SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: 04-12153 (Hamilton)
DATE: 2013/10/07
RE: Bruno Uggenti and Patricia Uggenti (Plaintiffs) v. The City of Hamilton (Defendant)
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Helen Pelton, for the Plaintiffs
Deborah Berlach, for the Defendant
HEARD: September 25, 2013
E N D O R S E M E N T
I. Introduction
[1] Bruno Uggenti and his former wife, Patricia Clarke (formerly Uggenti), are the Plaintiffs in a personal injury action against the City of Hamilton. Bruno Uggenti was seriously injured while tobogganing on reservoir property owned by the City. The parties agreed to arbitrate the Plaintiffs’ claims. The Arbitrator was the Honourable Eugene Fedak, a retired Superior Court justice. The arbitration agreement provided for a right of appeal from the Arbitrator’s award only on questions of law, as contemplated by subsection 45(2) of the Arbitrations Act.[^1]
[2] In an arbitration decision dated May 1, 2012, the Arbitrator found the City fully liable, with no contributory negligence by the Plaintiffs. He awarded damages to Bruno Uggenti in the amount of $482,657. He also awarded $100,000 in damages to Patricia Clarke, consisting of $50,000 for housekeeping and child care costs and $50,000 pursuant the Family Law Act.[^2] The City has appealed the arbitration award.
[3] The basis for the finding of liability against the City was breach of the duty of care in section 3 of the Occupiers’ Liability Act.[^3] Under subsection 3(1) of that statute, an occupier of premises owes a duty to take such care as is reasonable in all the circumstances to see that persons entering on the premises are reasonably safe while on the premises. The Arbitrator found that this duty of care applied in this case, rather than the less onerous duty provided for in section 4 of the Occupiers’ Liability Act. Pursuant to subsection 4(1), the less onerous duty applies “in respect of risks willingly assumed by the person who enters on the premises.” In those circumstances, the occupier’s duty is “to not create a danger with the deliberate intent of doing harm or damage to the person … and to not act with reckless disregard of the presence of the person ….”
[4] In reaching his decision, the Arbitrator found that in the circumstances of this case the Plaintiffs did not voluntarily assume the risk of injury. He also found that the property where the accident occurred did not constitute a utility right-of-way or corridor within the meaning of paragraph 4(4)(c) of the Occupiers’ Liability Act. Accordingly, the Plaintiffs were not deemed to have willingly assumed the risk pursuant to paragraph 4(3)(c) of that statute, which applies to recreational activity that meets the requirements of that provision.
[5] In its appeal, the City asked that the decision of the Arbitrator be set aside on a number of grounds. The City argued that the Arbitrator erred on questions of law by failing in each case to apply the correct legal test to the evidence before him. Accordingly, the standard of review was correctness, and the application of this standard justified setting aside the Arbitrator’s decision.
[6] In particular, the City alleged that the Arbitrator erred in applying the duty of care in section 3 of the Occupiers’ Liability Act, rather than the less onerous duty in section 4 of that statute. In this regard, the Arbitrator erred in finding that the Plaintiffs did not willingly assume the risks of tobogganing as contemplated by subsection 4(1) of the Occupiers’ Liability Act. As well, the Arbitrator erred in finding that the premises on which the accident occurred is not a utility right-of-way or corridor, leading to the incorrect conclusion that there was no deemed assumption of risk under subsection 4(3) of that statute.
[7] The City also argued that the Arbitrator erred in finding there was no contributory negligence by the Plaintiffs. As well, the Arbitrator erred in awarding damages to Patricia Clarke under the Family Law Act.
[8] For their part, the Plaintiffs argued that none of the grounds raised by the City constitute an error of law, the only permitted basis for appeal. According to the Plaintiffs, the findings challenged by the City are questions of fact or questions of mixed fact and law. These findings are entitled to deference by the appeal court absent palpable and overriding error. In any case, in the Plaintiffs’ submission, the Arbitrator did not err in the decisions he made. Accordingly, the City’s appeal should be dismissed.
