ONTARIO

SUPERIOR COURT OF JUSTICE

2015 ONSC 7042

COURT FILE NO.: 12-56093
DATE: 2015/12/23

BETWEEN:

PATRJCIA KANIA
Plaintiff

– and –

1618278 ONTARIO INC. c.o.b. as HEART and CROWN IRISH PUBS
Defendant

D. Cutler and C. Groper, for the Plaintiff

C. O’Brien, for the Defendant

HEARD: November 16, 17, 18, 19, 20, and 24, 2015

REASONS FOR JUDGMENT

Valin J.

[1] This is an action for damages for personal injuries suffered by the plaintiff as a result of a fall that occurred on the defendant’s premises. The issues at trial were liability, contributory negligence, and the extent and quantum of non-pecuniary and pecuniary damages.

The Accident

[2] The plaintiff is 31 years of age. She attended high school and university in Ottawa. She has worked in Ottawa since graduating from university.

[3] The defendant carries on business as the Heart and Crown Irish Pub in a building located on the northeast corner of Clarence St. at its intersection with Parent Ave. in the City of Ottawa. The front entrance faces on Clarence St.; the side entrance faces on Parent Ave.

[4] For the past several years, the defendant has constructed a wooden outdoor patio, which abuts the exterior of the building on Clarence St., wrapping around the corner along the wall facing Parent Ave., adjacent to the sidewalk. The outdoor patio is a seasonal operation; it is installed in the spring and removed in the fall.

[5] The plaintiff first attended the Heart and Crown around 2002 when she began to attend university. She returned there on a number of occasions to socialize and dance with friends. Their visits to the pub focused on the live music and dancing inside. The plaintiff did not spend much time on the outdoor patio area.

[6] In June 2011, the plaintiff’s mother was diagnosed with cancer. The plaintiff significantly curtailed her social life in order to spend as much time as possible with her mother. In early September 2011, her mother received medical advice that her cancer was in remission.

[7] On Friday, September 23, 2011, the plaintiff made plans to attend the Heart and Crown with three friends. They arrived around 10 PM. The pub was very busy. They secured a table on the portion of the outdoor patio facing Clarence St., near the main entrance. The four friends shared a pitcher of beer. The plaintiff consumed one ten ounce glass of beer.

[8] When they had finished the beer, the plaintiff and her friends went inside with the intention of going to the back where the live band was playing. The area was very crowded. The plaintiff decided to go to the basement to use the washroom. When she returned, she was unable to find any of her friends. She spent a considerable amount of time circulating inside the building in search of her friends, but her efforts were in vain.

[9] Earlier that day, the plaintiff had exchanged text messages with Julien Pilon. She informed him of her plans to attend the Heart and Crown that evening with friends, and she invited him to join them. Mr. Pilon agreed to do so after dining with friends.

[10] Having failed to find any of her friends inside the pub, the plaintiff went outside to the patio area facing Clarence St. where they had sat upon arrival. Her friends were not there. She then proceeded to walk in a westerly direction along the patio and then turned to the right and walked in a northerly direction along the portion of the patio that faced Parent Ave.

[11] As late as April 2009, and possibly later, the section of the patio immediately in front of the side entrance had only a slight elevation change that was accommodated by a ramp. There was no step.

[12] As the plaintiff was walking along the portion of the patio facing Parent Ave., she noticed Mr. Pilon walking south on the sidewalk on Parent Ave., near the side entrance to the pub. They made eye contact and exchanged waves.

[13] The plaintiff took a couple more steps and then made an air step expecting her foot to come down on the patio surface as in her previous steps. She had not noticed that there was a single step change in elevation at that point. She came down very hard on her right foot and collapsed to the floor in severe pain.

[14] She immediately felt pain in her right foot. She removed her shoe because of the pain and the swelling that was beginning to occur. A staff member got a bag of ice to apply to her foot. Mr. Pilon’s vehicle was parked on Parent Ave. adjacent to the side entrance to the pub. He helped the plaintiff into his vehicle and drove her home.

[15] The following morning, the plaintiff’s mother drove her to the hospital, where x-rays and a CT scan confirmed the plaintiff had suffered a fracture of the navicular bone on her right foot.

Liability

[16] The plaintiff’s claim in this action is based on the Occupier’s Liability Act.[^1] The Act describes the legal duty an occupier of premises has towards another person who comes onto those premises.

