The Supreme Court of recently denied leave to appeal from the Ontario Court of Appeal’s decision in Zoe Onley, et al. v. Corporation of the Town of Whitby, Canada thus affirming that the standard of care analysis applicable to cases alleging liability pursuant to the Occupier’s Liability Act cases continues to be that set out in Ryan v Victoria (City). However, questions remain regarding the trial judge’s analysis of foreseeability.
In Zoe Onley, the plaintiff was electrocuted and injured near a light pole in an outdoor recreational facility owned by the Town of Whitby (the “Town”). The light pole was internally damaged by a lightning strike, which caused electricity to leak into the ground where Ms. Onley sat. Ms. Onley and her parents commenced an action in damages against the Town, arguing that it failed to take reasonable steps to inspect and maintain its park lights, and that the Town breached its duty of care under section 3(1) of the Occupiers’ Liability Act (“OLA”). The plaintiffs’ claim was dismissed at trial and their appeal was also dismissed.
A. Origin and Cause
Ms. Onley and the Town both proffered expert evidence that the probable cause of the internal light pole damage was a high-current event, such as a lightning strike. However, at trial Ms. Onley’s expert advanced an alternative and unsupported theory that the damage occurred due to internal degradation of electrical components, which occurred due to a lack of effective maintenance and inspection by the Town. The trial judge ultimately accepted that a lightning strike which occurred after the spring of 2012 caused the damage. The judge found that the lightning strike occurred before the Electrical Safety Authority (ESA) inspector visit in July 2012, but that the damage was undetected at that inspection. The ESA inspection was completed approximately 40 days before the shock incident
B. Occupier’s Liability Act and the standard of care
Occupier’s have an affirmative duty to make a premise reasonably safe for persons entering by taking reasonable care to protect such persons from foreseeable harm. The law of negligence seeks to prevent only those acts that produce an unreasonable risk of harm. Accordingly, the duty of a municipality as occupier is not absolute. Occupiers are not insurers liable for all damages suffered by persons entering their premises. The Town’s standard of care was governed by s. 3(1) of the Occupiers’ Liability Act (“OLA”), and its responsibility was only to take "such care as in all the circumstances of the case is reasonable".
In determining whether the Town met the requisite standard of care, the trial judge applied the test set out in Ryan v Victoria (City), wherein the Supreme Court of Canada stated that:
The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
I. Was the internal damage to the pole and the resulting harm to Ms. Onley a known or reasonably foreseeable harm?
The Town of Whitby submitted that the nature of the damage to the wires inside the light pole and the resulting shock from the damaged wires was unique, unusual, and beyond its reasonable contemplation. Ms. Onley argued that the harm was reasonably foreseeable in the circumstances and that the Town failed to implement reasonable inspection and maintenance protocols.
In determining the foreseeability of the harm, the trial judge was guided by Rankin (Rankin’s Garage & Sales), a recent Supreme Court of Canada decision which clarified the application of foreseeability in occupiers’ liability cases. In Rankin, the majority held that an auto garage was not liable after one of its vehicles that had been left unlocked on its premises with the keys inside, was stolen by a teenager whose inexperience in driving contributed to a catastrophic accident. In Rankin, the majority reiterated that foreseeability operates as the “fundamental moral glue of tort”, shaping the legal obligations we owe to one another, and defining the boundaries of liability. As stated:
The fact that something is possible does not mean that it is reasonably foreseeable. Obviously, any harm that has occurred was by definition possible. Thus, for harm to be reasonably foreseeable, a higher threshold than mere possibility must be met. [Emphasis in original]
In Zoe Onley, the trial judge found that since it was not unusual for lightning to strike a light pole, the risk of lightning striking a light pole and causing it to malfunction was foreseeable. However, it was not reasonably foreseeable that a lightning strike would cause the type of unique damage that resulted in the injury to Ms. Onley. The type of damage was unique as it:
a) was restricted to the internal wiring of the pole;
b) was not visible and undetectable absent an interior inspection;
c) did not affect the normal functioning of the lights or cause the circuit breakers to trip;
d) resulted in potentially hazardous current leaking onto the ground in the vicinity of the light pole.
The uniqueness of the type of damage was highlighted by the fact that there was no evidence that electrical current leakage was a common problem in recreational facilities and there was no evidence that anyone had ever been shocked because of electric current leaking into the ground from a light pole at a recreational facility. There was no record of complaints of shocks or tingling felt by other users of the facility before the incident, although the area around the light pole was used daily. Although it was possible that a lightning strike could cause the unique type of damage, the trial judge held that it was not reasonably foreseeable and could not have been within the reasonable contemplation of the Town.
II. Were the Town of Whitby’s inspections and preventive measures adequate?
The Town submitted that it followed recommended inspection and maintenance protocols, which provided a reasonable degree of safety to users of the facility and prevented reasonably foreseeable injuries. The evidence demonstrated that the Town complied with the terms of its agreement with the ESA for comprehensive annual inspections of its park lights. An ESA annual inspection was completed approximately 40 days before the shock incident and no electrical issues were identified at the inspection.
Ms. Onley argued that the Town failed to implement or conduct reasonable inspections of the light poles. At trial she proposed numerous practices, beyond those safety requirements that the Town had in place, that she claimed would have prevented the electrocution. These proposals included the introduction of a stray voltage detection program (which could include pen testers to detect live current), the installation of lightning rods on its light poles, and regular inspections of light pole hand-holes.
