COURT FILE NO.: CV-12-110530

DATE: 20150716

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: The Estate of Abdolrahim Hashemi-Sabet by his Estate Trustee and Executrix Savitri Maharaj, Savitri Maharaj, Fatima Hashemi-Sabet by her Litigation Guardian Savitri Maharaj, and Farah Hashemi-Sabet by her Litigation Guardian Savitri Maharaj, Plaintiffs

-and-

Giuseppe Mazzulla and Christine Gavine, Defendants

BEFORE: The Honourable Mr. Justice M.L. Edwards

COUNSEL: Alfred Schorr, for the Plaintiffs

Alan Rachlin, for the Defendants

HEARD: June 19, 2015

ENDORSEMENT

Overview

[1] Neighbours and good friends were to enjoy the lazy hazy days of summer at the defendant’s cottage on August 16, 2010. Tragically, the events of that day unfolded in a manner that no one had expected. Abdolrahim Hashemi-Sabet (“Sabet”), a non-swimmer, left the defendant’s cottage with his 10 year old daughter and entered the water of Lake Simcoe with an inflatable tube that he had brought with him to the cottage. Approximately 10 minutes after entering the water, Sabet’s daughter left to return to the defendant’s cottage. Shortly thereafter, Sabet drowned. The plaintiffs are the surviving family members who now sue the defendants in negligence. The motion before the court is a motion for summary judgment to dismiss the plaintiffs’ action.

The Facts

[2] The defendant, Giuseppe Mazzulla (“Mazzulla”), is the owner of a cottage (“the Cottage”) located at 977 Isabella Street in Belle Ewart, Ontario. The defendant, Christine Gavine (“Gavine”), is his wife. The cottage does not have direct water access to Lake Simcoe. There are other properties located between the defendant’s cottage and the lake.

[3] Sabet and his family had previously visited the defendant’s cottage prior to August 16, 2010. It is uncontroverted that Sabet was well-educated (a pharmacist) and that he was not suffering from any mental illness or disability on the day that he died.

[4] It is also not in dispute that Sabet could not swim. He had not consumed any alcohol, nor had he taken any medication on the day that he died. Sabet was a Muslim and on the day of his death he was observing Ramadhan and, therefore, was fasting during the daylight hours.

[5] When Sabet arrived at the defendant’s cottage he brought with him the inflatable ring previously referred to. He had brought with him a bathing suit, indicative of the fact that he likely intended to enter the water of the lake. He had previously waded in the waters of the lake on a prior occasion, at the same beach location where he ultimately drowned.

[6] The evidence from the transcript of Sabet’s common-law wife, Savitri Maharaj (“Maharaj”), confirms that when Sabet left the defendant’s cottage he did not ask for a life jacket, nor had he ever used a life jacket on the prior occasions when he had entered the waters of Lake Simcoe. Maharaj confirmed in her evidence that she did not make any suggestion to her husband that he wear a life jacket when he left the defendant’s cottage. There was nothing in the evidence that in any way connects the defendants with the inflatable ring that Sabet took with him to the lake. When cross examined on her affidavit, Maharaj confirmed that she had no evidence that the defendants had any reason to believe Sabet would get onto the floatation ring and float away.

[7] As previously noted, the plaintiff’s daughter Fatima accompanied her father to the lake. At the time Fatima was 10 years of age, and when she was examined for discovery she would have been approximately 14 years of age. She confirmed that she had seen her father enter the water of Lake Simcoe as deep as his waist on an occasion prior to his death. Prior to returning to the defendant’s cottage she observed her father sitting on the inflatable ring in the water, at a point which she believed was as deep as his waist. There was nothing in Fatima’s mind that caused her any concern when she left to return to the defendant’s cottage.

[8] As to the state of the lake conditions at the time of Sabet’s drowning Maharaj appended to her affidavit, responding to the defendants’ motion, the South Simcoe Police Service investigation which included various statements of eye-witnesses. Jake McNeill was on a government dock at the time of the drowning. Mr. McNeill, in his statement indicates “there was no wind to flip him, no waves”. Mr. McNeill, according to his statement, saw the entire incident.

[9] Also appended to the South Simcoe Police investigative documentation is a statement of Logan Shaw who was also on the government dock at the time of the drowning. There was nothing in Mr. Shaw’s statement suggesting anything adverse as far as the weather conditions.

[10] A further statement in the police investigatory file is that of Gary Soren who actually picked up the floatation tube after Sabet had drowned. In Soren’s statement he indicates:

Q. Describe the water and weather conditions at the time.

A. A SW wind blowing offshore to the northeast; No whitecaps, a little chop, water temp 75 to 76 degrees F. It was 10 min to 15 mins before I picked the tube up until you got there; There was no boat traffic. It was really quiet.