[17] Section 3(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 persons entering on the premises are reasonably safe while there.

[18] When a person is the owner or tenant of property, that person is called the “occupier” of those premises. The parties in this case have agreed that the defendant was the occupier of the Heart and Crown Irish Pub and that the pub and exterior patios associated with it fall within the definition of the word “premises” in the Act.

[19] Therefore, the defendant owed a duty of care to the plaintiff to see that she was reasonably safe during her attendance at the Heart and Crown. The onus is on the plaintiff to satisfy the court on a balance of probabilities that: (a) at the time of the accident, the defendant breached its duty of care to her by failing to meet the standard of care required of it in the circumstances; and (b) as a result of the breach of that duty of care, she suffered the damages of which she complains.

[20] The issue to be determined at this point is whether the defendant breached its duty of care to the plaintiff. The defendant’s duty was to ensure that the plaintiff was reasonably safe while on the premises. What is reasonable may vary depending on the nature of the premises and the nature of the activity carried on there.

[21] There was a single step where the plaintiff fell. The step measured about 14.3 centimetres (approximately 5.5 inches) in height. The entranceway and seating area to the north of that step was 5.5 inches lower than the surface on which the plaintiff was walking before she took the air step and fell.

[22] The outdoor patio along the Parent Ave. side of the pub is approximately eight feet wide. There is a black wrought iron railing attached along the sidewalk side of the patio which is constructed with 2x6 lumber painted a medium brown colour. At a point directly in front of the west entrance to the building, the railing takes a 90° turn along the leading edge of the upper level of the patio for a distance of 156 centimetres, leaving an opening between the end of the railing and the building approximately 1 metre wide.

[23] During the night of September 23rd to the 24th, 2011, there were tables and chairs along the side of the patio closest to the railing. There were also tables and chairs along the wall of the building, leaving a small distance between the rows of tables and chairs for patrons to walk. The row of tables and chairs adjacent to the railing continued right up to the point where the railing ran across the leading edge of the step. The row of tables and chairs adjacent to the building stopped short of the step, leaving a larger area for people to continue walking in either a northerly or a southerly direction.

[24] The portion of the railing along the leading edge of the step beside the entrance area to the building was slightly higher than the railing that ran along the edge of the patio beside the sidewalk on Parent Ave.

[25] There were no markings along the leading edge of the step where patrons could pass by the railing. The only lighting in the area of the step came from two gooseneck lights shining on a sign above the west entrance to the building and from a light shining through a glass door in the staircase leading to the second floor.

[26] Peter Williamson, a mechanical engineer with vast experience in forensic engineering, testified on behalf of the plaintiff. I qualified him as an expert witness, entitled to give opinion evidence with respect to:

(i) premises compliance with the Ontario Building Code at walkways and stairs;

(ii) premises compliance with the Ontario Building Code with respect to lighting of walkways and stairs;

(iii) the incorporation of safety features at walkways and stairs; and

(iv) a person’s ability to observe contrast in lighting and change of elevation at walkways and stairs.

[27] Mr. Williamson walked by the outdoor patio along Parent Ave. at the Heart and Crown on October 11, 2011. He had with him three photos which had been taken by the plaintiff’s mother on September 27, 2011.

[28] The area where the step and the west entrance to the pub were located appeared the same to him that day as it was depicted in those three photographs. The patio had an upper section and a lower section. The surface on the upper section appeared to be the same surface on the lower section: same boards, same colour. There was a divider between the patio and the entrance that ran parallel to the step along its leading edge. There was no sign identifying the presence of a step.

[29] Mr. Williamson returned to the Heart and Crown on November 2, 2011 to conduct a more thorough investigation. He was on the premises between 7 PM and 8 PM. There was no significant light from the sky. In his opinion, the light during this visit would have been similar to the light that existed when the plaintiff fell on September 24, 2011.

[30] Mr. Williamson took a number of photographs of the area where the plaintiff fell. He used a digital camera which was on the automatic setting. He did not make any light exposure adjustment to the camera. The photographs were filed as exhibits. He testified that the photographs were an accurate depiction of what he observed that evening.

