Court File and Parties

COURT FILE NO.: CV-15-99-00 DATE: 2018/10/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SLAVA KUSHNIR Plaintiff – and – JAMIE MACARI and CP REIT ONTARIO PROPERTIES LIMITED and ARCTURUS REALTY CORPORATION Defendants

Counsel: Warren Whiteknight, for the Plaintiff S. Daniel Baldwin, for the defendant Jamie Macari Brian G. Sunohara, for the defendant CP Reit Ontario Properties Limited Michelle Lufty and Jessica Warwick, for the defendant Arcturus Realty Corporation

HEARD at Kingston: September 6, 2018

hurley, j.

Reasons for Decision

Introduction

[1] These are motions for summary judgment by the defendants CP Reit Ontario Properties Limited (“CP”) and Arcturus Realty Corporation (“Arcturus”). The former owns a shopping plaza in Kingston known as the Kingston Centre and the latter manages the property.

[2] On October 15, 2014, the plaintiff Slava Kushnir was struck by a car driven by the defendant Jamie Macari as she was walking across an internal access road (the “access road”) at the Kingston Centre. A four week jury trial is scheduled to commence January 7, 2019. Mr. Macari acknowledges that his liability can only be resolved at a trial and did not participate in the motion. [1]

[3] The claim against CP and Arcturus is based on their alleged breach of the Occupiers’ Liability Act, R.S.O. 1990, O.2 (the “OLA”). They admit, for the purposes of the motion, that both were occupiers of the property on the date of the accident but contend that there is no genuine issue for trial as against them because no reasonable jury, properly instructed, could conclude that they breached the OLA. Alternatively, the claim is so weak that, consonant with the culture shift inaugurated by the Supreme Court of Canada’s decision in Hryniak v. Mauldin 2014 SCC 7, I should grant summary judgment dismissing the action as against them because it would be a fair and just result that will best serve the goals of timeliness, affordability and proportionality.

The facts

[4] The access road is a paved, two lane road which runs in a north-south direction and transects the shopping centre. On the east side are retail stores, food outlets and one of the anchor tenants, a branch of the Toronto Dominion Bank. There is a sidewalk adjacent to the roadway but only on the east side. On the west side is a parking lot and another of the anchor tenants, a large Loblaws grocery store.

[5] At the north end is a controlled intersection where the access road meets a public roadway, Princess Street. There is a marked pedestrian crosswalk at this intersection. About 110 metres to the south of this intersection is one with another internal road. At this intersection, there is a marked pedestrian crosswalk with four-way stop signs.

[6] The accident occurred at a midway point between these two intersections where there is an entrance/exit for vehicles entering and leaving the Loblaws parking lot. There is a stop sign for vehicles leaving the parking lot.

[7] On October 15, 2014, Ms. Kushnir ate dinner at a Wendy’s restaurant on the north side of Princess Street. She finished dinner around 6 p.m. She intended to purchase groceries at the Loblaws store before returning home. She lived in an apartment building that was a short distance west of the store. She travelled south, first crossing Princess Street and then walking on the sidewalk that ran along the eastern boundary of the access road.

[8] When she reached the area of the entrance/exit that I just referred to, she crossed the access road. Mr. Macari, who was stopped at the exit intending to turn left, saw her on the sidewalk. There was nothing obstructing their view of each other. Mr. Macari turned left, striking Ms. Kushnir when she was about halfway across the access road. He claims not to have seen her crossing the roadway because she was in his “blind spot”.

[9] At the time of the accident, Ms. Kushnir was 76 years old and walked with a cane. She is a retired professor. She suffered serious injuries, including fractures to her pelvis and spine and a closed head injury which has affected her memory of the accident.

[10] Both sides have retained experts who delivered written reports and were cross-examined. Ms. Kushnir’s expert, Tonny Johansen, opined that there is a “desire line” in proximity to the accident scene which would result in pedestrians crossing at this point instead of the marked crosswalks. The expert retained by CP, Russell Brownlee, who defines a “desire line” as “the place people would like to walk”, disputes that one existed in the location where Ms. Kushnir crossed the access road.

[11] There is evidence of substantial pedestrian traffic at and near the accident site. Ms. Kushnir’s lawyer hired a retired police officer, Paul Tohill, who went to the site in January 2015 on three separate days. On the first day he saw 20 people cross in 55 minutes; on the second, 18 people cross in 45 minutes; and on the third, 47 people cross in 30 minutes. He returned in June 2018 and observed a comparable number of pedestrians crossing the access road on two separate dates.

