Court File and Parties

COURT FILE NO.: CV-16-554025 DATE: 20190508 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ZAKIRA HAIDER ALI Plaintiff -and- UNIONVILLE SQUARE SHOPPING CENTRES LIMITED and SMART CENTRES MANAGEMENT INC. Defendants

Counsel: Syed M. Raza, for the Plaintiff Sean Petrou, for the Defendants

HEARD: November 29, 2018

Justice J. Copeland

REASONS FOR DECISION

[1] The defendants bring a motion for summary judgment. The plaintiff’s claim involves a fall at the defendants’ premises, and is brought under the Occupiers’ Liability Act, R.S.O. 1990, c. O-2.

[2] The defendants argue that the plaintiff’s claim must fail on the basis that: 1) the defendants discharged their duty to take reasonable care in all the circumstances to keep the premises reasonably safe for people who enter it; and 2) that even if the plaintiff were able to show that there was a breach of the duty, the plaintiff is unable to prove causation.

[3] The plaintiff argues that there are genuine issues requiring a trial regarding both breach of the duty of care, and causation, and that for this reason the motion should be dismissed.

Law in relation to summary judgment

[4] In considering whether there is a genuine issue requiring a trial, I must consider if the summary judgment process, in particular, the record on the motion: (1) allows me to make the necessary findings of fact, including any necessary findings of credibility; (2) allows me to apply the law to the facts; and, (3) if summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result. If I find that there are genuine issues requiring a trial, and the record on the motion as it stands is insufficient to allow me to determine the genuine issues requiring a trial, I must consider if I can decide the issues using the fact-finding resources available under the summary judgment rule: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[5] The parties to a motion for summary judgment must put their best foot forward. The motion judge should assume that the record on the motion contains, in some form, all of the evidence which would be available for a trial. Self-serving affidavits containing bald allegations or denials without providing supporting evidence or detail are not sufficient to create a genuine issue for trial. Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26-27, 33, affirmed, 2014 ONCA 878.

[6] For reasons I explain below, I find that I am able to make the necessary findings of fact, including findings of credibility, and apply the law to the facts on a motion for summary judgment in relation to the issue of whether the defendants breached their duty of care under the Occupiers’ Liability Act. I find that summary judgment is a proportionate, more expeditious, and less expensive means to justly resolve this matter than a trial.

The Nature of the cause of action – Occupiers’ liability

[7] The plaintiff’s claim is framed as claim that the defendants were negligent and breached the duty to take reasonable care in all of the circumstances to keep their premises reasonably safe for persons entering into the premises imposed by s. 3 of the Occupiers’ Liability Act.

[8] There is no issue in this case that the defendants, as the occupier of the premises, owed the plaintiff, as someone who entered the premises, a duty of care. The issues in dispute relate to whether the defendants breached the standard of care in the manner in which the curb was maintained, and if so, whether that breach caused the plaintiff’s fall.

[9] The Occupiers’ Liability Act modernized and harmonized the common law with respect to the duty of occupiers to make their premises reasonably safe.

[10] The duty imposed under s. 3 of the Act is to take such care as in all the circumstances is reasonable to see that persons entering on the premises are reasonably safe while on the premises. The nature of the duty does not vary, but the factors which will be relevant to assessing what constitutes reasonable care will be specific to each fact situation. This is signaled by the language in s. 3 of the Act of taking “such care as in all the circumstances of the case is reasonable”: Waldick v. Malcolm, [1991] 2 S.C.R. 456 at pp. 471-72.

[11] The case law supports consideration of the following types of factors in assessing whether an occupier exercised reasonable care in all of the circumstances: the likelihood that the harm at issue will occur; the gravity or severity of the potential harm; the utility of the object or conduct at issue; the cost of preventive measures; the weather; the time of year; the nature of the premises; local custom; industry practice; and applicable regulatory standards (if any). This list of factors is not exhaustive, and not every one of these factors will be relevant in every case. As s. 3 of the Act states, the issue is whether the care taken by the occupier was reasonable in all of the circumstances: Waldick v. Malcolm, supra at pp. 471-72.

