



COURT OF APPEAL FOR ONTARIO

CITATION: Becker v. Toronto (City), 2020 ONCA 607

DATE: 20200928

DOCKET: C67292

Watt, Trotter and Zarnett JJ.A.

BETWEEN

Stephanie
    Becker, Nicole Becker,

Gerry Becker and Mark
    Becker

Plaintiffs

(Respondent)

and

City of Toronto, John Doe #1 and John Doe #2

Defendants

(Appellant)

Rebecca L. Bush and Ruby Egit, for the appellant, City
    of Toronto

Jason F. Katz and Ari Singer, for the respondent, Stephanie
    Becker

Heard: in writing

On appeal from the judgment of Justice Janet Wilson of
    the Superior Court of Justice, dated June 28, 2019, with reasons reported at
    2019 ONSC 3912.

Zarnett J.A.:

OVERVIEW

[1]

The appellant, City of Toronto (the City), appeals a trial judgment
    that found it liable to the respondent, Stephanie Becker (Ms. Becker), under
    the
Occupiers Liability Act
, R.S.O. 1990 c. O.2 (the 
OLA
).

[2]

Ms. Becker was fourteen years old in 2009, when she was injured at the
    Irving W. Chapley Community Centre, a City-operated community centre located
    near to her home. A person who had been using the telephone in a staff office
    at the community centre either tripped into the glass portion of the office
    door, or punched it (the trial judge found it was probably the latter). Ms.
    Becker was close to the door when this happened. The glass shattered and struck
    Ms. Becker. She required four surgeries on her left eye and was rendered
    legally blind in that eye.

[3]

The trial judge found that (i) the City breached the duty of care it
    owed as an occupier of the community centre, since the glass portion of the
    door was not made of the type of safety glass required by the 1990 Ontario
Building
    Code
, O. Reg 413/90, which was in place at the time of the accident
[1]
;
    (ii) causation was established, since Ms. Beckers injuries would not have
    occurred if the required safety glass had been used; and (iii) foreseeability
    was established, since the damage that occurred was a reasonably foreseeable
    result of the failure to use the required safety glass. Given her finding of
    liability, the trial judge awarded damages to Ms. Becker in the agreed sum of
    $500,000.

[4]

At the time of the accident, laminated glass, wired glass, or tempered
    glass (tempered safety glass) would have met the minimum
Building Code

requirements of a safety glass. Although at trial the City maintained that
    the door was made of the required tempered safety glass, the trial judge found
    as a fact that it was made of ordinary annealed glass, which did not meet
Building
    Code
requirements. For the purpose of this appeal, the City does not
    contest the trial judges findings of fact. Nor does it contest her findings with
    respect to causation or foreseeability.

[5]

Instead, the City argues that the trial judge erred by treating the
    absence of tempered safety glass as sufficient, in law, to support the
    conclusion that it breached its duty of care as an occupier under s. 3(1) of
    the
OLA
. Section 3(1) of the
OLA

provides that:

An occupier of premises owes a duty to take such care
    as in all 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.

[6]

The City argues that since the
OLA
imposes a standard of
    reasonable care, not a strict liability standard, it could have properly been
    found to have breached its duty of care under the
OLA
only if there was
    both an absence of tempered safety glass, and a failure on its part to have
    taken reasonable care to try to have tempered safety glass installed. In other
    words, if the City undertook reasonable efforts to have the required type of
    glass installed, it should not have been found liable, regardless of whether or
    not that kind of glass was actually installed. The City submits that the trial
    judge was required, in law, and because of the evidence led at trial, to
    consider the matter from that perspective.

[7]

For the reasons that follow, I would dismiss the appeal.

[8]

At trial, the parties expressly characterized what was at issue and what
    the trial judge needed to determine with respect to whether the City breached
    its duty of care. The trial judge characterized, approached, and decided the
    issue of whether the City had breached its duty of care in accordance with the
    way the parties put the case to her. There are strong reasons, rooted in policy
    and trial fairness, to hold parties to the characterization of issues and the
    theories they assert at trial.

[9]

In their opening and closing submissions at trial, the parties described
    the issue about whether the City breached the occupiers duty of care as
    turning upon whether the City installed tempered safety glass to meet the
    minimum requirements under the
Building Code
. As the failure to follow
    a statutory standard can be evidence of a failure to take reasonable care, this
    characterization of the issue did not depart from the reasonable care standard
    under the
OLA
.