[12] Mr. Johansen and Mr. Brownlee also differed on the measures that could be taken to reduce the potential for accidents involving cars and pedestrians at the location.

[13] In his report dated March 1, 2016, Mr. Johansen wrote, under the heading “potential remedial measures”:

“There are two directions that remedial works at the site could take to reduce the potential for conflicts and to better accommodate the walking public. The first would be to reduce the points of vehicular conflict. The second would look at means of modifying the pedestrian traffic.

There are only about seven queue spaces available for left turning vehicles at Princess Street before the queue interferes with the turning movements at the access point to the parking area for the Loblaws store. We suspected that queue lengths already exceed this length at times. As the Kingston Centre fills its available building pads, traffic will increase, creating more conflict at this point. One solution would be to remove the driveway access point where the collision occurred. This would also have the benefit of reducing traffic conflicts with pedestrians.

Good site design services the pedestrian desire lines in a safe, efficient manner. It is obvious that there exists a desire for pedestrians to walk along the south side of the TD Bank past the point of the existing concrete walkway. This walkway ends at the westerly parking stall. The worn area indicates that substantial numbers of pedestrians walk past the end of the walkway.

Modifying pedestrian travel can be accomplished by positioning barriers in their path and/or providing alternatives to satisfy those desires. For example, a raised planter could be constructed to dissuade people from walking past the sidewalk. A new walking surface can be constructed front [sic] the face of the bank building to the existing sidewalk along the access driveway. Both these measures have the benefit of moving pedestrians from crossing the exit portion of the TD Bank’s drive- through teller aisle.

If the landowner wished to restrict pedestrian traffic from crossing the access driveway, they could construct a barrier along the southeast side of the access road curb. This would direct pedestrian traffic to Princess Street or to the crossing near the transit terminal.

A further option to mitigating the conflicts would be formalize the crossing of the access driveway with a properly signed and marked pedestrian crossing.”

[14] He concluded:

“In summary, we believe there are aspects of the site conditions and operation that may have contributed to the collision.”

[15] In a report dated April 24, 2017, Mr. Brownlee specifically addressed these proposed remedial measures:

Candevcon Improvement Option

Comments

Remove parking lot access

The Candevcon report identifies the overall site layout and building orientation, the curb depression, and the driveway access as reasons for pedestrians choosing to cross midblock between two closely spaced controlled crossings. Based on our field review of the various angles and paths used by pedestrians on the subject site, it is our opinion that the presence of the parking lot access and curb depression have little impact on the pedestrian crossing locations.

Install a raised planter or positioning barriers along the informal path west of the TD Bank sidewalk

Unless the barrier was continuous and high/dense enough to prevent an able-bodied pedestrian from crossing, it would have little effect on midblock crossings of the access road. A barrier on the east side of the sidewalk would not have prevented Ms. Kushnir from travelling from the sidewalk into the path of the Macari Pontiac, i.e., the barrier would not have been between the sidewalk Ms. Kus[h]nir was travelling on and the internal road.

Construct a barrier between the roadway and the sidewalk

Unless the barrier was continuous and high/dense enough to prevent an able-bodied pedestrian from crossing, it would have little effect on midblock crossing of the access road. The barrier would require a minimum 0.5-metre offset from the internal road to provide an operational offset to traffic. Winter maintenance of the roadway and sidewalk facility would be challenging with a continuous barrier along the sidewalk. It has been our experience that a barrier of the type and extents being proposed is not typical in a commercial site, except in instances where a significant fall hazard such as a retaining wall or embankment is present.

Provide a controlled pedestrian crossing at the driveway access

The Candevcon report acknowledges that traffic queues from the Princess Street signalized intersection are currently queuing through the proposed controlled crossing location. The separation distance between the proposed controlled crossing and the existing traffic signal would be 50 to 50 metres, which is well below any industry guidance or motorist expectations. Notwithstanding the above, the Candevcon report failed to complete a basic assessment of pedestrian volumes, pedestrian and vehicle delays, intersection spacing, or potential queue spillback, prior to offering the midblock crossing as a viable option.

[16] He concluded:

“Based on the above review, we do not agree with the Candevcon report finding that “there are aspects of the site conditions and operation that may have contributed to the collision.” The Candevcon report makes no causal link between the site layout or its operations to the reported incident circumstances.

