COURT FILE NO.: 3053/08

DATE: 20120430

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DOREEN WALKER

Plaintiff

– and –

THE CORPORATION OF THE CITY OF BURLINGTON and HYDRO ONE NETWORKS INC.

Defendants

Paul J. Cahill, for the Plaintiff

Sachin Persaud, for The Corporation of the City of Burlington

Lou Fortini, for Hydro One Networks Inc.

HEARD: November 9, 10, 14, 15, and16, 2011

REASONS FOR JUDGMENT

HOURIGAN J.

Overview

[1] This is a personal injury action arising from injuries sustained by the plaintiff while attending at Beachway Park in Burlington, Ontario (the “Park”).

[2] The issue of damages has been agreed to by all the parties. The remaining issues to be determined in this action are liability and the apportionment thereof as between the defendants.

[3] The plaintiff and the defendant the City of Burlington (“Burlington”) have entered into a Mary Carter agreement. That agreement was, quite properly, disclosed. The defendant Hydro One Networks Inc. (“Hydro One”) takes no issue with the contents of the agreement.

[4] For the reasons which follow, I find that Hydro One is not liable for the damages suffered by the plaintiff. As a result of this finding and given the existence of the Mary Carter agreement, it is unnecessary to consider the relative degree of responsibility of Burlington for the plaintiff’s injuries.

Facts

(i) Background

[5] The Park is located on the shores of Lake Ontario and was created in 1984. It is situated on land leased by Burlington from the Halton Conservation Authority. The Park is approximately two kilometres in length and includes a parking lot, recreational trail, a pavilion with a snack bar, change rooms and bathrooms.

[6] I note that, according to the Agreed Statement of Facts filed, the first steel electrical transmission line was erected in the area in 1910 by the Toronto Niagara Power Company. The assets of that company were later assumed by the Hydro Electric Power Commission of Ontario (“HEPCO”), who upgraded the transmissions lines. HEPCO was succeeded by Ontario Hydro and in 1998 it was de-merged into several companies including a transmission and distribution company which would be named Hydro One in 2000.

[7] On July 26, 2007, the plaintiff Doreen Walker and her husband Glenville Walker attended at the Park. After going for a paddle in the water with her husband, Mrs. Walker returned to her beach chair and read a book. While reading she was struck on the top of her head by a bird. She reacted by putting up her hands which were then bent back by the weight of the bird. As a result of the bird strike, she suffered multiple fractures in her left hand.

[8] Immediately after she was struck, two unidentified persons came forward and advised Mrs. Walker that they had seen a bird hit the overhead wires, then fall and hit her on the head. Those persons did not testify at trial.

[9] Mr. Walker testified that he did not see the bird hit his wife, but noticed a crowd of people around her. When he went to his wife he saw a cormorant lying in front of her. According to Mr. Walker, the cormorant had a wingspan of approximately 3.5 to 4 feet.

(ii) Bird Strikes

[10] The issue of the defendants’ knowledge of bird strikes in the area of the Park and the resultant steps taken by the defendants to deal with the strikes was the major focus of the trial.

[11] Betty Ivanmore is a local resident who frequents the beach area for walks. She testified that she has witnessed numerous bird strikes. On one occasion she saw seven birds all hit the wires at once. In one particular week, she recalls there being as many as 35 cormorant fatalities due to collisions with the wires.

[12] Glenn Barrett, a Wildlife Toxicology Technician for Environment Canada, also testified at trial. According to Mr. Barrett he received a number of complaints from the public starting around 1999 regarding birds striking the hydro wires and/or the discovery of bird carcasses near the hydro wires.

[13] Mike Medeiros is employed by Hydro One as a distribution planner. He testified that the issue of bird strikes at the Park was raised as an executive inquiry made in January of 2001 by Mike Street, an employee of Hydro One and member of the Hamilton Naturalist Club. Mr. Street’s inquiry was the result of an incident where an ivory gull struck the hydro line at the Park.

