COURT FILE NO.: 03-DV-901

DATE: 2004/05/26

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL BECHAALANI v. HOSTAR REALTY LIMITED

BEFORE: Madam Justice C. D. Aitken

COUNSEL: Travis Henderson, for the Plaintiff (Respondent)

Jennifer Arrigo, for the Defendant (Appellant)

E N D O R S E M E N T

Nature of Proceeding

[1] This is an appeal from the Decision of Deputy Judge A. Doyle of the Ottawa Small Claims Court, wherein she found the Defendant (Appellant), Hostar Realty Limited (“Hostar”) liable to pay the Plaintiff (Respondent), Michael Bechaalani (“Bechaalani”), damages in the amount of $5,122.49 as a result of a “slip and fall” on premises owned and managed by Hostar. The action was brought under s. 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (sometimes referred to as “the Act”).

Background Facts

[2] On February 11, 2002 at approximately 7 p.m., Bechaalani, as a deliveryman for Lorenzo’s Pizza, was delivering food to the tenant at 19 Bertona. When Bechaalani received the order, he was told to approach the side door at 19 Bertona. He had not been told how to reach the side door, nor had he been told that a shortcut existed across the field adjacent to the parking lot for the building.

[3] The building at 19 Bertona is part of a complex of apartment buildings that share a parking lot. On arriving in the parking lot, Bechaalani parked his car at the closest point to 19 Bertona and climbed the retaining wall in that area at the point where it was approximately six inches high. He walked on a path in the field to the side door of 19 Bertona. The path was visible because previous pedestrians had used it, leaving their footprints in the snow, which at that point was six to seven inches deep. The path that Bechaalani took was not cleared, shoveled, sanded or salted. This was the route Bechaalani had taken previously when he had delivered food to these premises. He was unaware of any other way to access 19 Bertona, and upon his arrival in the parking lot, he had not looked for any other point of access.

[4] After having taken a few strides on the path, Bechaalani slipped and fell. He fell awkwardly, with the bag of food in his hands. Bechaalani experienced pain in his shoulder blade, middle back and neck. He was diagnosed with a cervical strain and rotator cuff strain of the right shoulder. His symptoms were consistent with whiplash and rotator cuff injuries, and included back and neck pain, headaches, loss of sleep, loss of concentration and depression. Although he did not miss any work, he was unable to continue with his regular physical workouts at his gym. He underwent a course of medication, physiotherapy and home therapy. By the end of 2002, Bechaalani was feeling better and was getting back into his regular exercise routine.

[5] At the time of the accident, Bechaalani was wearing a jacket and thick-soled hiking boots with treads.

[6] The way Hostar expected people to access 19 Bertona was by way of stairs from the parking lot to a path around the building which ended up at the side door to the premises. The staircase consisted of square patio stones going up the side of a retaining wall. The path was 4-feet wide and paved with asphalt.

[7] Hostar had a snow removal system in place whereby Brite Nights Snow Plowing would come after five centimetres of snow to plow the premises. They would also salt and sand, if requested. Up to the time of the accident, Hostar had never had any problems or complaints with respect to the snow removal arrangements. Prior to the accident, Hostar had been unaware that any tenants were using the path where Bechaalani fell. No tenant had ever asked Hostar to clear the path on the grass.

[8] According to Stuart Laurence, the president of Hostar, at the time of the accident there was no direct lighting on the staircase leading from the parking lot to the path around the building, but there were some low sodium, low cell lighting in the parking lot area. This form of lighting had been approved by municipal authorities. The staircase is flush so a car will not bump into it. According to Laurence, it was barely visible at night. There was no sign for the stairs. There was no sign telling tenants and visitors not to use the shortcut path or not to climb up on the retaining wall near that shortcut so as to access the side door of 19 Bertona.

[9] Bechaalani’s evidence was that on the night in question he had not seen the staircase leading up to the path around the building. He acknowledged that he had not looked for any such path. He assumed the way he was intended to access 19 Bertona was by way of the shortcut to the side door.

