Decision On Summary Judgment Motion
Court File and Parties
Court File No.: CV-09-0596-000 Date: 2019-06-04 Ontario Superior Court of Justice
Between: Suzan Labelle and Dennis Labelle, Plaintiffs R. Clinker, for the Plaintiffs
- and -
Canada Border Services Agency, Attorney General of Canada, Abitibi Consolidated Inc., and International Bridge Company, Defendants J. Roy, for the Defendants, Canada Border Services Agency and the Attorney General of Canada
Heard: March 4, 2019, at Thunder Bay, Ontario Madam Justice T. J. Nieckarz
Overview
1This is the Defendant, Canada Border Services Agency’s (“CBSA”) motion for summary judgment. CBSA takes the position that the undisputed evidence is clear that it was not negligent, and did not breach its duty of care imposed by the Occupier’s Liability Act, R.S.O. 1990, c.O.2 by virtue of the following:
- The co-defendant, Abitibi Consolidated Inc. (“Abitibi”) was required by statute, agreement and court order to properly maintain the new customs facility where the alleged trip and fall occurred. Abitibi is the only party that is responsible in law for any and all liability arising out of the alleged incident; and
- Despite Abitibi’s responsibility to properly maintain the customs facility, CBSA had a reasonable system of maintenance in place to ensure that Abitibi properly maintained the facility.
2CBSA therefore seeks dismissal of the Plaintiffs’ claims. In the alternative, if there is fault that is to be attributed to CBSA in connection with the alleged trip and fall, CBSA argues that it can be determined on the basis of the evidentiary record in support of the motion; it does not require a trial.
3The Plaintiffs assert that there is a genuine issue for trial, and therefore the motion should be dismissed. Specifically, the Plaintiff’s assert that there are genuine issues with respect to the following:
- Whether the agreement entered into between CBSA and the co-defendants is sufficient to absolve the CBSA of liability under the Occupier’s Liability Act; and
- If the answer to question #1 is “no”, given that CBSA took upon itself responsibility to monitor and inspect the maintenance of the property, did they do enough to meet their obligations under the Occupier’s Liability Act, and otherwise at law?
4There were other issues raised in the materials of the parties. In oral argument the CBSA acknowledged that it is an “occupier” pursuant to the Occupier’s Liability Act. It further acknowledged that there was a duty of care that was owed to the Plaintiffs. The real question for determination on this motion is whether a trial is required to determine whether CBSA has met its obligation to the Plaintiffs as an occupier. CBSA argues that it did, while the Plaintiffs argue that it did not, and that this is an issue that requires a trial.
5For the reasons set out below I agree with the Plaintiffs that there is a genuine issue for trial, and I dismiss the Defendant’s motion.
Background
6The claim arises from a slip and fall that is alleged to have occurred on January 5, 2008 at the CBSA Customs Office located at in Fort Frances, Ontario. The Plaintiffs seek $250,000 in damages with respect to the injuries suffered by Suzan Labelle (“Suzan”), and the resulting loss of care, guidance and companionship suffered by her spouse, Dennis Labelle (“Dennis”).
7The Plaintiffs allege that Suzan slipped and fell on an ice ridge shortly after exiting the Customs Office building. She was travelling back into Canada after a shopping trip to International Falls, Minnesota. She went into the customs office to pay duty on purchases made, and alleges she slipped and fell when she was returning to her vehicle.
8As a result of the fall, Suzan claims to have suffered injuries including a torn rotator cuff, significant swelling and bruising of the left leg with discolouration and decreased sensation, and left leg thrombosis. Suzan further claims to suffer debilitating pain in her shoulder, and insomnia as a result of the pain in her leg and her shoulder. Suzan has plead that she has been unable to carry on in her normal lifestyle, and that as a result of the accident and injuries, she also suffers depression.
9The accident was reported to CBSA, by letter, on April 9, 2008. This was approximately three months later. CBSA claims that the delay in the reporting of the accident has resulted in their inability to investigate it in a timely manner. Specifically, video surveillance that may show the outside condition of the area in question is only maintained for a 60 day period.
10The Customs Office is located on land owned by Abitibi, and not CBSA. As required by s. 6 of the Customs Act, R.S.C., 1985, c. 1(2nd Supp.), on or about November 1, 2001 Abitibi and the predecessor to CBSA entered into an agreement (the “Agreement”), pursuant to which Abitibi agreed to provide a new customs facility. This facility is where the accident is alleged to have occurred.
11Also in accordance with its obligations pursuant to s. 6 of the Customs Act, Abitibi agreed to be responsible for the maintenance of the facility, including snow and ice removal.
