



COURT OF APPEAL FOR ONTARIO

CITATION: Onley v. Whitby (Town), 2020 ONCA
    774

DATE: 20201208

DOCKET: C67993

Doherty, Roberts and Harvison
    Young JJ.A.

BETWEEN

Zoe Onley, Sallie Onley, and Richard
    Onley

Plaintiffs (Appellants)

and

Corporation of the
    Town of Whitby
, Whitby Iroquois Soccer Club Inc.,
Whitby Hydro Electric Corporation and Electrical Safety Authority

Defendants (
Respondent
)

David A.
    Morin and Peter M. Reinitzer, for the appellants

Charles M.K.
    Loopstra and Paul E.F. Martin, for the respondent

Heard:
    November 23, 2020 by video conference

On appeal
    from the judgment of Justice Edward J. Koke of the Superior Court of Justice,
    dated January 2, 2020, and from the costs order, dated May 5, 2020, with
    reasons reported at 2020 ONSC 20 and 2020 ONSC 2795.

REASONS FOR
    DECISION

[1]

The appellant, Zoe Onley, was electrocuted near a light pole beside a
    soccer field owned by the respondent, the Town of Whitby. Ms. Onley was 18
    years old at the time of the incident on August 15, 2012. She had been sitting
    on the grass after playing and turned to get up by placing her hands on the
    grass, when the current went through her. She returned to the field after the
    incident but later collapsed and was treated in hospital. She, along with her
    parents, sued the respondent for damages arising from her electrocution. They
    appeal the trial judges dismissal of their action.

[2]

Following the appellants submissions, we dismissed the appeal with
    reasons to follow. These are those reasons.

Background

[3]

The damage to the light pole had been caused by a lightning strike which
    damaged the wires inside the
light pole causing electricity to
    leak into the ground.
The resulting stray current caused the
    electrocution of the appellant. On appeal, although the parties agreed that
    lightning caused the damage, they did not agree when the lightning strike
    occurred.

[4]

The appellants sued under the
Occupiers
    Liability Act
, R.S.O. 1990, c. O.2. (the 
OLA
).
    The trial judge found that while the possibility of the lightning strike was
    foreseeable, the precise nature of this sort of injury being caused by damage
    to the interior wires of the pole, without any outward sign of damage, was not.
    He went on to consider whether the respondent had met its 
duty
    to take such care as in all the circumstances is reasonable to see that persons
    entering the premisesare reasonably safe while on the premises:
OLA
,
    s. 3(1).

[5]

The main issue at trial was liability and
    specifically whether the respondent had met its standard of care. The trial
    judge found that it had. In assessing the standard of care, the trial judge considered
    the fact that the respondent had a safety agreement with the Electrical Safety
    Authority (the ESA). This agreement provided for annual inspections performed
    by the ESA as well as advice on compliance with the
Electrical Safety Code
,
    O. Reg. 164/99.

[6]

The appellants proposed numerous practices,
    beyond those safety requirements that the respondent had in place which
    exceeded the statutory minimum, that they claimed would have prevented the
    appellants electrocution. These proposals included the introduction of a stray
    voltage detection program (which could include the use of inexpensive pen
    testers to detect live current), the installation of lightning rods on its
    light poles, and regular inspections of light pole handholes.

[7]

In addition, the appellants argued that the respondent
    did not comply with certain safety requirements and was in violation of its
    agreement with the ESA.

[8]

The trial judge rejected all these arguments. He
    rejected the alternative approaches, largely because the stray voltage leakage
    in this case was extremely unusual, there was no cost-effective or reliable way
    to detect stray voltage, and the timing of the lightning strike (after the
    spring of 2012) meant that some of the alternatives would not have prevented
    the appellants electrocution. In addition, he rejected the arguments that the respondent
    was not in compliance with its security agreement and found that, even if it
    was not in compliance, such compliance would not have prevented Ms. Onleys
    electrocution.

The Issues on Appeal

[9]

The heart of the appellants arguments on appeal
    rest on the following submissions that:

·

The trial judge erred in concluding that the
    lightning strike that caused the damage had most likely occurred sometime after
    the spring of 2012;

·

The trial judge erred in law in allowing the respondents
    expert to opine at trial on the efficacy of the pen testing device as a
    strategy that the City should have employed to prevent such injuries; and

·

The trial judge erred in rejecting pen testing
    as a reasonable measure that should have been employed by the respondent that
    would have prevented the incident.

