



COURT OF APPEAL FOR ONTARIO

CITATION:

Herbert v. Brantford
    (City), 2012 ONCA 98

DATE: 20120213

DOCKET: C52254

Weiler, Armstrong and Rouleau JJ.A.

BETWEEN

Clara
    Herbert, infant Under The Age of 18 years by her
    Litigation Guardian, Everill Muir, the said
    Everill Muir, Gary Muir, Kiri Lyn
    Muir, Kevin Muir and Kelly Baird

Respondents/Plaintiffs

and

The City of Brantford

Appellant/Defendant

Deborah Berlach, for the appellant

Robert J. Hooper and Sumitra Lagoo, for the respondents

Heard and released orally: January 13, 2012

On appeal from the judgment of Justice Alan C.R. Whitten of
    the Superior Court of Justice, dated May 7, 2010.

ENDORSEMENT

[1]

Gary Muir was a retired high school teacher and an experienced cyclist. 
    On September 23, 2003, he set out on his bicycle for a ride on a public trail
    in the City of Brantford.  The City owned and operated the trail.  Mr. Muir was
    very familiar with the trail and had cycled on it many times including the week
    before September 23rd.  He was aware of the risks and dangers of using the
    trail and, in particular, the hazardous nature of the location where his
    accident happened.

[2]

On the day in question, Mr. Muir cycled down a hill towards a bridge
    over the Grand River.  He noticed ahead of him two people who were also on
    bicycles, although when he testified, his recollection was that they were
    pedestrians.  One of the two people appeared to be in his lane.  In order to
    avoid a collision, he veered to the right and lost control of his bicycle.  He
    fell from his bicycle into an area of the trail, which was strewn with stones
    and a large rock.  He struck his head and suffered a catastrophic injury 
    making him a quadriplegic.

[3]

In this action against the City of Brantford, the trial judge found that
    the City was 40 per cent responsible for the accident because of the Citys
    failure to carry out proper inspection and maintenance of the trail.  The trial
    judge found that in the particular area where Mr. Muir lost control, there was
    sprawling of the pavement with a pile of rocks or a large jagged rock within a
    few feet of the pavement.  The trial judge concluded that the sprawling of the
    pavement had been there for some time and the Citys failure to attend to this
    situation amounted to a total disregard of Mr. Muirs safety.

[4]

Mr. Muir was found to be 60 per cent responsible for his accident in
    that he failed to keep a proper look-out, failed to yell at the persons ahead
    of him and because he was driving at an excessive rate of speed.

[5]

Counsel for the City argues that the trial judge failed to properly
    apply s. 4 of the
Occupiers Liability Act
which provides in these
    circumstances that the City must not act with reckless disregard of Mr. Muir.  Counsel
    submitted that the trial judge, in fact, applied the standard in s. 3(1) of the
    Act,
i.e.
, to take such care as in all the circumstances of the case is
    reasonable to see that persons entering on the premises ... are reasonably safe
    while on the premises.

[6]

We disagree.  The trial judge carefully reviewed the evidence in detail
    and concluded that the City had failed to meet the standard in s. 4 of the
    Act.  We are not persuaded that he conflated s. 4 and s. 3(1) of the Act.  In
    our view, the evidence at trial was sufficient to enable the trial judge to
    make the finding he did.

[7]

The appellant seeks leave to appeal the costs award.  The trial judge
    granted interest on some of the experts fees of between one and two per cent
    compounded monthly.  It is the compounding of the interest that is the sole
    issue in respect of the costs appeal.

[8]

The trial judge appears to have decided this matter on the basis that it
    raises an access to justice issue for Mr. Muir and his family.  The trial judge
    acknowledged that there was a dearth of evidence as to the actual financial
    circumstances of Mr. Muir and his family.  Despite this, he went on to find
    that it would have been difficult, if not impossible, for him and his family to
    carry the cost of the approximately $42,000 in expert fees.  In the
    circumstances of this case, we do not agree that the evidence relied upon by
    the trial judge supports this exceptional order.  In our view, the trial
    judges reference to the statutory accident benefits regime is of no help in
    this argument.

[9]

In the result, the appeal as to the merits is dismissed.  Leave to
    appeal the costs is granted and the appeal in respect of the compounding of the
    interest is allowed.

Costs

[10]

The
    respondents are entitled to their costs of the appeal on the merits.  However,
    such award should be reduced to take into account that the appellant succeeded
    on the costs appeal.  In the result, the respondents are awarded their costs
    fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

Karen M. Weiler J.A.

Robert P. Armstrong J.A.

Paul Rouleau J.A.