Plaintiff’s Claim

[10] In his Claim, Bechaalani sought damages against Hostar of $10,000 based on its negligence or breach of duty under the Occupier’s Liability Act. In the Claim, Bechaalani provided the following particulars of the negligence and/or statutory breach on the part of Hostar:

(a) Failure to ensure that the parking area and any pathways on the Defendant property were free from any debris;

(b) Failure to maintain the parking area and any pathways on the Defendant property in a safe condition;

(c) Failure to warn the Plaintiff of any difficulties with the parking area and pathways on the Defendant property;

(d) Failure to regularly inspect the parking area and pathways on the Defendant property;

(e) Failure to use reasonable care to prevent injury from the danger which the Defendant knew or ought to have known presented a hazard to tenants and invited guests of the premises;

(f) Failure to design, implement and maintain a reasonable system of snow and ice removal or clearing of the parking area and pathways on the Defendant property;

(g) Failure to adequately salt and sand the parking area and pathways on the Defendant property to ensure against accidents such as this one;

(h) Failure to properly train or adequately train employees; and

(i) Failure to supervise or adequately supervise employees.

Defendant’s Defence

[11] Hostar denied any responsibility for Bechaalani’s accident. It alleged that any injuries or damages suffered by Bechaalani were caused or contributed to by virtue of Bechaalani’s own negligence, the particulars of which were listed. They included his failure to take reasonable care for his own safety.

Decision of Deputy Judge Doyle

[12] After reviewing the law relevant to these circumstances, Deputy Judge Doyle made the following findings of fact:

50. In light of all of the circumstances, I find that the Defendant was not responsible to maintain the path where the Plaintiff fell. The unpaved path on which the Plaintiff slipped was not intended to be used as an access to the units. The Defendant did not have reason to expect that the path chosen by the Plaintiff would be so used or that such usage would be dangerous.

51. However, I do not find that the Defendant took all the necessary reasonable care in all the circumstances to see that the premises were safe for visitors to the units. I find that the Defendant failed in his duty to maintain his property by failure to provide adequate lighting on the staircase which was is [sic] the main entranceway to the path which follows the perimeter of the townhouses and provides access to the homes.

52. It was admitted by the Defendant that there is no direct lighting on this staircase and hence visibility of the staircase is limited at night. In the alternative, a visible sign indicating the stairway would have directed visitors to the proper route to the units.

53. The Defendant should have the staircase properly lighted to be visible to pedestrians and users of the premises. In failing to maintain proper lighting, he has failed in his duty of care regarding the maintenance of his property.

54. However, the Plaintiff did not take a marked passageway. He cut across a snow covered path that had been laid out previously by other pedestrians. However, in doing so, he voluntarily assumed some risk for not taking a maintained pathway.

55. Therefore, I find the plaintiff 50% responsible for his slip and fall.

[13] The learned Deputy Judge assessed general damages at $10,000, the limit allowed in Small Claims Court. General damages of $5,000 were awarded to Bechaalani, recognizing his liability for 50% due to contributory negligence.

Notice of Appeal

[14] Hostar asks that the Decision of Deputy Judge Doyle be set aside and that judgment be granted dismissing the action against Hostar. The grounds for the appeal are that:

The Plaintiff’s Claim makes no allegations of a failure on the part of the Appellant to properly light the staircase which was the proper means of accessing Respondent’s intended destination on the premises. At no time in advance of Trial, including at the Pre-Trial Conference, or in the service of the Court-ordered ‘will say’ statements, did the Respondent indicate he was relying on allegations of negligence with respect to the lighting of the staircase in question. … As this allegation was not pleaded in the Plaintiff’s Claim, the Defence did not address any lighting allegations. Furthermore, the Appellant had no opportunity to lead evidence at Trial as to its obligation regarding lighting of the staircase and the standard of care of an occupier in that regard. … In all the circumstances, the trial judge erred in law by finding liability on the part of the Applicant on a basis which was not plead.

[15] Bechaalani responded that although the Statement of Claim did not specifically state that there was inadequate lighting, it did plead several acts of negligence and/or statutory breaches that could have included inadequate lighting, such as those quoted as (b), (c) and (e) in paragraph 10 above.

