Court File and Parties
COURT FILE NO.: 27/16 DATE: 2019/01/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Christine Janssen, Plaintiff A. Huff, for the plaintiff
- and -
William and Markle Jewellers Ltd., Defendant L. Rodenberg, for the defendant
HEARD: December 20, 2018 at Woodstock
Mitchell J.:
Overview
[1] Pursuant to Rule 20 of the Rules of Civil Procedure, the defendant seeks summary judgment dismissing the plaintiff’s claim for damages arising from a slip and fall which occurred on the municipal sidewalk adjacent to the front entrance of the retail store operated by the defendant.
[2] The sole issue is whether the defendant is an “occupier” of the municipal sidewalk within the meaning of the Occupiers’ Liability Act (the “Act” ) [1] or otherwise owes a duty of care to the plaintiff at common law. If a statutory or common-law duty of care is found to be owing, the defendant concedes that the issue of whether the defendant breached the standard of care owed to the plaintiff is a genuine issue requiring a trial.
Background
[3] On November 21, 2014, the plaintiff fell on the sidewalk outside the entrance way to 489 Dundas Street, a two-story building located in Woodstock, Ontario (the “Premises”). The defendant operates a jewellery retail business from the first floor of the Premises.
[4] The defendant is a tenant of the Premises. The Premises are owned by William Duncan (“Duncan”). Duncan is the president of the defendant. Duncan is not a defendant in this action.
[5] The fall occurred at approximately 1:00 p.m. as the plaintiff was exiting the defendant’s store after having her daughter’s bracelet repaired. She claims that she fell on a snow-covered patch of ice just outside the entrance to the defendant’s store. As a result of the fall, the plaintiff suffered injuries to her right knee and hand.
[6] On examination for discovery, the plaintiff identified the location of her fall on a photograph taken of the front entrance to the defendant’s store. The plaintiff concedes that she fell on the sidewalk. The sidewalk is property owned by the City of Woodstock (the “City”). The City is not a defendant in this action.
[7] An eavestrough runs horizontally along the roof line of the Premises. Precipitation collected in the eavestrough appears to run off the Premises from a vertical pipe attached to the front wall of the Premises farthest from the entrance way to the store. This pipe travels into the ground and does not appear to deposit any water onto the adjacent sidewalk. A bulkhead runs horizontally and parallel to the eavestrough above the front window and entranceway to the store. The bulkhead runs the width of the Premises but stops approximately a foot short of the wall closest to the storefront. The depth and width of the bulkhead are not known.
[8] By statement of claim issued April 11, 2016, the plaintiff commenced this action claiming the defendant is liable in negligence as an occupier of the Premises for breach of its duty of care imposed pursuant to the provisions of the Act. She seeks $1,000,000 in damages. No claim is made in nuisance.
Position of the Defendant/Moving Party
[9] Ms. Rodenberg submits that no special circumstances exist so as to deem the defendant an “occupier” pursuant to the Act or to impose a duty of care on the defendant at common law for injuries suffered by the plaintiff on the municipal sidewalk adjacent to the Premises.
Position of the Plaintiff/Responding Party
[10] In response, Mr. Huff submits there is sufficient evidence before the court to support a finding that the defendant had sufficient control over that portion of the sidewalk on which the plaintiff fell and sustained her injuries to support a finding that the defendant may be an “occupier” pursuant to the Act or otherwise owe a duty of care towards the plaintiff.
Analysis
(a) Rule 20 - Summary Judgment
[11] Rule 20.04(2)(a) of the Rules of Civil Procedure requires the court to grant summary judgment where there is no genuine issue with respect to a claim or defence requiring a trial. The Supreme Court of Canada’s decision in Hyrniak v. Mauldin [2] is the leading case on utilizing the court’s enhanced powers under rule 20.
[12] Karakatsanis J. writing for the court made the following comments regarding the role of rule 20 as part of a necessary culture shift. She writes [3]:
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible – proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure.
[13] It is presumed that the judge will use these powers unless it is in the interest of justice for them to be exercised only at a trial. Whether or not a trial is required in the interests of justice will be driven by the underlying objective of the rule which is to promote access to justice by ensuring the process is proportional to the dispute.
[14] Hyrniak does not alter the well-developed principle that the parties are presumed to have placed before the court all of the evidence relevant to the issues that would be available at trial. [4] The Court may presume that no further and better evidence is available and the record is complete. [5]
[15] I find that the issues to be determined on this motion are ideally suited for adjudication using the enhanced powers provided under Rule 20. Whether or not the defendant is an “occupier” for purposes of the Act is a mixed question of fact and law. The evidence needed to resolve this issue is not in dispute. With respect to the issue of whether a common law duty arises in the circumstances of this case is also a fact-driven exercise and one which lends itself to a summary disposition.
(b) Does the Defendant owe a Duty of Care to the Plaintiff?
[16] The issue on this motion is restricted to whether the defendant owes a duty of care to the plaintiff. The defendant may owe a statutorily imposed duty of care as an “occupier” under the Act or a common law duty of care.
