The Roman Catholic Episcopal Corporation for the Diocese of Alexandria

2017 ONSC 61

COURT FILE NO.: CV 13-92

DATE: 2017/01/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Hrant Baltadjian and Annunziata Baltadjian

Plaintiffs

– and –

The Roman Catholic Episcopal Corporation for the Diocese of Alexandria

Defendant

Jonathan Huza and Maurice Gatien, Counsel for the Plaintiffs

Dalton McGuinty Jr., Counsel for the Defendant

HEARD: December 8, 2016

Leroy, J.

SUMMARY JUDGMENT RULING

Introduction

[1] The plaintiff, Hrant Baltadjian (herein the plaintiff), a parishioner of the defendant was injured on February 1, 2011 when he fell from the stepladder he was using to complete volunteer work on the defendant’s church in Alexandria, Ontario.

[2] This is the defendant’s Rule 20 motion for summary judgment dismissing the plaintiffs’ claims. The plaintiffs’ position is that the genuine issue requiring trial is whether or not the defendant breached its duty to ensure the plaintiff’s reasonable safety while he was working voluntarily on the church facility. As such, the plaintiffs contend this is not an appropriate case to fairly and justly adjudicate the claim on a summary judgment motion.

The factual matrix

[3] The narrative is uncomplicated. The church interior (walls and twelve foot ceilings) required painting. The defendant sought volunteers to paint. Painting involved ladders.

The defendant also undertook separate simultaneous unrelated renovations of the church involving professional contractors to perform necessary construction and electrical work.

[4] The plaintiff agreed to be a volunteer painter. He was diligent. He attended for painting duty over several weeks.

[5] Richard Jarvis, in volunteer capacity, supervised the paint volunteers. He had experience in the area of workplace risk management. Initially, he asked the plaintiff if he was comfortable painting from a ladder. The plaintiff assured Mr. Jarvis that he was and had prior experience doing so. Jarvis instructed the volunteer painters about the 3-point contact expectation. Over the weeks he observed that the volunteer painters abided those instructions while ascending and descending their ladders. His role was to utilize the volunteer painters’ time effectively. He said he ensured that the paint crew work locations did not interfere with the paid contractors.

[6] The plaintiff provided painting services to the church three times a week for 3 or 4 hours each day for several weeks before the injury. The church provided an eight-foot aluminum stepladder, paint tray, paint, paintbrush and roller. He regularly painted from the incident eight-foot stepladder. The plaintiff does not contest that Jarvis made enquiries about the plaintiff’s comfort/experience level painting from a ladder, about the 3-point contact expectation, that Jarvis was positioned to observe the paint crew practices or that he personally subscribed to safe stepladder practices.

[7] On February 1, 2011 the plaintiff, of his volition, determined to install a short piece of trim (24 inch length of quarter-round) to a wall ceiling junction at the height of twelve feet. When he told Jarvis about his intention, Jarvis advised the plaintiff that he preferred to get the painting done. He asked the plaintiff if he knew how to place the trim and the plaintiff confirmed he did that sort of thing at home all the time. The plaintiff said that if he was going to do a job, he was going to do it right. Jarvis said the plaintiff was insistent. Jarvis did not object further. The plaintiff has no recall of this conversation.

[8] The plaintiff worked away at the trim install for an hour before the fall. He was noted by Jarvis and others to be up and down the stepladder several times. He appeared meticulous in this endeavor. He was unsupervised. He did not ask for assistance. The floor area was flat, solid and clear of debris.

[9] The plaintiff was not wearing a safety hat, safety shoes or any fall arrest equipment. Fall protection is not a requirement under the Occupational Health and Safety Act (OHSA) for work on an eight-foot ladder.

[10] The plaintiff fell from the ladder. There were no witnesses and the plaintiff has no recall of the incident. Jarvis was in another part of the building out of sight when he heard the thud. The plaintiff suffered head injury. He was in a coma for 25 days.