12The Statement of Claim was issued in December 2009 and served on the Defendants in March 2010. The claim alleges, amongst other things, that the Defendants were negligent in maintaining the property in question, and that they breached the duty imposed upon them pursuant to the Occupier’s Liability Act, R.S.O. 1990, c.O.2, to take reasonable steps to ensure that persons entering the premises were reasonably safe.
13A Statement of Defence and Crossclaim was served by CBSA in May 2010. CBSA takes the position that it was Abitibi that was exclusively responsible for the proper maintenance of the property pursuant to the terms of a Court Order dated August 31, 1994, the Agreement, and pursuant to s. 6 of the Customs Act. Regardless, CBSA denies any negligence.
14No defence was filed by Abitibi. Following service of the claim, Abitibi and the Defendant International Bridge Company (“IBC”) advised that there were subject to an order made in Quebec under the Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36. As such, the claims against them were automatically stayed. The Plaintiffs subsequently settled their claim with Abitibi and IBC in December 2014.
15There is a significant procedural history, which is not relevant to this motion. Suffice it to say that the matter has languished, which resulted in an administrative dismissal for delay. There was subsequently an unsuccessful motion to set aside the dismissal, followed by a successful appeal of the motion decision, and a reinstatement of the action. Examinations for discovery have been conducted.
Law and Analysis
The Test for Summary Judgment
16There is no dispute between the parties that the principles applicable to a motion for summary judgement are set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.
17As outlined by Karakatsanis J., writing for the Supreme Court of Canada in Hryniak, at para. 5:
5…summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.
18Regarding the proper procedure on a summary judgment motion, Karakatsanis J. states, at para. 66:
66 … [T]he judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they 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.
19Karakatsanis J. further explains, at paras. 49-50:
49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (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.
50 These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
20On a summary judgment motion, the “moving party bears the onus of proving there is no genuine issue requiring a trial” on the balance of probabilities, and an “evidentiary burden to support that a genuine issue exists only rests with the responding party if the moving party demonstrates a prima facie right to summary judgment”: Chambers v. Cobb, 2015 ONSC 5313, 257 A.C.W.S. (3d) 491, at para. 44.
21With this in mind, “a party is not ‘entitled to sit back and rely on the possibility that more favourable facts may develop at trial,” and each party “must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried”: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at para. 56, affirmed in Hryniak v. Mauldin and Bruno Appliance and Furniture Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126.
An Occupier’s Duty
22CBSA has acknowledged that it is an “occupier” for the purpose of the Occupier’s Liability Act.
23Section 3 of the Act imposes a duty on occupiers to take such care as is reasonable in all of the circumstances to ensure that their premises are safe. An assessment of what constitutes reasonable care will be specific to the facts of each case: Waldick v. Malcolm, [1991] 2 S.C.R. 456 (S.C.C.), at paras. 22 and 45; Tondat v. Hudson’s Bay Company, 2018 ONCA 302, 292 A.C.W.S. (3d) 440, at para. 5.
24The standard of care for occupiers is therefore one of reasonableness. It does not require perfection, nor does it require them to have to take unrealistic or impractical precautions against known risks: Miltenberg v. Metro Inc., 2012 ONSC 1063, 212 A.C.W.S. (3d) 1081, at para. 33.
25The onus is on the Plaintiff in an occupier’s liability case to prove that some act or failure to act on the part of the occupier caused her injury: Tondat, at para. 6.
The Subcontractor Defence
26CBSA has plead as a defence subsection 6(1) of the Occupier’s Liability Act. Pursuant to subsection 6(1), the occupier is not liable for damages if it acted reasonably in entrusting the work to an independent contractor to ensure the safety of the premises:
6 (1) 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 the occupier had acted reasonably in entrusting the work to the independent contractor, 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 if it was reasonable that the work performed by the independent contractor should have been undertaken.
27In Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145, the Supreme Court considered the circumstances of when an occupier might be absolved from liability by hiring an independent contractor. Cory J. states, at paras. 19-20:
19 In some circumstances, the duty to take reasonable care may well be discharged by hiring and, if required, supervising a competent contractor to perform the particular work. The standard of reasonable care is met by exercising reasonable care in the selection and, in some situations, the supervision of an independent contractor qualified to undertake the work. If this is done, then the principal will usually not be held liable for injury caused by the negligence of the independent contractor. This long-standing principle of the common law is today reflected in many of the occupiers’ liability statutes enacted by the provinces. These Acts generally protect the occupier from negligence of an independent contractor qualified to perform the work.
