Ontario Court of Appeal Summaries (Feb. 9 to 13, 2015)Winters v. Haldimand (County), 2015 ONCA 98 (CanLII)
[MacFarland, Hourigan and Benotto JJ.A.]
N.R. Jones and J.P. Cavanagh, for the appellants
S. Handler and B. McCall, for the respondents
Keywords: Torts, Personal Injury, Occupier’s Liability, Trees, Standard of Care, Duty to Warn, Costs, Family Law Act Claimants
The plaintiff/appellant fell from a tree and was rendered paraplegic. The tree was located in a park in Cayuga, Ontario.
The appellant submitted that the trial judge erred in three ways: (1) failing to make a finding as to whether the premises were reasonably safe; (2) finding that the monitoring the town had in place was reasonable; and (3) not finding it was obvious that the tree in question was not reasonably safe and that it was inherently unsafe in the absence of appropriate monitoring.
The appellant also sought leave to appeal the trial judge’s costs award and, in particular, the costs award made against the Family Law Act claimants. The trial judge awarded costs against each of the six FLA claimants in the amount of $5,000 for a total of $30,000.
Holding: Appeal dismissed. Leave to appeal the costs award was granted, but the cost appeal was dismissed. Costs of the appeal were agreed in the sum of $15,000 apportioned $500 against each of the five remaining FLA claimants and $12,500 against the appellant, Eric Winters.
The trial judge did not err. He was alive to the three issues as they had been put to him in oral and written argument. The evidence did not disclose any prior complaint or injury with respect to the tree. The evidence was that the tree was healthy and typical of its type. Further, the trial judge concluded that the Town’s monitoring of the park and visits by maintenance personnel were reasonable in all the circumstances. Any danger posed by the tree was an obvious one. There is no duty to warn of such an obvious and self-evident danger nor any duty to monitor beyond what the Township was doing at the time of the accident.
On costs, leave to appeal was granted but the appeal was dismissed. While in some cases there have been no costs awarded against FLA claimants, there is no general rule that that should be so. The awarding of costs is a matter for the discretion of the trial judge. While the awards here seemed somewhat high, to interfere the Court must be satisfied that the trial judge committed an error in principle or was clearly wrong. This case did not rise to that standard.
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