COURT OF APPEAL FOR ONTARIO

CITATION: Winters v. Haldimand (County), 2015 ONCA 98

DATE: 20150210

DOCKET: C57322

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Eric Winters, Margaret Winters, Lucas Winters, Rachel Winters, Samuel Winters, Joyce Flaherty, Executrix and Trustee under the Last Will and Testament of Joseph Flaherty and Joyce Flaherty

Plaintiffs (Appellants)

and

The Corporation of Haldimand County, The Town of Haldimand, The Municipal Corporation of the Village of Cayuga, Grand Erie District School Board

Defendants (Respondents)

Neil R. Jones and James P. Cavanagh, for the appellants

Sheila Handler and Brian McCall, for the respondents

Heard and released orally: January 28, 2015

On appeal from the judgment of Justice Dale Parayeski of the Superior Court of Justice, dated June 14, 2013.

ENDORSEMENT

[1] This is a tragic case. The appellant was 16 years old in 2001 when on the morning of September 27, he fell from a tree and was rendered paraplegic as the result.

[2] Eric was “hanging out” in the vernacular with two friends at the Kinsmen Park located along the banks of the Grand River in Cayuga, Ontario. The tree from which he fell was one which he and many others had climbed countless times without incident. The evidence was that the tree was a willow of the sort that typically grows along river banks and elsewhere all over Ontario.

[3] The appellant submits that the trial judge erred in three ways. First, he erred in failing to make a finding as to whether the premises were reasonably safe. Second, he erred in finding that the monitoring the town had in place was reasonable; and three, he erred in not finding it was obvious that the tree in question was not reasonably safe and that it was inherently unsafe in the absence of appropriate monitoring. We disagree.

[4] The trial judge was alive to the issues as they had been put to him in oral and written argument. He set out those issues at para. 23 of his reasons as the parties had articulated them.

[5] Cases dealing with the liability of an occupier are governed by s. 3(1) of the Occupiers’ Liability Act, which reads:

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 onto the premises and the property brought on the premises by those persons are reasonably safe while on the premises.

[6] Each case falls to be determined on its own particular facts in accordance with the evidence.

[7] Here the evidence disclosed that generations of teenagers had climbed or walked up this tree and used it as a place to gather and be together. There had never been a complaint or report of any injury nor even any anecdotal evidence of an injury, save one when someone twisted his ankle getting out of the tree while horsing around, until Eric’s unfortunate mishap.

[8] The evidence was that the tree was healthy and typical of its type. While the trial judge did not make a clear statement to the effect “I find that the premises were reasonably safe”, there can be no doubt, on reading his reasons as a whole, that he did so implicitly. He addressed the arguments as they were put to him and in our view, on this record there could be no other finding.

[9] The trial judge reviewed the evidence of the Town in relation to the monitoring of the park, the frequency of the visits of the maintenance personnel and the supervision of their work by the lead hand and concluded it was reasonable in all the circumstances.

[10] We see no error.

[11] As we indicated earlier, there had not been a single complaint to the Town about this tree or the fact that it was used as a place for teens to gather. None of the park personnel who were there on a weekly basis ever observed anyone in the tree. Indeed, the appellant’s mother who used the park not infrequently, had not observed anyone in the tree and was unaware that her son and his friends used the tree as they did.

[12] We agree with the trial judge’s conclusion that the monitoring of the park was reasonable in all of the circumstances and particularly so in the absence of any evidence from an expert or otherwise to the effect that the town fell below the standard of care to be expected of a village similar to Cayuga.

[13] Finally, as to the argument that it was obvious that the tree was not reasonably safe, the appellant takes issue with the language the trial judge used in paragraph 37 of his reasons:

In any event, there is no evidence which suggests anything inherently dangerous about the ‘Chilling Tree’ beyond the trunk or limb in question.

[14] The appellant argues this should constitute a finding that the limb in question from which the appellant fell was “inherently dangerous”. We disagree.

[15] The sentence must be taken in context and as the trial judge noted in the very next sentence,

Trees, being, by their very nature, things which can be climbed, and therefore fallen from, are potentially harmful.

[16] Any danger posed by this tree was an obvious one. If you chose to climb it you could fall and be injured. There is no duty to warn of such an obvious and self-evident danger nor any duty to monitor beyond what the Township is doing at the time of this most unfortunate accident.

[17] The appeal is dismissed.

[18] The appellant seeks leave to appeal the costs award of the trial judge and, in particular, the costs award made against the Family Law Act claimants. The defendants sought costs of about $140,000 and the trial judge awarded about $75,000 and of that amount $1,500 was apportioned to OHIP and there is no dispute about that number.

[19] Before trial all damages were agreed upon, including the damages of the FLA claimants. As the result it was unnecessary to call evidence in relation to those claims at trial. Some, but not all of these claimants had been examined for discovery.

[20] The appeal focuses on the trial judge’s apportionment of costs against each of the six FLA claimants in the amount of $5,000 for a total of $30,000. The defence concedes that $25,000 is a more appropriate figure given the number of remaining FLA claimants.

[21] The appellant submits first that there should be no costs awarded against these claimants and alternatively, if costs are to be awarded, that costs liability should reflect what they might have expected to recover. Counsel submits that the costs liability for each claimant should reflect their individual percentage of the total damage amount.

[22] While in some cases there have been no costs awarded against FLA claimants, there is no general rule that that should be so. The awarding of costs is a matter for the discretion of the trial judge and while we agree that the awards are here seem somewhat high, to interfere we must be satisfied that the trial judge has committed an error in principle or is clearly wrong.

[23] In our view, this case does not rise to that standard. So although leave is granted to appeal, the appeal as to costs is dismissed.

[24] In view of the result of the main appeal, the cross-appeal is also dismissed.

[25] For oral reasons given this day the appeal is dismissed. The cross-appeal is dismissed and while leave to appeal costs is granted, the cost appeal is dismissed. Costs of the appeal are agreed in the sum of $15,000 apportioned $500 against each of the five remaining FLA claimants and $12,500 against Eric Winters.

“J. MacFarland J.A.”

“C.W. Hourigan J.A.”

“M.L. Benotto J.A.”