ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-10179
DATE: 2012-01-27
B E T W E E N:
ARMANDO CABRAL
Mr. Paul S. Rosenblatt, for the Plaintiff/Respondent
Plaintiff/Respondent
- and -
HELEN ANSELMO, DINIS ANSELMO, JOSE FARIAS and MARIA FARIAS
Mr. Ian Corneil, for the Defendant/Applicant, Helen Anselmo
A. Bayes, Student-at-Law
Defendants/Applicant
HEARD: January 24, 2012
LOFCHIK J.
[1] This is a motion brought by the defendant Helen Anselmo (hereinafter referred to as “Anselmo”), for summary judgment dismissing the claim of the plaintiff, Armando Cabral (hereinafter referred to as “Cabral”), as against the defendant Anselmo, and dismissing the cross-claim of the co-defendant Maria Farias as against the defendant Anselmo.
[2] The plaintiff in this action is a roofer who was hired to reshingle the roof of the co-defendant Farias. On the morning of March 28 th , 2003 it looked like rain. The plaintiff climbed onto the roof in order to cover an unshingled portion with a tarp. When he entered onto the roof he took no precautions by way of use of a safety harness or tie offs. He was wearing running shoes as footwear. By the time the plaintiff got onto the roof it was raining. The plaintiff entered onto a portion of the roof covered only with plywood. It had become slick with rainwater. As a result, the plaintiff slipped, fell off the roof and alleges on the way down he hit Anselmo’s fence injuring his hand. He came to rest in the Farias’ backyard.
[3] The plaintiff alleges that the accident was caused by the defendant Helen Anselmo by way of seven separate instances of negligence set out in the statement of claim. Essentially he takes the position that the fence he fell on was inherently dangerous. The defendant Helen Anselmo takes the position that there was no duty to safety proof the fence as to protect those who fall from their neighbour’s roof as a result of their own negligence.
[4] The Farias property is a semi-detached house connected to 16 Inchbrae Drive, Hamilton, property owned by the co-defendant Helen Anselmo.
[5] There were two fences that run parallel and divide the backyards of 16 and 18 Inchbrae Drive. There is a wooden fence on the Farias side of the property. On the Anselmo property there is a red and white fence constructed of interlocking metal panels. The metal fence is taller in height than the Farias’ wooden fence.
[6] It is the plaintiff’s position that as Cabral fell from the roof, he struck his right hand on top of Anselmo’s metal fence, causing a laceration which almost severed four fingers of his right hand.
[7] It is further the plaintiff’s position that the injuries to Cabral’s right hand has limited his range of motion and impair his ability to do construction and roofing work so that his ability to earn a living has been significantly reduced.
[8] Anselmo admitted that her metal fence was capped by her father with a wooden lattice work arrangement attached to the top of the fence with two-by-fours. For the purposes of this motion the defendant has admitted that the lattice work was placed on top of the metal fence subsequent to the incident giving rise to this action.
[9] For the purposes of this motion the defendant was prepared to concede that Cabral’s hand struck the top of the fence when he fell off the roof, and that the top edge of the metal fence was sharp.
Summary Judgment Remedy
[10] The plaintiff argues that there are three triable issues in this action which preclude summary judgment, those being:
Whether the defendant Helen Anselmo failed to ensure that her premises were reasonably safe;
Whether the presence of the metal fence on the property of the defendant Helen Anselmo constituted a dangerous trap causing the plaintiff’s injuries;
Whether Anselmo’s capping of the corrugated metal fence after the plaintiff’s injury demonstrates that she must have known of the danger and could easily have remedied it.
[11] In Combined Air Mechanical Services Inc. v. Flesch , 2011 ONSCA 764 the Court of Appeal outlined the new principles and tests to be applied by a motion judge hearing a summary judgment motion under the amendments to Rule 20.
[12] It was held that the amendments to Rule 20 allow a motion judge to weigh the evidence, evaluate the credibility of a deponent, and draw reasonable inferences from the evidence in determining whether there is a genuine issue requiring a trial in respect of a claim. However, the Court of Appeal emphasized at para. 38 that, “the purpose of the new rule is to eliminate unnecessary trials, not to eliminate all trials.”
[13] The Court of Appeal held that it is appropriate for the motion judge to exercise the powers in Rule 20.04(2.1) to weigh evidence, evaluate credibility and draw reasonable inferences in order “weed out a claim as having no chance of success”. They stated the test to be applied as follows:
“Can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?”
[14] At para. 54 the Court stated:
“The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance of counsel as the judge examines the record in chambers.”
[15] At para. 63 they state, “A party who moves for summary judgment must be in a position to present a case capable of being decided on the paper record before the court.”
[16] I am satisfied that the case before me meets the test set out by the Court of Appeal for the disposition of cases by way of summary judgment. I am satisfied that virtually all of the evidence that would be before a court after a trial is before me on this motion. This is a case with limited contentious factual issues. What must be decided is the inferences and conclusions at law which are to be drawn from the evidence before me.
Disposition
[17] The plaintiff relies upon the provisions of the Occupiers’ Liability Act, R.S.O. (1990), c.O.2 . Section 3(1) of the Act provides as follows:
“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.
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried out on the premises.”
[18] The plaintiff also relies on Section 3(9) of the City of Hamilton by-law No. 10-142 (known as the “fence by-law”), which provides as follows:
“No person shall maintain or permit to be maintained a fence that is hazardous to persons or property.”
