Unforeseeable Accidents: A current decision on occupiers' liability out of Ontario
By Jeffrey Daniels
Reynolds Mirth Richards Farmer LLP
AMSC Casual Legal Service Provider
In Onley v Town of Whitby, 2020 ONSC, the plaintiff brought an action against the Town of Whitby seeking damages for serious and permanent injuries resulting from an electric shock that occurred on a soccer field that was part of a large Sports Centre owned and operated by the Town. The Plaintiff was sitting near a light pole during half-time of a night soccer game when she felt a shock. Shortly after returning to the game, the Plaintiff collapsed on the field. An ambulance was called and the plaintiff was transported for emergency medical assistance.
Expert evidence established that there was internal damage to the light pole which resulted in a leakage of current. The Ontario Superior Court concluded that the most probable cause of the damage was a lighting strike occurring some time during the summer when incident occurred. There was no visible damage to the pole or surrounding grass, no record of complaints, and no previous reports of shocks. The Town had an established practice whereby the Electrical Safety Authority for the Province of Ontario conducted comprehensive annual inspections of the lights at the Sports Centre; the most recent inspection occurred approximately 40 days before the incident and no deficiencies were noted.
The Plaintiff alleged that the Town did not take reasonable steps to inspect and maintain the lights on the field and failed to comply with the provisions of the Occupiers Liability Act (Ontario) (OLA). Section 3(1) of the OLA imposes a duty on occupiers (owners) to take such care as reasonable in the circumstances to see that persons are reasonably safe while on the premises. Section 5 of Alberta’s Occupiers’ Liability Act contains similar language.
The test applicable to section 3(1) of the OLA was established by the Supreme Court of Canada in Ryan v Victoria (City), which requires an assessment of: (i) the likelihood of a known or foreseeable harm, (ii) the gravity of that harm, (iii) the burden or cost which would be incurred to prevent the injury, and (iv) external factors such as custom, industry practice, and regulatory standards.
The Court concluded that the light installations compiled with Electrical Code and was satisfied that the Town took the necessary reasonable steps in relation to any foreseeable electrical mishaps. While it was foreseeable that one of the light poles at the Sports Centre might occasionally be struck by lighting and be damaged, the nature and type of damage was such that it was not reasonably foreseeable to the Town. Accordingly, the Town was not liable for the Plaintiff’s injuries.
This case is a good reminder that something that is possible does not mean it is reasonably foreseeable, and there are circumstances where accidents do not result in liability.
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DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.