At age 14 the plaintiff was injured at a community centre operated by the City of Toronto, when a person using the telephone in a staff office broke the glass portion of the office door. The plaintiff was nearby and glass struck her, rendering her legally blind in her left eye. At trial, the judge found that the City breached the standard of care in that the glass material did not adhere to the Ontario Building Code, and causation and foreseeability were established on the evidence. The City appealed, arguing that the trial judge ought not to have treated non-compliance with the Ontario Building Code as sufficient to establish that the City breached its duty of care as an occupier – the standard under the Occupiers’ Liability Act is one of reasonableness, not strict liability. The Court of Appeal dismissed the appeal, and upheld the trial judgment. The Court of Appeal noted that at trial, the City hinged its position on whether annealed glass was used on the door, not whether there had been a failure to establish a breach of the duty of care even if it was proven that annealed glass was used. The characterization of the issue at trial was legally sufficient and the trial judge was not obliged to consider the issue beyond the way it was advanced at trial.
