Court of Appeal for Ontario

Date: 2018-03-27 Docket: C63941

Judges: Epstein, van Rensburg and Brown JJ.A.

Between

Sandra Tondat Plaintiff (Respondent)

and

Hudson's Bay Company, Quinterra Property Management Inc., and Cintas Canada Limited Defendants (Appellants)

Counsel

Alan L. Rachlin, for the appellants

David S. Steinberg and Rebecca C. Glass, for the respondent

Heard: March 9, 2018

On appeal from: The judgment of Justice Irving W. André of the Superior Court of Justice, dated May 26, 2017, with reasons reported at 2017 ONSC 3226.

Reasons for Decision

The Incident and Trial

[1] On a wet day shortly before Christmas, the respondent Sandra Tondat slipped and fell while entering a department store, fracturing her kneecap. The store was operated by the appellant Hudson's Bay Company, with maintenance services contracted to the second appellant, Quinterra Property Management Inc.

[2] The respondent's fall occurred after she had walked into the vestibule, or entryway to the store. She walked across a floor mat, stepped onto the tile floor, and slipped and fell. The parties agreed on the quantum of damages and the trial was limited to the question of liability.

[3] The trial judge concluded that the floor where the respondent fell was wet, and that this was the cause of her fall. He accepted that there was no evidence of any safety system in place at the store to abate the risk of a fall, any effective inspection or maintenance system, or that the existing maintenance system was adjusted to account for adverse weather conditions. He was not persuaded by the opinion of Dr. Adam Campbell, the appellants' expert in the analysis of slip and fall accidents, that the tile flooring where the fall occurred had a superior coefficient of friction when wet, such that the flooring was reasonably safe whether wet or dry.

The Appellants' Main Argument

[4] On appeal, the appellants accept the trial judge's findings that a wet floor caused the respondent's fall, and that they lacked an effective inspection or maintenance system. Their main argument is that the trial judge failed to require the respondent to prove that the wet floor "created an unreasonable risk of harm", before he turned his focus to the measures adopted by the appellants to make the premises safe.

The Applicable Legal Framework

[5] Section 3(1) of the Occupiers' Liability Act, R.S.O. 1990, c. O.2 (the "Act") provides that "an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises…are reasonably safe while on the premises". The statute imposes an affirmative duty requiring occupiers to take reasonable care in the circumstances to make their premises safe. The factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation: Waldick v. Malcolm, [1991] 2 S.C.R. 456, at 472.

[6] The plaintiff in an occupiers' liability case has the onus to prove that some act or failure to act on the part of the occupier caused her injury. The appellant argues that the plaintiff must then establish that what caused the injury was some specific, objectively unreasonable risk of harm. The appellant contends that the trial judge failed to identify any such risk of harm.

[7] We disagree. The trial judge's reasons disclose that he conducted the inquiry required by s. 3(1) of the Act. Once he determined that the cause of the respondent's fall was the wet floor, the question remaining was whether the appellants in all the circumstances had taken reasonable care to prevent a fall on a wet floor.

The Expert Evidence

[8] As the principal safety measure the appellants relied on was the installation of what their expert said was safe tiling, the essence of the appellants' complaint in this appeal is that the trial judge erred in the assessment of the expert evidence.

[9] First, the appellants accept that it was open to the trial judge to reject the expert evidence. As such, there is no merit to their argument that the respondent was obliged to call her own expert witness to prove the floor was inherently slippery or to contradict the evidence about the slipperiness of the flooring when wet or dry.

[10] Second, and contrary to the appellants' submission, the expert did not provide an opinion that the floor tiles were safe to walk on under any and all conditions, whether dry or wet. Rather, Dr. Campbell testified about tests he had run "in a highly controlled way", that he admitted did not take into account other factors that could affect the coefficient of friction of the floor tiles. The trial judge reasonably concluded that there were "too many variables to conclude that the floor was inherently safe irrespective of the weather conditions, the wetness of the floor, the nature of the person's footwear or the presence of any oily or greasy substance on the floor".

[11] We disagree with the appellants' argument that the trial judge relied on irrelevant factors in rejecting the expert's evidence. The trial judge reasonably concluded that the expert, during his testing, had not replicated the conditions typical of the entrance to a busy department store on a rainy day and for this reason he discounted the expert's evidence on the question of whether the floor was slippery.

Maintenance and Safety Measures

[12] The evidence of maintenance and other measures taken by the appellants to make the premises safe consisted of a time sheet showing that a single maintenance person had been on duty both as a cleaner and porter in the 118,348 square foot store on the day in question, without any indication of what, if anything, had taken place in the vestibule area where the accident occurred.

[13] Once the trial judge accepted that the cause of the respondent's fall was a wet floor, the appellants' defence, on the evidence in this case, depended entirely on whether the occupier's duties were discharged by its choice of flooring. The trial judge reasonably rejected this defence.

Distinguishing Prior Case Law

[14] Nor did the trial judge err because he arrived at a different decision than the judge in a similar case relied on by the appellants: Miller v. Royal Bank of Canada, 2008 NSSC 32, 263 N.S.R. (2d) 121, aff'd. 2008 NSCA 118 (C.A.). There, a plaintiff who slipped on a moist footprint in an ATM lobby that was monitored on an ad hoc basis lost at trial and on appeal. The case was distinguishable for the reasons identified by the trial judge in this case; in any event, every occupiers' liability case falls to be determined on its own facts.

Conclusion

[15] The appellants have failed to demonstrate any palpable and overriding error in the trial judge's reasons for concluding that they were liable in negligence for the respondent's accident. And, contrary to the appellants' argument, the trial judge did not impose a standard of perfection, or any standard other than reasonableness for the discharge of their responsibilities under the Act. The trial judge's reasons for judgment, including his findings of fact, his treatment of the expert evidence and his discussion and application of the applicable law, are clear and thorough, and reveal no error.

[16] Finally, the appellants asserted that the trial judge erred by failing to consider the question of contributory negligence. This submission, for good reason, was not pressed in oral argument. In his reasons for judgment, the trial judge considered the evidence of the respondent's condition, her conduct and footwear, before he concluded that her fall was caused by the water on the floor. Any suggestion that she fell because she was not keeping a proper lookout is speculative, and not supported by the evidence.

[17] The appeal is therefore dismissed. The respondent is entitled to her costs fixed in the agreed and all-inclusive amount of $15,000.

"Gloria Epstein J.A."

"K. van Rensburg J.A."

"David Brown J.A."