Court File and Parties

OTTAWA COURT FILE NO.: 11-50976 DATE: 20180730 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: SHARON LEE ARMSTRONG and DERIK CHORNOBEY, Plaintiffs – and – GALLAGHER’S GARAGE LTD. and BRIAN HENRY GALLAGHER, Defendants

COUNSEL: Éliane Lachaîne and John Hollander, for the Plaintiffs Colin Dubeau and Alessia Petricone-Westwood, for the Defendants

HEARD at Ottawa: 18, 19, 20 and 21 June 2018.

BEFORE: Mew J.

REASONS FOR JUDGMENT

[1] What is the standard of care owed by an employer to a prospective employee who is asked to demonstrate that she can handle the physical aspects of the job she is applying for and is injured in the course of doing so?

[2] That is the issue which lies at the core of this action, brought by Sharon Armstrong, who suffered an L4 vertebrae burst fracture while attempting to hitch a six foot by twelve foot U-Haul trailer to the back of a truck.

[3] The incident occurred during the course of a job interview which Ms. Armstrong was attending at Gallagher’s Garage Ltd., which operates a U-Haul agency in Kanata. She had applied to be a customer service representative there. One of the job requirements was that she be able to hitch trailers to customers’ vehicles. The accident happened when she was trying to demonstrate that she could.

[4] The plaintiffs say that Gallagher’s Garage Ltd., and Brian Gallagher, the company’s president, who was conducting the “demonstration” part of the interview, owed her a duty of care and breached that duty by unreasonably exposing her to the risk of injury. The defendants say that what happened was an unfortunate accident, for which no one bears civil liability.

[5] By agreement of the parties, and order of the pre-trial judge, the issues of liability and damages were bifurcated. Accordingly, this trial proceeded on the issue of liability only.

[6] While it has no bearing on my decision on liability, I note for the record that by order of Pelletier J. dated 10 April 2018, the plaintiffs were permitted to amend the statement of claim. I am advised that following these amendments, which include an allegation that the defendants “stood in the place of an employer” with respect to Ms. Armstrong, the defendants have commenced an application to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”), which has exclusive jurisdiction to determine whether a personal injury action against an employer is barred by operation of s. 28 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. According to that provision, a worker employed by an employer covered by the Act is not entitled to commence an action against that employer in respect of a personal injury caused by an accident occurring in the course of employment.

[7] Pelletier J. declined to grant a stay of this action pending a determination by WSIAT of whether the plaintiffs are entitled to maintain their action against the defendants or not.

[8] Six witnesses gave evidence at trial: Ms. Armstrong, Mr. Gallagher, Deborah Hickey (Mr. Gallagher’s daughter), two expert witnesses, and Ms. Armstrong’s family doctor.

Facts

[9] At the time of the incident, Ms. Armstrong was 54 years old. She was 5 feet 4 inches tall and testified that she weighed between 120 and 125 pounds.

[10] She had been out of work for nearly a year. Her last job had been working at a fast food franchise as an in-store manager. Over the years, she had worked in various food industry positions, including in a chicken processing plant. She had also been the manager of a cleaning business, of a resort camp, and had her own sewing business for a period of time. And she had worked as a driver and dispatcher, mainly for pharmacies, but also including liquor delivery and picking up supplies for restaurants.

[11] The plaintiff’s interviews with the defendants took place on 27 March and 31 March 2009. By that time, Ms. Armstrong’s employment insurance benefits had run out. She was highly motivated to find another job. On a questionnaire which she completed for the defendants, in response to a question “what kind of work are you not willing to do?”, she wrote, no doubt tongue in cheek, “dig ditches”.

[12] The job posting at a job bank which led Ms. Armstrong to those interviews was for a “Customer Service Representative (U-Haul & Service Advisor)”. The advertisement was placed by Deborah Hickey on behalf of the corporate defendant. She explained how she had completed the advertisement on-line, using various drop down options that were presented to her.

[13] The job was a good one from Ms. Armstrong’s perspective. Thirty hours per week at an hourly rate that exceeded the minimum wage in force at the time. Plus a whole host of benefits, including extended health care.

[14] The job posting said that essential skills required, chosen by Ms. Hickey from the drop down menu, included “Reading text, Document use, Numeracy, Writing, Oral communication, Working with others, Problem solving, Decision making, Critical thinking, Job task planning and organizing, Significant use of memory, Finding information, Computer use, Continuous learning”.

