COURT OF APPEAL FOR ONTARIO

CITATION: Onley v. Whitby (Town), 2020 ONCA 774

DATE: 20201208

DOCKET: C67993

Doherty, Roberts and Harvison Young JJ.A.

BETWEEN

Zoe Onley, Sallie Onley, and Richard Onley

Plaintiffs (Appellants)

and

Corporation of the Town of Whitby, Whitby Iroquois Soccer Club Inc., Whitby Hydro Electric Corporation and Electrical Safety Authority

Defendants (Respondent)

David A. Morin and Peter M. Reinitzer, for the appellants

Charles M.K. Loopstra and Paul E.F. Martin, for the respondent

Heard: November 23, 2020 by video conference

On appeal from the judgment of Justice Edward J. Koke of the Superior Court of Justice, dated January 2, 2020, and from the costs order, dated May 5, 2020, with reasons reported at 2020 ONSC 20 and 2020 ONSC 2795.

REASONS FOR DECISION

[1] The appellant, Zoe Onley, was electrocuted near a light pole beside a soccer field owned by the respondent, the Town of Whitby. Ms. Onley was 18 years old at the time of the incident on August 15, 2012. She had been sitting on the grass after playing and turned to get up by placing her hands on the grass, when the current went through her. She returned to the field after the incident but later collapsed and was treated in hospital. She, along with her parents, sued the respondent for damages arising from her electrocution. They appeal the trial judge’s dismissal of their action.

[2] Following the appellant’s submissions, we dismissed the appeal with reasons to follow. These are those reasons.

Background

[3] The damage to the light pole had been caused by a lightning strike which damaged the wires inside the light pole causing electricity to leak into the ground. The resulting stray current caused the electrocution of the appellant. On appeal, although the parties agreed that lightning caused the damage, they did not agree when the lightning strike occurred.

[4] The appellants sued under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. (the “OLA”). The trial judge found that while the possibility of the lightning strike was foreseeable, the precise nature of this sort of injury being caused by damage to the interior wires of the pole, without any outward sign of damage, was not. He went on to consider whether the respondent had met its “duty to take such care as in all the circumstances is reasonable to see that persons entering the premises…are reasonably safe while on the premises”: OLA, s. 3(1).

[5] The main issue at trial was liability and specifically whether the respondent had met its standard of care. The trial judge found that it had. In assessing the standard of care, the trial judge considered the fact that the respondent had a safety agreement with the Electrical Safety Authority (the “ESA”). This agreement provided for annual inspections performed by the ESA as well as advice on compliance with the Electrical Safety Code, O. Reg. 164/99.

[6] The appellants proposed numerous practices, beyond those safety requirements that the respondent had in place which exceeded the statutory minimum, that they claimed would have prevented the appellant’s electrocution. These proposals included the introduction of a stray voltage detection program (which could include the use of inexpensive pen testers to detect live current), the installation of lightning rods on its light poles, and regular inspections of light pole handholes.

[7] In addition, the appellants argued that the respondent did not comply with certain safety requirements and was in violation of its agreement with the ESA.

[8] The trial judge rejected all these arguments. He rejected the alternative approaches, largely because the stray voltage leakage in this case was extremely unusual, there was no cost-effective or reliable way to detect stray voltage, and the timing of the lightning strike (after the spring of 2012) meant that some of the alternatives would not have prevented the appellant’s electrocution. In addition, he rejected the arguments that the respondent was not in compliance with its security agreement and found that, even if it was not in compliance, such compliance would not have prevented Ms. Onley’s electrocution.

The Issues on Appeal

[9] The heart of the appellants’ arguments on appeal rest on the following submissions that:

• The trial judge erred in concluding that the lightning strike that caused the damage had most likely occurred sometime after the spring of 2012;

• The trial judge erred in law in allowing the respondent’s expert to opine at trial on the efficacy of the pen testing device as a strategy that the City should have employed to prevent such injuries; and

• The trial judge erred in rejecting pen testing as a reasonable measure that should have been employed by the respondent that would have prevented the incident.

