COURT FILE NO.: CV-16-560673 DATE: 20180726

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Stephen Drummond Plaintiff – and – The Cadillac Fairview Corporation Limited Defendant

COUNSEL: Shane H. Katz and Dilenthi S. Warakaulle for the Plaintiff Stuart Woody for the Defendant

HEARD: July 10, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] This is an occupier’s liability action with a claim relying on the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

[2] The Plaintiff Stephen Drummond was injured on August 23, 2015, when at approximately 4:30 p.m., he tripped over a skateboard brought to the food court at the Fairview Mall in the City of Toronto. The skateboard was brought to the mall by SS, a twelve-year old boy. SS is not a party to this litigation. Mr. Drummond sues the Defendant, the Cadillac Fairview Corporation Limited, the owner of the mall for occupiers’ liability.

[3] Cadillac Fairview brings a motion for a summary judgment, and it seeks a judgment dismissing Mr. Drummond’s action.

[4] For the reasons that follow, I dismiss Cadillac Fairview’s motion. Instead, I grant judgment to Mr. Drummond. If the parties cannot settle the quantification of damages, Mr. Drummond may set the action down for a trial for an assessment of damages.

B. Procedural and Evidentiary Background

[5] The incident occurred on Sunday, August 23, 2015 at approximately 4:30 p.m.

[6] On September 16, 2016, Mr. Drummond sued Cadillac Fairview.

[7] On February 3, 2017, Cadillac Fairview delivered its Statement of Defence.

[8] On April 5, 2017, Mr. Drummond was examined for discovery.

[9] On April 5, 2017, Paul Pannozzo, Cadillac Fairview’s Manager of Security and Life Safety Services at the Fairview Mall, was examined for discovery. Mr. Pannozzo manages the Security Department at the Mall.

[10] On January 26, 2018, Cadillac Fairview brought a motion for summary judgment.

[11] Cadillac Fairview supported its motion for summary judgment with affidavits from Karvan Afsar dated January 22, 2018 and March 5, 2018 and with excerpts from the transcript of the examination for discovery of Mr. Drummond.

[12] Mr. Afsar is a security guard employed by Cadillac Fairview. He prepared an Incident Report on August 23, 2015 and a Supplementary Incident Report on August 26, 2015. Mr. Afsar reviewed the memorandum books of Rhoodie Issa, Gaurev Sharma, and Addy Kam, three of the five security guards on duty around the time of the incident on August 23, 2015. Mr. Afsar’s memorandum book and the book of Kevin Tablizo, another security guard on duty on August 23, 2015, could not be located.

[13] Mr. Drummond resisted the motion for summary judgment with affidavits from Mr. Drummond dated February 13, 2018 and from Steven Summerville, an expert on security and law enforcement, dated February 14, 2018.

[14] I am not admitting Mr. Summerville’s opinion evidence. He has superb qualifications to give expert evidence, but he opined on matters on which the trier of fact may be expected to have knowledge.

[15] As a general rule, opinion evidence is not admissible; witnesses testify as to the facts which they perceived, not as to the inferences -- that is, the opinions -- that they drew from their perceptions. Graat v. The Queen, [1982] 2 S.C.R. 819. There is, however, an exception for witnesses duly qualified to express an expert's opinion. R. v. Abbey, [1982] 2 S.C.R. 24. There is a two-stage test for the admission of opinion evidence. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. In the first stage, (the threshold stage), the party proffering expert evidence must satisfy the four factors from R. v. Mohan, [1994] 2 S.C.R. 9, which are: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of an exclusionary rule; and (4) qualification as an expert. In the immediate case, Mr. Summerville’s evidence is not necessary to assist the trier of fact in determining whether Cadillac Fairview breached its undoubted duty of care under the Occupiers’ Liability Act. See Meady v. Greyhound Canada Transportation Corp., 2010 ONSC 4519 at paras. 44-48, aff’d 2015 ONCA 6.

[16] Moreover, Mr. Summerville’s opinion was premised on the false assumption that possession of skateboards is prohibited at the Fairview Mall. The true premise is that skateboards, which can be purchased and repaired by mall commercial tenants, are permitted at the mall but skateboarding is prohibited. In other words, it is the use but not the possession of skateboards that is prohibited at the Fairview Mall. In the result, Mr. Summerville’s opinion was not helpful and I do not admit or rely on it.

