CITATION: OSMOND v. WATKINS et al, 2017 ONSC 5729

COURT FILE NO.: CV-14-477 (Thunder Bay)

DATE: 2017/09/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TONY LEO OSMOND, Plaintiff

AND:

CHRISTOPHER CHARLES WATKINS and JASMINE CATHERINE WATKINS, Defendants

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Daniel D’Urzo, for the Plaintiff

Douglas Treilhard, for the Defendant

HEARD: August 11, 2017

ENDORSEMENT

[1] The plaintiff has brought an action for general damages in the sum of $250,000 and for special damages to be particularized in connection with injuries, consisting of multiple fractures, suffered by him resulting from a fall while performing roofing work on the defendants’ residence.

[2] The plaintiff bases his claim against the defendants on negligence, breach of duty and breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

[3] The defendants have brought a motion for summary judgment seeking dismissal of the plaintiffs’ action on the basis that there is no genuine issue requiring a trial because there is no evidentiary or legal basis upon which the plaintiff could establish liability against them.

Evidence

(a) Evidence of the Defendants

[4] The defendants’ motion is supported by an affidavit of each of the defendants and an affidavit of Rolind Teudor Okerlund. The transcript of the examination for discovery of the defendant Christopher Charles Watkins is appended to his affidavit as exhibit and in his affidavit he confirmed that his evidence on discovery is true to the best of his recollection. A transcript of the examination for discovery of the plaintiff is also included in the Motion Record.

[5] Christopher Charles Watkins deposed in his affidavit as follows:

(a) by August 2013 he had been casually acquainted with the plaintiff for five or six years. The plaintiff was also a client of a lawyer with whom he practised in association who was assisting the plaintiff with a disability insurance claim relating to a back injury he had has suffered several years earlier;

(b) in July or August, 2013 both defendants met the plaintiff by chance in a restaurant. During the course of the conversation, Mr. Watkins told the plaintiff about partially-completed renovations at their home. The plaintiff suggested that he could organize a crew of workmen to complete the job for them;

(c) within a week or two the plaintiff visited the worksite and told Mr. Watkins that he could assist him by hiring workmen, purchasing materials and overseeing the completion of the work, acting essentially as a general contractor. Since he knew about the plaintiff’s back injury Mr. Watkins would not have expected the plaintiff to be actively involved in manual labour;

(d) the plaintiff assured the defendants that he was capable of completing the job and that he was an experienced contractor with his own tools, equipment and workmen. The defendants agreed to hire the plaintiff to complete the renovations;

(e) the parties did not enter into a written contract. The informal arrangement provided that the plaintiff would be paid in cash upon his request, in whatever amount he requested. He was to use these payments to purchase materials, pay his workers and pay himself. Mr. Watkins also promised to recommend the plaintiff to others if he did good work;

(f) although no completion date was discussed with the plaintiff, Mr. Watkins assumed that the project would have to be substantially complete for the winter;

(g) contrary to the allegations made by the plaintiff in the Statement of Claim the plaintiff was not working for the defendants in exchange for legal services and the plaintiff did not tell Mr. Watkins that he did not have experience in roof construction;

(h) the plaintiff had three workers to assist him with the project, namely Rolind Okerlund, a carpenter, Jamie Merritt, a labourer, and James Donnely, a roofer. The defendants did not have any role in selecting or retaining those individuals;

(i) shortly after work commenced in August 2013 the defendants went on vacation and returned shortly before the plaintiff was injured. As a result the defendants were not living in their home during much of the time that the plaintiff and his crew were at work and were not in a position to observe their activities;

(j) during the time that the defendants were not on vacation, Mr. Watkins would be at work during the day at his law office and the plaintiff and his workers would usually be gone by the time he got home in the evening;

(k) during the limited opportunities he had to observe the plaintiff and his crew, the plaintiff appeared to be acting in a supervisory capacity although he did see him do some physical tasks such as loading and unloading materials. The plaintiff would not always be present while his crew members were at work;

(l) Mr. Watkins never saw the plaintiff on the roof and would have been surprised to see him on the roof since he knew that he had hired a roofer;

(m) by September 4, 2013, being the day of the accident, much of the work was already complete. Mr. Donnely was supposed to commence shingling the roof the next day;

(n) Mr. Watkins was at work on the day of the accident and did not witness it; and

(o) the arrangement that the defendants had with the plaintiff did not involve them supervising the plaintiff’s work or telling him how to do his job. They hired the plaintiff and left the project entirely within his control.

