Court of Appeal for Ontario

Date: 2018-04-10

Docket: C63405

Judges: Hourigan, Pardu and Huscroft JJ.A.

Between

Wanda Labanowicz Plaintiff (Respondent)

and

Corporation of the Town of Fort Erie Defendant (Appellant)

Counsel

For the Appellant: Christine Carter

For the Respondent: Loretta Merritt and James Round

Heard: April 6, 2018

On appeal from: The judgment of Justice Arthur Gans of the Superior Court of Justice, dated January 27, 2017.

Reasons for Decision

Introduction

[1] The respondent successfully sued the appellant municipality as a result of injuries she sustained while riding a bicycle on a recreational path. She received a judgment of approximately $995,000, inclusive of interest. The trial judge also made an order for costs in her favour in the amount of $921,508.

[2] On appeal, the appellant submits that the trial judge made numerous errors, including an incorrect interpretation of the Occupiers' Liability Act, R.S.O. 1990, c. O.2, a failure to apply the "but for" test, a jurisdictional error regarding the awarding of damages for loss of income, and a failure to attribute any contributory negligence to the respondent. It also seeks leave to appeal the costs award on the ground that the amount awarded exceeded the reasonable expectations of the parties.

[3] At the conclusion of the appellant's counsel's submissions we dismissed the appeal and denied leave to appeal the costs award, for reasons to follow. These are those reasons.

Facts

[4] The appellant was at all material times the occupier of the Friendship Trail (the "Trail") in Fort Erie, Ontario.

[5] The appellant installed wooden bollards at various points where the Trail intersects with roads. The bollards consisted of two pieces: (i) a metal sleeve that is embedded in ground, with a bracket that protrudes a few inches above the surface, and (ii) a wooden post that fits into the metal sleeve, such that two feet of the post is below ground and approximately four feet extends above grade.

[6] On July 31, 2006, the respondent was riding her bicycle on the Trail. At the Cherry Hill Boulevard intersection, a bollard had been removed leaving exposed its metal bracket. The front wheel of the respondent's bicycle struck the bracket. After making contact with the bracket, the respondent flew off her bicycle and sustained injuries, including a brain injury. She was not wearing a helmet at the time of the accident.

[7] In 2012, the respondent's position with the Ontario public service was declared surplus. She elected to choose redeployment within the public service, however she was unable to obtain a new position. She grieved under her collective bargaining agreement and her grievance was settled for a payment of $10,000 in general damages.

[8] After a five-week trial devoted to the issues of liability and damages for lost income, the trial judge found the appellant solely responsible for the accident and found, over the jurisdictional objections of the appellant, that the respondent was entitled to damages in the amount of approximately $737,000 for lost income.

Analysis

(i) Occupiers' Liability Act

[9] The appellant submits that the trial judge erred in his interpretation of s. 4 of the Occupiers' Liability Act. According to the appellant, in order to establish liability under s. 4 of the Act, the trial judge was obliged to find that it acted intentionally with reckless disregard to the safety of others.

[10] This submission finds no support in the wording of the subsection. The relevant provision is s. 4(1), which states:

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 the person or his or her property. R.S.O. 1990, c.O.2, s.4 (1).

[11] The suggestion that the duty of care described in this subsection is contingent on a finding of a deliberate intent to harm is not consistent with the words of the subsection read in their entire context and in their grammatical and ordinary sense. Clearly the subsection contemplates a duty of care not to create a danger with a deliberate intent of causing harm and a duty of care not to act with reckless disregard of the presence of the person or her property.

[12] The interpretation urged upon us by the appellant also finds no support in the jurisprudence. For example, in the leading case Cormack v. Mara (Township), [1989] O.J. No. 647, leave to appeal refused [1989] S.C.C.A. No. 256, at p. 6, this court interpreted the subsection to create two different duties of care, "[t]here is no suggestion in this case that the appellant Township did 'create a danger with the deliberate intent of doing harm or damage to' the respondent. The issue is whether in all of the circumstances, the respondent has proven that the appellant Township did 'act with reckless disregard of the presence of' the respondent snowmobiler on its property'".

[13] The court in Cormack concluded as follows regarding the wording of s.4:

I conclude that under the present wording of s. 4 of the Occupiers' Liability Act, the legislature has very significantly limited the duty of care owed by an occupier of premises to a snowmobiler who is deemed to accept all the risks of the premises. The phrase "act with reckless disregard of the presence" of the snowmobiler means doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the snowmobiler present on his or her premises, not caring whether such damage or injury results.

[14] The trial judge applied the appropriate test and concluded that, "the existence of an unpainted, unlocked and relatively easily removable bollard which exposes a housing or saddle above grade that has limited, if any, conspicuity amounts to reckless disregard to the safety of the persons using the Trail." That was a finding that was open to the trial judge and is owed deference by this court. We are not satisfied that the trial judge made any palpable and overriding error in reaching that conclusion.