20 The strict duty to perform a particular act imposed by statute and the common law duty to take reasonable care if an act is undertaken reflect two divergent positions on a spectrum of liability. Within that spectrum there are a variety of legal obligations which may, depending on the circumstances, lead to a principal’s liability for the negligence of an independent contractor. Whether or not there will be liability for the negligence of the acts of the independent contractor will depend to a large extent upon the statutory provisions involved and the circumstances presented by each case. …
28In Manning v. 3980 Investments Ltd., (2003), 123 A.C.W.S. (3d) 969, at para. 66, Belleghem J. notes that s. 6(1) of the Occupier’s Liability Act incorporates the principles outlined in Lewis as a defence, although the “the defence … is only available if the evidence supports it.” See also Hill v. Intact Insurance Co., 2015 ONSC 6601, 261 A.C.W.S. (3d) 714, at para. 34.
29This is where the parties diverge. CBSA claims that the evidence currently available to the court on this motion clearly supports the defence in this case, and that no trial is warranted in order to make this determination. CBSA argues that it met its duty of care by:
(a) entrusting the maintenance and repair work to Abitibi as required by section 6 of the Customs Act; and (b) ensuring that the new customs facility was properly maintained.
CBSA therefore argues that if there is any liability, it lies with Abitibi.
(a) Entrusting the maintenance to Abitibi:
30As CBSA points out, the Customs Act imposes upon it the “contractor” who will be responsible for the maintenance of its premises, including but not limited to the snow removal and ice cleaning. Section 6 of the Customs Act reads in part:
Customs facilities
6 (1) The owner or operator of
(a) any international bridge or tunnel, for the use of which a toll or other charge is payable,
shall provide, equip and maintain free of charge to Her Majesty at or near the bridge, tunnel, railway, airport, wharf or dock adequate buildings, accommodation or other facilities for the proper detention and examination of imported goods or for the proper search of persons by customs officers.
Clarification
(1.1) For the purposes of subsection (1), maintain means, […] snow removal and cleaning.
31Abitibi, as the owner of the bridge had a statutory responsibility for the maintenance of the new customs facility, including but not limited to snow removal and cleaning. By operation of s. 6 of the Customs Act, maintenance services such as snow removal had to be provided by Abitibi, and CBSA, unlike other occupiers, had no choice as to the contractor chosen to undertake the work.
32I agree with the position of CBSA that there is no genuine issue for trial with respect to whether it fulfilled its obligation pursuant to subsection 6(1) of the Occupier’s Liability Act to exercise reasonable care in the selection of the contractor. CBSA had no choice; the selection was imposed by statute.
33Having said this, I also agree with the Plaintiffs that there is no authority to support a position that the Customs Act or the Agreement between CBSA and Abitibi insulates CBSA from liability with respect to accidents occurring on its premises. But for the stay of proceedings against Abitibi, this may have been an issue as between CBSA and Abitibi in the cross-claim, but it does not defeat the Plaintiffs claims vis-à-vis CBSA.
(b) Ensuring that the new customs facility was properly maintained
34Subsection 6(1) of the Occupier’s Liability Act imposes on CBSA the obligation to take reasonable steps to ensure that the work entrusted to the contractor had been done properly; in other words, that the property was properly maintained by Abitibi and safe to use.
35As CBSA points out, whether the occupier met the required standard of care is reviewed on an objective test of a reasonable person: O’Leary v. Rupert, 2010 BCSC 240 at para. 33.
36In determining whether the occupier exercised reasonable care, as required by the Occupier’s Liability Act, a judge should not be focused as much on the results of the occupier’s efforts, but rather the efforts themselves. As stated by Power, J. in Canada (Attorney General) v. Ranger, 2011 ONSC 3196, at para. 33:
I accept as correct the defendant’s proposition that occupiers can successfully defend a claim under the Act by demonstrating that they had in place a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what is commensurate with reasonably perceived potential risks to those lawfully on the property and that an occupier’s conduct in this regard is to be judged not by the result of his or her efforts (i.e., whether someone is injured) but by the efforts themselves.
37CBSA argues that the evidence before the court on this motion permits a determination that it acted reasonably and thereby met the standard of care imposed upon it. CBSA points to the following, which it claims demonstrates without the necessity of a trial that CBSA made reasonable efforts, from the perspective of a reasonable person, to ensure that the outside of the facility was properly maintained and safe for the public:
a) It regularly monitored whether Abitibi was properly maintaining the facility and raised concerns with Abitibi if it did not; b) Although Abitibi employees were on site of the new customs facility on a daily basis, CBSA employees would raise with management any maintenance related issues so that management could address them with Abitibi; c) If a CBSA employee had concerns about the safety of the facility, he or she would alert his or her supervisor; d) CBSA employees were expected to also alert management as to any hazards or dangers present at the facility, and they did; e) If required, while awaiting Abitibi’s maintenance crew, CBSA employees would apply sand or salt, as provided by Abitibi, to ensure the safety of those coming on to the new customs facility; f) CBSA made it known to Abitibi that the expectation was that they would remove snow and properly maintain the outside of the building both during, and immediately after a snowfall, without CBSA having to make a special request. If Abitibi did not arrive in a timely fashion, CBSA would call to request snow removal.