[31] There were two significant changes. First, the tables and chairs were in place on the patio. They had been stacked when he attended at the site in October. Second, there was a piece of black grip tape running across the leading edge of the step for the width of the portion of the step that was passable by patrons. In Mr. Williamson’s opinion, the presence of the grip tape improved the visibility of the step significantly.

[32] Mr. Williamson expressed the opinion that single steps are much more difficult to see than areas with larger elevation changes when approaching from the top. For that reason, it would be very important to mark the step with contrasting colours, improved lighting, signs, and other visual cues such as a handrail that flows down in the same direction as the step. He also stated that the railing along the top of the step signified a change in use, not a change in elevation, and that it did not serve as a warning to a change in elevation.

[33] Counsel for the defendant submitted that Mr. Williamson conceded during cross-examination that the lighting on the lower level was brighter than the lighting on the upper level from where the plaintiff was approaching the step and that difference in lighting was sufficient to provide a visual cue of the change in elevation. He also invited the court to find that the divider railing at the edge of the upper level of the patio and the layout of the tables on both sections of the patio also provided visual cues to the plaintiff that there was a change of elevation. I respectfully disagree.

[34] Counsel for both sides made submissions about the applicability of the Ontario Building Code and other studies regarding minimum standards for steps and lighting in the area of steps. In my view, it does not matter whether the Ontario Building Code applies to the step in question.

[35] Among the photographs Mr. Williamson took on November 2, 2011, was a photograph facing in a northerly direction taken from the upper level of the patio at a point just to the north of the last table and chairs adjacent to the building where the plaintiff would have been walking as she approached the area of the step. A copy of that photograph appears on page 3 of Mr. Williamson’s report dated December 14, 2011. A colour copy of that photograph and a colour enlargement of it were also filed as exhibits.

[36] I find that photograph to be instructive and determinative of the issue of whether the defendant was in breach of its duty to keep the premises reasonably safe during the plaintiff’s visit on the night she fell and injured herself. It is taken from the area where the plaintiff was approaching the step just before she fell. It shows the step with the black strip of grip tape applied to the leading edge of the step.

[37] To the left of the grip tape, beneath the black divider railing, one can observe how the area where the step was located would have looked when the plaintiff fell. The wood at the edge of the step is a full size piece of 2x6 lumber which is parallel with the step and has the same appearance and orientation as every other decking board in the area. There is no change in colour between the two levels of the patio. There is no change in the angle of application of the wood at the location of the step.

[38] In my view, whether there were any applicable standards for lighting in the area of the step does not matter. The photograph shows how the area of the step would have appeared to the plaintiff. The upper level of the patio blends in seamlessly with the lower level. The photograph does not depict any discernible change in elevation where the step exists.

[39] In the circumstances, I find that the single step posed a danger to visitors and to the plaintiff. The danger was foreseeable. It could easily have been remediated to a large degree with the application of grip tape to the leading edge of the step. The cost of doing so would have been negligible.

[40] I find that the defendant breached its duty of care to keep the patio reasonably safe for the plaintiff. I accept Mr. Williamson’s opinion that a change of elevation in a walking surface of a single step is dangerous. I also accept his evidence that there were no visible cues to the danger of the single step in question such as a warning sign, colour contrasting grip tape, or handrails and that the existence of the step was not discernible because of the continuous colour and orientation of the wood decking on both levels of the patio. The existing lighting did not make the change in elevation discernible.

[41] The evidence is clear that the configuration of the patio adjacent to Parent Ave. was changed from a ramp to a step sometime after April 2009. The defendant was unable to say when the configuration was changed. In any event, I am satisfied from the evidence that the plaintiff was not aware of the existence of the step before she fell.

[42] I find that the defendant failed to meet the standard of care required of it in the circumstances. The single step created a reasonably foreseeable risk that the change in elevation could cause harm to the plaintiff or any other visitor to the premises. It was a hazard. The defendant took no steps whatsoever to warn its patrons of the danger posed by the step at the change in elevation of the patio.

[43] Section 3(1) of the Act placed an affirmative duty on the defendant to see that visitors such as the plaintiff were reasonably safe on the premises. Doing nothing does not constitute reasonable care. The Heart and Crown, including the outdoor patio area was very busy on the night of September 23rd to the 24th, 2011. The fact that numerous other visitors may have negotiated the step without incident or injury offers no defence. In my view, that fact does not entitle the defendant to escape the consequences of its breach of duty to the plaintiff.

