November 30, 2020
A failure to meet Building Code standards may result in a municipality being responsible for damages suffered by a user of municipally occupied facilities. Trying to introduce a new theory on appeal does not help.
A municipality may be an occupier of property under the terms of the Occupiers’ Liability Act and thus owe a duty to users of the premises to maintain their property in a condition such that persons are reasonably safe when entering the premises.
The recent Ontario Court of Appeal decision in Becker v. Toronto(City) considered the meaning of “reasonably safe” in the context of an injury when a user of a community centre was injured when another user of the facility punched a glass window that allegedly was not made of safety glass as required by the Building Code. A shard of glass fell into her eye, causing blindness.
The appeal came down to the single issue of whether or not the trial judge, by applying the Building Code standard to find that the glass was unsafe had imposed too strict a test on the city, going past the limits of what was reasonable.
Unfortunately, none of the glass was preserved after the accident, so testing could not be performed. As a side note, this illustrates the importance of the preservation of evidence.
There was evidence as to the specifications at the time of construction in 1995, which were ambiguous, as well as expert evidence about the likely type of glass used based upon the behaviour of the glass and the sound heard when it broke. As often happens, the hired experts disagreed, with the injured party’s expert concluding that it was not likely to have been safety glass, and the city’s expert testifying that in their opinion, it was safety glass.
The trial judge concluded, based on a thorough review of all the evidence, particularly the manner in which the glass shattered, that it likely was not safety glass. She did not accept the evidence of the City’s expert because she did not accept his factual assumptions. She also found that he tended towards advocacy, while the Plaintiff’s expert was practical and straight-forward. She relied heavily on the observations of an independent witness as to how the glass shattered.
There was a suggestion that the City attempted to have safety glass installed. There was no expert evidence as to whether those efforts met the standard of reasonableness. The city did not raise that issue at trial. When they tried to argue that on appeal, the court limited them to the issue at trial- whether or not safety glass was used. They relied upon a well-established rule that procedural fairness means that a trial judge errs, not by failing to decide issues that were not raised, but, on the contrary, by deciding a case on a basis not advanced by the parties.
The Court of Appeal agreed that the Occupiers’ Liability Act does not impose a standard of strict liability, but determined that the trial judge was correct in using the Building Code standard to determine what was reasonable.
This case has several lessons to take away:
- failure to comply with the Building Code may in itself result in liability for injuries
- failure to preserve evidence can lead to unfortunate results
- expert witnesses who act like advocates are not effective
- where experts conflict, they often cancel each other out, making independent evidence the most important
- strategic choices as to how a party pleads and argues their case have consequences
- a trial judge is not required to consider the issue from a perspective other than the way it is put to them by the parties
- on appeal, it is too late to advance a theory not argued at trial
Although this case was decided in a municipal context, these lessons could apply to any occupiers’ liability situation. All but the first point could apply in any sort of lawsuit, not just personal injury cases.