MacIsaac v. Havcare Investments Inc., 2016 ONSC 6764

CITATION: MacIsaac v. Havcare Investments Inc., 2016 ONSC 6764

COURT FILE NO.: CV-10-405479

DATE: 20161115

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRANCE JAMES MACISAAC and MARGARET EILEEN MACISAAC

Plaintiffs

– and –

HAVCARE INVESTMENTS INC.

Defendant

David Trafford, for the Plaintiffs

Carolyn S. Krebs, Defendant, In Person

HEARD: October 13, 2016

LEDERER J.:

Introduction and Background

1In the vernacular known to lawyers, judges and others that inhabit the courts, this case would be referred to as a “slip and fall”. It is not a situation which is uncommon or unfamiliar. Nonetheless, the evidence which is said to support the claim presents unusual concerns.

2The plaintiff, Terrance MacIsaac, lived with his wife, the second plaintiff, Margaret Eileen MacIsaac, at 500 Dawes Road, in the City of Toronto. The defendant, Havcare Investments Inc., owns and operates the property which, as described by the parties, is a substantial residential apartment building. Carolyn S. Krebs is a principle of the company. She is not a lawyer but pursuant to an order of Mr. Justice Belobaba, made on May 7, 2012, was permitted to act for the defendant in this proceeding (see: Rules of Civil Procedure, rule 15.01(2)).

3It is alleged that, on Sunday, October 25, 2009, Terrance MacIsaac left his apartment, which is located on the fifth floor, entered the nearby stairwell and proceeded down the stairs. He fell. It is said that the landing at which he fell was slippery and wet. An ambulance was called. Terrance MacIsaac was taken to a hospital. The hospital records that were filed, referred to in argument but not exhibited reveal that he had fractured his 8^th and 9^th ribs on his right side and suffered a “small to moderate sized, right sided hydopneumothorax”. No doctor was called but this was referred to as a “punctured” or “collapsed” lung.

4The central proposition in the case was that the fall and the accompanying injuries were the result of the negligence of the defendant, in that it failed to keep the stairs clean and dry and to have the appropriate protocols directed to keeping them clean and dry. In the same vein, the plaintiffs refer to and rely on the Occupiers’ Liability Act¹, s. 8(1), which provides for the applicable duty of care, as follows:

Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

5The claim made on behalf of the plaintiff, Margaret Eileen MacIsaac, is founded on the provisions of the Family Law Act² and is for loss of care, guidance and companionship. Counsel for the plaintiffs was quick to acknowledge that this claim was “nominal”. In the end, there was little, if any, evidence that would justify such a claim and no mention was made of it by counsel in his final submissions.

Admissibility of Discovery Evidence

6On its face, this does not present any issue that is unusual or uncommon. The problem is that, in the time since the action was commenced, both Terrance MacIsaac and Margaret Eileen MacIsaac have died. On October 6, 2016, an order was obtained allowing the action to continue in the name of the estates of both Terrance and Margaret Eileen MacIsaac. No one, other than Terrance MacIsaac, was present when the alleged fall took place. There were no witnesses. In such circumstances, how is the plaintiff (the Estate) to prove its case? The Rules of Civil Procedure provide an answer. Before they died, both plaintiffs were examined for discovery. This being so, rule 33.11(6) may apply. It says, in part:

Where a person examined for discovery,

(a) has died

Any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court.

[Emphasis added]

7The Rules of Civil Procedure provide guidance as to the circumstances where such leave may be granted. Rule 33.11 (7) notes:

(7) In deciding whether to grant leave under subrule(6), the trial judge shall consider,

(a) the extent to which the person was cross-examined on the examination for discovery;

(b) the importance of the evidence in the proceeding;

(c) the general principle that evidence should be presented orally in court; and

(d) any other relevant factor.

