Court File and Parties

Court File No.: CV-14-1650-00 Date: 2017-05-26

Superior Court of Justice - Ontario

Re: Maria Rego, Plaintiff v. Walmart Canada Corp, Defendant

Before: Emery J.

Counsel: Barjinder Kalsi and Thomas Long, for the Plaintiff Stephen G. Ross and Andrew Yolles, for the Defendant

Heard: In Writing

Decision on the Defendant’s Motion for Leave to Appeal

[1] The defendant Walmart Canada Corp. brings this motion for leave to appeal the order of the Honourable Justice Barnes dated January 11, 2017 in which the defendant’s motion for summary judgment to dismiss this action was dismissed. In his endorsement, Justice Barnes concluded that the evidentiary record before the court revealed that there is a genuine issue requiring a trial.

[2] Justice Barnes also concluded that, given the nature of the litigation, the use of the additional powers under Rule 20.04(2.1) would result in a process that would simply duplicate a trial. He stated that such a process will not be more timely or less expensive. He therefore ordered that the matter proceed to trial with all other matters reserved to the trial judge.

[3] Walmart submits that there are decisions of this court that conflict with the order made by Justice Barnes, or there is good reason to doubt its correctness. Walmart also submits that the issues in the proposed appeal are matters of such importance that leave should be granted.

Background Facts and Evidence

[4] There is no dispute in this action that the plaintiff, Maria Rego, fell while walking in a Walmart store on October 21, 2013. The cause of her fall is the central issue in the action. The cause of her fall was therefore the central issue for the motion for summary judgment heard by Justice Barnes.

[5] Ms. Rego alleges in the statement of claim that she fell because she slipped on liquid present on the floor of the store. As a result of the fall, she suffered injuries for which she claims damages.

[6] Examinations for discovery have been completed in this action. On December 14, 2015, the lawyers for Ms. Rego served a trial record on the defendant and filed it with the court to set the case down for trial.

[7] A pre-trial conference is scheduled for 10:00 a.m. on June 8, 2017.

Reasons Given for the Order Made

[8] Justice Barnes concluded that Walmart’s motion for summary judgment to dismiss the action should be dismissed.

[9] Justice Barnes addressed two allegations relating to liability on the motion for summary judgment based on claims made by Ms. Rego:

1. That she fell as a result of liquid on the floor of the Walmart store, causing her to fall and sustain injuries;
2. That Walmart did not have a reasonable system of inspection and maintenance in place at the time of the incident.

[10] Walmart took the position on the motion that there was no evidence of liquid on the floor at the time of Ms. Rego’s fall. Walmart also advanced an argument that Ms. Rego fell because she was wearing high heels at the time.

[11] Walmart also states that even if there was liquid on the floor, it maintained a reasonable system of inspection and maintenance at the time of the incident. In either respect, Walmart is not liable.

[12] Justice Barnes focused on the legal test for liability under the Occupier’s Liability Act, RSO 1990 c.o.2 to take such precautionary actions to ensure that the premises are reasonably safe for those people who enter and use the premises. Justice Barnes made reference to Waldick v. Malcolm, affirmed at , [1991] 2 S.C.R. 456 (SCC) as authority for the principle that what is reasonably safe is a finding of fact, which is determined in reference to all of the particular circumstances.

[13] Justice Barnes also relied upon the direction given by Justice Karakatsanis of the Supreme Court of Canada to judges hearing motions for summary judgment in Hryniak v. Mauldin, 2014 SCC 7. Justice Barnes specifically noted the direction of how this process should unfold in the following terms:

1. The court should examine the existing record to determine if there is a genuine issue requiring a trial;
2. If the court determines that there is a genuine issue requiring a trial, the court should determine whether it is appropriate to use the additional powers under Rule 20.04(2.1), unless it is in the interest of justice for these powers to be exercised only at trial.

[14] On the evidentiary record before the court at the time Walmart’s motion for summary judgment was heard, Justice Barnes reviewed the evidence of all Walmart employees who tended to Ms. Rego that they did not see any liquid or debris on the floor. Further, the CCTV camera footage that captured the fall shows that there was no liquid or debris where Ms. Rego fell.

[15] Walmart did not provide any evidence from Sherry Smith. Ms. Smith is also the Walmart employee who completed the Customer Incident Report. Because the CCTV camera footage does not show Sherry Smith wiping liquid off the floor, she seeks to examine the CCTV camera operator. Walmart did not provide any evidence from the CCTV operator on the motion.

