CITATION: Kim v. Ottawa (City of), 2022 ONSC 4648

DIVISIONAL COURT FILE NO.: DC-21-2649

DATE: 2022/08/11

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Yuna Kim

Plaintiff (Respondent)

– and –

City of Ottawa

Defendant (Appellant)

Self-represented Plaintiff (Respondent), assisted by Michael Kachmar

Mary Simms, for the Defendant (Appellant)

HEARD: December 1, 2021 and February 28, 2022

REASONS FOR DECISION ON APPEAL

RYAN BELL J.

Overview

[1] The City of Ottawa appeals the judgment of Deputy Judge C. Girault dated June 4, 2021. The deputy judge found the City liable for damages to Ms. Kim in the amount of $6,569.24. The City also appeals the deputy judge’s order that the City pay Ms. Kim’s costs in the total amount of $1,659.25.

[2] Ms. Kim was a patron of the City’s Champagne Pool. On March 18 and June 7, 2017, Ms. Kim was confronted by another patron of the pool who proceeded to yell and swear at Ms. Kim. The patron was cautioned by City staff after the first incident. Following the patron’s second verbal outburst directed at Ms. Kim, the City decided to prevent the patron from returning to the pool. A few days after the second incident, the vehicle Ms. Kim was driving was “keyed” while parked in the parking lot used by pool patrons.

[3] Ms. Kim brought an action in Small Claims Court against the City claiming damages for her loss of enjoyment during her continued use of the pool and for the damage to her spouse’s car. The deputy judge found the City liable for failing to make its premises reasonably safe for Ms. Kim.

[4] The City submits that the deputy judge erred as follows:

(i) the deputy judge erred in law in her interpretation of the City’s standard of care under the Occupiers’ Liability Act,[^1] and failed to give any consideration to the steps taken by the City in her analysis of whether the City met its standard of care;

(ii) the deputy judge erred in law with respect to the foreseeability of intentional acts of third parties and erred in finding that there had been an escalating pattern of behaviour on the part of the patron;

(iii) the deputy judge erred in finding liability in the absence of a causal link between the City’s response and the subsequent conduct of the patron and the unidentified individual who “keyed” the car;

(iv) the deputy judge erred in her assessment of damages; and

(v) the deputy judge erred in her assessment of costs.

[5] For the following reasons, the appeal is allowed and the action is dismissed.

Background

[6] The City provides all patrons of its fitness facilities, including its pools, with a “Terms and Conditions and Fitness Etiquette” form. Under the heading “Client Responsibilities”, the form reads: Please be respectful. Foul language, aggressive behaviour or misuse of the Fitness Membership will not be tolerated, and may result in membership termination or suspension.”

[7] Prior to March 18, 2017, the City had not received any complaints or reports with respect to the patron’s behaviour. On March 18, Ms. Kim was drying her hair using a wall dryer in the change room. The patron confronted Ms. Kim about using the wall dryers when Ms. Kim had her own hair dryer. When Ms. Kim asked the patron to stop talking to her, the patron called Ms. Kim a pejorative term. The head lifeguard at the facility came to Ms. Kim’s assistance. When the patron swore and yelled at Ms. Kim to “go back to your own country”, the head lifeguard told the patron she was not permitted to use such language in the facility and remained in the change room with Ms. Kim until the patron had left. Ms. Kim was advised that she could make a complaint to the facility manager. City staff completed an incident report.

[8] On March 19 or 20, 2017, Ms. Kim complained to Ms. Wagg, a City manager and recreation supervisor, about the incident. In response, Ms. Wagg and a lifeguard met with the patron to discuss the patron’s aggressive behaviour and her verbal threats towards Ms. Kim. The patron apologized and told City staff that the behaviour would not be repeated. The patron was advised to keep her distance from Ms. Kim.

[9] The same day, Ms. Wagg met with Ms. Kim and informed her that the patron was willing to move forward and keep her distance in the change room. Ms. Kim requested that the patron be suspended but Ms. Wagg declined to do so. Ms. Wagg advised Ms. Kim that if there was a future issue, she should approach staff immediately. Ms. Wagg also advised Ms. Kim that she could consider filing a police report.

