COURT OF APPEAL FOR ONTARIO

CITATION: Hashemi-Sabet Estate v. Mazzulla, 2016 ONCA 273

DATE: 20160415

DOCKET: C60893

Weiler, Cronk and Benotto JJ.A.

BETWEEN

The Estate of Abdolrahim Hashemi-Sabet, By his Estate Trustee and Executrix Savitri Maharaj, Savitri Maharaj, Fatima Hashemi-Sabet by her Litigation Guardian Savitri Maharaj, and Farah Hashemi-Sabet by her Litigation Guardian Savitri Maharaj

Plaintiffs (Appellants)

and

Giuseppe Mazzulla and Christine Gavine

Defendants (Respondents)

Alfred Schorr, for the appellants

Alan L. Rachlin and Emily Casey, for the respondents

Heard: April 12, 2016

On appeal from the judgment of Justice M.L. Edwards of the Superior Court of Justice, dated June 19, 2015.

By the Court:

[1] The deceased – who could not swim – drowned on Lake Simcoe while he and his family were visiting the respondents’ cottage. His estate and the surviving family members brought an action alleging negligence on the part of the respondents for failing to warn the deceased of the dangers of going into the lake; failing to provide him with a life jacket; failing to stop him from going to the lake; and failing to supervise him. The action was dismissed on a summary judgment motion. The estate and the family members appeal.

[2] At the conclusion of oral argument on behalf of the appellants, the court dismissed the appeal with reasons to follow. These are those reasons.

Facts

[3] The respondent Giuseppe Mazzulla owns a cottage near Lake Simcoe; Christine Gavine is his wife. The respondents were friends with the deceased and his family and had entertained them at their cottage. The cottage was not on the lake. There were other properties between their cottage and the lake.

[4] On August 16, 2010, the deceased, his common law spouse and her daughter visited the respondents. On at least one previous visit, the deceased had gone to the lake and waded in the water without a life jacket. This time, while the others were having lunch, he left the cottage to walk to the lake. He did not ask for a life jacket, nor did anyone suggest to him that he should take a life jacket. He changed into a swim suit and took an inflatable ring that he had brought with him. His wife’s daughter, then 10 years old, accompanied him to the lake. At some point after she returned to the cottage, the deceased drowned.

[5] A police report indicated that witnesses observed that the wind blew the deceased out into the open lake and that he either fell or jumped off the ring in approximately 10-12 feet of water, possibly in a panicked state, and that he went under the surface. Although there was wind that day, the deceased’s wife agreed that the wind was not so strong at the cottage that she was concerned about her husband going to the lake.

[6] In support of their negligence claim, the appellants primarily relied on the allegation that the respondents had previously told the deceased that the lake was safe and that one could walk out for miles without the water going above one’s knees.

Decision Below

[7] The motion judge determined that the claim “essentially boils down to the suggestion that the [respondents] had misrepresented to the [appellants], and [the deceased] in particular, that the lake was safe, very shallow, and that one could ‘walk for miles’ with the water level never being above one’s knees.” He referred to Her Majesty the Queen v. Cognos Inc., 1993 146 (SCC), [1993] 1 S.C.R. 87, for the elements of the tort of negligent misrepresentation, and noted that the appellants were required to establish that the respondents owed the deceased a duty of care based on a special relationship. He also referred to Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643 for the principle that: “A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.”

[8] The motion judge concluded that there was no special relationship between the parties, no duty of care owed by the respondents and no foreseeable risk of harm. Further, there was no evidence to suggest that the lake was unsafe. It only became unsafe when, for reasons that could not possibly have been known to the respondents, the deceased chose to get onto the ring and place himself in peril.

Appeal

[9] The appellants submit that the trial judge erred in finding that the representation allegedly made to the deceased was insufficient to support a finding of negligence. Simply put, they allege that he drowned as a result of his reliance on the respondents’ representation that the lake was safe. They state further that the statement as to the depth of the lake itself gave rise to a duty of care.

Analysis

[10] We agree with the motion judge that there is no genuine issue requiring a trial. The motion judge put the appellants’ case at its highest by viewing the action as one that encompassed negligent misrepresentation and then by accepting that the alleged statement about the lake had been made by the respondents. He concluded however that the facts did not disclose any special relationship of proximity giving rise to a duty of care on the part of the respondents to the deceased.

[11] We agree. The evidence disclosed that the deceased and his family were attending the cottage purely as a social visit; the cottage property did not abut Lake Simcoe and the beach; the deceased had been to the cottage previously and had gone into the water up to his waist; the deceased, although a non-swimmer, was a highly educated, intelligent and sober adult; and, no one, including the deceased’s wife, had reason to believe that he would get onto the ring and float into the lake.

[12] In these circumstances, no relationship of supervision or control by the respondents over the deceased existed. Nor did the respondents create or control a risky situation, giving rise to a duty to warn. The motion judge’s finding of no special relationship between the parties was fatal to the appellants’ claim that the respondents owed a duty of care to the deceased.

[13] The motion judge concluded that any representation made to the deceased concerning the lake was not relied upon. The deceased had been in the water before, gone in deeper than his knees, knew he could not swim, was well educated and sober. On this basis as well, the respondents did not owe a duty of care to protect the deceased from or warn him of obvious dangers removed from their property over which they had no control.

[14] In the absence of any duty of care owed by the respondents to the deceased, the appellants’ negligence action cannot succeed. There is no genuine issue requiring a trial.

[15] Accordingly, the appeal is dismissed with costs of the appeal payable to the respondents in the amount of $8,260.10, inclusive of disbursements and HST.

Released: April 15, 2016

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”