[12] The legal standard of care imposed on an occupier is one of reasonableness in all of the circumstances. It is not a standard of perfection. There are risks involved in almost all of the activities that ordinary people engage in every day. An occupier is not required to remove all risk: Kerr v. Loblaws, 2007 ONCA 371 at para. 19.

[13] Finally, I note that the fact of a fall, standing alone, is not in and of itself evidence of negligence. A plaintiff bears the burden to show that the occupier breached its duty under the Act: Canada (Attorney General) v. Ranger, 2011 ONSC 3196 at paras. 32-34.

[14] For reasons I will explain below, I find that the plaintiff’s claim fails on the issue of whether the defendants breached the standard of care. On the record before me, it is plain and obvious that the defendants met the standard of care imposed under the Occupiers’ Liability Act. Thus, I find that there is no genuine issue for trial in relation to liability.

The Factual context

[15] The big picture factual context of this motion is not in dispute. The defendants are proprietors of a strip-mall shopping plaza. The plaintiff attended at the defendants’ premises to go to the drug store on August 10, 2015, around 12:50 p.m. It was daylight. After parking her car, the plaintiff walked towards the store. In order to get to the store, she needed to step onto the sidewalk that is in front of all of the stores. The sidewalk is raised above the road, as is common. There is a curb at the edge of the asphalt surface of the parking lot, where the sidewalk starts. Just to the left of where the plaintiff fell, there is a curb-cut, where the curb is lower and slopes down to the parking lot surface in order to provide barrier-free access for people in wheelchairs or with walkers to get onto the sidewalk. The plaintiff’s fall is captured on video from the plaza. However, because of a pillar which partially blocks the sightline of the camera, the exact mechanics of her fall are not visible on the video, nor is the exact location she was placing her foot when she fell.

[16] For purposes of the motion, the defendants do not contest the injuries suffered by the plaintiff as a result of the fall.

[17] As I have noted, the defendants concede that they were occupiers of the premises at issue at the time of the fall, and that as such, they had a duty of care under the Occupiers’ Liability Act to ensure that the premises were reasonably safe for members of the public who attend at the premises.

[18] There are two legal and factual issues in dispute on this motion: 1) whether the defendants failed to maintain the standard of care; and 2) if the defendants breached their duty of care, whether that breach (in particular the state of the curb), caused the plaintiff’s fall. I will address the evidence in relation to each issue in the context of my analysis.

Is there a genuine issue requiring a trial as to whether the defendants failed to maintain the standard of care?

[19] The crux of this issue is whether, considering all of the circumstances, there is a genuine issue requiring a trial as to whether the defendants breached the duty to take reasonable care in all of the circumstances to keep its premises reasonably safe for people who enter it. This is necessarily a fact-specific inquiry.

[20] The defendants argue that the evidence shows that the curb does not pose a foreseeable risk of harm. It is not a hazard, and does not pose an unreasonable risk to people coming to the plaza.

[21] The plaintiff argues that the defendants breached their duty of care. She argues that the curb was uneven, and posed a foreseeable risk of harm to people attending at the plaza. She also argues that the absence of yellow paint to mark the curb breached the standard of care (i.e., painting the curb itself yellow).

[22] I find that there is no genuine issue for trial in relation to whether the defendants failed to meet the standard of care imposed by the Occupiers’ Liability Act. In particular, I find that it is plain and obvious that the defendants exercised reasonable care in all of the circumstances to see that persons entering the premises were reasonably safe. I am not persuaded that the curb posed an unreasonable risk to persons entering the defendants’ premises.

[23] I will briefly review the evidence bearing on the issue of whether the curb, and the curb-cut in particular, was a hazard, or posed an unreasonable risk to people attending at the plaza.