8These rules deal with whether reading portions of the transcript of an examination-for- discovery into the record should be admitted into evidence. This does not address the weight that should be given to such evidence once it has been admitted. Counsel for the plaintiffs applied for leave. In the absence of reviewing the examination-for-discovery, it would be difficult to know the extent of any cross-examination undertaken as part of the examination-for-discovery. Counsel for the plaintiffs conceded there had not been much. Given that there were no witnesses to the alleged fall, the evidence of Terrance MacIsaac at the examination-for-discovery would seem to be important, even central to the plaintiffs’ case. But how is importance to be judged? If it is important, does that mean that the applicable test would tend to allow for the evidence to be admitted because of its significance or should the test be more stringent because the evidence is central to the proceeding and the right of the defendants to test the evidence at trial paramount? There appear to be few cases that examine the application of this rule. One that has is Williams Estate v. Vogel of Canada Ltd.³ That case, in turn, quoted from an earlier decision, Tulshi v. Ioannou.⁴ The facts there were somewhat different. The issue was the receipt in evidence of an expert’s report in circumstances where the expert had died. The argument against receiving the report was the loss of the ability to cross-examine the expert. Madam Justice Epstein (at the time a member of the Ontario Court of Justice-General Division) weighed the importance of the evidence against the prejudice occasioned by the loss of the ability to cross-examine:

Counter- balancing this prejudice is the need of the trial judge to have all possible relevant evidence before him or her in order to determine the issues raised in the action. In my view, this requirement, particularly where the evidence in question is of importance and cannot be obtained in any other way, takes priority over the prejudice suffered by a party in being deprived of its right to cross-examine, especially since this prejudice can at least be addressed by the trier of fact through a consideration of the weight to be attached to the evidence in question. The Court should, however, attempt to go further where possible to assist in reducing the prejudice suffered by the opposing party through not being able to cross examine.

9In this paragraph, greater importance is given to the need of the trial judge to have “all possible relevant evidence”, but there are two qualifications. The second (to do what is possible to minimize the prejudice) had particular significance in the case that was being considered. The partner of the author of the report, himself an expert in the same field, was available. He could make himself aware of the content of the document, provide a witness statement outlining any independent observations he wished to make and be available to be cross-examined. There is nothing like that here. There is no one who can independently testify as to what happened when Terrance MacIsaac came down the stairs. This returns me to the question of the “extent” of any cross-examination that took place when Terrance MacIsaac was cross-examined. At the time this issue was raised, which is to say, at the outset of the trial, it was impossible to draw any independent conclusion as to the substance and reach of any cross-examination. These are characteristics that would be demonstrative of the “extent” of any cross-examination that did take place.

10The first qualification (the ability of the trial judge to address the weight to be given the evidence once it had been entered) applies here as it would in any case. In this case, as in most, weight depends on the reliability of the evidence. Reliability is enhanced by the presence and value of other evidence that is corroborative. In the absence of hearing the available evidence, it would be difficult to come to any conclusion as to the weight that should be given to the evidence read in from the examination-for-discovery.

11In Williams Estate v. Vogel of Canada Ltd., the judge directed that the admissibility of the evidence given at the examination-for-discovery of the party who subsequently died would be determined at the end of the trial. The same approach was taken in this case. I shall return to this concern later in these reasons.

Analysis of the Evidence

12At his discovery, Terrance MacIsaac testified that he fell and the stairs were wet. What evidence is there that corroborates that there was a fall? There is no direct evidence. There is circumstantial evidence. Hospital records were presented. A Notice of Intention to produce and rely on these documents had been delivered in compliance with the Ontario Evidence Act.⁵ The Discharge Summary which appears in several forms notes that “the patient was admitted…after suffering a fall”. The same Notice referred to the intention to rely on either the evidence or reports of several “doctors or practitioners”. A report of his family physician (Dr. Kevin Michael Worentin), dated April 25, 2011, refers to Terrance MacIsaac having fallen “…down 5 stairs” and landing on his back. There is also an Ambulance Call Report referencing a pick-up of Terrance MacIsaac on October 25, 2009. Counsel referred to this as having been omitted from a bound set of documents (the “Plaintiffs’ Book of Documents”) by error. The problem is that this record does not appear to have been listed on the Notice of Intention. No objection was made to it. While I acknowledge that Carolyn Krebs is not counsel, I see no prejudice in the production or reliance on this document. It, too, says that Terrance MacIsaac fell. Finally, there is the evidence of John MacIsaac, the brother of Terrance MacIsaac. He was told of the fall on the night after it occurred. He was asked by his sister-in-law (Margaret Eileen MacIsaac) to come over and take pictures of the landing.

