Lebko v. Toronto Standard Condominium Corp. 1862, 2019 ONSC 1602

Court File and Parties

COURT FILE NO.: CV-13-477090 DATE: 20190312 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Aniela Lebko and Joanna Lebko Plaintiffs – and – Toronto Standard Condominium Corp. 1862, Del Property Management Inc., thyssenkrupp Elevator (Canada) Limited and G4S Secure Solutions (Canada) Ltd. Defendants

Counsel: Sonia Leith, for the Plaintiffs Grant G. Walsh, for the defendants, Toronto Standard Condominium Corp. 1862 and Del Property Management Inc. B. Leanne Rapley and Sharon K. Dhami, for the defendant, thyssenkrupp Elevator (Canada) Limited Stuart Zacharias, for the defendant, G4S Secure Solutions (Canada) Ltd.

HEARD: December 12, 2018

REASONS FOR DECISION

C. J. BROWN, J.

1The defendants, Toronto Standard Condominium Corp. 1862 (“TSCC”), Del Property Management Inc. (“Del”), thyssenkrupp Elevator (Canada) Limited (“thyssenkrupp”) and G4S Secure Solutions (Canada) Ltd. (“G4S”) all bring separate motions for summary judgment as against the plaintiffs, Aniela Lebko and Joanna Lebko, on the grounds that there are no genuine issues for trial. Pursuant to the order of Dow J., dated January 15, 2018, all summary judgment motions were ordered heard together.

2I am advised by thyssenkrupp’s counsel that the correct spelling of its name is not capitalized.

3The plaintiffs bring this action for an alleged trip and fall at the condominium building located at 35 Viking Drive, Etobicoke, Ontario (owned by TSCC and managed by Del), where Joanna Lebko lived and her mother, Aniela Lebko, was visiting.

4The action is brought against TSCC and Del as owner and manager, respectively, of the condominium; G4S as the security/concierge at the condominium; and thyssenkrupp as the elevator maintenance/repair contractor retained by TSCC.

5The plaintiff, Aniela Lebko, aged 64 at the time of the trip and fall, alleges that the fall occurred while she was exiting Elevator 2 at level P1 due to mislevelling of the elevator upon reaching the floor. She alleges that, as a result of the trip and fall, she sustained a broken left wrist and dislocation of her right shoulder. She claims damages in the amount of $2 million. Her adult daughter, Joanna, claims damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 for loss of care, companionship and guidance in the amount of $200,000.

6Pleadings in this action are complete, as are examinations for discovery. A mediation was held in 2016. The three week trial is scheduled for October 5, 2020, with a pretrial August 14, 2020. All defendants have cross-claimed against one another. All cross-claims are standard, boilerplate cross-claims. As regards these motions, there were no cross-examinations on any affidavits filed. Thus, all statements made in those affidavits remain uncontroverted.

Background Facts

735 Viking Dr., Etobicoke is a 29 story condominium, owned by TSCC. It is serviced by four elevators.

8TSCC, through its agent, Del, contracted with G4S to provide security/concierge service to the condominium, pursuant to the “Concierge Service Agreement” in evidence. The only provision relative to elevators in the contract was clause 21, as regards what to do in the event of “elevator entrapment”. As part of their regular tasks, G4S made regular patrols of the condominium, which included riding elevators multiple times a shift to look out for any issues, which would include levelling issues. These inspections were documented in their Daily Officers Reports.

9The Technical Standards & Safety Authority (“TSSA”) is the governing authority responsible for overseeing the safe operation of all elevating devices in Ontario. Its inspectors conduct periodic inspections of all elevating devices in the province. In March 2011, approximately one month before the incident, the TSSA conducted a routine inspection of all elevating devices on the subject premises. None of the resulting directives related to the safe operation of the devices. None of them referenced any levelling issues.

10As regards maintenance of the elevators, the standards applicable are as set by the Canadian Standards Association (CSA) B44 Code for elevators and other lifting devices (“CSA B44 Code”).

11thyssenkrupp entered into a “Comprehensive Maintenance Agreement” to provide maintenance and repair service to the condominium in accordance with the CSA B44 Code. Pursuant to clause 1.3 of the Agreement, “the contractor shall a minimum of one time per month at approximately the same time of the month, provide maintenance services. The services are to be consistently performed in each and every month during the term of the contract”. This section further provided that one hour per elevator would be carried out by the mechanic.

12Pursuant to clause 20 of the Agreement, “Maintenance Specifications”:

a) the contractor shall be responsible for the maintenance of the elevators, including the examination, cleaning, adjustment, lubrication, repair, or replacement of all mechanical and electrical components of the elevators (clause 20.1);

b) the contractor shall be responsible for keeping the performance of the equipment including: speed, acceleration and deceleration, door operation in both directions, door dwell times, levelling and ride quality while adjusting and operating in the manner to which it was originally designed (clause 20.3).

13Pursuant to clause 20.9, the following was to be carried out: “ride elevators and observe levelling”.

14thyssenkrupp provided monthly maintenance in compliance with the CSA B44 Code as indicated by its work order reports, its monthly maintenance reports and the logbook maintained at the condominium, all filed in evidence. Its most recent monthly maintenance service of the elevators, including Elevator 2, the elevator which is the subject of this action, was dated March 24, 2011. The evidence indicates that there had been no mislevelling issues as regards any of the elevators from 2008 onward. No monthly maintenance reports or job tickets refer to any mislevelling issues. None of the parties examined for discovery, including the plaintiffs, had noted any mislevelling issues as regards the elevators, and particularly Elevator 2.

15In addition to the regular monthly maintenance routine, thyssenkrupp was required to attend the condominium, at the request of the building and elevator owners or agents, to provide service when problems arose. Service attendances were documented by job tickets. Those job tickets which were the subject of this action are in evidence.

16In March 2011, approximately one month before the incident, TSSA conducted a routine inspection of all elevating devices on the subject premises. None of the resulting directives related to the safe operation of the devices. None of them referenced any levelling issues.

