Roger and Rana Nemr v. 9100288 Canada Inc. et al.

COURT FILE NO.: 17-72428

DATE: July 2, 2021

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Roger and Rana Nemr, Plaintiffs

AND:

9100288 Canada Inc., A.N.T. Electronics Ltd., Wissam Kazan, Edmond Lee Investments Limited and Hydro Ottawa Limited, Defendants

BEFORE: Justice Patrick Hurley

COUNSEL: Paul H. Auerbach, for the Plaintiffs Debbie Orth, for the Defendant 9100288 Canada Inc. Colin R. Dubeau, for the Defendant Hydro Ottawa Limited Lucas Cutler, for the Defendant Wissam Kazan

HEARD: May 20, 2021

ENDORSEMENT

[1] This is a motion for summary judgment by the defendant 9100288 Canada Inc. (“910”). It owns a strip plaza in Ottawa and leased premises to the plaintiff Roger Nemr where he operated a pizzeria. He alleges that, on May 9, 2015, he fell from the roof above the pizzeria, suffering a serious brain injury. He had gone up on the roof to check on ventilation equipment that was not functioning properly.

[2] He claims that his fall was caused by an electrical shock that he received when on the roof. In addition to 910, he sued Hydro Ottawa Limited which supplied hydroelectricity to the property, a neighbouring business owner Wissam Kazan who loaned him the ladder which he used to ascend to the roof and the previous owner of the plaza, Edmund Lee Investments Limited. The action has since been discontinued against this company. Hydro Ottawa

[3] Both 910 and Hydro Ottawa have delivered jury notices. Examinations for discovery have been completed. A mediation, which is mandatory for actions commenced in Ottawa, has not taken place. This must happen before the action can be set down for trial. None of the defendants have delivered expert witness reports under rule 53.03. The plaintiff has on the issue of liability.

[4] 910 submits that there is no genuine issue for trial because Mr. Nemr’s claim as against it is doomed to fail. It asserts:

i. Mr. Nemr cannot prove what caused his fall, if indeed he fell from the roof.

ii. The lease precludes this legal claim.

iii. If Mr. Nemr fell from the roof as a result of an electrical shock, it was caused by equipment owned or operated by Hydro Ottawa for which 910 bears no legal responsibility.

iv. Mr. Nemr was the author of his own misfortune.

[5] The defendants have made crossclaims against each other. Neither Hydro Ottawa nor Mr. Kazan filed responding materials in this motion but counsel appeared on their behalf. Neither admits liability and took no position on the motion. However, counsel for Hydro Ottawa expressed concern that I not make any finding that Mr. Nemr’s fall was attributable to equipment owned or operated by his client or any negligent act by it in the supply of hydroelectricity to the premises.

[6] Before I turn to the evidence, I will first review the applicable legal principles.

[7] There is no dispute that 910 was an occupier of the premises at the relevant time.

[8] Ss. 3 (1) and (2) of the Occupiers’ Liability Act, R. S. O. 1990, c. O.2 (“OLA”) provide:

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.

The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

[9] In Kerr v Loblaws Inc., 2007 ONCA 371, Cronk, J.A. stated at paras. 19-20:

As stressed by the trial judge, the standard of care imposed on Loblaws in this case is a standard of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks. In my view, the above-quoted instructions by the trial judge properly drew the jury’s attention, in clear and precise terms, to Loblaws’ obligation to take such care as was reasonable in all the circumstances to make the Zehrs’ premises reasonably safe for customers.

Importantly, the trial judge also told the jury that it should assess whether Loblaws took reasonable care in the circumstances by considering the measures employed by it to render the Zehrs’ premises reasonably safe for Ms. Kerr, as a store patron, including such matters as notice, lighting, guarding, and maintenance. The effect of this direction was to inform the jury that Loblaws was required by the standard of care set out in s. 3(1) of the Act to take positive steps to render the Zehrs’ store premises reasonably safe. It also alerted the jury to its task of determining whether the steps taken by Loblaws were sufficient to discharge the burden placed on it by the Act.