[10]

The
    City could have chosen to articulate its theory concerning whether it breached the
    occupiers duty of care at trial to include the additional question of whether
    its efforts to have the required kind of glass installed amounted to reasonable
    care, even though those efforts were unavailing. However, the City points to
    nothing in the record to indicate that it did so. The trial judge cannot be
    criticized for failing to address, or consider evidence from the perspective of,
    a theory the City did not raise at trial.

ANALYSIS

[11]

The
    determination of this appeal turns on the answers to the following questions:

(a)

Did
    the trial judges characterization of the issue of whether the duty of care was
    breached reflect the way the case was put by the parties?

(b)

Was
    the trial judges characterization of this issue legally sufficient, in the
    sense that, if resolved in favour of Ms. Becker, it would be a proper legal
    basis to conclude that the City had breached its duty of care under s. 3(1) of
    the
OLA
?

(c)

Was
    the trial judge required to consider questions concerning whether the City
    breached the duty of care beyond those put by the parties and reflected in the
    theories they advanced at trial?

The Characterization of the Issues at Trial

[12]

It
    was expressly conceded at trial that the City owed a duty of care to Ms. Becker.
    The trial judge described the issues that she would have to decide as follows:

The Issues

The parties agree that the issues I must decide are:

1.       Has the Plaintiff met the onus of proving that the
    glass in the door of office 113 is annealed glass and not the required tempered
    safety glass?

2.       If the Plaintiff proves that the glass in the door was
    annealed glass, did the failure to use safety glass cause the Plaintiffs
    injuries?

3.       Even if the Plaintiff meets the burden of proving that
    the annealed glass caused her injuries, was injury to the Plaintiff a
    foreseeable risk in all of the circumstances?

[13]

The
    City submits that the trial judges characterization of the first issue did not
    reflect all that was involved in determining whether it breached its duty of
    care. It claims that its case at trial showed that more was involved. I
    disagree. In my view the trial judge accurately characterized the issue in
    light of the competing theories advanced by the parties.

[14]

Ms.
    Beckers theory of liability at trial was that the City breached its duty of
    care as occupier of the community centre because the glass portion of the door
    was not made of tempered safety glass, which was required under the
Building
    Code
. Instead, the door was made of ordinary annealed glass. Ms. Becker also
    alleged a failure of the City to supervise the person who broke the glass, but
    abandoned that theory before the end of the trial.

[15]

In
    its opening submissions, the City described the issue of whether it had
    breached its duty of care (beyond the ultimately abandoned allegation of the
    failure of supervision) as requiring that the following question be answered:
    It will be Your Honours job at the end of the day to determine whether the
    Plaintiff has satisfied you that  the glass that was installed in the office
    door was not safety glass, as required by the Ontario
Building Code
.
    There was no reference, in the opening submissions, to any requirement that the
    trial judge also determine whether the City had taken reasonable, albeit
    unsuccessful, steps to try to have the tempered safety glass installed.

[16]

None
    of the glass from the door had been preserved after the accident. Considerable
    evidence, including expert evidence, was therefore led about the kind of glass
    that had been installed in the door. The evidence included references to the
    specifications and drawings developed when the community centre was renovated and
    the door installed in 1995, the architectural firm and contractors the City had
    employed, the Citys supervision of the renovation project, and the lack of
    changes to the door after the renovation project was completed. The evidence
    also included what was known about how the glass behaved, and any sound it
    made, when it broke at the time of the accident.

[17]

The
    expert called by Ms. Becker concluded that annealed glass had been installed,
    while tempered safety glass was what the
Building Code
required. The
    expert called by the City concluded that the door contained the required
    tempered safety glass. No expert opinion was proffered at trial on the reasonableness
    of the Citys steps to try to have tempered safety glass installed.

[18]

In
    Ms. Beckers closing submissions, when addressing whether the City had breached
    its duty of care, counsel stated:

[T]he only issue for Your Honour to determine
    is whether there was, in fact, tempered glass in the door. If it is determined
    that it was not tempered glass, then the City is in violation of the minimum
    standards of the Ontario Building Code and, I submit, is therefore in breach of
    the reasonably-safe standard set by the
Occupiers Liability Act
.

[19]

In
    the Citys closing submissions, the City summarized its position on what needed
    to be established to find that it was liable as follows:

Your Honour, in order to succeed, the Plaintiff must prove to
    you that its more likely than not that it was annealed glass in the staff
    office door, at the time of the acciden[t], and that the absence of safety
    glass caused her injury.

