Court File and Parties

COURT FILE NO.: 90/14 DATE: 20180928

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID NOLET Plaintiff

Joel P. McCoy, for the Plaintiff

• and -

CAROLINE FISCHER Defendant

Chad M. Leddy, for the Defendant

HEARD: September 10, 2018

REASONS FOR JUDGMENT

Van Melle, J.

[1] The defendant, Caroline Fischer, moves for summary judgment dismissing the claim of the plaintiff, David Nolet, against her. For the reasons that follow, summary judgment in favour of defendant is granted.

Background

[2] The claim against Caroline Fischer arises from an alleged trip and fall on April 21, 2012 at 628 Main Street East in Shelburne, Ontario (“the premises”). David Nolet, tripped and fell over a trip ledge caused by two uneven concrete slabs, while moving a freezer out of the house on the premises. He injured his left ankle in the fall.

[3] David and Caroline started dating in 2008. In early 2010, David moved into Caroline’s house on the premises. In 2012 David moved out of the premises. The incident occurred while he was moving out of the premises.

Position of the Parties

[4] Caroline denies that she owed a duty of care to David under the Occupiers’ Liability Act as David himself was an occupier of the premises and not a visitor. David had lived at the home for well over a year prior to the injury, first in a romantic relationship with Caroline and then, for the final few months, as friends. On the date of the incident, David was in the process of moving out of the home and was carrying a freezer, when he fell. Caroline takes the position that she and David were members of a shared household, with shared responsibilities and that to allow what is effectively an Occupiers’ Liability Act lawsuit to proceed between persons in the same household would be unprecedented, problematic and contrary to the purpose and history of the statute.

[5] In the alternative, Caroline submits that if she did have a duty of care to David, she is not liable as the loss did not occur due to the unevenness on the concrete walkway.

[6] She submits that the accident did not occur as described by David.

[7] David alleges that Caroline owes him a duty of care under the Occupiers’ Liability Act, as a person entering onto the premises; or under the applicable landlord-tenant law; or under the common law.

[8] David takes the position that Caroline failed to keep the premises in a proper state of repair and allowed a significant trip ledge to exist for years. Moreover, there are findings of fact and issues of credibility which must be decided in order for liability to be determined. David believes that there are genuine issues for trial, unless the Court is willing to find that Caroline is in fact liable for David’s injuries.

[9] David alleges that he was Caroline’s tenant when the injury occurred. He asks that Caroline’s motion for summary judgment be dismissed or that summary judgment declaring Caroline liable for his damages be granted in his favour.

Findings of Fact

[10] I find that David and Caroline cohabited in a romantic relationship for approximately one year. After the romantic relationship ended, they both continued to reside in the premises. Even after the romantic relationship ended, David considered that he and Caroline were still friends and that their arrangement of living together remained informal.

[11] In his Examination for Discovery, David acknowledged that he had a key and was able to invite people to the premises without Caroline’s permission. He also had the ability to ask people to leave the premises if he wished to do so.

[12] While David may not have been involved in renovations such as replacing flooring, by his own admission, he did day to day maintenance such as cooking, laundry, hanging pictures and shovelling snow. He also had a satellite dish installed on the premises which was linked to his television. David purchased food and sundry items, such as toilet paper, laundry detergent and propane.

[13] David contributed approximately $500 per month to the living expenses. While David submits that this payment constituted rent, I do not agree. During his cross-examination, David testified that while at the premises he did not consider that he was paying rent.

[14] David did give Caroline two months’ notice that he would be moving out of the premises. However, for the month of April he reduced his contribution to the ongoing expenses of the household to $90.

[15] David lived at the premises until the morning of April 21, 2012. He slept there the night before, still had a key to the house and had let his friend, Greg Long in that morning. He felt that he had the right to both invite Mr. Long over that morning and to ask him to leave. The evidence demonstrates that David also felt that he had the right to invite movers to assist and ask them to leave the premises.

[16] David testified that prior to moving his items on April 21, he did a visual inspection to make sure the pathway that he would be using to move the items to Mr. Long’s truck would be free of hazards. He moved the snow blower, snow shovels and garbage cans out of the way. He inspected the concrete sidewalk and concrete walkway panels and found no hazards there.

