CITATION: Martin et al v. The Corporation of the City of Barrie et al, 2016 ONSC 7830

COURT FILE NO.: CV-13-000124-00

DATE: 20161213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDREA MARTIN and ERROL MARTIN

Plaintiffs

– and –

THE CORPORATION OF THE CITY OF BARRIE and HERITAGE PARK PLACE (BARRIE) INC.

Defendants

Harvey Klein, for the Plaintiffs

Stuart Zacharias, for the Defendants

HEARD: November 16, 17, 21, 22, 23, 2016

REASONS FOR JUDGMENT

Di Luca J.:

Overview

[1] This is an action arising out of an incident that occurred on February 5, 2011 at the Winterfest and Festival of Ice (“the Festival”) in Barrie, Ontario. On that date, the plaintiff, Ms. Martin, injured her tailbone while sliding down a snow slide that had been constructed for the purpose of the Festival at Heritage Park in Barrie.

[2] The plaintiff, Ms. Martin, alleges that the defendants breached the standard of care set out in s.3(1) of the Occupiers’ Liability Act, R.S.O. 1990 c.0.2 (“the Act”) and that she suffered injuries as a result of that breach. The plaintiff, Errol Martin (a.k.a. Errol Hibbard), advances a Family Law Act, R.S.O. 1990 c. F.3 claim for loss of care, companionship and guidance as well as expenses incurred in providing care to Ms. Martin.

[3] The defendants own and operate Heritage Park and acknowledge that they are occupiers of the premise within the meaning of s.3(1) of the Act. The defendants deny breaching the standard of care and also take issue with whether the breach, if one were to be found, caused Ms. Martin’s injuries.

[4] The issues to be resolved are as follows:

(a) Did the City of Barrie and Heritage Park Place Inc. breach the standard of care required by the Act?

(b) If so, is the breach of the standard of care causally connected to injuries suffered by the plaintiff, Ms. Martin.

[5] In relation to damages, the parties advised that the exact nature of the injury is in dispute. In particular, while the parties agree that the plaintiff, Ms. Martin, suffers from chronic pain, they disagree over whether the chronic pain was caused by the incident involved in this action or other prior incidents/ailments. That said, the parties agree that if I find that the chronic pain is causally related to this incident, the appropriate award of general and special damages is $70,000 inclusive of interest. If I do not make such a finding, the plaintiff nonetheless maintains a claim for damages short of that appropriate for chronic pain. In Ms. Martin’s submission, an award of $25,000 would be appropriate. The defendants’ position is that $10,000 would be appropriate.

The Legal Framework

[6] The standard of care that governs the defendants as owners and occupiers of Heritage Park is set out in s.3 of the Act which provides, in part:

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.

(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.

[7] This section places a positive duty on occupiers to take reasonable steps, in all the circumstances, to make the premise safe for persons entering it. The standard of care does not require perfection. The occupier’s duty is “not an absolute one” nor should the occupier be viewed as an “insurer”: see Waldick v. Malcolm, 1991 71 (SCC), [1991] 2 S.C.R. 456 at p.472, De Cou v. Leamington Municipality of, 2014 ONSC 6044 at para. 17, and Souliere v. Casino Niagara, 2014 ONSC 1915 at para. 33.

[8] The presence of a hazard does not necessarily lead to the conclusion that the occupier has failed to meet the standard of care. Indeed, the standard of care does not extend to removing every possible danger: see Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 at para. 9. Similarly, it would be an error to reason back from an injury to liability. An injury, even a catastrophic one, does not in and of itself establish a breach of the duty of care.

[9] To succeed on such a claim, the plaintiff must establish some act or failure to act on the part of the occupier that caused the plaintiff’s injury. The analysis is necessarily fact specific and the standard of care is to be applied in a flexible manner having regard to the nature and context of the premise and the activities carried out therein: see Crocker v. Sundance Northwest Resorts Ltd., 1988 45 (SCC), [1988] 1 S.C.R. 1186 and Souliere v. Casino Niagara at para. 49.

[10] The test for causation is the “but for” test. The plaintiff Ms. Martin, must show that but for the negligence of the defendants, the injury would not have occurred. There must be a substantial connection between the injury and the conduct of the defendants: see Ault v. Canada (Attorney General), 2011 ONCA 147 at para. 44 and 45 and Resurfice Corp. v. Hanke, 2007 SCC 7 at para. 21.