(i) Is the Defendant an “occupier” of the sidewalk under the Occupiers’ Liability Act?
[17] Section 3 of the Act states as follows:
- (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.
[18] Pursuant to the Act an “occupier” includes a person who is in physical possession of premises; a person who has responsibility for and control over the condition of premises; a person who has responsibility for the activities carried thereon; or a person with control over persons allowed to enter the premises. [6]
[19] While the plaintiff concedes that the fall occurred on property owned by the City, she argues the evidence establishes that the defendant had sufficient control over the area of the sidewalk on which the fall occurred so as to make the defendant an “occupier” of the sidewalk and, therefore, liable to the plaintiff under the Act.
[20] In support of her position, the plaintiff points to the following evidence:
(a) a municipal bylaw requires the defendant to clear ice and snow from the sidewalk adjacent to the Premises;
(b) the defendant’s employees routinely salted, sanded, shoveled or swept snow and ice from the entrance way to the store and the adjacent sidewalk in compliance with the bylaw;
(c) the area where the plaintiff fell is directly below the bulkhead overhanging the sidewalk off of which snow and ice would fall:
(d) the plaintiff fell on that portion of the sidewalk which was less than a foot from the carpeted entrance to the store and this portion (as opposed to the remaining area of the adjacent sidewalk) was used exclusively by the patrons of the store and not passersby, generally;
(e) the fall occurred off the main sidewalk area, on small slabs of concrete between the store entranceway and the main sidewalk area; and
(f) the brick wall separating the entrance to the defendant’s store front from the adjacent store front extends onto the sidewalk approximately 3-4 inches thereby having the effect of directing pedestrian traffic around that area of the sidewalk used exclusively by the defendant’s patrons to enter and exit the store.
[21] Absent special circumstances, the owner or occupier of land adjacent to a municipal sidewalk is not an occupier of the sidewalk as contemplated by s. 1 of the Act. [7]
[22] A property owner may be deemed in law to be an occupier of adjacent public property if the owner assumes control of that property. For example, in Moody v. Toronto (City) [8], the plaintiff was injured on a municipal sidewalk after exiting the SkyDome stadium. The evidence established that the portion of the municipal walkway on which the plaintiff was injured was used almost exclusively by patrons of SkyDome; a significant number of patrons of SkyDome had no alternative but to use the walkway; and the crush of activity at the beginning and end of an event made it impossible for patrons to observe any hazards on the walkway. In denying summary judgment to the defendant, the court held that these facts raised a genuine issue as to whether the defendant had sufficient control over the patrons so as to be deemed an “occupier” under the Act.
[23] Another example of “control” over a municipal sidewalk by an adjacent property owner sufficient to raise an issue requiring a trial, arises from the factual matrix in Bogoroch v. Toronto (City). [9] In Bogoroch the defendant obtained a permit from the city to display and market its goods on the sidewalk outside of its retail store. By placing its good and signage on the sidewalk, the court found that the defendant exercised exclusive control over the sidewalk thus extending its duty of care to the users of the sidewalk.
[24] In MacKay v. Starbucks [10] the Ontario Court of Appeal upheld the trial judge’s finding that the defendant was an occupier within the meaning of the Act of the space on the sidewalk adjoining the patio entrance. The trial judge held that Starbucks assumed control over the sidewalk and the persons allowed to enter its premises using the sidewalk. This was indicated by Starbucks building its fence and patio in the manner that it did; by making a path over the sidewalk leading directly to its side door; by monitoring the condition of the pathway; by clearing, salting and sanding it to be sure it was safe for its customers; and by directing the ingress and egress of its customers in the manner that it did.
[25] A few other principles emerge from the case law. The fact a property owner has taken on the task of removing snow and ice from a municipal sidewalk is not sufficient to make the owner an occupier of the sidewalk. [11] The fact that patrons of the store must use the portion of the sidewalk on which the fall occurred to enter and exit the store does not, in and of itself, make the owner of the adjacent property or its tenants “occupiers” of the sidewalk. [12]
[26] The encroachment of the brick wall, if any, onto the adjacent sidewalk is not so significant that I am able to conclude pedestrian traffic on that portion of the sidewalk on which the plaintiff fell is reserved exclusively for patrons of the defendant’s jewelry store. The defendant had no signage or goods on the sidewalk adjacent to its jewellery store. I am not persuaded by the photographic evidence that the area of the sidewalk on which the plaintiff fell is used exclusively, or almost exclusively, by the patrons of the store. The defendant’s storefront and its adjacent sidewalk is indistinguishable from that portion of the sidewalk adjacent to the other storefronts along Dundas Street so as to fall within the Moody and Starbucks line of reasoning.
[27] I find that the defendant is not an “occupier” for purposes of the Act.
(ii) Did the defendant owe a common law duty of care towards the plaintiff?