[17] David testified as well that he was aware, prior to the accident, that there was an uneven surface on the concrete walkway. He testified that he was therefore walking carefully, paying attention to avoid the concrete lip (or height differential) on that surface at the time of the incident. David acknowledged during his cross-examination, that Mr. Long had warned him to walk carefully along the concrete walkway.

[18] Although Caroline could not recall, David says that he in fact told her some time prior to April 21 that the unevenness between the two concrete slabs constituted a hazard and should be repaired.

[19] There were two eyewitnesses. The first was Mr. Long who confirmed that he was assisting David to move out of the house on April 21. Although Mr. Long stated in his affidavit that he witnessed David catch his foot on uneven concrete slabs as they carried the freezer, on cross-examination he conceded that he could not see David’s feet or legs since the freezer obstructed his view.

[20] Barbara Post, Caroline’s next-door neighbour, witnessed the fall. She recalls that David fell as he was stepping down from the wooden walkway onto the concrete walkway. She testified that the fall was not caused by any lip or discontinuity between the concrete walkway panels. There is some disagreement regarding Ms. Post’s evidence. I accept that when asked to do so by Caroline, she made a handwritten notation as to her recollection of the events. I accept that the handwritten document was later transcribed by her daughter.

[21] David takes issue with Ms. Post’s evidence, saying that she did not leave her house until after David fell and that in any event she could not have seen where his foot was. Ms. Post’s evidence is not determinative one way or another of the issues in dispute.

[22] David says that the trip ledge was 1 to 2 inches in height, yet there is no independent corroboration of the trip ledge height. Although photographs were taken a few days after the incident, no measurements were made. No attempt was made subsequently to take any measurements. While Caroline admitted that the trip ledge may have been ¾ of an inch at the right side, David’s evidence is that he tripped on the middle or the left side (it was his left ankle that was injured). From the photographs it appears that the difference in height on the left side to the middle is far less than on the right side. In any event, there is no reliable evidence on this point.

The Law

[23] Is summary judgment available in this case? The Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, refined the test for summary judgment. Justice Karakatsanis ruled that as a result of the amendments to Rule 20 in 2010, the purpose of summary judgment was to provide a significant alternative model of adjudication, and thus a faster and cheaper alternative to trial. There will be no genuine issue requiring a trial if a judge hearing a summary judgment motion is able to reach a fair and just determination on the merits of the case at the motion stage. A judge has to be able to 1) make the necessary findings of fact, 2) apply the law to the facts, and 3) the motion is a proportionate, more expeditious and less expensive means to achieve a just result than a trial.

[24] I agree with Caroline’s submission that this is an appropriate case for summary judgment. All the facts are available on this motion including all the affidavits, all the cross-examinations on the affidavits and all the examinations for discovery of the parties. The facts are largely uncontroverted and it is the application of the law to the facts that is in issue. Given that I am able in this case to determine if there is a genuine issue requiring trial based on the evidence before me, a summary judgment motion is the appropriate means for achieving a proportionate, expeditious and less expensive result than a trial.

[25] Dealing first with David’s alternative claims, I do not accept that he has any remedy under the Residential Tenancies Act. In oral submissions, his counsel admitted as much. The Residential Tenancies Act was not pleaded in the Statement of Claim. In any event, the Act would have no application as David shared a kitchen and bathroom with Caroline.

[26] David says that there was an implied tenancy between himself and Caroline. He says he did not receive an ownership interest in the premises and did not receive an equalization upon the breakdown of the relationship. He submits that he paid $500.00 per month for rent.

[27] Although David says that he lived in a different part of the house and had no control over decisions made regarding the premises, this is contrary to the evidence given on his Examination for Discovery and Cross-Examination. However, as stated earlier in these reasons, he agreed that he had control over who came and went from the premises; he carried out day to day maintenance and he installed a satellite dish for his own television.

[28] As stated earlier, I do not accept that the $500 per month was “rent”. David himself acknowledged that the money was to go toward the expenses and upkeep of the home. The fact that he did not receive an ownership interest is not determinative in any way whatsoever, nor is the fact that he did not receive an equalization, as an equalization is only available to people who are legally married and even then, not necessarily.

