ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1959/13
DATE: 2015/08/18
BETWEEN:
Lindsay Harris
Wonkyu D. Lee, for the Plaintiff
Plaintiff
- and -
Loblaw Companies Limited. and Adrian’s No Frills
Tara Pollitt, for the Defendant
Defendants
HEARD: June 24, 2015
LEITCH J.:
[1] The defendants seek summary judgment pursuant to R.20 dismissing the plaintiff’s claim on the basis that there is no genuine issue requiring a trial.
Background Facts
[2] The plaintiff alleges injuries arising from a slip and fall that occurred at the defendants’ grocery store on May 7, 2012 at 4:15 pm.
[3] The plaintiff alleges she slipped on ice and/or water near the broccoli located in the produce section of the grocery store.
Evidence filed on behalf of the Plaintiff
[4] The plaintiff swore an affidavit in response to this motion. She deposed that she was walking past the location where the broccoli was merchandised on ice, which was not kept in a bag. She stepped off the non-slip floor mat onto the tile flooring at the end of the aisle and immediately slipped on what appeared to her to be water on the floor. She had not seen this water or ice on the floor. As she deposed, there was no sign, warning or notice placed anywhere warning her of the wet floor. On cross-examination, she stated that after her fall to the floor, her jeans were instantly soaked.
[5] When cross-examined on her affidavit, the plaintiff indicated she remembered the water and she remembered ice on the broccoli.
[6] The plaintiff had confirmed on her examination for discovery that she had previously shopped at the defendants’ store many times and she was not in a hurry on the day of the accident. According to her affidavit, the plaintiff has continued to shop at the defendants’ store and has observed a large yellow sign cautioning people of wet floors which had been placed at the location of her fall.
[7] The plaintiff’s friend, who was with her at the time of the accident, Tina Wood, also swore an affidavit in which she deposed that she observed a large puddle of water and crushed ice on the floor after the plaintiff’s fall. She deposed that this crushed ice appeared to be the same kind of crushed ice that was used to keep the broccoli cold. She also described broccoli being displayed on loose ice at the end of the fresh counter right next to where the plaintiff fell.
[8] In addition, the plaintiff filed affidavits of her partner Mr. Ryan Turcotte and an affidavit of Mr. Deacon who is no longer an employee of the defendants. As the defendants pointed out, Mr. Deacon confirmed on his cross-examination that he is Facebook friends with Mr. Turcotte and at one time lived with Mr. Turcotte’s step-brother. I will refer to Mr. Deacon’s affidavit and his cross examination further in these reasons.
[9] In his affidavit, Mr. Turcotte deposed that the store was not well maintained and on five occasions in the last five years he had seen something on the floor. However, he had never seen water or ice on the floor. He did observe pylons placed on the floor in response to specific situations.
The Standard of Care owed by the Defendants
[10] In Waldick v. Malcolm (1989), 1991 8347 (ON CA), 70 O.R. (2d) 717 (C.A.); aff’d (1991) 1991 71 (SCC), 3 O.R. (3d) 471 (S.C.C.), the duty of care owed pursuant to the Occupier’s Liability Act, R.S.O. 1990, c. 0. 2. was described as follows:
Under the Occupier’s Liability Act, an occupier has an affirmative duty to make premises reasonably safe for persons entering on them by taking reasonable care to protect such persons from foreseeable harm. At the same time, 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.”
[11] Later, in Kerr v. Loblaws Inc., 2007 ONCA 371 at para. 19 in commenting on the adequacy of the trial judge’s charge to the jury, the Court of Appeal stated at para. 19, “the standard of care in this case is a standard of reasonableness. It requires neither perfection nor unrealistic or impractical cautions against known risks”.
[12] The court found it was appropriate for the jury to be instructed that they must consider whether a defendant took reasonable care in the circumstances by notice, by lighting, by guarding, by maintenance or otherwise to make the premises reasonably safe for the plaintiff.