[16] Justice Barnes recognized that, even if he was satisfied on the balance of probabilities that there was liquid on the floor where Ms. Rego fell, Walmart would not be liable if it could demonstrate that it had discharged its statutory duty under the Occupier’s Liability Act. Walmart would also escape liability if it could prove it had met the required standard of care in all of the circumstances to ensure that those premises were reasonably safe for all persons who entered the store.

[17] Walmart made submissions that it had a reasonable system of inspection and maintenance in place at all material times. Walmart relied upon the evidence of Rupinder Kaur, a manager at the Walmart store, to testify that Walmart employees are required to clean up spills and to record any spills that they cleaned up on the back on the Sweep Log for each day. The back page of the Sweep Log for October 21, 2013 does not indicate any spills at the location where Ms. Rego fell.

[18] Ms. Rego herself said that she did not see any liquid or debris when she fell. However, at her examination for discovery, Ms. Rego later testified that she observed a Walmart employee later identified as Sherry Smith cleaning up liquid from the area where the fall had occurred.

[19] Ms. Rego also put in issue whether the existing procedures in place at Walmart that day were adequate in all of the circumstances, including:

1. The presence of bad weather on the day of the incident;
2. Even if Walmart’s system of inspection and maintenance for the store was adequate, there was no evidence it was implemented properly; and
3. Walmart provided no evidence from any of its employees having responsibility to implement the system that day, including employee Bibi Ishmail.

[20] On the basis of those issues, Justice Barnes concluded on the evidentiary record before him that:

1. A fuller evidentiary record is required to explore Ms. Rego’s argument about the impact of inclement weather. Justice Barnes stated that it was unclear to him from the record what the weather conditions were on that day. Although he did not find this issue to be determinative for the purpose of the motion, he stated that it was relevant to whether the Walmart procedures were actually followed by the employees tasked with doing the actual cleaning;
2. Ms. Kaur’s evidence did not address the issues of whether the employees, who had the responsibility to look for spills and to clean up those spills under the procedure, actually did so; and
3. Evidence from witnesses who were actually implementing the procedure on the day of the incident was required to resolve the issue of whether Walmart’s system of inspection and maintenance was followed on the date of loss.

Statement of the Test for Leave

[21] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[22] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted.” A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.).

[23] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

Analysis

[24] It must be remembered that it is of the order for which leave to appeal is requested, not the reasons for the making of that order: Consolidated Enfield Corporation v. Blair, 1995 Carswell Ont. 3809.

[25] Walmart has made the submission in its factum that Justice Barnes erred at law in four ways:

1. He applied an incorrect evidentiary burden for a summary judgment motion, by concluding that the absence of evidence from potential witnesses identified by the plaintiff required a full trial of the action;
2. He provided no or insufficient reasons for not accepting unchallenged and uncontradicted evidence adduced by the defendant Walmart on the motion, and for finding that issues of credibility exist;
3. He misapprehended the evidentiary record before him; and
4. He failed to remain seized of the matter, or to provide reasons for declining to do so.

[26] The defendant Walmart therefore submits that there is good reason to doubt the reasonableness of the order made by Justice Barnes.

[27] Although the defendant Walmart submits there is good reason to doubt the reasonableness of the order made by Justice Barnes dismissing the motion for summary judgment, the test to be applied under Rule 62.02(4)(b) is whether the moving party has established that there is good reason to doubt the correctness of the order in question. The factums filed on this motion for leave to appeal by each the moving defendant and the plaintiff focused on whether there is reason to doubt the correctness of the order made because the motions judge placed an incorrect evidentiary burden on Walmart as the moving party.

[28] I do not propose to examine the evidence on the record with respect to the alleged error that Justice Barnes provided no or insufficient reasons for his conclusions, or that he did not accept unchallenged or uncontradicted evidence, and for finding that issues of credibility exist. In my view, Justice Barnes gave adequate reasons consistent with the standard set by R. v. M. (R.E.) 2008 SCC 51 where the court stated as follows:

35. The basis for the trial judge’s verdict must be “intelligible”, or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

[29] The evidentiary record before Justice Barnes contained the evidence of Ms. Rego that she saw a Walmart employee cleaning up liquid from the floor near the site of her fall. As I read the endorsement, Justice Barnes considered that evidence contradictory to the evidence filed in support of the motion. Without intending to parse his reasoning, Justice Barnes concluded the defendant’s evidence was not unchallenged or uncontradicted, and a basis for finding that issues of credibility exist.

