COURT OF APPEAL FOR ONTARIO DATE: 20240112 DOCKET: C70477
van Rensburg, Nordheimer and George JJ.A.
BETWEEN
Patrick Lyng Plaintiff (Respondent)
and
City of Toronto, Ontario Place Corporation* and The Province of Ontario Waterfront Toronto Defendants (Appellant*)
Counsel: Martin Forget and Earl Murtha, for the appellant James A. Scarfone and Jacob M. Sazio, for the respondent
Heard: August 29, 2023
On appeal from the judgment of Justice Antonio Skarica of the Superior Court of Justice, dated February 16, 2022, with reasons reported at 2022 ONSC 1861.
George J.A.:
A. OVERVIEW
[1] The appellant, Ontario Place Corporation (“Ontario Place”), appeals from the trial judge’s decision to award the respondent damages for injuries sustained while on its premises.
[2] On July 14, 2016, the respondent, age 21 at the time, attended a concert at Ontario Place with his friend. It rained heavily that day. Following the concert the respondent, his friend, and other concertgoers exited the main gates and proceeded to a pedestrian bridge that leads over Lake Shore Blvd. to the Exhibition GO station. This bridge was the fastest and most direct route to that location. Upon arrival at the bridge, the respondent found that it was closed. Two security guards were blocking entry. Along with others, the respondent and his friend proceeded down a hill next to the bridge. There were no barricades or warnings limiting access to the hill. The respondent’s friend, who testified at trial, said that he went down the hill first, that the hill was wet and slippery, and that he “skidded down” without falling. The respondent, who followed his friend, fell and sustained a serious knee injury. A surgical repair was required.
[3] The respondent had consumed alcohol, was wearing flip-flops, and testified that he had slipped as he neared the bottom of the hill.
B. DECISION BELOW
[4] The trial judge found that Ontario Place was liable for the respondent’s injuries under s. 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Act”). In arriving at that conclusion, he made several findings of fact, including that 1) Ontario Place blocked entry to the bridge, 2) it had rained, the grass was wet, and the hill was therefore a hazard, 3) Ontario Place was aware that the hill was a hazard, 4) Ontario Place could have, but did not, warn people of the risk or place barriers to prevent entry to the hill, and 5) the respondent did not slip on the wet hill, but rather jumped and tore his ACL when his left leg landed on the asphalt road at the bottom of the hill. The trial judge found the respondent to be contributorily negligent and apportioned liability accordingly: 75 per cent to Ontario Place, and 25 per cent to the respondent.
[5] As noted, the trial judge did not accept the respondent’s version of events in its entirety. He rejected the respondent’s testimony that he slipped while going down the hill. He determined that the respondent, after jumping to the asphalt road from a pedestrian walkway in the middle of the hill, landed awkwardly on a straightened leg and that this is what caused the ligament tear. The trial judge grounded his liability finding on the fact that Ontario Place did not erect barriers to prevent people from using the hill and by not otherwise informing them that the hill, because it was wet, posed a risk. Put another way, the trial judge found that the slippery hill was a hazard known to Ontario Place, that what occurred here was foreseeable, and that it could have been prevented.
[6] The trial judge rejected Ontario Place’s argument that s. 4(1) of the Act absolved it of liability because the respondent had willingly assumed the risk of going down the hill. He awarded damages as follows: 1) $50,000 in non-pecuniary general damages; 2) $25,367.21 for past income loss; and 3) $100,000 for loss of competitive advantage. In respect of the loss of competitive advantage award, the trial judge considered the evidence of the respondent’s treating orthopaedic surgeon and found that the respondent’s surgically repaired knee “will fray or break in about 10 to 15 years” and that another surgery will then be required.
[7] In light of the finding that the respondent was contributorily negligent, the total damages award was reduced by 25 per cent.
C. ISSUES
[8] The appellant advances several grounds of appeal. He argues that the trial judge:
i) erred by considering a theory of liability outside of the pleadings and presentation of the case;
ii) erred in his causation analysis;
iii) erred in finding that Ontario Place breached its duty under s. 3 of the Act on the basis that wet grass is not an unusual danger;
iv) erred in failing to find that the respondent was the author of his own misfortune; and
v) erred by awarding damages for loss of competitive advantage.