[17] On March 12, 2018, Mr. Afsar was cross-examined.

[18] The summary judgment motion was argued on July 10, 2018.

C. The Hearsay Evidence

[19] On a motion for summary judgment, under rule 20.02 (1), the affidavits may be made on information and belief, but on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The principles governing the admissibility of evidence are the same as apply at trial save for the limited exception of permitting an affidavit made on information and belief. Sanzone v. Schecter, 2016 ONCA 566 at para. 15; Caithesan v. Amjad, 2016 ONSC 5720 at para. 24.

[20] In the immediate case, both parties submitted and relied on hearsay evidence. I am accepting all of this evidence for the truth of its contents, which is permitted under rule 20.02 (1).

[21] Although hearsay, the evidence would also have been admissible pursuant to the business records exceptions (Ares v. Venner, [1970] S.C.R. 608; Ontario Evidence Act, R.S.O. 1990, c. E.23, s. 35) and the reliability and necessity exception (R. v. Khelawon, 2006 SCC 57) to the rule against hearsay.

D. Legal Background

1. The Test for Summary Judgment

[22] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04 (2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[23] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[24] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04 (2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole. To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings and to fairly and justly adjudicate the issues in the case. Campana v. The City of Mississauga, 2016 ONSC 3421; Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

[25] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial. Dawson v. Rexcraft Storage & Warehouse Inc., [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, [2008] 1 S.C.R. 372 at para. 11. Thus, if the moving party meets the evidentiary burden of producing evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment. Toronto-Dominion Bank v. 466888 Ontario Ltd., 2010 ONSC 3798.

[26] The court does not require a cross-motion for summary judgment when it can decide the issue that is the subject matter of the motion for summary judgment. King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, aff’g 2013 ONSC 6113.

2. Occupier’s Liability

[27] Cadillac Fairview’s duty of care and liability, if any, in this action arises from the Occupiers’ Liability Act. For present purposes, the relevant provisions are sections 1, 2, 3, and 6, which state:

Definitions

1 In this Act,

“occupier” includes,

(a) a person who is in physical possession of premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises; (“occupant”)

Common law duty of care superseded

2 Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. R.S.O. 1990, c. O.2, s. 2.

Occupier’s duty

3 (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.

Idem

(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.

Idem

(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.

Liability where independent contractor

6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.

Idem

(2) Where there is more than one occupier of premises, any benefit accruing by reason of subsection (1) to the occupier who employed the independent contractor shall accrue to all occupiers of the premises.

Idem

(3) Nothing in this section affects any duty of the occupier that is non-delegable at common law or affects any provision in any other Act that provides that an occupier is liable for the negligence of an independent contractor.

[28] The Occupiers’ Liability Act does not impose strict liability, and the presence of a hazard does not in itself lead inevitably to the conclusion that the occupier has breached its duty to take such reasonable care to see that persons on the premises are reasonably safe while on the premises. See Gohm v. York, 2013 ONSC 7118; (Canada) Attorney General v. Ranger, 2011 ONSC 3196 at para. 31; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232 at para. 21. The standard of care for occupiers is one of reasonableness and occupiers are not required to take unrealistic or impractical precautions against known risks. Gohm v. York, 2013 ONSC 7118 at paras. 50-51; Miltenberg v. Metro Inc., 2012 ONSC 1063 at paras. 32-33. The measure of what is reasonable depends on the facts of each case including foreseeability, the gravity of the possible harm, the burden of the cost of preventive measures, industry practice, custom, and regulatory standards applicable to the circumstances. Gohm v. York, 2013 ONSC 7118 at para. 50.

[29] In the leading case of Waldick v. Malcolm, [1991] 2 S.C.R. 456 at p. 472, Justice Iacobucci in the Supreme Court of Canada stated:

After all, the statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation -- thus the proviso 'such care as in all circumstances of the case is reasonable'.

[30] The duty of care imposed on the occupier does not extend to the removal of every possible danger; the standard of care is one of reasonableness and not perfection. Hamilton v. Ontario Corp. No. 2000533 (c.o.b. Toronto Community Housing Corp.), 2017 ONSC 5467; Nandlal v. Toronto Transit Commission, 2014 ONSC 4760; Gohm v. York, 2013 ONSC 7118; George v. Covent Garden Market Corporation, 2007 ONSC 29276, at para. 35; Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (S.C.J.). If a plaintiff is injured on premises, to succeed in an occupier’s liability claim, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury. Gohm v. York, 2013 ONSC 7118, at paras 20-21; Miltenberg v. Metro Inc., 2012 ONSC 1063; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232; St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721 at para. 27 (S.C.J.); Whitlow v. 572008 Ontario Ltd., [1995] O.J. No. 77 (Gen. Div.).