(ii) But For Test

[15] The appellant submits that the trial judge failed to apply the but for test in his analysis of causation and damages. We disagree.

[16] In terms of causation, the trial judge stated, "the plaintiff must establish that but for the negligence – read reckless disregard – of the Town, her injuries would not have occurred." We note that the appellant conceded that the accident occurred because the respondent's bicycle came into contact with the empty bollard housing. The trial judge accepted the expert evidence proffered by the respondent that given the limited conspicuity of the housing she would not have had sufficient time to avoid the collision had she spotted it. He concluded, "this incident occurred as a result of the Town's reckless disregard to the presence of cyclists using the Trail." Reading his reasons as a whole, we are not satisfied that the trial judge failed to apply the but for test with respect to causation.

[17] With regard to damages, the trial judge found that the accident caused the respondent to lose income. He accepted the evidence that her ability to function in her job was severely compromised by the injuries she suffered. After she was surplussed, she was unable to obtain a new position within the Ontario public service and the trial judge accepted the expert evidence that her cognitive disabilities were so profound as to render her unable to obtain and maintain competitive employment. Again, we are satisfied that the trial judge's factual findings were well rooted in the evidence.

[18] We note, and the appellant concedes, that while proof of loss of income before trial must be established on a balance of probabilities, a plaintiff need only establish a "real and substantial risk of future pecuniary loss" as indicated in Graham v. Rourke, 74 D.L.R. (4th) 1 at pp. 12-13. See also Beldycki Estate v. Jaipargas, 2012 ONCA 537, at paras. 73-75.

(iii) Contributory Negligence

[19] The appellant submits the trial judge erred in finding that there was no contributory negligence given that: the respondent failed to wear a helmet, she and her riding companion did not report the missing bollard when they first rode past the Cherry Hill intersection approximately 30 to 60 minutes before the accident, and the respondent failed to keep a proper lookout.

[20] We do not give effect to this submission. The appellant did not establish a basis for a finding of contributory negligence because it failed to adduce sufficient evidence to meet its onus that something that the respondent did or did not do caused or contributed to the accident or the severity of her injury. For example, the appellant lead no admissible evidence that the failure of the respondent to wear a helmet exacerbated her injuries.

(iv) Lost Income

[21] The appellant submits that the Superior Court did not have jurisdiction to award damages for loss of income to the respondent because she was a unionized employee, subject to a collective bargaining agreement and her dispute with her employer was previously dealt with by the appropriate tribunal.

[22] In support of this argument, the appellant relies upon s. 48(1) of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, which provides:

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

[23] We see no merit in this argument. The provision concerns disputes as among an employer, a union, and a unionized employee. There is nothing in the subsection that purports to limit the rights of a unionized employee to sue a third party tortfeasor for lost wages.

(v) Costs

[24] The appellant conceded before the trial judge that in light of an offer to settle made by the respondent, she is entitled to her costs on a partial indemnity basis to May 2016 and on a substantial indemnity basis thereafter. However, the appellant seeks leave to appeal the costs award on the ground that the trial judge erred in law in failing to take into account the reasonable expectations of the parties and in awarding costs that were neither "fair nor reasonable".

[25] The test for leave to appeal a costs award is stringent. Leave to appeal will not be granted, save in obvious cases where the party seeking leave convinces the court that there are strong grounds upon which the appellate court could find that the judge erred in exercising her discretion: Alguire v. The Manufacturer's Life Insurance Company, 2018 ONCA 202, at para. 36. In the present case, we see no basis to grant leave to appeal the costs award.

[26] We reject that submission that the trial judge failed to take into account the reasonable expectations of the parties. To the contrary, he engaged in a detailed examination of the conduct of this litigation. He concluded that the appellant employed a "scorched earth" defence, where no issue was conceded and every possible legal argument, no matter how tenuous, was advanced. The record amply supported these findings.

[27] The appellant is, of course, entitled to employ whatever litigation strategy it deems fit. However, there are consequences to such an aggressive strategy. The appellant took a calculated risk that by engaging in a scorched earth defence it would either force the respondent to settle her claim or it would ultimately succeed at trial on one of the many defences it advanced. That calculation was not borne out at trial. The respondent must now live with the increased costs expectations that were the consequence of its strategy. In our view, there is nothing unreasonable or unfair in the costs awarded by trial judge.

Disposition

[28] The appeal is dismissed. Leave to appeal the costs award is denied. The appellant shall pay the respondent her costs of the appeal on a partial indemnity basis in the all-inclusive sum of $47,240.

"C.W. Hourigan J.A."

"G. Pardu J.A."

"Grant Huscroft J.A."