ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTINE WALSH, KIRK SYNYARD, MATTHEW SYNYARD, HEATHER SYNYARD, BREANNA SYNYARD, minor by her litigation guardian Kirk Synyard, and BRANDON SYNYARD, minor by its litigation guardian Kirk Synyard
Plaintiffs
– and –
EASTER PAPADOPOULOS and ANTONIO PIRONE
Defendants
Justin S. Linden and Lucia Paz, for the Plaintiffs
John W. Bruggeman, for the Defendant Easter Papadopoulos
HEARD: March 15, 2018
G. DOW, J.
REASONS FOR DECISION
1The defendant Easter Papadopoulos (previously identified in the litigation as Easter Walsh, or “Ms. Papadopoulos”) seeks summary judgment dismissing the claim of the plaintiffs, Christine Walsh and her family as against her for damages arising from a slip and fall on the stairs of the home owned by the defendant, Antonio Pirone (“Mr. Pirone”) on December 14, 2014.
Background
2The plaintiff, Christine Walsh (“Ms Walsh”) and Ms. Papadopoulos are sisters and went to a third sister’s place in Paris, Ontario two days earlier to bake for the holidays. This resulted in tubs and baskets being transported in Ms. Papadopoulos’ vehicle which she drove to the residence of her boyfriend, Mr. Pirone, which was in the Scarlett Road and Eglinton Avenue West area, to facilitate Ms. Walsh’s husband meeting them. Ms. Papadopoulos lived in Mississauga and Ms. Walsh resided in Scarborough. Mr. Pirone’s home was a bungalow where he resided with his two teenage daughters. Ms. Papadopoulos had a key to this home given their relationship. Ms. Papadopoulos resided with her three children in a home in Mississauga. The marital status of Mr. Pirone was not determined while Ms. Papadopoulos was not yet divorced and deposed no present intention to become divorced.
3The stairway to the basement can be accessed from a kitchen area or a side door. From the evidence and photographs, there is a landing with a carpet, three triangular shaped steps that turn 90 degrees to the left as one descends which are covered in ceramic tile and then three rectangular or conventional steps covered in wood which completes the stairway. There is a railing against the wall where the triangular steps are their widest.
4It is not disputed the weather was wet and the sisters arrived in late afternoon. Ms. Walsh entered the side door and, carrying a basket using both hands and it was so large it blocked her field of vision to what was at her feet. She failed to negotiate the steps, fell and fractured her right ankle.
5In Ms. Walsh’s affidavit, she deposed being “instructed” by her sister to take the basket she was carrying downstairs. This was not subject to cross-examination although the evidence of Ms. Papadopoulos was she was asked by her sister where she should put the basket and believes telling her “downstairs”.
6Mr. Pirone’s counsel did not participate or attend at the motion advising in writing it “took no position” so long as no costs were being sought against Mr. Pirone. Counsel also consented to dismissal of its cross-claim, again on a without costs basis.
Analysis
7Ms. Papadopoulos submits, correctly in my view, the plaintiff is obliged to put its best foot forward in accordance with Hryniak v. Mauldin 2014 SCC 7. This defendant submits in doing so, the plaintiff cannot succeed. Ms. Papadopoulos raises Ms. Walsh alleging she was an occupier of the premises with the statutory duty of care imposed on her pursuant to Section 3 of the Occupiers Liability Act, R.S.O. 1990, c. O.2. Ms. Papadopoulos’ counsel submitted the evidence could not support a trier of fact concluding Ms. Papadopoulos was within the definition of occupier. That definition, in Section 1, describes an occupier as including individuals in physical possession of the premises, and control over persons allowed to enter. In my view, this means I should evaluate what Ms. Walsh submits to persuade me as the trier of fact. In this matter, in addition to Ms. Papadopoulos having a key to the premises, a text was sent July 25, 2016 from Ms. Papadopoulos to her sister and was relied on. It included a statement that Ms. Papadopoulos spends “probably 80% of the time or 75 at the least” at Mr. Pirone’s residence. It was subsequently qualified to be with regard to her not being aware that anyone else had fallen down the steps. Ms. Walsh also relied on a July 22, 2016 text in which Ms. Papadopoulos described Mr. Pirone as “the closest thing I’ve had to a husband with a man than anyone I have ever been with”. While other evidence which I will not detail challenges the veracity of these statements, it raises on the balance of probabilities, evidence that is capable of being relied on to conclude Ms. Papadopoulos was an occupier for the purpose of the Occupier’s Liability Act, supra, and owed Ms. Walsh a statutory duty under Section 3. Further, Ms. Papadopoulos relied on matrimonial law precedent with regard to what constituted a common-law spouse and directed me to Dover v. Timbers, 2012 ONSC 3230 where the court (at paragraph 48) listed six criteria to evaluate in determining this question, none of which are conclusive. The criteria includes the appearance of the purported spouses to the outside world and how the parties hold out their relationship to outside observers. In this regard, Ms. Walsh again points to the text as evidence that a trier of fact could conclude, the balance of probabilities, that Ms. Papadopoulos was an occupier of the premises. I agree. As a result, I would conclude Ms. Papadopoulos’ motion cannot succeed on this basis.