On the issue of whether it breached the duty of care,
    the Citys theory was that the Plaintiff has not proven to you that its
    annealed glass on the balance of probabilities. The City did not submit to the
    trial judge that there had been a failure to establish a breach of the duty of
    care, even if Ms. Becker had proven that annealed glass had been used.

[20]

Although
    there is nothing in the parties description of the issues at trial that
    includes the theory that the City took reasonable but unsuccessful steps to
    have tempered safety glass installed, the City relies on the fact that there
    was evidence at trial of the specifications and drawings used for the
    renovation of the community centre, and of the Citys use and supervision of an
    architect and contractors. The City argues that this evidence shows there was
    an additional question in play at trial with respect to whether it breached its
    duty of care, beyond the question of what type of glass was actually installed.
    Specifically, the City says this type of evidence could show that it discharged
    its duty of care on the basis of its reasonable efforts to have a safe
    structure even if, despite those efforts, annealed glass ended up being
    installed by the contractors.

[21]

I
    do not accept that submission. A purpose of characterizing the issues in
    opening and closing submissions, and in describing what will be involved in
    deciding the issues, is to give the trial judge a lens through which to
    appreciate and evaluate the evidence. Leading evidence that is relevant to a
    theory that has been clearly raised cannot be seen, by itself, to put in issue
    another theory that has not been raised or articulated, even if the evidence could
    have also been relevant to the latter, unargued theory.

[22]

The
    Citys case at trial was that it did not breach its duty of care unless it was
    shown that tempered safety glass had not been used. The evidence the City
    points to was relevant and adduced in relation to that contention. If tempered
    safety glass was properly indicated in the architectural specifications and
    drawings, and competent professionals were used and supervised on the project,
    that might make it more likely that tempered safety glass was actually
    installed. On the other hand, if tempered safety glass was not properly specified,
    that might make it less likely it was installed. The trial judge found the
    specifications and drawings to be inconsistent, in the course of explaining why
    she accepted the evidence that annealed glass was used. However, the important
    point is that the trial judge used the lens provided to her by the description
    of the issues and the parties theories in the opening and closing submissions
    to appreciate and evaluate this evidence and the issue to which it was germane.

[23]

That
    the evidence could have also related to a different theory is beside the point,
    when the parties characterization of the issues did not invite the trial judge
    to appreciate or evaluate the evidence with that theory in mind.

[24]

In
    my view the trial judge correctly characterized the issues the parties had put
    to her for decision. They did not include the theory that the City took
    reasonable care in attempting to have tempered safety glass installed, and
    therefore fulfilled its duty of care, even if tempered safety glass was not
    actually installed.

The Characterization of the Issue of
    whether the Duty of Care was Breached was Legally Sufficient

[25]

The
OLA
does not impose a strict liability standard. The duty of care of
    an occupier, set out at s. 3(1), is 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. Accordingly, the City argues that the trial
    judges analysis had to focus on whether what the City did or failed to do fell
    below the standard of reasonable care. The City submits that it was not
    sufficient, in law, for the trial judge to focus only on the question of what
    type of glass was used (which would be a strict liability standard). The City
    argues that, in this case, the question of whether it took reasonable care also
    meant whether its efforts to try to have the required glass were reasonable
    even if unsuccessful. I do not accept the Citys submission.

[26]

I
    agree that if parties put forward questions to be answered at trial that, even
    if answered in the plaintiffs favour, are not legally sufficient to establish
    that the defendant was liable, a resulting judgment in favour of the plaintiff
    may be open to question. I also agree that in some situations, even when the
    parties focus their arguments on one aspect of an issue, the issue they raised
    may include other aspects that need to be addressed as a matter of law:
R.
    v. Mian
, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 33. However, the
    situation in this case is not covered by either of those propositions.

[27]

This
    case did not involve an issue formulated in a way that would not be legally
    sufficient to ground liability no matter how it was answered. Nor did the issue
    of whether the duty of care had been breached require, as a matter of law, any
    additional question to be analyzed beyond the questions the parties had
    expressly put to the trial judge.

[28]

Determining
    whether the duty of care had been breached by determining whether the Citys
    premises had the type of safety glass required by the
Building Code
,
    addressed what the City did or failed to do, and whether that conduct fell
    below a required standard. A legally inapplicable strict liability approach,
    imposing liability without consideration of whether the City failed to take
    reasonable care, was not used.

