COURT OF APPEAL FOR ONTARIO

CITATION: Saisho v. Loblaw Companies Limited, 2015 ONCA 172

DATE: 20150317

DOCKET: C58630

MacFarland, Pardu and Huscroft JJ.A.

BETWEEN

Yaye (Jackie) Saisho and Yaye (Jackie) Saisho, Estate Trustee of the Estate of Tetsuo (James) Saisho

Plaintiffs (Appellants)

and

Loblaw Companies Limited, Westfair Properties Ltd. and

James Douglas Beardy

Defendants (Respondents)

Paul Pape and Joanna Nairn, for the appellants

Chantal Brochu, for the respondents Loblaw Companies Limited and Westfair Properties Ltd.

Heard: February 27, 2015

On appeal from the judgment of Justice F. Bruce Fitzpatrick of the Superior Court of Justice, dated March 26, 2014, with reasons reported at 2014 ONSC 1949.

ENDORSEMENT

[1] The appellants appeal the judgment of Fitzpatrick J. by which their action against Loblaw Companies Limited and Westfair Properties Ltd. was dismissed.

[2] This was a tragic case. Mr. Saisho, now deceased, was 90 years of age in December 2007 when, with the help of his assistant, he went shopping at Westfair Bulk (“Westfair”), a bulk item grocery store in Thunder Bay. In this store, the evidence was that cashiers do not assist customers in loading their own purchases into their carts.

[3] Mr. Saisho had run a grocery store for many years and was in Westfair buying bulk stock for his store.

[4] James Beardy and his friend Albert Sakakeep were in Westfair shopping at the same time. Mr. Beardy and his friend had come from their Round Lake First Nation home some 200 miles north of Sioux Lookout to stock up on supplies and thereafter return to their home. Mr. Beardy admitted at trial that they were in somewhat of a rush to get back on the road home.

[5] As it happened, Messrs. Beardy and Sakakeep were checking out through aisle 1 of Westfair at about the same time that Mr. Saisho and his helper were checking out through aisle 3.

[6] Mr. Beardy and Mr. Sakakeep shopped independently of one another and each had a shopping cart containing their respective purchases. Mr. Beardy went through the checkout first. As the cashier scanned his items, he loaded them into his cart. When she finished scanning Mr. Beardy’s items, Mr. Beardy stopped loading his cart, approached the cashier and paid for his purchases. At this point in time, the evidence discloses his cart was not overloaded.

[7] Mr. Sakakeep was next in line after Mr. Beardy. He placed his purchases onto the conveyor belt for the cashier to scan. Mr. Beardy remained with his cart at the end of the conveyor and loaded Mr. Sakakeep’s purchases into his (Mr. Beardy’s) already partially loaded cart. Mr. Sakakeep’s evidence was that Mr. Beardy had finished packing Mr. Sakakeep’s purchases onto the cart at about the same time Mr. Sakakeep completed paying for his purchases.

[8] As the two began to move toward the exit, Mr. Beardy’s cart was overloaded to the point that he could not see over the top and he was unable to see what was directly in front of him. Mr. Sakakeep then recalled the need to make a further purchase and he left Mr. Beardy to return to the merchandise area of the store. It was agreed that Mr. Beardy would go ahead and start to pack the truck. As Mr. Sakakeep left, he continued talking to Mr. Beardy, who turned to look at him while the two spoke.

[9] Mr. Beardy described what happened next:

A. I start to, well I lean over to, to look, just glance without really making sure. I just assumed that it’s, it’s clear...

Q. Right?

A. ...and, and of course as Albert [Sakakeep] called my name I looked over to him...

Q. Right?

A. …and I did not go very far when I felt a bump.

Mr. Beardy later testified:

A. Because as I recall I felt like I had just started to move and I didn’t go very far when I felt, when I felt the bump and I heard something fall.

[10] Unfortunately, the “bump” Mr. Beardy felt was his cart striking Mr. Saisho. Mr. Saisho’s helper had gone ahead to load their purchases into their vehicle, leaving Mr. Saisho, who moved very slowly and walked with the assistance of a cane, to make his own way alone to the car.

[11] Mr. Saisho suffered a devastating injury as the result of being struck by Mr. Beardy’s cart and was confined to hospital from the accident date to the date of his death on January 18, 2010.

[12] The law is not in dispute. Section 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 governs:

Occupier’s Duty

3. (1) 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, and the property brought on the premises by those persons are reasonably safe while on the premises.

[13] The trial judge concluded that the store policies in respect of general health and safety and the directions given to employees to take action if they saw a hazard “were adequate and reasonable” in all the circumstances.

[14] The appellants submit that the trial judge erred in law in reaching this conclusion. They submit that the store policy was inadequate and there ought to have been a specific policy dealing with overloaded shopping carts and requiring checkout cashiers to specifically look to ensure their customers did not overload their carts. We do not agree with this submission.