[9] For the reasons that follow, I would reject each of these grounds and dismiss the appeal. I will address each ground in the order noted above.
D. ANALYSIS
Issue #1 – The trial judge did not consider a theory of liability outside of the pleadings and presentation of the case
[10] While accepting that the hill was “very slippery and wet after a [day-long] substantial downpour”, the trial judge rejected the respondent’s evidence that his fall and the resulting knee injury were caused by him slipping as he descended that wet hill. He instead concluded that:
[The respondent] had a few drinks and was fooling around as could be expected from a 20 year old young man. He decided to jump over the last six feet of the hill. He was wearing flip-flops. I find, based on all the evidence, that [the respondent] after jumping , landed awkwardly on his straight left leg and tore his ACL. [Emphasis added.]
[11] The appellant argues that given this finding, the trial judge had no choice but to dismiss the action. That is, the trial judge considered a theory of liability outside of the pleadings and presentation of the case – namely that Ontario Place set off a “train of events” that led to the respondent being in a position of danger – when the case was pled and argued on the basis that the respondent slipped and fell on wet grass. Ontario Place’s concern is that a “theory of liability that emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process”, and that it was therefore “deprived of the opportunity to make submissions and to address that issue in the evidence”: Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74 (C.A.), at para. 62; Moore v. Sweet, 2017 ONCA 182, 134 O.R. (3d) 721, at para. 39.
[12] I would reject this ground of appeal. This theory of liability was not, as the appellant alleges, raised for the first time in the trial judge’s reasons for judgment. It was raised in the pleadings, addressed in both the written and oral arguments made by counsel at trial, and canvassed extensively during cross-examination of the respondent. For example, during his closing submissions the respondent’s trial counsel said that:
The Court’s task, in this case, is to review the circumstances, and we’re going to emphasize the circumstances involve the entire process, not just the fall, not just the slip. I expect that my friend will attempt to narrow down the view to kind of a visual picture of the actual slipping on the grass. It’s not about that. It’s about the entire duty of Ontario Place and all of the acts that led up to it. So what are the reasonable circumstances involved in the case, and what proactive duties was Ontario Place required to do?
[13] Later in his closing submissions, counsel returned to this, making the additional point that any concerns over what the respondent did while traversing the hill went to the question of whether he should be found contributorily negligent:
[T]he court has to look at the whole event from the beginning to end, and so we put ourselves in the place of this gentleman. He’s in a dark place, he’s having trouble with his footing, and he makes a decision. So let’s say he makes a decision to jump, and I would add this, Your Honour, the concept of jumping doesn’t necessarily mean that you are doing something independent. It could be a defensive thing, and that fits with [the respondent’s] evidence, that he – when he lost his footing he did something that was a defensive thing. So in terms of contributory negligence, yes, I think the Court is open to find that he could have or he could have perhaps done something different, but I would submit that the contributory negligence could be modest, 10 or 15 percent is because the agony of the moment in respect to the fall, or, you know, if Your Honour considers that he should have considered some alternative route at the moment that he entered that hill, then yes, it is open to the court to find a modest amount of contributory negligence.
[14] At paras. 3 and 4 of his written trial submissions, the respondent writes that “[h]ad Ontario Place had a reasonable system in place to prevent him from going down the hill, his injuries would have been avoided altogether”, and that Ontario Place’s argument that he was the author of his own misfortune by jumping takes a “too narrow view of the cause of his injury and does not account for the lead up to the fall”.
[15] The statement of claim also makes this theory of the case clear. For instance, the respondent pleads that Ontario Place owed him a duty under the Act to keep him reasonably safe, and alleges that Ontario Place breached that duty thereby causing him to fall, injure himself, and suffer damages. The statement of claim specifically pleads, at para. 19(l), that “[Ontario Place] unlawfully and negligently blocked the normal safe passageway across the bridge, forcing [the appellant] to choose a dangerous and unsafe alternative, knowing there was virtually no lighting, no warnings, and no safe passage”, which outlines precisely the “train of events” the trial judge ultimately found occurred and which, he accepted, led to the respondent’s injuries.