(i) Photos of the curb

[24] Included in the plaintiff’s motion record is a photo of one end of the curb-cut near the drug store at the plaza where the plaintiff was walking (Affidavit of the Plaintiff, Exhibit E; Affidavit of Paul Chu, Exhibit E). Unfortunately, as is clear from the video of the plaintiff’s fall (referenced below), the photo is of the opposite end of the curb-cut from where the plaintiff was walking when she fell (a fact conceded by plaintiff’s counsel during the argument of the motion). Although the defendants bear the burden on this motion to show that there is no issue requiring a trial regarding whether the standard of care was breached, the plaintiff would bear the ultimate burden in a trial to show that the area of the curb where she fell below the standard of care. In this respect, one would expect that the plaintiff would provide photos of the end of the curb-cut where the fall occurred. However, for the sake of argument, I will assume that the curb-cut at the other end, close to where the plaintiff was walking when she fell, was in the same state as the end of the curb-cut in the photo.

[25] Exhibit G to the affidavits of the plaintiff and Mr. Chu includes another photo of the curb, but taken later, in August 2018. It is common ground that the yellow paint on the curb in Exhibit G was not there at the time of the plaintiff’s fall. But I find that the photo is helpful to visualize the shape of the curb-cut.

[26] The plaintiff argues that the photos show that the slope of the curb-cut is not gradual, and that there is no warning to oncoming people where the slope starts and ends.

[27] With respect, I disagree with this submission. I find that the curb-cut in the photos gradually slopes down to the portion of the sidewalk where the curb is level with the road for barrier-free access. The curb-cut and its slope are clearly visible. The curb-cut looks like any ordinary curb-cut that a pedestrian in the greater Toronto area would see in a variety of locations. The curb is well-lit and visible, with no obstructions blocking the sight-line of a pedestrian stepping onto the curb.

[28] My view as a trier of fact that the curb-cut looks like an ordinary curb-cut that are see in many places in the greater Toronto area is not decisive on the issue of whether it fell below the standard of care. I must consider the whole of the evidence, including the expert evidence, and any evidence of applicable legal standards for this curb. But it is a factor I am entitled to consider as a fact-finder.

[29] Further below I consider the plaintiff’s argument that the surface or slope of the curb changed after the date of her fall – an argument which I reject on the record before me.

(ii) The Plaintiff’s evidence

[30] The plaintiff provided an affidavit on the motion. A portion of her affidavit addresses the circumstances of her fall (para. 7). I will not summarize that here, as it is more relevant to causation than to whether the duty of care was breached.

[31] As I have noted above, for the purposes of the motion, the defendants do not contest the injuries that the plaintiff sustained. When she fell, her face hit the ground. She was bleeding from her nose, mouth and left cheek. Her glasses were scratched and broken. She broke a tooth, and also suffered strains in her ankle, hip, low back, and shoulders.

[32] In her affidavit, the plaintiff asserts that the curb was uneven and unmarked (para. 7). She appends the two photos which are discussed above.

[33] The plaintiff purports to provide evidence about what the photos of the curb show. With respect, this is not a proper subject for her to give evidence on. The photos speak for themselves. I have reviewed them as trier of fact as outlined above at paragraphs 24-29.

[34] In addition, the plaintiff asserts in her affidavit that changes were made to the curb between the time of the fall and the photo in Exhibit G, including “to change the unevenness of the slope of the curb as well as the addition of yellow lines for warning pedestrians” (para. 9).

[35] It is not disputed that the curb was painted yellow sometime after the plaintiff’s fall. However, with respect, in the context of all of the evidence I do not accept the plaintiff’s evidence that the slope of the curb was changed after the time she fell and before the photo in Exhibit G was taken (which was taken in June 2018). When comparing the portion of the photo in Exhibit G which is visible in Exhibit E (which was taken more proximate in time to the fall), which is the left side of the curb-cut, I cannot see any difference or change in the slope of the curb-cut between the two photos. Further, and as I address below at paragraph 53, the plaintiff’s expert Mr. Blaney gave evidence that when he examined the curb and the curb-cut in August 2017, he did not see any evidence of change to or repair of the concrete of the curb.

