COURT FILE NO.: CV-15-521961
DATE: 20180927
SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E N:
MARYAM MIRSOLTANI, Plaintiff/responding party
- and -
CANADIAN MEMORIAN CHIROPRACTIC COLLEGE, Defendant/moving party
BEFORE: Copeland J.
HEARD: July 30, 2018
COUNSEL: Mr. Shahen A. Alexanian, appearing for the Plaintiff/responding party
Mr. Peter Rollo, appearing for the Defendant/moving party
ENDORSEMENT
[1] The defendant[^1] brings a motion for summary judgment. The plaintiff’s claim involves a fall at the defendant’s premises, and is brought under the Occupiers’ Liability Act, R.S.O. 1990, c. O-2.
[2] The defendant argues that the plaintiff’s claim must fail on the basis that: 1) the defendant discharged its duty to take reasonable care in all the circumstances to keep the premises reasonably safe for people who enter it; and 2) that even if the plaintiff were able to show that there was a breach of the duty, the plaintiff is unable to prove causation.
[3] The plaintiff argues that she can prove both of these elements of her claim, and that summary judgment should be granted in her favour.
Law in relation to summary judgment
[4] As noted above, the parties are in agreement that it is appropriate for the court to decide this case on a motion for summary judgment. The defendant brings the motion. But each side argues that the record supports granting summary judgment in its favour. For this reason, I will not spend time reviewing the case law in relation to summary judgment.
[5] I am satisfied that the record before the court is sufficient for me assess whether there are no genuine issues requiring a trial, and in particular: (1) to make the necessary findings of fact, including any necessary findings of credibility; (2) to apply the law to the facts; and, (3) to assess whether summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
[6] The parties are also in agreement, and it is settled law, that where one party moves for summary judgment, it is open for the court to grant summary judgment in favour of the responding party on the motion without the need for a cross-motion.
[7] The parties to a motion for summary judgment must put their best foot forward. The motions judge should assume that the record on the motion contains, in some form, all of the evidence which would be available for a trial: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26-27, 33, affirmed, 2014 ONCA 878.
[8] For reasons I explain below, I find that I am able to make the necessary findings of fact, including findings of credibility, and apply the law to the facts on a motion for summary judgment. I find that summary judgment is a proportionate, more expeditious, and less expensive means to justly resolve this matter than a trial.
The Nature of the cause of action – Occupiers’ liability
[9] The plaintiff’s claim is framed as claim that the defendant was negligent and breached the duty to take reasonable care in all of the circumstances to keep its premises reasonably safe for persons entering into the premises imposed by s. 3 of the Occupiers’ Liability Act.
[10] There is no issue in this case that the defendant, as the occupier of the premises, owed the plaintiff, as someone who entered the premises, a duty of care. The issues in dispute relate to what the standard of care was (and whether the defendant’s conduct breached it), and causation.
[11] The Occupiers’ Liability Act modernized and harmonized the common law with respect to the duty of occupiers to make their premises reasonably safe.
[12] The duty imposed under s. 3 of the Act is to take such care as in all the circumstances is reasonable to see that persons entering on the premises are reasonably safe while on the premises. The nature of the duty does not vary, but the factors which will be relevant to assessing what constitutes reasonable care will be specific to each fact situation. This is signaled by the language in s. 3 of the Act of taking “such care as in all the circumstances of the case is reasonable”: Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456 at pp. 471-72.
[13] The case law supports consideration of the following types of factors in assessing whether an occupier exercised reasonable care in all of the circumstances: the likelihood that the harm at issue will occur, the gravity or severity of the potential harm, the utility of the object or conduct at issue, the cost of preventive measures, the weather, the time of year, the nature of the premises, local custom, industry practice, and applicable regulatory standards (if any). This list of factors is not exhaustive, and not every one of these factors will be relevant in every case. As s. 3 of the Act states, the issue is whether the care taken by the occupier was reasonable in all of the circumstances: Waldick v. Malcolm, supra at pp. 471-72; Turcotte v. Lewis, 2018 ONCA 292 at para. 45; Porchak v. Pizza, 2016 ONSC 4551 at paras. 29-34.[^2]
[14] Some of the argument before me relied on older common law cases decided prior to the enactment of the Occupiers’ Liability Act. The plaintiff urged that the court be cautious with the older cases, since they use a categorical approach which was not continued when the Occupiers’ Liability Act was enacted.
[15] Counsel for the defendant conceded that the categorical approach from the old common law cases no longer applied under the Occupiers’ Liability Act. However, counsel for the defendant argued that even under Occupiers’ Liability Act, the types of factors considered in the older decisions as a matter of common law still have relevance in that they can be considered as part of the assessment of whether reasonable care was taken in all of the circumstances.
