by Selina Ferenac


Following an unsuccessful result on a summary judgment motion, the Town of Milton was successful at the Court of Appeal in a case which clarified the law of ‘foreseeability.’ The Court reviewed the proper legal analysis in negligence claims and held that the motions judge erred in her consideration of whether the Town’s alleged negligence constituted an intervening act that completely broke the chain of causation.


This is a personal injury action where the plaintiff was catastrophically injured as he walked across the road and was struck by a car driven by the defendant. The plaintiff claims damages against the Town of Milton based on inadequate street lighting due to a missing luminaire. The Town commenced a third-party claim against Milton Hydro for contribution and indemnity, alleging that they negligently removed the luminaire.


Whether the third party (Milton Hydro) owed a duty of care arising out of the assumed removal of a luminaire and whether the alleged failure of the appellant (Town of Milton) to notice the missing luminaire constituted an intervening act that severed liability from Milton Hydro’s assumed removal of the luminaire.


Milton Hydro and the Town brought motions for summary judgment. While the motion judge could not determine responsibility for the removal of the streetlight on the evidentiary record, she was “prepared to assume” that Milton Hydro removed the streetlight. She focused her analysis on whether four years later and with intervening annual inspections, Milton Hydro can be held liable for damages and ultimately held that Milton Hydro did not owe an ongoing duty of care. As she did not find proximity to establish a duty of care by Milton Hydro to the plaintiff, a full negligence analysis was not conducted. The Town appealed.


The Town of Milton argued that the motion judge erred in granting summary judgment and in her duty of care and causation analysis. While Milton Hydro responded that the motion judge’s findings are owed deference.


The appeal was allowed as the motion judge’s legal analysis was flawed.


    A subsequent failure to inspect does not automatically remove liability from the original negligent actor as the passage of time itself does not determine foreseeability or proximity under the duty of care analysis or the causation and intervening act analysis.


In a unanimous decision of the panel consisting of Justices Roberts, Miller and Coroza, Justice Lois Roberts wrote that the motion judge conflated her duty of care analysis with her causation analysis. Since this case concerned allegedly negligent acts in succession, the inquiry should have considered whether the alleged later negligence of the Town of Milton’s failure to inspect was reasonably foreseeable at the time of Milton Hydro’s assumed negligent removal of the luminaire; and, then whether the Town of Milton’s alleged negligence compounded the effects of the earlier assumed negligence of Milton Hydro or whether it broke the chain of causation (Price v. Milawski, 1977 CanLII 1400 at para. 29).

The correct question under the duty of care and the intervening act analysis should have been whether the injury to the plaintiff, allegedly caused by poor lighting, was a reasonably foreseeable consequence of the removal of the luminaire at the time it was removed, regardless of when the injury occurred in relation to the removal of the luminaire (Athey v. Leonati, 1996 CanLII 183 at para. 41).

The ways in which the motion’s judge legal analysis was flawed can be summarized as follows:

  • She conflated the duty of care analysis with the legal causation analysis because she was focused on causation and the “break” in the chain of responsibility for the removal of the luminaire and its effect on lighting. This should have been considered after she had assessed whether Milton Hydro owed a duty of care to the plaintiff.
  • The motion judge’s duty of care analysis should have been focused on whether someone in Milton Hydro’s position ought reasonably to have foreseen at the time of the removal of the luminaire the type of harm it caused, rather than on whether the removal of the luminaire caused the harm in issue.
  • In her duty of care analysis, the motion judge did not consider whether Milton Hydro’s action of removing the luminaire was negligent. Rather, she assumed that the Town of Milton’s actions were the sole cause of any harm because it was responsible for inspections.
  • In assessing causation, the motion judge failed to consider whether the alleged negligence of Milton Hydro could co-exist with the allegedly negligent inspections by the Town of Milton such that both parties can be said to have caused the harm. Instead, she assumed that the Town of Milton’s alleged negligence extinguished Milton Hydro’s alleged original negligence. As this case involved consecutive negligent acts, the motions judge should have considered whether at the time Milton Hydro removed the streetlight it could have anticipated that the Town would fail to inspect this area. It was an error for her to conclude that the Town’s statutory duties meant that Milton Hydro could not also owe a common law duty of care.

Selina Ferenac is the author of this blog and articling student at ZTGH. If you have a question about this decision, please contact Selina at [email protected].