ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 6337/10
DATE: 20120214
BETWEEN:
Marie Louise Miltenberg and Lawrens Miltenberg
Plaintiffs
– and –
Metro Inc.
Defendant
Allan Shulman, for the Plaintiffs
Robert Kleinman, for the Defendant
HEARD: February 13, 2012
REASONS FOR JUDGMENT
a.j. goodman j.
INTRODUCTION
[ 1 ] This is the defendant’s motion for summary judgment seeking an order dismissing the plaintiff’s action with respect to a claim of negligence or a breach of the defendant’s obligations under the Occupiers Liability Act .
[ 2 ] I have considered counsels’ submissions and have reviewed the evidence. and materials filed. For the reasons that follow, summary judgment is granted.
THE FACTS
[ 3 ] The facts in this case are relatively straightforward and are not in dispute.
[ 4 ] On November 28, 2008, the plaintiff, Mrs. Marie-Louise Miltenberg (“Mrs. Miltenberg”), had an ice cream container fall on her when she attempted to remove two ice cream containers stacked one on top of the other from the top shelf of a freezer at the defendant’s Food Basics store located at 5353 Lakeshore Road, Burlington, Ontario.
[ 5 ] Mrs. Miltenberg is a 5 foot tall lady and is now 76 years old. On the date of the incident, Mrs. Miltenberg was 73 years old. Mrs. Miltenberg went to the Food Basics with her husband, Mr. Lawrens Miltenberg, at around 2:30 p.m. Mrs. Miltenberg went to purchase a carton of ice cream from the ice cream freezer.
[ 6 ] The ice cream freezer unit was over 6 feet in height. The top shelf of the ice cream freezer was 5 feet and 7 inches high. The ice cream containers were place on the top shelf of the ice cream freezer and were stacked one on top of each other, 2 units high and 4 units across. The ice cream container that fell on Mrs. Miltenberg was stored on the top shelf of the ice cream freezer. The ice cream containers are regularly stored for purchase by customers in this manner.
[ 7 ] The ice cream container that Mrs. Miltenberg attempted to secure was 1.89 litres, manufactured by Nestlé, and weighed between 2.2 and 4 pounds.
[ 8 ] In attempting to get the top ice cream container, Mrs. Miltenberg reached for both the top ice cream container and the one below it. When she picked up the two ice cream containers, Mrs. Miltenberg had full control of the bottom box. However, in beginning to remove the bottom container of ice cream, the top box slid or fell, hitting Mrs. Miltenberg in the face.
[ 9 ] At the time of the incident, Mrs. Miltenberg’s husband was with her, but not beside her. He was pushing the shopping cart in front of her and looking at other items. Mrs. Miltenberg never asked any Food Basics employees for assistance.
[ 10 ] On November 28, 2008 at around 2:30 p.m. Mr. Sutcliffe, the grocery manager, was notified by a clerk, Brian Hutchison, that there was an incident in the frozen food section of the store.
[ 11 ] Mr. Sutcliffe spoke to Mrs. Miltenberg. She explained to Mr. Sutcliffe that she reached for an ice cream container on the bottom of the top shelf of the ice cream freezer, and that in trying to remove it from the freezer, the ice cream container stacked on top of it fell on her. Mrs. Miltenberg also stated to Mr. Sutcliffe that she was tired of waiting for her husband to get the ice cream container for her.
[ 12 ] Mr. Sutcliffe explained to Mrs. Miltenberg that it is store policy for the ice cream containers on the top shelf of the freezer to be stacked 2 units high. During this conversation with Mrs. Miltenberg, Mr. Sutcliffe noticed that Mrs. Miltenberg was upset. In order to appease the plaintiff, he advised her that he would rearrange the ice cream containers so that they would not be stacked in two rows on the top shelf. He rearranged the top shelf of the ice cream freezer so that the two front rows of it were stacked one row high.
[ 13 ] In an affidavit submitted by Mr. Sutcliffe, he stated that he does not believe that it is dangerous to stack ice cream containers in two rows on the top shelf of an ice cream freezer. There is no company policy or industry practice that he is aware of which forbids this commonplace occurrence. In his experience, the manner in which the ice cream containers were stacked were safe and in accordance with store procedures and the grocery industry generally.
POSITION OF THE PARTIES
[ 14 ] The plaintiffs allege that Mrs. Miltenberg was injured by the top ice cream container falling on her and they are claiming that the defendant was negligent in the manner that it stacked the ice cream containers, and that they breached their duty under the Occupiers Liability Act , R.S.O. 1990, c. O.2 (“the Act ”).
