COURT OF APPEAL FOR ONTARIO

DATE: 20061025

DOCKET: C42754

RE: RUTH HUGHSON and LINDA DaSILVA (Appellants) – and – JOHN DOE (Respondent) and THE GREAT ATLANTIC AND PACIFIC COMPANY OF CANADA LIMITED cob as FOOD BASICS (Respondent)

BEFORE: GOUDGE, SIMMONS AND LANG JJ.A.

COUNSEL: Melvyn L. Solmon and James P. McReynolds for the appellants

Chris Blom for the respondent The Great Atlantic and Pacific Co. of Canada

HEARD & ENDORSED: October 18, 2006

On appeal from the judgment of Justice Mary Anne Sanderson of the Superior Court of Justice dated November 12, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant raises a number of issues which we will address in turn.

[2] We think it was open to the jury to find no negligence by John Doe. Moreover counsel agreed that this option be put to the jury and the trial judge charged accordingly.

[3] Second, it was also open to the jury to conclude that the respondent was not negligent. In the circumstances the jury could properly have concluded that the respondent kept the store reasonable safe even though it did not have a specific policy advising staff how to get customers to back up in the express aisle.

[4] Third, we think the trial judge dealt adequately with the evidence about the frequency of previous occurrences by telling the jury to disregard it.

[5] Fourth, it cannot be said that the fact of making the hearsay statement in the investigation report is irrelevant. It was admissible, and the jury was properly instructed to use it for its truth.

[6] Fifth, in the circumstances we do not view the respondent as having withdrawn an admission about the precise location of John Doe.

[7] Lastly, in the circumstances, we essentially agree with the trial judge’s reasons for finding no duty to investigate. In this court, the appellant argues that this obligation is a manifestation of the respondent’s duty to keep the premises reasonably safe. However in our view the appellant’s inability to sue John Doe cannot be said to flow from the condition of the respondent’s premises. The duty on the respondent to keep those premises reasonably safe does not stretch to an obligation to investigate the appellant’s accident.

[8] The appeal is dismissed. Costs to the respondent fixed at $6,000 all in if demanded.