SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-25
DATE: 2013-01-25
RE: Gunner Skoog Plaintiff (Respondent)
and
Canadian Tire Corporation Ltd. Defendant (Appellant)
BEFORE: The Honourable Mr. Justice Robert J. Nightingale
COUNSEL:
Mark Staats, for the Respondent
D. Keith Smockum, for the Appellant
HEARD: January 7, 2013
ENDORSEMENT
Nature of Proceeding
[1] This is an appeal by the Appellant Canadian Tire Corporation Limited from the judgment of Deputy Judge Forbes of the Brantford Small Claims Court dated November 23, 2011 in which the Plaintiff (Respondent) was awarded damages. The only issue on the appeal is liability i.e. whether the Deputy Judge erred in law in finding the Appellant negligent. There was no appeal with respect to causation or damages.
Standard of Review
[2] An appellate court will not interfere with the trial judge’s findings of fact, inferences from such findings or of mixed fact and law unless it is satisfied that the finding was the result of a palpable and overriding error.
[3] A palpable and overriding error means a decision that is clearly wrong being contrary to the evidence, where the trial judge patently misunderstood or misapprehended the evidence or where there was no evidence whatsoever to support the trial judge’s conclusions. A palpable and overriding error must be plainly identifiable and the error is shown to have affected the result. Housen v Nikolaisen (2002) 2002 SCC 33, 2 SCR 235.
Findings of negligence involve a question of mixed law and fact and those findings of the trial judge should be accorded deference by the appellate court in the absence of a palpable and overriding error. The determination of what is the appropriate standard of care and whether that standard of care was met by the Appellant is a question of mixed fact and law as it involves the application of a legal standard to a set of facts. If it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, the error may amount to an error in law subject to the standard of correctness. In the absence of palpable and overriding error, the appellate court cannot interfere with a trial judge’s findings with respect to negligence where the only point is the interpretation of the evidence as a whole. Housen v. Nikolaisen, supra; Jaigli Enterprises Limited v. Taylor (1981) 1981 26 (SCC), 2 SCR 2.
Background Facts
[4] The evidence at trial was that the Respondent, age 75, on April 30th, 2010 exited the main door of the Canadian Tire store in Brantford and made a right hand turn intending to walk to his vehicle. He became ill and dizzy thinking he was going to fall down. He walked approximately 30 feet along the exterior of the store along a sidewalk past four separate doors including the waiting room for customers of the garage. He did not enter that waiting room but then proceeded another 20 feet approximately feeling more ill when he came upon the first of five garage bay doors of the Appellant’s premises. There was a sign on each of the pillars between those doors that stated “no admittance employees only”.
[5] This first garage bay door which the Respondent came upon featured a manual garage door that was left open. There was evidence that that door could have been opened and closed by store employees when a customer’s car was brought in for service.
[6] This first door opened to an E-Test bay, and the evidence at trial from the Appellant’s witness was that if someone was driving a car in and out of that bay, they had to leave the door open for “safety reasons”. However, that same witness confirmed that the door would usually be opened or closed essentially depending on the weather conditions outside.
[7] Most significantly, the second garage bay door of the Appellant’s premises was in fact closed at the time. Just inside that door was a two-wheeled utility trailer that weighed approximately 350 pounds on a hoist located only three to four feet inside the garage entrance. The hoist was not raised and was approximately one and half feet off the ground and consisted of two metal ramps that a vehicle would drive onto with a hoist mechanism in the middle. This trailer was rolled to the back of the hoist with its hitch on the ground.
[8] The evidence at trial was that the Respondent entered the first open garage bay entrance as he was now feeling very ill and thought he was going to fall down on the cement floor. He saw the trailer and walked only four to six feet from where he had entered the garage and went to steady himself on the trailer. His evidence was that when he put his hand on it with his legs on either side of the hoist, the trailer suddenly and unexpectantly moved on him, causing him to fall and injure his arm and leg.
[9] The evidence of the Respondent was that the trailer was sitting there loose, it wasn’t tied down, it had nothing holding it and it was sitting on its wheels when he touched it.
[10] The evidence of the Appellant’s representative was that this trailer was up on the hoist safely as it needed a wheel installed on it. The hoist was not raised as the tongue of the trailer was sitting in the centre of the hoist. The trailer was just sitting on the hoist to be at the height to work on it properly ergonomically speaking. It appears from the evidence that none of the Appellant’s employees were in the area of the trailer at the time of the Respondent’s fall.
[11] The Respondent’s evidence was that he did not see any of the no admittance signs before he entered the first bay garage area, nor were there any employees of the store telling him he was not allowed in there.
Analysis
[12] In this case, the issue on appeal is restricted to the one issue of whether or not the trial judge erred in law in finding that the Appellant was negligent i.e. whether it breached Section 3 of the Occupiers’ Liability Act of failing to take such care as in all the circumstances of the case was reasonable to see that persons entering on the premises were reasonably safe while on the premises.
[13] The Ontario Court of Appeal in Waldick v Malcolm (1989) 78 O.R. 717 emphasized that what constitutes reasonable care will turn on the specific facts of each case:
“A similarly worded statement of an occupiers’ duty occurs in all other Occupiers’ Liability Acts. All Courts have agreed that the section (i.e. Section 3 of the Occupiers’ Liability Act) imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers’ liability with the modern law of negligence. The duty is not absolute, and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take “such care as in all the circumstances of the case is reasonable”. The trier of fact in every case must determine what standard of care is reasonable and whether it has been met…”
[14] It is not incumbent on an occupier to guard against every possible accident that might occur as to “exact that standard would effectively make the occupier an insurer against all possible risks. The law imposes no such duty” Alchimowicz v Schram (1999) Carswell Ont 83, (1999) 1999 2655 (ON CA), O.J. 115.
