ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 172/12 DATE: March 28, 2014
BETWEEN:
Elsie Lorraine Wiseman Plaintiff
– and –
Carleton Place Oil Inc., 972066 Ontario Inc. o/a Tim Hortons and Reid Gardens Landscaping & Garden Centre Defendants
Counsel:
Richard T. Knott, for the Plaintiff Christopher Hart, for the Defendant, Carleton Place Oil Inc. Dawn Searle, for the Defendant, Reid Gardens Landscaping & Garden Centre
HEARD: February 21st, 2014
RULING ON MOTION
PEDLAR, J
[1] This is a Motion for Summary Judgment brought by each of the remaining two Defendants in this action being, Carleton Place Oil Inc. and Reid Gardens Landscaping & Garden Centre seeking to have this action dismissed. The action has been discontinued as against 972066 Ontario Inc. o/a Tim Hortons.
[2] This is a slip and fall case arising from a time when the Plaintiff and her friend attended the Tim Hortons restaurant in the Town of Carleton Place on February 6th, 2011.
[3] The evidence is that the Plaintiff was a passenger in her friend’s car. Her friend parked the car in a designated parking spot in the parking lot, which is owned by the Defendant, Carleton Place Oil Inc. (hereinafter referred to as “Carleton Place Oil”) and for which the Defendant, Reid Gardens Landscaping & Garden Centre (hereinafter referred to as “Reid Gardens”) is responsible for the snow removal.
[4] The Plaintiff and her friend are both familiar with this location and proceeded to walk from their parked car directly to the Tim Hortons restaurant.
[5] In order to reach Tim Hortons by a direct path, they were required to cross the drive-through lane for Tim Hortons, which was marked by curbs on each side of the lane.
[6] The Plaintiff and her friend both described the parking lot as quite busy at the time of their arrival, with motor vehicles coming and going from a gas bar, the drive-through lane and Tim Hortons restaurant, as well as one other commercial tenant, Quiznos Subs, located on the property.
[7] It was not snowing at the time of the Plaintiff’s arrival. The parking lot had been plowed earlier that day. A representative of Reid Gardens testified during his examination for discovery that on February 6th, 2011, at some point in time between 5:00 a.m. and 9:00 a.m., or between 11:00 a.m. and 1:30 p.m., the property had been plowed. The Plaintiff’s evidence is that she and her friend had arrived around noon. As she approached the curb for the drive-through lane, she lifted her right foot intending to step over the curb and her left foot, which was supporting her, slipped out from under her and she fell. She describes the amount of snow as being located about six inches out from the curb. She described it as slippery snow, not ice or slush. It was deeper the closer she got to the curb. She described the weather conditions as not sunny but a typical winter day.
[8] As the Plaintiff proceeded to cross the drive-through lane at Tim Hortons, her foot slipped on the accumulated snow along the curb and she fell, breaking her wrist. Her evidence is that she was walking slowly and carefully across the parking lot at the time. The only other witness to her fall was her friend, the driver of the car in which she arrived, who confirms her evidence.
[9] Carleton Place Oil had entered into a written agreement with Reid Gardens to provide snow removal for the premises. A copy of that contract was part of the written material in support of this motion. It required Reid Gardens to be responsible for plowing all snow from the parking lot located on the premises, including the drive-through, the parking spots, and in around the curbs. The only area which required hand shovelling was around the premises of the buildings for Tim Hortons, Quiznos and Pioneer Gas. There was no requirement for hand shovelling around the curbs marking the drive-through lane for Tim Hortons.
[10] Rule 20 of the Rules of Civil Procedure was amended in 2010, to permit a judge who is conducting a Summary Judgment Motion, to weigh evidence, evaluate credibility, and draw reasonable inferences from the evidence unless the judge is of the view that it is the intention of justice for such powers to be exercised only at trial.
[11] On January 23rd, 2014, the Supreme Court of Canada released the decision of Hryniak v. Mauldin, 2014 SCC 7, which alters the legal analysis applicable to summary judgment motions brought pursuant to Rule 20 of the Rules of Civil Procedure. At paragraphs 27 and 28, the Supreme Court in Hryniak, supra, states as follows:
[27] There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pretrial processes and the conventional trial no longer reflects the modern reality and needs to be readjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
[28] This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[12] The court went on to confirm that pursuant to Rule 20.04(2)(a), summary judgment motions must be granted whenever there is no genuine issue requiring a trial. The court also cautioned against categories of cases being taken as rules or preconditions where summary judgment is and is not appropriate.
[13] At paragraphs 49, through to 51, the court in Hryniak, supra, stated as follows:
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, 92) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[51] Often, concerns about credibility or clarification of the evidence can be addressed by calling oral evidence on the motion itself. However, there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination.
