Court File and Parties

Court File No.: C-168A-10
Date: 2013-11-08
Superior Court of Justice - Ontario

RE: BARRY HOWELL, Plaintiff

AND:

MID-VALLEY HARDWARE LTD., Defendant

BEFORE: THE HONOURABLE MR. JUSTICE D. A. BROAD

COUNSEL:
Douglas P. O’Toole, Counsel, for the Plaintiff

Michael P. Nanne, Counsel, for the Defendant Mid-Valley Hardware Ltd.

HEARD: November 6, 2013

ENDORSEMENT

Nature of the Motion

[1] The defendant Mid-Valley Hardware Ltd. (“Mid-Valley”) has brought a motion for summary judgment dismissing the action as against it. The action has been stayed as against the co-defendants Donald Wamboldt and D. Wamboldt Enterprises Ltd. under the Bankruptcy and Insolvency Act (Canada). Mid-Valley brought an earlier motion for summary judgment to dismiss the claim against it, which was dismissed by the Honourable Justice Hambly on July 4, 2012, without prejudice to it being renewed after full production and discovery have been completed. Documentary production and examinations for discovery have now been completed, and Mid-Valley has now brought a fresh motion for summary judgment.

Background

[2] The action arises from a very tragic accident on May 13, 2008 which involved the plaintiff falling from a ladder while performing unpaid work on a commercial building in the City of Middleton, Nova Scotia. The plaintiff suffered catastrophic injuries from the fall rendering him a quadriplegic.

[3] The plaintiff had been invited from his home in Ontario to Nova Scotia by an acquaintance, the third-party Derek Wamboldt (“Derek”), to assist him with some work on his property, on the basis that Derek would pay the plaintiff's travel expenses to Nova Scotia and his living expenses while in that province. After the plaintiff performed some work on his property, Derek requested the plaintiff to attend at a commercial property in Middleton where his father the defendant Donald Womboldt (“Donald’), operated a variety store. Donald had sold the property approximately two weeks previously to Mid-Valley with the transaction having closed on May 1, 2008.

[4] Donald was in the process of clearing out his inventory and equipment from the property in the two weeks following the closing of the sale of the property to Mid-Valley, pursuant to a verbal arrangement entered into with one of the principals of Mid-Valley Bruce Elliot permitting him to remain on the property for those purposes.

[5] After performing some work for Donald on the interior of the premises, the plaintiff was directed by Donald to take down a wooden sign above the front door on the exterior of the commercial premises. The sign was constructed of 8 to 10 pieces of plywood, each approximately 4 feet square in size, and affixed to the exterior wall with screws.

[6] Donald provided the plaintiff with a stepladder, a cordless screwdriver and an extra battery and instructed him to proceed to remove the sign. Although Donald did occasionally come out of the premises to remove pieces of plywood the plaintiff had taken down, and occasionally steadied the ladder for him, the plaintiff worked alone on the removal of the sign for the majority of the time that he was engaged in the task.

[7] Each piece of plywood that formed the sign was held in place by six screws, three on each side of the piece. The removal of the sign required the plaintiff to ascend the stepladder with the cordless drill in his hand, loosen and remove the screws and lower each piece of plywood to the ground.

[8] The plaintiff had been working on removal of the sign for approximately one-half to three-quarters of an hour that when the accident occurred. The plaintiff, in his supporting affidavit, deposed that he had no actual memory of the fall and that his last memory before it occurred was of himself descending the ladder holding a piece of plywood. The plaintiff struck his head on the concrete sidewalk and sustained damage to his spinal cord.

Position of the Defendant Mid-Valley

[9] Mid-Valley states that there is no genuine issue requiring a trial respecting its liability, arguing that the fall occurred on the municipal sidewalk, and it was never an "occupier" of the "premises" (being the municipal sidewalk), for the purposes of the Nova Scotia Occupiers' Liability Act S.N.S. 1996, c. 27 (the “Act”), and therefore owed no duty of care to the plaintiff.

[10] Mid-Valley further states that it was similarly not an "occupier" of the commercial premises owned by it, and therefore owed no duty of care to the plaintiff, in the event that it is found that it constituted the relevant "premises" for the purposes of the Act.

[11] In any event, Mid-Valley argues that no evidence exists, nor has been provided by the plaintiff, evidencing that it, as an occupier of the premises, did not take such care as, in all the circumstances of the case, was reasonable to see that each person entering on the premises was reasonably safe while on the premises.

[12] Furthermore, it argues that the plaintiff willingly assumed the risk of injury while removing the sign, thereby reducing its duty to him to a duty not to create a danger with the deliberate intent of doing harm or damage to him and not to act with reckless disregard of his presence, pursuant to section 5(1) of the Act. Mid-Valley states that there is no evidence whatsoever that it created danger with the deliberate intent of doing harm or damage to the plaintiff or acted with reckless disregard of his presence.

