Court of Appeal for Ontario

Date: May 10, 2017 Docket: C62160 Judges: Doherty, Benotto and Trotter JJ.A.

Parties

Between

Gregory Cannon Plaintiff (Appellant)

and

Cemcor Apartments Inc. and Myles Property Management Inc. Defendants (Respondents)

Counsel

Paul J. Pape, for the appellant

Alan Rachlin, for the respondents

Hearing and Appeal

Heard: April 26, 2017

On appeal from: the judgment of Justice Cornell of the Superior Court of Justice, dated April 29, 2016; 2016 ONSC 2828

Decision

By the Court:

Facts and Background

[1] Mr. Cannon slipped on the ice in the parking lot of the apartment where he lived and broke his leg. Under the terms of his lease, the landlord, Cemcor Apartments Inc. ("Cemcor"), was responsible for maintaining the parking lot. Cemcor had a contract with Myles Property Management Inc. ("Myles") to clear the snow and ice from the parking lot.

[2] Mr. Cannon sued Cemcor for negligence. It is common ground that under the Occupiers' Liability Act, R.S.O. 1990, c. O.2, Cemcor owed a duty of care to Mr. Cannon. In the language of the statute, Cemcor was under a duty "to take such care as in all of the circumstances of the case is reasonable" to ensure that Mr. Cannon was "reasonably safe while on the premises."

[3] The trial judge dismissed the claim. Mr. Cannon appealed. At the end of oral argument, the court advised counsel that the appeal was dismissed with reasons to follow. The reasons are set out below.

Trial Evidence and Issues

[4] The evidence at trial focused primarily on two factual issues:

• the terms of the winter maintenance program Cemcor had in place through its contract with Myles to plow and sand the parking lot; and
• the actual conditions of the parking lot when Mr. Cannon slipped and fell.

[5] After a detailed review of the evidence, the trial judge held, at para. 49:

I conclude that given the realities and conditions that are experienced in northern Ontario in the winter, the landlord did have in place a reasonable policy to provide proper winter maintenance for the parking lot.

[6] The appellant does not challenge this finding on appeal.

Appellant's Challenge on Appeal

[7] The appellant does submit, however, that the trial judge erred in finding that Cemcor followed that policy on the day of the accident. The appellant argues that by the terms of Cemcor's winter maintenance policy, the amount of snow on the ground on the day of the accident required that the entire parking lot be cleared of snow. On the evidence, only a partial clearing had been done.

[8] In considering whether, according to Cemcor's own maintenance criteria, the entire parking lot should have been plowed, the trial judge focused on the actual conditions in the parking lot at the time of the accident, as described by various witnesses called by both Mr. Cannon and Cemcor (see paras. 68-109).

[9] The trial judge ultimately held, based largely on the evidence of defence witnesses, but to some extent on Mr. Cannon's evidence, that the parking lot was adequately cleared at the time of the accident, but for the "isolated slippery spot" on which Mr. Cannon slipped and fell.

Court's Analysis of Factual Findings

[10] The trial judge made no factual error in his analysis of the evidence. The condition of the parking lot at the time Mr. Cannon fell was the crucial factual issue. Evidence of Cemcor's snow removal policy, evidence of snowfalls in the preceding weeks and days, and the Environment Canada records of snowfall at the Sudbury airport, some 20 to 25 kilometres away from the parking lot, while no doubt relevant, were regarded by the trial judge as of secondary value to the descriptions of the condition of the parking lot given by the persons who were in the parking lot on the day of the accident.

[11] It was open to the trial judge to treat the firsthand evidence of the witnesses as more probative of the condition of the parking lot at the time of the accident than the statistical information from Environment Canada. We do not accept the argument that the Environment Canada records unequivocally established that the amount of snow on the ground in the parking lot was in excess of the amount that on Cemcor's own maintenance criteria required the plowing of the entire parking lot. While the records indicated significant snowfall in the Sudbury area in December and January, they were not so compelling as to require the trial judge to reject the evidence of the witnesses who were actually in the parking lot on the day of the accident. The trial judge made no error in his analysis of the evidence.

Bias Allegation

[12] The appellant also submits that the trial judge's interventions in the course of the trial demonstrate a reasonable apprehension of bias. In his factum, the appellant referred to interventions by the trial judge, both during counsel's cross-examination of defence witnesses and during counsel's closing argument. In oral argument, counsel focused on the interventions during cross-examination. We will do the same. The interventions by the trial judge during closing argument were not inappropriate.

[13] There were many interventions by the trial judge during counsel's cross-examination of the defence witnesses. Some were appropriate. Trial judges have a responsibility to ensure that cross-examinations are conducted fairly and in accordance with the rules of evidence. For example, it was proper for the trial judge to caution witnesses against "guessing" or "assuming", especially when the nature of some of counsel's questions on cross-examination seemed to invite speculation or assumptions. It was also appropriate for the trial judge to interrupt counsel when the purpose of a certain line of questioning was unclear to the trial judge. Sometimes, a trial judge cannot assess relevancy without some idea of where a line of questioning is going.

[14] However, many of the interventions were unnecessary, or at least premature, especially in the context of a trial without a jury. The interventions, in their cumulative effect, disrupted counsel's cross-examination and interfered with the narrative flow of the evidence. As the trial proceeded, the interruptions also created an obvious tension between counsel for Mr. Cannon (not Mr. Pape) and the trial judge. As the interventions increased and the tensions mounted, the trial judge's tone on occasion became blunt, if not rude, and sometimes condescending.

[15] It must be said that the efficiency and, perhaps more importantly, the tone of the trial suffered, to some degree, as a result of the trial judge's many interventions and the tensions that developed between counsel and the trial judge as a result of those interventions. We also understand the appellant's concern about the appearance of fairness. However, the trial judge's interventions do not rise to the high level required to displace the presumption of judicial impartiality. Having regard to that presumption, a reasonable person, properly informed, would not apprehend bias as a result of the trial judge's interventions.

[16] The interventions did not prevent counsel from fully developing the defence position. Nor did the interventions necessarily favour the defence over the plaintiff. We do not agree with counsel for the appellant's submission that the trial judge's interventions "coached" the defence witnesses. The trial judge's repeated admonitions to witnesses to stay within the limits of their own knowledge in answering questions did not appear to necessarily advantage one side or the other. Depending on the question, the limits on the response imposed by the trial judge had the potential to assist either side.

[17] We also do not agree that the transcript permits this court to conclude that the trial judge took over carriage of the defence. As counsel for the respondent correctly points out, it is impossible to say from the transcript alone whether some of the trial judge's interventions were at his own initiative, or in response to defence counsel standing to make an objection.

[18] The trial would have proceeded more smoothly had the trial judge intervened less and allowed defence counsel to conduct his cross-examination as he saw fit. Indeed, the need for many of the interventions would probably have disappeared had the trial judge simply allowed defence counsel a little more leeway in developing his line of questions. However, while the judge can be properly criticized for many of his interventions, we do not accept that those interventions rendered the trial unfair, or created a reasonable apprehension of bias.

Disposition

[19] The appeal is dismissed. Costs to the respondent in the amount of $15,000, inclusive of disbursements and relevant taxes.

Released: May 10, 2017

Doherty J.A.

M.L. Benotto J.A.

G.T. Trotter J.A.