The Festival

[11] The Festival is a public event hosted by the City of Barrie. It is a popular event that attracts approximately 20-25,000 guests over the course of two days in February each year. While the Festival is comprised of various activities at several locations, the activity in question in this case involves a snow slide located at Heritage Park. The snow slide is constructed by a contractor hired for the purpose of the Festival. From the photos tendered into evidence and based on the descriptions given by witnesses, the snow slide appears to be essentially a large pile of snow capped off with a decorative snow and ice sculpture. Guests using the slide sit on their bottoms, without a sled or toboggan, and slide down into a landing area that is bordered by a snow fence. The landing area extends approximately twenty feet from the bottom of the slide. The area around the snow slide landing is fenced off and contains a demarcated exit point. Spectators are free to gather and watch from outside this fenced off area.

[12] Guests wanting to use the snow slide climb up and arrive at a platform on top of the structure. The slide has three “chutes” down which guests slide. At the top of the slide, guests are directed by staff employed by the City of Barrie to use a specific chute in order to ensure the orderly use of the slide and to avoid congestion. Staff are also present at the bottom of the hill to assist with the orderly disbursement of guests.

[13] While the slide is primarily used by children, it is not uncommon for adults to accompany children and also use the slide either alone or with a child seated on their laps.

[14] There have been no prior reported injuries to guests using the snow slide.

The Incident

[15] Ms. Martin testified that she attended the Festival with her husband, and two children, ages 9 and 12. They arrived at approximately 2:00 in the afternoon and saw a number of people, both adults and children, going down the slide. Her children indicated that they wanted to go down the slide and she decided to accompany them in the long line that had formed.

[16] Once on top of the structure, Ms. Martin observed that only two of the three chutes were open. One chute was short and straight, the other was longer. Ms. Martin testified that her intention was only to accompany her children to the top of the hill and then to leave the hill after her children slid down one of the chutes. According to Ms. Martin, she was instructed by a City of Barrie worker that she could not go back down the steps she had used to climb the structure but rather had to go down the slide using one of the chutes. This evidence was challenged forcefully in cross-examination and my findings in relation to it are set out in more detail below.

[17] Ms. Martin’s daughter went down the short straight chute and her son went down the longer chute. Ms. Martin told the worker that she wanted to take the shorter, straighter chute that her daughter had used, but was directed to take the longer chute used by her son.

[18] Ms. Martin proceeded as directed and went down the longer chute. As she proceeded down the hill and picked up speed she observed the safety fence at the end of the run and became concerned that she would hit the fence. She dug her heels in to slow down and came to quick stop. As she did this, she hit her bottom on something and felt pain and nausea. She rolled over, looked back to see what she had hit and observed an irregularly shaped piece of ice, triangular in shape, approximately between 4-6 inches in size. This piece of ice had been covered by snow and was likely dislodged by her feet as she slid over it.

[19] Ms. Martin claims that when she was looking back at the piece of ice, she saw the boots of someone standing over the ice and heard the person say words to the effect, “I have to fill this in again.” She also saw this person kick snow to fill in the spot where the piece of ice came from. This utterance was the subject of a hearsay objection which will be addressed below.

[20] After a short period of time on the ground, Ms. Martin managed to get to her feet and walk slowly and painfully to the exit. She told her husband she was hurt and proceeded to walk to their car. She was in significant pain and felt nauseous. Ultimately, her husband left her behind and went to get their car as she was having difficulty walking.

[21] When she arrived at home, she applied ice packs to her buttocks and took pain medication. On Sunday, February 6, she remained at home and continued to use ice packs and pain medication. On Monday, February 7, she tried to drive her son to school but found the pain unbelievable and she ended up in tears.

[22] Ms. Martin went to see Dr. Wozniak on Tuesday, February 8. According to Ms. Martin, Dr. Wozniak advised her that she had a fractured or dislocated tailbone. He did not suggest an x-ray noting that it would be inconclusive. She was prescribed rest, Demerol and a stool softener.

[23] Ms. arin Donnelly, the community events coordinator for the City of Barrie, testified that she was in charge of programming and organizing the Festival in 2011. She indicated that the snow slide was a popular and recurring feature of the Festival and that to her knowledge no one had been hurt on it before. She was present on site during the weekend and was involved in supervising the event. She circulated the grounds and the structure on an hourly basis and did not see or hear about anything unusual on the day in question. Staff employed by the City were at the slide to make sure that guests used the slide safely “bum down, feet first” and that the exit area was kept clear. Staff at the landing area of the slide were given a shovel to use to keep the snow at the landing smooth and filled in. They were not given a rake. There was no scheduled closure of the slide for periodic maintenance throughout the weekend. It was expected that the snow at the landing would be worn away by heavy use. Staff would also be expected to remove a hazard like a chunk of ice assuming the staff knew about it.

