COURT OF APPEAL FOR ONTARIO

CITATION: Farias v. Peel District School Board, 2012 ONCA 759

DATE: 20121109

DOCKET: C54477

Weiler, Juriansz and Hoy JJ.A.

BETWEEN

Rebecca Farias and Manuel Farias

Plaintiffs (Appellants)

and

Peel District School Board

Defendant (Respondent)

David S. Steinberg, for the appellants

Louise A. James, for the respondent

Heard: November 5, 2012

On appeal from the judgment of Justice Bonnie J. Wein of the Superior Court of Justice, dated September 27, 2011.

ENDORSEMENT

[1] On a mid-summer weekend, the appellant, Rebecca Farias, caught her foot in a hole in an asphalt walkway on the grounds of a Brampton public school, tripped, and fell on her knee.

[2] After a seven day trial, the jury found that the respondent, Peel District School Board, had not breached its duty under section 3 of the Occupiers’ Liability Act, R.S.O. 1990 c. O. 2 (the “Act”) to take such care as in all the circumstances of the case was reasonable to see that persons entering on its premises were reasonably safe while on the premises, and that the appellant – who was wearing a form of “flip-flop” sandals at the time – was responsible for her injuries. While it found that the respondent was not liable to the appellant, the jury, as directed, determined damages. It assessed general damages at $15,000, which was well below the range suggested by the respondent’s counsel in her closing submissions.

[3] The appellant argues that there was no basis on which a reasonable jury, properly instructed, could have concluded that the respondent had met its obligations under the Act. The appellant also argues that the assessment was so inordinately low as to constitute a miscarriage of justice.

[4] The standard for appellate review of a jury verdict is a very high one. We are not persuaded that the appellant has met that standard.

[5] The respondent had a system of maintenance and inspection in place at the time of the incident. The school yard is large: approximately 960,000 square feet. The hole was small – about the size of the toe box of a running shoe. It was located beside a sewer grate. From the photos, it appears to be at the side, rather than the middle of the walkway. The walkway was close to the back gate of the school yard.

[6] Mr. Kent Murray, the Facilities Manager at the school at the time of the incident, testified that during the summer vacation, the school yard does not get the same degree of use as during the school year: there are probably 80 per cent fewer people on site each day than during the school year. Accordingly, during the summer vacation, the custodians’ inspection of the school yard is focussed on places of high use, such as the climber area of the playground. They do not inspect the grounds to the same degree as during the school year. The inspection of the paved areas concentrates on areas surrounding the building, where they check for broken windows and broken glass. Mr. William Spence, who became Facilities Manager at the school shortly after the incident, testified that there would be very little travel along the walkway during the summer.

[7] On the record, there was a basis on which the jury could conclude that, in all the circumstances of the case, the respondent had taken such care as was reasonable to ensure the safety of persons entering on its premises. Given the jury’s conclusion that the standard of care was not breached, it went on to find the appellant was wholly responsible for her own injury. Having regard to our conclusion on this issue, we need not address the appellant’s argument with respect to the quantum of general damages assessed by the jury.

[8] The appeal is accordingly dismissed. The respondent shall be entitled to its costs on a partial indemnity scale, in the amount of $11,000, inclusive of disbursements and applicable taxes.

“K.M. Weiler J.A.”

“R.G. Juriansz J.A.”

“Alexandra Hoy J.A.”