The Incident

17Pursuant to the evidence filed, on April 2, 2011, at 12:20 PM, G4S Security Officer (“S/O”) Farrukh Ikram made note of a complaint by a resident that Elevator 2 was “not stopping level with floor”. S/O Ikram further noted that he “checked the elevator at different floors” and it “seems to be okay”.

18On April 2, 2011, at 1:15 PM, S/O Pat Osborne made note that another resident reported that Elevator 2 was making a “squeaking noise” and “bouncing when stopping”. S/O Osborne further noted “elevator taken out of service at P4 and superintendent advised”. At that time, the condominium had two superintendents, Mitch Tomuta and Gustavo Mauro, neither of whom have any recollection with respect to conversations regarding the elevators on April 2, 2011. Accordingly, the contemporaneous notation of G4S that “superintendent advised” is uncontradicted.

19The notes from G4S for that day and the next day, April 3, indicate that Elevator 2 remained out of service.

20Those notes further indicate that at 8:10 AM on April 4, thyssenkrupp’s technician, Adam Maxmenko, attended at the condominium. Based on all of the evidence, it is unclear as to whether he attended as part of the monthly maintenance schedule or as a special attendance, although it appears based on the materials from thyssenkrupp itself that it was for a monthly maintenance attendance. The notes of S/O Anthony Rampersaud indicate that “Adam [Mr. Maxmenko] was on-site at 8:10 AM”. It was also noted at that time that Mr. Maxmenko was “informed about Elevator 2/Phase 1”. Mr. Maxmenko himself, in his affidavit, states that he does not recall what he was informed when he attended on April 4, 2011, or what exactly he did.

21The notations indicate that he was in attendance from 8:10 AM, off and on until 4:47 PM.

22While the plaintiffs argued that it was not clear what Mr. Maxmenko had been told on April 4, or what he actually did during his attendances there on that day, the notations from G4S contained numerous references to “keys” and “keys returned” in relation to Mr. Maxmenko‘s attendances and the elevator room. The representative from thyssenkrupp testified that if an elevator were off-service, the technician would know about it and would make inquiries as to why it was out of service, or would do his own investigation.

23In his affidavit, Mr. Maxmenko stated that “if a car was down, I would have worked to return it to service while I was there doing maintenance”. On discovery, thyssenkrupp’s representative testified that even if a mechanic knew nothing more than that there was some issue with a particular elevator, he would expect the technician to do the following: “ride the elevator, check the operation, possibly put the elevator on test and then – which it looks to me like he possibly did – put it into a test mode.” Further, if the mechanic knew nothing more than that there were some issue with a particular elevator, he would undertake inspections that would include observations with respect to levelling. Mr. Maxmenko himself stated in his affidavit “when I complete maintenance on any elevator, I monitor the operation of the elevator for numerous functions including ensuring that the elevator is levelling properly”.

24As regards responsibility for putting the elevator back in service, the thyssenkrupp representative testified on examination for discovery that it would be the responsibility of the thyssenkrupp technician to put the elevator back in service if he felt it was safe to operate. The same representative stated in the affidavit filed in support of these motions as follows: “Similarly, if he considered an elevator unsafe to operate, he would be required to leave it shut off”. All defendants agreed that the only persons qualified to deal with the elevator, including returning it to service, were the certified, licensed elevator technicians employed by thyssenkrupp.

25Indeed, O. Reg 209/01: Elevating Devices, at s. 24, prohibits anyone who is not a qualified mechanic under the Elevating Devices Regulation to undertake any work, or to be involved in any task that is necessarily ancillary or incidental to the installation or maintenance of an elevating device. thyssenkrupp was a contractor which employed mechanics qualified to work pursuant to the appropriate regulation. Mr. Maxmenko was a certified, licensed elevator technician, classified as EDM-A, the highest qualification. Neither the employees of the condominium nor the other defendants would qualify as persons able to undertake any work or be involved in any task that is necessarily ancillary or incidental to the installation or maintenance of the subject elevators.

26The records indicate that Mr. Maxmenko attended at the condominium several times on April 4 from 8:10 AM to 4:47 PM, and that a second technician (Nadar) attended with Mr. Maxmenko for a short time in the morning.

27At 4:47 PM on April 4, 2011, S/O Vijay Mehta made note of “Adam – thyssenkrupp elevator off site.”

28S/O Sekulic made a notation that at 5:50 PM, he commenced patrol of “exterior and amenities; elevators, garage ohd’s and garbage compactors and found them to be “functioning well”. It is not clear from the notes at what time he arrived at Elevator 2.

29Based on the video which records the plaintiff’s accident, the incident occurred between 5:59 and 6 PM on April 4, 2011, approximately one hour and 13 minutes after Mr. Maxmenko left the condominium. There were no cameras in the elevator. The only camera was at the elevator foyer, which depicted the elevator doors and foyer. The plaintiff, Aniela Lebko, testified that she had left her daughter’s unit for the first time that day to go down to the mailroom. She was wearing a type of house sandal. She entered Elevator 2 on the 19th floor and descended to P1. She testified that when the elevator stopped, she was in the process of exiting when she tripped violently over something and fell out of the elevator onto the area rug. She does not know on what she tripped and did not look back. There were two gentlemen in the foyer who went to her assistance to get her up on her feet. They asked if she was okay, but she did not answer. She apparently went to the mailroom, but did not get the mail, went back into the elevator foyer and got onto an elevator to return to her daughter’s unit. When she arrived at the unit she began to experience pain, noticed that her hand was swelling and called her daughter at work. Her daughter came home and took her to the hospital where she remained until the next afternoon.

30One witness was a resident of the condominium and, one year later, gave a statement. The witness, Dan-George Albu, stated, inter alia, that he noticed, after the woman fell, that the floor of the elevator was not level with the foyer and estimated it to be approximately 1/4 - 1/2 inch below the foyer threshold. He also noted that the woman was wearing “flip-flops”. He and another person entered Elevator 2 approximately 30 seconds after the fall. And, according to the video of the foyer and Elevator 2, in the subsequent 26 minutes, 12 people including a security officer, a toddler, a woman pushing a baby stroller and another carrying a large box entered and exited Elevator 2 after the plaintiff, all without incident. No one measured the alleged levelling variance and no one took photographs or pictures.