[36] The balance of the plaintiff’s evidence is legal assertions about the standard of care (para. 11), her critique of the opinion of the defendants’ expert, Mr. Blaney (paras. 13-17), and her critique of the quality of the video evidence (paras. 18-19). I do not consider this evidence as it is not admissible evidence – it is argument.

[37] The plaintiff agreed in cross-examination that she was aware of the existence of the curb when one steps from the parking lot onto the sidewalk. She agreed that she had traversed this curb many times before during the year prior to the fall at issue (Plaintiff’s cross-examination transcript, QQ 92-93, 175-176; Plaintiff’s discovery transcript, QQ 89-93).

[38] I note, because counsel for the defendants pointed it out, that the plaintiff’s affidavit was improperly commissioned. It purports to be commissioned by Mr. Paul Chu, a paralegal who works at the law firm of the plaintiff’s counsel, Mr. Raza; however, all of the exhibits are commissioned by a different person, the plaintiff’s counsel, Mr. Raza. This is not an appropriate practice.

(iii) The video of the fall

[39] The defendants filed on the motion surveillance video from the plaza showing the plaintiff’s path towards the sidewalk, and her stepping onto the sidewalk and falling (Affidavit of Randy Kalef, Exhibit A). Unfortunately, because of a pillar between the camera and the plaintiff, some of the movements of the plaintiff at the time she fell are not visible on the video. But it does show the general location of her fall.

[40] I have reviewed the video of the incident several times. The video shows the plaintiff walking across the parking lot, including the area where cars can drive in front of the stores, towards the entrance to the drug store. The video shows that she does not walk directly along the painted pedestrian crossing to the sidewalk, but rather approaches diagonally (presumably from the direction where she parked her car). Her route leads her to the curb to the right of the curb-cut near the drug store.

[41] As she comes to the curb to step onto the sidewalk, she steps forward with her right foot and places it down, and then it appears she may catch her left foot on the curb. I have watched the video several times, and in light of the distance, I cannot say for sure that she caught her left foot, but it appears to be the case that she did. She then falls forward onto the sidewalk.

[42] Because of the pillar, one cannot tell for certain from the video where the plaintiff’s feet are in relation to the curb-cut. Certainly the main portion of the curb-cut is to her left, which I am able to discern based on the location of the painted cross-walk, and also the photo in Exhibit G to the affidavits of the plaintiff and of Paul Chu, which shows the location of the pillar in relation to the curb-cut. What I find is not entirely clear is whether when the plaintiff falls she is entirely to the right of the curb-cut, or if she is in the area where the curb slopes down for the curb-cut. However, the video does allow me to tell that the general area of her fall was somewhere between the right end of the curb-cut and the pillar.

[43] The video is not really of assistance in determining if the state of the curb fell below the standard of care. But it is of some assistance in relation to the location of the plaintiff’s fall in relation to the curb (and I discuss it further below in relation to causation).

[44] I note that in reaching these conclusions about what I, as the trier of fact, can see in the video, I do not rely on the evidence from the defendant’s expert, Mr. Blaney about his viewing of the video (discussed further below). A small portion of Mr. Blaney’s expert report provides his opinion of what can be seen in the video of the plaintiff approaching the curb and falling. This is not a proper subject for expert evidence. Mr. Blaney is simply giving his own opinion on what he saw in the video. He is no better placed to do this than would be a trier of fact, or me as the judge hearing a summary judgment motion.

(iv) The defence expert Mr. Blaney

[45] The defendants filed expert opinion evidence of Mr. Stephen Blaney. Mr. Blaney is a consulting engineer, and is designated as a building design specialist by the Professional Engineers of Ontario. He has worked in professional engineering for over 40 years. He has experience inspecting existing buildings, and investigating proposed buildings to compare the project with the requirements of applicable building codes and standards. Mr. Blaney’s CV and a rule 53 acknowledgment of expert’s duty were included with his opinion.