E. Facts

1. Safety and Security at the Fairview Mall

[31] Cadillac Fairview is an Ontario corporation that owns and operates the Fairview Mall at 1800 Sheppard Avenue East in Toronto, Ontario.

[32] Pursuant to a Service Agreement dated June 26, 2013, Cadillac Fairview outsources its housekeeping services to an independent contractor, GDI Services (Canada) LP. Under the Service Agreement, GDI Services is required to report problems encountered in the course of performing work at the mall.

[33] Cadillac Fairview maintains a Security Department at the Fairview Mall that is governed by a set of Standard Operating Procedures. The procedures manual contains directives about, among other things: (a) patrols; (b) guard shift responsibilities; and (c) record keeping including reports for the Security Incident Management System.

[34] Although mall patrons may purchase skate boards sold at the mall and bring skate boards to the mall for repairs, modifications, and maintenance, the Standard Operating Procedures stated that the activity of skateboarding is not permitted at the mall. There are signs posted at the mall’s entrances prohibiting skateboarding. The security guards would regard the use of a skateboard in the mall as prohibited and as a safety hazard. The Standard Operating Procedures manual requires security guards to be alert for inappropriate behaviour, suspicious behaviour, barred persons, soliciting, and other security related issues on the premises at the mall. Security guards are required to enforce the policy that skateboard use is prohibited inside the mall.

[35] The Standard Operating Procedures manual requires security guards to respond quickly to calls for first aid. The guards are directed to offer assistance. They are directed to record the names of victims, to obtain witness statements, to gather physical evidence and to take photos. Security guards are required to maintain memorandum books and record their patrol activities and incidents.

2. The Incident

[36] On Sunday August 23, 2015, five security guards were on duty at the mall; namely: (1) Ms. Issa (8:00 a.m. – 4:00 p.m.); (2) Mr. Sharma (11:00 a.m. – 7:00 p.m.); (3) Mr. Kam (12:00 p.m. – 8:00 p.m.); (4) Mr. Afsar (4:00 p.m. – 12:00 a.m.); and (5) Mr. Tablizo (4:00 p.m. – 12:00 a.m.).

[37] Two of the five memorandum books for the security guards have not been located. The remaining three books do not have entries every 20 minutes as required by the Standard Operating Procedure. The remaining three books do not specify where the securities guards were patrolling in the mall. No photographs were taken of the incident.

[38] Notwithstanding the lack of a corroborating record, I find as a fact that the mall (including the food court area) was routinely being patrolled on August 23, 2015. Mr. Afsar and Mr. Tablizo patrolled together, and their patrols included the food court area. Having regard to the timing of their shift and the timing of the incident, Messrs. Afsar and Tablizo probably patrolled the food area once before the incident. Messrs. Sharma and Kam patrolled the mall including the food court area before the incident.

[39] In the sunny afternoon of August 23, 2016, Mr. Drummond (age 49, born 1967) and his fiancée Julie Yule-Drummond and his daughters AD and RD went to the Fairview Mall.

[40] The same day, SS, a 12-year old boy, and two youth companions went to the mall. There was no record of any incidents involving SS prior to the events of August 23, 2015.

[41] SS brought a skateboard with him. SS entered the mall carrying the skateboard. He was not noticed by any security guard. Had SS been noticed by a security guard, then the security guard would have told SS not to use the skateboard and to hold it secure while at the mall.

[42] At around 4:00 p.m., SS and his young friends went to the brightly-lighted food court. He placed the skateboard under his chair. He played with the skateboard rolling it back and forth under his feet. The skateboard escaped his control and struck and slightly injured one of the cleaning ladies. She asked him to stop playing with the skateboard. She did not report the incident to the security staff.

[43] There is no evidence that the security staff on their regular patrols asked anyone working in the food court, including the cleaning ladies, about whether there was anything that required their attention.