8Alternatively, counsel for Ms. Papadopoulos submits Ms. Walsh has not shown there is a genuine issue for trial with regard to liability. There is no objective evidence that the steps were unsafe, improperly constructed or maintained. Counsel for Ms. Papadopoulos relies on the absence of any expert evidence opining on some defect in the design or maintenance of the steps. The issue is whether Ms. Papadopoulos’ alleged indication to her sister where she was to carry the basket while it impaired her vision and while unable to utilize the available hand rail to take the basket down the steps could result in the trier of fact concluding a duty of care arose and whether that duty was breached.
9Counsel for Ms. Papadopoulos directed me to decisions such as Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 where comment was made about the absence of evidence that there was something about the steps which indicated they were not in good repair. The court noted (at paragraph 29) “falls occur on stairs found everywhere without anybody being responsible for what is just an accident”. However, in the factual matrix before me, this is complicated by Ms. Papadopoulos indicating the basket was to go downstairs, that the basket was of a size that blocked part of Ms. Walsh’s field of vision and prevented her from using the available handrail. As a result, there is some evidence that a trier of fact could conclude there is liability on a balance of probabilities. That is, the tier of fact may conclude Ms. Papadopoulos owed a duty of care to Ms. Walsh and that duty was breached. For Ms. Papadopoulos to succeed in this motion, it must be shown if there was a duty and that duty was breached, it would not attract even one percent of liability. That has not occurred.
10The parties relied on Hryniak v. Mouldin, supra in support of their respective positions. In my view, the applicable portion of those reasons are contained at paragraph 50, but particularly “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”. Further, at paragraph 51 Justice Karakatsanis states “there may be cases where, given the nature of the issues and the evidence required, the judge cannot make the necessary findings of fact, or apply the legal principles to reach a just and fair determination”. That is my conclusion and, as a result, the motion must be dismissed.
11Similarly, I conclude that the use of the fact finding powers have not allowed me to reach a fair and just adjudication on the merits of this matter at this time.
12In the circumstances, the Supreme Court of Canada in Hryniak at paragraph 78 directs that I consider whether there are any compelling reasons that I not remain seized of the matter. This matter does not appear to have economies to be achieved by applying trial management criteria. I have made no findings of fact on the evidence beyond concluding there are genuine issues for trial with regard to whether Ms. Papadopoulos was an occupier and under the statutory duty imposed by Section 3 of the Occupiers Liability Act, supra or the existence of a duty to care and whether same was breached. In my view, the parties would be better served by having the action now proceed in the normal course. I decline to remain seized of it.
Costs
13In anticipation of success, counsel for Ms. Papadopoulos prepared a costs outline for the entire action which totaled $28,121.32 inclusive of fees, HST and disbursements. The plaintiffs’ counsel submitted the amount was excessive and ought to be limited to $10,000.00 inclusive of fees, HST and disbursements.
14In anticipation of its success, counsel for Ms. Walsh submitted a costs outline in the amount of $4,770.29 inclusive of fees, HST and disbursements on a partial indemnity scale. In my view, the plaintiffs are entitled to their costs on a partial indemnity scale. The amount claimed is reasonable and thus I award the plaintiffs the sum of $4,770.29 inclusive of fees, HST and disbursements payable by the defendant Ms. Papadopoulos within 90 days.
Mr. Justice G. Dow
Released: May 16, 2018
COURT FILE NO.: CV-16-560626
DATE: 20180516
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTINE WALSH, KIRK SYNYARD, MATTHEW SYNYARD, HEATHER SYNYARD, BREANNA SYNYARD, minor by her litigation guardian Kirk Synyard, and BRANDON SYNYARD, minor by its litigation guardian Kirk Synyard
Plaintiffs
– and –
EASTER PAPADOPOULOS and ANTONIO PIRONE
Defendants
REASONS FOR DECISION
Mr. Justice G. Dow
Released: May 16, 2018