[14] As a consequence of this inquiry, in July 2001 a committee was formed by Hydro One to consider bird strikes on the hydro lines in the beach area. The committee was comprised of Mr. Barrett, Mr. Medeiros and Patty Staite from Hydro One, Bev and Ray Kingdon of the Trumpeter Swan Association and Mr. Street from the Hamilton Naturalist Club. The first meeting of this committee was held in July of 2001. Mr. Medeiros testified that he wanted to hear the concerns of the stakeholders and better understand the issue. As far as he was concerned, the question of public safety from falling birds was not an issue.

[15] Following the initial committee meeting, Mr. Medeiros researched the steps that might be taken to mitigate against bird strikes with transmission lines. He contacted manufacturers and received quotes for the installation of bird diverters. Mr. Medeiros declined to purchase a type of diverter which consisted simply of a coil wrapped around a skywire. He eventually chose a bird diverter with a circular “flapper” that hung from a clamping device. However, Mr. Medeiros testified that he did not believe that the flapping or hanging of the disc was a necessary function of the device.

[16] As part of his analysis of the issue, Mr. Medeiros prepared a document (marked as Exhibit 24 at trial) wherein he considered the benefits of installing diverters versus replacing the lines with underground cable or moving the transmission line location. He listed the arguments in favour of the installation of the diverters as follows:

1. Aesthetic, dead birds are unappealing to residents and beach goers.

2. A rare species, the trumpeter swan, is threatened by the hydro lines.

3. Area is well defined.

4. Area has previous data for it.

5. Area can be easily tracked.

6. Cost is minimized.

7. Executive Enquirer will be addressed.

8. Protect the whole heavily trafficked beach strip.

9. Minimize the cost of implementation and the time required.

10. Prevent birds from flying into adjacent lines + lessen confusion for NS +

Ensure whole area is covered of concern, area was identified not using scientific methods.

[17] Mr. Medeiros testified that Hydro One offered to help with the bird strike situation because it was a good public relations opportunity. The potential public relations benefits of the installation of diverters were reviewed in detail in an email from Mr. Medeiros to Terry Young, an employee in the Public Relations Department at Hydro One, on November 22, 2001:

In the last few months I’ve been investigating an executive inquiry for Hydro One and believe that a potential PR opportunity may exist for Hydro One. I was told to contact you to get your feedback on the situation.

On January 15, 2001 an e-mail was sent to Eleanor Clitheroe, outlining concern over recent bird kills associated with the transmission line adjacent to the Burlington Skyway and Ship Canal. The e-mail sparked an executive enquiry into the situation. The following is a summary of the result of Hydro One’s investigation into the problem and resulting actions.

Present Situation:

Several species of birds are colliding with the overhead skywire on line number 99185, section NA39 X 17 from Burlington TS x Hamilton Beach TS, between structures 18-28. This line section has two skywires that run parallel to each other, over circuits B10, B11, B18H, B20H, of 115 and 230 kV, on steel towers. Extensive information on bird deaths due to collisions with the transmission line section mentioned above was obtained from two independent reliable sources, The City of Burlington, Roads and Parks Maintenance and The Trumpeter Swan Association.

Several groups have expressed concerned with the birds hitting the wires in the Burlington Beach Area:

• Hamilton Naturalists’ Club

• The Burlington Ramblers

• South Peel Naturalists

• Canadian Wildlife Service, Environment Canada

• Residents of the Burlington Beach Area

Hydro One’s Actions:

In order to address the situation Hydro has decided to install bird markers on identified problem area. This is an unprecedented act for Hydro One. The purpose of the bird markers is to make the transmission line visible to flying birds, preventing the collision of birds into the transmission line. The bird markers are expected to be installed by the end of 2001. The start date is expected to be in December, an exact date will be determined later.

Benefits from Bird Marker Installation:

Aid in the effort to help bring back the rare Trumpeter Swan to Ontario.

Hydro One will obtain experience in implementing bird markers on transmission lines allowing the resolution of future similar problems at reduced cost and effort.

Protect wildlife in the area.

Increase public enjoyment of the beach area.