[16] I agree that the older cases still have relevance, although they must be approached with a degree of caution. In this regard, in my view, the law was correctly stated on this issue by Justice J. Ferguson in Davies v. Clarington (Municipality), 2006 CanLII 10212 at paras. 58-59 (ONSC):
The purpose of the Act was to provide clarity and consistency in the application of occupiers’ law and to do away with the former common law “class” system. The common law system established a duty and the applicable standard of care, based on the “class” of visitor to the premises. The Act replaced the “class” system with a general duty to all entrants based on the “neighbour” principle established in Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562, [1932] All E.R. 1 (H.L.) [other citations omitted]
Mann (Next Friend of) v. Calgary (City), [1995] A.J. No. 206 (Q.B.) similarly considered whether the Alberta legislation had also subsumed the application of “unusual danger” or “special circumstances” that would have previously triggered the application of the common law and found that it had. The Occupiers’ Liability Act eliminated the application of the common law’s “unusual danger” and the proper question asked whether the occupier could “… reasonably have foreseen a risk to visitors who exercised ordinary diligence”; at para. 35. Section 2 of the Act expressly subsumes all of the common law related to occupiers’ liability including “unusual danger” or “special circumstances”. Those factors, however, may still be relevant in identifying the applicable standard of care that applies once a duty is found. [emphasis added]
[17] This issue arises in this case because of counsel for the defendant’s reliance on older common law cases decided using the concept of “unusual danger”: see for example McErlean v. Sarel, (1987), 1987 CanLII 4313 (ON CA), 61 O.R. (2d) 396 (ONCA). In my view, the older cases should be approached with a degree of caution. On their facts, they may be useful indicators of the types of circumstances which may be considered in assessing the applicable standard of care, in particular, what is relevant in assessing “all the circumstances”. But the court must bear in mind that under the Occupiers’ Liability Act, there is no legal burden on a plaintiff to fit themselves into a category such as “unusual danger” that previously existed at common law. Rather, the plaintiff’s burden is to show that the defendant did not take such care as would have been reasonable in all of the circumstances.
[18] The legal standard of care imposed on an occupier is one of reasonableness in all of the circumstances. It is not a standard of perfection. There are risks involved in almost all of the activities that ordinary people engage in every day. An occupier is not required to remove all risk: Kerr v. Loblaws, 2007 ONCA 371 at para. 19.
[19] Finally, I note that the fact of a fall, standing alone, is not in and of itself evidence of negligence. A plaintiff bears the burden to show that the occupier breached its duty under the Act: Canada (Attorney General) v. Ranger, 2011 ONSC 3196 at paras. 32-34; St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, 2005 CanLII 23112 at para. 27 (ONSC).
[20] For reasons I will explain below, I find that the plaintiff’s claim fails on the issues of whether the defendant breached the standard of care, and causation. On the record before me, it is plain and obvious that the defendant met the standard of care imposed under the Occupiers’ Liability Act. Thus, I find that there is no genuine issue for trial in relation to liability.
The Factual context
[21] The big picture factual context of this motion is not in dispute. The plaintiff attended at the defendant’s premises for an appointment. On her way in she had no difficulties. But as she was leaving the building, she fell. The fall occurred as she was walking over a mat at the top of a stairwell in the vestibule of the building.
[22] For purposes of the motion, the defendant does not contest the injuries suffered by the plaintiff as a result of the fall, which included fracturing her right wrist.
[23] As I have noted, the defendant does not dispute that as the occupier of the premises, it owed the plaintiff a duty as someone who entered onto the premises.
[24] There are two legal and factual issues in dispute on this motion: 1) whether the defendant failed to maintain the standard of care, which necessarily involves assessing the standard of care; and 2) whether the mat caused her fall. I will address the evidence in relation to each issue in the context of my analysis of each issue.
Is there a genuine issue requiring a trial as to whether the defendant failed to meet the standard of care?
[25] The crux of this issue is whether, considering all of the circumstances, there is a genuine issue requiring a trial as to whether the defendant breached the duty to take reasonable care in all of the circumstances to keep its premises reasonably safe for people who enter it. This is necessarily a fact-specific inquiry.
[26] I am not persuaded that there is a genuine issue for trial in relation to whether the defendant failed to meet the standard of care imposed by the Occupiers’ Liability Act. In particular, I find that it is plain and obvious that the defendant exercised reasonable care in all of the circumstances to see that persons entering the premises were reasonably safe. In particular, as I will explain, the mat at issue is an ordinary type of mat, commonly used in commercial premises. It is not disputed that the mat was in a good state of repair, and that it was firmly on the floor and did not move in any way. And the defendant has tendered credible evidence regarding the utility of the mat, as well as of its program of seasonal rotation of the types of mats used, and both seasonal and daily inspection of the mats. I am not persuaded that the mat posed an unreasonable risk to persons entering the defendant’s premises.
[27] Further, I find that the purported expert evidence tendered by the plaintiff relating to the standard of care is not persuasive or reliable.
(i) The Mat
[28] The physical characteristics of the mat are not in dispute. The mat was made an exhibit before me. It is a heavy black rubber mat. Its weight is of note because it had the effect that the mat stayed in place and would not move. The mat was in a good state of repair. The mat has small “fingertips” or nubs. It is not disputed that the fingertips or nubs are designed to remove debris from shoes of people who walk over it.
[29] From examining the mat myself as the trier of fact, I can feel that the nubs of the mat have some flexibility. I also note that the texture of the mat is clearly visible from a distance. I did not feel it appropriate for me, as the trier of fact, to experiment with the maximum distance from which one could see the nubs on the mat. But I find as a fact that that an individual walking towards the mat would certainly be able to see the nubs from at least 6 to 8 feet away, which one would expect at a minimum a person would look ahead while walking.
