Court File and Parties
CITATION: 2085337 Ontario Limited v. Miller, 2016 ONSC 3208
DIVISIONAL COURT FILE NO.: DC 2077-14
DATE: 20160516
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: 2085334 Ontario Limited, Appellant
AND:
Nancy Jeanne Miller, Respondent
BEFORE: Justice A. D. Grace
COUNSEL: K. Raddatz, for the appellant
B. Stone, for the respondent
HEARD: May 11, 2016
On appeal from the decision of Deputy Judge Glenn C. Walker of the Superior Court of Justice, London Small Claims Court released May 30, 2014
ENDORSEMENT
[1] On May 8, 2012, Ms. Miller tripped while entering the front doors of the Hampton Inn by Hilton at 840 Exeter Road, London, Ontario (the “Premises”) and fell dramatically and heavily.
[2] 2085337 Ontario Limited (“208”) appeals the trial judge’s conclusion that 208 fell below the standard of care imposed by s. 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Act”).
[3] 208 acknowledges this is not a retrial. In Underwood v. Ocean City Realty Ltd. (1987), 1987 2733 (BC CA), 12 B.C.L.R. (2d) 199 (C.A.) at p. 204 the British Columbia Court of Appeal cautioned:
The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.[^1]
[4] Section 3(1) of the Act “assimilates occupiers’ liability with the modern law of negligence”: Waldick v. Malcolm (1989), 1991 8347 (ON CA), 70 O.R. (2d) 717 (C.A.) at para. 19 aff’d 1991 71 (SCC), [1991] 2 S.C.R. 456.
[5] Negligence is a concept which involves a mixture of facts and law. Iacobucci and Major JJ. explained the significance for an appellate court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 36 when they said in part:
Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule…is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.
[6] 208 argues the trial judge applied a standard the law does not mandate and made palpable and overriding errors in his interpretation of the evidence. For the reasons that follow, I agree the trial judge applied a higher standard than the law requires and that he made obvious errors in his approach to the evidence which affected the result. I would allow the appeal.
[7] Section 3(1) of the Act describes the duty which is imposed upon an occupier. To the extent material it provides:
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.
[8] The trial judge appropriately referred to the frequently quoted passage found in the Court of Appeal’s decision in Waldick v. Malcolm (1989), 1991 8347 (ON CA), 70 O.R. (2d) 717 (C.A.) aff’d 1991 71 (SCC), [1991] 2 S.C.R. 456.. As Blair J.A. noted at para. 19, s. 3(1) of the Act does not impose strict liability on persons in the position of 208. He said:
All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm…The duty is not absolute, and occupiers are not insurers liable for any damages suffered by persons entering their premises…The trier of fact in every case must determine what standard of care is reasonable and whether it has been met.
[9] However, in my respectful view, the trial judge failed to apply those principles.
[10] Ms. Miller testified that her right foot caught as she was crossing the exterior mat just outside the front entrance of the Premises.
[11] The evidence established that mats were placed in several locations throughout the Premises. The trial judge described the one in question as “a red mat located on the paving stones just outside of the first glass door. This was an industrial type rubber mat with a carpeted surface and rubber back.” He also accepted the evidence of 208’s maintenance supervisor that the mat was about three by five feet in size, ranged in height from 1/16th of an inch at its edge to ¼ of an inch at the center, was fairly light and that “its use was mandated by…Hilton…as a form of branding.”
[12] The trial judge concluded that by “placing this type of mat on an outside surface consisting of paving stones, [208] introduced a “hazard” which served no reasonable purpose” and thereby fell below the statutory standard of care despite the fact it was agreed the mat was lying flat when Ms. Miller started to cross it.
