COURT FILE NO.: CV-17-585001

DATE: 20201002

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SYNAB HASSAN, Plaintiff

– and –

GREYHOUND CANADA TRANSPORTATION CORP., Defendants

BEFORE: E.M. Morgan J.

COUNSEL: Peter Cho, for the Plaintiff Philip Ghosh, for the Defendants

HEARD: September 25, 2020

motion for summary judgment

[1] This lawsuit alleges a slip-and-fall injury with a very Canadian question: how often does a bus coming in from New York State on a winter day need to clear its platform and stairs of water or slush?

I. The Plaintiff’s journey

[2] The Plaintiff fractured her right ankle disembarking from a Greyhound bus on at 5:40 a.m. on January 1, 2017, after an all-night journey from New York City to Toronto. The bus had stopped en route at two stops before pulling into the bus terminal at Buffalo, New York, where a new driver took over. After a relatively brief stay in Buffalo, the bus drove to the Canada-U.S. border crossing where all passengers disembarked to clear Canada Customs, and then once passengers re-boarded, drove straight through to Toronto.

[3] There were a total of 48 passengers on board, including several members of the Plaintiff’s family. The Plaintiff was the only one who encountered a problem coming down the stairs at the end of the journey.

[4] The Plaintiff had only slept on the first leg of the trip from New York. She wore sweatpants, a headscarf as well as a scarf around her neck, and a heavy winter coat. For her final exit of the bus, she was carrying a bottle of water in her right hand and had a backpack on her back. The fall occurred suddenly as she stepped off of the platform or floor of the bus and was coming down the stairs. The bus driver had already left his seat at the front of the bus and was standing on the ground at or not far from the door. He was engaged in helping passengers as they disembarked one at a time, although there is some controversy over precisely where he was positioned at the moment of the Plaintiff’s mishap.

[5] The Plaintiff was approximately the 10^th^ passenger to disembark. The bus driver deposed that immediately after her fall, the Plaintiff said to him “I missed a step”. In her examination for discovery, the Plaintiff stated that she had not noticed any particular hazard on the stairs.

[6] Greyhound dispatch sent for the Toronto terminal manager, who arrived on the scene almost immediately and assisted the Plaintiff in getting medical attention. The bus driver filed an incident report shortly thereafter, in which he described the Plaintiff as having fallen while descending from the stairs without holding the handrail.

[7] After the Plaintiff was moved from the stairs, the rest of the passengers disembarked without incident.

II. The conflicting evidence

[8] Counsel for the Plaintiff points out that the evidence in this record is far from definitive. The bus driver deposed that the Plaintiff was wearing an oversized coat that was dragging on the floor as she walked. The Plaintiff, on the other hand, testified that she was wearing a coat that fit her well, and produced a photograph from earlier in the day that showed her in her coat that came down no lower than her knees. Counsel for Greyhound has speculated that the Plaintiff may have been wearing her husband’s coat when she disembarked the bus, but there is no definitive answer to the coat question.

[9] The bus driver swore that the stairs of the bus were clean and dry at the end of the ride, and that it was a cold but clear and dry day. Several of the Plaintiff’s family members deposed that the stairs were wet and it was a snowy day. The Plaintiff herself does not recall the condition of the stairs with any precision at all.

[10] The bus driver testified that the Plaintiff missed the second step on her way down the exit staircase. The Plaintiff testified that she fell on the platform above the first step of the staircase. The bus driver testified that he was standing at the foot of the steps at the time of the fall, although he was looking away at that moment. Members of the Plaintiffs family deposed that the bus driver was not at the foot of the steps but rather had moved away to assist someone with getting their luggage from the storage at the side of the bus.

[11] The Plaintiff’s expert, Jason Young, a professional engineer and an expert in bio-mechanics, filed a report indicating that the Plaintiff fell rearward landing on her buttocks with one foot forward and one underneath her. He opined that there are three possible reasons that the Plaintiff may have fallen in this way: 1) a true slip (caused by wet surface); 2) an overstep (missing the end of the stair in front); 3) a heel scuff (causing a rearward fall). The latter two possibilities are the Plaintiff’s own balance issues, whereas the first indicates water or other hazard on the stairs. Mr. Young concluded, based on his information from the Plaintiff alone, that the fall was most likely to have been a true slip. However, it is evident that he had no particular reason to favour the Plaintiff, who he could interview, over the bus driver who he did not interview.

[12] The evidence on this motion is therefore less than conclusive on all of the important facts.

III. The bus cleaning policy

[13] The case raises a larger question of policy beyond the specific mechanics of the Plaintiff’s fall. That is, even if she is correct and she did slip on a wet and slippery floor, did the bus and driver fall below the requisite standard of care?

[14] Section 3 of the Occupiers’ Liability Act, RSO 1990, c. O.2, provides that, “An occupier of a 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.” As “occupier” of the bus, like the occupier of an office or shop, Greyhound is not strictly liable for a passenger’s onboard injury; rather, it must take reasonable safety precautions for its passengers. Under the circumstances – a January day in Ontario – what level of staircase surface maintenance qualifies as reasonable?

