ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50451

DATE: 2013/04/22

BETWEEN:

Rebecca Pammett, Gail Pammett and Kenneth Pammett

Plaintiffs/Responding Parties

– and –

McBride Corp.

Defendant/Moving Party

Laurie A. Tucker, for the Plaintiffs/Responding Parties

Michael Raymond Switzer, for the Defendant/Moving Party

HEARD: March 5, 2013

REASONS FOR DECISION

R. SMITH J.

[1] The defendant McBride Corp. (“McBride”) has brought a motion seeking a summary judgment dismissing the plaintiffs’ claim on the grounds that Rebecca Pammett slipped and fell on a walkway that was not part of the lands leased by it. As a result, McBride submits that it was not an occupier as defined under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”) and therefore cannot be found liable.

[2] McBride also seeks to amend its statement of defence to plead that the fall did not occur on lands or premises occupied by it as defined under the OLA.

[3] The plaintiffs Rebecca, Gail, and Kenneth Pammett (collectively referred to as “Pammett”) submit that there are genuine issues requiring a trial namely to determine whether McBride was an occupier under the OLA, even if it did not lease the lands where the fall occurred; and secondly to determine whether McBride was negligent and caused Pammett to slip and fall on the walkway even if it was not an occupier as defined under the OLA.

[4] The plaintiffs further submit that the defendant should not be permitted to amend its statement of defence to plead that it was not an occupier of the lands where the fall occurred. The plaintiffs argue that they would suffer prejudice because they have only claimed against McBride and not against the owner of the premises or the contractor engaged to maintain the walkway in question, and the limitation period may have expired. The plaintiffs submit that allowing the defendant to amend its statement of defence would amount to allowing the defence to withdraw an admission that it was an occupier.

[5] The following issues must be decided:

(1) Is a trial required to determine if McBride was an occupier under the OLA?

(2) Is a trial required to determine if McBride is liable under common law principles of negligence?

(3) Should McBride be permitted to amend its statement of defence to plead that it was not an occupier?

Background Facts

Slip and Fall

[6] On January 21, 2009, Rebecca Pammett slipped and fell on a walkway which constituted the main entrance to the Tim Hortons restaurant owned and operated by McBride as a franchisee.

[7] McBride sub‑leased premises from the owner of a commercial center located at 1260 Merivale Road in Ottawa which can be described as a “strip mall”.

[8] The commercial center is owned by 1230174 Ontario Inc. (“1230174” or “Ashcroft”), which leases commercial space to various businesses within the commercial center.

[9] McBride leased a portion of land within the commercial center where it operates a Tim Hortons restaurant franchise under licence. McBride only leased the premises from the exterior walls of the building inward as well as a portion of a drive‑thru lane adjacent to the building. The leased premises do not include the walkway, which constitutes the entrance to the Tim Hortons, where the fall occurred. McBride also did not lease the parking lot area of the commercial center.

[10] Ashcroft engaged the services of a winter maintenance contractor named Variety Property Maintenance, Landscaping & Design Inc. to maintain the parking lot and walkways of the commercial center during the winter months of 2008‑2009.

[11] During discoveries in September 2011, the plaintiffs discovered that the walkway area where the fall occurred, which is the exclusive entranceway to the Tim Hortons restaurant, was not leased to the defendant. Ashcroft owns the walkway area where the slip and fall occurred.

[12] The plaintiffs submit that the following list of factors supports its position that McBride was an occupier of the walkway area:

(a) Tim Hortons’ customers were required to use the walkway in order to access the store entrance;

(b) Tim Hortons’ customers have exclusive use of the walkway. No other businesses are accessed by the walkway;

(c) a salt bucket was maintained outside the entrance to the restaurant and used exclusively by Tim Hortons’ employees to salt the walkway;

(d) Tim Hortons kept a shovel on the premises;

(e) the directors of McBride expect the restaurant manager to tend to salting;

(f) Tim Hortons’ manager inspected the walkway every morning when she arrived at approximately 6:00 a.m. and, if she noticed ice, she would instruct night staff to apply salt to the area;

(g) Tim Hortons’ employees were instructed to inspect the walkway every two hours, and hourly during inclement weather, and to salt if necessary;

(h) there is no evidence that notice was posted for the benefit of Tim Hortons’ customers, indicating that Tim Hortons was not responsible for the walkway; and

(i) McBride has claimed privilege over the written statements given by witnesses.

