ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO: CV-10-414488
DATE: 20140818

BETWEEN:

SAROJANIE (MAZIE) NANDLAL and HAITRAM NANDLAL
Plaintiffs

– and –

THE TORONTO TRANSIT COMMISSION
Defendants

Joel P. McCoy, for the Plaintiffs

Stephen Sargent, for the Defendant

HEARD: August 12, 2014.

Perell, J.:

REASONS FOR DECISION

A. INTRODUCTION

1The Defendant, Toronto Transit Commission (“TTC”), brings a motion for a summary judgment to dismiss the Plaintiff, Sarojanie Nandlal’s, slip and fall negligence action against the TTC.

2The TTC submits that there are no genuine issues for trial because having put her best evidentiary foot forward, Mrs. Nandlal cannot succeed in proving the case she alleges in paragraph 6 of her Statement of Claim, which states:

6. On or about the 18th day of November, 2008, the Plaintiff SAORJANIE (MAZIE) NANDLAL, was approaching the staircase adjacent to the west side of the Rapid Transit (RT) train platform leading to Kennedy Subway Station when suddenly and without warning she slipped and fell on the slippery and debris strewn steps, falling down approximately 15 stairs, and suffering severe injuries.

3The TTC does not dispute that it is an occupier with a duty of care under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. It does not dispute that on November 18, 2008, Mrs. Nandlal slipped and fell while on a staircase at the Kennedy Subway Station and that she injured herself. However, it submits that Mrs. Nandlal cannot prove that it was the TTC’s negligence of having “slippery and debris strewn steps” that was the cause of Mrs. Nandlal’s slip and fall.

4The TTC submits further that there is no genuine issue that Mrs. Nandlal will be unable to show that the TTC breached its duty of care under the Occupiers’ Liability Act to take reasonable steps to keep the Kennedy Station reasonably safe. The TTC submits that there is no genuine issue requiring a trial, but that it had a reasonable system of maintenance and inspection and that it had discharged its duty of care under the Act.

5The TTC submits that there is no strict liability for occupiers; occupiers are not insurers and the standard of care is not perfection. The TTC submits that Mrs. Nandlal has failed to establish that there was an act, or failure to act, on the part of the TTC that caused the stairs at the Kennedy Subway Station to be unsafe and that she has failed to show that the TTC’s negligence was the cause of her slip and fall.

6For the reasons that follow, I agree that the TTC should be granted a summary judgment dismissing Mrs. Nandlal`s action.

B. DISCUSSION AND ANALYSIS

7TTC’s duty of care in this action arises from the Occupiers’ Liability Act. Section 3 of the Act states:

Occupier’s duty

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.

8If a plaintiff is injured on premises, in order to succeed in an occupier’s liability claim, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury: St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721 (S.C.J.), at para. 27; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232; Miltenberg v. Metro Inc., 2012 ONSC 1063; Gohm v. York, 2013 ONSC 7118, at paras 20-21.

9The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons on the premises are reasonably safe while on the premises: Gemelus v. Ecole Secondaire Catholique Renaissance, supra, at para. 21; (Canada) Attorney General v. Ranger, 2011 ONSC 3196, at para. 31; Gohm v. York, 2013 ONSC 7118.

10The duty of care imposed on the occupier does not extend to the removal of every possible danger; the standard of care is one of reasonableness and not perfection: George v. Covent Garden Market Corporation, 2007 ONSC 29276, at para. 35; Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (S.C.J.); Gohm v. York, 2013 ONSC 7118.

11There is no dispute that on November 18, 2008, David Anirood, a TTC employee, was the janitor assigned exclusively to Kennedy Station and that he was on duty. His responsibilities included responding to problems and performing a regular scheduling cleaning of the station.

12On November 18, 2008, Mr. Anirod began his shift, and he scanned the entire station to address any hazards requiring immediate attention. Then, following a detailed schedule, he began his daily regular maintenance and cleaning work.

13The evidence shows that Mr. Anirod was supervised: (1) by a Janitor Foreperson, who reports to Transit Control and who travels from station- to-station overseeing the janitors; and (2) by a Supervisor, who reports to Transit Control and who is responsible for continuously monitoring the station.

14On November 18, 2008, the supervisor assigned to Kennedy Station was Sean Cummings. Mr. Cummings was responsible for monitoring for hazards and for addressing them personally or by arranging for the appropriate personnel to attend at the station.