[15] The written store policy was in general terms. Item 10 of the Westfair Foods Ltd. Safety, Environment and Waste Management Policy provided:

10. Be on the alert for potentially dangerous activities by patrons; those carrying leaking containers, drinks, broken bags or failing to control their children, etc. If they are creating a hazard for others I must ask them to stop. If they will not, I must contact my supervisor or store manager immediately.

[16] It is clear from the evidence adduced at trial that the employees were well aware that overloaded shopping carts presented the potential to cause injury or harm. Staff testified that, if they saw one, they would intervene and address the situation. There were examples given in evidence of what employees had done in the past when they observed a patron with an overloaded cart, from helping the customer reorganize the load, to providing a second cart, and to offering assistance to the parking lot. It was, as the trial judge observed, a matter of common sense. This was a “no frills” operation. The evidence was that customers knew they were responsible for bagging and boxing their own purchases and loading their own carts. Customers would not get any assistance from the cashier, who was often already onto the next customer.

[17] To require a standard that would specifically address the problem of overloaded shopping carts, as the appellants submit, would in our view be to require a standard of perfection and that is not what the law requires. There was a reasonable policy in place and the employees knew what to do if they saw an overloaded cart. Furthermore, cashiers were warned on a weekly basis to be aware of hazards. In our view, the policy was a reasonable one. We would dismiss this ground of appeal.

[18] Next, the appellants submit that, if we conclude the store policy was reasonable, on the evidence it was breached because, although store employees saw the overloaded cart, they did not intervene.

[19] It is submitted that the first person who would have seen the state of the cart would have been Ms. Hovey, the cashier on aisle 1 who checked through Mr. Beardy and Mr. Sakakeep. Unfortunately, Ms. Hovey did not testify. She could not be located and did not give evidence of what she saw or did not see. When Mr. Beardy walked from the end of the aisle where he was loading his purchases into his cart, toward the cashier to pay, the cashier would have had the opportunity to see his cart at that point. The evidence, however, is that at that point, Mr. Beardy’s cart was not overloaded. All of his purchases fit in the cart.

[20] When Mr. Sakakeep paid for his purchases, the cashier would have had no cause to turn back to look at the cart because her customer was not at the end of the aisle loading his purchases. He had no need to because Mr. Beardy was doing that for him and Mr. Beardy said that Mr. Sakakeep did not help him load the cart.

[21] The evidence indicated that the only employee who observed the cart in its overloaded state before this unfortunate event was Ms. Tait. On the day in question, Ms. Tait was the cashier on aisle 3.

[22] She had just finished checking Mr. Saisho through and had turned and already started her next customer when, as she said, she “glanced to lane one to check on Laurie [Hovey] and noticed a customer with a cart…right at the end of lane one that just at a glance appeared to be overloaded, way overloaded.” She said the customer was already in motion when she observed him and that Ms. Hovey seemed to be still communicating with the customer as he moved away from her. Ms. Tait assumed that Ms. Hovey was communicating with her customer about his overloaded cart.

[23] The trial judge dealt with this evidence at paragraph 75 of his reasons. He noted that Ms. Tait admitted that her observations were just “a glance” and took place in a “fraction of a second”. She also agreed the store was very noisy and she did not hear what, if anything, Ms. Hovey said to Mr. Beardy. On the other hand, Mr. Beardy’s evidence was clear that Ms. Hovey had said nothing to him. The trial judge preferred the evidence of Mr. Beardy and concluded Ms. Tait was mistaken about having observed some communication between Mr. Beardy and Ms. Hovey. The trial judge concluded Ms. Hovey had not seen the overloaded cart. In the circumstances, he concluded it was

not reasonable to expect a cashier to be vigilant to look behind her to ensure that two distinct customers are not loading up their purchases into one cart. Common sense dictates the opposite. Mr. Beardy testified he was rushing. He made a bad decision in an attempt to save time. However, I do not find that it is reasonable to make the store liable for that particular decision of Mr. Beardy.

[24] He also concluded that, in all the circumstances, it was reasonable for Ms. Tait not to have intervened. This was the trial judge’s call.

[25] The standard of care is reasonableness in the circumstances. This was a tragic event that took place in a matter of seconds while the operator of an overloaded shopping cart was momentarily distracted. That he was negligent is not in doubt. In our view, however, the conduct of the occupier was reasonable in all the circumstances and the law requires nothing more.

[26] The appeal is dismissed.

[27] Costs to the respondent fixed in the sum of $15,209.58 inclusive of disbursements and applicable taxes.

“J. MacFarland J.A.”

“G. Pardu J.A.”

“Grant Huscroft J.A.”