[11] The ladder was suitable for its purpose. The bucket shelf was missing. The plaintiff had painted from this ladder in the preceding weeks. The practice for painting purposes was to latch the paint tray over the top shelf. There were no complaints.

[12] The defendant’s engineering expert examined the ladder and confirmed the ladder’s integrity. He confirmed that the ladder was not defective and was in proper working order according to the dimensional and stability requirements of CSA Z11-12 Portable Ladders. The missing bucket shelf and pre-existing repair did not affect the strength and stability performance of the ladder. Jarvis used the ladder time to time and considered it safe. Ronald Jeakens confirmed that as work site inspector, knowing the ladder was stable and of the requisite height for the task, he would be focused on worker method – center of gravity, 3-point contact and the like.

The Plaintiffs’ Position

[13] The plaintiff pleads that the defendant breached its duty of care to the plaintiff by:

i. failing to provide the plaintiff with a ladder and other equipment that was in safe and working order;

ii. failing to properly supervise the plaintiff in the performance of his volunteer work; and that

iii. on the occasion in question, the defendant was incompetent in managing, supervising and overseeing the plaintiff while he was carrying out the repairs and was lacking in reasonable skills and abilities to do so and ought not to have allowed the plaintiff to carry out the repairs.

The Issues

[14] The issues are:

i. Is this a proper case for summary judgment? Can liability be determined by motion instead of trial?

ii. Did the defendant fail in its duties under the Occupiers’ Liability Act? Does the OHSA factor into the standard of care owed by the defendant pursuant to the Occupiers’ Liability Act?

iii. Did the plaintiff willingly assume the risks inherent to the task?

[15] The extent to which the evidence responds to the second two issues will impact on the first.

Governing Principles

Is this a proper case for summary judgment?

[16] The Court shall grant summary judgment, where it is satisfied there is no genuine issue requiring a trial with respect to a claim. The motions Court is expected to ask through the process “why it should not grant summary judgment”. The answer in cases where summary judgment is not granted will identify what further materials and procedures are required to get to the bottom of things and a full appreciation of the case.

[17] There is no genuine issue requiring a trial when the process:

(a) allows the judge to make the necessary findings of fact;

(b) allows the judge to apply the law to the facts; and,

(c) is a proportionate, more expeditious and less expensive mean to achieve a just result – Hyrniak v. Mauldin 2014 SCC 7 at para 49, Rule 21.04(2).

[18] The moving party bears the onus of proving there is no genuine issue requiring a trial. An evidentiary burden to support that a genuine issue exists only rests with the responding party if the moving party demonstrates a prima facie right to summary judgment – Kelly v. Cote 2015 ONSC 2155 at 14.

[19] Each party must put its best foot forward with respect to the existence or non-existence of material issues to be tried. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. The Court must take it that all the evidence that will be led at trial is before it – Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 para. 56. On an unsuccessful motion for summary judgment, the Court will rely on the record before it to decide what further steps will be required to bring the matter to conclusion.

[20] There are cases unsuited for summary judgment. They include actions involving the requirement to make multiple findings of fact; conflicting evidence from a number of witnesses, voluminous motion records, credibility findings at the heart of the dispute, conflicting evidence by major witnesses on key issues and where credibility assessment is difficult because of the absence of reliable documentary yardsticks – Combined Air paras. 51 and 148.

[21] Rule 20 contemplates a two-step process. The motion Court must first determine, based on the evidence before it and without using the fact finding powers in Rule 20.04(2.1) and (2.2), whether there is a genuine issue requiring trial to fairly and justly adjudicate the dispute and whether the motion is a timely, affordable and proportionate procedure under Rule 20.04(2)(a). If there is no issue requiring trial, the Court must grant summary judgment. If there appears to be a genuine issue requiring trial, the Court exercises its discretion to determine whether the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2) including the option of ordering that oral evidence be employed, provided their use will not be contrary to the interests of justice and will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[22] The inquiry into the interest of justice is comparative and may require the motions judge to assess the relative efficiencies of proceeding by way of summary judgment as opposed to trial. This may involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it.