31Neither Aniela Lebko, her daughter nor anyone else reported the incident to the condominium until the plaintiff, Joanna Lebko, upon returning from the hospital on April 5 at 3 PM, reported the incident to the concierge and the Property Manager.

32Approximately one hour after the fall, the G4S security officer doing patrol rounds at about 6:59 PM noticed Elevator 2 experiencing levelling issues. The Elevator was taken out of service and thyssenkrupp was called at 7:12 AM on April 5, 2011. Mr. Maxmenko again attended the condominium. Based on the job ticket from that day, he removed rope tar from the governor. Pursuant to the thyssenkrupp records, Mr. Maxmenko attended at the condominium several more times after April 5 to complete the regular maintenance and to follow up on the initial April 5 call.

33It was the evidence of Mr. Maxmenko that no one advised him that there had been an incident (a fall) on April 4. If that had been the case, he would have reported it to TSSA for investigation.

The Plaintiffs’ Expert Report

34The plaintiffs retained an expert, Joseph Pacitti, who has a TSSA designation of EDM-F which, I understand, indicates that he has not completed the full training for an EDM-A.

35Based on Mr. Pacitti’s report, he attended at 35 Viking Dr., Etobicoke in 2017 and determined that the monthly maintenance inspections were being done and the elevators were performing within the parameters of their design. He stated that any mislevelling was barely negligible (in the vicinity of 1/16 to 1/4 inch).

36As regards the incident in question, Mr. Pacitti stated that there were two mislevelling incidents on April 2, 2011. However, the G4S security officers’ notes indicate that there was one report of mislevelling at 12:20 PM, that the officer tested the elevator and determined that it was okay and subsequently there was another report, not of mislevelling, but of “shaking and bouncing” at 1:12 PM, at which point the elevator was taken out of service.

37Mr. Pacitti reported that the building and security/concierge service, G4S, ignored the April 2 incidents, despite the fact that the elevator was not safe for operation. He opined that had G4S notified thyssenkrupp immediately, the probability of the April 4 incident would have diminished significantly. However, the elevator was taken out of service until after the thyssenkrupp technician, Mr. Maxmenko, attended and serviced the elevator. Between the time that the elevator was put back into service and the time of Ms. Lebko’s fall, a number of people used the elevator without incident, and thereafter, until 6:59 PM, numerous people also used the elevator, including one woman with a stroller, without incident.

38In his report, Mr. Pacitti questioned whether the time spent on site by thyssenkrupp was sufficient to complete all repairs and maintenance. He reported that, in his opinion, the defendants failed to follow the proper communication chain and to follow proper protocol. He cited the failure to call thyssenkrupp immediately upon the reports of elevator problems on April 2 as an issue. I note, however, that the elevator was taken out of service from April 2 to 4:47 on April 4, after it was serviced. Further, failing to report the incident to TSSA was of concern to him. I note, in this regard, however, that no one was apprised of the incident involving the plaintiff until April 5 at 3 PM. In his conclusion, he stated that “based on all the information presented to me and with the amount of “tripping” incidents occurring throughout the city with various other elevator companies, it’s not beyond doubt that this incident occurred as described at 35 Viking Lane”.

The Law

Rule 20: Summary Judgment

39Pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, summary judgment shall be granted where there is no genuine issue requiring a trial.

40In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada determined that there would be no genuine issue requiring a trial where a judge is able to reach a “fair and just determination on the merits” of the case. This will be the case where the process: (1) permits the judge to make the necessary findings of fact on the basis of the evidence adduced; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

41Pursuant to Hryniak, the motion judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the new fact-finding powers set forth in r. 20.04. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure. If there appears to be a genuine issue requiring a trial, the motion judge should determine if a trial can be avoided by using the new powers under rr. 20.04(2.1) and (2.2). The judge may, at his or her discretion, use those powers, provided that doing so does not offend the interest of justice, i.e., that it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

42In this regard, I am cognizant of and have taken into consideration the findings of Karakatsanis J. addressing the “interest of justice” requirement in Hryniak v. Mauldin, supra, at para. 60, as follows:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

43The moving party bears the onus of establishing that there is no triable issue. However, a responding party must “lead trump or risk losing”: DaSilva v. Gomes, 2018 ONCA 610, at paras 17-18; and 1061590 Ontario Limited v. Ontario Jockey Club (1995), , 21 O.R. (3d) 547 (C.A.). The responding party may not rest on the allegations or denials in the pleadings, but must present by way of affidavit or other evidence, specific facts and coherent, organized evidence demonstrating a genuine issue. The motions judge is entitled to assume that the record contains all evidence that the parties will present if there is a trial. It is not sufficient for the responding party to say that more and better evidence will be available at trial. The court must take a “hard look” at the evidence to determine whether there is a genuine issue requiring a trial.

44The Court of Appeal has recently held in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34 that a motion for partial summary judgment is a “rare procedure”:

A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

See also Espresso Tax Credit Fund III Limited Partnership v. Arc Stainless Inc., 2018 ONSC 415.

Standards of Care regarding Elevator Maintenance

45The seminal case as regards breaches of duty pertaining to elevator maintenance remains St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, , aff’d 2007 ONCA 108.

46In that case, due to elevator doors which allegedly closed too quickly, causing the plaintiff’s tibia and fibula to fracture, the issue was as regards breaches of duties of care on the part of the condominium and elevator maintenance company. The law, principles and standards set forth therein continue to be applied in similar cases to date.

47In St. Louis-Lalonde, the court stated as follows:

[25]… At common law, the owner or occupier of property owes a duty of care to those who enter onto a property and must try to ensure that those entering on to the property will not suffer injury. Since September 8, 1980, this common law duty has been incorporated in the Occupier’s Liability Act, R.S.O. 1990, c. 0.2, s. 2 (“the Act”).

