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LIABILITIES OF MUNICIPALITY - Occupiers’ liability - Duty of care - Safety

Thursday, January 28, 2021 @ 6:17 AM  

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Appeal by the plaintiffs from the dismissal of their action for damages arising from Onley’s electrocution. In 2012, the then 18-year-old Onley was electrocuted near a light pole beside a soccer field owned by the respondent Town. She collapsed and was treated in hospital. The damage to the light pole was caused by a lightning strike, which damaged wires inside the light pole causing electricity to leak into the ground. The resulting stray current caused Onley’s electrocution. The respondent had a safety agreement with the Electrical Safety Authority that provided for annual inspections. The respondent’s expert testified at trial that pen testing would not be an effective or practical strategy to determine the presence of stray current because it did not differentiate between whether the electric field was from normal wires powering lights or from electric current leaking from those wires. The trial judge found the respondent had met its standard of care.

HELD: Appeal dismissed. The trial judge’s conclusion the lightning strike that caused the damage had most likely occurred sometime after the spring of 2012 was well grounded in the record. He did not err in law in allowing the respondent’s expert to opine on the efficacy of pen testing as a strategy the respondent should have employed to prevent injuries such as those sustained by Onley. He did not err in rejecting pen testing as a reasonable measure. The trial judge correctly conducted and applied the standard of care analysis.

Onley v. Whitby (Town), [2020] O.J. No. 5343, Ontario Court of Appeal, D.H. Doherty, L.B. Roberts and A.L. Harvison Young JJ.A., December 8, 2020. Digest No. TLD-January252021008