[ 15 ] The defendant denies that it was negligent or that it breached its duty under the Act . The containers on the top shelf of the freezer were safely stacked in a manner that was standard practice for the company and the grocery industry in general. The store acted reasonably in the circumstances and seeks an order dismissing this action on the basis that there is no genuine issue requiring a trial.
THE LAW
[ 16 ] Rule 20.04(2) of Rules of Civil Procedure , R.R.O. 1990, Reg. 194 provides:
The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) the parties agree to have all or part of the claim determined by a summary
judgment and the court is satisfied that it is appropriate to grant summary
judgment.
In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[ 17 ] The underlying policy rationale behind the rule amendments in force as of January 1, 2010 was comprehensively reviewed by Perell J. in Healey v. Lakeridge Health , 2010 ONSC 725 , [2010] O.J. 417 (Ont. S.C.) :
18 Rule 20 was introduced in 1985, and it expanded the court's jurisdiction to grant a summary judgment from the jurisdiction provided in the former Rules of Practice, which was limited to specially endorsed writs and motions for summary judgment against defendants.
19 Until 2010, when amendments were introduced, the former rule 20.04 (2) provided that the court shall grant summary judgment where the court is satisfied that "there is no genuine issue for trial ." Beginning in January 2010, the amended rule provides for a summary judgment if the court is satisfied that "there is no genuine issue requiring a trial ." The amendment was prompted by the recommendations of the Civil Justice Reform Project, which was chaired by the Honourable Coulter A. Osborne. See Coulter A. Osborne, Civil Justice Reform Project: A Summary of Findings and Recommendations (Toronto: Ontario Attorney General, 2007).
20 Semantically, there is not much difference between "no genuine issue for trial" and "no genuine issue requiring a trial," which leads one to ask what purpose was being achieved by the change. As a matter of statutory interpretation, this is a way of asking what was the problem that the Civil Rules Committee was trying to remedy by amending the rule? The answer is that the problem was that: (1) the former test was regarded as too strict with the result that the rule was not achieving its purposes; and (2) the utility of the rule was being impaired by case law that had held that a motions judge could not assess credibility, weigh evidence, or find facts on a motion for summary judgment: Aguonie v Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (C.A.) ; Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.) .
21 The Civil Rules Committee dealt directly with the second problem about weighing evidence. The revised Rule 20 enlarges the means afforded to the court to grant a summary judgment. The new rule 20.04 (2.1) states:
(2.1)In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
22 Rule 20.04 (2.1) is a statutory reversal of the case law that had held that a judge cannot assess credibility, weigh evidence, or find facts on a motion for summary judgment . Further, under rule 20.04 (2.2), a judge for the purpose of weighing the evidence, evaluating credibility, and drawing inferences may order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
23 Placed in the context of the other amendments to Rule 20, the purposes of the change from "no genuine issue for trial" to "no genuine issue requiring a trial" in the test for a summary judgment are: (1) to make summary judgment more readily available; and (2) to recognize that with the court's expanded forensic powers, although there may be issues appropriate for trial, these issues may not require a trial because the court has the power to weigh evidence on a motion for summary judgment.
28 Since the introduction of the summary judgment rule, the courts have struggled with finding a balance between a day in court by a summary judgment motion or by a trial hearing. To go back to the insights of Justice Morden in Irving Ungerman Ltd. v. Galanis , supra , sometimes a trial is necessary to provide procedural and substantive justice, but sometimes, a trial is unnecessary and requiring one would be a denial of procedural justice. This insight suggests that a factor in interpreting and applying the new rules about summary judgment is the determinant of whether a trial is genuinely necessary, not because it is to be given some preferred status in the administration of justice, but because the issues to be resolved cannot be truthfully, fairly, and justly resolved without the forensic machinery of a trial.
29 It is informative to note that rule 20.04 (2.1) envisions that the motions judge may use the powers of a trial judge unless it is in the interest of justice for such powers to be exercised only at a trial. The reference to the interests of justice suggests that the motions judge will have to assess whether the search for truth and justice requires the forensic machinery of a trial. To go back again to the language of Justice Morden in Irving Ungerman Ltd. v. Galanis , the motions judge will have to determine whether the particular proceeding in which a summary judgment is sought is one where requiring the parties to go to trial would be a failure of procedural justice because the holding of a trial is unnecessary.
30 Put into practical terms, these insights mean that having regard to the new powers to weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, the moving party must provide a level of proof that demonstrates that a trial is unnecessary to truly, fairly, and justly resolve the issues.
