CITATION: Irvine v. Seipt, 2017 ONSC 2551

DIVISIONAL COURT FILE NO.: 252/16

DATE: 20170427

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, NORDHEIMER & LEMAY JJ.

BETWEEN:

Sharon Mary Irvine by her Litigation guardian, Mary Catherine Irvine

Plaintiff/Respondent

– and –

Kimberly Seipt and Rene Seipt

Defendants/Appellants

Cameron Fiske, for the Plaintiff/Respondent

Alan Rachlin, for the Defendants/Appellants

HEARD at Toronto: March 23, 2017

KITELEY J.:

1This is an appeal from the decision of G. Dow, J.¹ dated April 21, 2016 in which he found the appellants 65% liable and the respondent 35% liable for injuries suffered by the respondent arising from a fall that occurred on the appellants’ premises on June 17, 2007. For the reasons that follow, the appeal is allowed and an order is made dismissing the claim by the respondent.

Decision of the Trial Judge

2In 2011, the respondent had suffered a cerebral hemorrhage and has been hospitalized since then. She could not participate in the trial. Her sister Mary Catherine Irvine has been appointed as her Litigation Guardian.

3On June 17, 2007 the appellants hosted an afternoon party to celebrate a 90th birthday. The respondent was invited and on her arrival she was directed to the backyard. The evidence of five witnesses was that the respondent fell as she attempted to step up onto the deck. At paragraph 19 of the decision, the Trial Judge held as follows:

19. Sharon Irvine, estimated to be about five foot two inches to four [sic] foot four inches, 140-150 lbs., wearing flat shoes and having not consumed any alcoholic beverages reacted by walking towards the porch. In her attempt to step up onto it, she fell back extending her hands, particularly the left as she fell onto the ground.

4As a result of the fall the respondent suffered a dorsally displaced and angulated distal radius fracture of the left wrist treated by closed reduction. The parties agreed that damages should be assessed at $31,500 and the trial was on the question of liability.

5At paragraph 22 the Trial Judge noted that s. 3(1) of the Occupiers’ Liability Act² 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 upon the premises are reasonably safe while there. He held that these appellants owed a duty of care to the respondent.

6After making that finding, the Trial Judge continued as follows:

22. . . . There was evidence given by Alison Orr, a civil engineer who was qualified to give expert evidence in Building Code matters that the standard rise of steps in a residential home is about seven inches (when converted from metric) or about one half of the height of the step from the rear yard onto the porch. This, in my view, is sufficient to create a risk of harm not only to the plaintiff but to others on the property and particularly the elderly. I am reinforced in this conclusion by the fact the defendant had made an effort after occupying the premises to place a temporary step at the rear doors located at the northeast corner of the home while awaiting delivery of a custom made lintel. Further, while not determinative, when the interlock was installed over the porch in 2009, two steps down to the yard were installed.

23. The defendants submit the property was in compliance with the Building Code given inspection and permission by the Town of Caledon in December, 2005 to occupy the premises. However, as Ms. Orr testified, this type of inspection is focused on installation and operation of smoke alarms, the existence of handrails and running water. It does not prohibit me from finding negligence on the part of the defendants.

7The appellants owned two dogs at the time of the events: Tazzie who was born in about 2000 and was a pit bull and Auzzie. Most of the witnesses gave evidence about the dogs. In the context of the finding of negligence, the Trial Judge held as follows:

24. In addition, it is clear the defendants were in breach of the Dog Owners Liability Act, R.S.O. 1990, c.D.16 and the 2005 amendments and regulations with regard to pit bulls. Specifically, Tazzie was required to “be equipped with a muzzle and secured by a leash” unless within “enclosed property occupied by the owner”. Despite his pleasant demeanor and excellent training, the law required Tazzie be restrained in the circumstances. I am prepared to accept the plaintiff had a fear of dogs. I also accept that it was expressed to Shelia [sic] Griffen who did speak to Susan Van Allen about this concern and was assured steps would be taken to alleviate this concern. In my view, it is not necessary to find whether or not the plaintiff’s fear of dogs was what caused her to attempt to step onto the porch. That is, had the plaintiff decided, for whatever reason, she needed to enter the house by the variety of doors on the porch, the height of the porch posed a risk and danger not only to her but others, particularly the elderly that had been invited onto the property that day.