[30] I also consider there to be a justifiable reason for Justice Barnes to find that further evidence is necessary to decide whether Walmart had complied with its own inspection and maintenance program. This enhanced the importance of obtaining evidence from one employee, Bibi Ishmail, who was in charge of ensuring inspection procedures were followed. In my view, Justice Barnes did not misapprehend this evidence.

[31] I give little weight to the ground for leave to appeal raised by Walmart that Justice Barnes failed to seize himself of this action after dismissing the motion. The power of a judge to seize himself or herself of a case after finding there to be a genuine issue requiring a trial is discretionary in nature. See paragraphs 68 and in 78 to 79 of Hryniak v. Mauldin. The moving party has not satisfied this court that Justice Barnes exercised his discretion unreasonably or outside of guiding principles. The decision of Justice Barnes not to seize himself is not a reviewable error.

[32] Walmart submits in its motion for leave to appeal that there is good reason to doubt the correctness of the order made by Justice Barnes because his approach to the evidentiary burden of the defendant on the motion for summary judgment is inconsistent with the authorities that establish what that evidentiary burden should be. Walmart argues that this is a question of general importance that extends beyond the interests of the litigants in this action.

[33] The Supreme Court of Canada in Hryniak v. Mauldin described the circumstances in which no genuine issue requiring a trial can be found on a motion for summary judgment. Those circumstances are available on the motion when and where the motion judge can, with confidence, make the necessary findings of fact on the evidence and apply the relevant legal principles to reach a just result in a proportionate, more expeditious and less expensive manner.

[34] Although the court in Hryniak v. Mauldin recognized the summary judgment procedure to be a legitimate alternative to the conventional trial for the adjudication of civil disputes, the court reserved some concern about when the summary judgment procedure will not provide a fair and just process. At paragraph 50 of Hryniak v. Mauldin, Justice Karakatsanis said this:

[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[35] In terms of using the enhanced fact finding powers provided under Rules 20.04(2.1) or 20.04(2.2), Justice Karakatsanis had this to say when considering the use of those enhanced powers unless it would not be the interests of justice to do so:

[56] While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focusing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “requir[ed]” as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.

[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.

[36] The law is clear that the onus is on the moving party to establish that there is no genuine issue requiring a trial, and that summary judgment can be granted on the evidentiary record before the court. However, it has also been held that once the moving party has satisfied that onus, the party responding to the motion must put all available evidence before the court if it is the intention to show there is a genuine issue that only a trial can resolve.

[37] Walmart submits that all of the evidence given in support of its motion for summary judgment met the test under Hryniak v. Mauldin to provide Justice Barnes with the basis to make the necessary findings of fact, and to apply the relevant legal principles to dismiss this action. Walmart further argues that Justice Barnes could have adjudicated the core issue of liability on the evidentiary record as the more expeditious and less expensive way of adjudicating that issue on the merits.

[38] In particular, Walmart states that the following evidence was filed to meet this purpose:

1. A clear CCTV video showing the incident in which it can be seen that there is no liquid or debris on the floor;
2. Affidavits of three witnesses who were at the scene of the accident within moments, all of whom deposed there was no liquid or debris on the floor; and
3. Photos taken of the floor shortly after the accident that does not depict any liquid or debris on the floor.

[39] Walmart has provided several authorities about the assumption the court is entitled to make on a motion for summary judgment that all available evidence has been put before the motions judge to determine whether he or she can make the necessary findings of fact, and to apply the relevant legal principles.

[40] In Shapiro v. John Doe, 2016 ONSC 2956, Justice Pollack discusses the burden of proof on the moving party, and the evidentiary burden on the responding party as follows:

[6] There is no dispute between the parties with respect to the test to be applied on a motion for summary judgment. The Supreme Court of Canada has set out the test in Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87. Although the burden of proof on this motion is on Economical to prove that it is entitled to a dismissal of this action, the Plaintiff does have the burden of proving that there is evidence on this motion to support his claim. The Plaintiff must prove through evidence that there is a genuine issue requiring a trial. It is clear that the Plaintiff must “lead trump or risk losing” and cannot rely on the possibility that other evidence will be adduced at trial will support his claim.

