Court File and Parties

COURT FILE NO.: CV-20-9026 DATE: 2021-06-08 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Joshua Lavoie, a minor, by his Litigation Guardian Michelle Lavoie, Plaintiff AND: Rainbow Centre Mall, Vista Sudbury Hotel Inc. and Vista Hospitality Co. Canada, Inc., Defendants

BEFORE: The Honourable Mr. Justice Robbie D. Gordon

COUNSEL: Michael Blois, Counsel for the Plaintiff Brian G. Sunohara, Counsel for the Defendants

HEARD: May 28, 2021, via zoom

ENDORSEMENT

[1] This endorsement arises out of the defendants’ summary judgment motion seeking dismissal of the action.

Overview

[2] On November 11, 2017, less than two months shy of his 15th birthday, the plaintiff and four of his friends attended a shopping mall owned by the defendants in Sudbury. It was not his first time at this mall. In fact, on at least one earlier occasion he had been asked to leave the mall because he was, among other things, playing around the escalator, including hanging off the moving handrail and dropping to the ground from a distance of five feet or so. On November 11, he again grabbed the moving handrail with both hands and hung onto it while it dragged him upwards on the outside of the escalator. At or near the top he lost his grip and fell to the ground. He sustained serious injuries including fractures to his right leg, pelvis, both wrists and jaw.

[3] The plaintiff brought this action against the defendants asserting they are liable for his injuries.

[4] The defendants take the position that there is no genuine issue requiring a trial on the issue of liability. They say they complied fully with their obligations under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the Act).

The Applicable Law

[5] The test for summary judgment is now well known. Summary judgment is to be granted if the court is satisfied there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the motion judge is able to reach a fair and just determination on the merits. This will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result. [See Hryniak v. Mauldin, 2014 SCC 7].

[6] The parties are expected to put their best foot forward on a motion for summary judgment and the court may assume that all necessary evidence has been tendered, that the evidentiary record is complete and there will be nothing further if the issue were to go to trial. [See Broadgrain Commodities Inc. v. Continental Casualty Company, 2018 ONCA 438].

[7] With respect to liability, s. 3(1) of the Act provides that 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 are reasonably safe while on the premises. Section 3(2) provides that s. 3(1) applies whether the danger is caused by the condition of the premises or by an activity carried out on the premises. In an occupier’s liability case, the onus is on the plaintiff to prove that some act or failure on the part of the occupier caused his injury.

[8] The standard of care of an occupier is reasonableness, not perfection. As stated in Kerr v. Loblaws Inc., 2017 ONCA 371, the standard of care “…requires neither perfection nor unrealistic or impractical precautions against known risks”.

[9] Section 4(1) of the Act provides that the duty of care set out ss. 3(1) does not apply in respect of risks willingly assumed by the person entering on the premises, but in such a case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person and to not act with reckless disregard of the presence of the person. In the seminal case of Waldrick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 SCR 456 the Supreme Court of Canada found that s. 4(1) of the Act creates a very narrow exception to the class of visitors to whom the occupier’s statutory duty of care is owed. Essentially, the exception is that no wrong is done to one who consents - that by agreeing to assume the risk, the plaintiff absolves the defendant of all responsibility for it.

Analysis

Is This A Proper Case for Summary Judgment?

[10] The plaintiff argues that summary judgment is not appropriate in this case because there is a serious issue of credibility to be determined relative to the state of the defendants’ knowledge of this type of use of the escalator. He argues their record keeping was inconsistent and that it would be open to the trier of fact to determine that their knowledge of the risk of harm was greater than that demonstrated by their log records.

[11] Robert Green was examined under oath as a representative of the defendants. At the time of the accident he was their project coordinator responsible for overseeing all operations at the mall. His evidence was that, to his knowledge, no one had ever attempted to hang from the escalator railing to a height that would result in a risk of harm. His evidence was that the security company hired by the defendants maintained daily logs showing their employees’ activities each day and prepared incident reports any time there was a higher level of interaction with a mall patron. He was asked if he would expect security to intervene if they saw someone using the escalator as the plaintiff had. He answered yes. The records of the security company indicate one previous report of people attempting to climb the side of the escalator, contained in the daily activity log sheet for October 28, 2017 at 16:23: “Call from Gateway Employee – Terrie -to advise of a group of teens playing/climbing up the side of the escalators. Patrolled zones 2 and 3 looking for the group but they left before we could talk to them. No incident.”