[18] Mr. Medeiros prepared another document outlining his analysis of the situation, which was marked as Exhibit 25 at trial. His conclusion was as follows:

Hydro One has been presented with this problem several times in the past and to date has no means to address the problem. There is sufficient evidence to suggest that bird mortality rate is significantly increased due to the presence of the skywire on line 99185, between structures 18-28, along Burlington Beach Strip. I believe that implementing the bird markers on Burlington Beach Strip will reduce the bird death rate due to skywire collisions by 80-90 percent, satisfying all concerned parties regarding the situation of birds colliding into the skywire of line 99185, between structures 18-28, along the Burlington Beach Strip. In addition, implementing bird markers will equip Hydro One with the experience necessary to effectively address the problem in the future.

[19] Ultimately a decision was made by Hydro One to install 145 diverters on the skywire at the Park in December 2001. Mr. Medeiros testified that the safety of the public was never considered in the decision to install the diverters.

[20] Although bird strike data was to be collected after the diverter installation by the Trumpeter Swan Society and Environment Canada, according to Mr. Medeiros, at no time did Hydro One request any of the data or the report prepared by Glenn Barrett of Environment Canada. Mr. Medeiros testified that if the installation was successful there was a potential to install the diverters at Hamilton Beach. He said that he was relying on Canadian Wildlife Services to determine if the diverters were successful.

[21] Derrick Brydges, another employee of Hydro One, testified that he installed the bird diverters on the skywire at the beach. Subsequent to the installation of the diverters, he conducted annual inspections. He undertook these inspections on his own initiative and was not instructed to do so by his employer. There were no formal inspection lists or criteria to follow in conducting the inspections and he never recorded his findings. He did testify that a number of the flappers were missing and a number were not flapping.

[22] According to Mr. Barrett, he collected data on bird kills at the beach. In the period 2000 to 2003 he relied upon on volunteer efforts. For the years 2004 and 2005, observers were paid to collect data on bird strikes. Mr. Barrett testified that the number of birds presumed killed by the hydro wires were as follows: 2000: 43; 2001:14; 2002: 71; 2003:50; 2004: 200+; and 2007:183. The double breasted Cormorant appeared to be the species of bird that struck the wires with the greatest frequency. Mr. Barrett was of the view that the birds were killed as a result of wire strikes as there was no other potential explanation and the bird carcasses showed signs of obvious trauma consistent with wire strikes.

[23] Mattheus Koevoets is employed by Burlington as the Parks Supervisor responsible for the Park. He testified that commencing in 2004 when he assumed his current position, he provided annual counts of the dead birds found at the Park to Glenn Barrett.

[24] In September of 2006, Mrs. Kingdon sent an email to Mr. Barrett as follows:

We walked under the towers yesterday and I watched the bird flappers. It was “extremely” windy yesterday, a north/easterly? wind blowing directly onto the beach and one set of flappers from one tower to the next only had one flapper flapping, the rest were not moving at all. Also a very large majority of the other flappers were stationery. You might want someone knowledgeable to take a look at them. I am thinking if over time they quit flapping how does that affect your information and the job they were put there to do.

[25] At a Wildlife Advisory Committee Meeting held on November 8, 2006, Mr. Koevoets reported regarding two incidences where birds nearly hit individuals in the Park. He advised that he had been told by staff that on one occasion a bird almost hit a father and son. He personally observed the second incident when a bird fell in an area near park staff. Mr. Barrett agreed to follow up with Hydro One about this issue.

[26] Later that day Mr. Barrett e-mailed Mr. Medeiros of Hydro One and provided him a copy of a paper he prepared in 2004 regarding the diverters. In the email he passed on verbatim Mrs. Kingdon’s email regarding the diverters and went on to state as follows:

At a meeting today Matt Koevoets from the City of Burlington reported that they had had a number of “near misses” this year with birds (Cormorants) hitting the wires and almost hitting adult [sic] and children using the beach and trails beneath the wires.

Is HydroOne maintain/monitoring these flappers? Are there any plans to extend them to the Hamilton stretch of wires and/or onto both sky wires to be more of a deterrent to birds rather than their current placement only on the lake sky wire?”