15There is no dispute that in the morning on November 18, 2008, Mrs. Nandlal`s husband dropped her off at McCowan Station and that she boarded the RT train on her regular route to work. She disembarked at the Kennedy Station, which is a high-volume transit hub, for rapid transit, buses, and subway. With about a dozen other commuters, she moved toward stairwell IRT-2S, which connects the rapid transit platform with the bus and subway platforms and which stairwell has an average daily usage of over 5,000 people.

16Mrs. Nandlal was wearing shoes with a heel measuring approximately 2.5 inches in height. She was not rushing, and she took precautions and walked with care. She says that she watched where she was stepping. She says that she was looking for hazards as she proceeded through the station.

17Mrs. Nandlal began her descent down the stairs. Her right foot slipped, and she fell down the stairs. She broke her clavicle.

18At her examination for discovery, Mrs. Nandlal said that she slipped on the floor tiles, but in response to the TTC`s summary judgment motion¸ she stated that she believes that she slipped on debris at the top of the stairs. The basis of her belief is that that morning, she saw debris in the station. She had frequently seen debris at the station in the past. However, this day she did not see the debris she believes that she fell on, and she obviously cannot describe what she did not see. She does not know what she stepped on but believes that she stepped on something.

19There are no witnesses who confirm that there was debris on the stairs at the time of her slip and fall. Mr. Cummings was at the station at the time of the fall, but he did not witness the accident, and he became aware of the fall when Transit Control called him to attend to a fall.

20It was conceded that the stairway tiles where she fell are non-slip tiles and that the tiles were not defective or in need of repair.

21Such is the state of the substantive law and the evidence for the TTC’s summary judgment motion.

22As a matter of procedure, rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” In Hryniak v. Mauldin, 2014 SCC 7, a unanimous Supreme Court of Canada introduced a robust approach to granting summary judgment. In paragraphs 49 and 66, the Court stated:

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, (2) 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. 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 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.

23Thus, in Hryniak v. Mauldin, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers.

24In the case at bar, based on the evidence presented and without the use of the powers provided by rules 20.04(2.1) and (2.2), I am satisfied that summary judgment should be granted dismissing Mrs. Nandlal’s action.

25The success of Mrs. Nandlal’s case depends upon her providing evidence that there were slippery and debris strewn steps where she slipped and fell. If she established that this hazard did exist, then she still might not succeed, if the TTC showed that it took reasonable care to ensure that Mrs. Nandal and others were reasonably safe from the hazard of slippery steps.

26In the case at bar, Mrs. Nandlal provides no direct evidence that there was debris on the stairs, but, rather, she provides her belief that the stairs were slippery and debris strewn. The direct evidence is that the tiles were non-slip tiles in good repair, and, thus, Mrs. Nandlal’s case comes down just to her belief that she slipped on stairs made slippery by the strewn debris that she believes existed but that she did not see, notwithstanding her alertness and the care in which she was walking.

27There is no objective evidence of the slippery steps hazard, but only a subjective rationalization by Mrs. Nandlas for her having fallen down the stairs. That she saw other debris at other parts of the station that day or that she saw debris on past occasions does not lead to the inference that there was a debris hazard at the top of the stairs on November 18, 2008 that the TTC could and should have removed.

28It is, of course, possible that there was litter at the top of the stairs at the Kennedy Station, but Mrs. Nandlal has not proven, on the balance of probabilities, that this hazard did exist on November 18, 2008, and if it did exist, she has not established that the TTC’s failed to meet its statutory obligation to keep the station reasonably safe for its patrons.

29It is important for a court to use common sense when applying the statute: (Canada) Attorney General v. Ranger, supra, at para. 34. Falls at bus terminals, airports, seaports, train stations, subway stations, occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. Falls occur on stairs found everywhere without anybody being responsible for what is just an accident. It is not reasonable or even practicable to impose an obligation on the TTC to be in a position to continuously and immediately cleanup after its patrons who litter the TTC premises including its staircases.

30There is no evidence that would justify a conclusion that the TTC did not meet its statutory duty to take such care as in all the circumstances is reasonable to see that persons entering on the Kennedy Station are reasonably safe. There is evidence that the TTC took steps to make its premises as safe as in all the circumstances was reasonable.

31Mrs. Nandlal has failed to provide evidence from which the court, on a balance of probabilities, could conclude that the TTC failed to meet its statutory duty of care.

C. CONCLUSION

32TTCs summary judgment motion is granted. Mrs. Nandlals action is dismissed.

33If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the TTCs submissions within 20 days of the release of these Reasons for Decision followed by Mrs. Nandlals submissions within a further 20 days.

Perell, J.