[44] At around 4:30 p.m., SS was still sitting in the food court, when Mr. Drummond and his family went to the food court. The food court was busy. Two cleaning staff were working in the area. The family purchased food at a McDonald’s Restaurant outlet and took chairs in the food court area.

[45] After eating part of his meal, Mr. Drummond went to refill his drink. Upon his return, he did not see and tripped over a skateboard that was on the floor in the aisle of the food court area. He injured his left knee and lower back.

[46] Mr. Drummond believes that he was deliberately tripped by SS, but SS said that he had not realized that the skateboard had rolled away from under his chair.

[47] Mr. Drummond lay prone and injured on the floor. One of the cleaning ladies reported the incident. By Mr. Drummond’s reckoning it took about 30 minutes before three to five security guards arrived to offer assistance. One of the guards realigned his knee, and Mr Drummond refused the offer to call an ambulance for further medical treatment. Mr. Drummond was provided with a wheel chair, and he and his family took a taxi to the emergency department of a hospital.

[48] After the incident, SS was asked to leave the mall and he was told to never again to bring a skateboard to the mall.

F. Discussion

[49] In resisting Cadillac Fairview’s summary judgment motion, Mr. Drummond submitted that there were genuine issues for trial and that the case at bar was inappropriate for a summary judgment. I disagree, but happily for Mr. Drummond, my decision is that he is entitled to a summary judgment on liability to be followed by an assessment of damages.

[50] I am satisfied that Mr. Drummond has proven on the balance of probabilities that Cadillac Fairview breached its statutory duty by failing to take reasonable care to see the patrons entering the mall, including Mr. Drummond, were reasonably safe on the premises.

[51] In its Standard Operating Procedures manual, Cadillac Fairview itself established an appropriate standard of care. It realized that the use of skateboards inside the mall was a hazard and it set a reasonable standard to guard against that hazard, but I find as a fact that Cadillac Fairview failed to meet the reasonable standard that itself had set.

[52] Cadillac Fairview admitted that the use of skateboards inside the mall was a known hazard. It posted signs prohibiting skateboard use inside the mall, and it admitted that if a person entered the mall with a skateboard, the person was to be told by a security guard to secure the skateboard during the person’s visit to the mall. Cadillac Fairview admitted that it required its security guards to patrol the mall to alert themselves whether skateboards were being used in the mall.

[53] However, in the immediate case, the security guard’s patrols and their documentation of the patrols were ineffective. The security guards patrolled, but they did not notice that SS had entered the mall with a skateboard. The security guards did not notice that SS with his skateboard was moving through the mall. When the security guards patrolled the food court, they did not notice that SS had not secured his skateboard. They did not notice that SS was playing with the skateboard under his chair in the food court. Although the security guards were not alerted by the cleaning staff that there had already had been an incident in the food court with the skateboard causing minor harm to a cleaning lady, the security guards did not as part of their patrol make proactive inquiries of anyone in the food court, but rather they waited for incidents to be reported to them.

[54] Cadillac Fairview had a reasonable system in place to guard against the hazards of skateboard use in the mall, but it failed to implement its own policy that would have safeguarded Mr. Drummond. Mr. Drummond has pinpointed the failures of Cadillac Fairview to take such care as in all the circumstances of the case was reasonable to see that persons entering the mall were reasonably safe while in the mall.

[55] It is no defence for Cadillac Fairview to rely on s. 6 of the Occupier’s Liability Act. While GDI Services was an independent contractor, the harm suffered by Mr. Drummond was not caused by any negligence of the cleaning staff. GDI Services was not a security service and the incident did not involve housekeeping services. Cadillac Fairview did not entrust its responsibility for securing the mall from the hazard of skateboard use to GDI Services.

[56] Although it would not have prevented the incident from occurring, the security guards did not follow prescribed procedures for documenting their activities and the incident and the security guards did not take photographs and witness statements as required by their standard and reasonable policies. Cadillac Fairview lost two of the five memorandum books of the security guards.

G. Conclusion

[57] For the above reasons, I grant judgment to Mr. Drummond. If the parties cannot settle the quantification of damages, Mr. Drummond may set the action down for a trial for the assessment of damages.

[58] If the parties cannot agree about the matter of costs of the action to date including the summary judgment motion, they may make submissions in writing, beginning with Mr. Drummond’s submissions within twenty days from the release of these Reasons for Decision followed by Cadillac Fairview’s submissions within a further 20 days.

Perell, J. Released: July 26, 2018