference. The authors of the majority judgment, Iacobucci and Major JJ., commented particularly on the standard of review in negligence cases. At para. 29, they said that “[w]hen the question of mixed fact and law at issue is a finding of negligence, this Court has held that a finding of negligence by the trial judge should be deferred to by appellate courts.” At para. 30, they said “[t]his more stringent standard of review for findings of negligence is appropriate, given that findings of negligence at the trial level can also be made by juries.”
[9] Iacobucci and Major JJ. pointed out that the policy reasons for deference were not only limited to the superior vantage point of the trial judge seeing and hearing the witnesses, but also served to limit the cost of litigation and to promote the autonomy of trial proceedings.
[10] The Supreme Court revisited the standard of appellate review in H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. The court again emphasized that appellate courts do not “rehear” or “retry” cases. Rather, they review for error. Appellate courts should not interfere merely because they would have reached a different result. They may only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.
[11] With this standard of review in mind, I turn to the trial judge’s findings of fact that the appellants challenge explicitly or implicitly.
Findings of Fact
i) No Warning Sign
[12] The trial judge found there was no sign to warn Ms. Singer of the construction site. The trial judge noted that the appellants had led evidence of a sign placed at the corner of King and Catherine Streets advising pedestrians to use the north sidewalk. However, after observing that such a sign did not appear anywhere in the photos entered as exhibits, he found that in any event, a sign at that corner would not have provided a warning to Ms. Singer because she approached the construction site from the intersection of King and Mary Streets, one block east of Catherine Street.
[13] The finding of the trial judge is incontestable.
ii) Lack of Barricades
[14] The trial judge found that the barricades at the site did not block pedestrians from entering the construction site.
[15] Counsel for the appellants drew this court’s attention to the photographic exhibits showing the placement of barricades around the construction site. As the trial judge noted, however, these photographs were taken after the barricades had been moved after the accident. It is therefore necessary to consider the testimony of the witnesses regarding the barricades.
[16] The trial judge accepted the testimony of an independent witness, Scott Taylor, the manager of The Bargain! Shop, who testified that the first, most southerly barricade was placed some four to five feet away from the front of the shop. In doing so, the trial judge rejected the contrary evidence of the defence witnesses as to the location of the barricades. There is no basis upon which this court could interfere with the trial judge’s decision to prefer the evidence of Mr. Scott. His testimony makes clear, as the trial judge found, that there was a significant gap, of approximately four to five feet, between the barricade and the storefront for a pedestrian to walk along what appeared “to be part the sidewalk” but was in fact the construction zone. The trial judge went on the find that when Ms. Singer approached the construction zone, “there was nothing there to guide her in a clear and positive manner, by adequate signs, markers, pavement markings or by traffic control persons.”
[17] There is no basis upon which this court could interfere with these findings. The appellants’ contention that “[t]he last barricade was approximately 18 inches to 24 inches from the face of the building...” must be rejected.
iii) Visual cues
[18] The trial judge considered the appellants’ argument that there were many visual cues that should have alerted Ms. Singer to the risk of danger. At trial, the appellants had argued Ms. Singer should have seen the orange barricades, the “tiger barrels”, an operating mini-excavator, a rubber-tired backhoe and a dump truck. They submitted that the presence of these should have made it apparent to Ms. Singer she should stay out of the area.
[19] The trial judge found that although there were visual cues of construction, those visual cues did not alert Ms. Singer to the hidden danger of the trench. He said “there was nothing to bar her from walking along what appeared to be a sidewalk. These were not cues of the hidden danger of the four-foot trench into which [Ms. Singer] fell as she progressed along her way.”
[20] On appeal, the appellants argued strenuously that Ms. Singer should have seen the equipment operating and should have avoided going near it. However, this court cannot revisit the trial judge’s finding that after passing through the four to five foot space between the barricade and the storefront, Ms. Singer would have been well into the construction area by the time she saw the trench. He said that Ms. Singer “would not have seen the four foot trench until she got very close to the mini-excavator which was obstructing her view. At that point it was too late...”.
[21] All of these findings were strengthened by other findings of fact that the trial judge made. For instance, the trial judge found that there was no one on site to direct pedestrian traffic; the work site was disorderly, substandard, and hazardous from a pedestrian safety perspective; no one involved in the project had any more than a passing familiarity with the purpose, fundamental principles or standards directed towards ensuring pedestrian safety in work zones; and there were at least four workers who ought to have seen Ms. Singer but failed to warn her.
