



COURT OF APPEAL FOR ONTARIO

CITATION: Labanowicz v. Fort Erie (Town), 2018 ONCA 343

DATE: 20180410

DOCKET: C63405

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Wanda Labanowicz

Plaintiff

(Respondent)

and

Corporation of the Town of Fort Erie

Defendant

(Appellant)

Christine Carter, for the appellant

Loretta Merritt and James Round, for the respondent

Heard: April 6, 2018

On appeal from the judgment of Justice Arthur Gans of the
Superior Court of Justice, dated January 27, 2017.

REASONS FOR DECISION

Introduction

[1]

The respondent
successfully sued the appellant municipality as a result of injuries she
sustained while riding a bicycle on a recreational path. She received a
judgment of approximately $995,000, inclusive of interest. The trial judge also
made an order for costs in her favour in the amount of $921,508.

[2]

On appeal, the
appellant submits that the trial judge made numerous errors, including an
incorrect interpretation of the
Occupiers Liability Act
, R.S.O. 1990, c. O 2, a failure to apply the but
for test, a jurisdictional error regarding the awarding of damages for loss of
income, and a failure to attribute any contributory negligence to the
respondent. It also seeks leave to appeal the costs award on the ground that
the amount awarded exceeded the reasonable expectations of the parties.

[3]

At the conclusion
of the appellants counsels submissions we dismissed the appeal and denied leave
to appeal the costs award, for reasons to follow. These are those reasons.

Facts

[4]

The appellant was
at all material times the occupier of the Friendship Trail (the Trail) in
Fort Erie, Ontario.

[5]

The appellant
installed wooden bollards at various points where the Trail intersects with
roads. The bollards consisted of two pieces: (i) a metal sleeve that is
embedded in ground, with a bracket that protrudes a few inches above the
surface, and (ii) a wooden post that fits into the metal sleeve, such that two
feet of the post is below ground and approximately four feet extends above
grade.

[6]

On July 31, 2006,
the respondent was riding her bicycle on the Trail. At the Cherry Hill
Boulevard intersection, a bollard had been removed leaving exposed its metal
bracket.  The front wheel of the respondents bicycle struck the bracket. After
making contact with the bracket, the respondent flew off her bicycle and
sustained injuries, including a brain injury. She was not wearing a helmet at
the time of the accident.

[7]

In 2012, the
respondents position with the Ontario public service was declared surplus. She
elected to choose redeployment within the public service, however she was
unable to obtain a new position. She grieved under her collective bargaining
agreement and her grievance was settled for a payment of $10,000 in general
damages.

[8]

After a five-week
trial devoted to the issues of liability and damages for lost income, the trial
judge found the appellant solely responsible for the accident and found, over
the jurisdictional objections of the appellant, that the respondent was
entitled to damages in the amount of approximately $737,000 for lost income.

Analysis

(i)

Occupiers Liability Act

[9]

The appellant
submits that the trial judge erred in his interpretation of s. 4 of the
Occupiers Liability Act
.
According to the appellant, in order to establish
liability under s. 4 of the
Act
, the trial judge was obliged to find that it acted
intentionally
with reckless disregard to the
safety of others.

[10]

This submission
finds no support in the wording of the subsection. The relevant provision is s.
4(1), which states:

The duty of care provided for in subsection 3(1) does
not apply in respect of risks willingly assumed by the person who enters on the
premises, but in that case the occupier owes a duty to the person to not create
a danger with the deliberate intent of doing harm or damage to the person or
his or her property and to not act with reckless disregard of the presence of
the person or his or her property. R.S.O. 1990, c.O.2, s.4 (1).

[11]

The suggestion
that the duty of care described in this subsection is contingent on a finding
of a deliberate intent to harm is not consistent with the words of the
subsection read
in their entire context and in their grammatical
and ordinary sense.

Clearly the subsection contemplates a duty of care not to
create a danger with a deliberate intent of causing harm
and
a duty of
care not to act with reckless disregard of the presence of the person or her
property.

[12]

The
interpretation urged upon us by the appellant also finds no support in the
jurisprudence.  For example, in the leading case
Cormack v. Mara (Township)
, [1989] O.J. No. 647, leave to
appeal refused [1989] S.C.C.A. No. 256, at p. 6, this court interpreted the
subsection to create two different duties of care, 
[t]here is no suggestion
in this case that the appellant Township did create a danger with the
deliberate intent of doing harm or damage to the respondent. The issue is
whether in all of the circumstances, the respondent has proven that the appellant
Township did act with reckless disregard of the presence of the respondent
snowmobiler on its property.

[13]

The
court in
Cormack
concluded as follows
regarding the wording of s.4:

I conclude that under the
present wording of s. 4 of the
Occupiers' Liability Act
, the legislature has very significantly limited the
duty of care owed by an occupier of premises to a snowmobiler who is deemed to
accept all the risks of the premises. The phrase "act with reckless
disregard of the presence" of the snowmobiler means doing or omitting to
do something which he or she should recognize as likely to cause damage or
injury to the snowmobiler present on his or her premises, not caring whether
such damage or injury results.

[14]

The trial judge
applied the appropriate test and concluded that, the existence of an
unpainted, unlocked and relatively easily removable bollard which exposes a
housing or saddle above grade that has limited, if any, conspicuity amounts to
reckless disregard to the safety of the persons using the Trail. That was a
finding that was open to the trial judge and is owed deference by this court.
We are not satisfied that the trial judge made any palpable and overriding
error in reaching that conclusion.