26Section 3 of the Act, defines the duty of care owed by an occupier to those who enter upon the property:

3.(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

27Section 3 of the Act establishes a duty of care only, and not a presumption of negligence. Thus, if a person is injured on the premises, a plaintiff must still be able to pinpoint some act or failure to act on the part of the occupier, which caused the injury complained of, before liability can be established. Madam Justice E.M. Macdonald, in her decision, in Whitlow v. 572008 Ontario Ltd. (c.o.b. Cross-Eyed Bear Tavern), at paras. 32-33 and 34, explained what a plaintiff has to accomplish to have success:

32 The starting principle is that the Cross-Eyed Bear must be held to a reasonable standard. A reasonable standard is not perfection. See the unreported decision of J. Holland J. in Petrovic v. Chedoke-McMaster Hospitals, .

33 Secondly, s. 3 of the Act does not create a presumption of negligence against the occupier of the premises whenever a person is injured on the premises. See Bauman v. Stein (1991), , 78 D.L.R. (4th) 118 at 127 (B.C.C.A.). A plaintiff must still be able to point to some act, or some failure to act, on the part of the occupier which caused the injury complained of, before liability can be established. This fundamental principle is sometimes overlooked by plaintiffs who presume that, when an accident occurs on an occupier’s premises, there is a presumption of negligence against the occupier of the premises. In this case, I was concerned that the plaintiffs’ case was premised on such a presumption.

34 In attempting to determine how the accident occurred, I am limited by the absence of any expert evidence which would assist the court in reconstruction of the events of the accident, having regard to Mr. Whitlaw’s height, the location where he was found and the position of his body after the fall.

28MacDonald J. also pointed out that the plaintiff must establish, on a balance of probabilities, the accessory link of causation between the alleged breach of the standard of care and the alleged injuries, in paragraph 17 of the Whitlow decision:

In McGrath v. The Toronto Transportation Commission, [1946] O.W.N. 931, the Court of Appeal dealt with the danger of a trier of fact resorting to speculation or conjecture. The comments at p.932 are relevant:

It is elementary law that the negligence of the defendant will not make him liable in an action for injuries sustained by a plaintiff, unless there is a direct connection found, with evidence to sustain it, between the injuries suffered and the negligence which has been found. It is not sufficient for the plaintiff to prove merely the accident and the negligent act on the part of the defendant. He must further prove clearly that the accident was due to the act with which such defendant is charged, and the connection between the alleged negligence and the injuries suffered must be made out by evidence and not left to the conjecture or speculation of the jury…

29In Britt v. Zagio Holdings Ltd., , Mr. Justice Killeen addressed the standard of care in cases involving persons injured on commercial properties. His decision dealt with the plaintiff who slipped and fell, as a result of the poor maintenance of the parking lot, at one of the defendant’s buildings. He stated at paragraph 14:

In cases involving commercial properties of this kind, the question of liability inevitably turns on what kind of system the owner had put in place to meet the statutory duty to keep the premises reasonably safe. It is important to emphasize as all the decided cases emphasize, that the owner is not a guarantor or insurer of the visitor’s safety, and hence, does not have to set up a foolproof standard, nor does the owner’s system have to be a model of perfection. The standard is reasonableness in all the circumstances.

30Even though the above standard of care was defined in a slip and fall case, I find it applies equally to circumstances involving elevators and lifting devices. The Newfoundland Court of Appeal in Empire Co. v. Sheppard, 2001 NFCA 10, [2001] N.J. No. 35, summarized, at paragraph 24, the law that applied to the maintenance of an escalator that I find is akin to the maintenance of an elevator, as follows:

From the foregoing authorities I would conclude that the liability of an occupier for escalator-caused injury to a visitor who has neither assumed the risk nor contributed to the injury, is to be determined by applying the following principles:

1. In seeking to hold an occupier liable for injury or damage, the burden lies with the injured visitor to prove, on a balance of probabilities, that the occupier failed to perform the actions necessary to discharge the duty of care determined to be reasonable, in all of the circumstances, to see that the visitor would be reasonably safe while using the escalator, and by reason of that failure the injury occurred [authorities omitted.]

2. The duty imposed on occupiers who have control of escalators, requires a standard of the highest practical degree of care, but that does not imply an obligation to guarantee safety or to meet a standard such that no one can ever be injured [authorities omitted.]

[31]… in situations involving elevators and other heavily regulated machinery, the determination of a “reasonable system of maintenance and inspection” must be made, as mandated by the governing legislation. Prior to June 27, 2001, such requirements were found in the Elevating Devices Act, R.S.O 1990, c. E.8, and the Regulations thereunder and, more recently, in the Technical Standards and Safety Act 2000, S.O. 2000, c. 16, that subsumed the Elevating Devices Act.

34The Elevating Devices Act did not specify precise safety standards that had to be met. Instead, those questions were left to individuals with expertise in the field. The general regulation, enacted under the Elevating Devices Act, specifically adopts the relevant safety code published by the Canadian Standards Association (“CSA”).

38. (1) Every elevator, dumbwaiter, escalator, moving walk and freight platform lift shall meet the requirements of National Standard of Canada CAN3-B44-M85: Safety Code for Elevators.

General Regulation, R.R.O. 1990, Reg 316, 32(1).

48The CSA B44 Code is designed to reflect the consensus of the safety standards that are adopted by many of the experts in the field. All updates to the Code are approved by the TSSA (Safety and Consumer Statutes Administration Act, 1996, S.O. 1996, c. 19; and Administrative Agreement, January 13, 1997). The CSA B44 Code has been relied upon by the courts, as establishing the requisite standard of care, required in cases involving elevators and other lifting devices: see Bouffard v. Canada (Attorney General), ; and St. Louis-Lalonde, supra, at para. 36.

49Where governing legislation stipulates a specific standard of care to be followed, and the defendant complies with the government standard, the plaintiff bears a “heavy onus” to prove negligence by the defendant, notwithstanding such compliance. As stated in Piche v. Lecours Lumber Co., , at para. 463:

Accepting that the standard is one of reasonable care, that standard was met by adopting and following industry or government imposed standards. It seems clear that compliance with such standards could not foreclose, in certain circumstances, findings of negligence. At the same time, the Courts have held that there is a heavy onus on a plaintiff or claimant to show that in following the standards set by government regulation or an industry standard, the third parties were nevertheless negligent.