13There is sufficient corroborative evidence justifying that on October 25, 2009 Terrance MacIsaac fell on the stairs. To my mind, that does not answer the critical question. What was the condition of the stairs when Terrance MacIsaac fell? Were they wet? Were they slippery, such that they were the cause of the fall.

14The transcript of the examination-for-discovery of Terrance MacIsaac says the steps were wet. Is this corroborated? The ambulance report says that Terrance MacIsaac fell on wet stairs. The transcript reports that Terrance MacIsaac, following the fall, made his way back to the apartment he shared with his wife. There is nothing that suggests the ambulance staff went to or inspected the stairs. All this says is that, shortly after the fall, Terrance MacIsaac reported that he had slipped on wet stairs. This is hearsay. In this situation, hearsay evidence that relies on information from Terrance MacIsaac cannot stand to corroborate evidence provided at his examination-for-discovery addressing the same point. The reports of the doctors, including Dr. Kevin Michael Worentin, make no reference to the condition of the stairs at the time of the fall.

15John MacIsaac testified that, on the day following the fall, he attended at the home of his brother. As his sister-in-law had requested, he went to the stairwell where Terrance MacIsaac had fallen. He said it was slippery and shiny. “It seemed to be just on that one landing.” He “…really didn’t know what it was.” It was extremely slippery and very shiny” He “…thought it was probably some kind of cleaning agent or peanut oil. Something like that”. He did not stand on the landing. “You couldn’t.” It was “too slippery”. The pictures he took were produced and exhibited. He hoped they would show “the stuff that was on them”. To my eye, they do not. They show a clean landing without any waste, dirt or other material. This inspection was conducted and the pictures taken the morning after the fall, about 21 hours later. There was no evidence from anyone who may have passed over those steps during the intervening hours.

16A jacket was produced. It was identified by John MacIsaac as having belonged to his brother. His sister-in-law showed it to him. She explained to him that it had on it the liquid from the stairs (“the stuff was on it”). He confirmed that this was so. John MacIsaac put the jacket in a bag and gave it back to his sister. He did not see it again until “a couple of weeks” before the trial. It was shown to him by counsel. At that time, it was no longer in the bag. As of the trial, there was “not much on the jacket anymore”. It was dry. A pair of shoes was also presented as those that were being worn by Terrance MacIsaac at the time he fell. John MacIsaac said, the next day when he saw them, they still had “the stuff” on them. They do not now. Like the jacket, he had not seen the shoes again until about “two weeks ago” when they were shown to him by counsel.

17There was no other evidence that stood to corroborate the statement found in the examination of Terrance MacIsaac to the effect that, when he fell, he slipped and the stairs were wet. There is evidence to the contrary. On October 26, 2009, Carolyn Krebs attended at 500 Dawes Road. She had paperwork she needed to do. She wished to speak to tenants that were behind in their rent. Carolyn Krebs had spoken to some of those tenants the day before; there were others. She had been accompanied by a male employee. This was not work she liked to do on her own. Her son agreed to come with her. They met at the building. Apart from speaking to the recalcitrant tenants, they determined to check each of the stairways and the fire doors that protect each floor. In each case, they went up to the top floor (the fifteenth floor) and walked down to the bottom checking the stairs and the fire doors. The third of the three stairwells they walked down was the one where Terrance MacIsaac fell. They finished and, as Paul Krebs, the son of Carolyn Krebs, recalled, left the building between 3:00 and 3:30 in the afternoon. The Ambulance Call Report indicates that the telephone call seeking assistance was received at 14:09:15 or at approximately 2:10 pm., which is to say, that Carolyn and Paul Krebs would have passed over the stairs in question shortly after the fall took place. Both witnesses said the stairs were clean and dry. They were not slippery.