[ 18 ] I agree with Perell J. that part of that analysis necessarily involves a consideration of whether the issues between the parties cannot be properly and justly resolved without a trial. I am satisfied that the same principles apply with respect to a Rule 76 simplified trial matter. The utility of a Superior Court to consider a summary judgment motion raised under the rubrique of a Rule 76 simplified procedure action was thoroughly canvassed in a recent decision of the Ontario Court of Appeal. [1] In their review of the scope of the revised summary judgment rule and in discussion of one of the 5 companion cases, the Court held:
When a judge is faced with a contested motion for summary judgment in a simplified procedure action that requires exercising the powers in rule 20.04(2.1), the judge will not only have to apply the full appreciation test, but will also need to assess whether entertaining the motion is consistent with the efficiency rationale reflected in the simplified procedures under Rule 76. We make two general observations that will inform this assessment.
First, summary judgment motions in simplified procedure actions should be discouraged where there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination, or where oral evidence is clearly needed to decide certain issues. Given that Rule 76 limits discoveries and prohibits cross-examination on affidavits and examinations of witnesses on motions, the test for granting summary judgment will generally not be met where there is significant conflicting evidence on issues confronting the motion judge. While the motion judge could order the hearing of limited oral evidence on the summary judgment motion under rule 20.04(2.2), in most cases where oral evidence is needed, the efficiency rationale reflected in the rule will indicate that the better course is to simply proceed to a speedy trial, whether an ordinary trial or a summary one: see rules 76.10(6) and 76.12.
Second, we are not saying that a motion for summary judgment should never be brought in a simplified procedure action. There will be cases where such a motion is appropriate and where the claim can be resolved by using the powers set out in rule 20.04 in a way that also serves the efficiency rationale in Rule 76. For example, in a document-driven case, or in a case where there is limited contested evidence, both the full appreciation test and the efficiency rationale may be served by granting summary judgment in a simplified procedure action.
[ 19 ] Based on the Court of Appeal’s direction, I am satisfied that this is a proper case for a summary judgment determination. I am satisfied that the summary judgment approach in this case does not detract from the spirit and intent of the simplified procedures as outlined in Rule 76.
[ 20 ] If the Court is satisfied, after considering the evidence advanced on the motion by both parties, that there is no genuine material issue requiring a trial, the Court must grant summary judgment. The Court has expanded power to weigh evidence, make findings of credibility and draw reasonable inferences from the evidence. These new powers were implemented to make summary judgment more readily available and to weed out at an early stage unmeritorious litigation.
[ 21 ] It was well established under the previous incarnation of the summary judgment rule that in resisting a motion for summary judgment, a responding party must “lead trump or risk losing”. [2] It is not enough to rest on allegations or denials. The responding party must put forth, a specific and organized set of facts which demonstrate the existence of a real issue requiring a trial.
[ 22 ] When considering a motion for summary judgment, a Court is entitled to assume that the record before it contains all of the evidence which the parties would present if the case were to proceed to trial. [3] Since it is assumed that a complete evidentiary record is before the court, it is also assumed that each party will have put its best foot forward.
[ 23 ] Thus, as a judge determining a motion for summary judgment, I am obligated to take a hard look at the case to determine if a trial is required. In so doing, I am assuming that I have a full evidentiary record before me.
[ 24 ] In a motion for summary judgment, the legal burden rests on the moving party to show that there is no genuine issue for trial, and this burden never shifts. [4]
[ 25 ] A party cannot simply rely on allegations in the pleadings or submissions to the Court. A responding party must establish, by affidavit, specific facts that show that there is a genuine issue for trial. If there is a genuine issue with respect to material facts, then no matter how weak or how strong appear the claim or the defence, the case must be sent to trial. It is not for the motions judge to resolve the issue. [5] Matters of law which have not been fully settled should not be disposed of on a motion for summary judgment. [6]
[ 26 ] Section 3(1) of the Occupiers’ Liability Act , R.S.O. 1990, c. 0.2. states:
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.
ANALYSIS
[ 27 ] In my view, the moving party has demonstrated that the evidence before this court support their position that there is no genuine issue requiring a trial. In other words, the plaintiffs have failed to place facts that demonstrate that there is a genuine issue requiring a trial.
[ 28 ] Essentially, the plaintiffs characterize this action as a simple claim for negligence or a breach under the Act . If the Court agrees, then the plaintiffs are indeed entitled to the relief sought, as the defendant’s conduct would fall under squarely under the provision of the Act . The core issue in this case was whether the defendant was negligent in the matter in which they placed or presented for sale their ice cream on the shelf in the freezer unit, and whether such placement could reasonably cause injury to their customers.
