Court of Appeal for Ontario

CITATION: Khelifa v. Ontario Corporation Number 1358584 (Gloucester-Church Mansions Limited), 2016 ONCA 698

DATE: 20160923

DOCKET: C60101

Laskin, Feldman and Hourigan JJ.A.

BETWEEN

Fazia Khelifa

Plaintiff (Appellant)

and

Ontario Corporation Number 1358584, operating as Gloucester-Church Mansions Limited and Ontario Corporation Number 479405, operating as Sunrise Property Management Limited

Defendants (Respondents)

Counsel:

John Adair and Jeffrey Hernaez, for the appellant

Greg Abogado and Asher Honickman, for the respondents

Heard: September 8, 2016

On appeal from the judgment of Justice Darla A. Wilson of the Superior Court of Justice, dated February 13, 2015.

ENDORSEMENT

[1] The appellant suffered serious personal injury damage when she fell from the west fire escape outside her apartment in February 2007. She sued her landlord for negligence in failing to maintain the fire escape free from ice and snow.

[2] In comprehensive reasons, the trial judge accepted the evidence of the building superintendent and his assistant, who was another tenant in the building, that 1) he conducted daily checks of the building, and 2) the west fire escape did not require snow or ice removal because the sun melted any snow or ice that landed or froze there.

[3] The trial judge rejected the evidence of the appellant and her roommate that there was any ice or snow on the west fire escape that day. There was no evidence of ice or snow there other than their statements, and the trial judge found they were not credible witnesses, giving a number of reasons for so concluding.

[4] The appellant submits that the trial judge misapprehended the evidence of the superintendent regarding whether he made daily inspections of the west fire escape. We do not agree. The trial judge’s finding was an available interpretation of the evidence of the superintendent.

[5] The appellant also challenges the credibility findings of the trial judge regarding her roommate, on the basis that the trial judge was influenced in her conclusion by an error she made in her apprehension of the evidence of another tenant, Ms. Collins. We do not agree. As stated, the trial judge gave a number of reasons for rejecting the evidence of the appellant and her roommate generally, and specifically on the critical issue of whether there was snow or ice on the west fire escape on the day of the fall.

[6] Ms. Collins’ evidence was that she did not pay attention to the state of the fire escapes. The trial judge viewed her evidence as corroborative of the evidence of the assistant superintendent that there was no snow on the fire escape. In our view, the evidence of Ms. Collins was not inconsistent with that of the assistant superintendent, and as the trial judge rejected the evidence of the appellant and her roommate that there was snow for a number of reasons, including the photographs, nothing turns on the reference to Ms. Collins’ evidence as corroborative of the evidence that there was no snow.

[7] There is no basis to interfere with the conclusion reached by the trial judge that the standard of care was met. She also found that the fall was not caused by ice or snow on the fire escape. Her reasons are cogent and based on the record.

[8] The appeal must be dismissed with costs in the agreed amount of $15,000 inclusive of disbursements and HST.

“John Laskin J.A.”

“K. Feldman J.A.”

“C.W. Hourigan J.A.”