[11] While the aforesaid statements are not sworn evidence, they do suggest that there was nothing untoward as far as the weather conditions were concerned. The unsworn synopsis in the South Simcoe Police Service Occurrence Report perhaps paints a slightly different picture where the following is contained:

The police witness reported to police that he did not see anyone with the inflatable yellow ring and picked it up because the inflatable was blowing across the lake end over end with the high wind. Police noted the wind condition as a south west offshore breeze with gusts up to an estimated speed of 30 km/hr.

[12] A supplementary unsworn report contained within the police investigative file indicates the following:

Subject was visiting friends at their cottage on Lake Simcoe in Belle Ewart. He went swimming alone and was floating in a small yellow blow up tube. The winds were blowing him out to the open Lake and he went as far as 200-300 feet or 100 metres east of the Government Dock. There were strong wind gusts blowing from the shore to a north east direction into open water. He either fell or jumped off the tube in approx. 10-12 feet of water possibly panicking as described by witnesses. He was a non-swimmer, with no life jacket or PFD. He went under the surface and this was witnessed by youths on the dock.

[13] As to the weather conditions when Sabet left the cottage, Maharaj testified in her cross examination that it was “very windy”. She went on in her cross examination, when pressed on this point, to testify that she agreed that the wind was not so strong at the defendant’s cottage that she was concerned about her husband going to the lake.

Position of the Plaintiffs

[14] The action as it was initially constituted was one based in both negligence and an alleged breach of the Occupiers’ Liability Act. The allegations with respect to the breach of the Occupiers’ Liability Act were abandoned by the plaintiffs at the hearing of this motion, and the sole issue is now one based on negligence. The particulars of negligence as pleaded in the statement of claim are as follows:

(a) they failed to warn Hashemi-Sabet that the current in the lake had a heavy under- tow;

(b) they failed to warn Hashemi-Sabet that there were strong winds and that, as a result, maintaining control while in the water would be difficult;

(c) they failed to warn Hashemi-Sabet not to proceed onto the water, on an inflated flotation device or otherwise;

(d) they failed to provide Hashemi-Sabet with a life jacket or other safety device, despite knowing that he was a non-swimmer;

(e) they failed to stop Hashemi-Sabet from proceeding near the water, or, in the alternative, they failed to supervise Hashemi-Sabet near the water, despite their knowledge that he was a non-swimmer; and,

(f) they failed to stop Hashemi-Sabet from proceeding near the water, or, in the alternative, they failed to supervise Hashemi-Sabet near the water, despite their knowledge that he was observing a fast.

[15] While not specifically pleaded in the particulars of negligence, the focus of the plaintiffs’ claim essentially boils down to the suggestion that the defendants had misrepresented to the plaintiffs, and Sabet in particular that the lake was safe, very shallow and that one could “walk for miles” with the water level never being above one’s knees. This statement is denied by the defendants. In the cross examination on her affidavit filed in opposition to this motion, Maharj stated at page 48, “They said the lake was safe”.

[16] The essence of the position of the plaintiffs can be best summarized from an extract of the cross examination of Maharj, where at question 114 she stated:

A. No. The point is if I knew the lake, if I knew the wind, if I knew how dangerous it was I would say no to him. I did not know any of this and that’s the whole point of it.

So whatever you may ask me it’s like, no. I don’t know the lake was a dangerous lake. I didn’t know the wind is very bad. I don’t live at the cottage. I’m not from the cottage. I don’t deal with the lake. I know nothing about the lake.

These were our friends. They were good friends to us. They were like family to us and I believed that they will help us.

[17] Counsel for the plaintiff argues that the defendants knew that Sabet could not swim. This is established from the affidavit of Maharaj, filed in opposition to the defendants’ summary judgment motion. This is denied by the defendants. The factual question of whether the defendants knew that Sabet could not swim, and the factual dispute as to whether or not the defendants made any representation to Sabet concerning the safety of the lake, are factual issues that could be resolved by way of a mini-trial. This is a new process that has been urged upon the court as a suitable means of avoiding a lengthy trial. See Hryniak v. Maulden, 2014 SCC 7, [2014] 1 S.C.R. 87.

[18] Counsel for the plaintiff argues that representations were made by the defendants under circumstances where the defendants ought to have reasonably foreseen that Sabet would rely on those representations, and that Sabet drowned as a result of his reliance on those representations.