[30] It is also not in dispute that the mat was lying flat at the time that the plaintiff fell, and it did not move in any way when she stepped on it.
[31] The evidence supports the finding that the mat at issue is a commonly available type of mat used in commercial buildings. The defendant’s reply motion record provides evidence of similar mats of the same thickness available at various websites where one might purchase mats or other accessories for commercial premises. The mats are described as for use in a variety of places, including office buildings, suitable for different types of weather conditions, and suitable for use in “vestibules”. This evidence was also supported by Mr. Emidio.
(ii) Evidence of the maintenance staff regarding practices for deployment and inspection of mats
[32] The maintenance staff employed by the defendant provided evidence in relation to the policy and practice in the building regarding deployment of mats.
[33] Jose Emidio’s position at the relevant time was as facilities assistant with the defendant. His duties included taking care of the general condition of the premises, preventive maintenance, and taking steps to ensure that students, patients and colleagues at the premises were safe.
[34] Antonio Maiato was the director of facilities at the relevant time. He was responsible for managing the physical plant of the premises, including ensuring the safety of the premises.
[35] Mr. Maiato testified that mats were placed at the entrances to the premises all year round. The mats were used in order to prevent the tracking of dirt, moisture, or other material from outside, which could potentially create a trip or slip hazard. The mats were also to provide traction inside doors and at the top of stairs.
[36] Mr. Maiato testified that the types of mats used were changed in the spring and in the fall. Mr. Maiato and Mr. Emidio both gave evidence about regular inspections of all mats used on the premises. All mats were inspected at the time of seasonal changing, and during daily inspection rounds. If problems were found during either of these types of inspections, mats would be replaced as needed. The mats were also cleaned on a daily basis. The evidence in relation to inspections was very detailed and specific. I have given only a very brief summary here.
[37] Mr. Maiato testified that the mats in place at the time of the plaintiff’s fall were a combination (i.e., different types at different locations) of broadloom carpet mats with a rubber backing, and scraper/fingertip mats, which are composed entirely of rubber. The reason that two types of mats are used is so people entering the building can wipe their feet on the scraper/fingertip mats, which are effective at capturing bulk materials such as dirt and dust; they can also wipe their feet on the broadloom/carpet mats, which are more effective at absorbing moisture.
[38] The plaintiff’s fall occurred on July 18, 2014. Mr. Emidio gave evidence that from July 14 to 18, 2018, he inspected the vestibule each morning, shortly after 6:00 a.m., and completed an opening procedures checklist. No issues were noted with the mat at issue during those inspections. Records from the cleaning company from May 20, 2014 to September 11, 2014, also do not note any issues with the mat at issue.
[39] I accept the evidence of Mr. Maiato on the issue of the nature of the various mats used on the premises, including the mat at issue in this case. I accept his evidence in relation to why the mat at issue was used, and its utility. I accept that this type of mat was included in the various types of mats used by the defendant in order to prevent the tracking in of dirt, moisture or other substances which could create a tripping or slipping hazard, as well as for cleanliness. Thus, I accept that there was utility to using this mat where it was used. I also accept the evidence of Mr. Emidio and Mr. Maiato about the practice of the defendant (carried out by staff) of changing the mats seasonally, and inspecting the mats, both at the time of the seasonal changes, and daily. I accept the reasonableness of this practice.
[40] Counsel for the plaintiff put some stress in argument on the fact that the witnesses for the defendant could not provide any information about where the mat had been purchased, or what vetting was done of its specifications prior to purchase. With respect, in the context of all of the evidence in this case, I find this to be of very limited relevance. The mat is available to the court and was filed as an exhibit. Its physical specifications are not in dispute. The defendant is not relying on due diligence in how the mat was purchased as part of its defence that it met the standard of care.
(iii) Evidence that the mat has not resulted in falls before
[41] The evidence on the motion supports a finding that the mat at issue was never involved in a previous fall.
[42] The maintenance staff for the building, Mr. Emidio and Mr. Maiato, testified that they were not aware of any previous incidents involving this mat. Drs. Dulay and Kipershlak, who were among the individuals who assisted the plaintiff after her fall, testified that they have never personally had any issue with the mat at issue, nor were they aware of any incidents involving this mat. I accept this evidence as credible. However, I find that the evidence of the maintenance staff is more probative about the issue of their not being any past issues with the mat, as Drs. Dulay and Kipershlak (apart from their personal use of the mat) did not hold positions that would lead to them likely being told if there were problems with the mat. By contrast, the maintenance staff did hold positions that made it likely they would have been made aware if there were problems with the mat.
[43] The surveillance videos from just before, during, and after the plaintiff’s fall (which I discuss in more detail below in relation to causation) show various other people in various types of shoes walking over the mat at issue. None appears to have any issue with their footing or balance.
[44] Further, I note that the plaintiff testified that when the entered the building on the day she fell, she came in the same way as she later exited. Although she did not specifically recall stepping on the mat at issue on her way in, I find that she must have. Given the mat’s location, and the plaintiff’s evidence that she entered the same way she left, she could not have avoided the mat on her way in. She agreed that she had no issues with her footing or balance on her way into the building.