[24] Ms. Donnelly did not personally train the staff. The training was done by supervisors. Ms. Donnelly’s understanding was that staff received approximately thirty minutes of training, part of which related to maintenance of the slide and the balance of which dealt with “customer service issues.”

[25] In her view, the slide was safe for public use.

The Post-Incident Medical Evidence

[26] Ms. Martin has continued under the care of a number of doctors and health professionals since the date of the incident. A significant amount of the evidence at trial was dedicated to assessing the nature and extent of her injuries. As well, a significant amount of evidence was directed at assessing whether the chronic pain suffered by Ms. Martin was related to pre-incident medical issues specifically relating to reported hip, abdominal and pelvic pain. In view of my findings below, I need only briefly review this evidence.

[27] Ms. Martin’s treating family physician, Dr. Andrew Wozniak testified that in his opinion, Ms. Martin’s suffered a “coccyx injury, strain.” On the basis of follow up visits, he concluded that she suffered from coccydynia, which as I understand it, is a medical condition describing pain, often chronic or long lasting, to the coccyx or tailbone. While based primarily on Ms. Martin’s self-report, he opined that her coccydynia was causally related to the injury suffered on the slide. Despite the fact that the injury occurred in 2011, Dr. Wozniak only ordered an x-ray in 2015. The x-ray showed no abnormalities in either the coccyx or in the lumbar spine. No evidence of a fracture was discovered.

[28] Dr. Kargel’s views were echoed by Dr. Kargel, a pain treatment doctor who first saw Ms. Martin some 4 ½ years after the incident and has continued seeing her regularly until the date of the trial. Dr. Kargel has been giving Ms. Martin localized pain relief injections which appear to have resulted in a significant improvement in Ms. Martin’s well-being. In Dr. Kargel’s opinion, Ms. Martin presents with a clear case of coccydynia. She testified that with injuries to the coccyx, 90% of people heal completely but 10% of people go on to have chronic pain. In her opinion, Ms. Martin fits within the 10%.

[29] The plaintiff also tendered a report from Dr. Malcom, an expert in orthopaedic surgery. Dr. Malcolm did not find coccydynia. Rather, in his report dated September 12, 2013, he concluded that Ms. Martin suffered a mid-sacral/adjacent left buttock contusion and possible lumbar strain. As well, an expert report from Dr. Mailis, a specialist in physical medicine was also tendered. The physical examination by Dr. Mailis yielded variable results upon repetition. Nonetheless, Dr. Mailis noted a continuity of specific complaints after the incident, which seem both timely and causally related to the incident. Dr. Mailis opined that from a physical point of view, Ms. Martin “seems to have suffered a contusion or sprain in the coccyx area with some prolonged symptoms.” From a diagnostic standpoint, Dr. Mailis opined that Ms. Martin suffers from a Somatic Symptom Disorder with Predominant Pain as described in the DSM 5. Given Ms. Martin’s history and make up, Dr. Mailis opined that she has a vulnerability to develop chronic pain conditions after trauma.

[30] The defence expert, Dr. Joel Finkelstein, an orthopaedic surgeon, provided a report that was tendered into evidence. He agreed with Dr. Malcolm that the pain and injury Ms. Martin suffered was most probably due to a contusion to her buttock/sacrum. He found that an injury to the coccyx was improbable. In his view, while a contusion to the buttock/sacrum would be painful, it would be expected to heal and resolve. On examination of Ms. Martin he found no objective basis for an injury relating to the slide incident. He also found that a number of her presenting symptoms were related to ailments that pre-existed the injury.

Findings and Analysis

[31] Ms. Martin hit a small piece of ice that had been buried under the snow in the landing area of the snow slide. I am unable to determine the dimensions or shape of this piece of ice as I find that Ms. Martin herself never clearly observed it. At best, she momentarily spotted the ice piece while glancing backwards over her shoulder and while, according to her evidence, she was nauseous from the extreme pain. The ice chunk was never retrieved nor was it brought to the attention of any of the staff at the scene. In these circumstances, I am unable to accept that she was able to accurately view and recall the shape and dimensions of the piece of ice.