[ 29 ] Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.
[ 30 ] I have considered the case of Tran v. Kim Le Holdings Ltd. [7] In that case , the plaintiff attended the defendant’s store and picked up a jug of acetone for purchase. Somehow, the jug of acetone fell from the counter and its contents leaked on the floor causing the plaintiff to slip and fall. The plaintiff sustained some injuries. The plaintiff argued that the defendants were liable under both negligence or occupier’s liability for the accident by not taking proper care of the acetone or that it was reasonably foreseeable that the jug of acetone might be knocked off the counter, spill it contents and cause injury.
[ 31 ] The Supreme Court of B.C. discussed the standard of care required of an occupier under their relevant statute.
It is, I conclude, in any event, a notorious fact that liquids of both a slippery hazardous and non-hazardous character are routinely sold in wholesale and retail outlets in British Columbia. It is also notorious that containers of these liquids are stored on shelving in retail and wholesale outlets and that this shelving is often several feet high. It is by no means uncommon for customers to have to reach above head height to take a container. The risk of containers falling and failing is not completely eliminated in shops throughout the province.
Any container of slippery liquid stored at any height is at risk of falling of shelving and being knocked to the floor. There are a myriad of ways in which that could happen. Whenever it occurs, there is some risk that the container might fail, depending on its particular characteristics, spill its contents and create a slip hazard. I cannot find that virtually every retailer or wholesaler who stores slippery liquids on shelving up to 6 or 7 feet high is acting unreasonably or failing to ensure that the premises are reasonably safe for customers.
The same analysis applies when placing a container on a counter to buy it. There is always some risk that the container could be knocked off, or otherwise fall off, a counter regardless of its width and height. There is always some risk that it could fail (sic). An occupier is not required to make its premises absolutely safe and eliminate all risk of injury. There must be some basis against which to assess reasonable risk.
[ 32 ] The plaintiffs argue that the reference in this passage is obiter dicta . I disagree. I find that this case is instructive and I am satisfied that the same principles apply with respect to the Ontario legislation. There is some inherent risk involved in everyday interactions between individuals in society. An occupier is not required to sanitize their environment to such a degree to negate all inherent risk. What is required is balancing of what may be a reasonable course of conduct against the potential for harm.
[ 33 ] The standard of care for occupiers is one of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks. [8]
[ 34 ] The evidence before me is that stacking ice cream containers in such a manner is standard for the grocery industry. The plaintiffs argue that the store ought to only stack products below the height of the store’s shortest customer, (assuming that measurement could be ascertained), or in one layer on a shelf that is always lower than 5 feet to prevent such an incident from re-occurring. This argument fails to consider the store’s reasonable and efficient use of space, and would still not completely prevent the possibility of injuries to customers who do not grab items prudently or properly.
[ 35 ] Mrs. Miltenberg does not suggest that the ice cream containers were stacked such that they were inherently insecure. There is no evidence that the manner in which the ice cream containers were stacked did not follow store policy, industry standards or government regulations. There is no evidence that stacking ice cream containers that weight approximately 2.2 pounds in two layers on a shelf that is 5 feet 7 inches creates an unreasonable risk of harm.
[ 36 ] The plaintiffs submit that the industry standard has not been established by the defendants. This court has received some affidavit evidence from Mr. Sutcliffe. I have no evidence from the plaintiff to rebut Mr Sutcliffe’s evidence with respect to his opinion that, at all material times, the defendant complied with the proper industry standards. Whether Mr. Sutcliff re-arranged the product to appease the plaintiff or made any comments to her is of no significance to the issue of liability.
[ 37 ] What the plaintiffs fail to consider is that the onus is on the plaintiffs to prove their case. Throughout the course of this hearing, it was apparent to me that the plaintiffs were seeking an opportunity to take this matter to trial in order to examine the defendant’s witnesses and to discover the industry standard for stacking ice cream. In effect, there was an attempt to shift the onus of disproving negligence onto the shoulders of the defendants.
[ 38 ] Mrs. Miltenberg’s own actions caused the ice cream container to fall on her. In her affidavit, Mrs. Miltenberg indicated that she had full control of the bottom ice cream container. There is no evidence that the stacking of the containers in of themselves caused the ice cream containers to fall on her.