Positions of the parties

[23] The defendant’s position is that this matter does not have any of the hallmarks of actions requiring a trial. There are no real issues of credibility, the facts to be decided are not numerous and can be ascertained based on documentary evidence contained in the motion record and transcripts of the Examination for Discovery. There is no genuine issue requiring a trial because the Court can develop a full appreciation of the facts from the evidence adduced on this motion. Summary judgment in these circumstances allows a fair and just adjudication in the most affordable and proportionate manner.

[24] As noted at the outset, the plaintiffs’ position is that the genuine issue requiring trial is whether or not the defendant was negligent in ensuring the plaintiff’s safety while he was working on the church facility as volunteer and as such this is not an appropriate case to fairly and justly adjudicate the claim on a summary judgment motion.

Did the defendant fail in its duties under the Occupiers’ Liability Act?

Governing Principles

[25] Subsection 3(1) of the Occupiers’ Liability Act (the Act) imposes on the occupier defendant a duty to take reasonable care so that persons entering on its premises and the property brought on the premises by persons are reasonably safe. Subsection 3(2) provides that this duty of care applies regardless whether the condition is caused by the condition of the premises or by an activity carried on in the premises. Under subsection 4(1) this duty of care does not apply in respect of risks willingly assumed by someone who enters the premises.

[26] Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The plaintiff needs to show that the harm itself was reasonably foreseeable. The plaintiff does not have to prove that the manner of incidence was foreseeable. In Bingley v. Morrison Fuels 2009 ONCA 319 ONCA, the Court concluded that even though the practice used by the defendant in retiring an oil tank complied with the applicable regulations at the time, the practice of leaving a disconnected tank intake on the exterior of a home was inherently defective and the harm resulting from a mistaken fill up was reasonably foreseeable.

[27] The general principles governing the occupier’s burden were succinctly stated by Mr. Justice Campbell in Dhaliwas v. Premier Fitness Clubs Inc. [2012] O.J. No. 3841 at paragraphs 22 and 23 as follows:

“22. The leading decision construing these provisions remains Waldick v. Malcolm (1989), 1991 CanLII 8347 (ON CA), 70 O.R. (2d) 717 (C.A.) at para. 19, 25; Affirmed: 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456… the Act imposes an affirmative duty on occupiers to make their premises reasonably safe for persons entering them, by taking reasonable care to protect them from foreseeable harm. This duty is not absolute. Occupiers are not insurers liable for any damages that may be suffered by persons entering their premises. This standard of reasonableness requires neither perfection nor unrealistic or impractical precautions against known risks. However, occupiers are duty-bound to take such care as in all of the circumstances of the case is reasonable. In each case, the trier of fact must determine what standard of care is reasonable and whether that standard of care has been met – citations omitted.

[23] As in other types of negligence cases, actions involving allegations of occupier’s liability require the plaintiff to establish the negligence of the occupier on the balance of probabilities. More particularly, the plaintiff must prove that the occupier breached their statutory duty of care by failing to take reasonable care to see that persons entering their premises were reasonably safe while on the premises. See: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40-49; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3; A.M. Linden and B. Feldthusen, Canadian Tort Law, at pp. 253-254.

[28] Although the statutory duty on occupiers does not change from case to case, the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation. A Court must apply common sense in determining what is reasonable.