[27] Mr. Medeiros responded as follows on December 5, 2006:

Glenn, I’m glad to see that you published a paper on the initiative for the Burlington lines. I don’t believe you provided a copy to me, but I’ll review it when I have the chance. Your findings in the report would be useful to justify further bird diverter installation.

Regarding maintenance of the diverters, we do regularly patrol the lines (by helicopter or foot) looking for line defects and if diverters have fallen off or appear not to be functioning then they should be reported during these inspections. However, this is a new product and some education may be required for our crews. I will review the patrol results for the Burlington lines and get a sense of our expertise at identifying defective diverters. I’ll let you know what I find.

Currently, Hydro One has no plans to extend the placement of diverters onto the Hamilton stretch of wires, but I will review your paper and see if it can be justified.

I should get back to you in January, as I’m swamped right now coming back from an extended vacation.

[28] There is no evidence that Mr. Medeiros ever replied further to Mr. Barrett on the subject.

[29] Mr. Medeiros testified that he was concerned about the report from Mrs. Kingdon. He was surprised to hear about near misses but he thought the term was “ambiguous”. Mr. Medeiros asked Mr. Brydges to investigate. He recalls speaking to Mr. Brydges later and concluding as a result of that conversation that the diverters were in good condition. He was told that the diverters periodically rested on their black clamps but that this was simply the result of the wind conditions.

Analysis

(i) Expert Evidence

[30] The plaintiff tendered two expert reports prepared by Michael Fulcher and attempted to qualify Mr. Fulcher as an expert in the field of heavy electrical equipment. At trial, I found that the reports were inadmissible and held that Mr. Fulcher could not testify as an expert. The following are my reasons for that ruling.

[31] Mr. Fulcher is an electrical engineer. He received his Bachelor of Applied Science (Electrical Engineering) from the University of Toronto in 1971.

[32] From 1971 to 2000 he worked for Ontario Hydro and its successor company. While working for the utility, he held a number of positions, including project engineer, quality assurance supervisor, technical superintendent, strategic projects manager and manager project management services and planning for transmission lines and transformer stations.

[33] From 2000 to present, Mr. Fulcher has worked as an engineering consultant at three different firms. He specializes in forensic engineering, including the origin and cause investigation of power equipment failure, fires and explosions.

[34] His first report includes an executive summary and background information. The first substantive section of the report deals with hazards associated with high voltage transmission lines. I note that none of the hazards described therein are relevant to this case.

[35] There follows a section on the ecology of the area and a description of the double crested cormorant. The author then goes on to discuss the history of bird strikes generally and mitigation efforts. This section of the report consists of commentary regarding literature research and a description of efforts made in the United States to mark wires and conductors.

[36] The next section is entitled “Legislation and Enforcement” and discusses the Migratory Birds Convention Act of Canada and the Game and Fish Act of Ontario. Neither of these pieces of legislation are relevant to this case.

[37] The next section of the report is described as “The Incident”. In this section, the author provides information from two unnamed employees of the City of Burlington responsible for maintaining the beachfront, which includes information about the number of cormorants killed each season. There is also a description of Mr. Fulcher’s comments on a video taken in the area.

[38] In the section “Routing of Transmission Lines and Hydro One” reference is made to the fact that the use of the deflectors was limited to the skywire and possibly only one or a few skywire scans. Mr. Fulcher indicates that he inspected the site on April 8, 2008 and that any bird with a flight path through the wires would have to navigate through 14 cables.

[39] Mr. Fulcher’s analysis section in the first report is as follows:

Summary of Findings

• Beachway Park is situated between Lake Ontario, a water bird feeding site, and Burlington Bay with the nearby Cootes Bird Sanctuary and nesting site;

• Cormorants are protected under the MCBA. Killing protected birds or destroying their nests and eggs without a permit is a Federal offence;

• Studies have determined that transmission lines separating water bird feeding sites and nesting sites result in high rates of bird fatalities:

• Bird strikes on overhead lines resulted in bird fatalities as high as 175 million per year in the USA alone;

• Cormorant fatalities as high as 19 birds per day and 200 to 500 per season at Beachway Park indicates a serious bird strike condition on the overhead transmission line;

• City of Burlington employees responsible for maintaining the beach confirm that bird strikes on the transmission line are a serious problem at the Park; and,

• Hydro One has placed some bird diverters on one or more spans of skywires; however, no bird diverters were observed on the energized conductors and it is unknown if all the skywire spans were protected.