[ 39 ] Just because a matter becomes litigious and the parties seek redress through the courts, does not mean that any concept of common sense evaporates. The evidence in this motion is that Mrs. Miltenberg, being only 5 feet tall, attempted to purchase some ice cream from a grocery store freezer unit that was over 6 feet tall. The shelf where the product was situated was at least 5 foot 7 inches tall. She had to reach up and forward over her head to grab the containers of ice cream and she raised the top two 1.89 litre ice cream packages. In doing so, Mrs. Miltenberg secured or grabbed the bottom container with the other container on top, and it was at this point, due to her separating the two containers that the top container slid or was otherwise dislodged, falling onto her and causing her injuries.
[ 40 ] Common sense in this case dictates that if one is to reach out and above one’s head to grab an item that has another similar item on top but unattached, then there is the substantial likelihood that the top item may fall, especially since the angle of reach would not permit a level manipulation of the bottom product to the height of the individual who may be shorter than the height of the product. Common sense dictates that one who is not able to safely reach for the item may request assistance from a partner, friend or store attendant. Mrs. Miltenberg admits that her husband was nearby and she could have asked for assistance.
[ 41 ] The plaintiffs complain that the Rule 76 procedure prevented them from questioning the defendant and hence they are at a disadvantage. With respect, there was ample time prior to this hearing date whereby the plaintiffs could have availed themselves of the limited discovery procedure as stipulated under Rule 76.04. They chose not to do so. My understanding is that the plaintiffs set the matter down for trial prior to conducting limited discoveries, albeit cross-examinations were conducted in spite of the rules.
[ 42 ] The plaintiffs submit that, in order to prevent this negligence, it would be appropriate if the defendant built shelving at a lower height and to employ store personnel positioned nearby to assist customers with products that may be situated above their heads. The plaintiffs add that there ought to be the placement of signs cautioning customers that items may fall from their placement on higher shelves. With respect, customers do not need to be warned that ice cream containers or any item could fall on them if not gripped properly. I accept that individuals are fully capable of figuring out whether they can reach items above head height and whether they can do so in a safe manner.
[ 43 ] I am not satisfied that a store must have warning signs scattered throughout the store to denote the potential of danger to customers if one decided to secure an item from a shelf above one’s height. Further, the redesign of freezers and shelving units to match the stature of a class of customers and having attendants standing by for the moment when they may be of assistance to a customer is neither practical nor reasonable.
[ 44 ] The parties are required to present all of their evidence and to put their best foot forward. The plaintiff has failed to do so either by default or design. On the evidence before me, I am satisfied that the stacking of the ice cream products on the shelf in the manner presented before this court was in accordance with industry standards and was entirely reasonable. In my opinion, the plaintiffs’ do not have viable cause of action as pleaded and I am satisfied that the defendants have clearly demonstrated that there are no genuine issues for trial.
CONCLUSION
[ 45 ] My conclusions rest on an analysis of the evidence as presented before me. Notwithstanding that this is a Rule 76 simplified procedure action, there are no additional facts, credibility issues or other evidence required to be adduced at trial that could not inform my decision today. I am satisfied that the defendants have met their onus to demonstrate that there is no issue requiring a trial.
[ 46 ] For the foregoing reasons, the defendant’s motion for summary judgment is granted and the plaintiffs’ action is dismissed.
[ 47 ] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These cost memoranda shall not exceed three pages in length, (not including any bill of costs or offers to settle). The defendant shall file their costs submissions within 10 days of the date of this order. The plaintiffs may file their response within 10 days of the receipt of the defendant’s materials. The defendant may file a reply within five days thereafter.
A.J. GOODMAN J.
Date: February 14, 2012
COURT FILE NO.: 6337/10
DATE: 20120214
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Marie Louise Miltenberg and Lawrens Miltenberg Plaintiffs - and - Metro Inc. Defendant REASONS FOR JUDGMENT A.J. Goodman J.
Released: February 14, 2012
[1] Combined Air Mechanical Service Inc v. Flesch, [2011] ONCA 764, paras. 255-257 (See: Parker v. Casalese)
[2] 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.) .
[3] Dawson v. RexCraft Storage and Warehousing Inc. (1998), 164 D.L.R. (4 th ) 257 (Ont. C.A.) ).
[4] Hi Tech Group Inc. v. Sears Canada Inc. (2001), 52 O.R. (3d) 97 (C.A.) .
[5] Dawson v. Rexcraft Storage & Warehousing Inc. (1998), 164 D.L.R. (4 th ) 257 (Ont. C.A.) .
[6] Romano v. D’Onofrio , 2005 43288 (ON CA) , [2005] O.J. No. 4969 (C.A.) .
[7] [2011] BCSC 1690 (S.C.).
[8] Kerr v. Loblaws Inc, 2007 ONCA 371 , [2007] O.J. No. 1921 (C.A.) .