[15] The business profile offered in the advertisement indicated that Gallagher’s Garage was a “family owned automotive repair garage” and “a U-Haul dealer”. Specific tasks of the position included processing money, clerical duties, working with minimal supervision and processing telephone calls.

[16] Under a heading “Weight Handling”, Ms. Hickey selected the option “More than 45 kg (100 lbs)”.

[17] Ms. Armstrong said that most of what was advertised were things she knew she could do. Although, when she applied for the job, she did not know what sort of weight handling would be involved, she believed that she could meet that requirement. She said she was familiar with weight handling techniques and had handled loads of up to 100 lbs before, including moving buckets of chicken pieces, weighing between 85 lbs and 100 lbs, when she had worked at the chicken processing place. But she had never lifted and hooked up a trailer before.

[18] The first interview was with Debbie Hickey and Brian Gallagher. She was asked about weight handling. She was told that it would involve hooking trailers to vehicles. Ms. Armstrong said that she might look small, but she had muscles in her arms and that it would not take her long to get up to handling weight. She rolled up a sleeve and flexed her bicep to further make the point.

[19] Both Mr. Gallagher and Ms. Hickey made notes at or immediately following that interview. Mr. Gallagher wrote “I wonder if she could handle 6 x 12 trailer”. Ms. Hickey wrote “Can physically lift?”.

[20] Mr. Gallagher and Ms. Hickey each testified that they were reassured by Ms. Armstrong’s answers concerning her ability to handle weight.

[21] Ms. Armstrong went for a second interview on 31 March 2009. She was one of three candidates who had a second interview. The first part of the interview was conducted by Brian Gallagher’s wife. At the end of that part of the interview, Ms. Gallagher told Ms. Armstrong that her husband would like to see her outside in the yard. Ms. Armstrong went out to see Mr. Gallagher who said that he wanted her to hook a trailer up to a truck. Mr. Gallagher backed a truck up towards a trailer that was static. Ms. Armstrong had to direct him backwards so that she could line up the hitch with the trailer. According to Mr. Gallagher, Ms. Armstrong successfully guided the truck to the right place to enable her to attach the trailer.

[22] The trailer in question was a six foot by twelve foot tandem axle box trailer. Ms. Armstrong was not told how much the trailer weighed or whether there was anything stored inside it. The trailer had what was described as a “tongue” – essentially a V-shaped wedge at the front of the box, with a coupler mechanism at the front and safety chains attached to each side of the V-shaped tongue. The objective was to attach the tongue coupler socket to the ball of the hitch attached to the back of Mr. Gallagher’s truck.

[23] Mr. Gallagher gave Ms. Armstrong a pair of work gloves. They were too big for her. She was not provided with any other equipment. She initially straddled the trailer tongue, with her feet facing the back of the truck and the tip of the trailer tongue a couple of feet from her. However, before she had started to lift the tongue, she says that Mr. Gallagher said to her that he found it better to stand on one side and lift with the chains with both feet on the same side of the trailer.

[24] Ms. Armstrong says that she did as she was told. With her feet and body still facing the back of the truck, and the trailer tongue to her left, she grabbed onto a chain with each of her hands and lifted the trailer tongue off the ground that it had been resting on. She explained how her left arm was extended out towards the left side of the tongue. She kept her back straight so that she could lift with her knees and arms. She had lifted the tongue perhaps eight to ten inches off the ground when she heard a pop. She then does not remember anything until she was on her knees with the truck bumper in front of her. She remembers Mr. Gallagher asking her if she was OK and responding “I don’t think I can do this job”. She declined Mr. Gallagher’s suggestion of calling an ambulance saying that she thought she had just pulled a muscle in her back very badly. She made her way back to the waiting room where she took some Tylenol. She was eventually able to get back into her vehicle and drive home although she does not remember the drive.

[25] She was subsequently diagnosed as having suffered a burst fracture of her L4 vertebrae.

[26] Mr. Gallagher’s recollection of the incident is different. He acknowledged at trial that when Ms. Armstrong initially went to straddle the tongue, he suggested that she not do that. His reasoning was that she would have to twist sideways. He told her that he usually lifted using the chains and bending his legs. He says that Ms. Armstrong then positioned herself with her feet and body pointing towards the tongue of the trailer. She grabbed the chains and started to lift the trailer. About half-way through, she dropped. She was clearly in pain. This evidence differed somewhat to Mr. Gallagher’s discovery evidence. Then he said that “she was starting to lift [the trailer] the proper way”. He explained that he had been “rushed” at his discovery and had not given a complete account of what had occurred.

