COURT FILE NO.: C-482-15
DATE: 2019 07 02
CORRECTED: 2019 07 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jesse Ileen Marie Hoddle, Plaintiff
AND:
Michael James Gelata, 2027975 Ontario Inc. and Krebs Holdings Inc., Defendants
BEFORE: Justice G. E. Taylor
COUNSEL: Bernard T. Verbanac and Melissa Knox, Counsel for the Plaintiff
Todd J. McCarthy and Richard J. Campbell, Counsel for the Defendants
HEARD: June 24, 2019
ENDORSEMENT – Motion for summary judgment
Correction Notice
July 9, 2019: minor typographical correction made to counsel. The counsel has been changed to read: Bernard T. Verbanac, instead of Bernard T. Verbanec.
Introduction
[1] On June 6, 2013, the plaintiff was injured when she fell or jumped from the roof of an industrial building located at 343 Montrose Street North in Cambridge, Ontario (“the property”). The defendants are the owner and occupier of the property. The defendant Gelata resided at the property from which he operated a commercial self storage facility.
[2] The defendants bring this motion for summary judgment seeking a dismissal of the action. According to the defendants, there is no genuine issue regarding liability which requires a trial for determination.
Evidence on the Motion
[3] It is common ground that on the evening of June 5, 2013, the plaintiff visited Gelata at his residence located at the property. During the course of the evening, the plaintiff and Gelata consumed some alcoholic beverages supplied by Gelata. At approximately 1 a.m. on June 6, 2013, the plaintiff decided to go outside to smoke a cigarette. Gelata suggested that they go onto the roof of the building for that purpose. Gelata escorted the plaintiff to the roof. They accessed the roof by way of a door. It was approximately 1 a.m. when they went out onto the roof. After the plaintiff and Gelata were on the roof, the door closed behind them and locked automatically. The door could not be unlocked or opened from the outside. The only way to exit the roof was by means of the door which had just locked. There were no railings around the perimeter of the roof.
[4] The plaintiff and Gelata both swore affidavits on the present motion. With respect to the events that occurred on the evening of June 5, 2013, and on the roof of the building on the property on the morning in question, there is considerable disagreement.
[5] Gelata says the plaintiff arrived at the property at between 10:30 and 11:00 p.m. on June 5 for the purpose of checking her storage locker. He says the plaintiff had been at a tavern before arriving at the property. The plaintiff says she was invited to the property by Gelata to “hang out”. She arrived at the property at about 10:30 p.m. She says she was visiting a friend before going to the property and had not been at a tavern. The plaintiff denies that she went to the property to check her storage locker and says she did not have the keys with her to access the storage locker.
[6] Gelata says the plaintiff consumed at least 3 to 4 beers while they played billiards in his apartment. The plaintiff says Gelata was visibly intoxicated and was slurring his words when she arrived. The plaintiff says that while she and Gelata were playing pool, Gelata consumed 1 or 2 beers. She says she consumed no more than 2 beers while at the property.
[7] Gelata says that when the plaintiff wanted to go outside to smoke a cigarette he walked her to the roof. The plaintiff says that Gelata suggested they go to the roof to smoke and so he could show her the renovation plans he had for a balcony on the roof. The plaintiff says she was reluctant to go out onto the roof but Gelata assured her it would be fine and he would be right behind her.
[8] Gelata says that when the door to the roof closed and locked, he told the plaintiff that he was able to pry open the door and had done so on prior occasions. The plaintiff denies that Gelata told her he was able to re-open the door and he made no attempt to do so. Rather, he began searching for something to assist them in getting down from the roof.
[9] Gelata says he told the plaintiff to stay near the door while he attempted to re-open it. He says he told the plaintiff not to go near the edge of the roof. The plaintiff denies that Gelata instructed her to remain near the door and not to go near the edge of the roof.
[10] Gelata says that while he was working to re-open the door, the plaintiff walked to the edge of the roof and looked over. He had almost succeeded in re-opening the door when he instructed the plaintiff to move away from the edge of the roof. He saw the plaintiff sitting or squatting near the edge of the roof. The plaintiff says that she was not confident in Gelata’s ability to re-open the door and she began looking for an alternative means to get down from the roof. As she walked carefully towards the edge of the roof, her foot slipped and she fell over the side of the building.