[29] Justice Lalonde summarized the plaintiff’s burden in St. Louis-Lalonde v. Carleton Condominium Corp No. 12, [2005] O.J. No. 2721 (confirmed on appeal) as follows:

““Section 3 of the Act establishes a duty of care only, and not a presumption of negligence. Thus, if a person is injured on the premises, a plaintiff must still be able to pinpoint some act or failure to act on the part of the occupier, which caused the injury complained of, before liability can be established. He referenced the ruling of Madam Justice E.M. Macdonald in Whitlow v. 572008 Ontario Ltd. (c.o.b. Cross-Eyed Bear Tavern), [1995] O.J. No. 77 (Gen. Div.) at paras. 32-33:

¶ 32 The starting principle is that the occupier must be held to a reasonable standard. A reasonable standard is not perfection. See the unreported decision of J. Holland J. in Petrovic v. Chedoke-McMaster Hospital, [1988] O.J. No. 419.

¶ 33 Secondly, s. 3 of the Act does not create a presumption of negligence against the occupier of the premises whenever a person is injured on the premises. See Bauman v. Stein (1991), 1991 CanLII 1140 (BC CA), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.). A plaintiff must still be able to point to some act, or some failure to act, on the part of the occupier which caused the injury complained of, before liability can be established. This fundamental principle is sometimes overlooked by plaintiffs who presume that, when an accident occurs on an occupier’s premises, there is a presumption of negligence against the occupier of the premises. In this case, I was concerned that the plaintiffs’ case was premised on such a presumption.”

Causation

[30] Macdonald J. further noted that the plaintiff must establish, on a balance of probabilities, the accessory link of causation between the alleged breach of the standard of care and the alleged injuries, at paragraph 17 of the Whitlow decision:

“In McGrath v. The Toronto Transportation Commission, [1946] O.W.N. 931, the Court of Appeal dealt with the danger of a trier of fact resorting to speculation or conjecture. The comments at p. 932 are relevant: It is elementary law that the negligence of a defendant will not make him liable in an action for injuries sustained by a plaintiff, unless there is a direct connection found, with evidence to sustain it, between the injuries suffered and the negligence which has been found. It is not sufficient for the plaintiff to prove merely the accident and the negligent act on the part of the defendant.

He must further prove clearly that the accident was due to the negligent act with which such defendant is charged, and the connection between the alleged negligence and the injury suffered must be made out by evidence and not left to the conjecture or speculation of the jury …””

[31] Justice Campbell also adverted to the causation issue in Dhaliwas at paragraphs 53 and 54 supra as follows:

“ [53] …To find liability, the negligence of the defendants must have caused the plaintiff’s injury.

[54] Recently, in Clements v. Clements, 2012 SCC 32, the Supreme Court of Canada helpfully restated the law in relation to causation in tort cases. More particularly, McLachlin C.J.C., delivering the judgment of the majority of the Court, reaffirmed the general applicability of the “but for” test for causation. McLachlin C.J.C. noted that, on its own, proof by an injured plaintiff that a defendant was negligent does not render that defendant liable for the loss. The plaintiff must also prove that the defendant’s negligence caused the injury. McLachlin C.J.C. confirmed that the legal test for showing causation is the “but for” test in which the plaintiff must prove, on a balance of probabilities, that “but for” the defendant’s negligence, the plaintiff’s injury would not have occurred. Inherent in the very nature of this causation test, is the requirement that the defendant’s negligence was necessary in bringing about the injury. In other words, the plaintiff must establish that his or her injury would not have occurred without the defendant’s negligence. The resolution of this causation inquiry is a factual inquiry into what likely happened, but it requires the “but for” causation test to be applied pragmatically in a “robust common sense fashion.” The legal burden on the issue of causation remains with the plaintiff – citations omitted

[32] The parties at bar submitted ladder injury jurisprudence as precedent. They are consistent with the governing principles.

[33] In James v. Schmidt, [1993] O.J. No. 2287, James did not complain about a ladder defect. He lost his balance for no apparent reason. The Court concluded it was the negligence of the plaintiff in losing his balance that caused his injury. The defendant is not an insurer. The action was dismissed.