25. As a result, the defendants were negligent in failing to have a step in place or some other means to ensure users of the porch and backyard could safely step up or down at that location.

8In regards to contributory negligence, the Trial Judge held as follows:

26. Having found the defendants failed to take reasonable care of the premises, I must also determine whether the plaintiff was negligent in failing to take reasonable care for her own safety.

27. In this regard, the step up to the porch was plain and obvious. It was significantly higher than the usual rise and estimated by witnesses, such as Paul Griffin, to be greater than the actual 13 inches it was subsequently measured to be.

28. Further, it was daylight and there appeared to be no issues as to visibility. The plaintiff also had the option of requesting help from others such as her siblings nearby or Daniel and James Griffin if she was unsure of her ability to safely step onto the porch. Finally, there were also the doors at the northeast corner of the rear of the home where a step was available. To that end, I find the plaintiff was contributorally [sic] negligent in failing to take reasonable care for her own safety.

29. I assessed the liability to be 65 percent on the defendant and 35 percent on the plaintiff.

Issues in the appeal

9The appellants take the position that the Trial Judge erred in law in the following respects:

(a) in setting the standard of care too high, effectively rendering the appellants insurers of the premises;

(b) in failing to explain how the appellants’ alleged breaches were causative of the respondent’s fall given his factual findings that the deck was plainly and obviously visible.

10Counsel for the respondent takes the position that the Trial Judge made a finding of fact that the porch, which was twice the height of the normal riser, was a reasonably foreseeable danger to partygoers at the premises. Counsel takes the position that if the height of the deck was plainly and obviously visible then that was appropriately taken into account in the assessment of contributory negligence. Counsel asserts that this court should afford great deference to those findings of fact that are supported by the evidence. Counsel concedes that the Trial Judge made no specific finding of causation but argues that the reasons were sufficient to demonstrate that he implicitly made that finding.

Standard of Review

11The standard of review of a trial judge’s decision is correctness on questions of law. Findings of fact are not to be reversed absent palpable and overriding error. Palpable errors include findings that are clearly wrong, unreasonable or unsupported by the evidence. Questions of mixed fact and law lie along a continuum.³

Analysis

12To establish liability in negligence it is necessary for the plaintiff to show:

(a) that she was owed a duty of care by the defendant;

(b) that the defendant breached that duty by failing to observe the relevant standard of care;

(c) that the breach caused damage or loss to the plaintiff; and

(d) that the damage was not too remote a consequence of the breach.⁴

A. Duty of care owed by the appellants

13Section 3(1) of the Occupiers’ Liability Act provides that an occupier of premises owes a duty to take such care as in all the circumstances is reasonable to see that persons entering upon the premises are reasonably safe while there. The Trial Judge correctly held that the appellants were occupiers and the respondent was an invitee and hence the appellants owed a duty of care to the respondent.

B. Breach of the duty of care

14On the issue of breach of duty of care, the findings of the Trial Judge can be summarized as follows:

(a) the appellants breached their duty of care by having a deck, the elevation of which was about 13.5 inches above the ground, which was almost twice the standard rise of steps in a residential home of about seven inches; and by failing to have a step in place or some other means to ensure users could safely step up or down at that location;

(b) the appellants breached their duty of care by not complying with the Dog Owners Liability Act in that they failed to equip Tazzie with a muzzle and secure her by a leash.

15As for the first, there was evidence that the deck was about 13.5 inches above the ground. There was evidence that the standard riser is 7 inches; however that was with respect to the interior of residences. Even assuming that the height of 13.5 inches created a risk of harm, the reasons for decision do not refer to any evidence and do not contain an analysis as to whether that created an objectively unreasonable risk of harm. The duty under the Occupiers’ Liability Act is not absolute and occupiers are not insurers liable for any damage suffered by persons entering the premises⁵. The Trial Judge erred in reaching the conclusion that he did, that the appellants had breached their duty of care as occupiers, without any analysis of the applicable standard of care, or of the facts that would warrant a conclusion that that standard had not been met.