And see: Bouffard v. Canada (Attorney General), ; and St. Louis-Lalonde, supra, at paras. 44-45.

50Where the defendant has put a “reasonable system” in place, the court must also consider whether the “reasonable system” was being followed at the material time. This will usually be inferred unless there is some evidence to the contrary. As observed in Kayser v. Park Royal Shopping Centre Ltd. (1995), , 16 B.C.L.R. (3d) 330 (C.A.), at paras. 15 and 17:

The plaintiff cannot prove on a balance of probabilities that the defendant was negligent in this case by merely stating [that] there was no direct evidence that the usual routine was being followed on the day in question. The plaintiff, upon whom the burden of proof lies, tendered no evidence suggesting that this usual routine was not followed on that day.

In this case there was evidence of a regular routine, and in the absence of any evidence, direct or circumstantial, that it was not followed on the day in question, it was entirely reasonable for the trial judge to infer that the usual routine was followed.

See also Empire Co. v. Sheppard, 2001 NFCA 10, 198 Nfld. & P.E.I.R. 53.

Positions of the Parties

Positions of the Defendants

51It is the position of all of the defendants that all of the evidence necessary to make the required findings of fact as regards each of them is before the Court on these summary judgment motions. All defendants take the position that there are no genuine issues requiring a trial and that summary judgment is the most fair, efficient, expeditious and least expensive means of achieving a just result.

Position of the Defendants, TSCC and Del

52It is the position of TSCC and Del that they had done all required of them to ensure that the premises at 35 Viking Dr., Etobicoke were safe for all persons entering onto the premises, in full compliance with all applicable legislation and regulations. They had put in place a reasonable system of ensuring that the premises, including the elevators, were maintained on a regular basis in compliance with all applicable legislation. They had entered into an Elevator Contract Agreement with thyssenkrupp, the stated purpose of which was to provide a comprehensive maintenance agreement to maintain the elevating devices at the condominium to the most recent CSA B44 Code. Elevators were maintained on a monthly basis in compliance with the Code, and thyssenkrupp was also required to attend between the monthly maintenance attendances, as required. Further, TSCC and Del contracted with a security/concierge service, G4S, which provided 24/7 security service to the condominium. In the context of that service, G4S was required to do regular patrols of the building, which included riding the elevators to ensure that they were operating properly. Indeed, on April 2, 2011, it was G4S which took Elevator 2 out of service, due to the resident complaints about the functioning of the elevator, and called the supervisor to advise. Elevator 2 remained out of service until thyssenkrupp attended at the condominium on Monday, April 4, to do servicing of the Elevator.

53It is the position of TSCC and Del that they did everything to ensure that there was a reasonable system in place to ensure Code-compliance as regards the elevators at the condominium, which indeed functioned at the material time, given that Elevator 2 was taken out of service on April 2 and not restored to service until thyssenkrupp had attended at the condominium, serviced the elevator, and subsequently put Elevator 2 back into service at 4:47 PM on April 4. Pursuant to the regulations, only a certified, licensed technician of elevators, such as Adam Maxmenko of thyssenkrupp, was permitted to put an elevator back into service after determining that it was safe to do so.

54Based on the foregoing, TSCC and Del also rely, as necessary, on the defence afforded by s. 6 of the Occupiers Liability Act, R.S.O. 1990, c. O.2.

55It is the position of TSCC and Del that, based on all the foregoing, and on all the evidence before the Court, there can be no liability on their part as regards the incident in question.

Position of the Defendant, G4S

56It is the position of G4S that, on April 2, 2011, it responded to complaints from two residents regarding Elevator 2. After the first complaint, the G4S Security Officer on duty at the time rode the elevator, but found nothing wrong with the elevator. Shortly thereafter, a second complaint came in and the G4S Security Officer again investigated and, as a result, took the elevator out of service and notified the supervisor.

57The elevator was kept out of service until thyssenkrupp, which had contractual responsibility for elevator maintenance of the building, attended to service the elevator on April 4. It was the thyssenkrupp technician who, after servicing the elevator, ultimately returned it to service at 4:47 PM on April 4. The incident occurred just over one hour later.

58It is the position of G4S that, in the event that there was anything wrong with Elevator 2 after it was serviced by thyssenkrupp, G4S cannot be found liable.

Position of the Defendant, thyssenkrupp

59It is the position of thyssenkrupp that it complied fully with its contractual obligations to TSCC and Del as regards maintenance of the elevators at 35 Viking Dr., Etobicoke, and that it complied with all of the legislation and safety codes as regards the elevators, as witnessed by the maintenance documentation.

60thyssenkrupp’s technician, Adam Maxmenko, an EDM-A licensed mechanic, was responsible, at all material times, for the elevators at 35 Viking Dr. On March 24, 2011, 11 days before the plaintiff’s incident, he completed scheduled monthly maintenance of all elevators on the premises. No issues were noted, and specifically, no levelling issues.

61There had been no noted levelling issues regarding any of the elevators at 35 Viking Dr. from 2008, such that there was no history of mislevelling, and a levelling issue could not be foreseen.

62When he attended at the condominium on Monday, April 4, 2011, Mr. Maxmenko would have found Elevator 2 out of service, as it had been taken out of service by G4S on April 2 and, according to all of their records, remained out of service until such time as it was restored to service by thyssenkrupp at the end of the day on April 4. Indeed, by law, no one but a certified, licensed mechanic such as Adam Maxmenko could return an elevator to service. Mr. Maxmenko swore in his affidavit that if a car is out of service, his practice is to work to return it to service.

63According to all of the evidence, no one reported the plaintiff’s alleged trip and fall until April 5. However, on April 4 at approximately 6:59 PM, the G4S security officer doing patrol rounds noticed that Elevator 2 was experiencing levelling issues and took the elevator out of service. This is the only documented record of a levelling issue related to Elevator 2 and reported to thyssenkrupp, in the months leading up to the incident and post-incident.

64It is the position of thyssenkrupp that it complied with the requisite standard of care as set forth in the CSA B44 Code and O.R. 209/01 of the Technical Standards and Safety Act, 2000 in providing maintenance to the condominium elevators.

