Court File and Parties
Citation: Cartini v. 156 Square One Ltd., 2016 ONSC 8151 Court File No.: CV-14-505030 Date: 2016-12-29 Superior Court of Justice - Ontario
Re: Sandra Cartini, Plaintiff And: 156 Square One Limited, OMERS Realty Management Corporation and Walmart Canada Corporation, Defendants
Before: D.L. Corbett J.
Counsel: Grant Ferguson, for the Defendants/Moving Parties 156 Square One Limited and OMERS Realty Management Corporation Faranaz Siganporia, for Ms Cartini
Endorsement
[1] This is a motion for summary judgment.
[2] The plaintiff, Ms Cartini, was injured when she fell in a parking garage located at the Square One shopping mall. The mall and the parking garage are owned by the moving defendants. Ms Cartini had been shopping at the defendant Walmart. She had purchased some items which she had transported back to her car with a shopping cart, apparently provided by the defendant Walmart.
[3] The parking garage is located at the mall and is intended for customers of businesses at the mall. There is no charge for using the parking garage; it is an amenity to encourage people to come to the mall and shop there.
[4] The parking garage is a series of tiered slopes on which there are multiple parking spots. This is distinguished in design from parking lots where each level of the garage is flat, and ramps between levels provide only ingress and egress and do not contain parking spots.
[5] It is agreed that Ms Cartini parked her vehicle in a proper parking spot and was using the parking lot for its intended purpose.
[6] When Ms Cartini wheeled her cart to her car, she had her young son hold on to it while she unlocked the car and opened the trunk. Her son let go of the cart and it started to roll down the sloped ramp. Ms Cartini ran after the cart and, unfortunately, fell while doing so. The cart was stopped by another patron in the garage who happened to be there.
[7] Ms Cartini seeks compensation for her injuries from the fall.
[8] When this matter first came before me, on August 25, 2016, one of the bases on which the moving parties sought dismissal of the claim was that the defendant had named the wrong defendants. I suggested that this could be remedied easily by amendment and the moving parties took the position that there could be limitations defences available to any defendants that were added. My endorsement from August 25th reads as follows:
I am not prepared to deal with the substantive merits of the claim without the proper defendants before the court and resolution of any limitations issues that are involved with adding them at this juncture. I will not dismiss against the current defendants without giving the plaintiff the opportunity to pursue a misnomer argument. As I explained to counsel in court, the court tries to dispose of cases on the narrowest grounds possible – thus I would not venture into a consideration of potential duties of care respecting wheeled carts in ramped parking lots (a topic of potentially broad application) without the proper defendants before me.
This motion adjourned to November 8, 2016, before D.L. Corbett J., 10 am, to enable the plaintiff to move to add parties and/or correct misnomer of parties, amend the pleadings, address limitations issues related to those steps. Plaintiff shall deliver motions materials by September 14, 2016; defendants shall deliver responding materials by October 7, 2016; cross-examinations to take place by October 31, 2016. Costs of today to November 8, 2016.
[9] When the motion returned before me, the parties had resolved the issue of proper parties without the need for a motion; all that remains is to dispose of the summary judgment motion on the merits. Some problems remain in doing that.
[10] On the materials before me, the parking garage is an ordinary sloped parking garage intended for use by shoppers at the shopping mall, including shoppers at the Walmart store. It would be within the reasonable expectations of the parties that a shopper might use a shopping cart laden with purchases inside the parking garage. The parking garage is owned and operated by the moving defendants, who are “occupiers” within the meaning of the Occupiers Liability Act. The shopping cart is owned and was supplied by Walmart for use by its customers. The shopping cart is apparently not equipped with a braking mechanism.
[11] The plaintiff advances two general theories of liability against the moving defendants:
(a) the defendants were negligent and/or breached their obligations under the Act in respect to the design, construction, operation and maintenance of the parking garage (the “unsafe parking lot theory”); and
(b) the shopping cart was not appropriate for use in the parking garage and the moving defendants were negligent and/or in breach of their obligations under the Act in permitting a situation to occur where use of the shopping cart in the parking lot was likely (the “unsafe shopping cart theory”).
The Unsafe Parking Lot Theory
[12] The moving defendants have produced a complete record on the issue of the safety of the parking lot. These defendants’ expert engineers, Messrs. Nolet and Brownlee, opine that:
… the surface of the ramp complied with industry standards for safe walking surfaces and the slope of the ramp satisfied design requirements. Pedestrians should have had no difficulty crossing the area of the parking ramp where the subject incident occurred.
[13] There is no evidence that the parking garage was in a state of disrepair or that temporary conditions such as snow, ice or water created a situation of hazard. A witness stated that Ms Cartini “tripped over her feet”. Photographs of the incident scene do not disclose a state of disrepair or object over which Ms Cartini tripped.