[29]

The
    City was found to have breached its duty of care not only because it failed to
    use tempered safety glass but also because that is the type of glass required
    by the
Building Code
. The
Building Code
is a statutory
    standard, enacted in the interests of public safety. Although the breach of a
    statute is not
per se
negligence, a statutory standard, can inform a
    standard of reasonable conduct. As the Supreme Court of Canada held, in
The
    Queen (Can.) v. Saskatchewan Wheat Pool
, [1983] 1 S.C.R. 205, at p. 228, there
    can be civil consequences to the failure to follow a statutory standard as [t]he
    statutory formulation of the duty may afford a specific, and useful, standard
    of reasonable conduct.

[30]

I
    interpret the trial judge to have followed that approach when she concluded:

Installing glass that does not meet minimum public safety
    standards in an office door in the lobby of a busy public community recreation
    centre consistently full of tiny tots, and their caregivers, seniors and
    adolescents meets the test for a breach of the standard of care to ensure
    persons entering the premises are safe. Hence I conclude that the Plaintiff has
    proved that the City breached its duty of care.

I do not accept the Citys argument that the trial
    judges use of the word ensure in this passage indicates that she did not
    properly set out the reasonable care standard. It is clear in the context of the
    entire passage and her reasons as a whole that she was referring to and
    properly understood the standard of reasonable care required under s. 3(1) of
    the
OLA
.

[31]

Similarly,
    characterizing the issue of whether the City had breached its duty of care as
    one that turned on whether the type of glass required by the
Building Code
had been installed was not legally incomplete, so as to require, as a matter of
    law, additional questions to be answered. It was not legally necessary for the
    trial judge to go on to consider whether the City discharged its duty of care
    on the basis of the specific, although unsuccessful, efforts taken by the City
    to have the required tempered safety glass installed, where that theory had not
    been raised.

[32]

It
    was open to the trial judge to treat the failure to use the type of glass
    required by the
Building Code
as a failure to take reasonable care as
    the occupier of the community centre. Indeed, that was the very treatment embedded
    in the parties theories about whether the duty of care had been breached which
    turned on whether the type of glass required by the
Building Code
had
    been used.

[33]

Accordingly,
    the trial judge, in accepting and acting on the formulation of the issues
    invited by the parties submissions did not fall into legal error as the City
    contends.

The Trial Judge Was Not Obliged to Consider the Issue Beyond
    the Way It Was Advanced at Trial

[34]

The
    City argues that even if it did not, at trial, expressly advance the theory
    that it had met the duty of care on the basis of its reasonable efforts,
    regardless of the type of glass that was actually installed, it never abandoned
    that theory or any defence. Accordingly, it argues that the trial judge should
    have considered it. Effectively, the City submits that it should be entitled to
    the benefit of any defence the evidence and law could support, regardless of
    the theory it expressly articulated to the trial judge, and regardless of the
    way its submissions framed the questions the trial judge was to decide.

[35]

The
    Citys argument runs contrary to the well-established principle that a trial
    judge errs, not by failing to decide issues that were not raised, but, on the
    contrary, by deciding a case on a basis not advanced by the parties. Procedural
    fairness underlies that principle:

Union
    Building Corporation of Canada v. Markham Woodmills Development Inc.
, 2018 ONCA 401, at paras. 13, 15
.

[36]

Strong
    authority contradicts the Citys argument that a position is advanced, and
    remains on the table, so long as it was pleaded and not formally abandoned,
    without regard to how the case was put at trial. Although the authorities arise
    in the context of attempts to raise a new issue on appeal, in my view they
    apply even more forcefully to an attempt to argue that a trial judge failed to
    consider an issue that was not raised before her.

[37]

One
    such authority is
Shaver Hospital for Chest Diseases v. Slesar
(1979)
, 27 O.R. (3d) 383 (C.A.), leave to
    appeal refused, [1981] 1 S.C.R. xiii. The defendant physician argued at trial
    that he had not agreed to turn over his fees to a hospital. On appeal, he
    pursued a different line of argument, namely, that the agreement with the
    hospital was void for illegality. The defendant argued on appeal that he had
    never clearly and unequivocally abandoned this issue, and it was not disputed
    that it had been properly pleaded. Nevertheless, this court dismissed the
    appeal, on the basis that it would be unfair to permit the defendant to
    resurrect an argument virtually abandoned at trial on which relevant evidence
    was not fully adduced:

It seems clear, therefore, that the issue of illegality,
    although clearly pleaded, was not an issue at the trial. The evidence which is
    said to foreshadow this defence was not introduced for that purpose, but found
    its way accidentally in the evidence as part of the documentation on the
    existence of the arrangement. I am therefore of the opinion that it would be
    manifestly unfair to the respondent to allow the appellant to argue a point
    which was not raised at the trial at a time when relevant evidence bearing on
    it could have been introduced.: at pp. 387-38.