Opinion

Based on the review of studies conducted on bird strikes on transmission lines, review of photos and video provided as well as our site visit, it is our opinion that:

• The City knew or should have known that the Cormorant population had expanded rapidly over the past ten years and that bird impacts on the transmission line on the Beachway Park had become a serious problem;

• The City knew or should have known that Cormorants were a protected species and should have taken measures to mitigate the problem;

• The City failed to post signs warning of the hazard of falling birds below the power line;

• The City of Burlington was negligent in placing benches and picnic tables beneath the power lines where this hazard existed;

• Hydro One was aware or should have been aware of the bird strike problem at Beachway Park and their pilot efforts to date have been either ineffective or need to be expanded to include all cables on all spans;

• Hydro One should explore additional means to minimize bird impacts along this stretch of ROW; and,

• It is unknown if the City has taken sufficient safety precautions to prevent included voltages on surrounding building and other installations.

[40] A Supplemental Technical Investigation was completed by Mr. Fulcher and dated September 30, 2011. In the “Scope of Work” section of the report, Mr. Fulcher indicates that he had reviewed the affidavit of documents of Hydro One, along with the transcript of the examination for discovery of Mr. Medeiros and answers to undertakings given at the examination for discovery of Mr. Medeiros. In the body of the report, Mr. Fulcher proceeds to summarize the testimony provided by Mr. Medeiros in his examination for discovery. He then comments upon his understanding of that evidence.

[41] Counsel for Hydro One takes the position that Mr. Fulcher’s evidence is not admissible as it does not meet the criteria set forth by the Supreme Court of Canada in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.

[42] Counsel for the plaintiff takes the position that the evidence should be admitted, and to the extent that there are issues with respect to the evidence, they should only go to the weight and not admissibility.

[43] I disagree with the approach urged upon me by counsel for the plaintiff. A trial judge has a gatekeeping role to fulfill in terms of expert evidence. The blanket admission of such evidence with the caveat that problems in the evidence go to weight only is an abdication of the trial judge’s gatekeeping responsibility. The court must review the evidence tendered to determine if it meets the criteria set forth by the court in Mohan. In this case, the evidence does not meet the criteria.

[44] In Mohan the court held that the admission of expert evidence depends on the application of the following criteria: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) the absence of any exclusionary rule; and (iv) a properly qualified expert (see paragraphs 17 to 21).

[45] Turning first to the issue of relevance, Justice Sopinka stated in Mohan that a relevance inquiry first looks at whether the evidence is related to a fact in issue. The next step in the inquiry is to determine “whether the value of the evidence is worth what it costs”. In other words, if its probative value outweighs its prejudicial effect.

[46] With respect to the first report, much of the information contained therein is not relevant to the matters at issue in the litigation. In particular, the discussion of the hazards associated with high voltage transmission lines in section 3.2 relates to hazards which are not relevant to this case.

[47] I note as well that in the first report Mr. Fulcher also purports to advise the court about domestic legislation which protects certain species of birds and/or prohibits the destruction of nests and eggs without a permit. This information has no relevance whatsoever to this matter.

[48] However, while much of the report is not relevant, for the purpose of this analysis, I am prepared to conclude that the evidence does touch upon matters that are in issue and that the admission of the evidence is not overborne by its prejudicial effect. I am also prepared to accept that the second report is relevant.

[49] The next issue is necessity. It is here that both reports come up short.

