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Torts - Negligence - Foreseeability

. Kim v. Ottawa (City of)

In Kim v. Ottawa (City of) (Div Court, 2022) the Divisional Court considered foreseeability in the context of a negligence claim:
Foreseeability of intentional acts of third parties

[31] The damages claimed by Ms. Kim were caused directly by the conduct of third parties: the patron in the case of Ms. Kim’s loss of enjoyment, and the unidentified person in relation to the damage to the vehicle. The deputy judge found that it was reasonably foreseeable that the patron would continue to exhibit intimidating behaviour towards Ms. Kim[6], that the City “waited too long to take appropriate measures to address the intimidation so it continued to escalate,”[7] and that the damage to the car was reasonably foreseeable.[8]

[32] Foreseeability of the possibility of resultant harm is inadequate to establish a duty of care. As the Court of Appeal stated in Garratt v. Orillia Power Distribution Corporation[9] at para. 48: “[w]e do not expect omniscience, prescience or clairvoyance, or impose a duty of care on all who fall short of any such standard. Foreseeability of the probability of resultant harm involves the likelihood that such harm will result from the alleged wrongdoer’s conduct.”

[33] In Garratt, the Court of Appeal allowed the appeal from the trial judge’s decision holding the defendant liable for damages caused by a vandal tampering with the defendant’s equipment: although it was reasonably foreseeable that a careless act by the defendant in its work on the overpass above the highway could result in injury to highway users, there was no evidence capable of sustaining a finding that the acts of the vandal which directly caused the plaintiff’s damages were a reasonably foreseeable result of the defendant’s conduct in securing the ropes.

[34] The Court of Appeal in Garratt relied on the following passage from the House of Lords’ decision in Smith v. Littlewoods Organisation Ltd.[10] in which Lord Mackay described the duty of care towards a person injured by the conduct of a third party:
[W]here the only possible source of the type of damage or injury which is in question is agency of a human being for whom the person against whom the claim is made has no responsibility, it may not be easy to find that as a reasonable person he was bound to anticipate that type of damage as a consequence of his act or omission. The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probable and in many circumstances the only way in which a judge could properly be persuaded to come to the conclusion that the result was not only possible but reasonably foreseeable as probable would be to convince him that, in the circumstances, it was highly likely. In this type of case a finding that the reasonable man should have anticipated the consequence of human action as just probable may not be a very frequent option. Unless the judge can be satisfied that the result of the human action is highly probable or very likely he may have to conclude that all that the reasonable man could say was that it was a mere possibility. Unless the needle that measures the probability of a particular result flowing from the conduct of a human agent is near the top of the scale it may be hard to conclude that it has risen sufficiently from the bottom to create the duty reasonably to foresee it.

... what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such agency plays no part, is the probable consequences of his own act or omission, but that, in such a case, a clear basis will be required on which to assert that the injury or damage is more than a mere possibility.[11]
[35] The deputy judge’s finding that the patron displayed an escalating pattern of intimidation was not supported on the evidence. The first incident between the patron and Ms. Kim was the verbal altercation on March 18, 2017. The evidence at trial was that the patron apologized to City staff and promised that her behaviour would not happen again. The City had no knowledge of any further incidents until June 1, 2017 – three months later – when Ms. Kim’s spouse emailed City staff. On June 7, 2017, immediately after City staff met with Ms. Kim to discuss her complaint of the patron’s “passive-aggressive” behaviour, there was a second verbal outburst by the patron. Within hours of that incident, City staff prohibited the patron from using the pool frequented by Ms. Kim.

[36] With respect, two incidents, separated by three months, do not evidence a “pattern” of conduct. Both incidents were addressed promptly by the City, although in the case of the first, not in the manner preferred by Ms. Kim and her spouse.

[37] In Coleiro v. Premier Fitness Clubs,[12] Lauwers J., as he then was, dismissed a claim against the defendant arising from one patron’s assault on another. Lauwers J. found that the defendant owed no duty of care based on negligence law or under the Occupiers’ Liability Act, because the possibility of assault by one patron on another was not reasonably foreseeable, nor was the risk a “customary or obvious risk”, and there was no causal link between the alleged negligence of the defendant and the injury.

[38] In Da Silva v. Gomes,[13] the Court of Appeal dismissed the plaintiffs’ appeal from the motion judge’s dismissal of the action. The motion judge found that two prior verbal outbursts with referees were not “predictive or demonstrative of the type of violent behaviour demonstrated by Gomes when he assaulted Da Silva ... [and] not the type of behaviour that should have led Leal, acting as a reasonable coach, to conclude that there was a risk regarding Gomes’ behaviour.”[14]

[39] The deputy judge erred in law in her approach to foreseeability by failing to consider whether there was a “clear basis” in the evidence to find that the patron’s outbursts towards Ms. Kim were a probable outcome of the City’s acts or omissions. In finding that it was reasonably foreseeable that the patron would “continue to exhibit” intimidating behaviour towards Ms. Kim, the deputy judge found that the City waited “too long to take appropriate measures to address the intimidation so it continued to escalate.” Neither finding – that the City “waited too long” and that the behaviour “continued to escalate” – was available to the deputy judge on the evidence adduced at trial, resulting in a palpable and overriding error.


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