[46] I am satisfied that Mr. Blaney is qualified by his education and experience to give opinion evidence in relation to inspection and assessment of the sidewalk curb in this case, including measurement of the curb, and whether it complies with applicable building codes and municipal standards. I am satisfied that this is an appropriate subject for expert evidence. I am also satisfied that Mr. Blaney’s opinion evidence would assist the trier of fact because it addresses issues which are outside the experience of a lay trier of fact.

[47] The plaintiff did not file any expert evidence in relation to whether the curb met the standard of care.

[48] Mr. Blaney made two visits to the site of the fall to examine the curb (one in November 2016, and one in August 2017). His conclusions, based on those visits and his expertise were as follows:

• There is no municipal by-law requirement, property standard or building code requirement in any current or earlier editions of the Ontario Building Code to have curbs on the exterior of buildings painted yellow (in order to distinguish them from the road or the sidewalk).
• There were no uneven surfaces on the sidewalk or the curb near the drug store. In addition, the asphalt pavement of the road adjacent to the curb was in relatively good condition, and smooth.
• Sidewalk curbs are typically between 4” and 8” high. This curb was 3.25” high (or 8.3 cm).
• The curb height was not excessive, and did not pose a risk of trip and fall.
• There are no specific requirements for curb height within the City of Markham zoning or by-law standards for private properties.
• Lighting does not appear to have been a factor, as the fall occurred at midday, so the path to the drug store was lit by the afternoon sun.
• He concluded that the curb was not a hazard to people attending at the plaza, for four reasons: (i) there was a contrast in colour between the road and the sidewalk in that the sidewalk was a lighter shade of grey; (ii) the curb was not obscured by anything and was well-lit; (iii) the curb was not excessively high; and (vi) there were no uneven surfaces on the curb.

[49] In sum, Mr. Blaney’s opinion was that the curb was like any other curb that one would commonly find in a parking lot as one steps from the road up onto the sidewalk. It was not a hazard.

[50] Although Mr. Blaney’s evidence is not contradicted, I must still consider its credibility and reliability in the context of the defendants’ burden on the summary judgment motion.

[51] The plaintiff argues that the court should not accept Mr. Blaney’s expert evidence in part because he examined the curb in August 2017, two years after the fall, and not proximate in time to the fall.

[52] I find that Mr. Blaney’s opinion is credible and reliable. He explains the reasons for his opinion clearly. He was consistent under cross-examination.

[53] Further, regarding the issue of the passage of time between the plaintiff’s fall (in August 2015), and Mr. Blaney’s inspection of the site of the fall (in August 2017), I accept as credible and reliable his evidence that based on his inspection he saw no evidence of change to the slope or state of the curb. In cross-examination he was questioned about how he could be sure that when he inspected the curb in August 2017, it was in the same condition as at the time of the plaintiff’s fall. Mr. Blaney testified that the colour and texture of the concrete seemed the same. He said he saw no evidence that the concrete had been chipped out and replaced. He said that had the concrete been chipped out and replaced, it would be a different texture and a different colour. His opinion was that the condition and strength of the concrete, and the age of the concrete had not been apparently altered (Cross-examination of Mr. Blaney, QQ 41-60).

[54] Further, apart from the bald assertion at paragraph 9 of the plaintiff’s affidavit that there was a change to the unevenness of the curb some time after her fall, the plaintiff has not put any evidence before the court to suggest that there was any change in the curb between the time she fell in August 2015, and Mr. Blaney’s examination of the curb in August 2017.

[55] Finally, as I have outlined above at paragraph 35, based on my review of the photos, I do not see any change to the slope of the curb-cut between the photo taken closer in time to the fall, and the one the plaintiff took in August 2018.

(v) The evidence of Mr. Gilbert Logan

[56] Although filed in hearsay form as an email attached to the affidavits of the plaintiff, and that of Paul Chu (Exhibit D), I will address the evidence of Gilbert Logan, as the plaintiff argues it supports her case, and it is evidence that had it been filed in proper form, could have been available for trial.