[16] What the appellant calls a “novel theory of liability”, raised for the first time in the trial judge’s reasons, was clearly in issue throughout the proceedings. It was raised in both the pleadings and during the course of counsel’s submissions.
[17] Lastly, and in any event, this so-called new theory was tested extensively by the appellant during the trial. The appellant’s trial counsel cross-examined the respondent on what he did that entire evening, and on prior visits to Ontario Place, and confronted him with suggestions that he ought to have taken a different route when leaving. Why the respondent descended the hill, as opposed to taking an alternate route, was a main trial issue.
[18] The respondent’s theory of negligence was clear throughout, which was, in the circumstances (i.e., rain, low visibility, and pedestrian bridge closure), Ontario Place had an obligation to take steps to prevent patrons from traversing a wet, slippery slope. None of that could have possibly taken the appellant by surprise. There was no procedural unfairness. I would therefore reject this ground of appeal.
Issues #2, 3 & 4 – The trial judge did not err in his causation analysis, did not err in finding that Ontario Place breached s. 3 of the Act, and was right to conclude that the respondent was not the author of his own misfortune
[19] All of these issues are related to the broader causation question and can therefore be addressed together.
Causation Analysis
[20] I will start with Ontario Place’s argument that the trial judge erred in his causation analysis by failing to properly apply the “but for” test, which requires a substantial connection between the respondent’s injury and Ontario Place’s conduct. Ontario Place claims it cannot be held liable as the respondent’s injuries were due to other factors unconnected to what it did or did not do.
[21] As discussed, the trial judge rejected the respondent’s evidence and found that it was a “jump” and not, as the respondent claimed, a “slip” that caused the fall and injury. Ontario Place argues that the jump (which immediately preceded the respondent’s fall) represented a break in the chain of causation and that it was therefore not open to the trial judge to find it liable. Ontario Place takes the position that, even if one were to accept that it breached its obligation to protect its patrons from the danger of wet grass, that failure did not cause the injury. That is, the respondent did not slip and fall; he made the needless decision to jump, which led to him landing awkwardly.
[22] Ontario Place also points to the location of the jump in support of its position that, even if the wet grass was an unusual danger (which I will address in a moment), the respondent’s decision to jump when he was already at or near the bottom of the hill – from a pathway to the roadway below – would have led to the injury he sustained regardless of the condition of the grass on the hill.
[23] Ontario Place is essentially asking this court to reweigh the evidence and arrive at a different conclusion than the trial judge. This is not the function of an appellate court. Ontario Place has not identified any error that would warrant appellate intervention. The trial judge accurately set out and applied the applicable legal principles. The issue of causation is a factual finding which should not be interfered with absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, at para. 70. As mentioned, while attributing fault to the respondent and thus finding that he was contributorily negligent, the trial judge found that Ontario Place’s negligent acts set off a “train of events” that placed the respondent at the bottom of a wet, hazardous, slippery hill – a hazard known to Ontario Place and which “could have been easily prevented”. I see no error and would reject this ground of appeal.
Occupiers’ Liability Act
[24] Section 3 of the Act provides that:
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 on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
[25] Ontario Place correctly points out that occupiers are not required to take unrealistic or impractical precautions against known risks, nor are they required to protect against every possible danger: Waldick v. Malcolm, [1991] 2 S.C.R. 456, at pp. 470-72. The standard is not perfection.
[26] Ontario Place’s argument is that wet grass caused by rainfall, as found by the trial judge, is not an unusual danger that it, as the occupier, had to guard against. It points to several lower court, and two appellate court, decisions in support. It highlights the British Columbia Court of Appeal’s decision in Malcolm v. B.C. Transit (1988), 32 B.C.L.R. (2d) 317 (C.A.), and this court’s decision in Winters v. Haldimand (County), 2015 ONCA 98, 33 M.P.L.R. (5th) 1. In Winters it was held that an occupier does not have a duty to warn of the dangers of climbing a tree, and in Malcolm the court, concluding that wet grass was not an unusual danger, held that there is no duty “to warn an adult, not suffering under any disability, of the ordinary risks arising out of the exigencies of everyday life. Any such adult person without being warned knows and accepts the risks of falling on a steep, wet, grassy slope or a path”: at para. 10.