Ultimately, the trial judge found that the Town, as occupier, met the standard of care pursuant to OLA and took reasonable steps to ensure the safety of the users of the facility. The trial judge also found that the absence of the practices proposed by Ms. Onley did not constitute a breach of the Town’s duty, as the Town’s park light installations complied with the Electrical Code and the facility implemented additional inspection and maintenance policies that mandated the reporting of any visible defects or malfunctions. No malfunctions, defects, or complaints were reported prior to the shock incident.
Finally, the trial judge concluded that the nature and type of damage was such that it was not reasonably foreseeable by the Town and, in the circumstances of this case, the Town took the necessary reasonable steps in relation to any foreseeable electrical mishaps. The Town was therefore not liable for the injuries sustained by Ms. Onley and the action was dismissed.
The Court of Appeal
Ms. Onley appealed from the trial decision. The heart of Ms. Onley’s appeal rested on the submissions that:
a) the trial judge erred in concluding that the lightning strike that caused the damage had most likely occurred sometime after the spring of 2012;
b) the trial judge erred in law in allowing the Town’s expert to opine at trial on the efficacy of the pen testing device as a strategy that should have been employed to prevent such injuries; and
c) the trial judge erred in rejecting pen testing as a reasonable measure that should have been employed by the Town that would have prevented the incident.
The Ontario Court of Appeal affirmed that the Occupier’s Liability Act imposes an affirmative duty on all occupiers to “take such care as in all the circumstances of the case is reasonable” to see that persons entering on the premises are reasonably safe while on the premises. The standard is not perfection and what constitutes reasonable care depends on the facts of each case.
First, the Court of Appeal found that there was no reversible error with respect to the date of the lightning strike, a conclusion that was reached after a careful consideration of the evidence clearly outlined by the trial judge in his reasons. Second, the trial judge did not err in allowing the Town’s expert to opine on evidence at trial that was not within his written report. The trial judge properly exercised his discretion in admitting the Town’s expert evidence as the subject of the evidence, the efficacy of the pen testers, was raised by Ms. Onley’s expert. Further, there was no prejudice to Ms. Onley, as the opportunity to cross examine the Town’s expert and produce reply evidence was given. Accordingly, there was no basis for interfering in the trial judge rejecting that the proposed pen testers were a reasonable measure that should have been employed by the Town.
Ms. Onley also argued that the trial judge erred in his analysis of the foreseeability of the specific nature of the damage. The Court of Appeal did not address the trial judge’s foreseeability analysis. It simply held that “we are of the view that he correctly conducted and applied the standard of care analysis.” The Court of Appeal cryptically concluded that their endorsement of the trial judge’s standard of care analysis was not to be taken as “agreement with the foreseeability analysis.” The Court of Appeal unanimously dismissed the appeal.
The Supreme Court of Canada
In a decision released on August 12, 2021, the Supreme Court of Canada dismissed Ms. Onley’s application for leave to appeal from the judgment of the Court of Appeal for Ontario. This decision reaffirms that the correct standard of care analysis for occupier’s liability cases continues to flow from Ryan v Victoria (City).
Regarding foreseeability, it remains unclear whether the court agreed with the trial judge’s analysis or the Court of Appeal’s inference that it did not agree. The trial judge’s finding was that the type of damage was not foreseeable in this case. However, this referred to the damage caused by the lightening to the light pole, which subsequently caused the injury to the plaintiff. It’s not clear whether this is consistent with the analysis in Rankin, which held that the “type of damage” that was not foreseeable based on the facts of that case was personal injury, not necessarily the precise manner in which personal injury occurred. Having said that, the analytical approach that would narrow the foreseeability analysis would seem to be consistent with the Court’s approach generally, given the emphasized importance of framing the reasonable foreseeability inquiry with “sufficient analytical rigour” to connect the defendant’s failure to take care to the type of harm suffered.
 Onley v. Town of Whitby, 2020 ONSC 20 at para 11.
 Onley v. Town of Whitby, 2020 ONSC 20 at para 11 [Onley v. Town of Whitby], citing Waldick v. Malcolm, 1991 CanLII 71 (SCC),  2 SCR 456.
 Occupiers’ Liability Act, R.S.O. 1990, c. O.2 s. 3(1).
 Onley v. Town of Whitby at para 11, citing Ryan v Victoria (City), 1999 CanLII 706 (SCC),  1 SCR 201 at para. 28.
 Ibid. at para 75.
 Ibid. at para 77.
 Ibid. at para 79.
 Ibid., citing Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 (CanLII),  1 SCR 587 [Rankin] at para 22.
 Onley v. Town of Whitby at para 86.
 Ibid. at para 81.
 Ibid. at para 84.
 Ibid. at para 85.
 Ibid. at para 76.
 Ibid. at para 58.
 Onley v. Whitby (Town), 2020 ONCA 774 [Onley v. Whitby (Town)] at para 6.
 Ibid. at para 159.
 Ibid. at para 105-106.
 Onley v. Town of Whitby at para 161.
 Onley v. Whitby (Town) at para 9.
 Ibid. at para 10 citing Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, 2020 ONCA 774 (CanLII) at para. 42, and citing Tondat v. Hudson’s Bay Company, 2018 ONCA 302, at para. 5
 Ibid. at para 16.
 Ibid. at para 15.
 Ibid. at para 16.
 Ibid. at para 17.
 Ibid. at para 18.
 Zoe Onley, et al. v. Corporation of the Town of Whitby, 2021 CanLII 72651 (SCC).
 Rankin at para 25.