[45] A finding that there has never been a prior fall due to this mat is not determinative of the issue of whether the defendant did or did not meet the standard of care. But it is a relevant factor in assessing the likelihood of a fall such as the plaintiff’s occurring, as part of a consideration of all the circumstances.
(iv) Evidence of Mr. Jason Young on behalf of the plaintiff
[46] The plaintiff filed a report by Mr. Jason Young in support of its argument that the manner in which the mat was deployed breached the standard of care under the Occupiers’ Liability Act.
[47] In summary form, his opinion regarding the standard of care and whether the defendant breached it is as follows. The mat at issue was placed in an unsuitable location by the defendant, which constituted a hazard and caused the plaintiff’s fall. The type of mat (fingertip scraper mat) was not intended for use at intermediate stairwell landings and interior hallways within a building. The mat was not appropriate for late spring and summer seasons when female pedestrians would reasonably be expected to be wearing “narrow wedge-heel shoes”. The mat does not provide lateral stability when walked upon with narrow heel shoes due to the flexible fingertip surface of the mat which bends laterally when stepped upon.
[48] I have a number of concerns about Mr. Young’s evidence in relation to both the standard of care, and causation. I address the issues relating to his opinion about causation further below. My concerns relate both to admissibility, and to the ultimate reliability and persuasiveness of his evidence. As I ultimately find that his evidence is neither persuasive nor reliable, I am not formally ruling that his evidence is inadmissible. However, my concerns in relation to admissibility are significant enough that I feel the need to comment on them.
[49] Mr. Young is a biomedical engineer. He holds a bachelor’s degree in mechanical engineering, and a master’s degree in biomedical engineering. I accept that biomedical engineering in general is a field of expertise.
[50] I find that the substance of Mr. Young’s opinion about the standard of care is not within his field of expertise. Indeed, I am dubious that the bulk of it is even a field of expertise. Mr. Young has no specific education or experience in mat design or placement.
[51] Mr. Young’s opinion on what types of mats should be used where (pp. 8 and 9 of his report) is based on reading specifications of a similar mats online, and interpreting statements to the effect that the fingers of the mat will remain flexible even in cold weather as indicating that the mat should not be used in warm weather. I do not see how this is within Mr. Young’s expertise, or indeed, is outside the capability of a lay person (not to mention, as I note below, that the ads do not say that the mat is unsuitable for other seasons, and some of the ads describe the mat as appropriate for all-weather).
[52] Mr. Young further opines that the mat is not appropriate for spring and summer use, because it is foreseeable that women may be wearing narrow wedge-heeled shoes (at p. 10 of his report). Again, I have difficulty seeing how the type of shoes that may foreseeably be worn by women in different seasons is within his expertise (not to mention, that he appears to give no consideration to the existence of winter shoes or boots worn by women with narrow and/or wedged heels).
[53] Mr. Young then purports to rely on thickness of the mat being a stumbling and tripping hazard (at p. 11 of his report). The first portion of this opinion relates back to the issue of the mat’s interaction with narrow heeled footwear. As I discuss in more detail in relation to causation, he draws conclusions here in relation to the mat’s interaction with narrow-heeled footwear in the absence of any testing or even physically inspecting the plaintiff’s shoes.
[54] Further, he then relies on a North American Standard for walkway hazards, ASTM F1637, to say the mat was too thick. The application of this standard may well be within Mr. Young’s expertise as an engineer. However, in my view the ASTM standard he refers to is of no application to what happened in this case. The standard he outlines is clearly about transitions from one surface to another, and avoiding a sudden increase in height of a surface in order to avoid “tripping” hazards. There is no suggestion by either side in this case that the plaintiff tripped at the edge of the mat. The ASTM standard is irrelevant.
[55] Having made these comments about my concerns about the admissibility of Mr. Young’s evidence on the standard of care, I have also considered the credibility and reliability of his evidence. I find that Mr. Young’s evidence is unreliable and unpersuasive, and not consistent with the balance of the evidence in this case.
[56] Regarding his opinion that the mat is not suitable for spring and summer, the ads he cites do not say that the mat is unsuitable for other seasons. And as I note above at paragraph 31, the defendant filed evidence of online specifications for similar mats which indicate that they are suitable for all seasons, and that they are suitable for use in vestibules. Indeed, the ad pictured as p. 12 of Mr. Young’s report states that this type of mat is “the perfect all-weather mat”, and Mr. Young recognizes at p. 9 of his report that these mats are designed for “all-weather”. Regarding his opinion that this mat was not suitable for spring and summer use because women may wear narrow wedge-heeled shoes, he utterly fails to consider that women may also wear narrow wedge-heeled shoes or boots in winter. And, as noted above, the ASTM standard he refers to is in relation to tripping hazards, which is irrelevant to this case, and there is no suggestion by either party that the plaintiff tripped at the edge of the mat. I find Mr. Young’s opinion to be unpersuasive and unreliable.
(v) Does the standard of care require daily decisions about deployment of the mats?