[12] The evidence of the plaintiff is that on a previous attendance at the mall he or one of his friends would hang off the side of the escalator and fall off when they reached a height of about five feet. There is evidence that he and his friends had been asked to leave the mall because of this type of conduct.

[13] Mr. Green’s evidence was that in some situations less serious conduct of a patron may result in a warning being given but no formal incident report prepared.

[14] The plaintiff argues that Mr. Green’s credibility needs to be assessed by the trier of fact so that a finding can be made of the state of the defendants’ knowledge. The contention is that there may have been other instances of use of the escalator in this fashion that were resolved with an informal warning by security.

[15] In my view, a trial would add little to the credibility analysis. Mr. Green’s evidence makes perfect sense. Reports of patrons of the mall hanging from the outside of the railing of the escalator to a dangerous height would expect to be noted in an incident report. The records reveal no such reports. Less dangerous activities that one would not expect to result in injury might be handled by an informal warning and may be reflected in the employee logs. There is one such notation. There is no admissible evidence from which to conclude there may have been other incidents. There is no significant credibility issue to address.

[16] As stated by the defendants in their factum, this case is appropriate for summary judgment. The facts required to determine the motion are not in dispute. The plaintiff admits how the accident happened. The defendants’ evidence on their inspections of the premises is unchallenged.

Should Summary Judgment Be Granted?

[17] The plaintiff contends that the defendants were under a duty to take such care as was reasonable to ensure he did not hang from the moving railing of the escalator to such a height as might cause him injury. He argues that because the escalator was a known area of horse play there was a foreseeable risk of harm to him and the defendants were duty bound to take all reasonable steps to protect him from that risk.

[18] On the evidence before me no such duty was owed. The use of the escalator in this manner was clearly inappropriate and ill-advised. The risk of such use had to be obvious to the plaintiff and to anyone else attending the mall. There is no evidence the defendants were aware of anyone previously using the escalator in this manner to a height that would jeopardize their safety. They had no reason to believe there was a risk of anyone harming themselves in this fashion.

[19] In the event I am incorrect in determining that no duty of care was owed the plaintiff relative to the activity that caused his injuries, it is my view that the plaintiff, despite his age, willingly assumed the risk of the manner in which he used the escalator. He had to know that when the escalator railing reached the top he would have to let go. He had to know this would result in his falling from a considerable height. The risk of harm was obvious and by undertaking the activity he assumed that risk. The effect is to absolve the defendants of liability unless they created the danger or acted with reckless disregard to the plaintiff’s presence. They did neither.

[20] Finally, if I am incorrect and a duty of care was owed by the defendants to the plaintiff and s. 4(1) is not applicable, I am not satisfied the defendants fell short of the required standard of care. The plaintiff alleges that the defendants did not increase patrols in the area of frequent horseplay, did not restrict access to the outside of the railing of the escalator by way of barrier or design and did not warn patrons of possible danger on and around the escalator by way of sign or notice.

[21] The required standard of care is reasonableness. The uncontradicted evidence is that the defendants contracted with a security firm to monitor the mall and that the area of the escalators was patrolled every 15 to 60 minutes. In the absence of expert evidence on standard of care this strikes me as entirely reasonable. As noted above, the standard of care of an occupier does not require perfection or unrealistic or impractical precautions against known risks.

[22] Restricting access to the outside of the railing of the escalator is not raised as a basis of negligence in the statement of claim. There is no expert evidence before me on design of the escalator, industry standards or costs. There is no evidentiary basis to find that access to the outside of the railing could or should somehow have been restricted.

[23] Finally, there is no duty to warn of such an obvious and self-evidently dangerous activity as hanging from the railing of a moving escalator to a height at which injury is certain to result.

[24] Borrowing from the wording of the Ontario Court of Appeal in Winters v. Corporation of Haldimand County, 2015 ONCA 98, and adapting it to the circumstance of this case: any danger posed by the use of the escalator in this fashion was an obvious one. If you chose to hang on to the outside railing until you reach the top, you would certainly fall and be injured. There is no duty to warn of such an obvious and self-evident danger nor any duty to monitor beyond that which the defendants were doing at the time of this most unfortunate accident.

Conclusion

[25] I conclude that there is no genuine issue of liability requiring a trial. Accordingly, the defendants’ motion for summary judgment is granted and the action is dismissed. As per the agreement of counsel, the defendants are entitled to their cost of this motion and the action fixed at $5,000 all inclusive.

The Honourable Mr. Justice Robbie D. Gordon

Date: June 8, 2021