[9] The issues to be determined on this appeal are therefore as follows:
Willing assumption of risk: Did the Arbitrator err in law in finding that the Plaintiffs did not willingly assume the risk of injury as contemplated by subsection 4(1) of the Occupiers’ Liability Act?
Whether the property was a utility right-of-way or corridor: Did the Arbitrator err in law in finding that the property on which the accident occurred is not a utility right-of-way or corridor, and that there was therefore no deemed assumption of risk under subsection 4(3) of the Occupiers’ Liability Act?
Contributory negligence: Did the Arbitrator err in law in finding no contributory negligence by the Plaintiffs?
Damages under the Family Law Act: Did the Arbitrator err in law in awarding damages to Patricia Clarke under the Family Law Act?
[10] I will deal with each of these issues in turn below.
II. Willing assumption of risk
[11] Did the Arbitrator err in law in finding that the Plaintiffs did not willingly assume the risk of injury as contemplated by subsection 4(1) of the Occupiers’ Liability Act?
[12] In this case, Mr. Uggenti’s injuries were sustained when he and Ms. Clarke were thrown from the toboggan after hitting the edge of a snow-covered ditch on their first run down the slope. Prior to this run, Mr. Uggenti had noticed a slight depressions or “divot” across the bottom of the slope. Before descending the slope, they watched two runs by their children down the same slope without mishap. In the Arbitrator’s reasons (as further explained by him at the City’s request pursuant of section 40 of the Arbitrations Act), the Arbitrator found that Mr. Uggenti was aware of the risk of falling off a toboggan, since he had been injured in a tobogganing accident on a previous occasion. The Arbitrator found, however, that Mr. Uggenenti was not aware of the risk of hitting the edge of a snow covered ditch. The Arbitrator called the snow covered ditch a hidden danger that was not a risk inherent to the sport of tobogganing. He found that the City knew about the ditch and was concerned about the danger to tobogganers, but had failed to take reasonable steps to warn tobogganers of the danger.
[13] In Waldick v. Malcolm,[^4] the Supreme Court of Canada considered the requirements for finding of willing assumption of risk as contemplated by that provision. The Court stated that voluntary assumption of risk “involves not only knowledge of the risk, but also a consent to the legal risk, or, in other words, a waiver of legal rights that may arise from the harm or loss that is being risked.”[^5]
[14] The City argued that the Arbitrator failed to apply the test set out in Waldick v. Malcolm, in that he failed to properly determine either knowledge of risk or legal consent to the risk as required by that test. According to the City, this failure to apply the correct test constituted a reversible error in law.
[15] In particular, the City argued that the harm being risked by Mr. Uggenti in this case was not the risk of hitting the edge of a ditch, but rather the general risk inherent in tobogganing caused by that fact that the topography was hidden by snow. In the City’s submission, Mr. Uggenti clearly knew of this general risk given his previous tobogganing mishap. In any case, given that Mr. Uggenti had noticed the “divot” across the slope, he knew or should have known of the particular danger in this case. The City also argued that the City’s knowledge or lack of knowledge of the danger that the ditch posed to tobogganers was irrelevant to the issue of voluntary assumption of risk by Mr. Uggenti, since it was not relevant to Mr. Uggenti’s knowledge of the risk or whether he consented to the legal risk. In the City’s submission, by referring to the City’s knowledge of the risk and its failure to take steps to address the risk, the Arbitrator had improperly imported the language of section 3 of the Occupiers’ Liability Act in considering whether Mr. Uggenti willingly assumed the risk as contemplated by section 4 of that statute. The City also argued that the Arbitrator failed to consider the fact that the Plaintiffs were participating in a prohibited activity at the time of the accident since there was a City by-law prohibiting tobogganing.