[34] In Beronja v. Nagra, 2004 BCSC 371, [2004] B.C.J. No. 575 the ruling was made on a motion for summary judgment. The facts were that the plaintiff, a professional painter, agreed to reattach a fallen cable on the defendant’s roof, he used his own ladder, he had climbed up and down ladders of this height many times without assistance, the ground was dry, relatively flat and free of debris, the plaintiff’s co-worker had been up and down the ladder unassisted a couple of times before the fall, no one asked the defendant to hold the ladder, the defendant was not in the area when the plaintiff fell and before climbing down the ladder the plaintiff satisfied himself that the base was stable. Justice Wedge concluded that the circumstances were appropriate for summary judgment and that the owner occupier was not under a duty to supervise or assist.

[35] Justice Wedge adverted to the British Columbia Court of Appeal ruling in Wiens v. Serene Lea Farms Ltd., [2001] B.C.J. No. 2719 where a volunteer fell from a ladder. The facts were that the premises were unsafe. The ground was wet and slippery from accumulated cow manure that had not been cleared by the defendant. When the plaintiff climbed the ladder he asked a defendant to hold it for stability. That defendant abandoned his post without notifying the plaintiff. The fall resulted. The owner was found to be 40% liable. The person who abandoned the ladder was found 30% liable. Justice Wedge distinguished the facts having regard to the inherently unsafe placement on the slippery base and the plaintiff’s request for assistance that was withdrawn without notice.

[36] In McAlonen v. Vandel, [1997] O.J. No. 1489, liability was apportioned 70% to the defendant. The defendant placed the ladder without securing it against the house and base before the plaintiff’s arrival. The plaintiff assumed the ladder was secured against the house and base. The plaintiff was 30% responsible for failing to ensure the ladder was secured, especially since it had been placed by someone else.

The evidence proffered by Messrs. Chappell and Jeakens

[37] The evidence proffered by these witnesses resolved issues raised by the plaintiff. The theory of the plaintiffs’ case lugged the Occupational Health and Safety Act (OHSA) and regulations into the analytical framework for demarking the defendant’s duty of care as occupier.

[38] The motion was returned first time on May 27, 2016. The plaintiffs’ position was that the standard of care owed to the plaintiff under the Occupiers’ Liability Act was or should be guided by the rules and regulations of the OHSA in the context that if the plaintiff was a worker as defined, the defendant would be in breach of the OHSA for allowing the plaintiff to work on this stepladder unsupervised.

[39] The defendant’s position was to the contrary. It was that the OHSA is of no application and if it did the worksite tableau was not such as to be in breach of the statute and regulations.

[40] My review of the evidence presented at the time left me with uncertainty as to resolution of this difference of view. I requested that counsel marshal evidence from an OHSA inspector on the issues of the standards of supervision and the use of the stepladder for the instant application in the workplace presuming the plaintiff to be a worker as defined in the statute. The motion was adjourned to marshal that evidence.

[41] For context, I am alert to the conclusions by the Supreme Court in The Queen v Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1S.C.R. 205, rejecting the notion of giving a right of recovery merely on proof of breach of statute, instead recognizing the premise that breach, causative of damages may be evidence of negligence and the statutory formulation of the duty may afford a specific and useful standard of reasonable conduct. By the same token, mere compliance with a statute does not in and of itself preclude a finding of civil liability. Legislative standards are relevant to the common law standard of care but the two are not necessarily co-extensive – Ryan v, Victoria (City), 1999 CanLII 706 (SCC), [1999] S.C.J. No. 7, Bingley supra. In appropriate circumstances, compliance with statutory standards may entirely satisfy the common law standard of care and absolve a defendant of liability in negligence.

[42] The parties agree that the OHSA and the regulations (O. Reg 213/91 – construction site and 851 – Industrial site) do not apply to volunteers. The digression and the results are relevant as a comparative measure of standards of care.