[57] Counsel for the plaintiff argues that the evidence from the maintenance staff of the defendant about the seasonal changing of types of mats, and the inspections of mats seasonably and daily, does not meet the standard of care. In particular, counsel for the plaintiff argues that mats should have been deployed daily, based on checking the weather forecast daily, and only deploying the nubby fingertip mats when rain was in the forecast. Counsel argues that the fingertip mats were not necessary when the weather would be dry, and it would be easy to check the weather on a daily basis. It is not in dispute that the weather was dry on the day of the plaintiff’s fall. Counsel’s argument on behalf of the plaintiff is that on a dry day, the fingertip mats would have no utility, and for that reason, any risk they posed was unjustified on a dry day.
[58] I reject this argument by the plaintiff for three reasons.
[59] First, the evidence does not support the plaintiff’s argument that her proposed alternative solution of checking the weather daily and changing the mats daily depending on the weather would not impose a burden on the defendants. I find based on the evidence in the record before me that it would impose a significant burden. The plaintiff in making this argument relies on the evidence of Mr. Emidio in cross-examination at questions 51 and 52 that it would not take long to roll up and change one mat. I find that the plaintiff is taking this evidence out of context. The question that was asked related to changing one mat if there was a problem with it. It did not address a new system of deploying all the mats daily based on the weather forecast.
[60] This issue was addressed in the evidence of Mr. Maiato, and I find that his evidence supports the defendant that deploying the mats on a daily basis based on the weather forecast would impose a significant burden in terms of staff time. This issue is addressed in the cross-examination of Mr. Maiato at questions 64 to 78. Although Mr. Maiato, like Mr. Emidio, said that changing one mat would not be time consuming, he clearly testified that changing all of the mats on a daily basis based on the weather forecast would take several hours because there are six or seven entrances to the building, and for that reason would not be practical. I accept Mr. Maiato’s evidence on this issue.
[61] Of course, as a matter of law, for a claim of occupier’s liability, this burden imposed on a defendant must be assessed in the context of the risk posed to the plaintiff and other users of the premises. This brings me to the second reason I reject the plaintiff’s argument on this issue.
[62] The second reason is that there are risks posed by the plaintiff’s alternative solution of checking the weather and changing the mats daily depending on the weather. Mr. Maiato testified that one of the reasons that the fingertip mats were used was to prevent things getting on the floor that could pose a risk for slipping or tripping, including dirt, moisture or other debris. I take judicial notice of the fact that the weather forecast is not always correct. If the plaintiff’s proposed alternate plan of daily mat deployment based on the weather forecast were put in place, there would be days when a decision was made not to deploy the fingertip mats based on the weather forecast, where the forecast would turn out to be wrong and it would rain. This would create a risk of debris being tracking in that posed a slipping or tripping fall, without the fingertip mats being deployed. The plaintiff does not address this risk.
[63] The third reason that I reject this argument made by the plaintiff is that the fact that there may have been an alternative way of deploying the mats does not necessarily make the defendant’s practice of how to deploy the mats unreasonable. This relates back to the nature of the burden on an occupier to make its premises safe for people who enter onto the premises. The burden is one of reasonableness, not perfection. In all the circumstances, I find that the defendant’s use of the mat at issue, including the program for seasonal deployment of the mats, and both seasonal and daily inspection, was reasonable.
(vi) The Relevance of the plaintiff’s high heels
[64] Before concluding on the issue of whether the defendant met the standard of care, I want to briefly address two older cases relied on by the defendant relating to the issue of the nature of the high heels that the plaintiff was wearing when she fell. The cases relied on by the defendant in this regard are quite dated: Thompson v. Harris, [1970] S.J. No. 6 (Q.B.); Arendale v. Federal Building Corporation Ltd., 1962 CanLII 193 (ON CA), [1962] O.R. 1053 (ONCA).
[65] I must admit to having some discomfort with the subtext of these cases, which seems to be that the reasonable person is necessarily a man in low-heeled shoes. In the 21st century, that cannot be a correct approach to what kind of shoes a reasonable person wears. That said, both women and men have ample choice in the variety of footwear they can wear. Some shoes are more or less stable than others, some shoes have more or less slippery soles than others. Some shoes have higher or lower heels, or wider or narrower heels than others. Some shoes have straps or laces that more solidly affix them to the wearer’s feet than others. This practical reality cannot be disregarded when considering if an occupier of premises has met the standard of care to keep its premises reasonably safe, and indeed cannot be disregarded when considering causation. The occupier’s duty is one of reasonableness. It is not required to eliminate all risk, in particular, when the risk may come in large measure from a choice of footwear made by the person entering the premises.
(vii) Conclusion on whether the defendant breached the standard of care
[66] I find that the manner in which the defendant deployed the mats, including the types of mats used, the changing seasonally, and the practice of inspections both when the mats were changed seasonally, and daily, was reasonable, and met its duty under the Occupiers’ Liability Act. I find that in all of the circumstances, the mat at issue, and the location and manner of its use by the defendant did not, in all the circumstances pose an unreasonable risk to the safety of individuals entering the defendant’s premises. The defendant discharged its duty under s. 3 of the Occupiers’ Liability Act to take reasonable care to ensure the reasonable safety of individuals entering its premises.
Is there a genuine issue requiring a trial as to causation?