[10] In response to the March 18, 2017 incident, City staff at the pool were directed to increase the frequency of change room checks, specifically when Ms. Kim and the patron were at the pool. The incident was also reported to corporate security.

[11] On March 23 and 30, 2017, the program manager and Ms. Kim’s spouse spoke about the incident. A further meeting involving City staff, Ms. Kim, and her spouse was held on April 11, 2017. City staff told Ms. Kim to advise staff if there were any further incidents between her and the patron.

[12] On June 1, 2017, Ms. Kim’s spouse sent an email to the program manager in which he reported that “over the past few weeks”, the patron had been shaking towels, flip flops or swimwear near Ms. Kim and/or in her general direction. He also reported that on June 1, the patron had slapped her wet flip flops against the sink, causing water to spray on Ms. Kim. The June 1, 2017 email was the first notice City staff had of any issues between the patron and Ms. Kim since March 18, 2017.

[13] On June 6, 2017, Ms. Wagg arranged a meeting with Ms. Kim for the following day. On June 7, Ms. Wagg spoke with the patron outside the facility. The deputy judge found that Ms. Wagg informed the patron that a meeting was scheduled with Ms. Kim concerning the patron’s actions.

[14] Ms. Wagg, the aquatic program coordinator, and Ms. Kim met on June 7, 2017. When Ms. Kim left, the patron was outside the facility and started yelling at Ms. Kim. The aquatic program coordinator escorted Ms. Kim to her vehicle. Approximately two hours later, City staff emailed Ms. Kim’s spouse to advise that the City was taking immediate action to remove the patron from the pool.

[15] On June 14, 2017, Ms. Kim noticed a large scratch on the passenger side of her spouse’s car which had been parked in the parking lot used by pool patrons. The matter was reported to the Ottawa Police Service. The individual responsible could not be identified from the City’s surveillance camera. Ms. Kim’s spouse did not repair the scratch on his vehicle and instead, sold his car “as is” prior to their departure from Canada in 2018.

Standard of Review

[16] The standard of review for this appeal is as set out in Housen v. Nikolaisen[^2]: for questions of law the standard of review is correctness; for questions of fact, palpable and overriding error, and for questions of mixed law and fact, the standard varies. Where a legal principle can be extracted from the question of mixed law and fact, the standard for that question is correctness. Where the issue is the application of correct legal principles to the facts, the standard is palpable and overriding error.

Analysis

The Occupiers’ Liability Act

[17] Section 3 of the Occupiers’ Liability Act provides:

(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.

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.

[18] Where a person willingly assumes the risks of entering premises, s. 4(1) of the Occupiers’ Liability Act substitutes a lesser duty on the occupier “to not create a danger with the deliberate intent of doing harm or damage” and “to not act with reckless disregard” with respect to the person or their property.

[19] Contrary to Ms. Kim’s written submissions, the applicable duty on the City is that set out in s. 3(1) of the Occupiers’ Liability Act.

[20] Ms. Kim also relies on s. 9(1) of the Occupiers’ Liability Act. Section 9(1) provides:

Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care than in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,

(a) innkeepers, subject to the Innkeepers Act;

(b) common carriers;

(c) bailees.

[21] In my view, s. 9(1) of the Occupiers’ Liability Act has no application to this case. As the Court of Appeal for Ontario explained in Schnarr v. Blue Mountain Resorts Limited,[^3] s. 9(1) provides that the statute does not restrict the imposition of a higher liability or standard of care upon occupiers and provides, as examples, innkeepers, common carriers, and bailees. The class of persons in s. 9(1) is not exhaustive; however, “s. 9(1) should be read ejusdem generis and be restricted to situations that are similar to the enumerated examples”: Schnarr, at para. 54.