[32] Ms. Martin’s husband, Errol Hibbard, also did not observe the small piece of ice, though he was prevented by City of Barrie staff from entering through the exit area of the landing and was unable to get close to where Ms. Martin came to rest in the landing area. Neither he nor Ms. Martin brought the presence of the ice chunk to the attention of the staff at the Festival.

[33] Ms. Martin’s efforts to slow her descent by digging her feet into the snow is likely what caused the small ice chunk to become dislodged or uncovered from the snow. The contact between her bottom and the ice chunk is what caused an injury, likely a bruise, to her coccyx or tailbone area. While I have some concerns that Ms. Martin may have exaggerated to some degree the nature and duration of her symptoms, I accept that the injury was initially painful and its effects long lasting.

[34] I have credibility concerns regarding aspects of Ms. Martin’s testimony. I found her at times argumentative and unwilling to admit obvious matters, for example when presented with four photos depicting the snow slide, she refused to accept two of the photos as accurate depictions. That aside, one particular aspect of her evidence causes me the most concern and that is her evidence relating to whether she was directed to proceed down the slide by City of Barrie staff.

[35] I reject her evidence that she was effectively forced to proceed down the snow slide by a City of Barrie employee. I find that this evidence was an attempt to shift responsibility for the decision to slide down the hill from Ms. Martin to the City of Barrie. I find that the decision to go down the snow slide was made entirely by Ms. Martin.

[36] As summarized above, in direct examination Ms. Martin claimed that she was directed to slide down the snow slide by a City of Barrie employee notwithstanding the fact that her intention was only to accompany her children up the structure. On her evidence, one of the two workers at the top of the structure specifically prohibited her from descending using the stairs and told her that the only way down would be by using the slide. In cross-examination, this evidence was forcefully and, in my view, successfully challenged. Ms. Martin was confronted with the following questions posed and answers given during her discovery:

Q. Okay. So nothing in particular stands out in your memory as what you observed as far as the people going down the slide, other than there was just a lot of them?

A. The majority of my time was waiting in line at the rear of the structure.

Q. Okay, but I’m not asking about that, I’m just trying to understand if when you saw people going down if you made any particular observations about that?

A. It looked like they were having fun.

Q. All right. And so you decided to try it for yourself?

A. Yes.

[37] While Ms. Martin agreed that these answers were truthful when given, she maintained at trial that using the slide was an “option” or “consideration” for her and not a fixed intention. Further, she maintained that once she made it to the top of the structure she elected not to pursue the option of sliding down the snow slide but rather wanted to climb back down.

[38] When asked why she never mentioned this change of heart at her discovery, Ms. Martin testified that her memory was clearer now at the trial as she had been taking a narcotic at the time of her discovery. She denied any “malicious intent” in the omission placing the blame squarely on the medication she was taking. She also agreed that she never mentioned this change of heart to her lawyer or to anyone else following the discovery as she didn’t realize that she needed to tell anybody about the omission. Ms. Martin’s counsel did not seek relief from rule 31.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and did not seek to rely on Ms. Martin’s newly revealed evidence on this issue. Nonetheless, the evidence is relevant to the assessment of Ms. Martin’s credibility.

[39] I do not accept that Ms. Martin’s ability to recollect events at her discovery was impacted by the use of some unnamed but presumably prescribed narcotic. There is no evidence before me indicating the type of narcotic used and whether and to what extent it could impact a person’s memory. Rather, I find that the claim of memory failure due to narcotic use to be an excuse contrived to address the obvious inconsistency between her testimony at trial and at discovery. Put simply, Ms. Martin initially testified that she did not plan on descending the slide, but instead was forced to. When confronted with her earlier discovery testimony wherein she stated that she decided that she was going to “try the slide” before climbing it, she changed tack and softened her initial position to the more equivocal “it was an option.” When challenged on this change in her evidence, she attempted to blame it on the effect of a drug she was taking at the time of her discovery. I find it highly unlikely that Ms. Martin’s memory was impacted by a narcotic to the point where she would forget something as central as being directed by a City of Barrie employee to descend the structure against her wishes using the slide. This is not a minor or peripheral fact. One would have expected this fact to be at the forefront of any suggestion of liability on the part of the City of Barrie.