Position of the Defendants

[19] As a preliminary position, counsel for the defendants took the position that the statement of claim as pleaded makes no allegation with respect to negligent misrepresentation. While the particulars of negligence may not specifically plead negligent misrepresentation, I am satisfied that the pleading of negligence is sufficiently broad to encompass such a pleading. In any case, if leave to amend was necessary to specifically plead negligent misrepresentation, such leave would be granted pursuant to the provisions of Rule 26. There was no suggestion during the course of argument that the defendants have been prejudiced, as a result of the narrowing of the plaintiffs’ argument to specifically plead negligent misrepresentation, and exclude the allegations with respect to the Occupiers’ Liability Act.

[20] The defendants take the position that they bear no responsibility for the tragic death of Mr. Sabet, and that he alone is the person responsible for his own demise.

[21] The defendants argue that they did not owe Sabet any duty of care, and that Sabet’s drowning was not reasonably foreseeable. When Sabet left the cottage in this bathing suit with his daughter and the inflatable ring, Maharaj admitted in her evidence that she did not think, nor was there any reason to believe that he would get on the inflatable ring and float out onto Lake Simcoe. Counsel for the defendants rhetorically asks if Maharaj who, as his wife would have intimately known Sabet could not have foreseen what her husband did, then it is asked how could the defendants foresee such an outcome.

[22] Counsel for the defendants argue that there was no positive duty to act on the part of the defendants, as there was no special vulnerability of the plaintiffs. Sabet was a well-educated individual with full command of his faculties on the day of his death. The defendants argue that there was nothing in the evidence to suggest that the defendants exercised any supervisory control over Sabet and, therefore, no duty of care could arise in such a situation.

[23] In terms of any positive duty to act, counsel for the defendants argues that such a duty can only arise in situations where a person attracts or invites others to engage in conduct that is inherent with obvious risk, and that there was nothing in the evidence to suggest such a duty of care would arise on the facts of this case. It is argued that Sabet decided to leave the defendant’s cottage with the inflatable ring which he had brought with him and went to the lake, an area which he had previously attended. There was nothing in the evidence to suggest that the defendants told Sabet that he should enter the water and float on the inflatable ring.

Analysis

[24] With the plaintiffs’ concession that the Occupiers’ Liability Act does not apply, the sole issue that this court has to determine is whether or not the defendants negligently misrepresented anything to Sabet that caused his tragic death. In order to establish the required elements for the tort of negligent misrepresentation the Supreme Court in Her Majesty the Queen v. Cognos Inc., 1993 146 (SCC), [1993] 1 SCR 87, reaffirmed that the required elements for a successful Hedley Byrne claim require five general requirements:

1. there must be a duty of care based on a “special relationship” between the representor and representee;

2. the representation in question must be untrue, inaccurate, or misleading;

3. the representor must have acted negligently in making such misrepresentation;

4. the respresentee must have relied, in a reasonable manner on the negligent misrepresentation; and

5. the reliance must have been detrimental to the representee in the sense that damages resulted.

[25] In order for there to be a successful claim on the facts presently before this court, the plaintiffs must establish that the defendants owed Sabet a duty of care based on a special relationship. Recently, the Supreme Court of Canada in Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, at paragraph 34 held:

A positive duty of care may exist if foreseeability of harm is present and if other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity.

[26] Sabet and his family were attending the defendant’s cottage purely as a social visit. The defendant’s cottage did not abut Lake Simcoe and the beach where Sabet ultimately drowned. Sabet had been to this beach on a prior occasion and to the knowledge of his wife had paddled in the water. Sabet was a non-swimmer and an intelligent adult. Sabet’s wife had no reason to believe that he would get onto the floatation tube and float away into the lake. On these facts, this court has to question whether or not the first part of the test laid down and approved by the Supreme Court of Canada in Cognos has been established, i.e. whether there was a special relationship between the parties.

[27] This is not one of those cases where there was any professional relationship between the alleged representor and the representee. This was not an employment relationship like that found in Cognos, supra. Basic principles of the law of negligence dating back to the House of Lords decision in Donahue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562, establishes that liability will only lie for negligence in circumstances where a reasonable person would have viewed the harm as foreseeable. However, as the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at paragraph 22 stated:

However, foreseeability alone was not enough; there must also be a close and direct relationship of proximity or neighbourhood.

[28] At the heart of the plaintiffs’ case is the question of whether or not the relationship between Sabet and the defendants was such that this court should determine the relationship was one from which a duty of care may arise. The category of cases for which the law will find a sufficiently proximate relationship are not closed, and as the Supreme Court of Canada made clear in Cooper, supra, at paragraph 31, new categories of negligence may be introduced. That said, the Supreme Court went on to state:

But generally, proximity is established by reference to these categories. This provides certainty to the law of negligence, while still permitting it to evolve to meet the needs of new circumstances.