[27] Ms. Armstrong’s medical history was raised by the defendants. In 2006, her family doctor, Dr. Susanna McCarthy had recommended that she have a bone scan. Due to a breakdown in communications, it was not until July 2007 that Dr. McCarthy reviewed the bone density scan with Ms. Armstrong. Although Dr. McCarthy’s note indicates that the diagnosis was osteoporosis, Ms. Armstrong claimed she had not been given that diagnosis, but did acknowledge that Dr. McCarthy had told her that she had “thin bones”. Although Dr. McCarthy prescribed medication for osteoporosis, it appears that by the time of her interview at Gallagher’s Garage, Ms. Armstrong was no longer taking the medication (due to its expense). Further, although she had taken a calcium supplement for a while, she was not doing so in March 2009.

[28] Dr. McCarthy said that while generally her practice is to encourage people with osteoporosis to be active, they should not lift heavy objects, shovel snow or engage in similar activities, because of the greater risk of fracture. However, Dr. McCarthy had no independent recollection of having had such a discussion with Ms. Armstrong.

[29] Neither Mr. Gallagher nor Ms. Hickey asked Ms. Armstrong about her health (Mr. Gallagher did not believe that he was allowed to). Nor did Ms. Armstrong disclose that she had “thin bones”.

[30] Mr. Gallagher believes that the weight involved in lifting the trailer was in the range of 50 to 60 lbs. He acknowledges, however, that he had never weighed the neck of the trailer.

[31] There was no other evidence at trial of the weight actually lifted by Ms. Armstrong when she attempted to hitch the trailer to Mr. Gallagher’s vehicle (the trailer as a whole, of course, is much heavier – 1,920 pounds (unloaded) – but much of its weight is borne by the trailer’s tandem axle).

[32] The plaintiff’s biomechanical expert, Dr. Lamontagne appears to have assumed that the weight lifted by Ms. Armstrong was 100 lbs. That figure, of course, is consistent with what was in the job advertisement that Ms. Armstrong responded to. Mr. Gallagher explained that the 100 lbs weight handling level was selected because he wanted to make sure he wasn’t lying about the weight involved. He thought it better to overstate rather than understate the weight handling requirements of the job. According to Ms. Hickey, 100 lbs was the heaviest weight in the drop down options on the on-line form that she filled in.

[33] In the 30 years that Mr. Gallagher has been a U-Haul agent, he has never seen or heard of anyone suffering a type of injury that Ms. Armstrong did. His daughter (now 48) and his wife (now 68) have routinely hitched trailers onto vehicles. The individual who was eventually hired to do the job that Ms. Armstrong was competing for, was a woman of approximately 40 to 50 years of age, who was also asked to demonstrate hitching a trailer during her interview and who went on, during approximately one and a half years of employment with the defendants, and once she had been trained, to hook up 95% of the trailers rented by the defendants’ customers.

[34] A few years after the incident involving Ms. Armstrong, U-Haul made available portable jacks for use with hitching and unhitching trailers. The defendants purchased one. Ms. Hickey still uses it. As she put it, “any physical labour I don’t have to do is good”, so she uses the jack when she can. But these jacks were not being sold by U-Haul in 2009.

The Experts

[35] Each side called an expert in biomechanics. Dr. Mario Lamontagne, who recently retired as a full professor at the School of Human Kinetics, University of Ottawa was called by the plaintiffs. Dr. Robert Parkinson, an injury biomechanics specialist with the consulting firm, 30 Forensic Engineering, was called by the defendants.

[36] Dr. Lamontagne delivered four reports and, additionally, a DVD containing an animation of the two styles of lifting an object similar to that lifted by Ms. Armstrong– the straddle and the side lift. Dr. Parkinson’s four reports were, essentially, delivered in response to each of Dr. Lamontagne’s reports.

[37] Both experts were asked to opine on the following questions:

1. Please assume that Ms. Armstrong would have lifted the trailer in the manner that she says. Then please assume that she lifted the trailer in the manner indicated by the defendant. With those assumptions, what were the principles of biomechanics that you believe were involved in the motion of her lifting the trailer?
2. Please assume that Ms. Armstrong suffered the injuries identified in the reports attached. In your opinion, was it more likely than not that the motion of her lifting the trailer caused or contributed to the injury she sustained? Please explain your opinion.
3. In your experience, what other method should Ms. Armstrong have used to lift the trailer without risk of injury such as that which she sustained?