[15] In Miltenberg v. Metro Inc., 2012 ONSC 1063, it was held that, an occupier is “not required to sanitize their environment to such a degree as to negate all risk”. The reasonableness standard does not include an obligation on an occupier to take impractical precautions. To succeed in a slip and fall case, the Plaintiff must “pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury”: Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, at para. 8. As the Supreme Court of Canada said in Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 SCR 456, 472, the overall duty of reasonableness governs all occupiers, “but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation – thus the proviso ‘such care as in all circumstances of the case is reasonable’”.

[16] Greyhound has put in evidence its general bus cleaning policy. This entails three different types of cleaning regimes applicable to three different occasions: 1) a quick clean performed in 10 minutes when the coach stops at a terminal between schedules, 2) a complete clean done in 56 minutes when the coach is returned to the garage, and 3) a major clean performed in 8 to 12 hours annually or semi-annually.

[17] The evidence of the bus driver is that the bus on which the Plaintiff travelled would have undergone a complete clean in the garage in New York City, since that is where the journey originated. However, Greyhound was able to produce no evidence that the cleaning was actually done, as apparently the maintenance logs could not be located. It is unclear whether a quick clean was done at the terminal in Buffalo. On one hand, the policy suggests that was the case; on the other hand, the bus driver testified that it was such a short stopover in the Buffalo terminal that there may not have been time even for a quick clean.

[18] What is certain is that the bus was not cleaned at the Canada Customs stop en route to Toronto. The bus driver testified that the border stop is not a bus terminal and there are no maintenance personnel there to perform a cleaning. The passengers disembark, go into the Customs hall, and when they finish with the Customs procedures they return to the bus and the bus is on its way. No cleaning is done at this point.

[19] That means, of course, that numerous passengers in their winter footwear climb down and up the staircase, trailing in with them whatever was on the ground outside. On a sunny day in July, the stairs may get dusty but will remain dry and safe. On a snowy day in January, the stairs are bound to get slippery and wet. Likewise, a driver is not a maintenance person and a mop is not in his usual arsenal of tools. However, it is the driver who is in charge of the bus and the safety of the passengers on it. Is floor cleaning within the driver’s reasonable duties?

[20] In Hosseinkhani v. QK Fitness Inc., 2019 ONCA 718, the Court of Appeal considered the problem of dumbbells sitting on the floor of a gym. The Court determined, at para 4, that although the prospect of someone tripping on a dumbbell which might roll around the floor was an obvious risk, “there was no evidence that the round dumbbell posed an unusual hazard and that neither the dumbbells nor the exercises themselves were inherently hazardous.” But, of course, every situation requires its own unique assessment. Is the obvious risk of a slippery, wet staircase and floor inherently or unusually hazardous, or is it so obvious as to be expected by the passengers and not part of the bus driver’s duty to clear?

[21] On the record before me, I have little to go on in addressing this question.

IV. The request for summary judgment

[22] Rule 20 of the Rules of Civil Procedure requires that I grant summary judgment if I find that there is no genuine issue requiring a trial. I should only come to that conclusion, however, if I have been presented with adequate evidence to fairly and justly adjudicate the matter: Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at paras 66-68.

[23] Having reviewed the evidence in its entirety, I am compelled to conclude that I am not able to do so here. Not only is the evidence from both sides inconclusive as to what exactly transpired when the Plaintiff started her descent down the stairs to get off the bus, but the evidence as to whether Greyhound’s stair cleaning policy is a reasonable one is lacking.

[24] While ordinarily a motions judge is entitled to assume that the evidence in the summary judgment motion is all of the evidence that will be presented at trial, I cannot help but think that this motion has been pushed through too quickly and that a re-think of the evidence will be undertaken by both parties. As it is, I would be put in the position of imposing my personal intuition about proper cleaning standards, and that does not seem an appropriate way to resolve the matter.

[25] I note that this is set down as a jury trial. In my view, a jury is the right body to assess the question of reasonableness posed by the bus deriver’s and Greyhound’s approach to this situation. Whether or not the bus driver should mop up the floor after stopping and passengers getting on and off the bus on a wintry day is not just a geographically Canadian question, it is one of common sense. While juries may not have the legal knowledge of a judge or the specialized knowledge of an expert witness, they are relied upon for their common sense assessment of everyday situations. That is precisely what is called for here.

[26] This is not a case for summary judgment on a paper record. It is a case where the witnesses should be heard at trial and the trier of fact – presumably a jury, since a jury notice has been served – will make an assessment of the facts and come to a sensible determination.

IV. Disposition

[27] The Defendant’s motion for summary judgment is dismissed.

[28] Counsel may make written submissions with respect to costs. They should be no more than 2 pages in length (not counting the Bill of Costs) and may be sent by email directly to my assistant. I would ask that counsel for the Plaintiff send his submissions (with a copy to Defendant’s counsel) by two weeks from today, and that counsel for the Defendant sent his submissions (with a copy to Plaintiff’s counsel) within two weeks thereafter.

Morgan J.

Date: October 2, 2020