[16] After considering the City’s submissions, I have concluded that the City’s appeal cannot succeed on this ground. In order for someone to voluntarily assume risk, that person must be aware of the existence of the risk. In this case, there was ample evidence before the Arbitrator to allow him to find that Mr. Uggenti was not aware of the risk he was assuming. There was also ample evidence to support the finding that Mr. Uggenti did not know that tobogganing was a prohibited activity. There was nothing in the record before me to suggest that the Arbitrator failed to consider items of evidence that he was required to consider.[^6] Therefore, in the circumstances of this case, I find that the determination made by the Arbitrator on this issue was a mixed question of fact and law, that is, whether the facts in this case satisfied the applicable legal test. Accordingly, this Court has no jurisdiction to interfere with the Arbitrator’s decision on this point, since it does not involve a pure question of law.
III. Whether the property was a utility right-of-way or corridor
[17] Did the Arbitrator err in law in finding that the property on which the accident occurred is not a utility right-of-way or corridor, and that there was therefore no deemed assumption of risk under subsection 4(3) of the Occupiers’ Liability Act?
[18] Subsections 4(3) and 4(4) of the Occupiers’ Liability Act set out circumstances in which a person entering on property is deemed to willingly assume risk, with the result that the occupier’s duty of care is determined by subsection 4(1) of that statute. Pursuant to paragraphs 4(3)(c) and 4(4)(c) of that statute, a person is deemed to have willingly assumed a risk in the following circumstances: (i) entry on the premises is for a recreational activity; (ii) no fee is paid for entry; and (iii) the premises is a utility right-of-way or corridor, excluding structures located thereon.
[19] In this case, there was no issue that the Plaintiffs were on the reservoir property for a recreational activity and no fee was paid for entry. Therefore, the remaining issue for the Arbitrator to determine was whether the property was a utility right-of-way or corridor contemplated by paragraph 4(4)(c) of the Occupiers’ Liability Act.
[20] The Arbitrator concluded that the reservoir property was not a utility right-of-way or corridor and accordingly, the Plaintiffs were not deemed to have willingly assumed the risk of entering on the property. In making this decision, the Arbitrator stated in paragraph 21 of his decision that he had carefully considered the Discussion Paper on Occupier’s Liability and Trespass to Property issued by the Ontario Ministry of the Attorney General in 1979, prior to the adoption of occupiers’ liability legislation on the current model. That discussion paper referred to the desirability of promoting the availability of land for recreational purposes by imposing a less onerous duty of care for designated classes of property including utility rights-of-way and corridors.[^7] The Arbitrator also stated that he had carefully considered previous case law, including the Ontario Court of Appeal decision in Schneider v. St. Clair Region Conservation Authority,[^8] which confirmed that the intention of section 4 of the Occupiers’ Liability Act was to encourage occupiers to make their lands available to the public for recreational use.[^9] With that background, the Arbitrator cited the following reasons for his finding that the reservoir property was not a utility right of way or corridor:
(a) The Act does not define utility corridor. Therefore, this tribunal is required to apply the normal meaning of the word.
(b) In a Ministry of Natural Resources policy document, a utility corridor is defined as a narrow strip of land securing access between two points for the purpose of transporting and distributing gas or tele-communications.
(c) The City in this [instance] does not encourage the public to use these premises for recreational purposes of tobogganing. In fact, by its by-law and signs, the City prohibits tobogganing.
[21] In addition, the Arbitrator responded to a request for clarification from the City as to why he did not refer to the uncontested evidence that the City encouraged the public to make passive recreational use of the reservoir property. The Arbitrator responded that there was no dispute about that evidence, and that the issue he was addressing had nothing to do with the passive use of the property, but rather whether the property was a utility right-of-way or corridor. He also stated that he could not adopt the City’s position that there was no rational basis for distinguishing between “corridors” and “premises” and that the Legislature’s failure to use the word “premises” in paragraph 4(4)(c) of the Occupiers’ Liability Act was a mere oversight.