(ii)

But For Test

[15]

The appellant
submits that the trial judge failed to apply the but for test in his analysis
of causation and damages. We disagree.

[16]

In terms of causation, the trial
judge stated, the plaintiff must establish that but for the negligence  read
reckless disregard  of the Town, her injuries would not have occurred.  We
note that the appellant conceded that the accident occurred because the
respondents bicycle came into contact with the empty bollard housing. The
trial judge accepted the expert evidence proffered by the respondent that given
the limited conspicuity of the housing she would not have had sufficient time
to avoid the collision had she spotted it. He concluded, this incident
occurred as a result of the Towns reckless disregard to the presence of
cyclists using the Trail. Reading his reasons as a whole, we are not satisfied
that the trial judge failed to apply the but for test with respect to
causation.

[17]

With regard to damages, the trial
judge found that the accident caused the respondent to lose income. He accepted
the evidence that her ability to function in her job was severely compromised
by the injuries she suffered. After she was surplussed, she was unable to
obtain a new position within the Ontario public service and the trial judge
accepted the expert evidence that her cognitive disabilities were so profound
as to render her unable to obtain and maintain competitive employment.  Again,
we are satisfied that the trial judges factual findings were well rooted in
the evidence.

[18]

We note, and the appellant concedes,
that while proof of loss of income before trial must be established on a
balance of probabilities, a plaintiff need only establish a real and
substantial risk of future pecuniary loss as indicated in
Graham v. Rourke
, (1991) 74 D.L.R. (4
th
) 1
at pp. 12-13. See also
Beldycki Estate v. Jaipargas
, 2012 ONCA 537 (CanLII), at paras. 73-75.

(iii)

Contributory Negligence

[19]

The appellant submits the trial judge
erred in finding that there was no contributory negligence given that: the
respondent failed to wear a helmet, she and her riding companion did not report
the missing bollard when they first rode past the Cherry Hill intersection
approximately 30 to 60 minutes before the accident, and the respondent failed
to keep a proper lookout.

[20]

We do not give effect to this
submission. The appellant did not establish a basis for a finding of
contributory negligence because it failed to adduce sufficient evidence to meet
its onus that something that the respondent did or did not do caused or
contributed to the accident or the severity of her injury. For example, the
appellant lead no admissible evidence that the failure of the respondent to
wear a helmet exacerbated her injuries.

(iv)

Lost Income

[21]

The appellant
submits that the Superior Court did not have jurisdiction to award damages for
loss of income to the respondent because she was a unionized employee, subject
to a collective bargaining agreement and her dispute with her employer was
previously dealt with by the appropriate tribunal.

[22]

In support of
this argument, the appellant relies upon s. 48(1) of the
Labour Relations Act
, 1995
, S.O. 1995, c.1, Sched. A., which
provides:

Every collective agreement shall provide for the
final and binding settlement by arbitration, without stoppage of work, of all
differences between the parties arising from the interpretation, application,
administration or alleged violation of the agreement, including any question as
to whether a matter is arbitrable.

[23]

We see no merit
in this argument. The provision concerns disputes as among an employer, a union,
and a unionized employee. There is nothing in the subsection that purports to
limit the rights of a unionized employees to sue a third party tortfeasor for
lost wages.

(v)

Costs

[24]

The appellant
conceded before the trial judge that in light of an offer to settle made by the
respondent, she is entitled to her costs on a partial indemnity basis to May
2016 and on a substantial indemnity basis thereafter.  However, the appellant
seeks leave to appeal the costs award on the ground that the trial judge erred
in law in failing to take into account the reasonable expectations of the
parties and in awarding costs that were neither fair nor reasonable.

[25]

The
test for leave to appeal a costs award is stringent. Leave to appeal will
not be granted, save in obvious cases where the party seeking leave convinces
the court that there are strong grounds upon which the appellate court could
find that the judge erred in exercising her discretion:
Alguire v. The Manufacturers Life
Insurance Company
, 2018 ONCA 202, at para. 36.  In the present case, we see no
basis to grant leave to appeal the costs award.

[26]

We reject that
submission that the trial judge failed to take into account the reasonable
expectations of the parties. To the contrary, he engaged in a detailed
examination of the conduct of this litigation. He concluded that the appellant
employed a scorched earth defence, where no issue was conceded and every
possible legal argument, no matter how tenuous, was advanced. The record amply
supported these findings.

[27]

The appellant is, of course, entitled
to employ whatever litigation strategy it deems fit. However, there are
consequences to such an aggressive strategy. The appellant took a calculated
risk that by engaging in a scorched earth defence it would either force the
respondent to settle her claim or it would ultimately succeed at trial on one
of the many defences it advanced.  That calculation was not borne out at trial.
The respondent must now live with the increased costs expectations that were
the consequence of its strategy. In our view, there is nothing unreasonable or
unfair in the costs awarded by trial judge.

Disposition

[28]

The appeal is
dismissed. Leave to appeal the costs award is denied. The appellant shall pay
the respondent her costs of the appeal on a partial indemnity basis in the
all-inclusive sum of $47,240.

C.W. Hourigan J.A.

G. Pardu J.A.

Grant Huscroft J.A.


