CITATION: Elder v. Rizzardo Bros. Holdings Inc., 2016 ONSC 7072

COURT FILE NO.: CV-11-102525

DATE: 20161114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HELEN ELDER, Plaintiff

AND:

RIZZARDO BROS. HOLDINGS INC, HANK WILLIAMS and HANK WILLIAMS o/a H.C.S.W. PROPERTY MANAGEMENT, Defendants

BEFORE: The Honourable Justice C. Boswell

COUNSEL: T. Boland and D. Romaine for the Plaintiff

B. Jones for Rizzardo Bros. Holdings Inc.

F. DelGiudice and D. Elmaleh for Hank Williams

HEARD: November 14, 2016

ENDORSEMENT

Overview

[1] This slip and fall trial is scheduled to commence before a jury tomorrow in Newmarket. Liability is the only outstanding issue.

[2] The action arises from a slip and fall experienced by the plaintiff in the parking lot of a Sobeys grocery store on February 10, 2009. The plaintiff allegedly slipped on an icy island in the parking lot and suffered a broken elbow. Damages have been agreed upon, dependent of course on the jury’s determinations about liability.

[3] Counsel raised two evidentiary issues before me today. Both relate to the admissibility of business records. One is raised by the plaintiff; the other by the defendants. In particular:

(a) The plaintiff seeks to introduce business records of the Ministry of Transportation (MTO) relating to weather and road conditions on February 10, 2009 including dispatch logs, road patrol logs and road weather report sheets. The plaintiff asserts that these reports are relevant to the jury’s determination of the extent of the hazard present in the Sobeys lot at the relevant time and consequently whether the defendant(s) met their obligations under the Occupiers Liability Act, R.S.O. 1990, c. O.2. The defendants argue that the records are not relevant and even if they are, the prejudicial impact of their introduction into evidence will outweigh their probative value;

(b) The defendants seek to introduce the daily work sheets of Hank Williams to establish (i) the system they had in place during January and February 2009 to deal with ice and snow in the Sobeys lot; and (ii) the work that was done on the day in issue. The plaintiff argues that these records are not relevant because they are not capable of establishing or supporting the factual findings and/or inferences the defendants suggest.

The Governing Principles

[4] The two evidentiary issues in play engage some basic principles of the law of evidence.

[5] The analysis of admissibility disputes always begins with the cornerstone principle that all relevant evidence is admissible: R. v. Khelawon, 2006 SCC 57, para. 2. There are many exceptions to this foundational principle and, of course, exceptions to the exceptions. But the analysis must begin with an assessment of relevance. If proffered evidence is not relevant, it has no place in the proceedings.

[6] When I speak of relevance, I mean logical relevance, as opposed to legal relevance which is not a disputed aspect of this application.

[7] Logical relevance refers to a relationship between a piece of evidence on offer and a fact sought to be established: R. v. Luciano, 2011 ONCA 89. See also R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709. Moreover, the fact sought to be established must relate to a live issue in the proceedings: R. v. Candir, 2009 ONCA 915.

[8] Watt J.A. elaborated on the concept of relevance in R. v. Luciano, 2011 ONCA 89 at para. 204:

Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense… An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense.

[9] The threshold for relevance is not high. There are no degrees of relevance and no requirement that an item meet a minimum threshold of probity to be relevant: R. v. Watson, 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310 (Ont. C.A.), at para. 32. Moreover, it is not necessary that a particular item of evidence conclusively prove the proposition of fact for which it is introduced. Nor is evidence irrelevant simply because it can sustain more than one inference: R. v. Ansari, 2015 ONCA 575, at para. 104.

[10] Relevant and material evidence can, nevertheless, be excluded due to the operation of a specific rule, such as the rule against hearsay, or the rule against prior consistent statements. In this instance, only one exclusionary rule is argued: the court’s residual discretion to exclude evidence whose potential for prejudice or mischief exceeds its probative value.