[43] The plaintiffs retained Michael Chappell as their expert on this issue. He is a Civil Engineering Technologist. He is a registered Canadian Safety Professional and Provincial Offences officer and Occupational Health and Safety Inspector appointed by the Ministry of Labour. He has not conducted an inspection since 1996. He worked for the Ministry of Labour in relation to the OHSA in connection with the construction Industry. He was retained by the plaintiff to provide an expert opinion in regards to the volunteer work carried out by the plaintiff as if he were a worker covered by the OHSA. The statement of Facts relied on by Mr. Chappell are generally consistent with the statement of fact depicted earlier in these reasons although I did not find evidence that Jarvis was actually supervising the contract construction work. He confirmed that when the plaintiff was working at the ceiling, he would have been six feet above the floor.

[44] The conclusions made by Mr. Chappell in the report were:

i. The ladder would have been very unstable if the plaintiff was standing on the step second from the top – that manufacturers of stepladders apply warnings to users to not use the second from the top step.

ii. Using scaffold would have been considerably safer – he opined that O. Reg 213/91 clause 125 requires that a scaffold which meets the requirements of section 126, 128, 129, 130, 134, 137, 138, 139, 140, 141 and 142 shall be provided for workers when work cannot be done from the ground or from a building or other permanent structure without hazard to the workers.

iii. He said there is no option conceived under the construction regulation O. Reg. 213/91 for work of this type from an unstable platform such as a stepladder.

iv. He concluded that for the purposes of the OHSA, the defendant had a legal obligation to ensure that the measures and procedures prescribed by the Act were carried out on the project.

v. Using a ladder of any type to undertake this work would have been considered a contravention of s. 125. An inspector would have ordered that the constructor use a scaffold system with an appropriate platform.

vi. The use of the stepladder contravened section 25(1) of the OHSA because it was missing the bucket-shelf.

vii. The defendant should have provided the plaintiff with protective headwear and safety footwear to comply with s. 25(1) of the OHSA and O. Reg, 213/91 s. 22 and 23.

viii. It is incumbent on a constructor to report a fatality or critical injury from any cause in a workplace to the Ministry of Labour.

ix. The OHSA applies to volunteers – he was not asked to provide an opinion as to whether the OHSA applied. He was asked to assume it did.

x. Although the Ministry of Labour did not investigate, if it had, the defendant and Jarvis would have been prosecuted and convicted.

[45] In cross-examination Mr. Chappell’s conclusions were denuded of efficacy. Mr. Chappell presented more as advocate for the plaintiffs than expert. His analysis was conclusory. He was forced to admit that the central aspects of his conclusions were in error, such as:

i. That his conclusions regarding the application of the OHSA to volunteers was in error.

ii. That the use of a stepladder for the incident task was not prohibited by the OHSA and O. Reg 213/91;

iii. That the use of scaffolding for this task is not an automatic requirement; rather it would be the safest choice;

iv. That the use of an eight foot stepladder for work at twelve feet is appropriate;

v. That the practice of standing on the second last rung of a stepladder is not contraindicated by ladder manufacturers;

vi. That a four foot differential between the height of the stepladder and the work area is allowed by manufacturer guidelines and does not exceed the legislative standard;

vii. He agreed that a pail shelf is not mandatory.

viii. That before an inspector recommends charges s/he will consider whether the employer, constructor and/or supervisor discharged their duty of due diligence and he did not consider the issue of due diligence by Jarvis in his opinions;

ix. That he could not point to a case with similar facts where a conviction was obtained; and

x. He agreed there is no evidence to conclude that the plaintiff had to work outside the side rails of the stepladder.

[46] His opinion regarding ladder orientation to the wall was speculation.

[47] Mr. Chappell did not unpack the legislated site distinctions, namely construction, industrial and extended worksites or the concept of segregated work areas within the same project.

[48] The defendant’s retained Mr. Ronald Jeakens. He was not shaken on cross-examinations, rather his observations and conclusions were enhanced. His report was structured and responsive to the question posed. His positions regarding the legislation were nuanced and insightful.