38The Plaintiff, on the other hand, argues that there is a genuine issue for trial with respect to whether the CBSA took reasonable care to ensure that the premises were in a reasonable state of repair and safe for people coming onto the premises. Specifically:
(a) What was reasonable in these circumstances for CBSA to have done to meet the standard of care and ensure that the property was being maintained properly by Abitibi? And (b) Did CBSA do what was reasonable?
39The Plaintiff points to the following:
a) CBSA recognized its obligations, and deemed it necessary to monitor the actions of Abitibi, but had no protocol or inspection system in place to do same or ensure that same was being done; b) The CBSA Chief of Operations in Fort Frances, Kimberley Anne Beaudry, acknowledged in the cross-examination on her affidavit sworn February 6, 2018 that the employees of CBSA were not required as part of their duties to inspect the premises; c) While CBSA takes the position that it alerted Abitibi as to issues with the condition of the premises, the evidence of Ms. Beaudry confirms that there are no records, and no evidence adduced that the same was done or when it was done; d) While CBSA states it would apply salt and/or sand when hazardous conditions were identified, they had no system or policies in place to determine when same would be done and no record keeping system was maintained to document when this was done; e) CBSA received no logs or diaries from Abitibi to show how often or to what extent they inspected, repaired and maintained the premises; and f) While CBSA has given evidence as to their expectation of Abitibi, the Agreement with Abitibi is silent as to the specific obligations with respect to maintenance.
40The Plaintiffs rely on Soomre (Litigation Guardian of) v. P.A. Ramey Enterprises Ltd., 2012 ONSC 782, 212 A.C.W.S. (3d) 694 in arguing that the CBSA did not do enough to discharge the duty of care imposed by the Occupier’s Liability Act. At para. 26 of Soomre, Ferguson J. stated the following in dismissing the occupier’s motion for summary judgment dismissing the claim of the Plaintiff:
The moving party was present at the location of the trip and fall each day. There remains a responsibility on each party to ensure that the property was being maintained in a proper manner.
41The Plaintiffs argue that CBSA had a responsibility to ensure that the property was being properly maintained. Particularly given that the Agreement with Abitibi did not have any specific maintenance schedule or obligation, it was not reasonable for CBSA not to have its own formal system of inspection of Abitibi’s work. The Plaintiffs argue that an informal protocol whereby employees are simply asked to let their managers know if they see an issue does not constitute a system of inspection.
42CBSA takes the position that is was not unreasonable for it to not have a specific schedule in place for maintenance particularly given that Abitibi was responsible for maintenance and were on site every day. CBSA employees were in and out of the secondary examination area at which the accident is alleged to have occurred, and would have notified management if there was a safety concern. CBSA further argues that there were secondary examination searches done on the day in question, and employees would have been in and out of the parking lot prior to the alleged accident for lunch. There is no evidence of any reports of any issues or concerns on the day in question.
43Having considered the evidence, the law and arguments of the parties, I concur with the Plaintiffs. To paraphrase Ferguson J., in Soomre, a full appreciation of the evidence and the issues in this case can only be achieved by way of trial. A proper determination of the questions of what was reasonable for CBSA to do in the circumstances by way of monitoring Abitibi’s performance, and whether it was in fact done will require a trial, and more evidence than is currently before the court.
44It is clear from the evidence that the CBSA’s system of inspection was informal to say the least. It depended upon the awareness of its employees and managers, and on them being able to identify and report any issues or concerns. Whether CBSA is correct in its position that this informal system of inspection was reasonable in the circumstances when Abitibi was also on site daily, requires a greater examination of the circumstances than the evidence before the court currently allows me to do.