The design of the private retail site, internal roadway, and pedestrian facilities did not require or encourage Ms. Kushnir to cross at the uncontrolled midblock location in order to travel between her intended origin and destination on the incident date.” [emphasis in original]

[17] CP and Arcturus have not produced any written records about inspection and maintenance of the property with the exception of a report prepared by a company called RiskCheck dated July 24, 2014 which, under the heading “Executive Summary” states:

An annual assessment of the property was conducted on July 24, 2014 by Jennifer Wong, RiskCheck Consultant, accompanied by Dave Stone, representing Arcturus. Based on the assessment findings, the consultant has deemed the site as being: NON COMPLIANT” [emphasis in original]

[18] The report does not refer to the accident location. Mr. Stone, who was employed by Arcturus as its operations manager at the time of the accident, was at the Kingston Centre one to two days a week and was not aware of any issues about pedestrians crossing the access road or any previous accidents. He did not keep any written records of his management of the property.

The law

[19] Sections 3 (1) and (2) of the OLA provide:

“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.”

“The duty of care provided for in subsection (1) applies whether the dangers caused by the condition of the premises or by an activity carried on on the premises.”

[20] In Kerr v Loblaws Inc., 2007 ONCA 371, Cronk, J.A. stated at paras. 19 – 20:

As stressed by the trial judge, the standard of care imposed on Loblaws in this case is a standard of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks. In my view, the above-quoted instructions by the trial judge properly drew the jury’s attention, in clear and precise terms, to Loblaws’ obligation to take such care as was reasonable in all the circumstances to make the Zehrs’ premises reasonably safe for customers.

Importantly, the trial judge also told the jury that it should assess whether Loblaws took reasonable care in the circumstances by considering the measures employed by it to render the Zehrs’ premises reasonably safe for Ms. Kerr, as a store patron, including such matters as notice, lighting, guarding, and maintenance. The effect of this direction was to inform the jury that Loblaws was required by the standard of care set out in s. 3(1) of the Act to take positive steps to render the Zehrs’ store premises reasonably safe. It also alerted the jury to its task of determining whether the steps taken by Loblaws were sufficient to discharge the burden placed on it by the Act.

[21] In Waldick v Malcolm, appeal dism’d , the plaintiff suffered a fractured skull when he fell on the icy parking area of a rural residential home occupied by his sister and brother-in-law. It was not common for the local residents to salt or sand their laneways in the winter. The plaintiff was aware that the laneway was slippery and very icy. Because of its condition, he was especially careful in driving up the laneway. After parking his truck, he walked cautiously to the house. Later on, he decided to retrieve a pack of cigarettes from his truck and was able to do so without falling. But on the way back, he fell. The trial judge found the defendants liable for breach of the OLA and their appeals to the Ontario Court of Appeal and Supreme Court of Canada were dismissed.

[22] In upholding the trial judge, Blair, J.A. stated at paras. 27 – 28:

I agree with the learned trial judge that "in all the circumstances of the case" the appellants were under a duty to "render their parking area less dangerous" because of the hazards created by the "icy and slippery surfaces" on the parking area which had existed for a period of four days. The appellants did nothing about the parking-lot and, in my opinion, the trial judge was right in saying that "by doing nothing" the appellants failed to meet the standard of care required of them under the Act. He held that the statement of Moir J.A. in Preston, supra, applied equally to this case where he said at pp. 648-9:

Surely it is necessary for the occupier to inspect and to protect visitors if the conditions become dangerous by blocking access to dangerous areas in the lot, by sanding or salting (as was done on the sidewalk), or by any other reasonable and inexpensive means. To do nothing at all regardless of changing conditions is surely not reasonable care to see that visitors are reasonably safe.

I can find no fault with the conclusion of the trial judge as to the duty imposed on the appellants by s. 3(1) at p. 631 O.R., p. 700 D.L.R.:

I consider also the fact that in the defendant Mrs. Malcolm's own words salt is not expensive. Nor, in my view, is the size of the defendants' parking area so large as to make the cost of sanding or salting dangerous areas prohibitive. While I am not prepared to find that the defendants ought to have cleared or salted or sanded every square inch of their parking area, it would have been reasonable to set aside a portion of their lot next to the entrance for treatment. I accept that icy conditions during Ontario winters are a fact of life. I accept as well that occupiers are not insurers and that it is reasonable to expect that visitors will take reasonable care for their own safety. However, by virtue of s. 3(1) of the Act an affirmative duty rested upon these defendants to see that visitors such as the plaintiff were reasonably safe on their premises. Doing nothing at all under the circumstances was not reasonable care and I find them in breach of s. 3(1) of the Occupiers' Liability Act.

[23] The general principles applicable in a summary judgment motion have been well settled by the appellate jurisprudence following Hryniak. What has not yet been considered by the Court of Appeal as a discrete factor is the mode of trial chosen by the parties. Does a jury notice matter?