[22] In Schnarr, at para. 55, the Court of Appeal was clear:

Indeed, the situations in which Ontario courts have imposed a higher standard of care upon an occupier are squarely analogous to the enumerated classes in s. 9(1). For example, in Miakowski (Litigation guardian of) v. Persaud … this court held that occupiers who are also landlords remain subject to the duties imposed on landlords under the Residential Tenancies Act ... And in Miller v. Canada (Attorney General) ... Leach J. held that the Crown’s duty to take reasonable and adequate measures to protect an inmate from a reasonably foreseeable risk of injury and predictable dangers supplemented the Crown’s duties under the OLA as an owner and occupier of penitentiaries. [citations omitted]

[23] The City, as occupier of a fitness facility, is not in a position analogous to that of a landlord, a common carrier, a bailee, or a landlord. Section 9(1) has no application to the circumstances of this case.

[24] The statutory duty imposed by s. 3(1) of the Occupiers’ Liability Act is a duty to take reasonable care. The Occupiers’ Liability Act does not impose a strict liability standard. As the Court of Appeal stated in Waldick v. Malcolm,[^4] at para. 20:

All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers’ liability with the modern law of negligence. The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take “such care as in all the circumstances of the case is reasonable.” The trier of fact in every case must determine what standard of care is reasonable and whether it has been met.

[25] The duty of care under the Occupiers’ Liability Act is a standard of reasonableness, not perfection; it does not require unrealistic or impractical precautions against known risks: Kerr v. Loblaws.[^5]

[26] In my view, the deputy judge misapprehended the standard of reasonable care required under s. 3(1) of the Occupiers’ Liability Act and applied a strict liability standard. Although the deputy judge wrote at para. 37 of her reasons that the City “failed to make their premises reasonably safe” for Ms. Kim, at para. 43, the deputy judge described the City’s obligation in the following terms:

The City of Ottawa had the obligation to make sure that the premises were safe for all users. Victims should not refrain from doing an activity for fear for their safety. Yuna Kim had right to expect that she would be safe when she was using the Champagne pool.

[27] With respect, these statements – which would impose an absolute duty on the City – reflect an error in law.

[28] That the deputy judge erred in law and applied a strict liability standard is also evident from her failure to conduct any analysis as to whether the steps taken by the City in response to the patron’s behaviour were reasonable in the circumstances. The duty to take reasonable care in the circumstances to make the premises safe requires the trier of fact to consider the factors which are relevant to an assessment of what constitutes reasonable care. The relevant factors will be specific to each fact situation. In this case, in relation to the first incident, there was uncontroverted evidence before the deputy judge that City staff intervened to assist Ms. Kim and admonished the patron for her inappropriate language directed at Ms. Kim. City staff documented the incident, reported it to managerial staff and advised Ms. Kim to make a complaint. City staff met separately with Ms. Kim and the patron. City staff was directed to increase their patrols of the change room during the times it was frequented by Ms. Kim and the patron. The deputy judge did not determine what standard of care was reasonable in the circumstances and whether it was met. Instead, the deputy judge summarily concluded that the City had failed to address the seriousness of the incident and stated that the City “appeared to think that if an incident is not committed in front of witnesses then there is no way to determine the facts.”

[29] The deputy judge also failed to consider the factors which are relevant to an assessment of what constitutes reasonable care in relation to the second incident. City staff arranged a meeting with Ms. Kim to discuss the patron’s behaviour toward Ms. Kim. On the day of the meeting, City staff accompanied Ms. Kim to her vehicle because the patron was yelling at Ms. Kim outside the facility. Within hours of the second incident, City staff determined that the patron would no longer be allowed to use the pool. The deputy judge disregarded the steps taken by the City, concluding only that “[t]he City appears to have felt that documenting the complaint was sufficient action on their part.” With respect, the deputy judge’s reasons do not disclose any analysis that would support her characterization of the City’s response as “inappropriate in the circumstances.”

[30] I would allow the appeal on this ground and set aside the judgment of the deputy judge.

