CITATION: Lichtenstein, Harris, Ziman v. Bathurst Towers, 2014 ONSC 1260
DIVISIONAL COURT FILE NO.: 556/11 and 560/11
DATE: 20140226
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER AND HARVISON YOUNG JJ.
BETWEEN:
MOLLY LICHTENSTEIN, BETTY HARRIS and PEARL ZIMAN
Plaintiffs
(Respondents in Appeal)
– and –
BATHURST TOWERS INC.
Defendant
(Appellant)
-and –
BERNARD STEIN
Third Party
(Respondent in Appeal)
No One Appearing
Bruce R. Jaeger, for the Defendant (Appellant), Bathurst Towers Inc.
Alan L. Rachlin, for the Third Party (Respondent)
HEARD at Toronto: February 26, 2014
NORDHEIMER J. (orally)
[1] The defendant appeals from the decision of Roberts J. dismissing its third party claim on the third party’s application for a non-suit. The third party is the son of the 92 year old plaintiff who was injured when she fell on some ice outside of her apartment building. The third party was present at the time of the fall as he had just dropped his mother off. The defendant’s assertion was that the third party owed a duty of care to his mother when she was walking to and from his car based on his past habit of having provided such assistance.
[2] In my view, the trial judge did not make any error in dismissing the third party claim. The trial judge applied the proper test for a non-suit. Applying that test, the trial judge took the evidence at its best from the defendant’s perspective in determining the issue. The trial judge concluded, taking the evidence at its highest, that there was no factual foundation for imposing a duty of care by the son to his mother in the circumstances of this case.
[3] In his determining the issue of whether a duty of care was owed, the trial judge applied the well-established two-part test set out in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.).
[4] I agree with the trial judge that the facts do not provide a proper foundation for imposing a legal duty of care on the third party. The fact is, that the third party mother is and was an independent person capable of caring for herself and making her own decisions.
[5] The appellant accepts that there is no general duty of care in a legal sense owed by a child to a parent. As the trial judge found, the fact that the son may have voluntarily and regularly assisted his mother in the past does not create a legally binding duty to do so in the future.
[6] The appeal is dismissed.
KITELEY J.
COSTS
[7] I have endorsed the Appeal Book and Compendium, “This appeal is dismissed. Appellant shall pay costs fixed at $10,000 all inclusive as agreed.”
NORDHEIMER J.
KITELEY J.
HARVISON YOUNG J.
Date of Reasons for Judgment: February 26, 2014
Date of Release: March 3, 2014
CITATION: Lichtenstein, Harris, Ziman v. Bathurst Towers, 2014 ONSC 1260
DIVISIONAL COURT FILE NO.: 556/11 and 560/11
DATE: 20140226
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER AND
HARVISON YOUNG JJ.
BETWEEN:
MOLLY LICHTENSTEIN, BETTY HARRIS and PEARL ZIMAN
Plaintiffs
(Respondents in Appeal)
– and –
BATHURST TOWERS INC.
Defendant
(Appellant)
-and –
BERNARD STEIN
Third Party
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: February 26, 2014
Date of Release: March 3, 2014