[57] Mr. Logan was a manager at the drug store. He did not witness the plaintiff fall, so he has no direct evidence that bears on how she fell. His email is a reporting email to other employees of the drug store and the plaza. In addition to describing the plaintiff’s injuries, and steps he took to assist her, Mr. Logan writes:

“Also, it was suggested that the curb running out front should also be painted yellow as a visual reminder that the curb is there. Our curb due to recent pavings is not a full size curb and is somewhat deceiving in size.”

[58] The plaintiff argues that this statement by Mr. Logan supports her claim that the state of the curb fell below the standard of care. With respect, Mr. Logan is not an expert in sidewalk curbs, construction standards, or anything else that allows him to give opinion evidence in relation to whether the curb should be painted. In addition, I note that this portion of the email is phrased simply as him passing on a suggestion, and it is unclear who made the suggestion.

[59] At best this is a statement that the curb may have been safer if it was painted a contrasting colour. That may well be so. But that does not mean that the absence of it having been painted a contrasting colour falls below the standard of care. Mr. Blaney gave expert evidence that painting a curb is not required by any codes or regulations applicable to this curb. Further, I can consider as a trier of fact my own experience in travelling around the greater Toronto area, that most sidewalk curbs are not painted a contrasting colour, but rather are the grey of unpainted cement. Painting a curb a contrasting colour may make it more visible, and for that reason safer. But I am not persuaded that the absence of paint falls below the standard of care.

[60] I should add as well that the evidence that the curb was painted a contrasting colour subsequent to the plaintiff’s fall, for the same reasons I have just explained, does not lead me to conclude that the absence of paint falls below the standard of care.

[61] I accept that Mr. Logan’s evidence that the curb is not full size and as such is “somewhat deceiving in size” is admissible as the perception of a lay person who presumably traversed the curb on a regular basis, since he worked nearby. I will weigh this evidence along with the other evidence.

[62] The plaintiff asks me to draw an adverse inference from the failure of the defendants to file an affidavit from Mr. Logan as part of the motion record. I decline to do so. Mr. Logan was an employee of a tenant of the plaza. The drug store is not a defendant in this lawsuit. It was equally open to the plaintiff to seek to either obtain an affidavit from him, or seek a summons to compel him to attend for an examination. In any event, as I have outlined above, I have considered the substance of his evidence from the email.

(vi) Conclusion on whether the defendant breached the standard of care

[63] Considering all of the evidence together, I am not persuaded there is a genuine issue requiring a trial in relation to whether the defendants failed to maintain the standard of care in relation to the curb. In particular, I consider the following factors, in reaching my conclusion that the record is clear that the curb complied with the standard of care, and did not pose an unreasonable risk to people attending at the plaza.

• The curb appears to be an ordinary sidewalk curb, which a pedestrian could encounter in a variety locations in the greater Toronto area.
• According to the expert evidence of Mr. Blaney, which I accept, the curb was neither unusually high nor unusually low. The curb did not contravene and municipal or provincial by-laws or building standards.
• The curb and the curb-cut were in a good state of repair. I accept the evidence of Mr. Blaney on this issue, as well as the photos in Exhibits E and G to the affidavits of the plaintiff and of Paul Chu. I am not persuaded that there is any reason to believe that the curb was in a different physical state (apart from later being painted) in August 2015 when the plaintiff fell, than it was in August 2017 when Mr. Blaney examined it. In particular, I accept the evidence of Mr. Blaney that based on his inspection, the concrete of the curb did not appear to have been altered in the area where the plaintiff fell. Its texture was similar to the rest of the concrete in the plaza.
• The curb and the curb-cut were clearly visible. The view of the curb was not obstructed for pedestrians approaching it.

[64] I am not persuaded that the standard of care requires that sidewalk curbs be painted a contrasting colour.

[65] My conclusion that the defendants did not breach the standard of care in relation to the maintenance and state of the curb is supported by case law involving similar factual situations: Gervais v. Do, 2000 BCSC 1271; Robson v. Trail Bay Developments Ltd., 2009 BCSC 806. In each case, considering similar factors to the ones I have considered, the conclusion was reached that there was no breach of the duty of care. Neither of these cases is binding on me, but I find them to be persuasive.