65thyssenkrupp takes the position that there is no evidence before this Court to indicate that its maintenance regime was not Code-compliant or that the Code-compliant system was not being followed. There is no evidence that it failed to abide by its contract with TSCC and Del, which contract embodies, at a minimum, the standards of the CSA B44 Code.

66thyssenkrupp submits that there is no objective evidence to suggest that something Mr. Maxmenko did or failed to do on April 4 caused the plaintiff’s alleged incident. It submits that Mr. Maxmenko left Elevator 2 in a safe operating condition when he left at 4:47 PM on April 4 and that the evidence that thyssenkrupp’s mechanics would not permit an elevator to run if it was unsafe to do so is unchallenged and uncontroverted. It submits that between 4:47 PM and 6:59 PM on April 4 before and after the plaintiff’s fall, numerous residents exited and entered the elevator without incident, but for the plaintiff.

67Based on the case of St. Louis-Lalonde v. Carleton Condominium Corp. No 12, supra, thyssenkrupp submits that where it is shown that the standard of care has been complied with, “the plaintiff bears a ‘heavy onus’ to prove negligence on the part of the defendant, notwithstanding such compliance”. It submits that the plaintiff must produce at least some evidence demonstrating that the reasonable Code-compliant system of maintenance was not being followed at the material time. Otherwise, it is reasonable to infer that the usual system was being followed: Empire Co v. Sheppard, supra. In this case, there is no evidence to indicate that the reasonable Code-compliant system of maintenance was not followed.

68It is the position of thyssenkrupp that the facts establishing whether thyssenkrupp met the standard of care are not in dispute, and that those facts support the finding that thyssenkrupp met the requisite standard of care.

Position of the Plaintiffs

69It is the position of the plaintiffs that there is evidence establishing the defendants’ respective liability for the plaintiff’s trip and fall and there are genuine issues requiring a trial which must defeat the motions for summary judgment.

70It is the position of the plaintiffs that a determination of whether the standard of care was met by the three defendants must be made on a full evidentiary record, at trial, and that liability will rely on the credibility of Mr. Maxmenko, the security officers of G4S and the independent witness, Mr. Albu.

71The plaintiffs submit that TSCC and Del’s communication/reporting system did not function. The plaintiffs submit that proper protocol was not followed as regards notifying thyssenkrupp of a problem with the elevator on April 2. They submit that the proper procedure was for G4S to notify the property manager, who would then contact thyssenkrupp. Instead, they contacted the superintendent of the condominium. [1]

72The plaintiffs further allege that there was no instruction, supervision or oversight by the condominium of the work of thyssenkrupp’s certified, licensed technician. [2]

73The plaintiffs further submit that when Mr. Maxmenko left the condominium at 4:47 PM, his job ticket for attendance was unsigned by the building, and the elevator was back in service. [3]

74The plaintiffs further submit that the incident was not reported to the TSSA, which requires an immediate report to conduct a complete investigation. [4]

75It is the position of the plaintiffs that when complaints of disrepair are identified, the occupier and contractor are under a positive obligation to take steps to correct the repair and cannot rely on the system of inspection/maintenance once the disrepair has been identified. [5]

76It is the position of the plaintiffs that there was no evidence of any concerted effort on the part of thyssenkrupp to identify and correct the cause of the malfunction on April 4, 2011 and that, as a result, the elevator should not have been put back in service. [6]

77It is the position of the plaintiffs that the elevator again mislevelled on April 5 but that thyssenkrupp made no effort to remedy the issue. [7]

78The plaintiffs further submit that failing to report Ms. Lebko’s fall to the TSSA is a significant breach as it obstructed the ability of the plaintiff to prove the cause of the fall. [8]

The Issues

79The issues for determination in these motions are as follows:

1. Should summary judgment be granted in these cases?
2. Are there any genuine issues which require a trial in order to be determined?
3. Is there any evidence to suggest that any of the defendants were negligent or breached their duty of care to the plaintiffs, which negligence or breach of duty of care caused or contributed to the injuries sustained by the plaintiff?

Analysis

TSCC and Del

80As regards TSCC and Del, the owner and manager of the condominium, the question to be determined is whether they met their duty of care to all persons entering the condominium building, consistent with the governing legislation and particularly, the standards as regards elevators.

81In this case, I am satisfied that TSCC and Del had in place a reasonable system to meet the statutory and regulatory duties to keep the premises reasonably safe for visitors. The standard is reasonableness in all the circumstances.

82Indeed, it was that system which resulted in Elevator 2 being put out of service until it could be serviced by the only defendant who was, pursuant to the governing legislation, permitted to service it and ultimately determine whether it should be put back in service.

83In this case, TSCC and Del had entered into service contracts with thyssenkrupp to perform monthly preventative maintenance to comply with the CSA B44 Code, as well as all service calls during the month where issues or problems arose with an elevator. They further retained the security/concierge service, G4S, on a 24/7 basis to inspect the premises, including the general functioning of the elevators.

84Based on the records kept by TSCC and Del, which included all reports from G4S and thyssenkrupp, the contracts of each of TSCC and Del and G4S were honoured and fulfilled throughout the contractual periods.

85The records as regards thyssenkrupp confirm that monthly inspections and maintenance of the elevators, including Elevator 2, were completed on a monthly basis with the required annual inspections also completed. The records from thyssenkrupp for monthly maintenance and interim attendances for maintenance as required indicate that there were no previous issues as regards levelling of the elevators, including Elevator 2.

86The records as regards April 2, 3 and 4, 2011 indicate that the elevators were inspected at regular intervals throughout the day. As a result of those inspections, Elevator 2 was taken out of service on April 2, 2011 for a levelling issue and remained out of service until it was put back into service by the thyssenkrupp technician, Adam Maxmenko, on April 4, 2011 at 4:47 PM. The Elevator was again inspected by G4S, when it did it rounds at 5:50 PM.