[50] There is nothing in either report which is outside my experience or knowledge as the trier of fact or which assists me in any way. With respect to the first report, although the document is, to use the language of Justice Sopinka in Mohan, “dressed up in scientific language”, there is actually little or no technical expertise applied. The report consists of a collection of information from other sources which is primarily in the nature of background information. There is no application of technical expertise to that background information. The author of the report jumps to the conclusion that the City of Burlington was negligent and that Hydro One should have known that their pilot efforts were ineffective or needed to be expanded to include all cables and spans. These are nothing more than bald conclusionary assertions.

[51] With respect to the second report, the document is essentially a regurgitation of the evidence provided by the representative of Ontario Hydro at his examination for discovery and Mr. Fulcher’s comments on same. This report, to the extent that it provides any technical information whatsoever, is entirely unnecessary and is really in the nature of argument.

[52] In addition, the conclusions in both reports amount to nothing less than the expert giving his opinion as to the findings that I should make in this case. As noted by Justice Ducharme in Dulong v. Merrill Lynch Canada Inc. (2006), 2006 CanLII 9146 (ON SC), 80 O.R. (3d) 378 (ONSC), “where the expert purports to opine on the ultimate issue before the court and threatens to usurp the role of the trial judge, the requirement of necessity should be strictly enforced”.

[53] The final issue is whether the reports meet the criteria of being tendered by a witness who “is shown to have acquired special or peculiar knowledge through study or experience in respect to the matters on which he or she undertakes to testify” (see Mohan at paragraph 31).

[54] It will be recalled that the plaintiff purported to qualify Mr. Fulcher as an expert in heavy electrical equipment. The reports delve into areas which are wholly unrelated to his expertise. For example, in the first report there is a section dealing with the ecology of the Burlington Bay area and a description of the double crested cormorant. Mr. Fulcher has absolutely no qualifications to comment on these matters.

[55] Mr. Fulcher also comments on legislation and enforcement for the protection of birds and their nests which is also an area outside of his expertise.

[56] With respect to the issue of bird strikes specifically, Mr. Fulcher admitted in cross-examination that in his entire career he had only six months’ experience working directly with hydro lines and he has never dealt with the issue of bird diverters prior to accepting the retainer in this case. What he has done is researched efforts in the United States to mitigate bird strikes, although he has not purported to comment on whether efforts made by Hydro One in this case fall below any industry standard.

[57] It is inappropriate to qualify an expert where that expert’s source of proposed expertise comes from reviewing literature in respect of a subject matter which is outside the field of the witness’ education and training (see R. v. Mathisen, 2008 ONCA 747 at paragraph 126; R. v. Grecken, 2009 CarswellOnt 7301 ONSC, at paragraph 26l; and Meady v. Greyhound and Canada Transport Corp., 2010 ONSC 4519, at paragraph 47). In this case, the literature reviewed was outside the field of his expertise and training.

[58] I am not satisfied that Mr. Fulcher is a properly qualified expert. He has no expertise regarding any issue in this litigation. Given this finding and my finding that both his reports are unnecessary, I held that the reports are inadmissible and that Mr. Fulcher could not testify as an expert.

(ii) Duty of Care

[59] There is no issue that the standard of care owed by Hydro One as a result of its occupation of the utility corridor and related structures is governed by the Occupiers’ Liability Act, R.S.O. Chapter 0.2 (the “Act”). However, the plaintiff and Hydro One take different positions about the relevant duty of care under the legislation.

[60] The plaintiff asserts that the general duty of care applies to Hydro One’s occupation, being the duty prescribed by section 3(1) of the Act:

Occupier’s duty

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.

[61] Hydro One asserts that it is subject to a special duty of care under the Act. Specifically it submits that the relevant duty of care is prescribed by section 4:

Risks willingly assumed

4.(1)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.

Criminal activity

(2)A person who is on premises with the intention of committing, or in the commission of, a criminal act shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1).

Trespass and permitted recreational activity

(3)A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),

(a) where the entry is prohibited under the Trespass to Property Act;

(b) where the occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry; or

(c) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

(ii) the person is not being provided with living accommodation by the occupier.