[22] The City argued that by finding that the reservoir property was not a utility right-of-way or corridor, the Arbitrator failed to apply the proper approach to statutory interpretation, which requires the words of a statute to be read in their ordinary meaning in their entire context harmoniously with the scheme and object of that statute and the intention of the Legislature. According to the City, the Arbitrator did not apply the ordinary meaning of the words in context and failed to consider at all the intention of the Legislature as set out in the Discussion Paper on Occupier’s Liability and Trespass to Property. Instead, he took into account a Ministry of Natural Resources policy document without explaining its relevance to the Occupiers’ Liability Act or the question before him. As well, the City argued that in deciding that the property was not a utility right-of-way or corridor, the Arbitrator failed to take into account that on the City’s official plan, the reservoir property carries the designation of “Utility.”
[23] After considering the City’s submissions, I have concluded that the issue of whether the reservoir property constituted a utility right-of-way or corridor was a question of mixed fact and law, and is accordingly not subject to review on this appeal. The Arbitrator found as a fact on the evidence before him that the reservoir was not a utility right-of-way or corridor, applying appropriate legal analysis to determine this issue. In this regard, I note in particular that contrary to the City’s submission, the Arbitrator expressly considered the Discussion Paper on Occupier’s Liability and Trespass to Property, which referred to the proposed scheme of the legislation.
[24] Even if the Arbitrator’s conclusion is considered a pure question of law subject to appellate review on a correctness standard, I find that the Arbitrator’s decision on this issue was correct and should not be interfered with. In this regard, the Arbitrator considered the ordinary meaning of the words “utility right-of-way or corridor” in the context of the statutory scheme as he was required to do by the rules of statutory interpretation. Noting that the term utility corridor was not defined in the legislation, he cited a Ministry of Natural Resources discussion paper which provided a specific definition for that term. He also made it clear in his decision that he took into account the Discussion Paper on Occupier’s Liability and Trespass to Property as well as previous case law, which considered the applicable statutory scheme and legislative intent. I am satisfied on the record before me that his decision on this point was correct. Accordingly, the City would not succeed in its appeal on this ground even if it involved a pure question of law.
IV. Contributory negligence
[25] Did the Arbitrator err in law in finding no contributory negligence by of the Plaintiffs?
[26] In Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,[^10] the Supreme Court of Canada adopted the following test for contributory negligence:
A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might hurt himself; and in his reckonings he must take into account the possibility of others being careless.[^11]
[27] The City argued that the Arbitrator erred in law in finding no contributory negligence on the part of the Plaintiffs, in that he failed to apply an objective test in determining whether there was contributory negligence by the Plaintiffs. In this regard, the City cited passages from the Arbitrator’s decision in which he determined that the Plaintiffs saw or may have seen a depression or divot in the snow that they determined on a subjective basis did not pose a danger. In the City’s submission, the Arbitrator was required but failed to consider whether the reasonable, prudent person, knowing that there was a depression or divot, would have foreseen that the depression might cause an injury while tobogganing, or that tobogganing itself might cause injury.
[28] After considering the City’s submissions, I have concluded that the City’s appeal cannot succeed on this ground. While the Arbitrator did not expressly set out the well-known test for determining whether someone is contributory negligent, there is nothing in his decision to suggest he applied the wrong test. In my view, it was appropriate for him to consider the evidence he did in order to reach the conclusion that there was no contributory negligence by the Plaintiffs. In doing so, he was determining a question of mixed fact and law, which is not reviewable on this appeal.
V. Damages under the Family Law Act
[29] Did the Arbitrator err in law in awarding damages to Patricia Clarke under the Family Law Act?
[30] The Arbitrator awarded $100,000 in damages to Patricia Clarke, consisting of $50,000 for housekeeping and child care costs and $50,000 pursuant the Family Law Act for loss of care, guidance and companionship. The City alleged an error in law by the Arbitrator only with respect to the latter award of damages to Ms. Clarke.
[31] The following were the Arbitrator’s reasons for awarding damages to Patricia Clarke pursuant to the Family Law Act:
I have heard evidence with respect to the relationship between Patricia and Bruno along with their children as a loving and close relationship. They participated in family and community affairs as a family. They shared in the household responsibilities as a true marital partnership. Post-accident, this all changed. Bruno’s preoccupation with his injuries and his recovery and indeed with change in his personality destroyed the close bond between Bruno and Patricia. They were unable to maintain the close pre-injury relationship. They drifted apart. In fact within two years post-accident, the relationship deteriorated to such an extent that the marriage after 19 ½ years was ended.