[19] Quinn J. in Przelski v. Ontario Casino Corp. listed four fundamental principles a court should consider when deciding on a duty of care:
“Four principles have emerged in the case law:
(a) Occupiers have an affirmative duty to make their premises “reasonably safe” for persons entering them by taking reasonable care to protect such persons from foreseeable harm;
(b) It is not necessary that occupiers become insurers and therefore, “liable for any damages suffered by persons entering their premises”;
(c) Although the statutory duty on occupiers does not change from case to case, “the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be specific to each fact situation”;
(d) The duty may include a positive responsibility on the occupier to inspect his or her premises to ensure that s. 3(1) is satisfied.”
Przelski v. Ontario Casino Corp. , [2001] O.J. No. 3012 at para. 40 .
[20] I find that the existence of the fence on the Anselmo property did not constitute a trap as alleged by the plaintiff. A trap is a hazardous hidden peril which may cause injury to a person acting reasonably and taking reasonable care for his own safety. That is clearly not the case here. The plaintiff’s injury resulted from a fall caused by his failure to take reasonable care while up on the roof of his aunt’s house. The plaintiff in this respect was the author of his own misfortune by failing to take reasonable steps to ensure his own safety while on the roof of the Farias’ house. In these circumstances it cannot be said that the existence of the fence, which was in plain sight constituted any kind of trap.
[21] Similarly I find that Section 3(9) of the Hamilton Fence By-Law does not help the plaintiff in that the Section which provides that no person shall maintain a fence that is hazardous to persons or property has to be read as providing that the fence is not a hazard to anyone acting reasonably or taking reasonable care for their own safety. The existence of the fence in and of itself in my view was not a hazard given that its purpose was to keep people out of the property. In order to effect that purpose, fences are often built with materials that would be inherently dangerous to someone falling off a roof onto the fence. For example, wrought iron fences are often constructed out of a series of metal spears that serve to make it difficult to climb over the fence. Picket fences might very well be taken to be inherently dangerous to anyone falling on the sharp end of the pickets. I find that the Anselmo fence was not hazardous or inherently dangerous for its intended use. Any risk that the fence posed would have obvious to a reasonable person. No reasonable person would have any expectation that fence would be safe for individuals falling from above. In any event, By-Law 10-142 was not in place at the time of the accident and such is irrelevant to this proceeding.
[22] Similarly the capping of the metal fence after the plaintiff’s injury is irrelevant to this proceeding. It is not evidence of the fact that the Anselmos knew of the state of danger created by the metal fence prior to the incident giving rise to this action. The fact that they took steps to ameliorate the possibility of a recurrence of the type of injury that occurred should not expose them to liability on the basis that they should have foreseen the possibility prior to the plaintiff’s fall. It is not hindsight but rather the foresight of a reasonable person which can determine responsibility.
[23] It is arguable that as the plaintiff fell off the Farias roof and ended up on the Farias property merely striking the fence on the way down, he was not a “person entering on the premises” within the meaning of Section 3 of the Occupiers’ Liability Act and therefore the provisions of the Act do not apply in this case. However, whether liability be claimed under that Act or in negligence in allowing a fence capable of causing injury to exist, the essential question to be answered is whether the risk posed by the fence was a foreseeable risk. The defendant Anselmo was only required to exercise care against dangers that were reasonably foreseeable. In my view it was not reasonably foreseeable that someone would fall from the neighbour’s roof onto the Anselmo fence. This is not a contingency that Ms. Anselmo could reasonably be expected to exercise care against. To require her to provide for such a bizarre contingency would require her to become “an insurer against all possible risks” a duty that the law does not impose. I find the chain of events that led to the plaintiff’s injuries cannot be said to have been reasonably foreseeable by Ms. Anselmo.
[24] I find that the defendant Anselmo cannot be said to have breached any duty of care owed to the plaintiff and is therefore not liable in law for the plaintiff’s damages. I find that summary judgment should issue dismissing the claim of the plaintiff against the defendants Anselmo.
[25] I have this day issued a separate judgment on consent dismissing the plaintiff’s action against the defendants Farias and the Farias cross-claim against the defendants Anselmo without costs.
[26] So far as the costs of this motion are concerned, the defendant Anselmo being successful in dismissing the plaintiff’s action is entitled to costs of the action.
[27] So far as quantum of costs is concerned, the plaintiff has submitted a bill of costs for their involvement in the action totaling $6,423.37 for fees on a partial indemnity basis, $1,584 of which relate to discoveries and the balance to the preparation and argument of this motion. The total claim for costs submitted is $8,070.31 including $835.04 for HST and $811.90 for disbursements. This claim for costs is in line with the bill of costs submitted by the plaintiff (as I asked both counsel to submit their claim for costs to avoid having to reappear to argue costs after my reserve judgment was issued). I will therefore allow the defendant Anselmo costs on a partial indemnity basis in the total amount of $8,070.31.
[28] Judgment to issue in accordance with these reasons.
LOFCHIK J.
Released: January 27, 2012
COURT FILE NO.: CV-09-10179
DATE: 2012-01-27
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ARMANDO CABRAL Plaintiff/Respondent - and – HELEN ANSELMO, DINIS ANSELMO, JOSE FARIAS and MARIA FARIAS Defendants/Applicant REASONS FOR JUDGMENT LOFCHIK J. TRL:mg
Released: January 27, 2012