Analysis

Did the Trial Judge Err in Finding Liability on the Basis of Inadequate Lighting and Inadequate Signage?

[16] It is accepted that at no point before the trial did Bechaalani indicate specifically that the adequacy of the lighting in the parking area was an issue that had caused or had contributed to the accident or Bechaalani’s injuries. The first indication that the lighting, specifically, would be an issue in the action came at trial. Bechaalani’s lawyer raised the adequacy of the lighting on the staircase, during his opening comments at the commencement of the trial. More particularly he stated at that time:

… Further, you’ll see that there is no proper lighting in the area for the plaintiff to see what the proper route was. You will see that there were no steps taken to advise the plaintiff of what the proper route was. …

[17] During his examination in chief, Bechaalani was asked no questions regarding the lighting and signage on the premises on the night of the accident. Carol Hunt, the only other witness testifying on behalf of Bechaalani, stated that on the night of the accident, she had not noticed the staircase leading to the path. She assumed that the only way to get to 19 Bertona was on the path that Bechaalani had taken. Neither Bechaalani nor Hunt was cross-examined on either the lighting or the signage. Stuart Lawrence, the only witness who testified for Hostar, was cross-examined on the lighting and signage at the premises in February 2002.

[18] Rule 7.01(2) of the Small Claims Court Rules, O. Reg. 258/98 requires a plaintiff’s Claim to contain, inter alia, the following information:

ii. the nature of the claim with reasonable certainty and detail, including the date, place and nature of the occurrences on which the claim is based.

[19] As well, it is a fundamental principle of civil litigation that the parties to an action are entitled to have the dispute between them resolved on the basis of the issues joined in the pleadings. (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Kalkinis (Litigation Guardian of) v. Allstate Insurance Co. (1999), 1998 6879 (ON CA), 41 O.R. (3d) 528 (C.A.) at 533-534, 460635 Ontario Limited v. 1002953 Ontario Inc. (1999), 1999 789 (ON CA), 127 O.A.C. 48, [1999] O.J. No. 4071 (C.A.) at para. 9, Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74 (C.A.) at para. 60) A trial judge is not permitted to make a finding of liability and award damages on a basis that was not pleaded in the Statement of Claim, as the defendant is not afforded the opportunity to address that issue in the evidence presented at trial. Such a step on the part of a trial judge would be patently unfair to the defendant, and would justify appellate intervention. There is a secondary concern, as explained by Doherty J.A. in Rodaro, supra at para. 62:

In addition to fairness concerns which standing alone would warrant appellate intervention, the introduction of a new theory of liability in the reasons for judgment also raises concerns about the reliability of that theory. We rely on the adversarial process to get at the truth. That process assumes that the truth best emerges after a full and vigorous competition amongst the various opposing parties. A theory of liability that emerges for the first time in the reasons for judgment is never tested in the crucible of the adversarial process. …

[20] The cases of Kalkinis, supra, 460635 Ontario Limited, supra and Rodaro, supra can all be distinguished from the case at hand. In Kalkinis, the trial judge allowed the action on the ground of the defendant’s negligence, when all that had been pleaded in the Statement of Claim was breach of contract. In 460635 OntarioLimited, the trial judge granted judgment against the sole shareholder and director of 460635 Ontario Limited, even though it was not clear from the Statement of Claim or the conduct of the trial that this person was being sued in his personal capacity. In Rodaro, the trial judge awarded damages based on a theory of damages never pleaded or otherwise raised by the plaintiff at any stage in the proceedings. As well, there was no evidence adduced at trial to support the conclusion that the defendant’s wrongful conduct had caused damages of the nature awarded by the trial judge.