[6] Jasmine Catherine Watkins deposed in her affidavit as follows:

(a) she did not have a great deal of personal knowledge concerning the arrangement that Mr. Watkins made with the plaintiff. Although she was involved in some decision-making relating to colours and finishes, Mr. Watkins made the arrangements with the plaintiff for the work to be done;

(b) in late August, 2013 the defendants went on vacation and left the plaintiff and his workers to complete the renovations. When they returned at the beginning of September, 2013, renovations were still ongoing;

(c) at the time Mrs. Watkins worked as a law clerk and office manager at Mr. Watkins’ law office and during the time that they were not away on vacation she would usually be at work during the day while construction was ongoing;

(d) the only real contact Mrs. Watkins had with the plaintiff or the workers was asking them to clean up the worksite and reminding them, on more than one occasion, not to go on the roof without fall-arrest harnesses;

(e) neither defendant participated in, supervised or directed the construction work. They expected the plaintiff to know how to do his job and therefore left the project entirely within his control;

(f) she was at work on the date of the accident and did not witness the accident in which the plaintiff was injured.

[7] Rolind Teudor Okerlund deposed in his affidavit as follows:

(a) he is a self-employed carpenter and in 2013 resided in Thunder Bay, Ontario;

(b) in late August, 2013 the plaintiff contacted him and offered him a carpentry job at the defendants' residence;

(c) at the time he did not know either the plaintiff nor either the defendants. His brother knew the plaintiff and put him in contact with him;

(d) Mr. Okerlund and the plaintiff agreed that he would be paid $30 per hour. He was paid in cash by the plaintiff and was not paid by Mr. Watkins;

(e) the plaintiff was involved in all aspects of construction and demolition, both as general contractor and physically doing labour himself;

(f) the plaintiff hired a general labourer named Jamie Merritt to assist. A roofer was also required. Mr. Okerlund contacted a roofer of his acquaintance, James Donnely, who agreed to do the roofing portion of the project. Mr. Donnely had not commenced his work or even met the plaintiff by the time of the plaintiff’s injury;

(g) on the date of the accident September 4, 2013 Mr. Okerlund attended at the worksite with the plaintiff to collect his tools, clean up the site and get things ready for the roofer Mr. Donnely, who is supposed to start shingling the roof on the next day. Mr. Merritt was not in attendance on September 4;

(h) the plaintiff climbed a ladder onto the roof and started installing tarpaper. Mr. Okerlund told him that he should leave that work for Mr. Donnely but he went ahead anyway;

(i) Mr. Okerlund followed the plaintiff onto the roof and was therefore in a position to observe the accident;

(j) the plaintiff was standing on the tarpaper that he was stapling down. His weight caused the tarpaper to rip and slide out from underneath him. He lost his balance and fell off the roof;

(k) the plaintiff was not wearing a fall-protection harness or using any other safety equipment;

(l) neither defendant was present at the time of the accident. Mr. Okerlund was the only witness;

(m) Mr. Okerlund was not aware of any unusual or hazardous state of affairs that existed on the Watkins’ property;

(n) the accident appeared to have been solely the result of the plaintiff standing on the tarpaper he was installing, the tarpaper ripping and the plaintiff losing his footing and falling as a result;

(o) the defendants were not usually present while construction work was in progress. Mr. Okerlund did not, during his involvement with the project, observe either defendant exercising any direct supervision or control over the plaintiff. The plaintiff was in charge of completing the project. The defendants were not directly involved in any capacity;

(p) the plaintiff supplied his own tools, equipment and labour, and independently directed the project;

(q) on at least one occasion Mrs. Watkins did remind the plaintiff and the rest of the crew to wear fall-arrest harnesses when working at heights.

