Court File and Parties
COURT FILE NO.: CV-1736/13 DATE: 20170526
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANDRA TONDAT Matt Lalande, for the Plaintiff Plaintiff
- and -
HUDSON’S BAY COMPANY and QUINTERRA PROPERTY MANAGEMENT INC. and CINTAS CANADA LIMITED Kieran Dickson, for the Defendants Defendants
HEARD: April 24 and 25, 2017, at Milton
REASONS FOR JUDGMENT
André J.
1Ms. Sandra Tondat brings a claim for damages against Quinterra Property Management Inc. (“Quinterra”) and the Hudson’s Bay Co. (the “Bay”) as a result of a slip and fall on December 2, 2012. The parties have agreed on the quantum of damages in the event that either or both of the defendants are found liable. The only issue is whether the defendants are responsible for Ms. Tondat’s accident.
SUMMARY OF THE EVIDENCE
2Ms. Tondat, a Superintendent of Education with the Toronto District School Board, attended the Bay store in Oakville, on December 2, 2012, at approximately 1:00 p.m. to return a small vacuum cleaner. It had been raining heavily earlier that morning. However, the rain had been reduced to a light drizzle when Ms. Tondat went to the store.
3Ms. Tondat approached the two sets of doors at the southern end of the building. She carried the vacuum in both hands. A patron of the store opened the door for her. Ms. Tondat entered and stepped onto a black floor mat which was approximately three feet high. Underneath the mat was a tiled floor. Ms. Tondat did not see any debris or water on the floor.
4Ms. Tondat slipped and fell as she stepped from the mat onto the tiled floor. She fell on her right knee breaking her knee cap.
5Ms. Tondat sat on the mat after she fell. She then noticed water on the floor. Her buttocks became wet after she sat on the mat after the accident.
6There is no dispute regarding Ms. Tondat’s injuries, the medical treatment she received or her rehabilitation. She required surgery to repair her injury. She had additional surgery one year later. She was off work for six months. She required extensive physiotherapy. She experienced prolonged periods of depression following the accident.
7Following the accident Ms. Tondat was attended to by the store’s manager and two security guards. Her sister, Elena Dibattista, also attended the scene. Ms. Dibattista confirmed that it was still drizzling after 1:00 p.m. on that day.
8Ms. Dibattista saw her sister sitting on the floor following the accident. She also saw that the floor was wet. She testified that she was concerned that the floor tiles in the vestibule appeared wet. She was not cross-examined.
9Douglas Derby, Quinterra’s Director of Corporate Affairs, testified that the Bay store had contracted Quinterra to perform cleaning services at its Oakville store. He had no personal knowledge of the condition of the store on December 2, 2012. He had no maintenance sheets or inspection forms for the store. He did not know what cleaning, if any, had been done in the vestibule on December 2, 2012.
10The company’s time sheets showed that an employee had done “light duty” at the store on December 2, 2012, but Mr. Derby did not know what she had done. He had no evidence that this employee had cleaned the vestibule on the date of the accident. The company’s records indicated that this employee had performed reduced cleaning on December 2, 2012. She was the only cleaner assigned to clean the 118,348 square foot Bay store on December 2, 2012.
11Dr. Adam Campbell, who holds a Bachelor’s Degree in Kinetics and a Ph.D. in Neuromechanics, was qualified, on consent, as an expert in the field of analyzing slip and fall accidents. He tested the floor in the vestibule on April 16, 2014 and determined that the coefficient of friction of the floor, or its slip resistance, exceeded the acceptable standard when the floor was dry or wet. He opined that the floor was not unreasonably dangerous when wet; or posed no risk of harm to a patron of the store. To that extent, Dr. Campbell suggested that the defendants are not liable for Ms. Tondat’s injuries.
PLAINTIFF’S POSITION
12Ms. Tondat’s counsel submits that both defendants had a duty of care to her under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and that they patently failed to discharge that duty. The Bay store had no procedures in place to protect patrons who entered the store in adverse weather, nor did they display any warning signs concerning water in the vestibule.
13Ms. Tondat’s counsel submits that Quinterra is equally liable given its substandard cleaning protocol at the store and its failure to ensure that the vestibule did not pose a hazard to patrons of the store. There is no evidence that anything was done, either by Quinterra or by the Bay store, to mitigate or reduce the danger posed by water on the floor in the vestibule.
DEFENDANTS’ POSITION
14The defendants’ counsel submits that the floor was safe and that it was reasonable for the Bay to use a “matte finish tile” in the vestibule to discharge its duty of care to its patrons. He submits that the flooring provided adequate traction in dry and wet conditions, and accordingly, “did not constitute an unreasonable danger.” To that extent, the defendants are not liable for any damages on account of Ms. Tondat’s unfortunate fall.
GOVERNING PRINCIPLES
15Section 1 of the Occupiers’ Liability Act defines an “occupier” as a person in physical possession of a property or a person who has responsibility for and control over the condition of the premises.
16Section 3(1) of the Act imposes on an occupier of property a duty to take reasonable care so that persons entering on its premises and the property brought on the premises are reasonably safe.