[21] A case to which I was referred that presented an issue close to the one in this case is Leslie v. Mississauga (City) (2003), 43 M.P.L.R. (3d) 274, [2003] O.J. No. 4410 (Sup.Ct.) where Cameron J. set aside his own decision under r. 59.06(2) after concluding that he should not have granted judgment for the plaintiff on the ground of the defendant’s negligence. In his Statement of Claim, the plaintiff alleged that the defendant’s employee had been negligent by skating backward into the plaintiff’s path at a public skating rink, causing the plaintiff to fall. In its Statement of Defence, the defendant stated that its employee had been required to stop suddenly to attend to a child. The plaintiff had knocked into the defendant’s employee and had fallen to the ice. The plaintiff did not file a Reply. Based on the rules of pleading, the plaintiff was assumed to have denied that the accident occurred as the defendant alleged. Cameron J. stated at paras. 20-22:

When the plaintiff failed to file a reply raising the issue of a sudden stop sufficient to constitute negligence, the defendants were entitled to presume that a negligent sudden stop was not an issue to which they had to plead or for which they had to prepare evidence and address at trial. When the plaintiff failed to raise the issue in their evidence, and indeed denied the theory of the rear end collision, the defendants could safely assume that a sudden and negligent stop was not in issue and that there was no need to cross-lead evidence or make submissions on that issue.

If the law was otherwise, plaintiffs could prepare broad semi-generic pleadings and require the defendants to prepare for and address all the potential situations where they might be liable. This would cause undue expense and wasted time in written and oral discoveries and at trial. It would be totally counterproductive to the purpose of pleadings and efficient conduct of the litigation process, either with or without discoveries.

If in this case the plaintiff had, without so pleading, led evidence of sudden stop, the defendant would probably have been justified in asking for an adjournment of trial to prepare for such an allegation. The defendant could have objected to the evidence on the grounds it was not relevant as there was no issue joined in the pleadings respecting that issue.

[22] It is to be noted that the procedure in Small Claims Court matters is simplified. There is no formal discovery process. The defendant’s knowledge of the case to be met comes from the pleadings and from the mandatory pre-trial conference.

[23] Hostar argues that Bechaalani did not meet this requirement because, although he alleged Hostar’s negligence in his Claim and referred to issues relating to snow removal and maintenance of the parking area and pathways, he did not plead any facts specifically in regard to inadequate lighting in the parking area or the area of the staircase, and he did not specifically raise this issue at the time of the pre-trial conference.

[24] I do not accept Hostar’s argument in this regard. Bechaalani’s Claim states that Hostar failed to maintain the parking area and any pathways on its property in a safe condition. The staircase in question is found at the parking area. It leads to a pathway. Hostar pleaded that Bechaalani should have taken this staircase and this pathway. Bechaalani was on the premises at 7 p.m. on a winter night, when everyone knows it is dark. Surely these pleadings raise the issues of whether the staircase and pathways were properly lit so that they would be safe at night and whether means had been taken to bring the existence of the staircase and pathway to the attention of visitors to the property (such as Bechaalani). Such means could have included proper lighting and/or signage. Hostar is splitting hairs when it is arguing that the reference to maintaining the parking area and pathways in a safe condition does not include the question as to whether such places were properly lit at night. Had there been any uncertainty on the part of Hostar as to what was being referenced in this part of Bechaalani’s Claim, a Demand for Particulars could have been served, or the issue could have been canvassed at the pre-trial conference. Hostar chose to do neither.

[25] During his opening address, Bechaalani’s counsel made it clear that lighting and signage in the area of the staircase and pathway were live issues. Hostar’s counsel did not object to this allegation at the time on the basis that it had not been plead. During the cross-examination of Lawrence, Bechaalani’s counsel asked questions regarding the nature of the lighting at the staircase. Hostar’s counsel objected because the staircase was not where the accident occurred; however, when Bechaalani’s counsel explained that he was asking the question because Bechaalani had testified that he was not aware of the staircase, and he wanted to establish how difficult it was to see the staircase, Hostar’s counsel said “okay” and the trial judge indicated that line of questioning was fine.

[26] In conclusion I reject this ground of appeal as having no merit.

Did the Trial Judge Err in Finding that Hostar had Breached a Duty of Care Relating to the Lighting of the Staircase and the Lack of Signage regarding the Staircase?