[11] Gelata says that when he heard the plaintiff scream, he immediately ran to the edge of the roof where he had last seen the plaintiff. He then used a pipe on the roof to get from the roof to the ground to assist the plaintiff. The plaintiff says she lay on the ground yelling for help for what seemed like hours before Gelata came to her assistance.
[12] Gelata says he retrieved his cell phone from his apartment and called 911. He says he asked the plaintiff what had happened and she told him she had jumped from the roof. The plaintiff denies jumping from the roof and denies ever telling Gelata that she had jumped down from the roof.
[13] The evidence on the motion includes the recording of Gelata’s 911 call and a transcript of that call, the Ambulance Call Report and the notes of the officers of the Waterloo Regional Police Service who responded to the property. The 911 call was received at 4:35 a.m. on June 6, 2013. While speaking to the 911 operator, Gelata reported that the plaintiff had fallen off the roof. The Ambulance Call Report indicates that the call was received at 4:36 a.m. and the ambulance attendants arrived at the property at 4:46 a.m. The Ambulance Call Report records the history of the incident as “pt on roof in middle of night when she slipped off roof and fell about 20 feet…”.
[14] The plaintiff, at her examination for discovery and cross examination on the affidavit in response to this motion, testified that she had been on the roof previously, she knew there were no railings around the roof, she had consumed cocaine before going out onto the roof, she was wearing sandals with no tread, she walked to the edge of the roof voluntarily and her back was to the edge of the roof when she slipped and fell to the ground.
[15] The plaintiff was transported by ambulance to Cambridge Memorial Hospital. There is reference in the hospital records that the plaintiff said she had attempted to jump from the roof to the ground.
[16] In his cross examination on his affidavit on the present motion, Gelata testified that he and the plaintiff went out to the roof at approximately 1 a.m. and they were on the roof for between 30 and 45 minutes when the plaintiff jumped. When he realized that the plaintiff was lying on the ground in pain, he stopped trying to get the door open and he went to assist the plaintiff by scaling down a piece of pipe which he described as dangerous but quicker than trying to open the locked door. He testified that it took about 30 minutes to get down from the roof using the piece of pipe. Once he got to the ground he talked to the plaintiff for a few minutes and then he ran to his office to retrieve his cell phone. He said it took approximately 10 minutes to run the 1000 feet to his office and another 10 minutes to return to the location where the plaintiff was lying on the ground. As he was returning to location where the plaintiff lying, he placed the call to 911.
[17] The plaintiff filed the report of Benjamin Elkin, a Professional Engineer with a PhD in Biomechanical Engineering. This report was made part of the evidence on the motion with the consent of counsel for defendants. Elkin identified two potential breaches of the Ontario Building Code with respect to the property. From the photographs of the roof, Elkin concluded that because of the deck, the roof was being accessed for more than service or maintenance. In that case, the Building Code requires a means of egress from the roof. Once the door locked behind the plaintiff and Gelata there was no effective means of egress from the roof. Secondly, Elkin expressed the opinion that for the roof of the property to be compliant with the Building Code there should have been a guard around the perimeter of the roof.
Discussion
[18] The Occupiers Liability Act provides at s. 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.
[19] Rule 20.04(2) of the Rules of Civil Procedure provides:
The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;…
Rule 20.04 (2.1) authorizes the judge hearing a summary judgment motion to weigh the evidence, evaluate credibility of a deponent and draw reasonable inferences.
[20] The issue therefore to be decided on this motion is whether a trial is required to decide the issue of whether the defendants took such care as was reasonable in all of the circumstances to see that the plaintiff was reasonably safe while on the premises. The position of the defendants is that this is not a genuine issue requiring a trial and therefore the action should be dismissed.
[21] I am not deciding if the plaintiff has proven that the defendants breached the duty owed to her pursuant to the Occupiers Liability Act.
[22] As I appreciate the position of the defendants, it is that even if there was a breach of the Occupiers Liability Act such breach was not a proximate cause of the injuries sustained by the plaintiff. As submitted during oral argument, the defendants say that the only reasonable course of action for the plaintiff to have taken once she was on the roof and the door closed and locked behind her was for her to wait by the door for help to arrive. By venturing away from the vicinity of the door, according to the defendants, the plaintiff is solely responsible for falling or jumping from the roof and injuring herself.
