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#19180
GLASS SHARD injury : do OCCUPIERS & VICTIMS alike face LIABILITY ISSUES through a glass darkly ? 2021/02/02 21:49  
Not legal advice,as usual.

In 1993 a Toronto lawyer reportedly plunged to his death from the 24th floor of the T-D Centre.

It is reported that he was demonstrating to articling students ( on tour ) just how sturdy were the ( building envelope’s ) glass panels enclosing this iconic landmark. Throwing himself against the panel from inside the 24th floor, he reportedly proved his point. Unfortunately – whether or not there had been concerns about how bright or attentive were these particular students ? - he did so AGAIN ! But this time the entire frame got dislodged, and out he went. He died for the science, but the glass itself reportedly did NOT fracture. At least not until the ground was reached. Unlike sequences in the Coen Bros’ Hudsucker Proxy ( 1994 ) , this was the real stuff.

Glass is everywhere, like it or not. This includes so-called safety glass types required not only for I.C.I uses but at critical locations by Building Codes in residential construction for decades. “Tempered safety glass” is substantially more expensive than merely “annealed” conventional glass.

But retroactively validating it - once installed or after a glass shard injury claim - sometimes may not be so easy.

Pre-installation safety glass may have a BUG label on an edge, sorta rough edges and or a contour for light analysis. Invasive testing invites a pressure-induced explosion into kernels or dice - albeit not razor shards – and possibly a distinctive sound unlike breakage of annealed glass.

Possibly a glass shard injury may look far more severe than expectable from tempered safety glass. But whatever the facts, an injured plaintiff suing an occupier under OLA ( Ontario’s OCCUPIERS’ LIABILITY ACT R.S.O. 1990, CHAPTER O.2 https://www.ontario.ca/laws/statute/90o02 ) still bears the onus of proof.

Such onus is made steeper - ? maybe insurmountable ? - if the broken glass had been Code-compliant tempered safety glass. Provisions of OLA further create partial defences where a credible intervening arms-length contractor or renovator had been retained ( or for that matter to limit but not extinguish a "duty of care" owed to a trespasser or criminal-purposes enteror ).

But what if no one bothered to save any glass debris ? ( Or at least tried to pass off genuine TG kernels for something else after a glass shattering ? )

Too lazy or overburdened to even snap a cellphone photo of characteristic kernels / dice ?

Bigger, just how standard-compliant really was the allegedly TG tempered glass that actually got installed ? Do glass panels ever plummet from downtown highrises ?

Whatever the facts, a victim’s tragic loss of sight for example may trigger years of litigation.


1 - Donko v. Sleepy Hollow Country Club Ltd., 2021 ONSC 192 issued Jan 8/21 https://canlii.ca/t/jcgn5

Not from Washington Irving, ONSC Ontario Superior Court of Justice issues a Rule 32 Inspection Order compelling a less than co-operative defendant OCCUPIER to allow site access by plaintiff / former employee’s forensic engineer expert to physically examine - & even to destructively test - one of 3 remaining 1976 shed windows matching vintage of the one whose shattering allegedly injured the plaintiff on June 19 2017.

Un-detailed injury is claimed to have occurred when then-employee plaintiff Donko quote : “ attempted to slide the window of the turf building / maintenance building changeroom where he worked, as he had forgotten his car keys inside and the building was locked.

The Defendant ( Sleepy Hollow ) failed to keep any of the shards of glass from the shattered window and has since replaced the window. . . .”

1976 sheds may not have required tempered safety glass, but were there other factuals here worth litigating to show a shortfall of Occupier "duty of care" ? More to come . . .

2 - Becker v. Toronto (City) et al, 2020 ONCA 607 issued Sep 28/20 https://canlii.ca/t/j9tk8

Becker v. Toronto (City) et al, 2019 ONSC 3912 issued June 28/19 https://canlii.ca/t/j2dkj

ONCA Ontario's Court of Appeal in September 2020 slapped down an appeal by the City of Toronto . . . . to be continued
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#19181
part 2 - LIABILITY ISSUES through a glass darkly ? 2021/02/02 22:52  
still not legal advice

2 - Becker v City of Toronto et al

ONCA Ontario's Court of Appeal in September 2020 slapped down an appeal by the City of Toronto from a $ 500 K award against it ( & presumably costs ) after a September 2009 gruesome eye injury suffered by a blameless 14 year old girl. ( Glass shards blinded her in one eye )

At a North York Community Centre she merely had the misfortune to be near a glass window within the closed door to a staff office.

Within that office a 16 year old youth had been authorized by the sole City staff-member to use a corded telephone. After the youth’s call involving affairs of the heart or other areas, he made some sorta physical contact with the curtain-covered or blind-covered door window ( Ten years later he has claimed to have tripped on the phone cord ; judge however cited suspicions it was an angry punch after an angry phone interaction ).

Window broke, immediately imbedding shard(s) into the victim’s eye outside the office ! In one second a life-altering tragedy.

The 16 year old inside the office himself suffered a minor wound. But not a fracture, nor what the expert testimony would support as typical after-effect of punching genuine tempered safety glass. ( He went immediately below the radar for 10 years).

Pre-appeal litigation process over the next ten years was followed in 2019 by SIX 6 DAYS OF HEARINGs with rival technical experts. Remember that in 2009 glass shards had been merrily discarded without even a cellphone video or photo ! !

In 2019 City failed to persuade ONSC that the office door's broken window had been tempered safety glass, largely based on textual description within a 1995 renovation contract to supply TG tempered glass .

BUT plaintiff’s expert let judge jump onto the inconsistent lack of TG label on this office door ‘s diagram within the same 1995 contract . Unlike other diagrams that door’s diagram sloppily failed to cite TG. This left a credible opening that someone may have saved bucks / used cheaper annealed glass or even ? re-cycled an old door ? ( ONCA could not have missed this later ).

At trial in 2019 the victim - permanently blinded in one eye - was awarded $ 500,000 and presumably costs.

In September 2020 ONCA wiped the floor with the City’s appeal, holding that it had failed in 2019 - and should not now be allowed to introduce - an “EVEN IF” argument ( as in : “ Even if the actual glass had NOT been TG tempered, as contract-issuing authority in 1995 we made all reasonable efforts to get it installed even if the diagram failed to cite TG ” ) .

There are hints from ONCA’s decision that such might not have been an easy sell; a totally blameless child had suffered a grotesque injury with massive factual omissions by the City including the 1995 sloppiness & not even saving debris ! Comment on the appeal decision has focussed on “ONCA ain’t the place to be a-trying new arguments”.

3 - One historical 'occupiers held liable for eye injury' - Even went to Canada's Supreme Court; a minor but NOT involving broken glass shards. Here a Breach of “premises" or "occupier” duty of care got held against occupiers after an eye injury due to a nephew's careless use of a pellet gun allowed inside the family grocery store :

Hanes v. Kennedy, 1941 CanLII 6 (SCC), [1941] SCR 384 https://canlii.ca/t/1ttrl

Hanes v. Kennedy, 1940 CanLII 19 (ON CA) https://canlii.ca/t/1vhrb
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