[13] McBride acknowledges that it is responsible to pay its proportionate share of the external common area costs, including maintaining and operating the paved area, parking area, sidewalks, walkways, curbs and the snow removal there from under its lease agreement with Ashcroft.

[14] Pammett commenced a separate action against the owner and the company hired to maintain the walkways and parking area after they discovered that McBride had not leased the walkway area where the fall occurred.

Analysis

Issue 1 Is a trial required to determine if McBride was an occupier under the OLA?

[15] Under Rule 20.04(2)(a) of the Rules of Civil Procedure, the onus is on the moving party to establish that there is no genuine issue requiring a trial.

[16] The decision of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1 (C.A.), set out three categories under which summary judgment motions can be categorized. The third category is where the motion judge can dispose of the case on the merits and where the trial process is not required in the interest of justice. At para. 44, the Court of Appeal states:

Moreover, the amended Rule 20 now permits a third type of case to be decided summarily. The rule provides for the summary disposition of cases other than by way of agreement or where there is “no chance of success”. The prior wording of Rule 20, whether there was a “genuine issue for trial”, was replaced by “genuine issue requiring a trial”. This change in language is more than mere semantics. The prior wording served mainly to winnow out plainly unmeritorious litigation. The amended wording, coupled with the enhanced powers under rules 20.04(2.1) and (2.2), now permit the motion judge to dispose of cases on the merits where the trial process is not required in the “interest of justice”.

[17] The responding party must put his best foot forward and the genuine appreciation test must inform this analysis.

[18] Section 1 of the OLA defines an occupier as follows:

1. In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises; (“occupant”)

[19] Combined Air, supra, set out the requirement that motion judges must do more than simply assess if they are capable of reading and interpreting all of the evidence before them but must also be in a position to fully appreciate the evidence and issues in a way that permits a fair and just adjudication of the dispute.

[20] I agree with the plaintiffs’ submissions that the definition of an occupier of premises is broadly cast under s. 1 of the OLA, to include not only the person or entity that owns or physically possesses the property, but also includes a person who has responsibility for and control over the condition of premises or the activities carried on there or control over the persons allowed to enter the premises. The definition of occupier under the OLA also contemplates that there can be more than one occupier.

[21] The case of Jarvis v. Camus, 2001 MBQB 186, 157 Man. R. (2d) 278, dealt with the issue of who was an occupier under the Manitoba Occupiers’ Liability Act. At para. 5, the Master quotes Nurgitz J. at paras. 11 & 13, who stated that there is considerable judicial authority which determines that ownership by itself does not create occupancy. He went on to quote Lord Denning’s findings in Wheat v. E. Lacon & Co. Ltd. (1966), 1 All E.R. 582 at 593 where he described an “occupier” as follows:

It was simply a convenient word to denote a person who had a sufficient degree of control over premises to put him under a duty of care towards those who come lawfully onto the premises.

[22] In Moody v. Toronto (City) (1996), 1996 8229 (ON SC), 31 O.R. (3d) 53, at paras. 5‑6, Dambrot J. stated as follows with regards to defining an occupier:

The Divisional Court, in Slumski v. Mutual Life (February 10, 1994) has made clear that in view of this definition, the owner or occupier of a property adjacent to a public sidewalk is not, in respect of the sidewalk, an “occupier” of “premises” within the meaning of the Act, and does not owe a duty of care to users of the sidewalk, absent special circumstances.

The reason that an adjacent owner can be liable in “special circumstances” also flows from the definition of “occupier”. [Emphasis added.]

[23] In Moody, ibid, at para. 11, the court found that there were special circumstances which made the adjacent owner an occupier because the walkway in question was used almost exclusively by patrons of the owner’s venue and secondly, a significant number of patrons had no alternative but to use the walkway. Such facts were found to be capable of amounting to special circumstances.

[24] In Musselman v. 875667 Ontario Inc. (Cities Bistro), 2012 ONCA 41, at para. 9, the Court of Appeal held that the conduct of the parties over many years in which they were in a landlord‑tenant relationship was also a consideration in determining whether the respondent was an occupier.

