COURT OF APPEAL FOR ONTARIO

CITATION: Nandlal v. Toronto Transit Commission, 2015 ONCA 166

DATE: 20150312

DOCKET: C59285

Cronk, Gillese and Brown JJ.A.

BETWEEN

Sarojanie (Mazie) Nandlal and Haitram Nandlal

Plaintiffs (Appellants)

and

Toronto Transit Commission

Defendant (Respondent)

Alan L. Rachlin and Joel P. McCoy, for the appellants

Stephen Sargent, for the respondent

Heard and released orally: March 10, 2015

On appeal from the judgment of Justice Paul Perell of the Superior Court of Justice, dated August 18, 2014.

ENDORSEMENT

[1] The appellants, Sarojanie (Mazie) Nandlal and Haitram Nandlal, appeal from the summary judgment granted in favour of the respondent, Toronto Transit Commission (the “TTC”), dismissing their claim for damages arising from personal injuries sustained by Mrs. Nandlal when she slipped and fell at the threshold of a flight of stairs at the TTC rapid transit station known as the “Kennedy Station”.

[2] The appellants raise three grounds of appeal. First, they argue that the motion judge erred by finding that there was no objective evidence of a slippery steps hazard at the location in the Kennedy Station where Mrs. Nandlal fell.

[3] We reject this argument.

[4] In their statement of claim, the appellants allege that Mrs. Nandlal slipped and fell on “slippery and debris strewn steps” at Kennedy Station. However, Mrs. Nandlal’s own evidence was that, although she was alert, walking with care and actually looking for hazards as she was proceeding through the station, she did not see any debris on the tile at the location where she fell. Rather, because she had noticed garbage and debris in the station and in subway cars on prior occasions, and elsewhere on the station floor on the day in question, she believed that she had slipped on debris at the top of the stairwell. This was not evidence about the condition of the top of the stairwell on the day that Mrs. Nandlal unfortunately fell. Further, there was undisputed affirmative evidence before the motion judge that the tiles on which Mrs. Nandlal fell were non-slip tiles and were not defective or in need of repair.

[5] In light of this evidence, the motion judge held:

[26] In the case at bar, Mrs. Nandlal provides no direct evidence that there was debris on the stairs, but, rather, she provides her belief that the stairs were slippery and debris strewn. The direct evidence is that the tiles were non-slip tiles in good repair, and, thus, Mrs. Nandlal’s case comes down just to her belief that she slipped on stairs made slippery by the strewn debris that she believes existed but that she did not see, notwithstanding her alertness and the care in which she was walking.

[27] There is no objective evidence of the slippery steps hazard, but only a subjective rationalization by Mrs. Nandlal for her having fallen down the stairs. That she saw other debris at other parts of the station that day or that she saw debris on past occasions does not lead to the inference that there was a debris hazard at the top of the stairs on November 18, 2008 that the TTC could and should have removed.

[6] We see no reversible error in this reasoning. Indeed, we agree with it.

[7] The appellants rely on the decision of this court in Kamin v. Kawartha Dairy Ltd. (2006), 2006 3259 (ON CA), 79 O.R. (3d) 284 to argue that the motion judge erred by imposing too high a burden of proof on the appellants in resisting the TTC’s summary judgment motion.

[8] We disagree. In our view, Kamin does not assist the appellants. In Kamin, unlike this case, there was considerable uncontradicted evidence that the entire parking lot where the plaintiff was injured was in poor condition and a state of disrepair: Kaminat para. 5. This included the testimony of the plaintiff’s husband that at the time and place his wife fell, the surface of the parking lot was unclear, unmaintained, unsafe and, generally, in a state of disrepair. There was no comparable evidence in this case.

[9] The appellants next argue that the motion judge erred in his application of the test for granting summary judgment by refusing, ostensibly without resorting to his enhanced fact-finding powers under rule 20.04 of the Rules of Civil Procedure, to draw an inference based on the circumstantial evidence before him that the top of the stairwell where Mrs. Nandlal fell was in a state of non-repair.

[10] Again, we disagree. The reasons reveal that the motion judge appreciated the test for granting summary judgment set out in Hryniak v. Mauldin, 2014 SCC 7 and applied it correctly in this case.

[11] In accordance with Hryniak, the motion judge first considered whether there was a genuine issue requiring a trial based on the record before him, without resorting to his fact-finding powers under Rule 20. Based principally on Mrs. Nandlal’s own uncontradicted evidence, he concluded that no genuine issue requiring a trial had been demonstrated. Unlike the authorities relied on by the appellants, this determination did not involve the assessment of credibility or the resolution of conflicting evidence. The motion judge’s conclusion on this issue attracts significant deference from this court.

[12] Finally, contrary to the appellants’ submission, we see no error in the motion judge’s approach to or application of the summary judgment test or the substantive law on occupier’s liability. The motion judge found that the appellants had not established that the TTC failed to meet its statutory obligation to keep Kennedy Station reasonably safe for use by TTC patrons. This finding was grounded in the evidentiary record. In particular, there was evidence before the motion judge that the TTC’s maintenance system at the Kennedy Station reflected reasonable steps to keep the premises safe in all the circumstances. The appellants say that the motion judge wrongly inferred from the evidence of the TTC’s general maintenance practices that those practices were actually followed on the day of the accident.

[13] We reject this submission. The motion judge observed at para. 30: “There is no evidence that would justify a conclusion that the TTC did not meet its statutory duty to take such care in all the circumstances as is reasonable to see that persons entering on the Kennedy Station are reasonably safe”. Further, there was uncontradicted evidence before the motion judge from the TTC caretaker assigned to Kennedy Station of his duties under the TTC maintenance system. He swore that he believed that he had discharged those duties on the day in question by performing a visual scan of the entire station for any hazards. The appellants elected not to cross-examine the TTC caretaker on this evidence.

[14] It was open to the motion judge to accept the caretaker’s unchallenged evidence, which was fatal to any suggestion of a genuine issue requiring a trial in respect of the TTC’s alleged negligence as occupier of the premises.

[15] For these reasons, the appeal is dismissed. The TTC is entitled to its costs of the appeal, fixed in the amount of $5,000, inclusive of disbursements and HST.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“David Brown J.A.”