[38]

In
    this case, the reasonable care was exhibited even if tempered safety glass was
    not installed theory was not clearly pleaded. Even assuming that the Citys
    statement of defence was broadly enough drafted to include this theory, the point
    is that it was not raised at trial. The evidence the City now points to, such
    as the involvement of its contractors and architects, was not introduced for
    the purpose of the even if theory. Unfairness to Ms. Becker would have
    resulted if it had been considered by the trial judge on a theory the City did
    not articulate.

[39]

The
    City chose to fight the issue of whether it breached the duty of care on the
    point of the type of glass that was installed. There can be good reasons why a
    party will pick what appears to be its best point and eschew alternative even
    if or fallback positions. Such positions can be seen to weaken or distract
    from the main point. But that strategic choice has a consequence (if it did
    not, it would not have been a choice). As this court observed, citing
Shaver
,
    you cannot take advantage afterwards of what was open to you on the pleadings,
    and what was open to you upon the evidence, if you have deliberately elected to
    fight another question, and have fought it, and have been beaten upon it.:
Pedwell
    v. Pelham (Town)
(2003), 174 O.A.C. 147 (C.A.), leave to appeal refused,
    [2003] S.C.C.A. No. 355, at para. 50.

[40]

To
    hold otherwise would encourage parties to litigate by instalments, with
    deleterious consequences for the efficiency of the justice system and for
    access to justice.

[41]

Additionally,
    I do not accept that the trial judge was required to consider an even if
    theory, which was not argued at trial, just because the City never expressly
    abandoned it. The parties may put the matter to the trial judge in a way that
    implicitly takes a defence off the table. In
Cotic v. Gray
, [1983] 2
    S.C.R. 2, the Court considered circumstances in which counsel had agreed, with
    the approval of the trial judge, that the only question to be submitted to the
    jury was whether the defendant caused or contributed to the plaintiffs injury.
    On appeal, the defendant argued that the trial judge had failed to instruct the
    jury on the issue of foreseeability of injury. The Court dismissed the appeal,
    finding that the question of foreseeability was implicitly conceded, given the
    parties agreement on the question to be submitted for adjudication:

[The question of foreseeability of suicide in these circumstances,
    in my opinion, was answered in favour of the respondent by the very form of the
    question put to the jury. The limited range of the question makes it clear that
    the question of foreseeability of suicide was agreed upon by the parties before
    the trial commenced and the only matter left open was that of causation. The
    parties contested the trial on this basis and it would be improper, in my view,
    to open a new issue at this time.: at p. 5.

[42]

In
    my view, the way the parties put the issue of whether the City breached its
    duty of care to the trial judge took any fallback position about whether the
    City had shown reasonable care, even if the required type of glass had not been
    installed, off the table. The entire question of reasonable care was subsumed
    in the question of the type of glass that was installed and whether it complied
    with the
Building Code
.

[43]

The
    trial judge was not obliged to consider the issue from a perspective other than
    the way it was put to her by the parties.
[2]

CONCLUSION

[44]

For
    these reasons, I would dismiss the Citys appeal. If the parties are unable to
    agree on the costs of the appeal, they may make submissions in writing, limited
    to two pages each. The submissions on behalf of Ms. Becker should be delivered
    within ten days of the date of these reasons. The submissions of the City
    should be delivered within five days of the delivery of Ms. Beckers
    submissions.

Released: D.W. September 28, 2020

B. Zarnett
    J.A.

I agree.
    David Watt J.A.

I agree. Gary
    Trotter J.A.





[1]
The Ontario
Building Code
in place at the time of the accident was a
    regulation under the
Building Code Act
, R.S.O. 1990, c. B.13. The
Act
governs the construction, renovation and change-of-use of buildings in Ontario;
    the
Building Code
establishes detailed technical and administrative
    requirements.



[2]
Nothing in these reasons should be taken as a comment on the sufficiency of the
    evidence of reasonable care in trying to have the required glass installed. As
    I have noted, the evidence was not analyzed by the trial judge from that perspective.
    Nor is it clear that, if the theory had been advanced by the City, the evidence
    below would have been limited to what the City now points to.