[27] The trial judge, however, cited the leading authority from the Supreme Court – Waldick – noting that “[a]s indicated in Waldick, the duty of reasonable care does not change [but] the factors, which are relevant to an assessment of what constitutes reasonable care, will necessarily be very specific to each fact situation”. The trial judge then proceeded to thoroughly address the factors present here and explained why, in the circumstances of this case, Ontario Place was liable.
[28] Distinguishing this case from those relied upon by Ontario Place, the trial judge specifically found that “[b]y blocking the pedestrian bridge and making no reasonable effort from preventing the crowd, a number who have been drinking alcohol, from going onto that wet hazardous hill, Ontario Place failed in its duty to take care that persons were reasonably safe while on its premises”. It is important to note that the trial judge did not find that Ontario Place had an obligation to prevent patrons from entering onto all patches of wet grass, everywhere on the premises, but pinpointed what he viewed as Ontario Place’s negligent decision to not place “barriers to prevent people from going down [the] slippery hill”. He concluded that it would have been a “simple matter to warn people to avoid that hill as it was a slip and fall hazard after a heavy rain”.
[29] The trial judge did what s. 3 directs him to do – he carefully considered what would have been reasonable in the circumstances. In the end he found two clear breaches: 1) the failure to erect barriers at the location where people would proceed down the hill in question, and 2) the failure to warn the crowd (i.e., by a sign) to avoid the hill.
[30] The trial judge approached this question as required by s. 3 and by Waldick. I see no error and would reject this ground of appeal.
Respondent as the Author of His Own Misfortune
[31] This argument repeats the grounds of appeal I have already rejected. In any event, Ontario Place asserts that having found that the respondent jumped down the slope in flip-flops, after consuming alcohol, the trial judge had to then find that he was the author of his misfortune and dismiss the action accordingly.
[32] I would reject this argument. While not putting it in quite this way, Ontario Place is essentially saying that because the trial judge found the respondent contributorily negligent, he had to then dismiss the action in its entirety. This is of course not the case. The trial judge found that Ontario Place was negligent by blocking the bridge and making no effort to prevent the crowd from proceeding down a nearby wet hazardous hill, and found that the respondent was negligent by jumping when he got near the bottom of that hill. There is nothing inconsistent about these two findings.
[33] “But for” causation requires only that a defendant’s negligent conduct be a necessary cause of the injury, not the sole cause: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 17; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8. Here we have two negligent causes of the respondent’s injury with the trial judge apportioning liability accordingly. The standard for appellate interference with a trial judge’s apportionment of liability is an exacting one: Ault v. Canada (Attorney General), 2011 ONCA 147, 274 O.A.C. 200, at para. 56. As Ontario Place has not identified any demonstrable error in the trial judge’s appreciation of the facts, or in his application of the relevant legal principles, this high threshold has not been met.
Issue #5 – The trial judge did not err in awarding damages for loss of competitive advantage
[34] An award of damages for loss of competitive advantage is meant to compensate a plaintiff for a component of future income loss: Lazare v. Harvey, 2008 ONCA 171, at para. 32. A plaintiff is entitled to damages for loss of competitive advantage if they can prove a substantial risk of loss of income in the future: Lazare, at para. 18. Ontario Place submits that the $100,000 award for loss of competitive advantage in this case was based on mere speculation and should be set aside. It asserts that there was no basis for the trial judge to find “any impact on [the respondent’s] ability to earn income”, particularly in view of the fact that the respondent is no longer employed in his trade as a plumber and has instead moved into a largely sedentary sales-related role.
[35] The standard for appellate interference with a damages award is an onerous one. An appellate court cannot intervene simply because it would have come to a different conclusion or because the appellant disagrees with the award: Woelk v. Halvorson, [1980] 2 S.C.R. 430, at p. 431; S.M. c. Sternthal Katznelson Montigny, 2021 QCCA 673, at para. 12. Ontario Place must establish that the trial judge 1) made an error of principle or law; 2) misapprehended the evidence; 3) erred in finding there to be evidence on which to base his conclusion; 4) failed to consider relevant factors, or considered irrelevant factors; or 5) made a palpably incorrect or wholly erroneous assessment of damages: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80.