[14] The plaintiff has not adduced expert evidence on this issue. She does not know what caused her fall, but she believes that her foot got caught on “something” and that the “something” was a dip in the ground. There is video evidence of the incident. It does not show a “dip” or another “something” that caused the fall. The expert evidence does not disclose any state of disrepair or hazardous condition that could be the “something” the plaintiff believes caused the fall.
[15] In oral argument, counsel for the plaintiff argued that there ought to have been some sort of design feature of the parking garage, itself, to prevent or impede carts from rolling down the inclines in the garage. There is no evidence before me that such a design is available or would reduce rather than increase the overall risks associated with the parking garage. There is no expert evidence from the plaintiff that sloped parking lots are not suitable for customer parking at a shopping mall, or that design features ought to have been present in this parking lot that were not present.
[16] It has long been the case that parties must “lead trumps or risk losing” on a motion for summary judgment. This principle has not been displaced by the Supreme Court of Canada’s decision in Hryniak.[^1] In Sweda Farms this court held:
The plaintiffs must show that there is evidence to support their allegations. A party must not rest on allegations in its pleadings on a motion for summary judgment. The party must “put its best foot forward” or “leads trumps or risk losing”. Burnbrae argues that there is simply no evidence from which a court could find for Sweda against Burnbrae. If Burnbrae satisfies its burden of persuasion for this argument, then it falls to Sweda to show, on the basis of affidavit material or other evidence, specific facts raising a genuine issue requiring a trial.[^2]
… This principle [of proportionality] does not mean that large, complicated cases must go to trial, while small, single-issue cases should not. Nor does it mean that the “best foot forward” principle has been displaced; quite the reverse. If anything, this principle is even more important after Hryniak, because on an unsuccessful motion for summary judgment, the court will now rely on the record before it to decide what further steps will be necessary to bring the matter to a conclusion. To do this properly, the court will need to have the parties’ cases before it.[^3]
[17] This importance of the “best foot forward” principle is reflected in the general framework for motions for summary judgments suggested in Sweda:
As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:
The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;
On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;
If the court cannot grant judgment on the motion, the court should:
a. Decide those issues that can be decided in accordance with the principles described in 2), above;
b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;
c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.[^4]
[18] The plaintiff has failed to meet the evidentiary burden on this motion in respect to the unsafe parking lot theory of the case. I am satisfied that, as a result, this issue may be decided now on the principles in Sweda and Hryniak.
The Unsafe Shopping Cart Issue
[19] I have no expert evidence from either side on the issue of the shopping cart. On the record before me the cart is owned by and was provided for the use of the plaintiff by Walmart and not by the moving defendants. I am prepared to assume, for the purposes of this decision only, that Walmart was aware that the parking garage is a sloping parking garage, and was also aware that it was reasonably probable that some of its customers would use shopping carts in the parking garage. I am not aware of dealings between Walmart and the moving defendants over design and use of shopping carts in the parking garage.
[20] I have no evidence on the general design and characteristics of shopping carts, the availability and merits of shopping carts equipped with braking mechanisms, or the potential hazards of shopping carts in parking garages.
[21] Counsel for the plaintiff argues that, as a matter of common sense, a wheeled shopping cart is a hazard anywhere that is sloped. In a sloped parking garage, it is foreseeable that a shopper could lose control of her cart and that the cart could roll away, a situation of inherent hazard. I agree that there is some element of risk inherent in the situation but, with respect, that is not sufficient to make out a case against the defendants. It is a foundation, a starting place, for a case, but it cannot be the entire case if it is to succeed.
[22] This raises three issues. First, although there appears to me to be an arguable basis for a case based on a common sense assessment of the inherent hazard, the plaintiff has not adduced evidence on which it could succeed at trial. Should the plaintiff be given a further opportunity to assemble this evidence? Second, the moving defendants argue that this theory of liability has not been pleaded and has been disavowed by the plaintiff during the discovery process. They argue that the court ought to decide the case as pleaded and as disclosed during discoveries, and should not permit the plaintiff to reposition its case at the “last minute”. Third, Walmart obviously has an interest in the unsafe cart theory. It is Walmart’s cart, provided by Walmart for the use of its customers. Walmart is a defendant and has been served with the statement of claim. It has not delivered a statement of claim. Neither has it been noted in default. Rather, the plaintiff has not demanded a defence from Walmart: counsel acknowledges, fairly, that the plaintiff would have to give notice to Walmart that a defence is required from it before the case can move forward against Walmart.
Procedural Fairness and Motions for Summary Judgment
[23] The moving defendants are entitled to know the case against them and to have that case disposed of in a reasonably prompt and efficient manner. In pursuing this interest, the defendants have brought this motion based on the case pleaded and disclosed to them. The failure of the plaintiff to require Walmart to deliver a defence implies that the unsafe shopping cart theory is not in play against the moving defendants: Walmart is not an “occupier” of its landlord’s parking garage, and so the condition of the parking garage, simpliciter, is not Walmart’s issue.