[40] On the whole, I am not prepared to accept Ms. Martin’s claim that she was ordered by City of Barrie staff to go down the slide against her wishes. I reject her attempt to explain the inconsistency in her evidence.

[41] This finding does not end matters. Just because Ms. Martin chose on her own to use the snow slide, does not provide a complete answer to the question of liability. I turn next to issue of the standard of care owed to Ms. Martin as a voluntary participant on the snow slide.

The Standard of Care in Context

[42] Sliding down a snow slide is as Canadian an activity as one can imagine. Generations of parents and children have participated in and enjoyed this activity over the years. Without a doubt, there have been some injuries, at time serious, along the way. The very nature of the activity exposes participants to some degree of risk. However, participants are taken to appreciate some degree of risk associated with such an activity. Conversely, there remains a duty on a party operating a snow slide to do so in a manner that is reasonably safe in the circumstances.

[43] In this case, the plaintiff argues that the defendants failed to take reasonable steps to render the snow slide safe for use. In support of its position, the plaintiff cites among other things, the City of Barrie’s failure to have an inspection process in place for assessing the safety of the slide and landing area, the City’s failure to properly monitor and maintain the snow slide during a period of heavy use, and the City’s failure to adequately train staff to spot and address hazards. According to the plaintiff, it should have been obvious to the City that the heavy use of the snow slide would result in snow being worn away and possibly the creation of hidden hazards such as the chunk of ice in question. The simple use of a rake to groom the landing area would have detected the hazard and avoided the injury.

[44] The defendants argue that they took more than reasonable steps in the circumstances to render the snow slide and landing area safe for use. The defendants note that the plaintiff herself deemed the snow slide to be safe for both her and her children. The nature of the slide was obvious to anyone watching. The plaintiff herself knew precisely the nature of slide, including the fact that she would be cushioned only by her snow pants. The defendants point to the fact that the slide was gradually sloped and not steep and that guests would come to a quick stop once in the landing area. The structure, slide and landing area were staffed by City of Barrie employees who were monitoring the slide and guests. The employees were given brief but sufficient training that directed them to fill in gaps or patches in the snow at the landing area and monitor and direct the traffic on the slide to ensure guest safety. These steps, according to the defendants, were all that was reasonably required in the circumstances.

The Hearsay Utterance

[45] As mentioned above, according to Ms. Martin, once she came to a stop at the bottom of the slide and looked back over her shoulder to see what she had run over, she heard a voice say words to the effect “I have to fill this again”. She did not see who said this, noting only that the voice was that of a teenage or young adult male. She could see only the bottom portion of this person’s boot and leg and observed snow being kicked.

[46] The plaintiff submits that an inference arises that this utterance was made by one of the City of Barrie workers staffing the bottom of the hill. As such, the plaintiff submits, the utterance is effectively an admission by the City and is therefore admissible as an exception to the hearsay rule. The plaintiff points to this utterance to support her argument that the City was aware of the risk of injury at the bottom of the hill and ought to have taken better steps to prevent what occurred.

[47] The defendants initially opposed the admission of this evidence arguing that there was an insufficient basis upon which to determine who made the utterance and that as a result, the utterance remained inadmissible hearsay. In closing submissions, the defence position softened and it was submitted that if accepted into evidence, the utterance actually supported the position that the City of Barrie was taking reasonable steps to keep the snow slide safe.

[48] The observation made by the plaintiff of someone kicking snow to fill in a gap or patch at the landing area is obviously admissible. The issue is whether the accompanying comment “I have to fill this again” [emphasis added], is admissible for the truth of its contents, i.e. that this was not the first time that a gap or patch in the landing area had to be filled in.

[49] I find that the utterance was likely made by one of the City of Barrie employees stationed at the bottom of the hill. On the evidence before me, the City tasked one or two employees to stand at the bottom of the slide with a shovel at hand to fill in any gaps in the snow at the landing area occasioned by guests using the snow slide. It is unlikely that a person unconnected with the operation of the hill would walk over to fill in a gap or clearance in the snow and make such an utterance. The obvious inference is that the utterance was made by one of the staff at the bottom of the slide.

[50] In the circumstances, particularly, the contemporaneous timing of the utterance with the action of kicking or filling in snow and the absence of time for calculated insincerity, I find that the utterance is a spontaneous declaration and is therefore admissible. See Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th Ed., (Toronto: LexisNexis Canada Inc., 2014) at para. 6.348. In view of this finding, I do not need to determine whether the utterance would otherwise have been admissible as an admission made by an agent of the defendants’ in accordance with the analysis in R. v. Strand Electric Ltd., 1968 421 (ON CA), [1969] 2 C.C.C. 264 (Ont.C.A.).