[11] The court’s residual discretion to exclude otherwise relevant and material evidence is circumscribed. The limited circumstances in which the discretion may be invoked include:

(a) Where the probative value of the evidence is overborne by its prejudicial effect;

(b) Where the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to the determination of the dispute; or,

(c) Where the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof.

See R. v. Spackman, 2012 ONCA 905, at para. 115.

Discussion

[12] The plaintiff’s claim is grounded in the Occupiers’ Liability Act, as above. Section 3(1) of that Act establishes a standard of care applicable to all occupiers of premises. There is no dispute that both defendants are occupiers within the meaning of the Act. The standard of care is defined as follows:

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.

[13] The plaintiff alleges, of course, that the defendants, or either of them, breached the applicable standard by failing to keep the Sobeys lot reasonably safe, in all the circumstances. In other words, that they didn’t do enough to clear snow and ice. The defendants assert that they had in place a reasonable regime of inspection, maintenance and monitoring sufficient to meet the standard set by s. 3(1).

[14] There will be a number of disputed issues relating to the overarching issue of liability. Two immediately come to mind: (i) the prevailing weather and road conditions at the time of the slip and fall; and (ii) the system, or regime, the defendants had in place to meet their obligations as occupiers.

[15] In my view, the records in dispute are relevant to one or another of these live issues.

[16] I will start with the MTO records. I will observe immediately that they are difficult to read. That said, a live witness will be produced to interpret and/or explain them. They do contain within them entries relating to weather and roadway conditions in the general area of Alliston before, during and after the time of the slip and fall. In this regard, I do not see how they could not be relevant. The prevailing weather conditions and the defendants’ response to them are clearly live issues.

[17] The MTO records contain a fair bit of irrelevant information as well, including weather and roadway conditions for regions far removed from Alliston. The defendants submit that the irrelevant information is prejudicial in that it (i) has a tendency to distract the jury from the relevant areas; and (ii) risks conflating the standard of care applicable to the MTO with that applicable to the defendants.

[18] I am not entirely unsympathetic to the defendants’ argument about prejudice. There is the possibility that the jury may infer that if the MTO was sanding and salting highways, the defendants should have been out sanding and salting the Sobeys parking lot. That would be unfair to the defendants because the MTO has to meet entirely different standards of care. But this potential prejudice can, in my view, be readily dealt with by a simple limiting instruction about how the MTO records may be used and how they must not be used. Juries are, in my experience, well capable of following simple instructions. Indeed, as Doherty J.A. observed in R. v. Suzack (2000), 141 C.C.C. (3d), at para. 127, “As long as we maintain trial by jury … courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge.”

[19] I am satisfied that the MTO records are admissible. This finding should not, of course, be taken as a warrant to introduce irrelevant evidence through the attending MTO witness. In other words, the viva voce evidence of the MTO witness should be restricted to weather and roadway conditions in the area of the Sobeys grocery store.

[20] I move on to the log reports of Mr. Williams, or his employees. These reports record the dates and times that Hank Williams’ equipment was on the Sobeys site performing work, such as plowing, shovelling and/or salting. They record weather conditions at particular times.

[21] I agree that the reports have minimal detail and do not reflect specifically whether the island slipped on was salted on the particular occasion. I accept that the plaintiffs also take issue with the accuracy of the weather notation of “freezing rain” at 3:00 a.m. on February 10, 2009. It is clearly their right to do so.

[22] Having said that, I repeat that relevance is a low threshold. A single piece of evidence need not conclusively prove a proposition on its own. These records will be supplemented, I understand, by Mr. Williams’ direct testimony. He will be available to be cross-examined on all of the inherent weaknesses in his documentation.

[23] I agree with the defence submission that the records are relevant not only to the prevailing conditions on February 10, 2009 and to the work done on that date, but also to assist in establishing the system, or routine, put in place by the defendants in an effort to comply with their obligations under the Occupiers’ Liability Act.

[24] The plaintiff argues that the contract between the defendants is the only relevant evidence in relation to the “system” defence. I disagree. I am satisfied that the logs are relevant, material and admissible.

Boswell J.

Date: November 14, 2016