[66] In my view, allowing this matter to proceed to trial would simply delay the inevitable conclusion that the curb did not fall below the standard of care.

[67] I am sympathetic to the fact that the plaintiff fell and suffered injuries as a result. But a defendant is only liable for harm caused in a plaintiff’s fall if the defendant’s actions (or omissions) fell below the standard of care. Sometimes, as in this case, people fall in the absence of any wrongdoing on the part of another. It is unfortunate, but it happens.

[68] I find that the defendants met their duty under the Occupiers’ Liability Act. I find that in all of the circumstances, the curb, including the curb-cut, did not pose an unreasonable risk to the safety of individuals entering the defendant’s premises. The defendants discharged their duty under s. 3 of the Occupiers’ Liability Act to take reasonable care to ensure the reasonable safety of individuals entering its premises.

Is there a genuine issue requiring a trial as to causation?

[69] In light of my finding that the defendants did not breach their duty of care under the Occupiers’ Liability Act, it is not, strictly speaking, necessary for me to deal with the issue of causation. If there was no breach of the duty, then no negligent act by the defendants contributed to the plaintiff’s fall. However, I will address this issue in the alternative.

[70] Assuming for the purposes of argument that the defendants had breached their duty, the issue is whether, in the context of a summary judgment motion, the defendants have shown that there is no triable issue in relation to causation. In other words, is the evidence on the record not capable of proving that the curb caused her fall.

[71] The test for causation is the “but for” test. A plaintiff must show, on a balance of probabilities, that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the “but for” analysis is the requirement that the defendant’s negligence was necessary to cause the plaintiff’s injury. This is a factual inquiry. The “but for” test for causation must be applied in a “robust common sense fashion”: Clements v. Clements, [2012] 2 S.C.R. 181, 2012 SCC 32 at paras. 7-12; Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7 at para. 21.

[72] The defendants argue that there is no genuine issue requiring a trial in relation to causation because of weaknesses in the plaintiff’s evidence. In particular, the defendants argue that based on the plaintiff’s evidence on the motion and her discovery evidence, she is unable to say exactly where she tripped, or exactly how she tripped.

[73] The plaintiff argues that a plaintiff is not required to pinpoint the exact place of her fall, and that causation is not required to be proven with scientific precision.

[74] On the evidence before me, had I found that the defendants breached their duty under the Occupiers’ Liability Act, I would find that there is a triable issue in relation to causation.

[75] Essentially the defendants’ position is that the plaintiff’s evidence is too uncertain to establish causation. For example, in her discovery evidence, she testified that she did not recall exactly where she fell (Plaintiff’s discovery transcript, QQ 143-156). A further example is that in her cross-examination on the motion, she was unable to describe with clarity what made her trip, or pinpoint where she fell (Plaintiff’s cross-examination transcript, QQ 197-199, 294-296).

[76] The defendants also argue that there are inconsistencies between the plaintiff’s evidence and what is shown on the objective video evidence. For example, in her discovery she testified that she was walking on the pedestrian cross-walk prior to stepping onto the sidewalk (Plaintiff’s discovery transcript, QQ 103-106). However, the video clearly shows that this was not the case. She approached the sidewalk on a diagonal, and was not walking on the pedestrian cross-walk.

[77] I agree that there are some weaknesses in the plaintiff’s recollection. But the plaintiff's evidence does not stand alone. There is also the video evidence. Although the video evidence does not show the exact mechanics of the plaintiff’s fall, it shows that she fell at the point in her path when she would have been stepping up onto the sidewalk. Assuming for the sake of argument that the state of the curb fell below the standard of care, in my view, despite the potential weaknesses in the plaintiff’s evidence, when combined with the video evidence that shows that her fall happened when she was traversing the location of the curb, in my view, it would be reasonably open to a trier to conclude that causation was proven, using a robust and common sense approach to the evidence as a whole. This conclusion is consistent with the approach to causation of the Ontario Court of Appeal in Kamin v. Kawartha Dairy Ltd., (2006), 79 O.R. (3d) 284 at para. 8.