[25] I find that McBride has not met its onus on a balance of probabilities to satisfy me that there is no genuine issue requiring a trial to determine whether or not it is an occupier under the OLA because its employees assumed responsibility for maintaining the walkway in a safe condition by checking it regularly and salting the walkway outside of the leased premises as required, which constituted the main entrance to the Tim Hortons restaurant. This case is very similar to the facts in Moody, supra, as the entrance way was used almost exclusively by customers of the Tim Hortons restaurant and this entrance/walkway was maintained by employees of McBride.

Disposition of Issue #1

[26] I therefore find that there is a genuine issue requiring a trial to determine McBride by its actions had responsibility and control over the condition of the walkway where the fall occurred and therefore was an occupier.

Issue #2 Is a trial required to determine if McBride is liable under common law principles of negligence?

[27] In the text Cause of Action: Occupiers’ Liability (Toronto: Carswell, 2011), Janet E. Smith, states at p. 4 that:

Ontario’s definition of an occupier, requiring only one of the above elements, is similar to that of Manitoba and Prince Edward Island. It is broader than that of provinces such as Alberta and British Columbia which require that all of the above elements be present. [Emphasis added.]

[28] On page 5, the author states:

The defendant who is found not to be an occupier under the Occupier’s Liability Act may still attract liability based on common law negligence principles.

[29] I agree with the plaintiffs’ submission that there is a genuine issue requiring a trial to determine whether McBride could be found liable in negligence even if it is found not to be an occupier under the OLA. A trial is required to determine if McBride owed a prima facie duty of care to the users of the walkway and to determine if there was a sufficient relationship of proximity between the parties that it would be reasonably foreseeable that a careless act by the defendant could result in injury to the plaintiff. The second step in the analysis is to determine whether there are factors which exist which should eliminate or limit the duty found under the first branch of the test.

[30] A trial is required for the court to have a full appreciation of the evidence with regards to the proximity of the parties, the duty of care and any factors which should limit the duty of care found under the first branch of the test.

Disposition of Issue #2

[31] I find that McBride has not met its onus to show that there is not a genuine issue requiring a trial to determine whether McBride is liable for damages under the common law principles of negligence.

Issue #3 Should McBride be permitted to amend its statement of defence to plead that it was not an occupier?

[32] Rule 26.01 of the Rules of Civil Procedure states as follows:

On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. [Emphasis added.]

[33] The plaintiffs categorize the defendant’s failure to plead that it was not an occupier of the walkway outside the Tim Hortons restaurant as an admission that it was an occupier of the premises. They argue that McBride should not be permitted to withdraw its admission due to the prejudice this would cause.

[34] The defendant’s pleading failed to clearly state that it was not an occupier because it had not leased the walkway area where the plaintiff slipped and fell. The plaintiffs only became aware at discoveries in September 2011 that McBride’s lease did not include the walkway area where the fall occurred. I find there is a good probability that the limitation period will only commence when the plaintiffs discovered the details of the area McBride leased from Ashcroft. I infer that the defendant was also unaware that it had not leased the area including the walkway where the slip and fall occurred because it failed to include this in its pleading.

[35] I am not satisfied that the defendant made an admission that it was an occupier of the area where the slip and fall occurred under the OLA. However, given the defendant’s failure to plead that it was not an occupier, this would make it reasonable for the defendant to have only discovered the true state of affairs after examining the survey and the lease documents at discoveries in September of 2011.

Disposition of Issue #3

[36] The defendant is granted leave to amend its statement of defence as proposed to plead that it was not an occupier, as I find there was not a clear admission that it was an occupier and any prejudice to the plaintiffs is not sufficient to refuse leave to amend the statement of defence.

Disposition of the Defendant’s Motion for Summary Judgment

[37] The defendant’s motion for summary judgment is dismissed as I am satisfied there are genuine issues requiring a trial of the action for reasons given above.

Costs

[38] The plaintiffs may make submissions on costs within ten (10) days, the defendant shall have ten (10) days to respond and the plaintiffs shall have seven (7) days to reply.

Mr. Justice Robert J. Smith

Released: April 22, 2013

COURT FILE NO.: 11-50451

DATE: 2013/04/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Rebecca Pammett, Gail Pammett and
Kenneth Pammett

Plaintiffs/Responding Parties

– and –

McBride Corp.

Defendant/Moving Party

REASONS FOR DECISION

R. Smith J.

Released: April 22, 2013