CITATION: Rego v. Walmart, 2017 ONSC 812

COURT FILE NO.: CV-14-1650-00

DATE OF ENDORSEMENT: 2017-01-11

DATE OF RELEASE: 2017-02-16

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIA REGO, Plaintiff

AND:

WALMART, Defendant

BEFORE: Barnes, J. – Handwritten Endorsement

COUNSEL: Barjinder Kalsi and Thomas Long, for the Plaintiff

Stephen G. Ross and David Campbell, for the Defendant

HEARD: August 8, 2016

TRANSCRIPTION OF ENDORSEMENT

INTRODUCTION

Introduction

1The defendant (Walmart) seeks summary judgment. The plaintiff (Maria Rego) opposes the motion.

2Upon reading the material filed and after considering the submissions of counsel, I rule as follows:

(a) Walmart is granted leave to bring this motion pursuant to Rule48.04(1);

(b) Walmart’s motion for summary judgment is dismissed;

(c) All other matters are reserved for the trial.

3Ms. Rego put forward expert evidence from Mr. Ed McCarron. This evidence did not comply with Rule 53.03 of the Rules of Civil Procedure. I have given this evidence no weight.

BACKGROUND FACTS

Background Facts

4On October 21, 2013, Maria Rego was walking in a Walmart store. She fell in the store. Ms. Rego alleges that she fell because she slipped on a puddle of liquid on the floor.

5A number of Walmart employees attended to Ms. Rego shortly after her fall. The incident was captured on the store’s CCTV camera system.

6Ms. Rego says she sustained injuries as a result of the fall. Statements of Claim and Defence have been filed. Examinations for discovery have been completed. On December 14, 2015, a Trial Record was served on the Defendant and filed with the court.

7This action has been set down for trial. A pre-trial conference is scheduled for June 8, 2017 at 10:00 a.m.

ISSUES

Issues

1. Should the Defendant be granted leave to bring the motion for summary judgment after it has consented to the action being placed on the trial list?

Leave to Bring Motion for Summary Judgment

8I have concluded that Walmart shall be granted leave under rule 48.04(1) to bring the motion for summary judgment.

9Rule 48.04(1) prohibits a party who has set an action down for trial and a party who has consented to setting the action down for trial from bringing any motion unless leave of the court is obtained.

10Walmart seeks leave to bring the summary judgment motion. Ms. Rego is opposed. Ms. Rego relies on Theodore Holdings Ltd. v. Anjay Ltd. 1993 Carswell Ont. 429 (Ont. Gen. Div) (Theodore).

11Theodore describes the test for leave, which involves the consideration of 4 factors:

(1) What facts did the party seeking leave know at the time the notice of readiness [now the trial record] was served?

(2) Has there been a substantial or unexpected change in circumstances since the action was set down for trial?

(3) The object of the request for leave; and,

(4) Whether the relief sought would likely be granted if leave were given to bring the motion, despite the fact that a trial record has been served and filed.

12Theodore was followed in 2247267 Ontario Inc. v. 2038697 Ontario Limited, 2014 ONSC 2717.

13In Fruitland Juices Inc. v. Custom Farm Service Inc., 2012 ONSC 4902, [2012] O.J. No. 4050 (Fruitland), the Court held that there is no need to demonstrate that there has been a substantial and unexpected change in circumstances. What is required is that the party seeking leave must show that a successful summary judgment would be more expeditious and cost effective than a trial.

14The Fruitland approach is consistent with the S.C.C.’s new approach to summary judgment motions described in Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R 87 (Hryniak). I prefer the Fruitland approach.

15There is no doubt in this case, should Walmart be successful, that the summary judgment motion would in effect end Ms. Rego’s action and be more expeditious and less time consuming than a trial. Therefore, Walmart is granted leave to bring the Summary Judgment motion.

2. Should Summary Judgment be granted?

Should Summary Judgment be Granted?

16I have concluded that Walmart’s motion for Summary Judgment shall be dismissed.

17Ms. Rego alleges that as a result of liquid on the floor at the Walmart store, she slipped, fell and sustained injuries. Ms. Rego also alleges that Walmart did not have a reasonable system of inspection and maintenance in place at the time of the incident.

18Walmart submits that there was no liquid on the floor; Ms. Rego fell as a result of the fact that she was wearing high heels. Furthermore, even if there was liquid on the floor, Walmart submits that it maintained a reasonable system of inspection and maintenance at the time of the incident and therefore is not liable..

19Section 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c O.2 (the Act) imposes a duty on Walmart, as occupier of the premises, to take such precautionary action to ensure that the premises are reasonably safe for those entering the premises. What is reasonable is a finding of fact, which is determined in reference to all of the particular circumstances: Waldick v. Malcolm (Ont. C.A.), 1989 CanLII 4286 (ON CA) at para. 19, aff’d 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456.

20Ms. Rego asserts that Walmart owed her a duty of care and that Walmart was negligent.

21Therefore two questions must be answered in this action:

(a) Did Ms. Rego slip and fall because of liquid on the Walmart store floor?

(b) Did Walmart have a reasonable system of inspection in place at the time of the incident?

22The test for summary judgment is set out in Rule 20.04(2) of the Rules of Civil Procedure (the Rules). Summary judgment is to be granted where there is no genuine issue requiring a trial: Rule 20.04(2)(a), or where the parties consent and the court deems it appropriate to resolve an issue via summary judgment: Rule 20.04(2)(b).

23Rule 20.04(2.1) permits the court to weigh the evidence; evaluate the credibility of a deponent and draw any reasonable inference from the evidence.