[14] The court goes on to state at paragraphs 56 and 57, as follows:
[56] While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focussing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “require[ed]” as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers – and the purpose of the amendments – would be frustrated.
[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. The documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact-finding.
[15] The court also provides a roadmap/approach to a motion for summary judgment beginning at paragraph 66, through to 68, as follows:
[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[67] Inquiring first as to whether the use of the powers under Rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution. As well, by first determining the consequences of using the new powers, the benefit of their use is clearer. This will assist in determining whether it is in the interest of justice that they be exercised only at trial.
[68] While summary judgment must be granted if there is no genuine issue required a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary. The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate. There is always the risk that clearly unmeritorious motions for summary judgment could be abused and used tactically to add time and expense. In such cases, the motion judge may choose to decline to exercise her discretion to use those powers and dismiss the motion for summary judgment, without engaging in the full inquiry delineated above.
[16] The other factor to be taken into account on this motion is that this case is proceeding as a Simplified Procedure action. The issues of timeliness, affordability and proportionality in light of the litigation as a whole are relevant in that context.
[17] In dealing first with the motion brought by Carleton Place Oil, there is no dispute that the duty upon occupiers of a premises is to take reasonable care for the safety of people, who are permitted on the premises. An occupier 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 are reasonably safe while on the premises.
[18] The position of Carleton Place Oil is that they had a plan in place, by contracting with Reid Gardens for snow clearance, that meets their standard of reasonable care for those person expected to attend on the premises. The Plaintiff’s position is that, on the evidence, the Plaintiff was proceeding carefully to negotiate her way on the premises, under the conditions which existed, and despite proceeding carefully, she fell and injured herself. Her position is that those facts give rise to a triable issue as to liability on behalf of the owner of the premises.
[19] It is important to note that the evidence provided on this motion, uncontradicted, is that the Plaintiff was proceeding carefully from a motor vehicle, which was parked in a designated parking location on the premises. In order to proceed directly to the Tim Hortons restaurant, she was required to cross the drive-through lane for Tim Hortons, which was marked by curbs located on either side of the lane. That required her to step over those curbs. The uncontradicted evidence is that there was snow buildup along the sides of those curbs. There was no requirement in the contract of Reid Gardens to clear the snow away from those curbs, other than by using snow removal equipment that could reasonably be expected to clear the larger areas of the premises. The only requirement to remove snow by hand was directly around the business premises.
[20] There is no evidence of any lowered section of those curbs to allow pedestrian traffic to walk across the drive-through lane from the designated parking spaces on the other side of that lane.
[21] I am prepared to take judicial notice that some parking lot designs do provide such pedestrian pathways across drive-through lanes so that pedestrians may walk across the drive-through lane without having to step over the curbs. The Tim Hortons location within two blocks of the courthouse where this motion was argued in Perth contains such a lane for pedestrians walking in off the public sidewalk along one side of the building. I find it to be a reasonable expectation for anyone designing a parking lot with designated and marked parking spots on the far side of the drive-through lane, that people parking their cars in those spots would be required, in taking a direct path to the commercial premises on the other side of the lane, to step over those curb barriers. It would not be a reasonable expectation that people would walk down to the far end of the drive-through lane to go around those curbs.
[22] The contract between Carleton Place Oil and Reid Gardens is the plan that was in place on the date of this incident when the Plaintiff was injured. It provides for hand shovelling only around the building premises. That hand shovelling makes sense in those areas where there is known to be the most pedestrian traffic. It provides a reasonably safe area for people to step up onto the sidewalk flat surface located outside the commercial premises.
[23] I find that there is a triable issue in this case as to whether Carleton Place Oil, as owner of the premises, has met the standard of reasonable care in designing a parking lot where it is a reasonable expectation that people will have to step over, and across, barriers in the form of curbs set up for the drive-through lane that could reasonably be expected to provide a greater risk than stepping up onto a flat smooth surface like a sidewalk, with snow present around the curb barriers. There is a triable issue as to the adequacy of the plan for snow removal that was in place on the date the Plaintiff was injured, given all the circumstances.
[24] There was no evidence from Carleton Place Oil as to why this particular design for the parking lot was chosen and whether any attention was given to the potential of additional risk presented by the curbs for the drive-through lane, or if they reasonably contemplated people parking on the far side of the drive-through lane, where the Plaintiff’s friend parked her car, would proceed to walk across the drive-through lane as the Plaintiff attempted to do. There was no evidence as to whether they considered providing pedestrian walk-through areas as part of the drive-through lane, or not.
[25] Carleton Place Oil may have some evidence to present relevant to that issue. Such evidence was not presented on this motion. I find I am unable to resolve that issue based on the evidence provided to date.