[78] In other words, if I had found that the state of the curb was such that the defendants’ breached their duty, evidence that the plaintiff fell as she was at a part of the curb that fell below the standard of care is evidence from which a trier of fact could infer that the cause of the fall was the state of disrepair. However, in light of my finding that the defendants did not breach their duty of care, this question is academic.

Conclusion

[79] I am satisfied that the defendants should prevail on this motion. There is no issue requiring a trial in relation to whether they breached their duty. The evidence, in my view, is clear that the defendants did not breach their duty. However, had I found that the defendants failed to maintain their duty under the Occupiers’ Liability Act, in my view there would be a triable issue in relation to causation.

[80] For these reasons, the defendants’ motion for summary judgment is granted. The plaintiff’s action is dismissed.

Costs

[81] I heard costs submissions at the hearing of the motion.

[82] If successful, the defendants sought partial indemnity costs of the motion of approximately $20,000.00, and of the action of approximately $11,000.00, for a total of $31,000.00, including disbursements and HST. The defendants argue that costs should follow the event on a partial indemnity basis. The defendants also note that additional costs were incurred for two reasons. First, the defendants’ expert, Mr. Blaney, was required to attend for cross-examination twice, because on the first scheduled date the plaintiff’s counsel failed to attend. Second, the plaintiff refused to produce her witness Mr. Chu for cross-examination on a scheduled date, and as a result a case conference was necessary for the defence to obtain an order requiring that plaintiff to produce Mr. Chu for cross-examination.

[83] If successful, the plaintiff would have sought costs of the motion of just under $10,000.00 on a partial indemnity basis. The plaintiff’s costs apart from the motion were not included in the plaintiff’s cost outline. I consider the plaintiff’s bill of costs on the motion in assessing the reasonableness of the costs sought by the defendant. Counsel for the plaintiff argues that his position not to produce Mr. Chu for cross-examination was reasonable, because he had offered to produce a supplementary affidavit from the plaintiff, which made Mr. Chu’s evidence unnecessary. Counsel for the plaintiff also notes that the client is of limited financial means.

[84] In the circumstances of this case, the indemnity principle supports the proposition that the defendant should be given an award of partial indemnity costs of both the motion and the action. This leaves the issue of what quantum of costs on a partial indemnity basis is reasonable and proportionate in all the circumstances, considering the factors enumerated in rule 57.01.

[85] Pursuant to the Courts of Justice Act, s. 131(1), the court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out a non-exhaustive list of factors to be considered by the court when determining the issue of costs. These factors include: the principle of indemnity and the results obtained; the reasonable expectations of the paying party; the amount claimed in the proceeding and proportionality; the complexity of the proceeding; the importance of the issues; the experience of the lawyer for the party entitled to costs; any offers to settle; and, the conduct of a party that tended to lengthen the duration of the proceeding.

[86] The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for Ontario. I have considered these factors, as well as the principle of proportionality (R. 1.01(1.1)), keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice.

[87] Costs awarded should be in an amount that is proportionate to the nature of the proceeding, including the amount of the claim, the complexity of the proceeding, and the importance of the issues to the parties. The issues in this action were not particularly complex. The claim was for a significant amount of money, $750,000.00.

[88] I must balance the indemnity principle with the objective of access to justice. The plaintiff’s modest means should not deprive the defendants of a reasonable and proportionate costs award. However, it is a factor entitled to a limited amount of weight in the context that costs awards should not have the effect of impeding access to justice.

[89] I will not deal separately with the arguments about the repeat attendance of Mr. Blaney, and about the failure to produce Mr. Chu. Considering the totality of the circumstances, I find that the costs award sought by the defendants is somewhat high.

[90] In all of the circumstances, I find that a reasonable and proportionate award of costs of the motion and the action is that the plaintiff shall pay the defendant’s costs on a partial indemnity basis in the amount of $17,500.00, inclusive of disbursements and HST.

Justice J. Copeland Released: May 8, 2019