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Fridays With Rogers Partners

At our weekly firm meeting, Athina Ionita discussed the Court of Appeal’s decision in Becker v. Toronto (City), 2020 ONCA 607. This appeal addresses how framing the issues at trial influences what issues may be appealed. Further, this decision makes it clear that if counsel believes an issue is relevant to deciding a matter, then that issue needs to be brought to light at trial.

The plaintiff, Ms. Becker, was at a city-operated community centre when someone nearby either tripped or punched the glass part of an office door, shattering the glass of the door. The glass flew into one of Ms. Becker’s eyes on impact, ultimately requiring she have numerous surgeries and resulting in blindness in that eye. She sued the City under the Occupiers’ Liability Act as a result of the accident.

At trial, the matter turned on whether the shattered glass door was in fact made out of safety glass. The City argued that the door was made of tempered safety glass, as required by the Building Code, whereas counsel for Ms. Becker argued that the door was made from regular annealed glass. The trial judge sided with Ms. Becker, finding that the door was made of ordinary glass.

At trial, the judge concluded that the City breached its duty of care it owed as an occupier of the community centre because the glass was not safety glass as required by the Ontario Building Code (1990). The trial judge also found that Ms. Becker’s injuries would not have occurred if the required safety glass was used.

Lastly, the trial judge determined that Ms. Becker’s injuries were a reasonably foreseeable result of the City’s failure to use safety glass. The trial judge awarded $500,000 to Ms. Becker.

On appeal, the City argues that the trial judge erred by treating the absence of tempered glass as sufficient to conclude that it breached its duty of care as an occupier under the Occupier’s Liability Act. The City’s argument is that it could have only breached its duty of care if there was both an absence of tempered safety glass installed and a failure to have taken reasonable care to try to have tempered safety glass installed.

In essence, the City argues that these two prongs should be satisfied in order for it to be found liable, but only one prong was considered at trial.

The issue on appeal is whether the trial judge correctly characterized the issue at trial and if the trial judge was required to consider questions beyond what was put to her by the parties.

On the first question, the Court of Appeal held that the trial judge characterized the issue correctly. On the second point, the Court reasoned that the trial judge was not expected to consider issues beyond what was put to her. The appeal was ultimately dismissed.

One point that the Court of Appeal considered in reaching this conclusion is how the City framed the argument in its opening and closing submissions. The City framed the issue of whether they breached the occupier’s duty of care as depending on whether the City installed tempered glass. In the City’s opening submission, it said:

It will be Your Honour’s job at the end of the day to determine if the plaintiff has satisfied you that the glass was installed in the office door was not safety glass as required by the Building Code[1]

On closing, the City stated:

Your Honour, in order to succeed, the Plaintiff must prove to you that it is more likely than not that it was annealed glass in the staff office door, at the time of the accident, and that the absence of safety glass caused her injury.[2]

On opening and closing, the City made no mention of the reasonableness of its efforts as being relevant to deciding the case.

Counsel for Ms. Becker characterized the issue on opening and closing in a similar manner. On this point, the Court of Appeal notes that:

A purpose of characterizing the issues in opening and closing submissions and in describing what will be involved in deciding the issues, is to give the trial judge a lens through which to appreciate and evaluate the evidence.[3]

Another point the Court makes is that it was open to the City to frame its theory to include the question of whether its efforts to have the required kind of glass installed amounted to reasonable care. However, there was no evidence in the trial record that the City attempted to do this.

The Court goes on further to say that the trial judge was not obligated to consider the issue beyond what was advanced at trial. The City argued that even if they did not advance the theory that it met the duty of care based on its reasonable efforts at trial, it never explicitly abandoned that theory or such a defence. It was therefore, the trial judge’s duty to consider this issue.

The Court of Appeal disagrees. According to procedural fairness, the case should be decided on the basis advanced by the parties. The Court mentions that the City could have omitted the alternative argument of reasonable efforts for strategic reasons.

However, the way the parties framed the issues removed any fallback position about whether the City had shown reasonable care. The Court on this point says,

Leading evidence that is relevant to a theory that has been clearly raised, cannot be seen, by itself, to put in issue another theory that has not been raised or articulated, even if the evidence could have also been relevant to the latter, unargued theory.[4]

Thus, the trial judge was not required to consider the issue from a perspective other than the way it was put to her.

To conclude, this case is significant for highlighting the importance of framing the issues at trial. The manner in which issues are characterized at trial confines what issues may be appealed, which is simply a matter of procedural fairness.

This case underscores the importance of opening and closing submissions and how those submissions outline the issues in dispute.

Lastly, the Court makes it clear that simply because one issue is considered, does not automatically mean that other related issues are in play. If counsel believes that related issues are important in deciding the case, then they must make that clear in their submissions. 

[1] At paragraph 15.

[2] At paragraph 19.

[3] At paragraph 21.

[4] At paragraph 21.