Court of Appeal for Ontario

CITATION: Davis v. East Side Mario's Barrie, 2016 ONCA 770

DATE: 20161019

DOCKET: C62178

Cronk, Juriansz and Brown JJ.A.

BETWEEN

Katherine Irene Davis, Gregg James Davis and Paige Gwen Davis, a minor by her litigation Guardian Katherine Irene Davis

Plaintiffs (Appellants)

and

East Side Mario’s Barrie

Defendant (Respondent)

J. Keenan Sprague, for the appellants

Robert L. Love and Edona C. Vila, for the respondent

Heard: October 14, 2016

On appeal from the judgment of Justice Phillip Sutherland of the Superior Court of Justice, dated April 27, 2016.

Endorsement

[1] This litigation arises from a slip and fall incident in September 2010, when the appellant Katherine Irene Davis fell down a flight of stairs at the respondent’s restaurant premises while enroute to the washroom. The appellants appeal from the summary judgment granted by the motion judge in favour of the respondent, by which the motion judge dismissed the appellants’ action in negligence and breach of contract against the respondent, without prejudice to the appellants’ right to move, within 30 days from the date of the judgment, to amend their statement of claim “to plead that the [respondent] breached s. 9 of the Consumer Protection Act, 2002, S.O. 2002, c. C.30 [the “CPA”], as amended, in failing to advise the [appellant] Katherine Davis of the existence of a main floor washroom at the [respondent’s] premises”.

[2] The appellants advance two main grounds of appeal. First, they argue that the motion judge erred in his interpretation and application of s. 3 of the Occupiers’ Liability Act, R.S.O 1990, c. O.2 (the “OLA”). Second, they submit that the motion judge further erred by bifurcating the issue of the respondent’s liability, if any, into two separate hearings.

[3] At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons.

[4] We reject the appellants’ first ground of appeal. In our view, when the challenged judgment is read in light of the motion judge’s reasons, its effect is twofold:

(1) any argument by the appellants at trial on the first branch of their theory of liability, namely, that the respondent is liable to the appellants based on a breach of the OLA arising from any hazards on or other unsafe conditions pertaining to the stairs where the accident occurred, including any alleged failure by the respondent to properly maintain the stairs, is precluded; and

(2) on proper amendments to their pleading, it is open to the appellants to pursue the second branch of their theory of liability, namely, that the respondent is liable to the appellants in contract or under either or both of the OLA and the CPA by reason of its alleged failure to advise Ms. Davis of the existence of a main floor washroom at the respondent’s premises.

[5] The motion judge’s dismissal of the appellants’ claim based on the first branch of their theory of liability, described in para. 4(1) above, is amply supported by the evidentiary record. The appellants led no independent evidence on the summary judgment motion of any existing hazards on or unsafe conditions relating to the stairs at the respondent’s establishment at the time of the accident. Even Ms. Davis was unable to provide specific evidence of such hazards or conditions.

[6] The appellants’ claim based on the second branch of their theory of liability is expressly preserved by the motion judge’s judgment and, following the date of the judgment, the appellants amended their statement of claim accordingly. Further, before this court, the respondent expressly acknowledged, through counsel, that:

(1) the appellants are free to seek to establish and to argue at trial all the matters alleged in paras. 7, 7.1 and 8 of their amended pleading so long as their efforts to do so are not directed at any alleged hazards on or the conditions of the stairs at the respondent’s restaurant where the accident occurred; and

(2) the respondent will not seek to argue at trial that the appellants’ claim or claims under the OLA are defeated by reason of their inability to lead evidence concerning, argue or otherwise rely on all the circumstances relating to the accident, in particular, any hazards on or the conditions of the stairs at the respondent’s restaurant premises.

[7] In light of i) these concessions by the respondent, ii) the effect of the judgment, properly read, as outlined above, and iii) the appellants’ amended pleading, the appellants are not constrained from advancing the second branch of their liability case at trial.

[8] We also reject the appellants’ second ground of appeal – their bifurcation argument. When the judgment under appeal is read in the fashion outlined above, it is apparent that the appellants were not prejudiced by the procedure followed by the motion judge. The motion judge was obliged to determine the respondent’s summary judgment motion on the basis of the appellants’ case as then pleaded. That is precisely what he did. As we have said, the appellants’ pleading has now been amended and the action is proceeding on that basis.

[9] For the reasons given, the appeal is dismissed. The respondent is entitled to its costs of the appeal in the agreed amount of $12,000, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“David Brown J.A.”