[24] Many trial judges think it does. As noted by Dunphy, J. in McDonald v. John/Jane Doe, 2015 ONSC 2607, a trial by jury is a substantive right and should not be lightly interfered with (para. 38). He cited the following passage from the decision of Edwards, J. in Mitusev et al. v. General Motors et al., 2014 ONSC 2342 at para. 91:

“Juries are told every day that they may draw reasonable inferences from the evidence even though there is no direct evidence on a particular point. On a motion for summary judgment, while it is clear that the motion judge is required to determine whether there is no genuine issue for trial – even in the face of a jury notice, where the motion judge is unable from the evidence filed to make findings of fact, and to thereafter apply the law, it seems to me that it would be the exceptional case that the motion judge would exercise the expanded fact-finding allowed by rule 20.04 (2.1) and (2.2) to effectively usurp the fact-finding role of the jury.”

[25] In deciding whether a genuine issue for trial exists in a jury case, MacLeod, J. in Roy v. Ottawa Capital Area Crimestoppers, 2018 ONSC 4207 suggested the following approach at para. 38:

“If factual findings are to be made on a summary judgment motion, particularly in the face of a jury notice, summary judgment should only be granted if the evidence is such that no reasonable jury properly instructed could find for the plaintiff.”

[26] Other judges have, arguably, disagreed with the notion that there should be any difference in the interpretation and application of rule 20.04 because the parties have chosen trial by jury: see Mehlenbacher v. Cooper, 2017 ONSC 3434 at paras. 38-40 and B. (R) v. S. (E), 2017 ONSC 7866 at paras. 16-18.

[27] The existence of conflicting expert opinions does not preclude summary judgment: Ozimkowski v. Raymond, 2018 ONSC 5779. However, this is a factor which should be considered. In Frame, et al v. Watt et al., 2016 ONSC 718, Henderson J. stated at paras. 33 – 34:

“I start my analysis by observing that it is very difficult for any court to resolve an issue where there is conflicting expert evidence. Conflicting evidence as between lay witnesses can often be resolved by considering inconsistencies in the sworn evidence, bias, her credibility problems. However, in the present case, I am presented with two sets of qualified experts who have no significant credibility issues, but differing opinions.

In that regard, I adopt the comments of Edwards J in the case of Paul v. Oliver Fuels Ltd., [2012] O.J. No. 540 at para. 44 as follows:

While there may very well be cases in the future with conflicting expert opinions that are amenable to a motion for summary judgment, it strikes me that where there are conflicting experts opinions, in general, such a case is not,… amenable to summary judgment.”

Analysis

[28] At trial, the judge would instruct the jury that the onus is on the plaintiff to prove that the alleged unsafe condition existed and it was a direct and contributing cause of the plaintiff’s injuries. The jury would be asked to answer “yes” or “no” to the following question:

“Did the defendants take such care as in all the circumstances of the case was reasonable to see that the plaintiff was reasonably safe while on the defendants’ property?”

[29] In seeking to convince the jury that they should answer yes to that question, the plaintiff’s lawyer could rely on the following evidence and argument:

(i) there was a high volume of pedestrian traffic at the location of the accident which the defendants knew or should have known about. (ii) given the amount of pedestrian traffic and Mr. Johansen’s opinion that there was a “desire line” at the location, it had effectively become another pedestrian crosswalk at a busy shopping centre. (iii) the risk of a car – pedestrian accident was twofold: cars travelling north and south and those entering and leaving through the entrance/exit. (iv) drivers intending to either enter or leave the parking lot may not be as focused on pedestrians crossing the roadway or could be distracted by oncoming vehicles and not see people crossing the roadway (v) if drivers had been made aware of the popularity of this informal, unmarked pedestrian crosswalk, they would have likely taken extra care in order to avoid striking pedestrians crossing at it. (vi) a car-pedestrian accident will almost invariably result in severe injuries to the pedestrian and, because of the gravity of these potential consequences, preventative steps should have been taken by the defendants even if the risk of an accident was low. (vii) in addition to considering the expert opinions, the jury can, as the judge will instruct them, use their common sense and conclude that, in the circumstances, there was a foreseeable risk and that there were precautionary measures that could have been taken, such as signs, traffic control devices or even the closure of the entrance/exit, and these would have made the premises reasonably safe for those people who decided to walk rather than drive at the shopping centre. (viii) the jury should reject the evidence of Mr. Stone and find that, if the defendants had exercised reasonable care in inspecting and maintaining the property, they would have known that this location had become a popular route for pedestrians which in turn increased the risk of a serious accident. (ix) this is not a case of an occupier analyzing a risk and concluding that there wasn’t one, or that it was a very minor risk and nothing could be done to reduce or eliminate it, or something could be done but it would be prohibitively expensive; rather, the defendants ignored or failed to appreciate the risk and did nothing at all. (x) although there were marked pedestrian crosswalks that the plaintiff could have used, her failure to do so and her decision to cross at another location where there were wasn’t one, can be considered by the jury in deciding whether the plaintiff used reasonable care on her part for her own safety and, if she did not, to decide the degree to which the fault of the plaintiff and defendants each contributed to the accident.