17Section 3(2) provides that an occupier’s duty of care applies whether or not the condition was caused by the condition of the premises or by an activity carried on in the premises.
18Section 4(1) of the Act indicates that an occupier’s duty of care does not apply with respect to risks willingly assumed by a person who enters the premises.
19In Waldick v. Malcolm (1989), 70 O.R. (2d) 717 (C.A.) at paras. 20, 25, aff’d, [1991] 2 S.C.R. 456, the Court of Appeal stated that:
[T]he Act imposes an affirmative duty on occupiers to make their premises reasonably safe for persons entering them, by taking reasonable care to protect them from foreseeable harm. This duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. This standard of reasonableness requires neither perfection nor unrealistic or impractical precautions against known risks. However, occupiers are duty-bound to take such care as in all of the circumstances of the case is reasonable. In each case, the trier of fact must determine what standard of care is reasonable and whether that standard of care has been met.
20The plaintiff bears the onus, on a balance or probabilities, to prove that the occupier breached their statutory duty of care by failing to take reasonable steps to ensure that persons entering their premises were reasonably safe while doing so: see C.R. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 40-49.
21In Morash v. McAllister Place Ltd., 1997 CarswellNB 105, at para. 33, the court noted that a retailer’s liability to its customers will be determined by the extent to which it provided “reasonably safe premises for the purposes contemplated, that is, for the reasonable safety for its patrons of all ages, strengths, infirmities, shopping and carrying parcels throughout the [premises] and, if not, whether any failure was the cause or a contributing cause of the plaintiff’s injury.”
22Section 3 of the Act establishes a duty of care only, and not a presumption of negligence. Accordingly, in order to establish liability, a plaintiff must be able to identify some act or failure to act on the part of the occupier, which caused the injury complained of: see St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721(Q.L.), aff’d 2007 ONCA 108, 2007 CarswellOnt 836 (W.L. Can.). Noted in Baltadjian v. Roman Catholic Episcopal, 2017 ONSC 61, 2017 CarswellOnt 982 (W.L. Can.), at para. 29.
23In McGrath v. Toronto Transportation Commission, [1946] O.W.N. 931, the Court of Appeal noted at page. 932 that in order to establish the liability of an occupier, a plaintiff must establish, on a balance of probabilities, a causal connection between the negligent act of the occupier and the injury suffered.
APPLICATION OF THE GOVERNING PRINCIPLES TO THE FACTS OF THIS CASE
24There is no dispute that both defendants are occupiers of the subject property pursuant to s. 1 of the Act.
25Ms. Tondat fell on the floor of the vestibule of the Bay store on December 2, 2012. There is no evidence that at the time she fell, she was impaired by alcohol or drugs. Neither is there any evidence that she was in a hurry. She was wearing leather sandals with rubber soles. There is no evidence that her heel became caught on the mat thereby causing her to fall. There is no evidence of any pre-existing medical condition that precipitated the fall. There is no evidence of any spontaneous collapse of her right knee while she was in the vestibule.
26There is evidence however, that there was water on the tiled floor in the vestibule. During his cross-examination of Ms. Tondat, counsel for the defendants sought to raise doubt about the presence of water on the floor by suggesting to her that she never told the two security officers and store manager who attended the scene that there was water on the floor. While Ms. Tondat may not have done so, Ms. Dibattista testified that the floor was indeed wet and that she had concerns about this.
27I therefore find that the floor beyond the mat in the vestibule was indeed wet when Ms. Tondat fell.
28The timing of the fall, in my view, establishes a causative nexus between the fall and the water on the floor. Ms. Tondat’s unchallenged testimony is that she fell when she extended her right foot from the mat onto the tiled floor. The presence of the water in the area is significant for a few reasons. The store was operating on a Christmas schedule and to that extent, customers were coming in and out of the store using that entrance for a few hours before the accident. Second, it had been raining heavily earlier during the morning. Third, it was raining lightly when Ms. Tondat entered the store. It is therefore reasonable to infer that any water in the vestibule would have originated from outside the store.
29In my view, it is well known within the sphere of human experience that the presence of water on a floor will increase the likelihood of a slip and fall. The extent to which that will occur will depend on a number of factors including, but not limited to, the nature of the floor, the nature of the person’s footwear, the manner of walking and the weather conditions. The defendants should reasonably have known that the patrons of the store would be wearing every manner of footwear when they entered the southern vestibule.
30The defendants rely on the expert opinion of Dr. Campbell for the proposition that the floor was not unreasonably dangerous when wet and accordingly, the occupier was not required to take any remedial steps to abate the risk.
31Dr. Campbell, a Human Factors Consultant, was qualified, on consent, as an expert in the analysis of slip and fall accidents. He visited the store on April 16, 2014, and examined the vestibule. He examined the floor and concluded that the ceramic tiles had a matte finish. He endeavoured to measure the “slip resistance” of the floor to determine its traction or its surface “coefficient of friction.” He opined that the acceptable “coefficient of friction” of a floor is 0.3 or less. Any fraction greater than this number would exceed the acceptable coefficient of friction for any floor surface.