[22] It is in the context of these factual findings that the question of negligence must be considered.
Finding of Negligence
[23] The trial judge’s factual findings, taken together, supported his conclusion that the appellants fell below the standard of care required by the Occupier’s Liability Act and the Manual of Uniform Traffic Control Devices issued by the Ministry of Transportation. The trial judge concluded by saying that the appellants
failed to take affirmative action to protect the safety of people, such as [Ms. Singer], from being injured because of a hidden danger, being the four foot trench. They failed to take adequate measures to block [Ms. Singer] from entering into the construction site. They failed to post signs in the area in question for [Ms. Singer] to use the north sidewalk. They failed to post signs on the barricades warning of prohibited entry. They failed to post signs of danger in the area. They failed to delineate a clear and positive pathway for her to get around the construction site.
[24] Thus, the trial judge’s ultimate finding that the appellants’ negligence directly caused Ms. Singer’s injuries is supported by the evidence, is reasonable, and demonstrates no error. There is no basis to interfere with it.
Willing Assumption of Risk
[25] The appellants submitted that the trial judge erred in failing to find that s. 4(1) of the Occupiers' Liability Act applied. Section 4(1) provides :
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 a person or his or her property.
[26] The appellants argued that the evidence was clear that Ms. Singer knew of the risk and they could only be found liable if they deliberately meant to cause her harm or acted in reckless disregard of her presence.
[27] As already noted, the trial judge focused on the trench as the cause of Ms. Singer’s injuries. He found that the existence of the trench was not obvious and that it was a hidden danger. He held that Ms. Singer had to know the risk or appreciate that risk before she could willingly assume it within the meaning of s. 4(1). Since she did not know of the existence of the trench, the provision did not apply.
[28] Whether a person has willingly assumed a risk within the meaning of s. 4(1) of the Occupiers' Liability Act is a mixed question of fact and law. This court must defer to the judge’s conclusions on this question, absent palpable and overriding error. The trial judge’s reasoning that the risk that caused injury was the trench and that Ms. Singer did not willingly assume that risk since there was nothing to alert her to its existence is supported by the evidence and is reasonable. There is no basis to interfere. I would not give effect to this ground of appeal.
Contributory negligence
[29] The above analysis also disposes of the appellants’ submission that the trial judge erred by failing to find Ms. Singer contributorily negligent. The appellants argued that by walking on the ledge next to the trench, Ms. Singer should have foreseen that she might injure herself. On the findings of the trial judge, however, there was no warning or barricade to prevent Ms. Singer from entering a situation of danger. He found that the lack of warning or barricade resulted in her “being led into direct conflicts with work site vehicles, equipment or operations”. By the time she would have been aware of the trench “it was too late and she fell into the ditch, fracturing her right leg”. That Ms. Singer was wearing high heels, a fact the appellants emphasized, does not undermine the findings of the trial judge.
[30] This analysis was supported by the evidence and was reasonable. There is no basis upon which this court can interfere. I would not give effect to this ground of appeal.
Damages
[31] The trial judge assessed Ms. Singer’s non-pecuniary damages at $65,000 for physical injuries and $45,000 for psychological injuries flowing from a major depressive episode that flowed from the accident. The appellants appeal from these assessments.
[32] The appellants have failed to establish, however, that the trial judge applied a wrong principle of law, considered some irrelevant factor, failed to consider some relevant factor, or awarded an amount so inordinately high that it must be seen as a wholly erroneous estimate of the damage. There is no basis to interfere with the damages he assessed.
Cross-appeal
[33] Likewise, the members of Ms. Singer’s family failed to establish that in assessing their damages on the Family Law Act claims, the trial judge committed any error in principle, or that the damages are so inordinately low they cannot stand. Accordingly, the cross-appeal must also be dismissed.
Conclusion
[34] For the above reasons, I would dismiss both the appeal and the cross-appeal. Failing agreement, the parties may make written brief submissions on costs (no more than five pages), the respondents’ submissions to be filed within 15 days, and the appellants’ submissions within 15 days thereafter.
“R.G. Juriansz J.A.”
“I agree John Laskin J.A.”
“I agree G.J. Epstein J.A.”
RELEASED: July 10, 2009