[38] Both experts used modelling techniques to assist them in answering these questions. Dr. Lamontagne preferred a dynamic modelling process from which estimations of the spine compression load generated by the two types of lift described in the questions could be made. The other approach, preferred by Dr. Parkinson, was the use of a static strength prediction program.

[39] On the first question, Dr. Lamontagne acknowledged that the relationship between lifting and lower back disorder is complex and depends on a multitude of risk factors. His modelling approach included using a laboratory simulation of the lifting of a trailer tongue using both the straddle and side positions. Dr. Lamontagne concluded that the straddle lifting required less lumbar extension movement, better spine angles and less distance between the lifted weight and the ankle or spine and, consequently, less compression load. While acknowledging that there are no weight handling standards directly applicable to the defendants’ business, Dr. Lamontagne’s analysis was informed by certain equations propounded by the National Institute for Occupational Safety and Health (“NIOSH”) in the United States. The NIOSH equations are based on a load constant of 23 kgs.

[40] Dr. Lamontagne expressed the view that for a woman of Ms. Armstrong’s age, lifting a mass of 45.5 kgs (approximately 100 lbs) would create a very large risk for injury to the lumbar spine.

[41] Dr. Parkinson estimated that Ms. Armstrong’s spine should have been able to tolerate 4800 newtons of force (one newton is the force needed to accelerate one kilogram of mass at the rate of one metre per second squared in direction of the applied force) and that, even assuming a lift of 45.5 kgs, the compressive strength of Ms. Armstrong’s spine in the region of injury would be approximately 4772 newtons. Dr. Parkinson would therefore not have predicted Ms. Armstrong’s injury.

[42] Both of the experts acknowledged that there are many variables that could affect their views. The weight of the lift. Flexion of the spine. Co-contraction (being the simultaneous activation of antagonist muscles in and around a joint). The quickness of the lift. The adoption of asymmetric postures (for example, if the lift had been performed by Ms. Armstrong in the manner she claims – a side lift while she faced the back of the truck – both experts agree that the risk of injury would increase). Poor grip (for instance, the use of gloves that were too big and lifting using chains). Uneven ground.

[43] Dr. Lamontagne expressed the opinion that with so many variables, it would not take much, applying Dr. Parkinson’s estimates, to put Ms. Armstrong in the danger zone.

[44] The defence points to the unsuitability of the NIOSH equation and other similar tables – all of which assume repetitive lifting – as the basis for determining single lift tolerances. Furthermore, whereas the modelling was based on lifting a weight of 45.5 kg (100 lbs), the uncontradicted evidence of Mr. Gallagher is that he believed the weight of the trailer to be 50 to 60 lbs.

[45] There were a number of other factors which the experts discussed. For instance, Dr. Lamontagne suggested that a person under stress may behave differently when lifting. Temperature could be a factor. How warmed up the muscles are could also be a factor. The speed of the lift, mentioned already, could reduce the ability of vertebrae to tolerate the force of a lift. The influence, if any, that some or all of these factors may have had on the subject incident is unknown.

[46] Of note, Dr. Parkinson did concede that Ms. Armstrong’s osteoporosis would not have been a significant factor in his modelling and would not have affected his conclusions.

Issues

[47] There is no dispute that Ms. Armstrong was injured when she attempted to lift the trailer at the defendants’ premises and that the attempted lift was the proximate cause of her injury. What falls to be determined is whether her injury resulted from a breach of a duty owed to her by the defendants.

[48] Accordingly, the contentious issues to be resolved are:

1. Whether the defendants owed the plaintiff a duty of care; and
2. Whether the defendants’ behaviour breached the standard of care.

Discussion

[49] This is an unusual case. The expert evidence, while helpful in terms of providing an education on issues relating to biomechanics generally and weight handling in particular, was of limited assistance on the core issue of whether, if the defendants owed a duty of care to Ms. Armstrong in the circumstances of this case, that duty was breached.