[13] Although Mid-Valley pointed to evidence respecting the consumption of alcohol by the plaintiff prior to the fall, counsel for Mid-Valley did not press that issue in argument.

Disposition

[14] For the reasons set forth below, I would dismiss the motion on the basis that Mid-Valley has failed to show that there is no genuine issue requiring a trial respecting its liability for the plaintiff's injuries.

Discussion

[15] The principles and the test governing motions for summary judgment are well known. Rule 20.04 (2) provides that the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defense. In making that determination, the court is, pursuant to Rule 20.04 (2.1), required to consider the evidence submitted by the parties and may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

[16] The Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 identified three types of cases as amenable to summary judgment, namely:

(a) cases where the parties agree, and the court is satisfied, that summary judgment is the appropriate means of determining an action;

(b) cases were claims or defenses are shown to be without merit; and

(c) cases where a "full appreciation of the evidence and issues that is required to make a dispositive findings can be achieved by way of summary judgment.”

(see Combined Air at paras. 41, 42 and 55-56)

[17] Mid-Valley characterizes the present case as falling in the second category, on the basis that the plaintiff’s claim, as against it, is without merit.

[18] The Court in Combined Air emphasized that the purpose of the amended rule is to eliminate unnecessary trials, not to eliminate all trials and the guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. Summary judgment will be appropriate where it is safe to determine the matter by that means because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial (see paras. 38 and 39).

[19] The parties were agreed that the existence of a duty of care of Mid-Valley to the plaintiff is to be determined pursuant to the Act. Therefore if the issue of whether Mid-Valley owed a duty of care to the plaintiff pursuant to the Act does not require a trial, then summary judgment dismissing the action as against it should follow. However, if the record is not sufficient to ensure that a just result can be achieved without the need for full trial on that issue, then summary judgment should not be granted.

[20] The parties expressed satisfaction, in response to a question raised by the court in argument, that the court is in a position to interpret and apply the Act, notwithstanding that it is an enactment of the legislature of another province, without the necessity for calling expert evidence with respect to its proper interpretation. They point, in this respect, to the fact that the Act largely mirrors the Ontario Occupiers Liability Act, and essentially codifies or encompasses the common-law.

[21] Section 4(1) of the Act provides that an "occupier" of "premises" owes a duty to take such care as in all the circumstances of the case is reasonable to see that each person entering on the premises and the property brought on the premises by that person is reasonably safe while on the premises. Pursuant to section 2 (a) an "occupier" is defined to mean an occupier at common law and includes a person who is in physical possession of the premises or who has responsibility for, and control over, the condition of the premises, the activities conducted on the premises or the persons allowed to enter the premises. It is specifically provided that there may be more than one occupier of the same premises.

[22] In his affidavit filed in support of the motion, Donald Marshall deposed that his co-principal in Mid-Valley, Bruce Elliot verbally allowed the Donald time to remove the contents and equipment from his variety store on the commercial property within the first two weeks of May, 2008. It is evident from this that Mid-Valley exercised control over the persons allowed to enter the premises and over the activities conducted on the premises, namely the removal by Donald of his contents and equipment. The suggestion that Mid-Valley was in possession of the premises and exercised some control over them is supported by the statement made by Mr. Elliot on discovery at question 39 that “we were in possession of the building when he (Donald)… attempted to take the sign down.”

[23] The fact that Donald remained on the premises, with the permission of Mid-Valley, following the closing of the purchase and sale transaction, to clear out his inventory and equipment did not prevent Mid-Valley from being an "occupier" of the commercial property for the purposes of the Act. As indicated above, the Act specifically contemplates the possibility of there being more than one "occupier". Indeed, Donald had no authority to be on the premises without the permission of Mid-Valley. In my view, a trier of fact, properly instructed, could find, based on the evidence, that Mid-Valley was an “occupier” of the commercial property.

[24] Pursuant to section 2(b) of the Act “premises” is defined to include land and structures. In my view the sign was a fixture and formed part of the structure, and therefore, insofar as to the plaintiff was in contact with the sign while dismantling and removing it, he was in contact with the "premises" of which Mid-Valley was an occupier.

[25] In my view, it would be open to a properly instructed trier of fact to find, based upon the evidence on the record that, while in the process of performing work on the exterior of the building, specifically removing a fixture, the plaintiff was a person "entering on the premises" to whom an occupier of those premises, in this case Mid-Valley, owed a duty of care pursuant to section 4(1) of the Act.

[26] The plaintiff's presence on the municipal sidewalk was only incidental to his dominant activity at the relevant time, namely removing the fixture attached to the commercial property. He was not injured utilizing the sidewalk for the primary purpose for which it was provided by the municipality, that is, to facilitate pedestrian traffic, but rather he was injured while performing work on the commercial property. He was only on the sidewalk in order to access the sign on the front of the building. It would therefore be open to the trier of fact to find that the relevant "premises" for the purposes of the Act was the commercial property and not the municipal sidewalk.