[67] The crux of factual issue is whether plaintiff has proven the mat caused her fall.
[68] The causation analysis asks whether, applying the “but for” test, there is a causal connection between the breach of the standard of care and the compensable damage suffered: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7 at para. 21; Hill v. Hamilton-Wentworth (Regional Municipality), [2007] 3 S.C.R. 129, 2007 SCC 41 at para. 93; Turcotte v. Lewis, supra at para. 46.
[69] I will now address the evidence and my factual findings as they relate to causation.
(i) The Mat
[70] I have described the physical characteristics of the mat at issue above at paragraphs 28-31. In assessing the issue of causation, I take into account that the nubs on the mat had some degree of flexibility.
(ii) The Videos
[71] There are two sets of videos depicting the plaintiff’s fall, both captured on security cameras in the building. The first video is taken from the vestibule. The second is taken from the stairwell.
[72] The vestibule video is approximately 30 seconds long. The plaintiff’s fall occurs approximately 23 seconds into the video. This video provides a clear view of the area. The area appears clean and dry. Closest to the camera is a carpet mat (not the mat at issue). The fingertip mat at issue is further in, at the top of a landing to the first set of short stairs in the vestibule. The fingertip mat is lying flat, and is in plain sight. The mat is also a contrasting colour to the floor underneath.
[73] It is clear from the vestibule video that the plaintiff first steps onto the mat with her right foot. She then steps forward with her left foot, and her left foot buckles and she falls. Based on my review of this video, there is no issue with the plaintiff’s footing or balance with her first step onto the mat (with her right foot).
[74] The other video, taken from the stairwell is approximately 24 seconds long. The plaintiff falls at approximately 14 seconds into the video. In the stairwell video, the plaintiff’s first step with her right foot is not visible in the frame of the video (in contrast to the vestibule video). But the stairwell video shows the step she takes with her left foot where it buckles.
[75] It is clear in both videos that the mat does not move or shift in any way as the plaintiff walks over it.
[76] There was also video of events prior to and subsequent to the fall, which I will not summarize. However, I note that several of the videos show other individuals walking over the mat at issue, including the plaintiff’s friend who was wearing high heels. None of the other individuals appear to have problems with their balance or footing as they walk over the mat.
[77] I note that although Mr. Young, the plaintiff’s expert, reviewed both the vestibule video and the stairwell video, he only analyzed the stairwell video in his report. In his opinion, there was nothing notable in the vestibule video. I will come back to this point.
(iii) The Plaintiff’s evidence
[78] The plaintiff testified that she attended the defendant’s premises on July 18, 2014 to attend a chiropractic treatment. She was wearing high heeled wedge sandals. According to the plaintiff, as she was leaving the building after her chiropractic treatment, she stepped onto the mat and fell. She testified on the motion that the surface of the mat was “wobbly”, and that as soon as she stepped on the mat with her left foot, her ankle buckled. She testified that she braced herself with her right hand as she fell, with the result that she fractured her wrist.
[79] I am not prepared to accept the plaintiff’s evidence as to the mechanics of the fall as reliable. It is clear from the videos that fall happened quickly. And importantly, the plaintiff gave evidence under oath about how the fall happened that was both inconsistent with the objective video evidence, and inconsistent with her evidence on other occasions.
[80] In her examination for discovery, the plaintiff testified that she fell because her right foot buckled on her first step onto the mat. I find that this is clearly wrong, as the vestibule video shows that she first stepped onto the mat with her right foot, and did not fall, and then stepped forward on her left foot, and it was her left foot that buckled. Later, in swearing her affidavit for the motion, after reviewing the video, the plaintiff conceded that her discovery evidence was wrong, and agreed that she fell when her left foot buckled.
[81] Further, in her cross-examination for the motion and her examination for discovery, the plaintiff testified that the step when she fell was her first step onto the mat at issue (i.e., she did not take a first step onto the mat and then fall on her second step). As noted above, she differed about which foot that first step was taken with in her evidence at her examination for discovery and her evidence on this motion. However, on both occasions she was clear that her fall happened on her first step onto the mat at issue. I find that she was clearly wrong about this, as the vestibule video show her stepping on the mat with her right foot first, and then taking a second step with her left foot. It was on the second step that she fell.
[82] I find these inconsistencies to be of some significance, particularly in light of the vestibule video that shows that she stepped onto the mat first with her right foot. From my review of the video, there was no issue about her footing or balance when she placed her right foot on the mat. I find that the stability when the plaintiff she stepped on the mat with her right, which is clear in the vestibule video, is inconsistent with the plaintiff’s evidence in her affidavit that when she stepped on the mat “it felt unusually thick, unstable and wobbly under my foot.” Her affidavit reads as if she only stepped on the mat once (which she may well believe). She confirmed this position in cross-examination very clearly (questions 73 and 74). But the video evidence shows that this is not the case.
[83] I note as well that in her cross-examination for the motion, the plaintiff testified that she opened the door to the vestibule before stepping on the mat. I find that her recollection in this regard is clearly incorrect, as the videos show the vestibule door to be propped open.