[24] However, the “unsafe shopping cart” theory is an obvious basis of potential liability. Laden shopping carts rolling down paved inclines are an obvious hazard. Shopping carts without brakes are an obvious hazard to “get loose”. Some shopping carts have brakes; others do not: it would seem arguable that the obvious risks of the situation could be ameliorated by brakes. If it is thought that there is a situation of obvious hazard in all of these circumstances, in the context of this case it seems probable that both the owner and occupier of the parking garage and the store providing the shopping cart, might have some sort of responsibility if things go wrong and someone gets hurt. To be clear, these are not findings based on the record, but observations based on common sense and facts that are apparently not disputed. I make these observations in support of my conclusion that, on the face of it, there is some argument for the plaintiff that there may be some liability on the part of the moving defendants and/or Walmart for her injuries. There is an arguable case.
[25] I agree with the moving defendants that the plaintiff has not advanced this arguable case beyond pleading it (I accept the plaintiff’s argument that this theory is encompassed in the general pleadings in the statement of claim), and did not advance it during the discovery process. However, the facts giving rise to the case were disclosed and available to the parties: it was the argument as to why this could give rise to liability that was not articulated during the discovery process.
[26] The purpose of the summary judgment rule is to dispose of case on the merits in a proportional way. The plaintiff has had a full opportunity to present a case for its “unsafe parking lot theory” and has failed to present expert evidence on the point. I am persuaded by the moving parties’ evidence on this issue and thus there is no triable issue on this theory of liability. The nature and condition of the parking lot – factual issues – are not in dispute. The expert evidence is definitive. This aspect of the plaintiff’s claim ought to be dismissed now. In so ordering, I decide an issue that can and should be decided now, as suggested in para. 33(3)(a) of Sweda Farms.
[27] In respect to the “unsafe shopping cart” theory, I will grant the plaintiff one more opportunity to present a case that there is a triable issue. This will require it to bring Walmart into the fray, and to obtain expert evidence in respect to this theory. It will also accord the moving defendants an opportunity to respond to a theory that the plaintiff did not develop before argument of this motion. In giving directions to this effect, I have identified the additional steps that will be required to complete the record to enable the court to decide the remaining issues, as suggested in para. 33(3)(b) of Sweda Farms.
[28] I am seized of the remaining steps directed in this endorsement, as per the Supreme Court of Canada’s statement at para. 78 of Hryniak and para. 33(3)(c) of Sweda Farms.
Costs
[29] The moving defendants have been successful on the primary theory of the case advanced by the plaintiff up to the time of this motion. They should have costs for their efforts, though those costs may be restricted to the costs of the motion, rather than the costs of the action, if the plaintiff succeeds in continuing with the case on the “unsafe shopping cart theory”.
[30] The plaintiff really is repositioning its case, and bears some responsibility for prompting the defendants’ motion. Even though the plaintiff has succeeded in part on the motion, I would not grant the plaintiff any costs for this success.
[31] There will be further costs in respect to this motion, and the final result is not yet known. Aside from identifying the principles that ought to apply to the costs to this point, I would defer fixing costs until the completion of the summary judgment process and any costs award is made for the balance of the summary judgment process.
Order
[32] For these reasons, this court orders:
(a) That the plaintiff’s claim based on the “unsafe parking garage” theory is dismissed;
(b) That the plaintiff will have until January 31, 2017 to amend its statement of claim, if it wishes, to particularize more clearly its allegations of the “unsafe shopping cart” theory of liability;
(c) That the plaintiff will demand statements of defence from all defendants against which it makes allegations on the basis of the “unsafe shopping cart” theory by no later than March 31, 2017.
(d) That the plaintiff will produce copies of any expert evidence, and any additional evidence upon which it relies in defence of the motion for summary judgment on the basis of the “unsafe shopping cart” theory of liability, by May 31, 2017.
(e) Any party may bring the motion for summary judgment back before D.L. Corbett J. at any time after the steps described in (a), (b), (c) and (d) have been completed, on a date to be arranged with my assistant, for determination of the balance of the motion for summary judgment.
(f) Any party may obtain further directions in respect to the motion for summary judgment, or any other aspect of the case, from D.L. Corbett J., at an appointment to be arranged with my assistant for 9:00 am any day that I am sitting.
(g) If I should be unavailable to assist the parties in respect to an appointment directed by this endorsement, then the parties shall obtain a date for an appearance before another judge from the presiding justice at civil practice court.
(h) Costs for the motion for summary judgment thus far to the moving defendants, on a partial indemnity basis, in an amount to be set by the court disposing of the balance of this motion for summary judgment.
___________________________
D.L. Corbett J.
RELEASED: December 29, 2016
[^1]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87. [^2]: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (“Sweda Farms”), para. 26. [^3]: Sweda Farms, para. 32. [^4]: Sweda Farms, para. 33 (citations omitted).