Premises referred to in subs. (3)

(4)The premises referred to in subsection (3) are,

(a) a rural premises that is,

(i) used for agricultural purposes, including land under cultivation, orchards, pastures, woodlots and farm ponds,

(ii) vacant or undeveloped premises,

(iii) forested or wilderness premises;

(b) golf courses when not open for playing;

(c) utility rights-of-way and corridors, excluding structures located thereon;

(d) unopened road allowances;

(e) private roads reasonably marked by notice as such; and

(f) recreational trails reasonably marked by notice as such.

[62] I find that the recreational trails exception is not applicable as there was no evidence that the area was marked as such.

[63] I accept the submission of Hydro One that its presence at the Park as an occupier is attributable to the existence of its transmission towers along the shoreline and that those towers constitute a utility right of way or corridor.

[64] The plaintiff asserts that the lower standard is not applicable because the Act provides an exception to the exception, being “structures located thereon”. The plaintiff argues that we are really dealing with wires which are part of the structures.

[65] I disagree with the interpretation urged upon me by the plaintiff. In section 1 of the Act “premises” are defined to include “lands and structures, or either of them”. Both sections 3 and 4 of the Act refer to a person entering the premises. In this case the plaintiff clearly entered the land but she did not enter or come in contact with a structure. I conclude, therefore, that the exception to the exception for structures is inapplicable.

[66] Thus, the relevant duty of care is the one prescribed by section 4 of the Act. The next issue is the assumption of risk. The plaintiff asserts that even if the duty of care in section 4 of the Act applies the defendant must establish a voluntary assumption of the risk. Again I disagree. The plain wording of section 4(3) provides that a person described therein is “deemed to have willingly assumed all risks”. In this case the plaintiff entered into the area for recreational purposes and did not pay a fee and was not being provided with living accommodation by the occupier. Consequently, pursuant to subsections 4(3) and 4(4), the plaintiff is deemed to have willingly assumed all risks of entering the Park area.

[67] There is no allegation that Hydro One acted with the deliberate intent to cause the plaintiff harm. Thus, the applicable standard to which Hydro One is held as an occupier of the premises at the Park is “to not act with reckless disregard” of the plaintiff’s presence on the premises.

[68] In Cormack et al. v. Township of Mara et al., 1989 CanLII 4279 (ON CA), [1989] O.J. No. 647 (Ont. C.A.), leave to appeal refused by [1989] S.C.C.A. No. 265 (S.C.C.), the court considered the meaning of section 4 of the Occupiers’ Liability Act in a case where the plaintiff had been injured snowmobiling. Justice Griffiths engaged in a detailed analysis of the section and concluded:

27 The present s. 4 of the Occupiers' Liability Act has omitted the word "wilful" and, of course, the duty under this section is not limited to trespassers or licensees. Counsel for the respondent argued that the omission of the word "wilful" in s. 4 is significant in placing a lesser burden of proof on the snowmobiler to establish liability on the part of the occupier. In my opinion, the omission of the word "wilful" does not alter the essential meaning of the phrase "to not act with reckless disregard of the presence of the person." Wilful, in the ordinary sense, means deliberately and intentionally, not by accident or inadvertence. In my view, the Legislature intended under the present s. 4 of the Occupiers' Liability Act , that there continue to be liability only for the intentional acts or omissions of occupiers made in reckless disregard of the safety of snowmobilers on their premises.

29 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.

[69] In the case at bar the analysis must necessarily focus on whether the plaintiff has established that Hydro One has done something or has failed to do something which they recognized was “likely to cause damage or injury” and did so “not caring whether such damage or injury results”.

[70] The crux of the argument made by the plaintiff is that Hydro One failed to adequately mitigate the associated hazard once it was informed that the discs on the diverters appeared to be motionless.

[71] I conclude that the plaintiff has not established a reckless disregard of the presence of persons on Hydro One’s part.

[72] The uncontroverted evidence is that Mr. Brydges checked on the condition of the diverters. He was specifically asked by Mr. Medeiros to inspect the diverters in response to the concerns raised by Mr. Barrett in September of 2006. Mr. Brydges testified that he observed that some diverters appeared to be motionless but he was not concerned because he believed it to be a temporary condition. He also observed that a few of the orange discs were missing, but he did not recall any missing in between towers 22 and 23, being the location of the area where the plaintiff was struck.