[13] The Court of Appeal concluded that the trial judge had properly instructed the jury and placed relevant factors before the jury for its consideration by outlining certain evidence relied on by the plaintiff as demonstrating the need for reasonable safety measures by the defendant and its alleged lack of reasonable care regarding the safety of its grocery store. This evidence included evidence of:
− the known hazard arising from fallen grapes in a produce department;
− Zehrs’ alleged failure to adhere to the produce department safety measures outlined in its own internal policies;
− the absence of floor mats in front of Zehrs’ grape display;
− the alleged failure of Zehrs’ store personnel to sweep or mop the produce department floor;
− the absence of any detailed floor maintenance schedule for Zehrs’ produce department;
− the failure of Zehrs’ store manager to read Zehrs’ floor care policy manual and his alleged failure to instruct store personnel to follow Zehrs’ safety policies; and
− the failure of produce department staff to inspect the floors and to record such inspections in the sweep log on an hourly basis.
[14] The defendants referred to the trial decision of this court in Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (Gen. Div.) where after observing at para. 31 that:
The positive or affirmative duty that is imposed on the defendant does not extend to the removal of every possible danger. It does not require the defendant to maintain a constant surveillance or lookout for potential danger. The defendant meets its duty to take reasonable care if it takes measures that are reasonable in the circumstances.
[15] In Garofalo, at para. 32, the court found that the defendant had met its duty of care noting that the defendant had:
in place a maintenance plan which called for cleaning and sweeping when needed, as well as a supervised and controlled cleaning and sweeping schedule which called for a minimum sweeping of the produce area every hour to hour and a half. This included the preparation of log sheets by the person doing the cleaning as to date and time.
[16] The court found at para. 34 “that the defendant had a regular plan for the control and supervision of the produce area and that its maintenance of the said area was reasonable in all the circumstances”, noting further that the sweep log showed the area had been swept 20 minutes before the accident occurred (which involved the plaintiff slipping and falling on a piece of plum on the floor).
[17] In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, at paras. 8, 9 and 10, Perell J. helpfully summarized the law in this area as follows:
8 If 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.
9 The 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.
10 The 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.
and commented further at para. 29 as follows:
29 It 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 staircase
Discussion and Conclusion
[18] There is no issue that a summary judgment motion is appropriate in the circumstances. The plaintiff’s and defendants’ factums thoroughly set out the applicable law. The issue on this motion is whether these motion materials allow this court to make the necessary findings of fact, apply the law to the facts and conclude that summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result (see Hryniak v. Mauldin, 2014 SCC 7, 1 SCR 87, at para. 49).
[19] The position of the defendants is that there is no genuine issue that they did not meet the standard of care required pursuant to s. 3(1) of the Occupier’s Liability Act. They submit that the evidence establishes they took such care as in all the circumstances of the case was reasonable to see that the plaintiff was reasonably safe while on their premises.
[20] The defendants emphasize that they had a reasonable system in place – that is, they had a system of inspection and maintenance which was followed on the date in question noting that the accident area was inspected just five minutes before the plaintiff’s fall.
[21] The defendants emphasize that they cannot be liable simply because the plaintiff fell and injured herself where there is no evidence that their system of inspection was deficient.
[22] As a result the defendants seek a finding that they were not negligent on May 7, 2012 and there is no genuine issue requiring a trial.
[23] While the plaintiff resists the motion for summary judgment on the grounds there is conflicting evidence of material facts and law that raise genuine issues requiring a trial, the plaintiff also submits, in the alternative, that if the court should decide that there is no genuine issue requiring a trial there ought to be a finding in favour of the plaintiff that the defendants breached their duty of care to the plaintiff on May 7, 2012.
[24] The defendants filed an affidavit from counsel attaching the pleadings and the transcript of the plaintiffs’ examination for discovery.
[25] In addition, an affidavit was sworn by Mr. Adrian Newland, the owner and operator of the grocery store where the plaintiff fell. He confirmed that the store is 33,000 square feet including a produce section of 12,000 square feet. What he described as the “fresh counter” is 54 feet long. The broccoli, which more often than not, comes stocked with ice, is located at the end of that counter. There is non-slip flooring along the fresh counter.
[26] Mr. Newland acknowledged on his discovery that before the accident, there had not been any sign placed to warn customers about potential liquid being on the floor.
