CITATION: Blake v. Hoopp Realty Inc., 2017 ONSC 6115
DIVISIONAL COURT FILE NO.: DC-1070-17 DATE: 20171012
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kiteley, Conway, Mulligan JJ.
BETWEEN:
JENNIFER BLAKE and DELANEY BLAKE
Plaintiffs (Appellants)
– and –
HOOPP REALTY INC., WALTERIC MANAGEMENT LIMITED, MORGUARD INVESTMENTS LIMITED and NORTHGATE PROPERTIES INC.
Defendants (Respondents)
COUNSEL:
Ian McLean, for the Plaintiffs (Appellants)
Brian I. Monteiro, for Walteric Management Limited, Defendant (Respondent)
HEARD at Sudbury: October 12, 2017
REASONS FOR JUDGMENT
Kiteley J.
[1] This is an appeal of a judgment by Del Frate J. dated June 1, 2016 in which he granted judgment consistent with the jury verdict that dismissed the appellants’ claim and ordered the plaintiffs to pay costs to the defendant in an amount to be agreed upon or ordered. In a judgment dated February 8, 2017, Del Frate J. fixed costs at $100,000 inclusive of interest and disbursements.
[2] The appellant was employed as a registered dental hygienist by Walteric Management Limited which carried on a dental business in the premises. On August 13, 2009, while she was attending to a patient, a large dental light attached to the ceiling of the office, without warning, dropped from the ceiling.
[3] The appellants alleged that she suffered injuries that were the direct result of the negligence of the defendants jointly and severally. The statement of claim asserted different particulars of negligence vis-à-vis Walteric Management Limited, Morguard, and Hoopp, the essence of which was the alleged breach of the defendants standard of care under the Occupiers’ Liability Act. The appellants alleged that she suffered a physical injury ultimately resulting in surgery and leaving her with a permanent partial disability with consequent loss of potential future earnings, a decreased career prospect in relation to longevity and effectiveness, special damages and general damages.
[4] The trial was heard with a jury for 6 days from May 24 to June 1, 2016. Only Walteric remained as a defendant. The trial judge instructed the jury to answer the following question:
Have the Plaintiffs proven on a balance of probabilities that the Defendant failed in its duty to keep the light fixture at 1500 Fisher Street in the Northgate Shopping Centre reasonably safe for persons using the property on August 13, 2009?
[5] The jury answered no.
[6] On the basis of the verdict that liability had not been proven, the trial judge made an endorsement dismissing the action with costs in an amount to be agreed upon, or ordered by the court.
[7] In the notice of appeal the appellants asserted that there was no basis for the decision of the jury that there was no negligence on behalf of the defendants and consequently the jury decision was unreasonable and perverse; that the jury verdict ignored the instructions by the trial judge in relation to the definition of inference of negligence and the concomitant finding thereon; and that the jury ignored or failed to deal with the evidence of the defendants that there was no system of maintenance in place to test for the structural integrity of the dental lamp which fell from the ceiling.
[8] The appellants assert that the verdict is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have reached it. They take the position that the decision of the jury was contrary to the totality of the evidence, the instructions of the presiding justice and the relevant legal context. The appellants note that pursuant to s. 134(1) (a) of the Courts of Justice Act, this court has the jurisdiction to order a new trial. However, the appellants assert that where the fairness of the trial is not in issue and the jury appears simply to have arrived at an inappropriate assessment, the interest in avoiding the delay and expense of a new trial weighs in favour of this court substituting its own assessment of damages under s. 119 of the Courts of Justice Act rather than ordering a new trial.
[9] According to the appellants, the principal issue at trial was the failure of the defendants to implement and maintain any systematic procedure for checking the structural integrity of the dental lamps on an ongoing basis, the evidence being that there had been no examination of the integrity of the lamps for many years prior to the date of injury. Counsel took the position that the evidence was that the defendants employed a rigorous maintenance system in relation to disinfecting dental instruments on a consistent basis but neglected completely to examine and maintain the structural integrity of the dental lamps. In the factum and in submissions, counsel for the appellants pointed out evidence of various witnesses that he said supported a finding that the defendants had breached their duty of care under the Occupiers’ Liability Act, by admittedly having no system of maintenance of lights, all of which evidence was ignored by the jury leading to the finding that negligence had not been proven.
Analysis
[10] In a negligence case, the burden is on the plaintiff to prove on a balance of probabilities that the defendant was negligent and that the defendant’s negligence caused the damages suffered. As counsel for the respondent Walteric pointed out, 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 duty is to make the premises reasonably safe from foreseeable harm. The duty is not absolute and it is not a strict liability tort. The occupier is not an insurer in the event of unforeseen and unforeseeable accidents.
[11] In that legal context, in the factum and in submissions, counsel for the respondent Walteric Management Ltd. also reviewed the evidence that the jury had heard on the question of liability and took the position that there was some evidence on which the jury could find that the light fixture falling from the ceiling was unforeseen and unforeseeable. The respondent also asserted that the appellant had led no evidence of causation, namely no evidence that if the respondent had had a system of maintenance, that the light would not have fallen from the ceiling.
[12] The legal burden was on the plaintiff to prove negligence, including causation. In my view the verdict of the jury had to have been based on the acceptance of the evidence on behalf of the defendant which included the dentist and his serviceman who had been servicing the equipment for 20 years and who had installed the light. There was therefor some evidence to support the jury’s verdict.
[13] In Fonseca v. Hansen 2016 ONCA 299 the Court of Appeal dealt with the scope of appellate review and adopted this excerpt from McCannell v. McLean, [1937] S.C.R. 341 at p. 343:
The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.
[14] The Supreme Court in McCannell also quoted from the judgment of Lord Wright in Mechanical and General Inventors Co. Ltd. v. Austin, [1935] A.C. 346, at p. 375 (H.L.):
Thus the question in truth is not whether the verdict appears to the appellate Court to be right, but whether it is such as to show that the jury have failed to perform their duty. An appellate Court must always be on guard against the tendency to set aside a verdict because the Court feels it would have come to a different conclusion.
Conclusion
[15] Juries are expected to hear and weigh all of the evidence. The fact that this jury came to a conclusion with which the appellants disagree does not mean that the verdict is perverse.
[16] The appeal is dismissed. On consent as to the amount, the appellants shall pay costs to the respondent Walteric Management Limited in the amount of $20,000 all in.
___________________________ Kiteley J.
I agree
Conway J.
I agree
Mulligan J.
Date of Reasons for Judgment: October 12, 2017
Date of Release: October 13, 2017
CITATION: Blake v. Hoopp Realty Inc., 2017 ONSC 6115
DIVISIONAL COURT FILE NO.: DC-1070-17 DATE: 20171012
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Kiteley, Conway, Mulligan JJ.
BETWEEN:
Jennifer Blake and Delaney Blake
Plaintiffs (Appellants)
AND
Hoopp Realty Inc., Walteric Management Limited, Morguard Investments Limited and Northgate Properties Inc.
Respondents
REASONS FOR JUDGMENT
Kiteley J.
Date of Reasons for Judgment: October 12, 2017
Date of Release: October 13, 2017