Occupiers duty of care

[10]

The
OLA
imposes an affirmative duty on
    all occupiers 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: s. 3(1).
It does not require a standard of
    perfection:
Drummond v. Cadillac Fairview Corporation Limited
, 2019
    ONCA 447, at para. 42. What constitutes reasonable care depends on the facts of
    each case:
Tondat v. Hudsons Bay Company
, 2018 ONCA 302, at para. 5.

The timing of
    the lightning strike

[11]

First, we do not agree that the trial judge
    erred in concluding that the damage had most likely occurred during a
    thunderstorm after spring 2012. He reached this conclusion after careful
    consideration of the evidence before him on this issue. He gave clear reasons
    for so concluding. This was a finding of fact which was well grounded in the
    record and we see no basis for interfering with it.

[12]

The implication of this finding of fact is that
    the lightning strike and the consequent damage to the light pole took place no
    more than a few months before the incident that injured the appellant. Given
    this timing, and as the appellants conceded during argument, the only measure
    advanced by the appellant which could have addressed this and prevented the
    injury to Zoe Onley was the use of pen testing devices to detect stray voltage
    in and around the 63 light poles in the park.

The admission of Mr. Learmonths evidence on
    the pen testers

[13]

Second, we see no error on the part of the trial
    judge in admitting the respondents expert Mr. Learmonths evidence that the
    pen testers would not have been an effective way of detecting stray current
    from lighting poles. This evidence was given in response to the evidence of the
    appellants expert Mr. Gillingham suggesting that a simple inexpensive pen
    tester could be used to determine the presence of stray current on or around the
    light poles, which would be a relatively inexpensive and simple solution. By
    touching a pole and the surrounding area on a regular basis, he testified, an
    occupier could prevent injuries from stray current. The appellants objected but
    the trial judge permitted Mr. Learmonth to opine on the issue.

[14]

The respondents expert, Mr. Learmonth, did not
    agree with Mr. Gillingham that pen testing would be effective or practical for
    use on a soccer pitch where the energized wires ran underground and inside
    poles because it does not differentiate between whether the electric field is
    from the normal wires powering the lights, or from electric current leaking
    from those wires.

[15]

The appellants submit that the trial judge erred
    in admitting Mr. Learmonths evidence on this issue because it was not
    contained in his expert report. We disagree. The trial judge properly exercised
    his discretion on this issue. As the issue of the possible use of pen testers
    was raised by Mr. Gillingham, it cannot have been surprising to the appellants
    that the respondent sought a response from Mr. Learmonth on the point during
    his examination in chief. In addition, we see no prejudice to the appellants in
    the circumstances. The appellants had the opportunity to cross-examine Mr.
    Learmonth and, in a later ruling about the admissibility of Mr. Learmonths
    evidence, the trial judge indicated that notwithstanding that the appellants
    had closed their case, he would be willing to adjourn in order to permit the
    appellants to prepare reply evidence. They did not make such a request.

The trial judges conclusion on the pen
    tester evidence

[16]

In light of our conclusions that the trial judge
    did not commit any reversible errors in either finding that the probable date
    of the lightning strike occurred after the spring of 2012, or in permitting Mr.
    Learmonth to respond to Mr. Gillinghams evidence with respect to the efficacy
    of pen testers, we find no basis for interfering with his preference for Mr.
    Learmonths evidence on the point. It was open to him on the record before him
    to do so. He considered both experts evidence and gave detailed reasons for
    preferring that of Mr. Learmonth on the issue.

Other grounds of appeal

[17]

The appellants also submit that the trial judge
    erred in his analysis of the foreseeability of the specific nature of the
    damage. We do not find it necessary to address the trial judges foreseeability
    analysis because we are of the view that he correctly conducted and applied the
    standard of care analysis. However, that is not to be taken as agreement with
    the foreseeability analysis.

[18]

Similarly, although we do not find it necessary
    to address the appellants submissions on damages for loss of future earning
    capacity, this is not to be taken as the courts agreement with the trial
    judges approach to this issue.

Costs

[19]

Leave to appeal the costs order is granted. The
    appeal as to costs is dismissed. The costs ordered by the trial judge were fair
    and reasonable.

Disposition

[20]

The appeal is dismissed. The respondent is
    entitled to its partial indemnity costs, if demanded, in the amount of $25,000,
    inclusive of disbursements and tax.

Doherty
    J.A.

L.B.
    Roberts J.A.


A. Harvison Young J.A.