[73] I conclude that there is nothing that Hydro One did or failed to do which rises to the level of reckless disregard of the plaintiff’s presence on the premises or which amounts to action or inaction which was likely to cause damage or injury.

[74] The plaintiff asserts that even if the area is considered a utility right of way or corridor, it is also a park and thus the court should apply the higher standard of care, being the one prescribed pursuant to section 3(1) of the Act.

[75] In support of this argument the plaintiff relies upon the decision of the Ontario Court of Appeal in Moloney v. The Corporation of the Town of Parry Sound, (2000), 2000 CanLII 5618 (ON CA), 184 D.L.R. (4th) 121 (Ont. C.A.) In that case the court held that because the accident occurred on a paved roadway which was regularly used by vehicles it was more than a recreational trail and thus section 4 of the Act was inapplicable.

[76] There is no discussion in the short endorsement in Moloney as to why necessarily the court concluded that the higher duty of care must be applicable. However, I have determined that even if the higher duty of care was applicable in the case at bar Hydro One did not fall below that standard.

[77] Section 3(1) imposes a duty of care “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.”

[78] I conclude that the plaintiff has not established that the defendant breached its duty of care. In the circumstances, I find that the defendant took all reasonable steps so that those persons using the corridor were reasonably safe for the following reasons.

[79] First, the risk of harm must be objectively unreasonable. The measure of what is reasonable depends on the facts of each case, including the likelihood of known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury (see Ryan v. Victoria (City) (1999) 1999 CanLII 706 (SCC), 168 D.L.R. (4th) 513 (S.C.C) at paragraph 28). It must be remembered that in the almost one hundred years since the towers had been in place on the beach the plaintiff’s case is the only reported instance where someone has been struck by a bird. Other than this instance the only other reported events were the two misses referred to by Mr. Koevoets. I agree with the submission of Hydro One that in these circumstances the commensurate duty of care is significantly diminished.

[80] Second, as noted above, Hydro One did install diverters and did inspect same. In particular an inspection was done following the report about the near misses. The result of that inspection was that the diverters appeared to be functional and that no diverters appeared to be missing in the area of the incident.

[81] Third, as argued by Hydro One, the plaintiff did not lead any evidence to establish that: (i) the diverters were either defective or ineffective; (ii) motion was an essential feature of an effective bird diverter; or (iii) a flapping diverter is different from a motionless diverter on a skywire or other diverters on the market, such as a coil style which has no moving parts. I note that all parties acknowledges that no diverter could be one hundred percent effective in averting bird strikes.

[82] Fourth, the plaintiff has failed to establish the behavioural standard Hydro One allegedly failed to meet. To the contrary, the evidence of Walter Kloostra, an almost thirty year employee of Hydro One, was that there are not any prescribed standards respecting the requirement or use of diverters in the power industry.

[83] Fifth, I do not find that there was a duty to warn in the circumstances. An occupier has a duty to warn regarding unusual dangers (see Stewart v. Routhier, 1974 CanLII 144 (SCC), [1975] 1 S.C.R. 566). However, in this case the danger was not unusual, it was unprecedented.

(iii) Causation

[84] Given my finding that the plaintiff has not established a breach of a duty of care, it is not necessary to deal with the issue of causation.

Disposition

[85] The action is dismissed against Hydro One.

[86] If the parties cannot agree on the issue of costs they may make brief written submissions to me. Hydro One’s submissions are due by May 11, 2012. The plaintiff’s and Burlington’s submissions are due by May 18, 2012. Any reply submissions are due by May 23, 2012.

Hourigan J.

Released: April 30, 2012

COURT FILE NO.: 3053/08

DATE: 20120430

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DOREEN WALKER

Plaintiff

– and –

THE CORPORATION OF THE CITY OF BURLINGTON and HYDRO ONE NETWORKS INC.

Defendants

REASONS FOR JUDGMENT

Hourigan J.

Released: April 30, 2012