18The difficulty is that there are two competing indications of the condition of the steps. On the one hand, there is the statement made by Terrance MacIsaac at the time of his examination-for- discovery. It is complemented by a level of corroboration found in the evidence of his brother who said that, the next day, 21 hours after the fall, the landing was so slippery that he could not walk on it. On the other hand, on the day in question, around the time Terrance MacIsaac fell, two people passed over the steps and landing and found them clean and dry. Their evidence was clear and unequivocal. They were available and subject to cross-examination. Their evidence did not falter. They were, in every sense, credible. There is no reason for me to disbelieve them. Similarly, I have no reason to disbelieve the evidence of John MacIsaac. The difficulty is that he did not attend at the site until the next day, after Terrance MacIsaac fell on the steps. Who is to say how many people, if any, passed over that landing in the interim period? There is no evidence of anyone complaining about the steps being slippery, much less anyone else falling. In the circumstances, I am not prepared to accept the transcript evidence over that of Carolyn Krebs and Paul Krebs or to accept the evidence of John MacIsaac as corroborating the transcription when it was 21 hours later that he attended and says he observed that the steps were slippery. Thus, while it may be that Terrance MacIsaac slipped and fell, I find that, on a balance of probabilities, the steps were not, at that time, made slippery by the presence of the oily material John MacIsaac said was present on the following day.

19In coming to this conclusion, I have not referred to the evidence of Gordon Brown. He is a resident in the building. For a time, he worked for the landlord. There was a fire. He was injured. His memory was impaired. The substance of his evidence was a recording of a conversation he had with Carolyn Krebs after she became aware that he was to be called as a witness on behalf of the plaintiffs. Gordon Brown said that the Friday before the fall, a third-party spilt cooking oil on which Terrance MacIsaac fell. I take this to be hearsay. There is no suggestion that Gordon Brown saw the cooking oil or the fall. In fact, he said, “I didn’t see nothing”. Carolyn Krebs attempted to remind Gordon Browne that they were together, with her son, on the steps on the day of the fall and there was nothing there.

Burden of Proof

20While I am content to come to the conclusion I have, I point out that it is not necessary that I do so. It is more than trite to observe that, in an action of this type, the burden of proof is on the plaintiff. In Coupland v. Marr⁶, there had been a car accident. The trial judge found each of the two drivers to be equally at fault. Thus, he awarded the plaintiff driver one-half of his claim. His wife was awarded her full claim with each of the drivers being required to indemnify the other for one-half of her claim if one was called upon to pay the whole amount. There was an appeal. The problem was that the trial judge had arrived at his division of responsibility on the basis that he was unable to make any finding of the relative credibility of the sides:

The trial judge did not determine the relative credit to be given to the evidence of the witnesses on either side. If the evidence of the witnesses for the plaintiffs were to be believed, there was no negligence on the part of their driver; while the evidence of the defendant’s witnesses, if believed, made it clear there was none on his part.⁷

21On the appeal, the Ontario Appellate Division found that:

[A]s the trial Judge could not say which witnesses were telling the truth, nor could this Court, the plaintiff’s had not proved their case, and the defendant M. was entitled to a dismissal of the actions.

22Similarly, in this case, even if I were prepared to find that the evidence of John MacIsaac stood up as corroboration of the transcript and supported the idea that there was some substance on the stairs that rendered them slippery, this would not change the result. It would not change the impact of the evidence. The credibility of what was said by Caolyn Krebs and Paul Krebs would remain. There would be no basis to choose between them. As in Coupland v. Marr, the plaintiff (the two Estates) would still have failed to prove their case.

Disposition and Costs

23The action is dismissed.

24The defendant, not being represented by counsel, would not typically be awarded costs. In this case, I can see no reason to step outside this general understanding.

Footnotes

1. 1R.S.O. 1990, c. O.2.
2. 2R.S.O. 1990, c. F. 3 s. 61.
3. 32016 ONSC 342, 263 A.C.W.S (3d) 400.
4. 4[1994] O.J. No. 1472 (Ont. Gen. Div.).
5. 5R.S.O 1990 c. E. 23, s. 35.
6. 61931 152 (ON CA), [1931] O.R. 707.
7. 7Ibid.