Counsel are judge’s “lens”: Ontario Court of Appeal

October 12, 2020 | By Julius Melnitzer

Putting forward the evidence isn’t enough: argue your theory at trial if you want to complain on appeal about its treatment.

That’s the message from the Ontario Court of Appeal’s recent decision in Becker v. Toronto (City).

“The court made it pretty clear that if an issue isn’t raised in argument, it’s not an issue even if the evidence led could give rise to the issue,” says Jason Katz of Singer Katz LLP, a personal injury and insurance claims boutique in Toronto, who represented the plaintiff and respondent, Stephanie Becker.

Becker was blinded in one eye when the glass in a door at a community centre operated by the City of Toronto shattered. Justice Janet Wilson of the Superior Court of Justice ruled that the City had breached the Occupiers’ Liability Act (OLA) by failing to install the tempered safety glass required by the Building Code.

Rebecca Bush of Borden Ladner Gervais LLP’s Toronto office represented the city at trial and on appeal. On appeal, she argued for the first time that Wilson had erred in her assessment of reasonable care by failing to consider the City’s attempts to install the safety glass – quite apart from whether her client had actually done so.

“The City argues that since the OLA imposes a standard of reasonable care, not a strict liability standard, it could have properly been found to have breached its duty of care under the OLA only if there was both an absence of tempered safety glass, and a failure on its part to have taken reasonable care to try to have tempered safety glass installed,” wrote Justice Benjamin Zarnett on behalf of a unanimous appellate bench.

The difficulty, as the court saw it, was that the City did not raise the “attempt” theory at trial.

“There are strong reasons, rooted in policy and trial fairness, to hold parties to the characterization of issues and the theories they assert at trial,” Zarnett wrote.

For her part, Bush maintains that her client did not raise a new issue on appeal.

“The evidence we presented at trial was consistent with the statutory framework that the trial judge was bound to consider,” she says. “Our view is that we reframed the argument on appeal but certainly did not advance a new one.”

That reasoning, however, did not resound with the Court of Appeal.

“The trial judge cannot be criticized for failing to address, or consider evidence from the perspective of, a theory the City did not raise at trial,” Zarnett wrote.

The “attempt” theory, he noted, was not raised in the City’s opening submissions at trial; no expert opinion was proffered on the reasonableness of any attempt to have safety glass installed; and the City’s closing submissions focused on the theory that Becker had not proved that the shattered glass was in fact ordinary annealed glass.

“The City did not submit to the trial judge that there had been a failure to establish a breach of the duty of care, even if Ms. Becker had proven that annealed glass had been used,” Zarnett noted.

The mere fact that the evidence included specifications for the community centre’s renovation and reference to the City’s supervision of its contractors was not enough.

“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,” Zarnett wrote. “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.”

That’s only fair, Katz maintains.

“We were taken aback when the City raised what was, in our view, a new issue or a sufficiency of reasons argument,” he says.

In the result, the court dismissed the City’s appeal.

“To hold otherwise would encourage parties to litigate by instalments, with deleterious consequences for the efficiency of the justice system and for access to justice,” Zarnett stated.

Julius Melnitzer is a Toronto-based legal affairs journalist, writing coach and media consultant to lawyers and legal departments.