[41] Walmart also relies on the decision of this court in Paramandham v. Holmes, 2015 ONSC 1903 to argue that the responding party may not choose against using the evidence gathering tools available under the Rules of Civil Procedure, and then oppose the motion for summary judgment on the basis that more evidence will be available at trial. Walmart advances the argument that where a party opposing a motion for summary judgment makes a tactical decision not to pursue potential evidence for use on a motion for summary judgment, the court should not second guess those tactical decisions. In keeping with this theme, Justice Myers observed in ThyssenKrupp Elevator (Canada) Ltd. v. Amos, 2014 ONSC 3910 at paragraph 44 as follows:

[44] I am not suggesting that summary judgment motions can be used to avoid a party’s production obligations. But, it is not my role to second-guess counsel’s tactical choices. Faced with several avenues to seek production from the defendants to respond to the motion for summary judgment, the plaintiff chose to limit its investigations and just ask for the motion to be dismissed so the parties can go to discovery. As noted above, counsel could have asked for documents on cross-examination, sought undertakings, or served summonses to witnesses. Counsel could have brought a motion for directions or while at Scheduling Court asked for documents or, in the defendants’ case, sought to control the cost of disclosure.

[42] Walmart argues that Justice Barnes made a reviewable error in law by holding it to a higher standard than that required by law. Conversely, the moving defendant argues that Justice erred by requiring Walmart as the moving party to obtain evidence from witnesses who had not filed affidavits when Walmart had already discharged its onus and the evidentiary burden had shifted to the plaintiff Ms. Rego as the responding party. In requiring evidence from those witnesses who had not filed affidavits, Walmart argues that Justice Barnes made a reviewable error by finding there to be a genuine issue requiring a trial in respect of that missing evidence when it was incumbent on the responding party to put her best foot forward, or to “risk trump or risk losing”.

[43] It is important for this court to make the observation that Ms. Smith, Ms. Ishmail and the CCTV operator had responsibilities central to the narrative. All three individuals were employed by Walmart and within the control of Walmart to give evidence. I would have thought that if Walmart was intent on putting its best foot forward to satisfy its onus as the moving party, it would have provided evidence from each of those sources.

[44] Justice Barnes found that the evidence of the witnesses who attended to Ms. Rego after the fall, and the evidence of Ms. Rego created a credibility issue about whether there was liquid or debris on the floor at the time of the fall. For reasons given, including the observation that Walmart did not provide evidence from Sherry Smith, Bibi Ishmail or the CCTV operator, Justice Barnes concluded the existing record reveals there to be a genuine issue requiring a trial.

[45] In my view, it is not necessary to address the calibration of where a motions judge requires more evidence than is necessary to meet the moving party’s burden of proof, or where, if applicable, the responding party should have done more to meet an evidentiary burden to successfully oppose the motion.

[46] It is not my function on this motion to second guess the motions judge who concluded on the evidentiary record that he could not find the facts on which to apply the law to dispose of the action on its merits. Different judges perceive the evidentiary record differently, and are entitled to make a determination about the sufficiency of evidence, provided there is some basis for reaching those conclusions.

[47] Justice Barnes found the insufficient evidence before him gave rise to a genuine issue requiring a trial. Justice Barnes also found that to use the additional powers provided under Rule 20.04(2.1) would simply duplicate a trial. He essentially concluded that it would not be in the interest of justice to use those powers.

[48] In conclusion, Justice Barnes dismissed Walmart’s motion for summary judgment and ordered that the matter proceed to trial.

[49] The questions of proof on the motion for summary judgment may be of great interest to the parties, but they do not transcend their private interests to become a matter of public importance.

[50] The motion of the defendant Walmart for leave to appeal the order of Justice Barnes is therefore dismissed.

Costs

[51] If either party seeks costs on this motion, they may file written submissions consisting of no more than three pages, not including a Bill of Costs, by June 7, 2017. The other party shall then have until June 21, 2017 to file responding materials limited to the same extent. No reply submissions are permitted without leave. All written materials may be sent by fax to my judicial assistant, Ms. Priscilla Gutierrez, at 905-456-4834 in Brampton.

Emery J. Date: May 26, 2017