[49] Although he responded to questions in the context that the plaintiff, for the purpose of the report, was a worker under the OHSA, Mr. Jeakens was correctly of the view the plaintiff was not. Further, he adverted to the concept of dual jurisdictions and the extended workplace – church, school or golf course to underscore the inapplicability of the two regulations to the church undertaking even if the plaintiff was a worker.

[50] He adverted to the uncontested due diligence precautions applied by Mr. Jarvis as follows:

i. Prior to the commencement of painting in November 2010, Jarvis asked all the volunteers if they were comfortable with the assigned tasks and use of ladders, that all stated they were and the plaintiff confirmed he had done this type of activity before volunteering for the church;

ii. Between November 2010 and February 1, 2011 Jarvis observed all volunteers painting. He ensured the setup and use of the ladders were adequate – stability, ascending/descending the ladders, using 3 point contact and maintaining proper body placement;

iii. Through observation and questioning Jarvis was comfortable that all volunteers had the basic knowledge and ability to complete the painting;

iv. On February 1, 2011 when the plaintiff proposed to replace the moulding, Jarvis iterated the preference that the paint task was his preference and asked the plaintiff as to whether he was comfortable completing this task and whether he had done this previously. The plaintiff confirmed he was and had.

v. Jarvis observed the plaintiff over the period of an hour ascending and descending the step ladder and had no concerns for the plaintiff’s safety

[51] Mr. Jeakens confirmed that the missing pail shelf did not affect ladder integrity, that the eight foot ladder for a twelve foot work level is adequate. He confirmed that even if the OHSA regulations did apply, there is no substantive issue with the incident use of the stepladder under the Act or regulations.

[52] He explained the usual context for scaffold use. He referenced the dry, flat stable floor on which the plaintiff’s stepladder was located and concluded the conditions in the church contraindicated scaffold use.

[53] In Mr. Jeakens’ opinion, as inspector on this worksite tableau and if the volunteer paint crew was caught under the auspices of the OHSA, he would not have been concerned for breach of the statute, even under O. Reg. 213/91.

[54] In conclusion, I am appreciative of the analysis offered by Mr. Jeakens. He explained in a structured and effective fashion the pertinent layers of regulation contained in the Act. He did not overreach and buttressed his opinion with substantive context.

[55] Mr. Chappell, after cross-examination, essentially conceded that the only breach of the OHSA he could discern was the failure to notify and that was unconnected to causation.

[56] I am persuaded that a prosecution under the OHSA in the circumstances depicted at bar, in the context of the plaintiff as worker, would be dismissed, if brought at all.

[57] The exercise was beneficial. The standards articulated in the OHSA are for the most part an attempt to legislate common sense. These standards do not apply to volunteers; however, the analysis applied by an inspector in assessing a set of circumstances for the purposes of statutory compliance has similarities to the analysis of compliance with the occupier’s atattory standard of care and the plaintiff’s assumption of risk.

Positions of the Parties

[58] The plaintiffs’ position is that the defendant was negligent in failing to supervise the plaintiff, by failing to prevent the plaintiff from proceeding with the mould installation, failing to supply a hard hat, work boots and fall arrest equipment, the ladder was defective and the defendant ought to have supplied scaffolding.

[59] The defendant’s position is that the eight foot stepladder was appropriate for the task. It met standards for stability and measurement and was suitable for work at the twelve foot height. The defendant took reasonable steps to ensure safe ladder use first by asking the right questions of the volunteers and secondly by taking the time to observe the painters’ safe ladder use practices over the preceding several weeks. The work site was flat, stable and clear if debris. The use of fall arrest equipment at the six foot level is not a statutory requirement nor is it a normative in practice. The claim regarding work boots and hard hats ignores context. Lastly, the cause of the fall is not in evidence, not because it is known and was overlooked, rather because no one witnessed the fall and the plaintiff does not recall.