[51] As a result, I will consider the utterance along with the balance of the evidence in assessing whether the standard of care was met in this case.

Was the Standard of Care Satisfied?

[52] I find that in the circumstances of this case, the standard of care was satisfied. The City of Barrie took adequate and reasonable steps to safeguard the guests using the snow slide at Winterfest. The context is important. The snow slide is a gradually sloped hill on which patrons slide down on their “bottoms.” While specific measurements were not tendered into evidence, the pictures tendered into evidence suggest that the hill is neither steep nor tall. Guests are not using devices such as sleds or toboggans which would ordinarily be used to add speed to the descent. The evidence suggests that guests come a quick stop at the bottom of the slide.

[53] Staff are positioned at the top and bottom of the hill, observing and directing the flow of guests. Staff at the bottom of the hill are equipped with a shovel and instructed to smooth out the landing and fill in patches in the snow. It is expected that the staff will remove hazards should they become aware of any. The landing area is fenced off and adequately supervised.

[54] The spontaneous utterance of the City of Barrie employee supports the position of the defendants as it demonstrates that the employee stationed at the bottom of the slide in the landing area was paying close attention to the condition of the landing and moved quickly to fill in a gap or patch in the snow as would be expected. The fact that it appears from the utterance that this was not the first time this remedial step was required does not alter the analysis as I do not find that the utterance demonstrates an awareness of the hazard posed by the chunk of ice that caused the injury.

[55] Regrettably, Ms. Martin hit a small chunk or piece of ice that was buried in the snow at the base of the slide in the landing area. In my view this was a not a hazard that the City of Barrie should have been reasonably required to address in order to meet the standard of care. While I appreciate that a more rigorous inspection process and perhaps the use of a rake to comb the landing area might have uncovered this hazard, in my view, this places too high an onus on the City of Barrie. The standard is not one of perfection, rather it is reasonableness. In view of the activity in question and in view of the circumstances as I have found them, I do not believe that the City of Barrie should be held liable for this unfortunate injury.

Has Causation Been Established?

[56] While not required in view of my finding on the standard of care, I add that I would otherwise have found that the chronic pain Ms. Martin continues to suffer in her coccyx region is causally related to the injury she sustained while sliding down the snow slide during the Festival. The evidence is far from perfect and I have concerns that Ms. Martin has exaggerated and prolonged her symptomology in support of this litigation. Nonetheless, on a balance of probabilities, I find that the injury she suffered resulted in a chronic pain condition. I accept the evidence of Dr. Mailis and Dr. Kargel, that Ms. Martin falls into a small percentage of people who develop chronic pain conditions like coccydynia and that her symptoms may well be somatic in nature. I do not need to settle the dispute as to whether the injury was to the coccyx or the sacrum area, I am satisfied that the injury be it to the coccyx or sacrum area was caused by the incident.

[57] I appreciate that given Ms. Martin’s history and presentation, particularly the variability of some of her symptomology, there is a legitimate basis upon which to question a connection between her current presentation and her pre-existing conditions. As stated, I have concerns about the accuracy of Ms. Martin’s self-report, but I nonetheless find that the medical evidence, taken as a whole, tips the balance of the “but-for” causation analysis in her favour.

Conclusion

[58] In summary, I find that the plaintiff Andrea Martin has not proved that the City of Barrie and Heritage Park Place breached the standard of care set out in s.3(1) of the Act.

[59] The plaintiffs’ claims are dismissed.

Costs

[60] If the parties cannot agree on costs, the defendants to serve and file their submissions on costs within fifteen days of the date of this decision, and the plaintiffs will have fifteen days thereafter to serve and file their submissions. The submission are to be no more than three pages, double spaced, exclusive of any cost outline, case law and offers to settle. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.

Di Luca J.

Released: December 13, 2016

CITATION: Martin et al v. The Corporation of the City of Barrie et al, 2016 ONSC 7830

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDREA MARTIN and ERROL MARTIN

Plaintiffs

– and –

THE CORPORATION OF THE CITY OF BARRIE and HERITAGE PARK PLACE (BARRIE) INC.

Defendants

REASONS FOR JUDGMENT

Di Luca J.

Released: December 13, 2016