



COURT OF APPEAL FOR ONTARIO

CITATION: Winters v.
    Haldimand (County), 2015 ONCA 98

DATE: 20150210

DOCKET: C57322

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Eric
    Winters, Margaret Winters, Lucas Winters,

Rachel
    Winters, Samuel Winters, Joyce Flaherty,

Executrix
    and Trustee under the Last Will and

Testament
    of Joseph Flaherty and Joyce Flaherty

Plaintiffs

(Appellants)

and

The
    Corporation of Haldimand County,

The Town
    of Haldimand, The Municipal Corporation of the Village of

Cayuga,
    Grand Erie District School Board

Defendants

(Respondents)

Neil R. Jones and James P. Cavanagh, for the appellants

Sheila Handler and Brian McCall, for the respondents

Heard and released orally: January 28, 2015

On appeal from the judgment of Justice Dale Parayeski of
    the Superior Court of Justice, dated June 14, 2013.

ENDORSEMENT

[1]

This is a tragic case.  The appellant was 16 years old in 2001 when on
    the morning of September 27, he fell from a tree and was rendered paraplegic as
    the result.

[2]

Eric was hanging out in the vernacular with two friends at the Kinsmen
    Park located along the banks of the Grand River in Cayuga, Ontario. The tree
    from which he fell was one which he and many others had climbed countless times
    without incident. The evidence was that the tree was a willow of the sort that
    typically grows along river banks and elsewhere all over Ontario.

[3]

The appellant submits that the trial judge erred in three ways. First,
    he erred in failing to make a finding as to whether the premises were
    reasonably safe. Second, he erred in finding that the monitoring the town had
    in place was reasonable; and three, he erred in not finding it was obvious that
    the tree in question was not reasonably safe and that it was inherently unsafe
    in the absence of appropriate monitoring.  We disagree.

[4]

The trial judge was alive to the issues as they had been put to him in
    oral and written argument.  He set out those issues at para. 23 of his reasons
    as the parties had articulated them.

[5]

Cases dealing with the liability of an occupier are governed by s. 3(1)
    of the
Occupiers Liability Act
, which reads:

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 onto the premises and the property brought on the premises by
    those persons are reasonably safe while on the premises.

[6]

Each case falls to be determined on its own particular facts in
    accordance with the evidence.

[7]

Here the evidence disclosed that generations of teenagers had climbed or
    walked up this tree and used it as a place to gather and be together. There had
    never been a complaint or report of any injury nor even any anecdotal evidence
    of an injury, save one when someone twisted his ankle getting out of the tree
    while horsing around, until Erics unfortunate mishap.

[8]

The evidence was that the tree was healthy and typical of its type.
    While the trial judge did not make a clear statement to the effect I find that
    the premises were reasonably safe, there can be no doubt, on reading his
    reasons as a whole, that he did so implicitly.  He addressed the arguments as
    they were put to him and in our view, on this record there could be no other
    finding.

[9]

The trial judge reviewed the evidence of the Town in relation to the
    monitoring of the park, the frequency of the visits of the maintenance
    personnel and the supervision of their work by the lead hand and concluded it
    was reasonable in all the circumstances.

[10]

We
    see no error.

[11]

As
    we indicated earlier, there had not been a single complaint to the Town about
    this tree or the fact that it was used as a place for teens to gather.  None of
    the park personnel who were there on a weekly basis ever observed anyone in the
    tree. Indeed, the appellants mother who used the park not infrequently, had
    not observed anyone in the tree and was unaware that her son and his friends
    used the tree as they did.

[12]

We
    agree with the trial judges conclusion that the monitoring of the park was
    reasonable in all of the circumstances and particularly so in the absence of
    any evidence from an expert or otherwise to the effect that the town fell below
    the standard of care to be expected of a village similar to Cayuga.

[13]

Finally,
    as to the argument that it was obvious that the tree was not reasonably safe,
    the appellant takes issue with the language the trial judge used in paragraph
    37 of his reasons:

In any event, there is no evidence which suggests anything
    inherently dangerous about the Chilling Tree beyond the trunk or limb in
    question.

[14]

The
    appellant argues this should constitute a finding that the limb in question
    from which the appellant fell was inherently dangerous.  We disagree.

[15]

The
    sentence must be taken in context and as the trial judge noted in the very next
    sentence,

Trees, being, by their very nature, things which can be
    climbed, and therefore fallen from, are potentially harmful.

[16]

Any
    danger posed by this tree was an obvious one.  If you chose to climb it you
    could fall and be injured. There is no duty to warn of such an obvious and
    self-evident danger nor any duty to monitor beyond what the Township is doing
    at the time of this most unfortunate accident.

[17]

The
    appeal is dismissed.

[18]

The
    appellant seeks leave to appeal the costs award of the trial judge and, in
    particular, the costs award made against the
Family Law Act
claimants.
    The defendants sought costs of about $140,000 and the trial judge awarded about
    $75,000 and of that amount $1,500 was apportioned to OHIP and there is no
    dispute about that number.

[19]

Before
    trial all damages were agreed upon, including the damages of the
FLA
claimants. As the result it was unnecessary to call evidence in relation to
    those claims at trial. Some, but not all of these claimants had been examined
    for discovery.

[20]

The
    appeal focuses on the trial judges apportionment of costs against each of the
    six
FLA
claimants in the amount of $5,000 for a total of $30,000. The
    defence concedes that $25,000 is a more appropriate figure given the number of
    remaining
FLA
claimants.

[21]

The
    appellant submits first that there should be no costs awarded against these
    claimants and alternatively, if costs are to be awarded, that costs liability
    should reflect what they might have expected to recover. Counsel submits that
    the costs liability for each claimant should reflect their individual
    percentage of the total damage amount.

[22]

While
    in some cases there have been no costs awarded against
FLA
claimants,
    there is no general rule that that should be so.  The awarding of costs is a
    matter for the discretion of the trial judge and while we agree that the awards
    are here seem somewhat high, to interfere we must be satisfied that the trial
    judge has committed an error in principle or is clearly wrong.

[23]

In
    our view, this case does not rise to that standard.  So although leave is
    granted to appeal, the appeal as to costs is dismissed.

[24]

In
    view of the result of the main appeal, the cross-appeal is also dismissed.

[25]

For
    oral reasons given this day the appeal is dismissed. The cross-appeal is
    dismissed and while leave to appeal costs is granted, the cost appeal is
    dismissed. Costs of the appeal are agreed in the sum of $15,000 apportioned
    $500 against each of the five remaining
FLA
claimants and $12,500
    against Eric Winters.

J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

M.L.
    Benotto J.A.