24Hryniak gives some direction as to how this process should unfold:

(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. See Hryniak, at para. 66.

3. Did Ms. Rego slip and fall because of liquid on the Walmart store Floor?

Did Ms. Rego Slip and Fall Because of Liquid on the Floor?

25Walmart submits that the incident is clearly visible on the CCTV footage and shows that there is no liquid or debris where Ms. Rego fell; the behaviour of individuals seen walking through the area where the fall occurred further suggests that there was no liquid or debris in the vicinity. Additionally, the Walmart employees who responded to the fall did not see any liquid or debris on the floor and there were no reports or records of a spill on the date of the incident and at the location where Ms. Rego fell. Walmart submits that on a balance of probabilities this Court should be satisfied that there was no liquid (or debris) on the Walmart floor. Therefore there is no genuine issue for trial and summary judgment should be granted.

26All Walmart employees who tended to Ms. Rego say they did not see any liquid or debris on the floor. The CCTV camera image does not depict any liquid or debris on the floor where Ms. Rego fell.

27Ms. Rego says she did not see any liquid or debris when she fell but later observed a Walmart employee cleaning a liquid from the area where she fell: Transcript of Examination for Discovery, Maria Rego, May 4, 2015 (Rego Transcript), page 13, line 14 to page 14, line 9.

28Ms. Rego identified this Walmart employee at time stamps 16:45:53:45, 16:54:35:04 and 16:55:18:41. The CCTV footage provided does not depict/show this Walmart employee cleaning any liquid.

29Although this employee has been identified by Ms. Rego, Walmart has not sought to provide any evidence from this employee. Also, Ms. Rego seeks to examine the CCTV operator, presumably because the alleged image of the Walmart employee wiping the liquid off the floor is not depicted in the CCTV available footage.

30For the foregoing reasons, I conclude that the record reveals that there is a genuine issue requiring a trial. The credibility of the witnesses who were present at the time of the incident (i.e. the individuals who attended to Ms. Rego) and the evidence of Ms. Rego is in question. The issue of whether there was liquid or debris on the floor is a genuine issue for trial.

31I have concluded that it would not be more expeditious, affordable or proportional in light of the litigation as a whole to utilize the additional powers under Rule 20.04(2.1) to resolve the credibility issues. I elaborate further later on in these reasons.

4. Did Walmart have a reasonable system of inspection and maintenance in place at the time of the incident?

Did Walmart Have a Reasonable System of Inspection and Maintenance?

32Even if I had concluded that I was satisfied, on a balance of probabilities, that there was liquid on the floor of the Walmart store, Walmart can escape liability if it can demonstrate that it discharged its statutory duty or establish that it has met its requisite standard of care if it can demonstrate that it took such precautionary action as reasonable in all the circumstances, to ensure that its premises is reasonably safe for all those entering it: See s. 3(1) of the Occupiers Liability Act.

33Walmart submits that it had a reasonable system of inspection and maintenance in place at the time of the incident.

34Rupinder Kaur, a manager at the Walmart store where the incident occurred, testified that Walmart employees are required to clean up spills and record any spills cleaned up on the back page of the Sweep Log kept for each day. The back page of the Sweep Log for the date of the incident does not indicate any spills at the location where the incident occurred.

35Ms. Rego submits that the issue is whether the existing procedures were adequate in all of the circumstances, which included the presence of bad weather on the day of the incident. In Ms. Rego’s submission, even if Walmart’s system of inspection and maintenance was adequate, there is no evidence it was implemented properly; Walmart has provided no evidence from any of its employees who had the responsibility for implementing the system that day. One such employee is Bibi Ishmail.

36A fuller factual record is required to explore Ms. Rego’s argument about the impact of inclement weather. It is unclear to me from the record what the weather conditions were. I do not find this issue to be determinative for the purposes of this motion. However, the question of whether the Walmart system was actually followed by the employees tasked with doing the actual cleaning remains a genuine issue for trial.

37Walmart provided evidence from Ms. Kaur, store manager, who indicated that the system was working properly. Her testimony indicates is that there was a system in place and no spills were reported/recorded. Her evidence does not address the issue of whether the employees, who had to look out for spills and clean under the system, actually did so. Therefore, I conclude that on the basis of the current record, the issue of whether Walmart maintained a reasonable system of inspection and maintenance remains a genuine issue requiring a trial.

38The resolution of issues of credibility will require questioning of the Walmart employees who say there was no liquid or debris at the scene of the incident. This includes the Walmart employee that Ms. Rego alleges wiped liquid off the floor. Ms. Rego’s credibility is also at issue. Given the number of witnesses and the fact that issues of credibility are paramount, cross-examination at trial is the best avenue. In effect, to carry out this type of inquiry at this motion is simply to duplicate a trial.

39To resolve the issue of whether Walmart’s system of inspection and maintenance was followed on the date of the incident will require the examination of some additional witnesses who were actually implementing the system on the day of the incident.

40It may not be necessary to call all 49 witnesses as described by Ms. Rego; however, some witnesses will be required. The CCTV camera operator may be required as a witness.

41For all these reasons, I conclude that given the nature of the litigation, the use of the additional powers under Rule 20.04(2.1) will result in a process which will simply duplicate a trial.

42Such a process will not be more timely or less expensive. It will not save the parties the expense of a trial and it will not be in the interest of justice to determine this matter without the more wholesome amplification of the record that a trial will provide.

43Walmart’s motion for summary judgment is dismissed. The matter shall proceed to trial. All other matters are reserved to the trial judge.

44Should the parties be unable to agree on costs, a two-page page (or less) cost outline is to be submitted within 15 days.