Case: Lyng v. Ontario Place Corporation, 2024 ONCA 23 (CanLII)

Keywords: concert; wet grass; slip-and-fall; negligence; Occupiers’ Liability Act, R.S.O. 1990, c. 0.2

Synopsis:

The Respondent attends a concert at Ontario Place with his friend. (See para. 2).

Following the concert, the Respondent and others exit the main gates and proceed towards a pedestrian bridge. The entry is blocked by two security guards, so the Respondent and his friend proceed down a hill next to the bridge. (See para. 2).

It rains heavily that day, which causes the hill to become wet and slippery. There are no barricades or warnings limiting access. (See para. 2).

When the Respondent follows his friend down the hill, he falls and sustains a serious knee injury, requiring surgery. (See para. 2).

The Trial Judge (Skarica J.) finds Ontario Place liable for the Respondent’s injuries under s. 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. 0.2. The Respondent is found to be contributorily negligent. Liability is apportioned 75% to Ontario Place, and 25% to the Respondent. (See para. 4).

Ontario Place appeals the Trial Judge’s decision. The Court of Appeal (van Rensburg, Nordheimer, and George JJ.A.) dismisses the appeal. (See para. 42).

Importance:

Although Ontario Place advanced five separate grounds of appeal, this analysis focuses on the Court of Appeal’s discussion of the Occupiers’ Liability Act and causation.

Section 3 of the Occupiers’ Liability Act provides:

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.

Ontario Place argued that wet grass caused by rainfall is not an unusual danger that occupiers are required to guard against. (See para. 26). Of interest here, Ontario Place pointed to “several lower court, and two appellate court, decisions” in support of this proposition, including Malcolm v. B.C. Transit (1988), 1988 CanLII 3213 (BC CA) and Winters v. Haldimand (County), 2015 ONCA 98. (See para. 26).

In Malcolm, the Court of Appeal concluded that “[a]ny such adult person without being warned knows and accepts the risks of falling on a steep, wet, grassy slope or a path”. (See para 26; citing Malcolm at para. 10). In this case, however, the Court of Appeal deferred to the Trial Judge’s analysis. The Trial Judge applied Waldick v. Malcolm, 1991 CanLII 71 (SCC) – described by the Court of Appeal herein as “the leading authority from the Supreme Court” – and “thoroughly” addressed the factors present in this case to determine what constituted reasonable care. (See para. 27).

The Court of Appeal emphasized the Trial Judge’s finding that “[b]y blocking the pedestrian bridge and making no reasonable effort from preventing the crowd, a number who have been drinking alcohol, from going onto that wet hazardous hill, Ontario Place failed in its duty to take care that persons were reasonably safe while on its premises”, and observed that the duty described by the Trial Judge was “pinpointed”. (See para. 28).

In other words, the Trial Judge did not impose an overly broad duty to warn against the dangers of wet grass everywhere on the premises. Ontario Place was only negligent in deciding not to place “barriers to prevent people from going down [the] slippery hill”. (See para. 28). Ultimately, the Court of Appeal found no error in this analysis of s. 3 of the Occupiers’ Liability Act. (See para. 30).

The Court of Appeal addressed three of Ontario Place’s grounds of appeal collectively on the basis that they each “related to the broader causation question”. (See para. 19). Whereas Ontario Place argued that it was the Respondent’s “needless decision to jump, which led to him landing awkwardly”, the Court of Appeal agreed with the Trial Judge’s finding that Ontario Place’s negligent acts “set off a ‘train of events’ that placed the respondent at the bottom of a wet, hazardous, slippery hill – a hazard known to Ontario place and which ‘could have been easily prevented’”. (See paras. 21, 23). The Court of Appeal noted that issues of causation are findings of fact which are not to be interfered with absent a palpable and overriding error. (See para. 23).

The Court of Appeal also rejected Ontario Place’s argument that, because the Trial Judge found the Respondent “jumped down the slope in flip-flops, after consuming alcohol”, he (the Trial Judge) had to dismiss the action on the basis that the Respondent was “the author of his misfortune”. (See para. 31). The Court of Appeal affirmed that,

  • “but for” causation requires “only that a defendant’s negligent conduct be a necessary cause of the injury, not the sole cause”; and
  • the standard for appellate interference with a Trial Judge’s apportionment of liability is “an exacting one”, which would require demonstration of an error in the Trial Judge’s appreciation of the facts, or the application of relevant legal principles. (See para. 33).

Counsel for the Appellant: Martin Forget and Earl Murtha (Forget Smith Barristers/Avocat(e)s, Toronto)

Counsel for the Respondent: James Scarfone and Jacob Sazio (Scarfone Hawkins LLP, Hamilton)

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