45In fact, the evidence before at this time leads me to the conclusion that CBSA relied largely on Abitibi to do what it was supposed to do, without any proper procedures or protocol in place to ensure that this was in fact the case. I note the following concerns from the evidence:
a) In addition to CBSA’s obligation under the Occupier’s Liability Act, Schedule “D” of the Agreement obligates the CBSA to inspect work to ensure it is satisfactory. I note that only part of Schedule “D” is attached to the affidavit, as the balance has yet to be located. b) It is undisputed that there was no regular schedule in place for inspection, and no designated individuals who were responsible for monitoring the safety of the premises. c) Although CBSA relied on an informal lookout system from their employees, they have acknowledged that their employees were not obligated to keep a lookout as part of their job duties, and there are no records to show when or how often employees have in fact reported unsafe conditions. d) While CBSA argues that Abitibi was diligent in ensuring there were individuals on site daily, and therefore no formal inspection system was required, it is noted that: ii) The evidence of Ms. Beaudry on her cross-examination was that Abitibi has a cleaner on site who she felt would notify a manager if there were any issues to be addressed. Having said this, Ms. Beaudry did not know if the cleaner was required as part of her job description to inspect the parking lot for maintenance or safety issues. iii) There may have been other Abitibi representatives on site at times, but it was acknowledged there was no one on site daily for maintenance. It is unclear to me at this time as to whether Abitibi had any system in place for monitoring the condition of the parking lot, particularly during the winter months when conditions can change quickly and become unsafe quickly. iv) The only evidence before the court at this time is that Ms. Beaudry is unaware as to whether or not Abitibi had a schedule for inspections of the lot and the building. v) Ms. Beaudry was unaware of when Abitibi last inspected the lot before the alleged fall. This may require further evidence, particularly in light of the evidence of the Plaintiffs that the area was going through a freeze/thaw cycle meaning that the temperature was going above freezing and below freezing for several days prior to and including the date of the fall and there had been icy conditions noticed at their home 3 or 4 days leading up to the slip and fall. Was this the case at the facility also? The time of the year and weather conditions are both factors that will be considered in determining reasonableness. vi) The Plaintiffs’ evidence was also that they travelled across the border regularly and that the parking lot was not well maintained, although it is not clear that they were referring to the lot particular to the alleged fall. This fact is not admitted by CBSA. e) CBSA, while relying on Abitibi to perform their duties properly, and taking the position that they did not need to have a formal system of inspection because Abitibi was on site regularly and keeping on top of matters, has never asked for logs or diaries to confirm what Abitibi did to inspect, maintain and repair. CBSA adopted the attitude that they were going to assume Abitibi was doing what they were supposed to do, unless one of CBSA’s employees, who weren’t obligated to, noticed otherwise. f) While the evidence suggests that CBSA was content with Abitibi’s work, there is no evidence as to how often CBSA had to report issues, problems or concerns, particularly during inclement weather. This evidence could be of assistance in determining whether CBSA’s relaxed approach to inspection was reasonable or not. g) The only evidence available at this time is that during snowstorms CBSA would sometimes contact Abitibi to clear the snow, but usually they would come without asking. h) Ms. Beaudry had no evidence as to whether there was or was not an ice ridge on the date in question. There is also no evidence as to whether ice ridges building up is an issue at this location that is commonly experienced. When asked at examination for discovery on June 14, 2017 whether she had seen ice ridges before, Ms. Beaudry indicated at qu. 291 “I guess? I’m not a hundred, they’re usually very good about cleaning out underneath the canopy area.” The evidence of the Plaintiffs lead to the conclusion that the ridge, if found to have been present, did not suddenly appear. If this is a common problem, a reasonable person may expect there to be a system in place to inspect, report and address this hazardous condition.
46In light of the foregoing, based on the evidence before me, I am not satisfied that there is no genuine issue for trial as to whether CBSA met the standard of care. I also find that the need for a trial cannot be avoided by resort to Rules 20.04(2.1) and (2.2). CBSA’s liability to the Plaintiffs is an issue that requires a trial with findings of fact that I am simply unable to make based on the evidence currently before me.
47The Defendant’s motion is dismissed. If the parties cannot agree as to costs, the party claiming costs shall provide written submissions no longer than five pages (not including offers that are attached, a bill of costs, dockets and case law), double-spaced, to be served and filed no later than June 19, 2019, failing which costs shall be deemed to have been settled. The responding party shall serve and file their response no later than July 4, 2019 and that response shall also be limited to five pages, double-spaced. Any reply shall be delivered no later than July 11, 2019 and shall be limited to two pages, double-spaced.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: June 4, 2019
COURT FILE NO.: CV-09-0596-000 DATE: 2019-06-04 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SUZAN LABELLE and DENNIS LABELLE, Plaintiffs - and - CANADA BORDER SERVICES AGENCY, ATTORNEY GENERAL OF CANADA, ABITIBI CONSOLIDATED INC., AND INTERNATIONAL BRIDGE COMPANY, Defendants
DECISION ON SUMMARY JUDGMENT MOTION Nieckarz J.
Released: June 4, 2019 /lvp