Finding the line

  • March 18, 2024
  • Thomas Russell

A recent decision by the Ontario Court of Appeal in Lyng v. Ontario Place Corporation, 2024 provides useful guidance on the responsibility of occupiers for natural hazards on their premises.1

This case involved an unfortunate accident at Ontario Place almost eight years ago. While leaving a concert hosted by Ontario Place, a young man injured himself on a slippery hill while trying to leave the premises.2 A decision of whether or not Ontario Place was liable to the young man was just released by the Ontario Court of Appeal this month. The decision of the court provides keen insights to the responsibility of entities like Ontario Place while hosting events under the Occupier’s Liability Act, R.S.O. 1990, c.O.2.3

The facts

The day was July 14, 2016. It had recently rained over Ontario place, and the premises were particularly slippery.4 Ontario Place was hosting a concert, which brought a large crowd of concertgoers, and an appreciable amount of alcohol consumption.

When the concert had wrapped up and it was time to direct people out, a considerable number of the concertgoers proceeded to a pedestrian bridge connecting Ontario Place to the nearest train station.5

Within this crowd was the plaintiff, who, like many of the concertgoers, had consumed alcohol.6 Importantly, the plaintiff was also wearing flip flops as footwear.7

However, the pedestrian bridge was closed. Ontario Place had two security guards blocking anyone from entering.8 Right beside the entrance to the bridge was a slippery hill, providing another way forward for these concertgoers.9 The plaintiff then proceeded down the hill, where he fell and sustained a serious knee injury requiring surgery.10

Trial decision

The trial judge found that Ontario Place was liable to the plaintiff under s. 3 of the Occupier’s Liability Act.11]

This decision was based on five findings of fact by the trial judge:12

  1. Ontario place blocked entry into the bridge;
  2. Because of the wet grass, the hill was a hazard;
  3. Ontario Place was aware that the hill was a hazard;
  4. Ontario Place could have warned people about the hill or prevented entry to the hill, but did not;
  5. The plaintiff did not slip. Instead, he jumped on the hill, which caused him to land awkwardly, tearing his ACL.

On these facts, the trial judge found that liability would be apportioned 75% to Ontario Place, and 25% to the plaintiff.13 The trial Judge awarded damages against Ontario place for non-pecuniary general damages, past income loss, and loss of competitive advantage.14

Ontario Place appealed this decision, presenting five arguments to the Ontario court of Appeal.15

Ontario Court of Appeal decision

Theory of liability outside of the pleadings and presentation

In Ontario Place’s first argument, it stated that once the trial judge rejected the plaintiff’s initial statement that he had slipped down the hill, the trial judge had no choice but to dismiss the claim.16

Ontario Place argued that the plaintiff failed to argue another theory of liability for Ontario Place in the plaintiff’s pleadings and presentation.17 However, the Ontario Court of Appeal rejected this argument. The Court found evidence in the pleadings and submissions of the plaintiff to support another theory of liability against Ontario Place.18

The issue of causation

In Ontario Place’s second argument, it alleged that the trial judge failed to properly apply the “but for” test by failing to recognize the “jump” as a ‘break in the chain’ of causation.19 Ontario Place further argued that since the location of the jump was near the bottom of the hill, therefore, this is evidence that the injury would have occurred regardless of the danger posed by the wet hill.20

The Court of Appeal rejected this argument as asking the court to reweigh the evidence to arrive at a different conclusion than the trial judge.21 The Court of Appeal cited Housen v Kilaisen, for the rule that issues of causation are factual findings that should not be interfered with absent a finding of palpable and overriding error on the part of a trial judge.22

The court finds no issue with the finding that Ontario Place’s negligent actions commenced a “train of events” that led to the respondent being at the bottom of a slippery, hazardous hill.23

Occupiers Liability Act

In Ontario Place’s third argument, they put forth that the failure to warn patrons not to wander down the slippery hill should be found outside the scope of “reasonable care” required by s. 3(1) of the Occupier’s Liability Act.24] Ontario Place argued that their failure to warn patrons about the hill is analogous to failing to warn patrons not to climb a tree, or failing to warn their patrons about the ordinary risks of life.25

Alas, the Ontario Court of Appeal endorsed the original decision of the trial judge. The Court of Appeal endorsed the reference to Waldick v. Malcolm, which states: the duty of reasonable care does not change [but] the factors, which are relevant to an assessment of what constitutes reasonable care, will necessarily be very specific to each fact situation.”26

The trial judge took issue with the fact that Ontario Place had blocked the pedestrian bridge and then made no reasonable effort to prevent a crowd, which included intoxicated individuals, from going onto a wet hazardous hill.27