[29] I do not accept that he had any rights generally under common law. On the facts, I find that there was no implied tenancy. As well, section 2 of the Occupiers’ Liability Act specifically states that the Act supersedes the common law.

[30] The real issue for determination is whether or not David was an occupier of the premises when the incident occurred. If he was not an occupier and simply an entrant he has a cause of action.

[31] The definition of an occupier under the Occupiers’ Liability Act is broad.

Section 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; (the "occupant")

[32] The case law confirms that there can be more than one occupant. In Fedorowycz v. Katsiroubas, 2009 ONSC 3700 at paragraph 20, Justice Code said:

That statute clearly contemplates circumstances in s. 1 where there is “more than one occupier of the same premises” on the basis of “physical possession of the premises” or “responsibility for and control over the condition of the premises” or both.

[33] The Court of Appeal confirmed in Couch v. McCann (1977), 77 D.L.R. (3d) 387 (Ont. C.A.) at paragraph 7. Houlden, J.A. said the following:

The leading modern case on who is an occupier is the decision of the House of Lords in Wheat v. E. Lacon & Co. Ltd., [1966] A.C. 552. There it was held that a person could be an occupier without having exclusive control of the premises and that control could be shared between two or more persons. Lord Denning gave the following definition of an occupier (at p. 578):

… wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’…

and Lord Pearson in his speech enunciated this test (at p. 589).

The foundation of occupier’s liability is occupational control, i.e., control associated with and arising from presence in and use of or activity in the premises.

[34] David says he had no control over the home and referred specifically to the fact that Caroline had her father install new flooring in the house. David just carried the boxes of flooring. As well, David wanted to widen the driveway but she would not allow him to do so.

[35] The evidence confirms that David could in fact say who could and who could not enter onto the premises. He contributed to the ongoing expenses of the premises. He performed tasks that assisted in the maintenance of the premises and exercised control over the premises. All of his activities in connection with the premises lead to the conclusion that, in addition to residing at the premises, he had responsibility for and exercised control over the condition of the premises and control over persons allowed to enter the premises, and that he was therefore an occupier of the premises.

[36] I accept that David was himself an occupier of the premises under the Occupier’s Liability Act, and is therefore precluded from maintaining a claim against Caroline.

[37] The parties were unable to find any case law that was at all similar to this fact situation. Caroline says this is because it is obvious that one cannot bring suit against a co-occupant for this kind of accident. David says it is because most of these cases settle before trial.

[38] Given that the legislation has been in effect for almost 40 years, I do not accept David’s assertion that there is no case law on point because all these cases settle. I do accept that it is because the legislation was never intended to permit co-occupants to sue each other under the Occupiers’ Liability Act. It stands to reason that a co-occupant is not an entrant on the premises as envisioned by the legislation.

[39] In the event that I am wrong and Caroline owed a duty of care to David, it is David’s burden to prove that there was in fact a hazard. David admitted that he had inspected the walkway prior to the accident. He did not prove on the balance of probabilities that there was a significant discrepancy in height between the concrete slabs. He did not establish that the accident happened in the way that he said it did.

[40] He could have provided measurements of the trip ledge, but failed to do so.

[41] David admitted that he had seen the unevenness between the concrete slabs prior to April 21 and was therefore aware that there was a possible hazard. Thus it was not the “concealed danger” to which he referred in paragraph 5 of the Statement of Claim.

[42] In conclusion, all the evidence that forms part of the record in support of this motion, leads me to conclude that the defendant’s motion for summary judgment must be granted.

Costs

[43] At the end of the argument on the motion, I asked each side for a costs outline. The defendant having been successful on the motion is entitled to her costs. Given that the motion is entirely dispositive of the action she seeks her costs on a partial indemnity basis of the entire action in the total amount of 37,582.89. I have reviewed the costs outline. In my view, some of the time expended strikes me as excessive. I am therefore awarding costs to Caroline in the amount of $30,000 all inclusive.

Van Melle, J.

Released: September 28, 2018