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LIABILITIES OF MUNICIPALITY - Occupiers’ liability - Duty of care 

Thursday, November 05, 2020 @ 6:15 AM  

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Appeal by the defendant, the City of Toronto, from a trial judgment finding it liable to the plaintiff, Becker, under the Occupiers’ Liability Act. In 2009, the plaintiff, age 14, was injured at a City-operated community centre. An individual using the telephone in a staff office punched a glass door. The glass shattered and struck the plaintiff. She required multiple surgeries on her left eye and was left legally blind in that eye. The City was found liable as an occupier on the basis that the door was not made of the tempered safety glass required under the Ontario Building Code. The plaintiff was awarded damages at an agreed-upon sum of $500,000. The City appealed on the basis that the trial judge erred in finding that the absence of tempered safety glass was sufficient to ground a breach of its duty of care as an occupier in the absence of analysis of whether reasonable efforts were undertaken to have the required glass installed.

HELD: Appeal dismissed. At trial, the parties framed the issue of liability as turning upon whether the City met the minimum standards under the Ontario Building Code. Nothing in the record indicated that the City raised the issue of whether reasonable efforts were undertaken to comply with the Code. The trial judge correctly characterized the issues the parties put forward. 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 failure to follow a statutory standard could be evidence of a failure to take reasonable care, the parties’ characterization of the issue did not depart from the reasonable care standard under the Act. A legally inapplicable strict liability approach, imposing liability without consideration of whether the City failed to take reasonable care, was not used. 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. There were strong reasons, rooted in policy and trial fairness, to hold the City to the characterization of issues and the theories asserted at trial.

Becker v. Toronto (City), [2020] O.J. No. 4114, Ontario Court of Appeal, D. Watt, G.T. Trotter and B. Zarnett JJ.A., September 28, 2020. Digest No. TLD-November22020007