[13] He distinguished cases that involved “a temporary hazard for which the occupier had put in place a reasonable surveillance plan to minimize the hazard.” In this case, the trial judge concluded there was a systemic failure “no plan of surveillance could protect against”. In part the trial judge said:
I do not accept the Defendant’s submissions that the red mat was placed at the entrance for the purpose of traction or to prevent dirt from being tracked into the lobby where it would create a hazard. No traction was necessary at that point as the paving stones gave sufficient traction. Nor was the mat necessary in order to prevent dirt from being tracked into the lobby as there was an even larger mat in the vestibule as well as mats in the lobby and extra mats were brought in to be placed in front of the front desk or at the elevators when the weather was wet or snowy. I find that the only purpose for the red mat was decorative or branding purposes as dictated by the head office.
[14] I have been unable to find any evidentiary basis for the trial judge’s determination that some mats located permanently or temporarily within the Premises were useful while the exterior mat was not.
[15] As noted, the trial judge did not accept 208’s “submissions” the external mat was useful. However, the issue was one covered extensively during the testimony of 208’s maintenance supervisor. At the outset of his reasons the trial judge said he accepted the evidence of Ms. Miller and the maintenance supervisor “unless otherwise indicated below”.
[16] The maintenance supervisor advised the court the external mat was always present. It was not only used for “branding purposes” but also to provide traction (although he agreed that was not an issue on the sunny day in question) and to collect moisture and dirt.
[17] Seemingly the trial rejected the maintenance supervisor’s evidence on the point.
[18] The trial judge accepted one mat was or more than one mat were necessary to prevent dirt from being tracked into the lobby. For example, he found that mats in the vestibule and lobby were necessary and were sufficient for that purpose. Why would a mat in the vestibule, lobby or near a front desk or elevator have utility while an exterior mat did not? Couldn’t the presence of an exterior mat make one or more interior mats unnecessary? How was the determination made by the trial judge about the relative utility of one mat over another? I simply don’t know.
[19] The trial judge seems to have concluded that “head office” should not have instructed 208 to place a mat outside the front doors to the Premises. With respect, there was no evidentiary basis upon which he could have made that determination.
[20] In any event, the usefulness of the external mat was largely beside the point. The issue was whether 208 had taken such care as was reasonable in all the circumstances to see that Ms. Miller was reasonably safe while on the Premises. An object’s utility and safety are not the same thing.
[21] The trial judge addressed the issue of risk in the following passages:
I take judicial notice of the fact that paving stones, no matter how skillfully laid, are not as even as a ceramic tile floor or other flat interior floor surface. It is quite conceivable that someone could catch the edge of this mat and stumble…By placing this type of mat on an outside surface consisting of paving stones, the Defendant introduced a hazard which served no reasonable purpose. In these circumstances, the occupier…did not take such care as in all the circumstances of the case were reasonable.
This, in my opinion, created a danger which was reasonably foreseeable by [208] and no plan of surveillance could protect against this risk…
[22] I pause here. With respect, the statement it was “quite conceivable someone could catch the edge of this mat and stumble” adds nothing to the analysis. Ms. Miller testified her right foot caught while she was crossing the mat when entering the Premises for the second time on May 8, 2012. That is why the parties were participating in a trial.
[23] The issue was not whether the event was possible or “quite conceivable”. As McLachlin C.J.C. noted in the context of a negligence action in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114 at para. 13:
Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to a mind of a reasonable man in the position of the defendant…and which he would not brush aside as far-fetched”…[Citation omitted]
[24] The caution is appropriate here. The trial judge could not conclude that 208 had fallen below the standard the Act imposes simply because Ms. Miller suffered an injury. Harm does not dictate a finding of liability. The statute imposes a reasonableness standard that must be applied in the context of all of the circumstances of the case. I turn to them.
[25] Ms. Miller had visited the Premises many times before. She generally used a back entrance which provided easy access to the meeting room she frequented. However, on occasion, she entered through the front doors. She did not mention any prior misstep. In fact, she had previously used the front entrance on the day in question without incident.
[26] 208’s maintenance supervisor was the only other witness at trial. He commenced employment soon after the hotel opened. He had occupied his full-time role for almost seven years.