[44] As a result of that breach of duty, the plaintiff took an air step from the upper level of the patio to the lower level in circumstances where she was unaware of the change in elevation. Her right foot struck the lower level and caused her to fall awkwardly. As a result of the fall, the plaintiff was injured and thus suffered damages which are claimed in this action.

Contributory Negligence

[45] Having found that the defendant failed to take reasonable care of the premises, and as a result the plaintiff suffered injuries, I must determine whether the plaintiff was negligent as well in failing to take reasonable care for her own safety.

[46] Even where an occupier breaches its statutory duty to a visitor, the visitor may share liability for resulting injuries. The onus is on the Heart and Crown to establish on a balance of probabilities that the plaintiff failed to exercise reasonable care for her own safety.

[47] The defendant has admitted that the plaintiff had only consumed ten ounces of beer that night. I accept the plaintiff’s evidence that, while she was at the Heart and Crown, she was neither tired nor intoxicated.

[48] Counsel for the defendant submitted that the plaintiff failed to take reasonable care for her safety in that she would not have fallen but for her disregard for her surroundings and her lack of attention to where she was going in the moments leading up to the air step and fall. Counsel for the defendant invited the court to find that the plaintiff, as she took the air step, was looking at her friend Mr. Pilon, who was off to her left and below, when she should have been looking ahead of herself.

[49] The plaintiff testified that, after she turned the corner of the patio approaching from the Clarence St. section, she continued to walk along the Parent Ave. section in search of her friends. When she was about two or three steps from the change in elevation, she saw Mr. Pilon, who was on the sidewalk near the Parent Ave. entrance. They made eye contact. She waved to him, and continued walking. The plaintiff stated that, after breaking eye contact with Mr. Pilon, she had occasion to look ahead and take two more steps before she fell. She admitted she did not look down before she fell. The plaintiff’s evidence was that she waved to Mr. Pilon for about half a second. A momentary glance away, or a quick wave to a friend, does not constitute inattention or carelessness.

[50] Counsel for the defendant argued that, had the plaintiff looked down, she would have noticed the change in elevation and very likely would not have fallen. I do not agree. The plaintiff was not carrying anything in her hands other than a small clutch purse. The fact that Mr. Pilon was standing on the sidewalk off to her left and below the plaintiff is not helpful to the defendant because the sidewalk was below the level of both the upper and lower levels of the wooden patio.

[51] The plaintiff had no reason to anticipate a step. She testified that she was not aware of the presence or existence of the step. In Baker v. York (Regional Municipality)[^2], Lack J. held:

Mere forgetfulness or want of attention, failure to look for some source of danger that is not present to the mind of the person injured is not contributory negligence.

[52] There was no warning or visual cue as to the change in elevation that caused the fall, such as grip tape, that would have drawn the plaintiff’s attention to the hazard. The lighting was such that the change in elevation was not discernible.

[53] Absent any visual cue which the plaintiff either ignored or failed to observe, I conclude the defendant has not proved on a balance of probabilities that the plaintiff failed to take reasonable care for her own safety. I therefore decline to assign any responsibility to the plaintiff for the injuries she suffered when she fell at the Heart and Crown.

Damages

[54] In this action, the plaintiff claims damages under the following heads:

(a) non-pecuniary general damages for pain and suffering and loss of enjoyment of life;

(b) special damages for out of pocket expenses to date;

(c) loss of earning capacity / loss of competitive advantage; and

(d) future care costs / housekeeping and home maintenance.

(Sections continue exactly as in the judgment through paragraph [159], including all damage analyses, calculations, and conclusions.)

The Honourable Mr. Justice G. Valin

Date Released: December 23, 2015

[^1]: R.S.O. 1990, c. O.2

[^2]: (2006), 2006 81804 (ON SC)

[^3]: Gerula v. Flores, (1995), 1995 1096 (ON CA)

[^4]: Graham v. Rourke, (1990), 1990 7005 (ON CA)

[^5]: (1977), 1977 1332 (ON CA)

[^6]: 1978 1 (SCC)

[^7]: Dube (Litigation Guardian of) v. Penlon Ltd., [1994] O.J. No. 1720 at para. 18 (Ont. Ct. Gen. Div.)