Principles Applied

[60] This is a proper case for summary judgment. The essential facts are uncontested. The application of the law of occupiers’ liability to these facts is straightforward. The evidence adduced on the motion records informs a full appreciation of the case before the Court. The narrative is not complicated and is uncontested. Credibility is not a serious issue. Mr. Chappell’s written opinion was denuded of efficacy on cross-examination. The plaintiff’s amnesia cannot be expected to resolve with a trial – he has no recall of the events of the fall and immediately before. There is no reason to expect a different result at trial. The dissonance lies in not on the facts, rather the implications. The imposition of a trial in these circumstances would not be proportionate or expeditious. There is no requirement here for resort to Rules 20.04(2.1) or (2.2).

[61] Conduct is negligent if it creates an objectively unreasonable risk of harm. The facts are that the defendant invited the plaintiff to volunteer his time and energy as member of a paint crew. The plaintiff accepted with vigour. He was queried as to his experience and competency working from a stepladder. He was age 67. He said he was experienced. He was instructed regarding the 3-point expectation. He used the incident ladder over several weeks of painting. No one complained about the stepladder’s suitability. Jarvis used it himself and was confident in its stability. Jarvis observed the plaintiff’s work function over that time and was confident in his competency. The plaintiff did not ask for ground support at any time.

[62] On the day of the injury, the plaintiff initiated installation of a twenty-four inch piece of quarter round at the ceiling. He was advised of the defendant’s preference to focus on the paint-work. He was queried as to his experience for this work genre. The plaintiff confirmed he did similar projects at home all the time. Jarvis depicted the plaintiff’s interest in the installation as insistent.

[63] There was no objectively unreasonable risk of harm inherent in the tableau. The stepladder met specifications relating to stability and dimension. The height of the stepladder was appropriate for work at twelve feet. The base was flat, stable and free of debris. The plaintiff was observed ascending and descending the stepladder over the hour before he fell. The plaintiff did not ask for a ground-man. The use of a stepladder does not inherently constitute an objectively unreasonable risk of harm. I agree with the defendant’s position regarding fall arrest equipment, hard hat and work boots.

[64] That the worksite tableau in the context of worker population did not contravene the OHSA and regulations is not dispositive, rather it is an indicator of a reasonably safe environment.

[65] The defendant provided a reasonably safe environment that ensured the reasonable safety of the plaintiff. The plaintiff has not produced any evidence to establish any defect or problem with the ladder or any other equipment. The plaintiff’s claim on that ground must fail.

[66] The defendant provided a stable ladder, a flat and stable working surface, appropriate ladder use instruction and maintained general compliance observations over many weeks and hours. Jarvis honoured reasonable observation and monitoring expectations. He was not required to maintain continuous visual contact with the plaintiff. The furthest the plaintiff would be from the floor was six feet. Jarvis attempted and failed to discourage the plaintiff from the repair. Jarvis was not in a position of authority over the plaintiff.

[67] Even if it could be said that the tableau presented an objectively unreasonable risk of harm, it was the plaintiff who undertook this task of his own volition contrary to instructions from Jarvis. He assumed the variation in risk. The defendant asked for paint volunteers. The plaintiff was not asked to install trim. This work was beyond Jarvis’ purview. Further, there were no witnesses to the fall. The plaintiff has no recall. Proof of liability rests with the plaintiff. The connection between alleged negligence and damages has to be made out based on evidence. There are as many ways to fall or lose balance as imagination will allow. The plaintiffs do not have evidence as to the cause or mechanics of the fall. The requisite nexus could only be made by speculation and conjecture.

[68] I feel badly for the plaintiff. The situation is truly unfortunate. That said, I cannot allow sympathy to overrule principle. I am obliged to take the facts and apply the law as they are.

[69] Accordingly, the motion for summary judgment dismissing the plaintiffs’ claims is granted. If costs are an issue, the parties are to deliver brief submission within sixty days.

The Honourable Mr. Justice Rick Leroy

Released: January 5, 2017