Duty of Care

[50] The current Canadian approach to determining whether there is a duty of care is conveniently summarised by Perell J. in LBP Holdings Ltd. v. Hycroft Mining Corporation, 2017 ONSC 6342, at para. 115:

… The first step is to determine whether the case falls within a recognized category of case. In Canada, if the relationship between the plaintiff and the defendant does not fall within a recognized class whose members have a duty of care to others, then whether a duty of care to another exists involves satisfying the requirements of the next three steps: (1) foreseeability, in the sense that the defendant ought to have contemplated that the plaintiff would be affected by the defendant's conduct; (2) sufficient proximity, in the sense that the relationship between the plaintiff and the defendant is sufficiently close prima facie to give rise to a duty of care; and (3) the absence of overriding policy considerations that would negate any prima facie duty established by foreseeability and proximity. …

[51] Whether or not something is “reasonably foreseeable” is an objective test. The question is properly focussed on whether foreseeability was present prior to the incident occurring and not with the aid of perfect hindsight: Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19 at para. 53.

[52] While many of the arguments of counsel focused on the relationship between the plaintiff, a prospective employee, and the corporate defendant, a prospective employer, the defendants were also occupiers of the premises on which the incident occurred. Accordingly, the common law duty of care is superseded by section 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, which provides:

(1) 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.

(2) 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 on the premises.

(3) 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.

[53] Section 4(1) of the Occupiers’ Liability Act addresses risks willingly assumed and provides:

The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

[54] Ms. Armstrong entered onto the defendants’ premises and, while there, engaged in an activity – attempting to hitch a trailer to a vehicle – which resulted in her injury. The circumstances therefore fall squarely within the scope of an occupiers’ duty under s. 3(1) of the Occupiers’ Liability Act.

[55] The plaintiffs also posit the duty of care owed by the defendants as akin to an employment relationship. The nature of the duty owed by an employer to an employee is described in G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Carswell, 2010) at p. 577-78 as follows:

An employer is obliged to take reasonable care for the safety of his employees. The master or employer must adopt whatever reasonable precautions may be necessary to protect his servant or employee from dangers inherent in the work the latter is performing, whether such danger arises from the premises where the work is undertaken, or from the machinery or the tools which the servant is using. The master or employer must take reasonable care that the plant and property used in the business on which the servant is employed are safe.

[56] As Professor Fridman points out at p. 575 of his text, the duty of care of an occupier is less onerous than the duty of an employer.

[57] In considering the nature and scope of the duty of care owed by the defendants to Ms. Armstrong, it makes little sense that the duty of care owed to a prospective employee would be less than that owed to an actual employee.

[58] In so concluding I make no finding as to whether something akin to a common-law employment relationship had already been formed. Nor do I purport to pronounce on the more specific issue of whether an employment relationship existed for the purposes of the Workplace Safety and Insurance Act, 1997, a question that is outwith my jurisdiction.

[59] What I do find is that the duty of care owed by the defendants to Ms. Armstrong was to take such care for her safety as was reasonable in all of the circumstances to ensure that she would be reasonably safe while on the premises, including her participation in the activities being carried on there.

[60] Courts should take a “common sense” approach to the determination of what care is reasonable in all of the circumstances. The fact that something is possible does not mean that it is reasonably foreseeable. See Rankin, at paras. 46 and 50.

[61] Common sense dictates that it is foreseeable that asking anyone, let alone someone in the position of Ms. Armstrong, to lift up a heavy trailer and to hook it onto a vehicle, exposes that person to the risk of harm through injury.

[62] Accordingly, I conclude that the defendants owed a duty of care to Ms. Armstrong.

Standard of Care

[63] In determining whether or not an occupier has observed the duty of care, the general principles of negligence law would appear to apply (Fridman at p. 563).

[64] The plaintiff argues that the defendants’ standard of care should be informed by the NIOSH equation and, in turn, by the Canada Labour Code, which, although not directly applicable to a provincial enterprise, provides for a 23 kg (50 lbs) restriction on the lifting or carrying of loads by employees who are office workers and whose primary task do not include manual lifting or carrying: Canada Occupational Health and Safety Regulations, SOR/86-304, s. 14.47.

[65] Relying on Dr. Lamontagne’s report, the plaintiffs argue that the defendants breached their duty by instructing Ms. Armstrong to lift a load of perhaps more than 100 lbs in less than optimal conditions; by failing to find out whether she had adequate proper training and physical abilities; by failing to tell her how heavy the weight was that she was about to lift; and by failing to provide her with proper instructions or appropriate equipment (such as gloves that fitted).

[66] The plaintiffs refute the defendants’ evidence that they could not have inquired about Ms. Armstrong’s health. Although generally speaking, a prospective employer is not allowed to make inquiries about an employee’s health, s. 11(1) of the Human Rights Code, R.S.O. 1990, c. H. 19, permits the asking of questions at a personal employment interview that would otherwise be prohibited where the requirement qualification or factor is reasonable and bona fide in the circumstances.