[27] Hostar argues that inadequate evidence was adduced at trial to support the trial judge’s findings regarding the lighting at the staircase; that the trial judge improperly allowed photographs of the area of the staircase, taken approximately one year after the accident to be admitted in evidence; that no evidence was lead on the standard of care relating to the lighting in the proximity of the staircase; that the trial judge misunderstood and misapplied the evidence; that no causal connection was established between the lighting in the area of the staircase and the accident; and that the lighting was sufficient to satisfy the duty imposed on Hostar under the Occupier’s Liability Act. I will deal with these arguments, but not in the order presented.

[28] In regard to the admissibility of the photographs, Hostar’s counsel brought to the attention of the trial judge that the photographs had been taken a year later than the accident, and that in her view they were irrelevant as not showing the area of the accident. The trial judge was aware of the limited use to which the photographs could be put, in the sense that they could not be used as establishing any conditions that may or may not have existed at the time of the accident without further evidence linking those photographs to conditions at the time of the accident. Under cross-examination, when Lawrence was looking at the photographs, he confirmed, though somewhat indirectly, that the conditions visible on the photographs in terms of the lighting around the staircase would have been the same conditions as at the time of the accident. Hostar’s counsel re-examined Lawrence regarding the lighting around the staircase and referred to the photographs in doing so.

[29] In any event, in her Decision, the trial judge did not rely on the photographs in establishing conditions on the night of the accident; instead, she referred to the evidence of Hostar’s own witness as to the nature of the lighting and signage at that time. The evidence of Lawrence was that at night, the staircase would be barely visible to a visitor on the premises, and such a visitor may not see it if he were not looking for it. He also confirmed that there was no signage directing people to the stairs. This is ample evidence to support the trial judge’s findings of fact regarding lighting and signage.

[30] The standard of appellate review regarding findings of fact was explained by Laskin J.A. in Re Equity Waste Management of Canada v. Halton Hills (Town) (1998), 1997 2742 (ON CA), 35 O.R. (3d) 321 (C.A.) at 333 as follows:

Deference to a trial judge’s findings of fact is a well-established principle of appellate review. An appellate court should not interfere with the trial judge’s findings of fact, unless the trial judge has made a “palpable and overriding error” or a “manifest error” or a “clear error”. As Iacobucci J. observed in Canada (Director of Investigation & Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, these phrases amount to review on a standard of unreasonableness.

The findings of fact of the trial judge cannot be considered a manifest error.

[31] The trial judge did not need to hear evidence specifically in regard to the standard of care expected of Hostar. Section 3(1) of the Act reads:

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.

[32] It was open to the trial judge to determine what was a reasonable standard of care for Hostar in regard to lighting in the parking lot and on the staircase and to determine that lighting which would be unlikely to bring the existence of a staircase to the attention of a visitor on the premises at night was not adequate lighting.

[33] In regard to the issue of causation, Bechaalani testified that he was unaware of the existence of the staircase. That evidence was accepted by the trial judge. It was reasonable for the trial judge to infer that the poor lighting coupled with the lack of signage contributed to this lack of knowledge. There was evidence that his lack of knowledge of an alternate route to the side door of 19 Bertona contributed to Bechaalani’s decision to use the path through the snow near the side door. There was evidence that Bechaalani’s use of the path, that had not been plowed, salted, sanded or cleared in any fashion, resulted in his fall. Consequently, there was evidence upon which the trial judge could base her findings regarding causation.

[34] In conclusion, I reject the second ground of appeal as having no merit.

Costs

[35] If the parties cannot agree on the issue of costs, written submissions may be made within 15 days of the release of these Reasons.

C. Aitken J.

Released: May 26, 2004

COURT FILE NO.: 03-DV-901

DATE: 2004/05/26

DIVISIONAL COURT

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MICHAEL BECHAALANI v. HOSTAR REALTY LIMITED

BEFORE: Madam Justice C. D. Aitken

COUNSEL: Travis Henderson, for the Plaintiff (Respondent)

Jennifer Arrigo, for the Defendant (Appellant)

ENDORSEMENT

C. Aitken J.

Released: May 26, 2004