Lyng v. Ontario Place Corporation: Important Developments For Occupier's Liability Risk

In Lyng v. Ontario Place Corporation, the Ontario Court of Appeal upheld a $175,000 award for a slip and fall injury that occurred on Ontario Place's premises. This case is a reminder that occupiers may not be able to avoid liability by pointing to unsafe choices made by those who are on their premises. Contextual factors of each case are important to consider when assessing liability and damages.

FACTS

By way of background, the 21-year-old plaintiff attended a concert at Ontario Place with his friend. While at the concert, the two had been drinking. After the concert, attendees including the plaintiff and his friend exited the main gates and proceeded to a pedestrian bridge. The bridge was closed and security guards prevented attendees from exiting at that location. Along with others, the plaintiff and his friend proceeded down a hill next to the bridge, which had no barricades or warnings limiting access to it. Throughout the day, it had rained heavily and the hill was slippery as a result. The plaintiff went down the hill and slipped as he was approaching the bottom. He jumped and sustained a severe knee injury when he landed and a surgical repair was required.

The plaintiff brought an action against Ontario Place.

TRIAL DECISION

At trial, Justice Skarica determined that Ontario Place was liable for the plaintiff's injuries pursuant to section 3 of the Occupiers Liability Act, which requires occupiers of a premises to "take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises". The trial judge made several findings of fact when rendering his decision, including that:

• It had rained, the grass was wet, and the hill was therefore a hazard;
• Ontario Place blocked entry to the bridge and was aware that the hill was a hazard; and
• Ontario Place could have, but did not, warn people of the risk or place barriers to prevent entry to the hill.

The trial judge rejected Ontario Place's argument that section 4(1) of the Occupiers Liability Act absolved it of liability because the plaintiff willingly assumed the risk of going down the hill. The trial judge also found that the plaintiff was partially at fault, as he jumped and tore his ACL when his left leg landed on the asphalt road at the bottom of the hill, rather than simply slipping down the hill. The plaintiff was therefore contributorily negligent, and a 25% share of liability was apportioned to him.

Ultimately, the plaintiff was awarded damages of $175,000, and included a $100,000 award for loss of competitive advantage on the basis that a further knee surgery in 10-15 years might be required.

ONCA DECISION

Ontario Place appealed the trial judge's decision on various grounds. The ONCA upheld all aspects of the trial decision. Notable takeaways arise from the grounds of appeal related to causation, as well as the damages awarded for loss of competitive advantage.

THE CAUSATION ANALYSIS

The trial judge determined that it was the jump (which immediately preceded the respondent's fall) and not a slip that caused the plaintiff's fall. Ontario Place argued that the jump represented a break in the chain of causation and that it was therefore not open to the trial judge to find Ontario Place liable. In the view of Ontario Place, the plaintiff did not slip and fall, but he made the needless decision to jump which led to him landing awkwardly. Given this jump, Ontario Place argued that he would have had this injury regardless of the wet grass on the hill. In other words he was the "author of his own misfortune".

The ONCA determined that Ontario Place was asking it to reweigh evidence, which was not its function. The panel determined there was no error identified that would warrant appellate intervention. In any event, the ONCA stated that the trial judge found that the plaintiff was contributorily negligent, but it was Ontario Place's negligent acts which set off a "train of events" that placed the plaintiff in danger. These negligent acts could have been prevented by Ontario Place.

Ontario Place went on to argue that pursuant to section 3 of the Occupiers Liability Act, occupiers are not required to take unrealistic or impractical precautions against known risks, nor are they required to protect against every possible danger. In their view, wet grass was not an unusual danger that it needed to guard against.

At trial, the judge specifically found that "[b]y blocking the pedestrian bridge and making no reasonable effort from preventing the crowd, a number who have been drinking alcohol, from going onto that wet hazardous hill, Ontario Place failed in its duty to take care that persons were reasonably safe while on its premises". The trial judge pinpointed what he viewed as Ontario Place's negligent decision to not place "barriers to prevent people from going down [the] slippery hill". He concluded that it would have been a "simple matter to warn people to avoid that hill as it was a slip and fall hazard after a heavy rain".

According to the ONCA, the trial judge did what section 3 of the Occupiers Liability Act directed him to do. He carefully considered what would have been reasonable in the circumstances, and found two breaches:

• the failure to erect barriers at the location where people would proceed down the hill in question; and
• the failure to warn the crowd to avoid the hill.

Finally, Ontario Place also argued that the plaintiff's action should have been dismissed, because the plaintiff jumped down the hill after consuming alcohol. According to the ONCA, Ontario Place was essentially arguing that because the plaintiff was contributory negligent, the action should be dismissed. This argument was rejected by the ONCA, as causation only requires that a defendant's negligent conduct be a necessary cause of the injury, not the sole cause.

DAMAGES FOR A LOSS OF COMPETITIVE ADVANTAGE

The trial judge awarded the plaintiff $100,000 for the loss of competitive advantage. Ontario Place argued that this award was based on speculation and should be set aside. At the outset, the ONCA stated that the standard for an appellate court to interfere with a damages award is onerous (i.e., it requires an error of principle or law, or palpably incorrect or erroneous assessment of damages).

Although the ONCA acknowledged that the expert evidence from the plaintiff's treating orthopaedic surgeon was "superficially inconsistent", all that was necessary to award damages for loss of competitive advantage was a real and substantial chance of future income loss. This finding was available to the trial judge and entitled to deference.

In awarding damages for loss of competitive advantage, the ONCA commented that the trial judge understood that he was dealing in probabilities and not certainties. While the outcome (of requiring a further surgery) was a possibility and not a certainty, it did not render the trial judge's conclusion speculative.

The evidence was weighed and the reasonable conclusion was that there is a real risk the respondent would experience future complications and need a further surgery, which would impact his ability to earn an income and/or return to physically demanding work as a plumber.

This decision is a reminder of important factors to consider when assessing liability and damages in the face of complicated facts. From a risk mitigation perspective, it is a reminder to consider what steps can be taken when a temporary hazard is identified.