[8] The defendants also rely upon the transcript of the examination for discovery of the plaintiff in which he testified as follows:

(a) he was not using any safety equipment on the roof because he never had it;

(b) he didn’t think that they were going to be on that steep of a peak. They were rushed to get things done;

(c) he was not aware that he was supposed to be using safety equipment, such as scaffolding or tie-downs, because he had done lots of little jobs for himself and he had “never tied off”;

(d) he never turned his attention needing to use safety equipment. He was in a rush and just didn’t think. He should have taken the time to find a harness or something but he was too busy thinking about getting the job done; and

(e) he did not have any scaffolding on site nor did he have any harnessing on-site.

Evidence of the Plaintiff

[9] The plaintiff deposed in his affidavit as follows:

(a) he is known Mr. Watkins for many years through interactions with him at the courthouse in Thunder Bay;

(b) in June or July, 2013 he met with Mr. Watkins at his law office to discuss a long-term disability matter he was dealing with in relation to a prior back injury while working in the mining industry. The plaintiff retained an associate of Mr. Watkins to represent him for his disability claim;

(c) the plaintiff advised Mr. Watkins that he could not afford to pay legal fees Mr. Watkins proposed that he complete renovations at his home in exchange for legal services;

(d) the plaintiff met with Mr. Watkins at his home the end of July or early August. The scope of the work for the renovation was outside of his comfort level;

(e) Mr. Watkins advised plaintiff that he would pay for the materials, any labourers and provide safety equipment;

(f) the plaintiff had assistance on the project from Rolind Okerlund and Jamie Merritt;

(g) the defendants observed the crew working on the renovations from time to time including working on the roof;

(h) the defendants did not provide safety equipment, including safety harness or scaffolding to complete the project;

(i) the defendants did not have a discussion with the plaintiff and his crew about safety equipment;

(j) while away on vacation Mr. Watkins called and messaged the plaintiff repeatedly to rush to complete the project;

(k) at no time was there a discussion between the defendants or Mr. Okerlund and the plaintiff about hiring a roofer. The plaintiff does not know who James Donnely is and he was never on the premises prior to the accident;

(l) on the day of the fall Mr. Okerlund and the plaintiff were on the roof installing tarpaper. The plaintiff carried all the shingles and tarpaper up onto the roof and was nailing down the tarpaper;

(m) the plaintiff was on the edge of the roof, he got up to walk and his leg slipped on the tarpaper which broke loose and he fell to the ground approximately 37 feet onto bricks and debris;

(n) while he was in hospital Mr. Watkins called plaintiff and advised him not to speak to the Ministry of Labour and to tell them that Mr. Watkins was his lawyer. Mr. Watkins emailed to the doctor and advised him that the plaintiff fell off his roof and that the plaintiff was a friend helping out with some construction.

Principles Governing Motions for Summary Judgment

[10] The principles governing motions for summary judgment are well-known and the parties do not have any fundamental disagreement with regard to them. The essentials may be summarized as follows.

[11] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that, on motion by a plaintiff or a defendant, the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[12] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (S.C.C.) stated at para. 49 that there will be no genuine issue requiring a trial when a judge hearing a summary judgment motion is able to reach a fair and just determination on the merits, and that this will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[13] The Supreme Court of Canada went on to provide a roadmap or approach to be followed by judges hearing motions for summary judgment at paras. 66-68. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers in sub rules 20.04(2.1) and (2.2). There will be no genuine issue requiring a trial if the summary judgment process provides the motions judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under sub rules 20.04(2.1) and (2.2). While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary.

Analysis

[14] In the Statement of Claim the plaintiff pleads that the accident was caused by the negligence, breach of duty and breach of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 of the defendants. No claim is advanced against the defendants for breach of contract.

[15] Section 3 of the Occupiers’ Liability Act sets out an occupier’s duty as follows:

3(1) Occupier's duty

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.

3(2) Idem

The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on the premises.

3(3) Idem

The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier's duty.

[16] The parties do not disagree with respect to the mechanism by which the plaintiff fell from the roof, namely, that while on the roof installing tarpaper he was standing on tarpaper when it ripped, causing his foot to slip resulting in the fall.

[17] The plaintiff led no evidence that his fall was caused by any defect in or lack of repair affecting the premises or any hazardous conditions associated with the premises themselves.