[15] The Deputy Judge made significant findings of fact that were supported by the evidence at trial. The Deputy Judge found that after leaving the Canadian Tire store, the Respondent became confused and dizzy and was looking for a place to steady himself. At the first open garage door of the Appellant’s premises, he saw the trailer and moved towards it to steady himself and only walked a very short distance of four to five feet from that entrance way to the trailer which then moved extremely easily because of its position on the hoist and concrete floor when he touched it causing him to fall onto the hoist injuring himself. He made a very specific finding that the Appellant must have known that there were inherent dangers with respect to this easily moveable trailer located so very close to the open garage door because it had closed the door to the hoist in which the trailer was situated. Obviously, the Deputy Judge considered that the Appellant by closing this door to the hoist was attempting to prevent any pedestrians from entering that particular hoist area and injuring themselves by coming into contact with the very easily moveable trailer. The Deputy Judge in my view was entitled to draw that inference of fact from the evidence at trial. Even if I were to disagree with his findings and take a different inference from that evidence, there is nothing wrong in his inference-drawing process itself on the record.
[16] The Deputy Judge did not specifically state the statutory duty of care imposed on the Appellant in this case under Section 3 of the Occupiers’ Liability Act although just prior to his decision, he had certainly been advised of that duty and the relevant case law authority by Counsel for the Appellant who also pointed out that the Appellant would not be responsible for any injuries that were not reasonably foreseeable. This Court should not presume that the Deputy Judge was not aware of or failed to apply the appropriate legal test merely because the test is not explicitly set out in the Judge’s reasons. Ali v Triple 3 Holdings Inc (2002) CanLII45126 (ONCA)
[17] The Deputy Judge, after finding that the Appellant’s trailer would move extremely easily in its position on the hoist and that the Appellant must have known there were inherent dangers because it closed the door to the hoist in which the trailer was situated, went on to state:
“What is reasonable in these circumstances? I find that Canadian Tire was not reasonable in protecting Mr. Skoog’s interests. Surely this is not the first case of somebody falling ill at or near a store. This Court finds that Canadian Tire did not do enough to protect Mr. Skoog in his present or past condition on the 30th of April and I accordingly find that Canadian Tire did not take such care in all the circumstances that – for the duty that they owed Mr. Skoog.”
[18] In addition, he went on to state:
“Mr. Skoog also admitted he didn’t see the no admittance signs. While I find that it’s no wonder, here is a gentleman who is feeling ill, he’s dizzy and he’s confused, he’s trying to find some place to steady himself. What Mr. Skoog did I suggest was reasonable in the circumstances. If there had been signage inside the door, if there had been a chain or strap across each entrance, and this court has seen that particular safety device at a service station, then this situation might well be different.”
[19] Counsel for the Appellant frankly and quite properly conceded that the Respondent’s pleading in paragraph 11(c) of his Claim that the Appellant failed to take any steps whatsoever to ensure that members of the public, including the elderly Plaintiff, did not venture into the garage service area included the allegation that the Appellant left the garage door to the first bay open and accordingly that was not an issue at the trial. The Appellant was found to have known that there were inherent dangers to the public because of this easily moveable trailer being located so closely to the open garage door as it closed the door to the hoist on which the trailer was situated preventing access to it by the public.
[20] A reasonable and logical conclusion or inference from that evidence would be that the Appellant also ought to have closed that first garage door because of the very close proximity of that trailer to that open doorway and if not, it ought to have placed warning signage directly in the open garage door area or other devices across it to prevent the public from entering so as to avoid any contact with the easily moveable trailer located so close to the open entranceway.
[21] The Deputy Judge stated that because of the Respondent’s illness, dizziness, and confusion, he did not notice the four “no admittance” signs on the side of the building as he walked beside it. He went on to specify that had there been signage inside the door area warning him that there was no admission allowed into that area or if there had been a chain or strap across that open entranceway, then the situation might well have been different. This obviously refers back to the fact that this first garage door was left open even though the Appellant must have known that there were inherent dangers regarding the easily moveable trailer as it closed the second door to the hoist area in which the trailer was situated.
[22] Justice Iacobucci in Housen v Nikolaisen, supra at paragraph 36 stated as follows:
To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or a similar error in principle, such an error can be characterized as an error of law, subject to the standard of correctness.
[23] Although the Deputy Judge could have been more articulate in his description of the applicable standard of care and how it was breached by the Appellant, I am not able to conclude in this case that the Deputy Judge applied an incorrect standard or care or failed to consider a required element of the appropriate legal test or made a similar error in principle which could be extricated from a mixed question of fact and law. The Deputy Judge did not commit an error in law with respect to the Appellant’s standard of care or a breach of that standard of care.
[24] A Deputy Judge should not be found to have misapprehended or ignored the evidence or come to the wrong conclusions merely because the Appellate Court diverges in the inference it draws from the evidence and chooses to emphasize some portions of the evidence over others. As the Deputy Judge’s findings of fact regarding the applicable standard of care and breach of that standard of care are based on the evidence at trial and inferences that can reasonably be based on that evidence they do not reach the level of palpable and overriding error.
[25] Accordingly, the appeal is dismissed with costs payable by the Appellant to the Respondent which the parties have agreed upon in the amount of $1,500.00.
Mr. Justice Robert J. Nightingale
DATE: January 25 , 2013
COURT FILE NO.: CV- 12-125
DATE: 2031-01-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Gunner Skoog
and
Canadian Tire Corporation Ltd.
BEFORE: Mr. Justice Robert J. Nightingale
COUNSEL: Mark Staats , for the Respondent
D. Keith Smockum, for the Appellant
ENDORSEMENT
Mr. Justice Robert J. Nightingale
DATE: January 25 , 2013