Occupiers’ duty of care

[10] The OLA imposes an affirmative duty on all occupiers 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”: s. 3(1). It does not require a standard of perfection: Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, at para. 42. What constitutes reasonable care depends on the facts of each case: Tondat v. Hudson’s Bay Company, 2018 ONCA 302, at para. 5.

The timing of the lightning strike

[11] First, we do not agree that the trial judge erred in concluding that the damage had most likely occurred during a thunderstorm after spring 2012. He reached this conclusion after careful consideration of the evidence before him on this issue. He gave clear reasons for so concluding. This was a finding of fact which was well grounded in the record and we see no basis for interfering with it.

[12] The implication of this finding of fact is that the lightning strike and the consequent damage to the light pole took place no more than a few months before the incident that injured the appellant. Given this timing, and as the appellants conceded during argument, the only measure advanced by the appellant which could have addressed this and prevented the injury to Zoe Onley was the use of pen testing devices to detect stray voltage in and around the 63 light poles in the park.

The admission of Mr. Learmonth’s evidence on the pen testers

[13] Second, we see no error on the part of the trial judge in admitting the respondent’s expert Mr. Learmonth’s evidence that the pen testers would not have been an effective way of detecting stray current from lighting poles. This evidence was given in response to the evidence of the appellants’ expert Mr. Gillingham suggesting that a simple inexpensive pen tester could be used to determine the presence of stray current on or around the light poles, which would be a relatively inexpensive and simple solution. By touching a pole and the surrounding area on a regular basis, he testified, an occupier could prevent injuries from stray current. The appellants objected but the trial judge permitted Mr. Learmonth to opine on the issue.

[14] The respondent’s expert, Mr. Learmonth, did not agree with Mr. Gillingham that pen testing would be effective or practical for use on a soccer pitch where the energized wires ran underground and inside poles because it does not differentiate between whether the electric field is from the normal wires powering the lights, or from electric current leaking from those wires.

[15] The appellants submit that the trial judge erred in admitting Mr. Learmonth’s evidence on this issue because it was not contained in his expert report. We disagree. The trial judge properly exercised his discretion on this issue. As the issue of the possible use of pen testers was raised by Mr. Gillingham, it cannot have been surprising to the appellants that the respondent sought a response from Mr. Learmonth on the point during his examination in chief. In addition, we see no prejudice to the appellants in the circumstances. The appellants had the opportunity to cross-examine Mr. Learmonth and, in a later ruling about the admissibility of Mr. Learmonth’s evidence, the trial judge indicated that notwithstanding that the appellants had closed their case, he would be willing to adjourn in order to permit the appellants to prepare reply evidence. They did not make such a request.

The trial judge’s conclusion on the pen tester evidence

[16] In light of our conclusions that the trial judge did not commit any reversible errors in either finding that the probable date of the lightning strike occurred after the spring of 2012, or in permitting Mr. Learmonth to respond to Mr. Gillingham’s evidence with respect to the efficacy of pen testers, we find no basis for interfering with his preference for Mr. Learmonth’s evidence on the point. It was open to him on the record before him to do so. He considered both experts’ evidence and gave detailed reasons for preferring that of Mr. Learmonth on the issue.

Other grounds of appeal

[17] The appellants also submit that the trial judge erred in his analysis of the foreseeability of the specific nature of the damage. We do not find it necessary to address the trial judge’s foreseeability analysis because we are of the view that he correctly conducted and applied the standard of care analysis. However, that is not to be taken as agreement with the foreseeability analysis.

[18] Similarly, although we do not find it necessary to address the appellants’ submissions on damages for loss of future earning capacity, this is not to be taken as the court’s agreement with the trial judge’s approach to this issue.

Costs

[19] Leave to appeal the costs order is granted. The appeal as to costs is dismissed. The costs ordered by the trial judge were fair and reasonable.

Disposition

[20] The appeal is dismissed. The respondent is entitled to its partial indemnity costs, if demanded, in the amount of $25,000, inclusive of disbursements and tax.

“Doherty J.A.”

“L.B. Roberts J.A.”

“A. Harvison Young J.A.”