[27] Mr. Newland also deposed that he trains new employees verbally and does “a walkthrough” with them. They are trained to look for water or debris on the floor and to clean up anything they see. In particular staff in the produce section are trained to look for things such as grapes, lettuce or liquids.
[28] He explained that the store maintains what he described as a “sweep log”. The expectation is that all departments will conduct an inspection every hour. The employee who completes the inspection will fill out the sweep log. His employee, Mr. Deacon conducted an inspection according to the sweep log for May 7, 2012 at 4:10 pm, five minutes before the plaintiff’s fall.
[29] Mr. Newland’s staff completed a Customer Incident Report which indicated the plaintiff fell in the produce section and it was noted that the cause of the fall was “water”, “ice from broccoli” and later in the report it was stated “slipped on ice on floor from broccoli”. If the store employees had made other observations it is reasonable to expect that those observations would have been noted.
[30] The plaintiff swore an affidavit in response to this motion. She deposed that she was walking past the location where the broccoli was merchandised on ice, which was not kept in a bag. She stepped off the non-slip floor mat onto the tile flooring at the end of the aisle and immediately slipped on what appeared to her to be water on the floor. She had not seen this water or ice on the floor. As she deposed, there was no sign, warning or notice placed anywhere warning her of the wet floor. On cross-examination, she stated that after her fall to the floor, her jeans were instantly soaked.
[31] When cross-examined on her affidavit, the plaintiff indicated she remembered the water and she remembered ice on the broccoli.
[32] The plaintiff had confirmed on her examination for discovery that she had previously shopped at the defendants’ store many times and she was not in a hurry on the day of the accident. According to her affidavit, the plaintiff has continued to shop at the defendants’ store and has observed a large yellow sign cautioning people of wet floors which had been placed at the location of her fall.
[33] The plaintiff’s friend, who was with her at the time of the accident, Tina Wood, also swore an affidavit in which she deposed that she observed a large puddle of water and crushed ice on the floor after the plaintiff’s fall. She deposed that this crushed ice appeared to be the same kind of crushed ice that was used to keep the broccoli cold. She also described broccoli being displayed on loose ice at the end of the fresh counter right next to where the plaintiff fell.
[34] In addition, the plaintiff filed affidavits of her partner Mr. Ryan Turcotte and an affidavit of Mr. Deacon who is no longer an employee of the defendants. As the defendants pointed out, Mr. Deacon confirmed on his cross-examination that he is Facebook friends with Mr. Turcotte and at one time lived with Mr. Turcotte’s step-brother.
[35] In his affidavit, Mr. Turcotte deposed that the store was not well maintained and on five occasions in the last five years he had seen something on the floor. However, he had never seen water or ice on the floor. He did observe pylons placed on the floor in response to specific situations.
[36] Mr. Deacon deposed that he unloaded and restocked broccoli together with the crushed ice it was packed in onto the inclined produce shelf which was equipped with a drainage system that was supposed to capture and drain all the water from the produce counter. However, he often saw water overflowing the produce counter and spilling onto the floor.
[37] As previously set out, the defendants assert that as in Garofalo, they took steps to make sure the plaintiff was reasonably safe on their premises by having a regular plan of inspection and maintenance of the produce area and they followed regular maintenance routines as recently as 5 minutes before the plaintiff fell. In other words, to use the words in Nandlal, there was no fault or failure on the part of the defendants which caused the plaintiff’s fall and if there had been water on the floor that does not in and of itself lead to the conclusion that they were negligent.
[38] In relation to the plaintiff’s theory that the drainage system was not properly maintained, the defendants point to Mr. Newland’s evidence that he cleaned it once a month; that Mr. Deacon would have noted a problem on the sweep log if there had been one; and furthermore the plaintiff has no evidence that this system posed any problem on the day of her fall.
[39] In relation to the allegation that pylons should have been used, they point to Mr. Turcotte’s evidence that he had observed the use of pylons, which they say supports Mr. Newland’s evidence that pylons were used in response to specific situations and the plaintiff’s evidence that in any event she was not expecting to see, nor was she looking for, any sign or posting of caution.