[10] In Hryniak v Maudlin, 2014 SCC 7, Karakatsanis, J. stated at para. 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.

[11] Summary judgment is available in cases involving multiple defendants but there are additional factors which I must take into account in deciding whether it is appropriate. She explained at para. 60:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

[12] The Court of Appeal has repeatedly emphasized that I must be alert to the risk of inconsistent findings at trial and that partial summary judgment “should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action”: Butera v. Chown, Cairns LLP, 2017 ONCA 783. See also Mason v. Perras Mongenais, 2018 ONCA 978 at paras. 22-23, Malik v. Attia, 2020 ONCA 787 at paras. 61-62 and Dia v. Calypso Theme Waterpark, 2021 ONCA 273 at paras. 27-28.

What was the cause of the accident?

[13] I now turn to the evidence and the specific arguments advanced by 910 in support of its position that there is no genuine issue for trial and summary judgment ought to be granted in its favour.

[14] There were no witnesses to the accident nor does Mr. Nemr remember what happened. However, I find that a reasonable jury, properly instructed, could conclude from the circumstantial evidence that Mr. Nemr fell from the roof as a result of an electrical shock. This evidence includes: the nature of his injuries, his expressed intention to go on the roof to inspect the ventilation system, the presence of electrified equipment on the roof, the placement of the ladder, his shoe on the roof, where he was found afterwards and the condition in which he was found.

Does the lease exclude liability for the accident?

[15] 910 relies on two provisions in the lease between Edmond Lee Investments Limited and Mr. Nemr which was assigned to 910 after it purchased the plaza in 2015.

[16] One reads:

AND the Lessor shall not be responsible for any personal injury which shall be sustained by the Lessee or any employee, customer, or other person who may be upon the demised premises or in the said building or the entrances or appurtenances thereto. All risks of any such injury being assumed by the Lessee, who shall hold the Lessor harmless and indemnified therefrom.

[17] The second states:

That the Lessee and its clerks, servants and agents will at all times during the occupancy of the demised premises observe and conform to such reasonable rules and regulations as shall be made by the Lessor from time to time including the rules and regulations set forth in Schedule “A” hereto and of which the Lessee shall be notified, such rules and regulations being deemed to be incorporated in and form part of these presents.

[18] There are 35 rules and regulations in Schedule A. Number 29 is: “Any person entering upon the roof of the building does so at his own risk”

[19] The interpretation of the lease and its application to the facts of this case is a question of mixed fact and law. It would be a challenging jury instruction to draft. There would be arguments by both sides at trial on what the judge should decide and what should be left to the jury.

[20] The facts are disputed and so too is the proper interpretation of the lease. I tend to agree with Mr. Nemr’s position that the “demised premises” are limited to his pizzeria and do not include the roof.

[21] The OLA permits an occupier to restrict, modify or exclude its duty of care or liability for breach of the statute but this is a fact driven exercise that focuses on the “reasonable steps” taken to bring the exclusion clause to the attention of the plaintiff: Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 paras. 60-80.[^1]

[22] Mr. Nemr acknowledged under oath that he read and understood the terms of lease when he signed it. However, in his affidavit sworn in response to this motion he said this about rule number 29 in Schedule A: “It was not brought to my attention or highlighted for me in any way, and I was never told or directed not to go up on the roof. I have no recollection of ever reading that section. It was never explained to me, and I never understood or thought that I was giving up the legal right to sue the owner of the building if they were negligent.”

[23] Based on the evidentiary record before me, it seems unlikely that 910 could successfully rely on the lease to exempt it from liability. At the very least, it is a genuine issue for trial.

If the accident was caused by an electrical shock, who bears the legal responsibility for that?

[24] Mr. Nemr’s expert finds fault with both 910 and Hydro Ottawa. 910 contends that the expert’s opinion is inadmissible in this motion and, in any event, has so many flaws that it is worthless.