Foreseeability of intentional acts of third parties

[31] The damages claimed by Ms. Kim were caused directly by the conduct of third parties: the patron in the case of Ms. Kim’s loss of enjoyment, and the unidentified person in relation to the damage to the vehicle. The deputy judge found that it was reasonably foreseeable that the patron would continue to exhibit intimidating behaviour towards Ms. Kim[^6], that the City “waited too long to take appropriate measures to address the intimidation so it continued to escalate,”[^7] and that the damage to the car was reasonably foreseeable.[^8]

[32] Foreseeability of the possibility of resultant harm is inadequate to establish a duty of care. As the Court of Appeal stated in Garratt v. Orillia Power Distribution Corporation[^9] at para. 48: “[w]e do not expect omniscience, prescience or clairvoyance, or impose a duty of care on all who fall short of any such standard. Foreseeability of the probability of resultant harm involves the likelihood that such harm will result from the alleged wrongdoer’s conduct.”

[33] In Garratt, the Court of Appeal allowed the appeal from the trial judge’s decision holding the defendant liable for damages caused by a vandal tampering with the defendant’s equipment: although it was reasonably foreseeable that a careless act by the defendant in its work on the overpass above the highway could result in injury to highway users, there was no evidence capable of sustaining a finding that the acts of the vandal which directly caused the plaintiff’s damages were a reasonably foreseeable result of the defendant’s conduct in securing the ropes.

[34] The Court of Appeal in Garratt relied on the following passage from the House of Lords’ decision in Smith v. Littlewoods Organisation Ltd.[^10] in which Lord Mackay described the duty of care towards a person injured by the conduct of a third party:

[W]here the only possible source of the type of damage or injury which is in question is agency of a human being for whom the person against whom the claim is made has no responsibility, it may not be easy to find that as a reasonable person he was bound to anticipate that type of damage as a consequence of his act or omission. The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probable and in many circumstances the only way in which a judge could properly be persuaded to come to the conclusion that the result was not only possible but reasonably foreseeable as probable would be to convince him that, in the circumstances, it was highly likely. In this type of case a finding that the reasonable man should have anticipated the consequence of human action as just probable may not be a very frequent option. Unless the judge can be satisfied that the result of the human action is highly probable or very likely he may have to conclude that all that the reasonable man could say was that it was a mere possibility. Unless the needle that measures the probability of a particular result flowing from the conduct of a human agent is near the top of the scale it may be hard to conclude that it has risen sufficiently from the bottom to create the duty reasonably to foresee it.

... what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such agency plays no part, is the probable consequences of his own act or omission, but that, in such a case, a clear basis will be required on which to assert that the injury or damage is more than a mere possibility.[^11]

[35] The deputy judge’s finding that the patron displayed an escalating pattern of intimidation was not supported on the evidence. The first incident between the patron and Ms. Kim was the verbal altercation on March 18, 2017. The evidence at trial was that the patron apologized to City staff and promised that her behaviour would not happen again. The City had no knowledge of any further incidents until June 1, 2017 – three months later – when Ms. Kim’s spouse emailed City staff. On June 7, 2017, immediately after City staff met with Ms. Kim to discuss her complaint of the patron’s “passive-aggressive” behaviour, there was a second verbal outburst by the patron. Within hours of that incident, City staff prohibited the patron from using the pool frequented by Ms. Kim.

[36] With respect, two incidents, separated by three months, do not evidence a “pattern” of conduct. Both incidents were addressed promptly by the City, although in the case of the first, not in the manner preferred by Ms. Kim and her spouse.

[37] In Coleiro v. Premier Fitness Clubs,[^12] Lauwers J., as he then was, dismissed a claim against the defendant arising from one patron’s assault on another. Lauwers J. found that the defendant owed no duty of care based on negligence law or under the Occupiers’ Liability Act, because the possibility of assault by one patron on another was not reasonably foreseeable, nor was the risk a “customary or obvious risk”, and there was no causal link between the alleged negligence of the defendant and the injury.