[28] The municipal bylaw requiring the defendant to clear ice and snow from the sidewalk adjacent to its store front does not create a common law duty of care owed to the plaintiff. In Bongiardina v. Vaughan (City), [13] a decision of the Ontario Court of Appeal addressing the effect of a municipal by-law on a homeowner’s obligation to clear ice and snow from municipal sidewalks, it was noted: “the snow and ice accumulating on public sidewalks and the potholes on the street in front of the house are the legal responsibility of the municipality, not the adjacent property owner”. [14]
[29] That said, a property owner has a duty of care to ensure that conditions or activities on its property do not flow onto the adjacent municipal sidewalk and cause injury to persons using the sidewalk. [15]
[30] The plaintiff argues that the eavestrough was leaking water and thereby causing ice to form on the sidewalk where she fell. The plaintiff deposed that Morag Allan, the defendant’s store manager, represented to her shortly after she fell that the store had been experiencing problems with a leaky eavestrough which was causing ice to accumulate outside the front door. Ms. Allan denies advising the plaintiff anything about a leaky eavestrough or about the store having any issues and/or concerns with a leaky and/or faulty eavestrough. Furthermore, Ms. Allan states:
I have worked at [the defendant] since 2003. I can say with certainty that since 2003, the building has not had any issues and/or concerns with a leaking and or faulty eavestrough nor have there been any repairs done to date.
[31] Aside from the plaintiff’s evidence as to what she recalls Ms. Allan advising her as to the condition of the eavestrough, there is no objective evidence that the eavestrough is leaky or otherwise defective. The plaintiff has not hired an engineer to inspect the eavestrough. From the photographic evidence filed, the eavestrough appears to drain directly into the ground. Furthermore, Ms. Allan testified that the sidewalk sloped away from the Premises making any pooling of water unlikely. The plaintiff has not hired an engineer to determine the slope or grade of the sidewalk adjacent to the entranceway. Last, there is no evidence that any water dripping from the eavestrough or the bulkhead would fall at a greater rate than would normal precipitation.
[32] Expert evidence or some other objective, independent evidence supporting the allegation that the condition of the eavestrough or the bulkhead resulted in run-off and pooling of water and snow in the area in which the plaintiff is alleged to have slipped and fallen is necessary in order to successfully resist this motion. No such evidence is before the court. Suspicion and speculation is not sufficient to deny the defendant the relief it now seeks.
[33] The plaintiff relies on the decision in Avendano v. Bosnian Islamic Centre [16] to support her position that the facts of this case raise an issue requiring a trial. Avendano is readily distinguishable. In Avendano the court dismissed the plaintiff’s claim under the Act as presenting no triable issue. [17] However, the court allowed the plaintiff’s nuisance claim to proceed against the adjacent property owner. There is no nuisance claim before me to consider.
[34] As an aside, in the event the plaintiff had provided evidence to support a finding that a leaky eavestrough caused ice to form on the sidewalk, this hazard would be the responsibility of Duncan as property owner and not the defendant as tenant of the Premises. [18] Similarly, any nuisance claim is only actionable against Duncan as property owner. As earlier noted in these reasons, Duncan is not a defendant in this action.
Order and Costs
[35] Summary judgment is granted. The action is dismissed.
[36] As the successful party, I find the defendant is entitled to its costs of the motion. The defendant seeks its costs on a partial indemnity basis in the amount of $12,932.16 inclusive of disbursements and HST. This amount is less than the amount the plaintiff has claimed in the event she had been successful on the motion ($13,949.11). Having regard to the comparable bill of costs of the plaintiff, defendant counsel’s experience, the time spent and hourly rates charged, I find the amount claimed by the defendant to be fair and reasonable.
[37] The plaintiff shall pay to the defendant its costs in the amount of $12,932.16 inclusive of disbursements and HST.
“Justice A.K. Mitchell”
Justice A.K. Mitchell
Released: January 16, 2019
[1] R.S.O. 1990, c. O.2 [2] Hyrniak v. Mauldin, 2014 SCC 7. [3] Ibid at paras. 27 and 28. [4] See Nguyen v. SSQ Life Insurance Co., 2014 CarswellOnt 15513 (Ont. S.C.J.) at para 32. [5] Farley v. Ottawa Police Services Board, 2016 ONSC 7817 at para. 29. [6] The Act, ss. 1(a) and (b). [7] Slumski v. Mutual Life Assurance Co. of Canada (“Slumski”), 1994 CarswellOnt 2891 (Div. Ct.) at paras. 6 and 7. [8] Moody v. Toronto (City). [9] Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (Gen. Div.). [10] MacKay v. Starbucks, 2017 ONCA 350 at para. 8. [11] See Coulson v. Hamilton (City). [12] See: Graham v. 7 Eleven Canada Inc.. [13] Bongiardina v. Vaughan (City), (2000) 5408 (ON CA) at para. 19. [14] See also Slumski, supra, at para. 5. [15] Bongiardina v. Vaughan (City of), supra, at para. 21. [16] Avendano v. Bosnian Islamic Centre, 2000 CarswellOnt 2209 (S.C.J.) [17] Avendano was decided under the old rule 20. The test was whether the facts raised a “triable issue” not whether the facts raised an issue “requiring a trial”. [18] See: Baker v. Perth East (Township) at para.17.