87The trip and fall occurred thereafter, at 5:59 PM. G4S was not advised of the fall, but in doing its rounds at 6:55 PM, it noticed a levelling issue and took the elevator out of service. As indicated above, Mr. Maxmenko attended at the condominium the next day, April 5, to again attend to Elevator 2, and attended thereafter on several occasions in order to complete the initial maintenance that it had originally come for on April 4.

88I note that, pursuant to the governing legislation, thyssenkrupp and its licensed, certified technicians are the only persons who can, by law, work on an elevator and determine whether it is safe to be put into service.

89While the plaintiffs argue that it is not clear whether Mr. Maxmenko was advised of the levelling issue on Monday, April 4 when he attended at the condominium, the notation from G4S indicates that he was advised by the concierge “about Elevator 2”. Further, it would have been clear to him upon attending the elevator room, for which he had gotten the key from the concierge, that Elevator 2 was out of service. I am satisfied that he would thereafter have done his investigation as regards the elevator. Given that he is a certified, licensed elevator technician, I am satisfied that he would have fulfilled his duties and would not have put the elevator back into service had he determined it would not be safe to do so. There is no evidence to suggest otherwise.

90The expert’s report from Joseph Pacitti filed by the plaintiffs indicated that thyssenkrupp’s servicing of the elevators on a monthly basis should be enough to provide the proper preventative maintenance. The report makes no reference to any breach of the CSA B44 Code or any other governing legislation leading up to or with respect to the cause of the fall. It does state that there was a violation of the governing legislation by virtue of the fact that the TSSA protocol was not followed after the incident, which was not reported to the TSSA. However, this was not causative of the fall. The expert did question the amount of time spent by thyssenkrupp on April 4 as regards repair and maintenance of the elevators. However, whether Mr. Maxmenko spent what Mr. Pacitti considered sufficient time or not is merely his opinion and is speculative. It does not speak to any negligence on the part of thyssenkrupp which would be causative of the fall. I note that a second technician came for a part of the time that Mr. Maxmenko was at the condominium, and further that Mr. Maxmenko returned on several occasions after April 5 to complete the initial maintenance which was to have been done on April 4.

91I am satisfied that TSCC and Del fulfilled their duty of care as in all of the circumstances of the case, persons entering on the premises were reasonably safe. An occupier is not held to a standard of perfection, but rather to a standard of reasonableness. Further, occupiers are not insurers against all possible risks on their premises: Alchimowicz v. Schram, , [1999] O.J. No. 115 (C.A.), leave to appeal refused, 27187 (15 March 1999). I am satisfied that TSCC and Del had in place reasonable systems to ensure that their statutory duties were fulfilled to keep the premises in a reasonably safe condition for visitors to the property.

92TSCC and Del further rely on the defence set forth at s. 6 of the Occupiers Liability Act, which provides that where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if, in all the circumstances, (i) the occupier had acted reasonably in entrusting the work to the independent contractor, (ii) if the occupier had taken such steps, if any, as the occupier reasonably ought, in order to be satisfied that the contractor was competent and that the work had been properly done, and (iii) if it was reasonable that the work performed by the independent contractor should have been undertaken.

93Based on all of the foregoing, I am satisfied that the defence afforded in s. 6(1) of the Occupiers Liability Act is available as regards TSCC and Del. As required by the Act, there was a contract between TSCC and Del and thyssenkrupp. There is no issue as regards the competence of thyssenkrupp, which has not been challenged. In terms of ensuring that the work was done properly which may require a system of instruction, supervision or oversight, in this case, I am satisfied that, pursuant to the legislation and regulations, laypersons were prevented from performing any work or maintenance on elevators and the only persons permitted to maintain, instruct, supervise or oversee the work and maintenance of the elevators was the thyssenkrupp mechanics or other certified, licensed elevator technicians.

94In this case, the system put in place by TSCC and Del as regards ensuring the elevators were properly maintained in accordance with the legislation and regulations, resulted in the elevator being serviced less than two hours prior to the incident. There were no additional reasonable steps which should have been taken to ensure that the premises were safe for visitors.

95While it is very unfortunate that the plaintiff, Aniela Lebko, fell and was injured, it must be established, on a balance of probabilities, that TSCC and Del failed to perform the actions necessary to discharge their duty of care in all of the circumstances, to see that the visitor would be reasonably safe while using the elevators. I find no evidence to establish TSCC and Del failed to discharge their duty of care.

96As stated in Whitlow v. 572008 Ontario Ltd., , there must be a causal link between the accident and negligence on the part of the occupier, in this case TSCC and Del, in order to find it liable. The mere fact of an injury does not automatically render the occupier liable.

97In this case, I am not satisfied that the plaintiffs have raised any issues that require a trial on a full evidentiary record to be determined. I do not find there to be any genuine issues requiring a trial as regards TSCC and Del.

G4S

98The records filed in this motion, which include contemporaneous notes taken by G4S of incidents occurring at the condominium, indicate that on April 2, 2011 after complaints received from residents of the condominium concerning Elevator 2, G4S took the elevator out of service. It remained out of service until April 4 at 4:47 PM, after Adam Maxmenko, a licensed, certified technician with thyssenkrupp, the maintenance contractor for elevators at the condominium, attended at the building to conduct maintenance and repairs on the elevators.

99There is no evidence of any previous issue with mislevelling of any elevators, including Elevator 2.

100The notes indicate that the G4S security officer on duty notified the superintendent. Based on evidence of the project manager of the condominium, she also should have been notified but was not. However, this did not affect the outcome, nor was it causative of the incident with Ms. Lebko, as the elevator remained out of service until April 4, when Mr. Maxmenko attended at the condominium at 8:10 AM to service the elevators. Mr. Maxmenko determined that Elevator 2 could be put back in service prior to leaving the condominium at 4:47 PM. Pursuant to thyssenkrupp’s own evidence, “if he [Mr. Maxmenko] considered an elevator unsafe to operate, he would be required to leave it shut off”. The evidence is clear that only thyssenkrupp could service or maintain an elevator and only thyssenkrupp could determine if an elevator should be put back into service.

101There is no evidence of any further issue with or complaints about Elevator 2 between the time that Mr. Maxmenko put the elevator back in service and the time of the alleged trip and fall.