[30] The defendants will be able to counter each of these points and their arguments may very well carry the day. But I cannot say, with any degree of certainty, that they will. Cases under the OLA are particularly fact driven as the decision in Waldick exemplifies. Another trier of fact, whether a judge or jury, could have concluded in that case that the defendants were not liable given the time of year, the evidence of local custom and the plaintiff’s decision to knowingly cross the same icy patch of ground three times. Yet the Court of Appeal and Supreme Court of Canada upheld the trial decision, finding not only that the trial judge was correct in his application of the law but also that he did not make any palpable and overriding error in deciding that the plaintiff was not contributorily negligent.

[31] The nature of the property and location of the accident are important. Unlike a municipality which is burdened with the responsibility of maintaining a public roadway system, the defendants had a small network of roads they were required to inspect and maintain. The accident occurred on a road which transects a large shopping centre; it would be foreseeable that customers would cross that road on foot to get from one area of the shopping centre to another. Over time, as happened in this case, a specific area might become a popular crossing spot and, if it is in close proximity to a vehicle intersection, the risk of what the experts euphemistically called pedestrian -car “conflicts” would increase. A reasonable jury, properly instructed, could find that the risk should have been addressed by the defendants and that they breached the OLA in failing to do so.

[32] The defendants submitted that, because Mr. Johansen used the modal verb “may” in his written report, the plaintiff could not meet the necessary civil burden of proof because this verb denotes only possibility and not probability. Although the defendants cross-examined Mr. Johansen, they did not, for strategic reasons, ask any questions about his choice of the word “may”. I agree with the plaintiff that the expert evidence would not be determinative of the issue of liability because the jury would be instructed that they could apply their own common sense in deciding whether or not the OLA was breached. Further, it would be the viva voce evidence of Mr. Johansen that the jury would consider and not just his report. He could testify using stronger language or explain that the use of “may” simply meant that he cannot be certain the remedial measures outlined in his report would have prevented the accident.

[33] Based on the totality of the evidence, it is a reasonable possibility that a jury could find that the property was unsafe, that its condition caused or contributed to the plaintiff’s injuries and that CP and Arcturus breached the OLA in the circumstances.

[34] Having reached this conclusion, I turn to the alternative submission that I have the jurisdiction under Hryniak to grant summary judgment if I believe that it is the most timely, affordable and proportionate manner of proceeding in the circumstances. There is much to be said for the bright line approach of MacLeod, J. in Roy and, in a jury case, to grant summary judgment only if no reasonable jury, properly instructed, could find the defendant liable. I would be reluctant to substitute my opinion if I thought that it would be open to a jury to disagree with me.

[35] I do not have to come to a final determination on this issue because, even if I accepted the alternative submission, I think that a trial is the proper forum for a fair and just resolution of this case. The trial is only three months away and it will not be unduly lengthened or complicated if the trial proceeds against all three defendants. I decline to exercise the expanded fact finding powers under Rule 20.04 because that would inevitably result in an adjournment of the trial which, given the date of the accident and the age of the plaintiff, would not be appropriate.

Disposition

[36] These motions are dismissed. If the parties cannot agree on costs, the plaintiff can file written submissions not to exceed two pages exclusive of the cost outline, dockets and caselaw within 10 days of the date of the release of this decision. The defendants will have 7 days in which to file their written submissions which should be of the same length.

Hurley, J. Released: October 15, 2018

Kushnir v. Macari, 2018 ONSC 6128 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: SLAVA KUSHNIR Plaintiff – and – JAMIE MACARI and CP REIT ONTARIO PROPERTIES LIMITED and ARCTURUS REALTY CORPORATION Defendants REASONS FOR JUDGMENT Hurley, J. Released: October 15, 2018

[1] A letter from his counsel was filed at the outset of the hearing confirming the parties’ agreement that the facts of the accident as between the plaintiff and Mr. Macari are disputed and that any findings of fact that I might make in this motion do not bind Mr. Macari at trial.