16As for the second, there was evidence that Tazzie had neither a muzzle nor a leash and she was not in an enclosed property. There was some evidence on which the Trial Judge could make that finding. However, as indicated below, that had no impact on the result.

C. Causation

17The respondent had the burden of proving on a balance of probabilities that the height of the deck caused her to fall. I agree with counsel for the appellants that the Trial Judge erred in failing to explain how the height of the deck caused the respondent’s fall. The transcript of the submissions following the evidence indicates lively exchanges between counsel for the appellants and the Trial Judge on the point of causation with counsel asserting more than once that there was no negligence but if there was, there was no evidence that the height of the riser caused her to fall. However, in his reasons for decision, the Trial Judge does not identify causation as an issue, let alone refer to the evidence on the subject of causation.

18As counsel for the appellants observed and as conceded by counsel for the respondent, the Trial Judge made no finding that the breach of the duty of care with respect to the height of the deck caused the damage to the respondent. I do not agree that one can draw the inference that the Trial Judge implicitly found causation. The failure to make a finding of causation is an error.

19Had he turned his mind to causation, the Trial Judge would have had to consider findings he made elsewhere, namely: the respondent was walking; the step up to the deck was plain and obvious; the step up was significantly higher than the usual riser; it was daylight; and there appeared to be no issues of visibility. It would be difficult to move from those findings to a conclusion that the elevation of the deck caused the injury sustained by the respondent.

20On the other hand, the Trial Judge did turn his mind to the issue of causation in connection with the presence of Tazzie. At paragraph 24 he found that the appellants had breached their statutory duty with respect to a muzzle and a leash but he did not find that that breach caused the respondent’s injury. Furthermore, he found that it was not necessary to determine whether the respondent’s fear of dogs was what caused her to attempt to step onto the porch.

Conclusion

21The Trial Judge erred in finding that the appellants were liable to the respondent by reason only of installing a deck that was 13.5 inches from the ground; by failing to find an objectively unreasonable risk of harm; and by failing to make a finding that the conduct of the appellants caused the injury to the respondent. The judgment must be set aside.

22Pursuant to s. 134 of the Courts of Justice Act an appellate court may make any order or decision that ought to or could have been made by the court at first instance or may order a new trial. Given the Trial Judge’s findings as set out above particularly as summarized in paragraph 19 above, I am satisfied that a properly instructed Trial Judge would conclude that the respondent had failed to prove that the appellants breached their duty of care and that the conduct of the appellants caused the respondent’s damage. On that basis, I dismiss the claim against the appellants.

Costs of the Trial and of the Appeal

23Following written submissions including offers to settle, the Trial Judge ordered⁶ the appellants to pay costs of $15,000 for fees, inclusive of taxes and $3,000 for disbursements, inclusive of taxes, for a total of $18,000. Since the appeal is allowed, that order as to costs is set aside. Counsel agreed that if the judgment as to liability is set aside, that the costs order should be reversed.

24Counsel agreed as to costs of the appeal as indicated below.

ORDER TO GO AS FOLLOWS:

25The appeal is allowed and the judgments dated April 21, 2016 and June 8, 2016 are set aside.

26The claim by the respondent is dismissed.

27On consent, the respondent shall pay to the appellants:

(a) costs of the appeal fixed at $10,000;

(b) costs of the trial fixed at $18,000.

Kiteley J.

I agree _______________________________

Nordheimer J.

I agree _______________________________

LeMay J.

Footnotes

1. 12016 ONSC 2239
2. 2R.S.O. 1990, c.O.2
3. 3Fisher v. Clausen 2013 ONSC 7609 at para.10 relying on Housen v. Nikolaisen 2002 SCC 33
4. 4The Law of Torts in Canada 3rd Ed., Fridman G.H.L. et al (2010) Carswell at page 297
5. 5Waldick v. Malcolm, 1989 CarswellOnt 679 (C.A.) at para. 19
6. 62016 ONSC 3749