[40] For the purposes of considering whether the defendants are entitled to have the case dismissed against them at this stage of the proceeding, I find for the purposes of this motion that a “hazard” existed on the floor which caused the plaintiff to fall. According to the evidence of the plaintiff, Tina Wood and the notations of the store employee who completed the incident report, this “hazard” was water and/or ice from the counter where broccoli was displayed.
[41] Notwithstanding the evidence of Mr. Newland, I have concluded that there is a genuine issue as to whether the defendants met their duty of care to the plaintiff. Mr. Deacon deposed that he often saw water overflowing the produce counter and spilling onto the floor and that on a number of occasions before the date of the plaintiff’s fall, he had advised Paul, his manager, of that problem. He also described having to lift wet floor mats off the floor in the produce area every evening. He further deposed that despite the frequency of that problem he never witnessed any repair to the system nor was he trained or instructed to take precautions pre-emptively before water overflowed to the floor. In other words he was only told to clean up water if he saw it.
[42] The hazard described by Mr. Deacon was not an unknown, random or infrequent hazard. Precautions in relation to his hazard would be inexpensive and relatively easy to implement. For example, warning signs or pylons could have been posted. In fact, guard rails were installed in front of the broccoli after the plaintiff’s fall.
[43] On his cross examination, Mr. Newland disagreed with Mr. Deacon’s evidence that he was never trained to look out for wetness of the carpet and never trained to pay attention to the drainage system. Mr. Newland also disagreed with Mr. Deacon’s evidence that Mr. Deacon had told someone that there was an issue with the drainage system. However, there is no affidavit from Paul or the produce manager in relation to this evidence of Mr. Deacon.
[44] In addition, on the evidence on this motion I cannot conclude as the defendants assert, that the verbal training given to staff and their regular inspection system is sufficient evidence that they met their duty of care. There is conflicting evidence which cannot be resolved in relation to the staff training. While Mr. Newland’s evidence was that he, and then Paul, did a walkthrough with Mr. Deacon, Mr. Deacon’s evidence was that Derek did a walkthrough with him only through the grocery department where he first worked and he was not told to look out for things on the floor and only told to stock the shelves. When after about 8 months, Mr. Deacon began working in the produce department, no one did a walkthough with him in that department and the only conversation he had when he started in produce was that he was to stock the shelves and make sure they looked full.
[45] Further, there is conflicting evidence on this motion with respect to whether there was compliance with the defendants’ regular inspection system. Mr. Deacon acknowledged that part of his job was to perform clean up in the produce area every hour which usually involved sweeping, making sure everything was tidy and organized and picking up or mopping up anything on the floor. However, he also gave evidence that the inspections were haphazard. Mr. Deacon deposed that it was a common occurrence in the produce department that one person would perform the inspection and cleanup, while another would fill out the sweep log, without being aware of what was done. Mr. Newland simply disagreed with Mr. Deacon’s evidence and again there was no affidavit from others working in the produce area.
[46] Also, according to Mr. Deacon’s evidence the inspections weren’t done as they were supposed to be done all the time and Paul never did it and he’d always forget. Indeed the sweep log for the produce department for the week that included the date of the plaintiff’s fall (the week ending May 12th) had no entries on Thursday after 2:10 p.m. and no entries at all for Friday and Saturday. When Mr. Deacon was asked to explain that his evidence was that “Paul usually forgets to do it or just doesn’t do it at all”.
[47] Overall, I am satisfied that there is a genuine issue requiring a trial with respect to whether the defendants met the standard of care owed to the plaintiff. As a result, the defendants’ motion is dismissed.
[48] With respect to the issue of costs, I note that my preliminary view is that it was not unreasonable for the defendants to bring this motion. It is as a result of the considerable evidence presented by the plaintiff in response to the defendants’ motion that the defendants’ motion is dismissed. I ask that counsel endeavour to resolve the issue of costs. If necessary, counsel may file brief written submissions on costs within 60 days.
“Justice L. C. Leitch”
Justice L. C. Leitch
Date: August 18, 2015
COURT FILE NO.: 1959/13
DATE: 2015/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lindsay Harris
Plaintiff
- and -
Loblaw Companies Limited. and Adrian’s No Frills
Defendants
REASONS FOR JUDGMENT
LEITCH J.
Released: August 18, 2015