[23] The plaintiff was escorted to the roof by Gelata. A trier of fact could conclude that Gelata invited or encouraged the plaintiff to go up to the roof. Gelata was aware or should have been aware of the importance of not allowing the door to close once he and the plaintiff were on the roof. Once the door closed and locked automatically, there was no alternative means of getting down from the roof. There was no guard rail around the perimeter of the roof. In my view, in the circumstances, it would be open for a jury to conclude that the defendants breached the duty owing to the plaintiff to take such care as was reasonable in the circumstances to see that the plaintiff was reasonably safe while on the premises and that the breach of that duty was a proximate cause of the plaintiff’s injuries.
[24] I do not accept the defendants submission that the only option open to the plaintiff once she became stranded on the roof in the early hours of the morning was to wait near the locked door until help arrived. I do not find it unreasonable for a person in the situation in which the plaintiff found herself to attempt to locate another way to get down from the roof.
[25] Although I am not making a finding of fact, because I do not believe it is necessary, I will comment about Gelata’s evidence regarding the events that transpired on the roof on the morning in question. The plaintiff and Gelata went on to the roof at approximately 1 a.m. Gelata says he began to attempt to pry open the locked door as he had done previously. He says the plaintiff fell or jumped from the roof 30 to 45 minutes after they first went out on the roof. He says he stopped trying to pry the door open when he realized the plaintiff was lying on the ground. It would therefore appear that he had been trying, without success, to pry open the door for between 30 and 45 minutes. Gelata then says that it took him 30 minutes to get down from the roof in order to assist the plaintiff. It would seem from this evidence that he was of the mindset that he was more than 30 minutes away from re-opening the door. Gelata testified that he talked to the plaintiff for a few minutes and then he proceeded to his office to obtain his cell phone. It took him 10 minutes to run from the location where the plaintiff was lying on the ground to his office and another 10 minutes to return the location where the plaintiff was on the ground. Collectively, talking to the plaintiff, going to his office and returning to the plaintiff would have taken no more than 30 minutes. Gelata also testified that he placed the emergency call while en route between his office and the plaintiff. Therefore, in all likelihood, the 911 call was made in less than 30 minutes after Gelata successfully negotiated his exit from the roof.
[26] The 911 call was placed at 4:35 a.m. Using Gelata’s time estimates, the latest he could have called the 911 operator was approximately 2:45 a.m. In my view, it would be open to the trier of fact to conclude that Gelata and the plaintiff were trapped on the roof for much longer than 45 minutes before the plaintiff fell or jumped from the roof. It therefore would be open to a jury to reach a conclusion that Gelata was not close to successfully re-opening the locked door.
[27] In my view this is not an appropriate case in which to grant summary judgment dismissing the plaintiff’s action.
Conclusion
[28] The motion is dismissed. Counsel for the defendants submitted that if I did not dismiss the action I should refer costs of the motion to the trial judge. I disagree with that submission. Costs ought to follow the event.
[29] If counsel are unable to agree on the appropriate disposition as to costs, they may make written submissions. The written submissions on behalf of the plaintiff are to be delivered to my office within 14 days of the release of this Endorsement, not to exceed three pages in length exclusive of a Bill of Costs and Costs Outline. Responding submissions are to be delivered to my office within 28 days of the release of this this Endorsement, not to exceed three pages in length. Counsel are directed to file electronic copies of their cost submissions at Kitchener.Superior.Court@ontario.ca to my attention.
Justice G. E. Taylor
Date: July 2, 2019
Corrected: July 9, 2019
COURT FILE NO.: C-482-15
DATE: 2019 07 02
CORRECTED: 2019 07 09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jesse Ileen Marie Hoddle
Plaintiff
– and –
Michael James Gelata, 2027975 Ontario Inc. and Krebs Holdings Inc.
Defendants
ENDORSEMENT – Motion for summary judgment
G. E. Taylor, J.
DATE: July 2, 2019
Corrected: July 9, 2019