102I am satisfied that there is nothing to indicate that G4S was negligent in its duties. I am satisfied that there was nothing that G4S did, or omitted to do, that was causative of the injuries sustained by Aniela Lebko. I am further satisfied that there are no issues of credibility as regards G4S as suggested by the plaintiffs.

103I am satisfied, based on all of the evidence before me, that there is no genuine issue requiring a trial as regards G4S.

thyssenkrupp

104Based on all of the material in evidence before this Court, there is no evidence to demonstrate that thyssenkrupp’s maintenance regime was not Code-compliant, nor that it was not being followed. The evidence indicates that thyssenkrupp was conducting the requisite monthly maintenance schedule, was attending as needed between the monthly maintenance schedule, and that it was complying with its contractual duties under the contract with TSCC and Del. A certified, licensed mechanic from thyssenkrupp attended at the condominium to perform regular maintenance in accordance with the CSA B44 Code, and pursuant to its contract with TSCC. thyssenkrupp’s regular maintenance regime included monitoring elevators for levelling issues.

105There is no evidence that thyssenkrupp’s conduct fell below the required standard of care. Indeed, Mr. Pacitti, the plaintiffs’ expert, stated in his report that thyssenkrupp had, from 2008, maintained the elevators running in safe operating condition, based on TSSA reports, and that as of March 2011, TSSA found no levelling issues with the elevators in the condominium. He further found that thyssenkrupp was maintaining the elevators on a monthly basis, which is also confirmed in the maintenance log book and time / job tickets. He further stated that thyssenkrupp had complied with its contract with the owner, which contract is compliant with the minimum requirements of the CSA B44 Code. He stated that “elevators, no matter how sophisticated the technology, do at times miss level [sic]. In most cases the elevators will relevel prior to the doors opening or upon the doors opening. This is not a safety concern”. He further stated that stopping 1/16 of an inch to 1/4 of an inch off level is a “barely negligible” mislevelling.

106There was no evidence placed before this Court to indicate that there had been any mislevelling issues from 2008 forward such that a mislevelling problem could have been anticipated or prevented by thyssenkrupp.

107There is no evidence to suggest that Mr. Maxmenko permitted Elevator 2 to run in an unsafe condition. The evidence indicates that he would not put an elevator back into service until he was satisfied that it was safe to do so. This evidence remains unchallenged and uncontroverted. I note as well that his certification relied on his performing in a manner compliant with all legislation and regulations. I further note, based on the evidence before this Court, that from the time the elevator was put back into service at 4:47 PM until the incident, there were no complaints about the operation of Elevator 2. Nor indeed were there any complaints about its operation after the incident at 5:59 PM until 6:59 PM when there was a complaint of mislevelling. Ms. Lebko did not see on what she tripped or fell.

108The independent witness Dan-George Albu gave a statement one year later in which he estimated that Elevator 2 was off level by 1/4 -1/2 inch. He did not take any measurements or photographs. As Mr. Pacitti, the plaintiffs’ expert, stated in his report, variance of 1/16 to 1/4 inch range would be within normal elevator performance.

109Based on all of the evidence before this Court, there is no evidence on which I can conclude that thyssenkrupp’s conduct fell below the requisite standard of care. The evidence indicates that thyssenkrupp’s system of maintenance was Code-compliant and in compliance with the contract with TSCC and Del. thyssenkrupp’s maintenance included checking for levelling issues. The evidence indicates that Mr. Maxmenko would not put an elevator back in service if it were not safe to do so. There is no evidence to indicate that Elevator 2 was having any levelling issues in the months prior to April 2011. Indeed, there is no evidence that any of the elevators had any levelling issues from 2008.

110I am satisfied that thyssenkrupp has met its duty of care in the circumstances of this case and in compliance with the legislation and regulations governing elevating devices. I do not find, in all of the circumstances, any genuine issues requiring a trial as regards thyssenkrupp.

Conclusion

111I am not persuaded by the plaintiffs’ submissions that whether the standard of care was met requires the full evidentiary record and that there are credibility issues as regards Mr. Maxmenko, the officers of G4S and Mr. Albu, the independent witness. I am satisfied, based on all the evidence before me that a just and fair determination of the issues at play in these motions can be made on the basis of the record before this Court.

112I therefore grant the summary judgment motions of the defendants, TSCC and Del, G4S and thyssenkrupp. And, as a result, their cross-claims are dismissed.

Costs

113I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

C. J. Brown, J.

Released: March 12, 2019

COURT FILE NO.: CV-13-477090 DATE: 20190312 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Aniela Lebko and Joanna Lebko Plaintiffs – and – Toronto Standard Condominium Corp. 1862, Del Property Management Inc., thyssenkrupp Elevator (Canada) Limited and G4S Secure Solutions (Canada) Ltd. Defendants

REASONS FOR DECISION C. J. Brown, J. Released: March 12, 2019

1I note, however, that the elevator remained out of service from April 2 to April 4, when thyssenkrupp’s technician came to the condominium at 8:10 AM and that the elevator was not put back in service until 4:47 PM, when he left.

2However, at law, only the certified, licensed elevator technicians are able to instruct, supervise and oversee the work of other certified, licensed technicians.

3I note that there are other job tickets in evidence, which were also unsigned. I do not find this to be causative of the accident.

4Mr. Maxmenko stated that if he had been notified of an injury, which he was not, he would have contacted TSSA and would have put the elevator out of service until TSSA had been able to investigate. The issue however is whether this was causative of the injuries sustained by the plaintiff.

5However, in this case, firstly, only the licensed, certified technician is able to take steps to correct and repair the elevator, which was done on April 4. From April 2, when the issue was identified, until April 4, when the licensed technician put the elevator back in service, it was maintained out of service, such that no one could use it.

6It is clear that the affidavit of Mr. Maxmenko indicates that he does not recall the events of April 4, 2011, nor what he did at 35 Viking Dr. However, he stated in his affidavit that he would have worked to return the elevator to service.

7This is not consistent with the evidence. Nor was it causative of the plaintiff’s incident.

8Again, while this may be a breach of protocol, it did not cause the injuries sustained.