[27] Subsection 4(2) of the Act provides that the duty created by subsection (1) applies in respect of the condition of the premises, activities on the premises, and the conduct of third parties on the premises.

[28] There is no evidence that there was any defective or deficient condition of the premises which contributed to the accident. However, the duty of Mid-Valley is stated to apply both to “activities on the premises” and “conduct of third parties on the premises.”

[29] It is noted that the application of an occupier’s duty of care to the conduct of third parties in section 4(2) of the Nova Scotia Act does not appear in the Ontario Occupier’s Liability Act, R.S.O. 1990, c. O.2. Subsection 3(2) of the Ontario Act provides that “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 on the premises.”

[30] The relevant “activity” for the purpose of section 4(2) of the Nova Scotia Act was the removal of the exterior sign. In my view, Donald should be considered a third-party for the purpose of subsection 4(2) of the Act, to whose conduct the duty of Mid-Valley is stated to apply.

[31] It would be open to a properly instructed trier of fact to find that, in instructing the plaintiff to remove a sign comprised of a number of four foot square plywood sheets, attached by screws, utilizing only a portable power screwdriver, at the top of the stepladder and without providing assistance in steadying the ladder or securing the plywood sheets throughout the process, or without providing adequate equipment such a scaffold and/or a safety harness, Donald failed to take such care as in all the circumstances was reasonable to see that the plaintiff was reasonably safe.

[32] Although the affidavit of Donald Marshall, filed in support of the motion, stated that Bruce Elliot "verbally allowed" Donald time to remove the contents and equipment from his variety store within the first two weeks of May, 2008, Mr. Elliot, on his examination for discovery, stated that, although he did not remember who initiated the decision to remove the sign, he and Mr. Marshall "definitely wanted the sign down."

[33] I find, based upon this response, that the removal of the sign was done at the behest of and for the benefit of Mid-Valley. It is noteworthy, as confirmed by the examination for discovery of Bruce Elliot, that the principals of Mid-Valley did nothing to inquire into the methodology to be utilized by Donald to remove the sign. Mid-Valley, having directed that the sign be removed by Donald, had the power as the owner and an occupier of the premises, to direct how the sign was to be removed and to take reasonable steps to ensure that it was done in a way which would minimize risk of injury to the persons performing the work and to the public.

[34] No authority was provided to me regarding the proper interpretation and scope of the provision of the Act at subsection 4(2) applying the duty of an occupier to the conduct of third parties. I am not in a position to find that its application to the facts of this case to support the plaintiff’s claim is without merit, nor that a full appreciation of that issue can be achieved in order to make a dispositive finding regarding it on this motion.

[35] As indicated above, Mid-Valley points to section 5(1) of the Act and states that the risk of falling from the ladder was "willingly assumed" by the plaintiff and therefore, if Mid-Valley was an "occupier" its duty would be limited to not deliberately creating a danger or to act with reckless disregard of the presence of the plaintiff.

[36] Mid-Valley provided no authority for the test to be utilized for a finding of willing assumption of risk for the purposes of section 5(1) of the Act. The evidence indicates that the third-party Derek directed that the plaintiff to attend at the commercial premises to assist his father Donald and Donald instructed the plaintiff to remove the sign and provided him with the tools and directed the methodology to be utilized. Given that Derek had financed the plaintiff's transportation to Nova Scotia and was covering his room and board, it would be open to a trier of fact to find that the plaintiff was not in an effective position to refuse to carry out the work utilizing the methodology instructed by Donald in order to deem him to have "willingly assumed" the risk of falling from the ladder.

[37] Moreover, in my view, the fact that the plaintiff may have admitted on discovery to previous experience working at heights, and being comfortable doing so, does not establish that he “willingly assumed” the risk of falling from a ladder which was not properly secured or steadied, and when he was not provided with adequate assistance or safety equipment.

[38] In light of my findings referred to above, it is not necessary for me to consider the plaintiff’s submissions that he was in a master/servant relationship with Mid-Valley and that Mid-Valley was thereby subject to a particular duty of care to the plaintiff, nor whether the Statement of Claim, as drafted, is capable of supporting such a claim.

Order

[39] I therefore find that Mid-Valley has failed to show that there is no genuine issue requiring a trial. Accordingly its motion for summary judgment is dismissed.

[40] If the parties cannot agree on costs, the plaintiff may make written submissions as to costs within 21 days of the release of these reasons for decision. The defendant Mid-Valley has 14 days after receipt of the plaintiff’s submissions to respond. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario, N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D. A. Broad J.

Date: November 8, 2013