32Dr. Campbell used a machine called a Tribometre, “Bot-3000,” to measure the coefficient of friction of the floor in the vestibule. He tested the machine before taking measurements and found it to be in good working condition. He applied a leather presspad to the floor and tested the dry tiles. He then saturated the entire vestibule area with approximately one inch of water and tested the surface with a rubber test “foot.” He did a static test, one done with the rubber foot in one location, and a dynamic test with the foot moving over the tiles at a constant rate.
RESULTS OF THE TEST
33The coefficient of friction of the dry static test of the floor was 0.43, which exceeded the acceptable level of the coefficient of friction.
34The coefficient of friction when the floor was wet was 0.74 under static conditions and 0.51 under dynamic conditions. Based on these findings, Dr. Campbell concluded that the floor in the vestibule posed no risk of slipping either when dry or wet. To that extent, the occupier was not required to keep it dry to maintain safety or to post warning signs when wet, to maintain safety.
35The defendants’ counsel submits that given the unchallenged testimony of Dr. Campbell that the floor of the vestibule exceed the acceptable safety level, the court must find the defendants not liable for any injury suffered by Ms. Tondat as a result of her fall.
36I disagree for the following reasons. I have the discretion to determine the weight to be placed on Dr. Campbell’s evidence. He conducted his tests under ideal or controlled conditions. He made a scheduled visit to the store. There were three mats on the floor compared to two at the time of the accident. He saturated the floor with distilled water compared to rain water which was likely on the floor on December 2, 2012. Furthermore, he had no knowledge of the force Ms. Tondat applied to the floor; the angle at which her right foot contacted the floor; the presence or absence of any grease, oil or other cleaning substance on the floor when the accident occurred; the effect of Ms. Tondat carrying a package in her hands when she stepped onto the floor; or the condition of the sole of her shoe when she fell.
37Dr. Campbell testified that the footwear worn by Ms. Tondat was considered in determining the acceptable coefficient of friction. However, there are simply too many variables to conclude that the floor was inherently safe irrespective of the weather conditions, the wetness of the floor, the nature of the person’s footwear or the presence of any oily or greasy substance on the floor. Indeed, Dr. Campbell conceded in cross-examination that there were other factors that could affect the coefficient of friction of the floor of the vestibule.
38In my view, Dr. Campbell’s testimony does not alter the fact that Ms. Tondat slipped and fell because of the floor in the vestibule, at the very minimum, was wet. There is no evidence that a Quinterra employee cleaned the floor on December 2, 2012. There is no evidence that she even visited the area on that day. There is no evidence concerning areas she cleaned in the 118,348 sq. foot area of the Bay store on December 2, 2012. Neither is there any evidence that her work had been supervised on that day to ensure that, given the weather conditions on December 2, 2012, patrons seeking to participate in Christmas shopping would not have to contend with conditions that increased the possibility of a slip and fall.
39Not only is there no evidence of a safety system to abate the risk of a fall, there is no evidence that whatever cleaning system Quinterra relied upon was adjusted to the adverse weather conditions: see Hussein v. Loblaws Supermarket Ltd., 2000 CarswellOnt 1950 (W.L. Can.) (Sup. Ct.).
40To the contrary, Ms. Tondat has established that Quinterra did not have a system for dealing with water hazards in the vestibule and that, even if it did, it was not working on December 2, 2012. To that extent, Ms. Tondat must succeed in her claim for damages against Quinterra: see Gardiner v. Thunder Bay Regional Hospital, 1999 CarswellOnt 802 (W.L. Can.) (Ct. J. (Gen. Div.)).
41The defendants rely on the Nova Scotia Supreme Court’s decision in Miller v. Royal Bank of Canada, 2008 NSSC 32, 263 N.S.R. (2d) 121, for the proposition that to require them to display warning signs or establish a cleaning system in the vestibule would be to hold the defendants to a standard of perfection that is not contemplated by the Act.
42The Miller case involved an action for damages for injuries sustained in a slip and fall at a bank. The plaintiff fell after stepping off a mat and walking a few feet on the ceramic tiled floor which had a matte finish. It had not been raining; however there was moisture in the form of wet footprints on the floor. The bank did not have a system in place to check the condition of the floor. The evidence did not disclose that the plaintiff’s sandals contributed to her fall.
43The court ruled in favour of the bank. It held that liability should not extend to a slip on a wet footprint. It held further that the bank could not be required to observe a standard of perfection or act as an insurer: see paras. 118-119.
44Counsel for the defendants is correct that the facts in the Miller case are similar to those in the instant case. However, there are significant factual differences in the two cases. In Miller, it had not been raining prior to the accident. The plaintiff in that case fell after walking a few feet on the matte tiles. Further, the court in Miller decided not to attach liability to a slip on wet footprints, unlike this case where there is evidence that the floor in the vestibule was wet and that Ms. Tondat fell immediately after stepping onto the tile floor. For the above reasons, the Miller case can be distinguished from this case.
CONCLUSION
45Judgment is in favour of the plaintiff, Ms. Tondat. Quinterra is ordered to pay her damages in the amount of $100,000.
COSTS
46The parties are ordered to make written submissions regarding costs within twenty-one (21) days of today’s date.
André J.