[67] The defendants say that they did nothing wrong and could not have reasonably foreseen the injury to Ms. Armstrong. The only evidence of how much the trailer weighed was provided by Mr. Gallagher, who estimated between 50 and 60 lbs. The standards referred to by the plaintiffs are not helpful guides as to what was reasonable because they are based on jobs involving repeated lifting. By contrast, Ms. Armstrong conducted only one lift and, had she gone on to be employed, while she would have to have lifted trailers perhaps as much as several times a day, no repetitive lifting would have been involved.

[68] Although, had Ms. Armstrong been hired, she would have had further training, the defendants say that they relied on Ms. Armstrong’s representations that she had considerable experience of weight handling. They specifically raised the issue with her at the first interview and were reassured by her assertion that she could handle the weights involved, saying that she had “no problem lifting 100 lbs” or more. Furthermore, during the first interview, Ms. Armstrong had filled in a questionnaire in which she had said that if there was a workplace procedure that could be harmful to her, she would not do it and that if she did not know how to do something, she would seek help.

[69] Mr. Gallagher knew that his wife and his daughter were able to hitch trailers onto trucks. Furthermore, the female employee who was ultimately hired as a result of the competition that Ms. Armstrong participated in was also able to hitch trailers onto trucks. Nothing was evident from Ms. Armstrong’s application and interviews that should have alerted the defendants to the possibility that she was vulnerable to injury.

[70] The defendants also derived support from the opinion of Dr. Parkinson, whose opinion was that the injuries to Ms. Armstrong could not have been foreseen.

[71] The plaintiff responds to some of these arguments by reiterating that the advertised weight handling requirement was 100 lbs. Furthermore, Dr. Parkinson’s calculations of what someone in the position of Ms. Armstrong could tolerate left very little margin for error. Given the number of variables that could affect the load put on her spine, the plaintiffs argue that Dr. Parkinson’s conclusions should not be relied upon.

[72] In assessing these arguments, it is necessary that I first make certain evidentiary findings.

[73] I start with the weight that Ms. Armstrong was required to lift. If it was indeed 100 pounds or more, I would have serious concerns about the reasonableness of the defendants’ conduct, Dr. Parkinson’s opinion notwithstanding. But the evidence does not support such a conclusion.

[74] It is unfortunate that no-one other than Mr. Gallagher either measured or estimated the weight that would be borne by someone undertaking the exercise given to Ms. Armstrong. I accept the evidence of Mr. Gallagher and Ms. Hickey that the advertised weight of 100 pounds was chosen out of an abundance of caution from a range of options presented by the pull-down menu when the advertisement was posted and that the actual weights involved on the day were not that great. They picked the heaviest option so that no-one could say they were misled.

[75] While Mr. Gallagher says the weight involved would have been 50-60 pounds, in the absence of any actual measurement having been undertaken, I am not prepared to accept his estimate as anything more than that. But it does seem to be the case that, whatever the actual weight involved was, Mr. Gallagher’s wife and daughter, as well as the employee who got the job that Ms. Armstrong was applying for, managed to perform similar manoeuvres many times over without incident.

[76] Accordingly, the evidence, such as it is, suggests to me that whatever the actual weight was, it was less than the 100 lbs that formed the basis for the expert’s opinions.

[77] Ms. Armstrong, of course, acknowledges that she told the defendants she could lift weights of 100 pounds or more and, indeed, had experience of having done so in previous jobs. The defendants say that their initial concerns about her ability to do the job were allayed by her assurances.

[78] The weight lifted, while a significant factor, is not the only determinant of the risk of injury. The greater the weight, the greater the risk of injury to the person lifting if it exceeds her tolerance.

[79] As the experts pointed out, multiple other factors can also affect the risk of injury, including flexion of the spine, co-contraction, quickness of the lift, the adoption of asymmetric postures, poor grip, uneven ground and whether the lift was performed in stressful circumstances. Or, to put it in more generic terms, as Dr. Parkinson did in his testimony, how a person goes about doing a task. And the sex, age, size and health of the person lifting are also factors. Other aspects of the incident may also have played a part, including the use of chains to lift the tongue and the wearing of poorly fitting gloves.

