Supreme Court of Canada won’t reverse this municipal liability finding

An August 12 Supreme Court of Canada decision means a Toronto-area municipality remains not liable for an electric shock suffered by a teenager at a public sports field.

Zoe Onley was 18 when she was placing soccer on a wet field at the Iroquois Park Sports Centre — owned by the Town of Whitby — in August of 2012. At one point, Onley left the field and sat down on the grass near a light pole. When she got up to resume playing, she felt an electric shock. She later collapsed and was taken to hospital by ambulance.

Onley sued the town under the Occupier’s Liability Act.

Other people on the scene reported feeling a shock when touching the ground in the same area.

In Onley v. Town of Whitby, released Jan. 2, 2020, the Ontario Superior Court of Justice ruled in favour of the defendant. Justice Edward Koke found that although the wiring in the light was damaged, the electrical shock hazard “was not reasonably foreseeable.”

Justice Koke’s trial ruling was upheld in an Ontario appeal court ruling released Dec. 8, 2020.

A month later, Onley applied for leave to appeal to the Supreme Court of Canada. The top court announced Aug. 12 that it will not hear the appeal.

When denying leave applications, the Supreme Court of Canada does not normally issue reasons, and did not do so in the  Onley case.

During the original trial, the plaintiff argued several measures could have mitigated the risk of electric shock at the park. For example, the plaintiff contended the town could have installed lightning rods on its light poles and inspected light pole handholes on a regular basis.

The plaintiff also argued the town could have enacted a stray voltage detection program. This could have included the use of inexpensive pen testers to detect live current. A plaintiff’s expert witness told that court that a property manager or owner could prevent injuries from stray electrical current by regularly touching a pole and the surrounding area with pen testers.

The town called its own expert witness to rebut the plaintiff’s arguments on the possible use of pen testers. The defence expert said pen testing would not be effective or practical for use on a soccer pitch where the energized wires ran underground and inside poles. This, the defence expert argued, is because a pen tester would not indicate whether the electric field was from the wires powering the lights or from current leaking from the wires.

On appeal, the plaintiff took issue with the fact that Justice Koke admitted defence testimony on the pen testers. This was an error of law, the plaintiff argued, because pen tests were not mentioned in the report the defence expert witness submitted for the trial.

But the possible use of pen testers was raised by the plaintiff’s own expert, the Court of Appeal for Ontario noted in its ruling. Therefore, it “cannot have been surprising” that the defendants sought a response from their own expert on the issue of pen testers during the defence expert witness testimony, the appeal court judges wrote in their unanimous ruling.

The plaintiffs also had the opportunity to cross-examine the defence witness, the Court of Appeal for Ontario noted.

After the plaintiffs closed their case at the original trial, the trial judge said he would be willing to adjourn in order to permit the plaintiffs to prepare evidence replying to the defence expert witness, the Court of Appeal for Ontario added.

But the plaintiffs did not make such a request.

Feature image via iStock.com/allanswart