[38] In Da Silva v. Gomes,[^13] the Court of Appeal dismissed the plaintiffs’ appeal from the motion judge’s dismissal of the action. The motion judge found that two prior verbal outbursts with referees were not “predictive or demonstrative of the type of violent behaviour demonstrated by Gomes when he assaulted Da Silva ... [and] not the type of behaviour that should have led Leal, acting as a reasonable coach, to conclude that there was a risk regarding Gomes’ behaviour.”[^14]

[39] The deputy judge erred in law in her approach to foreseeability by failing to consider whether there was a “clear basis” in the evidence to find that the patron’s outbursts towards Ms. Kim were a probable outcome of the City’s acts or omissions. In finding that it was reasonably foreseeable that the patron would “continue to exhibit” intimidating behaviour towards Ms. Kim, the deputy judge found that the City waited “too long to take appropriate measures to address the intimidation so it continued to escalate.” Neither finding – that the City “waited too long” and that the behaviour “continued to escalate” – was available to the deputy judge on the evidence adduced at trial, resulting in a palpable and overriding error.

[40] The damage to the car – noticed by Ms. Kim one week after the second incident and caused by an unidentified person – is even more remote. The deputy judge wrote that “[t]he City of Ottawa should have been aware that the patron would escalate her threats as that had been her pattern to date. The damage to personal property in the facility’s parking lot was thus foreseeable.”[^15] There was no evidence capable of sustaining a finding that the acts of the unidentified person were a reasonably foreseeable result of the City’s conduct.

[41] I would also allow the appeal on this ground.

Causation

[42] Findings with respect to causation involve questions of fact; the applicable standard of review is palpable and overriding error: Salomon v. Matte-Thompson,[^16] at para. 32.

[43] The general test for causation is the “but for” test, which requires that the plaintiff prove the injury would not have occurred but for the negligence of the defendant: Athey v. Leonati.[^17]

[44] In my view, the deputy judge made palpable and overriding errors in her findings with respect to causation. First, I agree with the City that there was no evidentiary basis upon which the deputy judge could find on a balance of probabilities that the patron would have conducted herself differently but for the City’s conduct. The deputy judge wrote: “Perhaps because the patron’s behaviour had not been addressed early on, the patron did not feel that her actions were [u]nacceptable.”[^18] With respect, “perhaps” does not satisfy Ms. Kim’s burden of proof of causation on a balance of probabilities.

[45] Second, the person in the parking lot who damaged the car was never identified. This fact alone precludes the possibility of a causal link between the City’s conduct and the conduct of the unidentified person.

[46] I would also allow the appeal on the issue of causation.

Damages and Costs

[47] Because I would allow the appeal, I need not address the City’s submissions on damages and costs.

Disposition

[48] The appeal is allowed. The judgment in favour of Ms. Kim and the order as to costs are set aside. Based on the evidence adduced at trial, the action is dismissed.

[49] In the event the parties are unable to agree on costs of the action and the appeal, they may make written submissions limited to a maximum of three pages. The City shall deliver its costs submissions by August 25, 2022. Ms. Kim shall deliver her responding costs submissions by September 8, 2022. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

The Honourable Madam Justice Ryan Bell

Released: August 11, 2022

[^1]: R.S.O. 1990, c. O.2. [^2]: 2002 SCC 33, [2002] 2 S.C.R. 235. [^3]: 2018 ONCA 313, at para. 54. [^4]: 1991 8347 (ON CA), aff’d 1991 71 (SCC), [1991] 2 S.C.R. 456. [^5]: 2007 ONCA 371, at para. 19. [^6]: Reasons for Judgment, at para. 43. [^7]: Reasons for Judgment, at para. 44. [^8]: Reasons for Judgment, at para. 45. [^9]: 2008 ONCA 422, at para. 48. [^10]: [1987] H.L.J. No. 3, [1987] A.C. 241 (H.L.). [^11]: Garratt, at para. 61, citing Smith, at p. 261 A.C. [^12]: 2010 ONSC 4350. [^13]: 2018 ONCA 610. [^14]: Da Silva, at para. 9. [^15]: Reasons for Judgment, at para. 45. [^16]: 2019 SCC 14. [^17]: 1996 183 (SCC), [1996] 3 SCR 458. [^18]: Reasons for Judgment, at para. 41.