[29] The plaintiff’s children and the defendants’ children were on all accounts good friends. Sabet and the defendants, on the occasion in question, were enjoying a friendly social visit. If anything untoward had occurred on the defendant’s cottage property, as distinct from the beach and Lake Simcoe, the Occupiers’ Liability Act and the basic laws of negligence would have had little difficulty in establishing a potential cause of action in favour of Sabet and his family.

[30] The facts of this case, however, are quite distinct from those cases where the courts have found negligence as a result of the tortious act of a homeowner. This is not the same case as factually came before the New Brunswick Court of Appeal in Keenan et al. v. Brown et al., 2009 NBCA 81, where the plaintiff dove off the end of the dock at the summer home of the defendants into water that was only two to three feet in depth. When the plaintiff dove into the water at night, the visual cues that were present were such they led the plaintiff to believe the water at the end of the dock was deep enough for diving. The danger was not obvious to the plaintiff and there was a foreseeable risk of harm.

[31] What distinguishes this case from the facts in Keenan, supra, is the fundamental fact that the beach and lake where Sabet came to his tragic death were in no way part and parcel of the defendant’s property. There were at least one, if not two properties between the defendant’s property and the lake.

[32] Without in any way resolving whether the defendants made any representations to Sabet concerning the safety of the lake, I am not satisfied on the facts before me that this court should expand those cases previously found in the jurisprudence to establish that there was any special relationship of proximity giving rise to a duty of care on the part of the defendants concerning the safety of the lake. Sabet was a well-educated adult. He knew that he was a non-swimmer. Regardless of the weather conditions on the lake at the time of his death he had with him, and on all accounts appeared to have been using a floatation device, that even on his wife’s evidence the defendants could not have known that he would have got onto and floated out onto the lake.

[33] Assuming for the purposes of this analysis only, which analysis can only be resolved one way or the other after hearing the evidence of the parties in a mini-trial were that to be required, a representation that the lake was safe by itself is not a negligent misrepresentation. No evidence was filed by the plaintiffs to suggest that the lake was unsafe for anyone other than a non-swimmer. If Sabet had done nothing more than what he had done in the past, i.e. paddled in the water to a depth no greater than his waist, the lake was safe. The lake only became unsafe when Sabet chose for whatever reason, and reasons that could not possibly have been known to the defendants, to have got onto the floatation device and floated out onto the lake placing himself into a position of peril as a non-swimmer.

[34] Returning to the five general requirements to establish a negligent misrepresentation, as I have already indicated I am not satisfied on the facts of this case that a duty of care based on a special relationship between the defendants and Sabet has been established. If I am wrong in that regard, I am equally not satisfied that the representation purported to have been made by the defendants to the effect that the lake was safe and that one could walk for miles was untrue, inaccurate or misleading. The lake fundamentally was safe for a person who could swim. I am equally not satisfied that if the aforesaid representation was made by the defendants that it was made negligently, nor am I satisfied that Sabet relied on such a statement made by the defendants given his prior history of having been to the beach in question and waded in the water with his children.

[35] As to the final aspect of the Hedley Byrne test, that being the reliance must have been detrimental to Sabet in the sense that damages resulted, while I have found that no such reliance on the evidence has been established, there is no dispute that damages did result and if the plaintiffs had been successful on this motion, in a trial the court, in all likelihood, would have awarded damages under the Family Law Act for loss of care, guidance and companionship.

[36] I am satisfied by the guidance given to me in Hryniak by the Supreme Court of Canada, that there is no genuine issue requiring a trial on the facts of this case. The facts as pleaded, and now relied upon by the plaintiffs, are ones based on negligent misrepresentation. I have, for the purposes of my reasons, accepted the alleged statements were made by the defendants to the effect that the lake was safe and that one could walk for miles. Those facts do not, as discussed above, amount to a negligent misrepresentation. I am satisfied, again with the guidance of Hryniak, supra, that I can apply the law to the facts and that granting summary judgment in favour of the defendants is a proportionate, more expeditious and less expensive means to achieve a just result. See Hryniak at paragraph 49.

[37] The plaintiffs cannot, in my view, succeed in establishing a valid cause of action and a duty of care. For the reasons set forth above, there is no special relationship between the parties that require this court to make a finding in favour of the plaintiffs. The defendants’ motion for summary judgment is granted, the plaintiffs’ action is dismissed. If the defendants are insisting on the costs of this action, and if the parties are unable to agree upon costs, the parties may submit written submissions limited to five pages in length