[36] The respondent’s treating orthopaedic surgeon, Dr. Mah, testified. He was the only medical expert called at trial and his evidence is relied upon by both parties. Ontario Place highlights Dr. Mah’s evidence that even a football player after an ACL reconstruction could return to the game without impact on his competitive ability. Ontario Place also points to Dr. Mah’s indication that he would not expect problems for a plumber, the respondent’s trade, as the surgical repair “should be adequate to last you for your lifetime of work”. The respondent highlights Dr. Mah’s testimony that he would expect a reconstructed ACL to “last over 10 years to 15 years at the most”, and specifically this exchange with counsel:
Q. And so after 10 or 15 years what is actually happening in the knee that may cause it to basically require further surgery, or further treatment, or what happens automatically inside the knee?
A. The graph that I used, the semitendinosus and the bacillus tendon, I put in there, it’s just like the old hang man’s rope, you know. It becomes a little frayed in the middle, and sometimes in the middle as the old guy at the bottom of the hangman’s noose swings back and forth that eventually with time will break, and then he falls.
Q. And if it breaks at some point in the future, whether it’s 10 or 15 years, he would require further ACL surgery?
A. Depending on the age. Again, that’s what we’re talking about before. If he’s old age, 45/50, they try not to.
[37] When asked whether a total knee replacement was a possibility, Dr. Mah said that “the answer is that the issue of a total knee is too premature at this time to consider however, it is notable, most recent literature indicate[s] ACL substitution does not last a life time, and the usual framework for reference is 10 years”. Dr. Mah continued: “The possibility of a repeat ACL surgery and degenerative changes to the chondromalacia of the medical tibial plateau [may be] in order but this is hypothetical in this time. The literature on ACL substitution indicated it does not last 10 years in most cases”.
[38] The expert’s evidence was superficially inconsistent. The question is whether it was open to the trial judge to conclude, from that evidence, that there was a real and substantial risk of a future loss of competitive advantage. This question really boils down to what he could reasonably take from Dr. Mah’s evidence, which was that 1) recent literature indicates that reconstructed ACLs typically only last 10 to 15 years before fraying or breaking, 2) there is a real possibility that the respondent may consequently require further surgery, and 3) any recovery time associated with further surgery would likely have an impact on the respondent’s ability to earn income or return to physically demanding work. The trial judge’s apprehension of the evidence in its totality is reasonable and entitled to deference.
[39] Moreover, it is clear that the trial judge understood that he was dealing in probabilities and not certainties. Notwithstanding Dr. Mah’s comments about football players and plumbers being able to continue their work, there was evidence to support the trial judge’s finding of a real and substantial risk that the respondent has suffered a loss of competitive advantage. As Dr. Mah explained, recent literature indicates a substantial possibility that a replacement ACL will fray, break, and require further surgical repair. This outcome is not a certainty, but that does not render the trial judge’s conclusion speculative. He weighed the evidence and reasonably concluded that, while not an inevitable result, there is nevertheless a real risk that the respondent will experience future complications with his reconstructed ACL. There was a sufficient evidentiary basis for the trial judge’s conclusion.
[40] Ontario Place further argues that because the respondent is no longer working as a plumber, but in a sales-related role (with some warehouse duties), his compromised knee is of no moment. I do not see the respondent’s change of work as determinative. It remains the case that the respondent is a trained plumber and that, on the evidence, he may not be able to do that job in 10 to 15 years, or be significantly limited in what he can do (including in a warehouse), if his knee is compromised.
[41] The trial judge accurately set out the law, noting that the respondent need only prove that there is a real chance of a future loss of competitive advantage, and he fairly applied the relevant principles to the facts as he found them. I would therefore reject this ground of appeal.
E. Conclusion
[42] For these reasons I would dismiss the appeal.
[43] Costs of the appeal to the respondent in the agreed upon all-inclusive amount of $15,000.
Released: January 12, 2024 “K.M.v.R” “J. George J.A.” “I agree K. van Rensburg J.A.” “I agree I.V.B. Nordheimer J.A.”