[27] During examination-in-chief the maintenance supervisor acknowledged the mat needed to be straightened from time to time for two reasons: first, heavy luggage created a “wave-effect” or second, a person’s heel would occasionally “catch on the edge of the mat and it flips over as they walk through”. The examination continued:
Q. Now, is this something you’re seeing a lot of?
A. No.
Q. But you do see it?
A. I have seen it.
[28] Later in his evidence in-chief the following questions were asked and answered.
Q. Have you ever had mats cause a fall for somebody else at the Hampton Inn?
A. Not at this time.
Q. Now, have you had complaints about the mats?
A. No.
[29] In cross-examination, safety issues arising in connection with the exterior mat were explored further.
Q. They do flip up.
A. Yeah.
Q. And to that extent, you’d agree…that they can be a hazard.
A. Sure.
[30] As mentioned earlier, at trial it was undisputed the mat was lying flat before Ms. Miller’s fall. It had not flipped up. There was no “wave-effect”.
[31] Two e-mails authored by Maryann Sroka were introduced into evidence on consent. They were important pieces of evidence. Ms. Sroka described Ms. Miller as “the lady who came in right behind” Ms. Sroka and her son. Ms. Sroka addressed the condition of the mats they traversed while entering the Premises. Ms. Sroka wrote:
…when my son and I walked into the Hotel the mats were fine they were not folded over or creased, and I distinctly remember this because I have worked in retail most of my life and I know these can be a hazard so I was always told to check for mat conditions and to this day I still do that when entering any building.
[32] The trial judge did not refer to Ms. Sroka’s e-mails in his reasons.
[33] The trial judge’s finding an exterior mat laid on top of paving stones constituted a “hazard” was not based on Ms. Sroka’s statement. She acknowledged a mat “can be a hazard” if it was not lying flat.
[34] That seems self-evident and was not disputed by 208.
[35] In cross-examination, the maintenance supervisor was asked about safety if the mat was uneven.
Q. They do flip up.
A. Yeah.
Q. And to that extent, you’d agree…that they can be a hazard.
A. Sure.
[36] Later he agreed the mat did not provide additional traction on the day in question because it was a sunny day.
Q. This day the mat didn’t offer any further safety. In fact, it gave a small amount of – presented a small amount of hazard to people.
A. Sure.
[37] That was the extent of the modest concession sought and given. It isn’t clear to me what “a small amount of hazard” meant. Black’s Law Dictionary, 9th ed. defines “hazard” as “danger or peril”. The trial judge’s finding was clearly based on the surface lying underneath the mat. As mentioned earlier, the trial judge said he was taking judicial notice of the fact paving stones are not as even as a ceramic tile floor or other flat interior floor surface. However, the significance of that fact, even if properly a matter of judicial notice, is entirely unclear. I emphasize there was no evidence that anyone else had stumbled and fallen on the mat during the maintenance supervisor’s tenure at all, let alone when the mat “was not buckled or folded over”.
[38] It seems apparent to me the trial judge reached his conclusion concerning the standard of care in spite, not in light, of the evidence. 208 was not an insurer but it was treated as one. The trial judge’s conclusion the mat was a “hazard” was “an unreasonable finding”.[^2] So, too, was the finding 208 had failed to take such care as in all the circumstances of the case were reasonable. Nothing out of the ordinary was revealed during the trial other than Ms. Miller’s dramatic and exceedingly unfortunate fall.
[39] For the reasons given the appeal is allowed. Despite commendable efforts by her counsel, Ms. Miller did not prove that 208 fell below the standard of care the Act establishes. The judgment granted on May 30, 2014 is set aside. The action is dismissed.
[40] If the parties cannot resolve the issue of costs of the trial or of the appeal they may make brief written submissions not exceeding five pages by the close of business on June 3, 2016 in the case of 208 and June 20, 2016 in the case of Ms. Miller.
Released: May 16, 2016 ‘‘Justice A.D. Grace” _
Grace J.
[^1]: That passage was cited with approval in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[^2]: C.H. Robinson Worldwide Inc. v. Northbridge Commercial Insurance Corp., 2016 ONCA 364 at para. 24.