[84] I do not say any of this to be critical of the plaintiff. My concern is not one of honesty; rather, it is a concern of reliability. I accept that the plaintiff was doing her best on each occasion that she testified or swore an affidavit to recount what she recalled happened. But the videos show that her recollection was not accurate, and this led her to change her evidence about how the fall happened. As I have noted, the fall happened quickly. In the circumstances, I do not accept the plaintiff’s evidence about the mechanics of the fall, as I find it to be unreliable.
(iv) The Expert evidence of Mr. Jason Young
[85] In relation causation, in summary form, Mr. Young’s opinion is that the plaintiff’s fall was caused by lack of a laterally-stable base of support when she stepped down onto the mat (due to the movement of the nubs/fingertips on the mat).
[86] I have outlined above my concerns in relation to Mr. Young’s evidence in relation to the standard of care. Although not exactly the same, my concerns about his opinion on causation are similar, in that they relate to whether it is properly admissible as expert evidence, and its ultimate reliability. Ultimately, I find that his opinion is not reliable, for reasons I will explain, and this is the basis on which I do not rely on it. However, I do also have concerns about whether it is “necessary” in the sense of whether it will assist the trier of fact, and whether it I properly a real field of expertise. These first two concerns relate to admissibility.
[87] A threshold requirement for admissibility of expert evidence is that it is necessary. This is not a high threshold. What the court must consider at this stage of the analysis is whether the proposed expert evidence is necessary in the sense that it will assist the trier of fact to understand something that is not within the knowledge of lay people: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 23-25; R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600 at paras. 25-26, 30; White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCR 182, 2015 SCC 23; The Law of Evidence in Canada, Fourth Edition, S. Lederman, A. Bryant, M. Fuerst, LexisNexis (Markham: 2014) at §§12.59-12.68.
[88] Having reviewed Mr. Young’s evidence, I have difficulty seeing that the substance of his evidence on causation is something that is not within the knowledge of lay people. I note in this regard that although he looked at the mat and measured its length, width, thickness, and the height of the fingertips/nubs, and felt the surface of the mat with his hand, he did not do any type of testing requiring expertise. In making this comment, I am not suggesting that such testing even exists. My point is that I am not persuaded that as it relates to causation, Mr. Young did anything or gives any opinion that is not within the knowledge of lay people. I note as well that he did not examine the plaintiff’s shoes (other than seeing a photo). Nor did he engage in any actual testing of the mat’s interaction with these shoes or other shoes (again, not that I am assuming such tests exist).
[89] I have trouble with the proposition that a trier of fact needs expert assistance to look at a mat with nubby flexible fingers, and watch videos of the plaintiff’s fall, and make a factual assessment about whether the evidence is sufficient to show that the mat caused the fall.
[90] Second, I have concerns about whether the subject matter of Mr. Young’s evidence is actually a field of expertise. Before a trial judge admits opinion evidence, the evidence must satisfy threshold reliability of the scientific (or social-scientific) theory or technique on which the opinion purports to rely: Mohan, supra at pp. 25, 37; R. v. J. (J.-L.), supra at paras. 33-36, 47-55; White Burgess Langille Inman v. Abbott and Haliburton Co., supra; The Law of Evidence in Canada, supra at §§12.69-12.107. This is part of a trial judge’s gatekeeper function with respect to expert evidence. In assessing threshold reliability, a trial judge should consider factors such as: (i) whether the theory or technique can be and has been tested; (ii) whether the theory or technique has been subjected to peer review and publication; (iii) the known or potential rate of error or the existence of standards; and (iv) whether the theory or technique used has been generally accepted: R. v. J. (J.-L.), supra. None of these factors is absolutely required. But they are the types of factors a trial judge should consider in exercising her gatekeeping function.
[91] As noted above, Mr. Young is a biomedical engineer. I accept that biomedical engineering in general is a field of expertise. But I am doubtful that the analysis of how a shoe interacted with a mat is a field of expertise. Mr. Young has not referred to any studies or articles addressing the interaction between shoes and different types of floor coverings. As I have already outlined, I am doubtful that the substance of his opinion uses any expert techniques that a layperson would not be capable of understanding or employing.
[92] Having outlined these concerns, I note that I do not decide the issues related to Mr. Young’s evidence either on the issue of whether it will assist the trier of fact, or whether it is a real field of expertise. Thus, although I have concerns about the admissibility of Mr. Young’s evidence, I do not decide the issue on the basis of admissibility. Rather, I have considered the reliability of the evidence, in my role as trier of fact, and I find that his evidence is not reliable regarding the causal role of the mat in the fall.
[93] I have three primary concerns about the reliability of Mr. Young’s evidence about causation. The first, and this is my most serious concern, is that he never examined the shoes the plaintiff was wearing at the time of the fall, and the photographic evidence about the shoes which he relied on is very limited, and I find it to be of limited probative value as the basis for an opinion.
[94] The plaintiff testified in her examination for discovery and her cross-examination that she still had the shoes she was wearing at the time of the fall. Despite that fact, Mr. Young did not examine the shoes, and the shoes were not entered into evidence before me. The only physical evidence about the shoes is a single photo of the right shoe. The plaintiff was asked in her examination for discovery about the height of the shoes. A height of 2” to 3” was suggested to her, but she was unable to provide a clear answer. But my bigger concern is the width of the heel, rather than the height. The opinion of Mr. Young (and the plaintiff’s claim), rests on an assumption/argument that the heels of the plaintiff’s shows were high and narrow, and that for this reason they did not provide stability when she stepped on the fingertip mat.