[18] The parties are also agreed that the plaintiff was not performing the renovation work as a volunteer. Although the evidence of the plaintiff and the defendants conflicted as to the basis by which the plaintiff would be compensated, the plaintiff saying that he was working in exchange for the provision of legal services, and the defendants saying that the plaintiff was to be paid in cash, they did not disagree that the plaintiff was performing the renovation work for valuable consideration.

[19] Although the plaintiff deposed that Mr. Watkins advised him that he would provide safety equipment, since breach of contract was not pleaded, plaintiff’s counsel acknowledged in submissions that no contractual claim could be advanced for failure on the part of the defendants to furnish the plaintiff with safety equipment.

[20] Since there was no defect or lack of repair in the premises which could be causally linked to the plaintiff’s fall, plaintiff’s counsel acknowledged that the only basis for liability of the defendants would be in negligence for not providing the plaintiff with the necessary safety equipment to perform roofing work on the project. The duty to provide safety equipment, according to the plaintiff’s argument, was founded upon the defendant Christopher Charles Watkins’ knowledge that the plaintiff was inexperienced in performing roofing work.

[21] In the case of Mahe v. Boulianne, 2010 ABCA 32 (Alta C.A.) the court held at para. 12, citing Central & Eastern Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147 (S.C.C.), that:

Where a lay customer engages a professional or tradesman, it is presumed that the tradesman knows how to do the work. Any advice respecting the work is presumed to come from the tradesman to the lay customer, not from the lay customer to the tradesman. If the tradesman fails to do the work properly or safely, he cannot blame his customer on the basis that the customer should have known better.

[22] The court went on, at para. 15, to observe that “the appellant’s duty, as the occupier of the premises, was to ensure that the premises were reasonably safe. He had no overriding duty to monitor whether the practices followed by the professional electrician respondent were safe. The work has certain inherent and obvious risks, particularly the risk of falling, which were well-known to the respondent.”

[23] The plaintiff led no evidence that he was inexperienced in performing roofing work or working at heights. Although he stated that the scope of the work of the renovation was outside his comfort level, he did not depose that this was because it called for roofing work or otherwise working at heights. He did not depose that he informed either defendant that the scope of the work was outside his comfort level, nor that he lacked experience in performing roofing work or working at heights. The evidence does not support a finding that either defendant was aware the plaintiff lacked the necessary experience to carry out the project.

[24] The court is entitled to assume that the plaintiff has put his best foot forward in response to the motion for summary judgment, and that the evidence of the plaintiff will be his evidence at trial.

[25] Even if there was evidence that the plaintiff was inexperienced in roofing work and the defendants were aware of it, I am not satisfied that that alone would clothe the defendants with a duty of care to provide safety equipment to the plaintiff and to supervise the plaintiff to ensure that he used it. No authority was cited by the plaintiff for the proposition that knowledge of a lack of experience on the part of the plaintiff would override or negate the principles of law stated by the Alberta Court of Appeal in Mahe.

[26] In my view there are no genuine issues requiring a trial in respect of the plaintiff’s claims in negligence or under the Occupiers’ Liability Act against the defendants.

[27] I am of the view that the defendants’ summary judgment motion achieves a fair and just adjudication as it has provided a process which has allowed me, as the motion judge, to make the necessary findings of fact and apply the law to those facts. The motion for summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result in respect of the plaintiff’s action than going to trial. A trial is therefore not required (see Hryniak, at paras. 4 and 49.)

[28] I have determined that there is no genuine issue requiring trial in respect of the action based only on the evidence before me, without using the new fact-finding the powers in rule 20.04 (2.1) and (2.2).

Disposition

[29] The defendants’ motion is therefore granted and the plaintiff’s action is dismissed.

Costs

[30] The court was advised that the parties have agreed that the successful party on the motion would be entitled to costs of the motion in the sum of $5,000 inclusive and that if the motion were granted dismissing the action the defendants would be entitled to the further sum of $5,000.00 in respect of the costs of the action. The plaintiff shall therefore pay costs to the defendants fixed in the sum of $10,000, all inclusive, within 30 days hereof.

D.A. Broad, J.

Date: September 27, 2017