[80] No evidence was tendered of industry standards having direct application to the defendants’ business. Various videos of trailers being hooked up to vehicles were shown in which a number of techniques were used. They were of limited assistance. A standard industry practice was not established. Indeed, even if there was a standard method, as the Court of Appeal observed in Mabe Canada Inc. v. United Floor Ltd., 2017 ONCA 879 at para. 8:

… although it is clear that conformity with standard practice in an industry does not necessarily insulate a defendant from a finding of negligence, as the Supreme Court explained in ter Neuzen v. Korn, 1995 SCC 72, [1995] 3 S.C.R. 674, at p. 698, a practice will be judged negligent “only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession” – only where it is “fraught with danger”.

[81] The only two people who saw how the lift was performed were Ms. Armstrong and Mr. Gallagher.

[82] Mr. Gallagher acknowledges that he did not show Ms. Armstrong how to perform the lift. But he did give her some ill-fitting gloves to use.

[83] Both agree that Ms. Armstrong was initially going to perform the lift while straddling the tongue of the trailer. Both agree that it was Mr. Gallagher who suggested that she instead use a side lift, holding the tongue by two of the attached chains.

[84] However, their accounts diverge on the symmetry of the lift that followed.

[85] Mr. Gallagher says that had Ms. Armstrong proceeded with the straddle lift she would have to have twisted sideways to complete the lift. Lifting from the side, with her feet pointed towards the tongue of the trailer, which is what he says he suggested to her, and she then attempted to do, was his preferred approach.

[86] Ms. Armstrong, however, says that when she attempted the side lift, her feet were facing the back of the truck and her torso was twisted.

[87] If the lift was performed in the manner described by Ms. Armstrong, both experts agree that she would be compromised because of the asymmetry of her position.

[88] I tend to think that, having already corrected Ms. Armstrong once when she attempted a straddle lift, Mr. Gallagher would have intervened again if she attempted a side lift with her torso twisted. But that proposition was not put to him when he gave evidence. Nevertheless, I am inclined, on a balance of probabilities, to conclude that Ms. Armstrong attempted the lift in the manner described by Mr. Gallagher.

[89] What should the defendants have done? With the benefit of hindsight perhaps it would have been better if Mr. Gallagher had demonstrated his preferred method of lifting the trailer. Perhaps a better pair of gloves would have helped Ms. Armstrong. Perhaps if Ms. Armstrong had been advised to do a few warm-up stretches before she attempted the lift she would have been less vulnerable to injury. Or if the defendants had asked her about her general health they may have decided she was not the person for a job involving heavy lifting. There is a range of possibilities.

[90] Although the plaintiffs argue that the standard of care should be informed by health and safety standards applicable in other circumstances – such as the Canada Labour Code – I am unwilling to do so in the absence of any evidence of industry practice in the truck and trailer rental business or as to the correct characterisation of the job Ms. Armstrong was competing for (the Labour Code weight restrictions referred to by the plaintiffs apply to “office workers and whose primary task do not include manual lifting or carrying” – it is arguable whether that description matches the advertised job at the defendants’ business).

[91] In considering whether any of the measures discussed above - or others - were things that should have been done, such that a failure to do them would fall below the standard of care, it is appropriate to remember some first principles.

[92] Professor Fridman reminds us, at pages 364-365 of his text, that negligence, or the failure to observe the applicable standard of care, must be differentiated from accident and excusable error. Professors Linden and Feldthusen observe that not all risky conduct attracts liability: virtually everything that anybody does creates some hazard to somebody: Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Toronto: LexisNexis, 2011) at p. 134.

[93] The risk of harm that Ms. Armstrong was exposed to had to be unreasonable: Linden and Feldthusen, at p. 130.

[94] A recent employer’s liability case – Olaiya v. Durham Region Transit Commission, 2017 ONSC 3938 (Div. Ct.), at para 8 – contains the following summary of the applicable standard of care:

In order to establish negligence, the plaintiff must meet the test accepted in Kauffman v. Toronto Transit Commission, 1960 SCC 4 and specifically at page 255 the passage from Paris v. Stepney Borough Council at page 255 of Kauffman, which is as follows:

Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that proof of that fault of omission should be one of two kinds, either to shew that the thing that he did not do is a thing which was commonly done by other persons in like circumstances, or to shew that it was a thing that was so obviously wanted that it would be folly in anyone to neglect to provide it.

[95] It is not clear to me that the defendants’ conduct fell below the requisite standard of care, whether as an occupier or a quasi-employer. They are not to be held to a standard of perfection. Rather, they asked Ms. Armstrong to do something which replicated what Mr. Gallagher, his wife, his daughter and his other employees did, safely and without injury, day in, day out.