The trial judge acknowledged that s. 3(1) of the Occupiers Liability Act does not require an occupier to prevent patrons from stepping on any wet patch of grass.28 However, in light of the circumstances, the trial judge found two clear breaches: “(1) the failure to erect barriers at the location where people would proceed down the hill in question, and (2) the failure to warn the crowd (i.e., by a sign) to avoid the hill.”29

Author of his own misery

In Ontario Place’s fourth argument, they put forth that once it was accepted that the respondent jumped down a portion of the hill side, in flip-flops, after consuming alcohol, that he must therefore be considered the author of his own misfortune for the injury and have his action dismissed.30

The Ontario Court of Appeal rejects this argument because the “but for” causation test does not require that a defendant’s negligent conduct be the sole cause of injury.31 The “but for” test asks whether the defendant’s negligent conduct was a necessary cause of the injury.32 Since Ontario Place blocked the pedestrian path and failed to prevent or warn patrons from taking the alterative route down the slippery hill, it was therefore open to the trial judge to determine that Ontario Place’s negligent actions were a necessary cause of the injury to the respondent.33

Competitive advantage

In Ontario Place’s fifth and final argument, they argued that the trial judge erred by awarding damages for loss of competitive advantage.34 The Ontario Court of Appeal reviewed that damages for loss of competitive advantage are meant to compensate a plaintiff for a component of the future income loss due to the injury.35

The respondent’s treating orthopaedic surgeon, Dr. Mah, was called in as the only medical expert at trial.36 Dr. Mah testified that a reconstructed ACL will not last a lifetime, and may impede the respondents ability to work in a profession such as plumbing.37 While Ontario Place attempted to argue that since the respondent was no longer working as a plumber, instead engaging in a physically less demanding role, that his work earning potential would no longer be affected by his damaged knee.38

The Court of Appeal did not accept this argument, finding that loss of competitive advantage was warranted where the respondent trained as a plumber, and, furthermore, could still be expected to experience physical limitations in his work life.39

Conclusion and takeaway

Unluckily for Ontario Place, it failed on all five arguments that it brought to the Ontario Court of Appeal.

Luckily for readers, we can take some helpful insights from the Ontario Court of Appeal decision to better understand the responsibilities of occupiers to their patrons.

This decision may prove useful in determining where the line should be drawn when an occupier has natural hazards on its property. On the one hand, cases such as Malcolm v B.C. Transit and Winters v. Haldimand (County), tell us that it is not reasonable to demand an occupier warn their patrons about every wet patch of grass or the dangers of climbing a tree.

On the other hand, this present case tells us that the analysis may change where the occupier has prevented their patrons from safely navigating their premises, bringing them in greater risk of collision with natural hazards on their premises. Going forward, courts may find that the Occupiers Liability Act requires more from occupiers in this situation to ensure that patrons can safely navigate their premises.

Finally, this case provides a clear example of what the “but for” test requires. The Court of Appeal reaffirmed that the “but for” test is an analysis to determine causation that only requires that the negligent act of the defendant be found a necessary ingredient in the circumstances giving rise to the injury.

Thomas Russell is an article student at Stieber Berlach LLP in Toronto.

End Notes

1 Lyng v. Ontario Place Corporation, 2024 ONCA 23 [Lyng].

2 Lyng at para 1 -2.

3 The Act.

4 Lyng at para 2.

5 Ibid.

6 Ibid at para 3.

7 Ibid.

8 Ibid at para 2.

9 Ibid.

10 Ibid.

11 Ibid at para 4.

12 Ibid.

13 Ibid.

14 Ibid at para 6.

15 Ibid at para 8.

16 Ibid at para 10 – 11.

17 Ibid at para 11.

18 Ibid at para 12 – 18.

19 Ibid at para 20 – 21.

20 Ibid at para 22.

21 Ibid at para 23.

22 Ibid.

23 Ibid.

24 Ibid at para 24 – 26.

25 Ibid at para 26. In Winters v. Haldimand (County), 2015 ONCA 98, the Ontario Court of Appeal held that an occupier did not have a duty to warn of the dangers of climbing a tree. In Malcolm v B.C. Transit (1988), 1998 CanLII 3213 (BC CA), 32 B.C.L.R. (2d) 318 (C.A.), the British Columbia Court of Appeal held that an occupier did not have a duty to warn about the risks of wet grass.

26 Lyng at para 27, citing Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 SCR 456.

27 Lyng at para 28.

28 Ibid.

29 Ibid at 29.

30 Ibid at para 31.

31 Ibid at para 33.

32 Ibid at para 33.

33 Ibid.

34 Ibid at para 8.

35 Ibid at para 34.

36 Ibid at para 36.

37 Ibid at para 39.

38 Ibid at para 40.

39 Ibid.