[26] Having decided that there appears to be a genuine issue unresolved on the evidence before me, I am then to consider if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). I must then use my discretion to decide if those powers can be used in a way that is not against the interests of justice. That finding can be made if the use of those powers will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[27] As stated above, this is an action brought under the Simplified Procedure process. As stated to counsel at the time the motion was heard, it is my view that the trial could have been heard in one day of trial time. The motion itself involved the delivery of hundreds of pages of written material and took a full half-day to argue. The examinations for discovery were held approximately one year prior to the hearing of this motion. As the Local Administration Judge in the county where this matter was argued, I can confidently say that we could have easily scheduled a one day trial within that same timeframe.
[28] In a case such as this, I also see an imbalance of power between the parties. A senior citizen going for coffee at a familiar location, suffers a broken wrist in a fall on the premises. This is not a complicated case in many respects. I am left feeling that I do not have enough evidence to decide the issue of liability. The choices at this point are to either request further material and continue the motion regarding liability only, or to schedule a one day trial and conclude the matter. If liability is established, the issue of damages could also be dealt with during that one day trial in front of a judge alone.
[29] I do not find that it would lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole to continue this motion. I am not prepared to use the expanded fact-finding powers to call oral evidence, or ask for further written material, when, in my view, this matter can be resolved expeditiously in a one day trial.
[30] Counsel for the Plaintiff quite rightly points out that, under the circumstances of this trial, the motion brought by the Defendants has added to the delay and expense of these proceedings. He also points out that such a motion would not be reasonably available to the Plaintiff. It is relatively easy for defendants, of this nature, to bring the resources they have against this single plaintiff in a way that can be viewed as against the interests of justice in a Simplified Procedure action of this nature.
[31] With regard to the Defendant, Reid Gardens, it is their position that they are not the occupier of these premises and if they have any liability, it is in terms of their contract with Carleton Place Oil. The evidence presented on this motion is that they had plowed the premises that day. There is no obligation on them to shovel the snow along the curb barriers that outline the drive-through lane of Tim Hortons.
[32] There was nothing in the written contract requiring Reid Gardens to attend to plow, salt or sand on the day that the Plaintiff fell. The contract specifically contemplated that the parking lot would be plowed by truck by 5:00 a.m. when there was an accumulation of two inches, with hand shovelling only around the perimeter of the building. At the request of Carlton Place Oil, salt and sand were only to be applied to the lot after plowing if the temperature was minus five degrees Celsius or colder. Nothing in the contract required Reid Gardens to inspect the parking lot.
[33] At the time of the Plaintiff’s fall, the parking lot was depicted in a surveillance video captured by the Tim Hortons drive-through and was relatively snow free with a few patches where there was a small amount of snow. That video does not contradict the Plaintiff’s evidence that there was approximately six inches of snow on the edge of the curb for the drive-through lane when she attempted to step over that curb.
[34] Taking all that evidence into account, I agree with the position of the Defendant, Reid Gardens, that there is no evidence that they failed to live up to the terms of their contract in a reasonable way and that all claims against them should be dismissed. The “responsibility and control over the condition of the premises,” as included in the extended definition of “occupier” in Section 1 of the Occupiers’ Liability Act R.S.O. (1990) Ch.0.2 is with Carleton Place Oil. Reid Gardens performed their role as defined by the contract in the specific terms requested by Carleton Place Oil. That evidence is uncontradicted.
[35] In view of the outcome of this ruling, if the parties cannot agree on costs, then any party seeking costs may do so in writing within 30 days with a ten day right of reply to any other party affected. Such written submissions should be limited to no more than three typed pages and be accompanied by a draft Bill of Costs.
[36] Under all the circumstances, this case is to be placed on the Assignment Court for June 17th, 2014, at 11:00 a.m. at the courthouse in Perth, at which time a trial date will be set. If the Plaintiff seeks an earlier trial date, rather than wait for the June Assignment Court, her counsel may speak to the trial coordinator and all reasonable efforts will be made to accommodate that request. Such trial to be scheduled for one day. In view of my familiarity with the issues, I will hear this trial, as my schedule permits, unless my availability would cause unreasonable delay.
[37] I thank counsel for their submissions and assistance in dealing with this matter.
The Honourable Mr. Justice K.E. Pedlar
Released: March 28, 2014
COURT FILE NO.: 172/12 DATE: March 28, 2014
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Elsie Lorraine Wiseman Plaintiff
– and –
Carleton Place Oil Inc., 972066 Ontario Inc. o/a Tim Hortons and Reid Gardens Landscaping & Garden Centre Defendants
RULING ON MOTION
Pedlar, J.
Released: March 28, 2014