[96] Perhaps there were things that the defendants could have done, but in my view, none of these things rise to the level of a failure to do what would be commonly done in similar circumstances (about which the evidence was, as already indicated, of limited assistance). Nor was it obvious that more should have been done to protect the Ms. Armstrong from injury.

[97] As the experts explained, there are many variables involved in the assessment of whether this risk of injury was foreseeable. There is no magic number in terms of the maximum weight that it would have been reasonable to ask Ms. Armstrong to lift. Ultimately, the evidence does not enable me to conclude why Ms. Armstrong was injured. And, consequently – and in the absence of an industry standard or an obvious failure to take such care as was reasonable to ensure that Ms. Armstrong was reasonably safe - there is no basis for me to find that her injury was reasonably foreseeable.

[98] I would add that Ms. Armstrong knew and understood going into her interviews that the job she was competing for involved lifting trailers. She knew it involved heavy lifting. She was game to try. Even though she had been told she had “thin bones”.

[99] Although she did not express it in such terms, Ms. Armstrong was willing to assume the risk that anyone implicitly accepts when they bend and lift an object, the object in question being a trailer. Had I found that the defendants had breached the duty owed by them to Ms. Armstrong under the Occupiers Liability Act or otherwise, I would have found that she willingly assumed the risks inherent in the activity that she undertook and that any liability on the part of the defendants that might otherwise have been engaged would have been negatived as a result.

[100] What happened on 31 March 2009 was an accident. A very unfortunate one. But an accident nonetheless.

Disposition

[101] For the reasons given, the action is dismissed.

[102] I encourage the parties to agree on the issue of costs. Should they not be able to do so, I direct as follows:

a. The defendants should serve a bill of costs on the plaintiffs, accompanied by written submissions within 21 days of the release of these reasons; b. The plaintiffs should serve their response on the defendants within 14 days thereafter; c. The defendants should serve their reply, if any, within 7 days thereafter; d. In all cases, the written submissions should be limited to 4 pages, plus bills of costs; and e. The plaintiffs are invited to submit the bill of costs they would have presented to the court had they been successful in the action.

[103] I would ask counsel for the defendant to collect copies of all of the parties' submissions and arrange to have the package delivered to me at the Court House, 5 Court Street, Kingston K7L 2N4 as soon as the final exchange of materials has been completed. For the avoidance of doubt, no materials should be filed individually; rather, counsel for the defendant should assemble a single package for delivery as described above.

Graeme Mew J.

Released: 30 July 2018

OTTAWA COURT FILE NO.: 11-50976 DATE: 20180730 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: SHARON LEE ARMSTRONG and DERIK CHORNOBEY, Plaintiffs – and – GALLAGHER’S GARAGE LTD. and BRIAN HENRY GALLAGHER, Defendants

REASONS FOR JUDGMENT

Mew J.

Released: 30 July 2018

cited_cases: legislation: - title: "Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 28" - title: "Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 3" - title: "Occupiers’ Liability Act, R.S.O. 1990, c. O.2, s. 4(1)" - title: "Human Rights Code, R.S.O. 1990, c. H. 19, s. 11(1)" - title: "Canada Occupational Health and Safety Regulations, SOR/86-304, s. 14.47" case_law: - title: "LBP Holdings Ltd. v. Hycroft Mining Corporation, 2017 ONSC 6342, at para. 115" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc6342/2017onsc6342.html#par115" - title: "Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, at para. 53" url: "https://www.canlii.org/en/ca/scc/doc/2018/2018scc19/2018scc19.html#par53" - title: "Mabe Canada Inc. v. United Floor Ltd., 2017 ONCA 879, at para. 8" url: "https://www.canlii.org/en/on/onca/doc/2017/2017onca879/2017onca879.html#par8" - title: "ter Neuzen v. Korn, 1995 SCC 72, [1995] 3 S.C.R. 674, at p. 698" url: "https://www.canlii.org/en/ca/scc/doc/1995/1995canlii72/1995canlii72.html" - title: "Olaiya v. Durham Region Transit Commission, 2017 ONSC 3938 (Div. Ct.), at para 8" url: "https://www.canlii.org/en/on/onscdc/doc/2017/2017onsc3938/2017onsc3938.html#par8" - title: "Kauffman v. Toronto Transit Commission, 1960 SCC 4" url: "https://www.canlii.org/en/ca/scc/doc/1960/1960canlii4/1960canlii4.html"