[25] The record before me exceeds 1,000 pages. Much of 910’s evidence consists of exhibits attached to the affidavit of a lawyer with the firm acting for 910. This approach in summary judgment motions has been criticized and, absent proof that the deponent can properly form a belief as to the accuracy of the information, it ought to be disregarded or given little weight: Dia at paras. 18-19.

[26] Mr. Nemr’s expert swore an affidavit but was not cross-examined. The report is clearly admissible on this motion. Like any expert opinion, the weight to be given to it will depend on many factors including the proof of the facts underlying assumptions made by the expert. The trier of fact in this case may accept some, all or none of the expert’s evidence.

[27] The expert’s opinion also raises the prospect of inconsistent findings given that he concludes that there is potential liability on the part of both 910 and Hydro Ottawa which will, in turn, depend on findings of fact. Looking at the evidence as a whole, I think it is inevitable that the defendants will engage in a “finger pointing or blame game” to use Nordheimer, J.A.’s pithy phrase in Dia.

Was Mr. Nemr the author of his own misfortune?

[28] 910 has cited acts or omissions by Mr. Nemr that, according to it, will ineluctably lead the jury to conclude that he was 100% responsible for what happened to him.

[29] The jury will be instructed on the onus of proof, contributory negligence and voluntary assumption of risk. I cannot predict, with any degree of certainty, what their decision will ultimately be. Will they reject Mr. Nemr’s claim in its entirety? Will they find him contributorily negligent? Will they find 910 wholly responsible for what happened? Will they find Hydro Ottawa solely at fault? Or will they apportion liability among the defendants?

[30] The jury may be swayed by the evidence of Mr Nemr’s expert. He is, so far, the only expert witness on liability. They will hear Mr. Nemr testify about 910 ignoring his requests to fix the leak in the roof and his consequent belief that it was necessary for him to go up on the roof himself when the ventilation system malfunctioned. They will learn about how he was found that day by the paramedics and had to be resuscitated; that the very serious injuries he suffered have prevented him from working; and that he has been left with a permanent disability. The investigators from the Ministry of Labour and the Electrical Safety Authority will testify. Once the jury has heard all the evidence, they could find, on a balance of probabilities, that 910 did not take such care as was reasonable in all the circumstances to make the premises reasonably safe for Mr. Nemr. Or they may not.

[31] I have concluded that, based on the totality of the evidence, it is a reasonable possibility that a jury could find that the property was unsafe on May 9, 2015, that its condition caused or contributed to Mr. Nemr’s injuries and that 910 breached the OLA.

[32] I decline to exercise the expanded fact-finding powers under rule 20.04 (2.1). Two defendants want a jury to decide this case. It is in the interest of justice for those powers to be exercised only at a trial by the triers of fact selected by the parties.

[33] Finally, I note the admonition expressed in Dia at paras. 29-30 about considering other options in order to achieve the objective of proportionate, cost-effective and timely dispute resolution. Setting a litigation timetable appears unnecessary because all that the parties have to do in order to set the action down for trial is to complete a mediation. If the parties need judicial direction in moving this case to trial they can arrange a case conference under rule 50.13. I have already stated that, because it is a jury case, I do not believe it is in the interest of justice to order oral evidence. Moreover, if I did so, that would only lead, in my view, to more expense and delay.

Disposition

[34] The motion is dismissed. As the successful parties, the plaintiffs are presumptively entitled to costs as against 910. If the parties cannot agree on costs, the plaintiffs shall serve written submissions, not to exceed three pages exclusive of their costs outline, on 910 within 15 days of the release of this decision. 910 has 10 days in which to serve the plaintiffs with written submissions of the same length. Once the plaintiffs receive 910’s response, they shall file all submissions in Ottawa with a request that they be sent to me.

______________________________ Hurley, J

Date: July 2, 2021

[^1]: An appeal was dismissed but on a different ground: 2019 ONCA 718