[95] I find that the photo is of very limited utility. The photo of the shoe does not show the sole of the shoe. It is taken from a view from above and from the side. Although one can see that the shoe has a high wedge-heel (and perhaps could draw an approximate inference about the height of the heel), one cannot see or assess the width of the heel from the photo. The plaintiff could very easily have provided this evidence to Mr. Young, and to the court, either by tendering the shoes, or by taking a photo to scale of the sole of the shoe. In the absence of stronger evidence showing that Mr. Young’s assumption that the heel was narrow is correct, I find that his opinion based significantly on the width of the heel is not reliable.
[96] My second concern relates to Mr. Young’s failure to analyze the vestibule video. Mr. Young testified in cross-examination that the vestibule video was not important in his view, since in his opinion there was nothing notable in it. I find that because was of his view that there was nothing notable in the vestibule video, he missed an important factual aspect of the events. In his report based on the stairwell video, he recounts that the plaintiff stepped onto the mat with her left foot (at p. 6). And in cross-examination he clearly stated his opinion that the plaintiff’s right foot was not on the mat at issue, and her first step onto the mat was the step with her left foot when she fell. As I have outlined above, this is not correct, as the vestibule video shows that she first steps on with her right foot, then steps forward with her left foot, and falls when her left foot buckles. Thus, he gets an important fact wrong, and as a result, fails to note that there was no issue of stability with the plaintiff’s right foot when she took her first step onto the mat. As I noted in relation to the plaintiff’s evidence, this discrepancy matters, because when the vestibule video is reviewed, there is no issue with the plaintiff’s footing or balance with the first step onto the mat that she took with her right foot.
[97] My third concern relates to the quality of the video evidence to draw the conclusion that Mr. Young draws in relation to causation. I have reviewed all of the video evidence. The videos are clear enough to see the sequence of events in terms of the steps taken by the plaintiff, and her fall as her left foot buckles; however, having reviewed the videos, I do not accept that the videos are clear enough to draw the conclusion that the cause of the buckling of the plaintiff’s left foot was movement of the fingertips of the mat. While that is a possibility, the video evidence, and the evidence as a whole, does not in my view support the conclusion that causation has been proven on a balance of probabilities.
[98] For all of these reasons, I do not find the evidence of Mr. Young persuasive or reliable.
[99] Compendiously, all of my concerns about Mr. Young’s evidence relate to a concern that the plaintiff is seeking to tender expert evidence that is advocacy dressed up as evidence. I find his evidence to be unpersuasive and unreliable.
(v) The Evidence of no previous problems with people falling from this mat
[100] As noted above at paragraphs 41-45, I find that the evidence on the motion supports a finding that the mat at issue was never involved in a previous fall.
[101] A finding that there has never been a prior fall due to this mat is not determinative of the issue of whether the mat caused the plaintiff’s fall. But it is a factor relevant in the context of all of the evidence in assessing whether the mat caused the plaintiff’s fall. If there was other clear evidence that the mat caused her fall (which I find there is not), then the absence of evidence of other falls would be of little moment. But in this case, where I find the other evidence is insufficient to prove that the mat caused the plaintiff’s fall, had there been evidence that other people had similar falls on this mat or this type of mat, it could have provided some support for the inference of causation the plaintiff asks the court to draw.
(vi) Conclusion on causation
[102] Having considered all of this evidence, I find that there is no genuine issue requiring a trial on the issue of causation. I say this in the following sense, and note that the plaintiff bears the onus to prove that the mat caused the fall, in the sense of “but for” causation outlined above at paragraph 68. Taking into account, all of the evidence, I find that the evidence is not capable of proving on a balance of probabilities that the mat caused the plaintiff’s fall, as opposed to her just taking a mis-step, as can happen from time to time when one wears high-heeled shoes, especially shoes with no straps, such as the ones the plaintiff was wearing. Thus, I find that there is no genuine issue requiring a trial in relation to causation.
Conclusion
[103] For these reasons, I am satisfied that there is no genuine issue requiring a trial. The defendant’s motion for summary judgment is granted. The plaintiff’s action is dismissed.
Costs
[104] I did not hear submissions regarding costs during the hearing of the motion. If the parties are unable to come to agreement regarding costs, I will receive submissions in writing on the following schedule. The defendant may file its cost outline and written submission within 30 days of this decision. The plaintiff may file her cost outline and submissions within 20 days after the defendant’s submission is filed. All costs submissions are limited to a costs outline, and three pages of submissions.
Justice J. Copeland
Released: September 27, 2018
[^1]: I note that counsel for the defendant advised in oral argument, and pleaded in the statement of claim, that the defendant was incorrectly named. Its correct name is Canadian Memorial Chiropractic College. However, no party has asked me to correct the title of proceedings.
[^2]: Some of these cases are ordinary negligence cases, rather than cases under the Occupiers’ Liability Act. However, once the existence of a duty is established, the types of factors governing the assessment of the standard of care are similar under negligence and occupiers’ liability.