Considering all the circumstances, there will be an award under the Family Law Act of $50,000.00 to Patricia Clarke (formerly Uggenti). [emphasis added]
[32] That paragraph of the Arbitrator’s reasons immediately followed the concluding paragraph of the preceding section, in which the Arbitrator assessed general damages payable to Bruno Uggenti. That paragraph read as follows:
- In assessing general damages, I take into consideration medical evidence as to pain and suffering with respect to the crushed L1 vertebrae, as well as the psychological problems Bruno sustained in the accident.
His injuries led to his ongoing chronic pain, depression and post-traumatic stress.
Unfortunately, I cannot find that these injuries led to his problems with retinal detachment … and the breakdown of his marriage.
Considering all of the above, I assess Bruno’s general damages at $125,000.00. [emphasis added]
[33] The City argued that the award of damages to Patricia Clarke under the Family Law Act was not consistent the fundamental principle of tort law that tortfeasors are only responsible for damages caused by their negligence. In this regard, the City noted that in the last sentence of paragraph 189 of the Arbitrator’s reasons relating to the award of damages to Patricia Clarke, he made reference to the end of their marriage within two years of the accident after 19 ½ years. The City contrasted this sentence with the Arbitrator’s finding in the previous paragraph that he was unable to find that Bruno Uggenti’s injuries led to the breakdown of his marriage.
[34] After considering the City’s submissions, I have concluded that the City’s appeal cannot succeed on this ground. In order to determine the damages awarded to Patricia Clarke, the Arbitrator took into account the factors set out in paragraph 189 of his reasons, and found that “Bruno’s preoccupation with his injuries and his recovery and indeed with change in his personality” led to the progressive deterioration of the Plaintiffs’ relationship. While the Arbitrator concluded this paragraph by referring to the termination of the Plaintiffs’ relationship, this observation was not necessary to justify a significant award of damages under the Family Law Act to Patricia Clarke in this case. In awarding such damages, the Arbitrator was making a finding of fact, which is not reviewable on this appeal.
VI. Conclusion
[35] For the forgoing reasons, the City’s appeal is dismissed.
[36] If the parties are unable to agree on costs, each party will serve and file brief written submissions (not to exceed three pages) within 21 days. Each party will have an opportunity serve and file brief reply submissions within seven days thereafter. Should counsel for both parties agree on a different timetable, please so advise the Trial Co-ordinator.
The Honourable Mr. Justice R.A. Lococo
Released: October 7, 2013
COURT FILE NO.: 04-12153 (Hamilton)
DATE: 2013/10/07
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
Bruno Uggenti and Patricia Uggenti
Plaintiffs
- and -
The City of Hamilton
Defendant
BEFORE: The Honourable Mr. Justice R.A. Lococo
COUNSEL: Helen Pelton, for the Plaintiffs
Deborah Berlach, for the Defendant
ENDORSEMENT
Lococo J.
Released: October 7, 2013
[^1]: S.O. 1991, c. 17.
[^2]: R.S.O. 1990, c. F.3.
[^3]: R.S.O. 1990, c. O.2.
[^4]: 1991 71 (SCC), [1991] 2 S.C.R. 456.
[^5]: Ibid. at para. 38.
[^6]: See Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para. 41.
[^7]: Ministry of the Attorney General (Ontario), Discussion Paper on Occupier’s Liability and Trespass to Property, (Toronto: Policy Development Division, 1979) at p. 19-20.
[^8]: 2009 ONCA 640, 97 O.R. (3d) 81 (C.A.).
[^9]: Ibid. at para. 24.
[^10]: 1997 307 (SCC), [1997] 3 S.C.R. 1210.
[^11]: Ibid. at para. 76.