Court File and Parties
Court File No.: CV-19-139538 Date: 2021-08-09 Ontario Superior Court of Justice
Between: Eleanor Adler, Plaintiff – and – Promenade General Partner Inc., Centrecorp Management Services Limited and GDI Integrated Facility Services Inc., Defendants
Counsel: W. Ryan Moriarty, Paul J. Cahill and Christian Genova for the Plaintiff/Responding Party Ian A. Mair for the Defendants/Moving Parties
Heard: June 28, 2021 by Zoom Videoconference
Ruling on Summary Judgment Motion C. Boswell J.
INTRODUCTION
[1] Ms. Adler slipped and fell in the hallway of the Promenade Mall in Thornhill, Ontario one afternoon in the summer of 2018. She and her granddaughter had been to see a movie at the cinema located in the mall. They were walking near the food court after the movie when Ms. Adler suddenly fell forward, landing on her face. She suffered significant injuries, including fractures to her face, skull and left kneecap.
[2] Ms. Adler sues the owner of the mall, Promenade, its property manager, Centrecorp, and Centrecorp’s cleaning contractor, GDI, for damages. The claim is grounded in allegations of negligence and breaches of the Occupier’s Liability Act, R.S.O. 1990, c. O.2, as amended (the “OLA”). Ms. Adler alleges that she tripped after her foot stuck to a sticky substance on the floor. She claims that the sticky substance was a hazard and that the defendants failed to take reasonable care to ensure her safety while on the mall premises.
[3] The defendants move for summary judgment. They accept that they owed Ms. Adler a duty of care under the Occupier’s Liability Act and in accordance with the common law. But they contend that there is an absence of any objective evidence here upon which a trier of fact could reasonably conclude that there was any substance on the floor where Ms. Adler fell. Her case is based, the defendants say, on her speculation that there must have been something on the floor, as the only explanation for her fall that makes sense to her.
[4] Ms. Adler responds that she is not speculating at all. She argues that she has asserted, from day one, that her foot stuck to something sticky on the floor. She is unable to say what that sticky substance was because she didn’t conduct an investigation while she was prone on the ground, with significant head injuries. She asserts that it is reasonable to infer that the substance was food or drink, given the proximity of her fall to the food court. In her submission, there is more than sufficient evidence here to raise a triable issue about the defendants’ liability.
[5] I intend to approach this ruling in the following way. I will begin by setting out the general principles that govern the modern approach to summary judgment motions. Next, I will provide an overview of Ms. Adler’s evidence about the substance on the floor. Following that, I will describe the parties’ positions on the motion. I will then provide my analysis of those positions in the context of the overarching question: has Ms. Adler raised a genuine issue for trial?
THE GOVERNING PRINCIPLES
[6] Civil litigation is immensely expensive; everyone knows that. Its cost makes meaningful access to civil justice a pipe dream for a significant segment of our society. The fact that a large proportion of society cannot access our courts as a means to address their disputes with their fellow citizens is alarming. The rule of law is threatened when the law is not accessible to those it serves. See Sheikh v. Kathuria, 2021 ONSC 3273 at para. 2.
[7] In its seminal 2014 decision, Hyrniak v. Mauldin, 2014 SCC 7, the Supreme Court recognized the acute problem of access to civil justice and called for a culture change. A fundamental shift was needed, it said, in the way the court does business, if access to justice was to be improved. Justice Karakatsanis, writing for a unanimous court, described this culture shift, at para. 2 of the ruling, as follows:
This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.
[8] The model of adjudication at issue in Hyrniak was the summary judgment provision of Ontario’s Rules of Civil Procedure; specifically, r. 20.
[9] Rule 20 has been around for decades. It permits a party to move for summary judgment in cases where, in that party’s opinion, the full machinery of a trial is not required to determine the live issues in a case fairly and justly. Provided the moving party satisfies the motions judge that there is no genuine issue requiring a trial, then the court is directed, by r. 20.04(2)(a), to grant that party summary judgment.
[10] Amendments enacted to the rule in 2010 enlarged the sphere of cases that may be suitable for summary resolution in an effort to improve access to justice. They did so by enhancing the fact-finding powers of the judge hearing a summary judgment motion. Prior to 2010, appellate jurisprudence constrained judges hearing such motions. Motions judges were not permitted to weigh evidence or make credibility determinations in the course of ruling on the motion. In the result, the rule was largely limited to weeding out clearly unmeritorious claims and defences.
[11] All of that has changed. Rule 20.04(2.1) now provides that the motions judge may evaluate credibility, weigh the evidence and draw reasonable inferences that are available on the evidentiary record, unless it is in the interests of justice that those powers be exercised only at a trial.
[12] Hyrniak makes it clear that the utility of r. 20 is no longer limited to weeding out the clearly unmeritorious. It now represents a “significant alternative model of adjudication”. (Para. 45).
[13] Justice Karakatsanis provided the following guidance about the circumstances in which a motions judge might determine that there is no genuine issue requiring a trial:
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. (Para. 49).
[14] Although the rule does not, on its face, appear to require a staged analysis, Hryniak instructs that rule 20.04(2) should, in fact, be applied in two stages.
[15] First, the motions judge must determine if there is a genuine issue requiring a trial based only on the evidence filed on the motion, without resort to the enhanced fact-finding powers described in rule 20.04(2.1). No genuine issue requiring a trial will exist if the evidence permits the motions judge to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner. If no genuine issue requiring a trial exists, judgment should be rendered accordingly.
[16] If the motions judge concludes at the first stage that a genuine issue for trial exists, then stage two is triggered. At stage two, the motions judge is directed to consider whether the need for a trial may be avoided by resort to the enhanced fact-finding powers set out in r. 20.04(2.1). The motions judge may utilize those powers, in his or her discretion, unless doing so would be contrary to the interests of justice.
[17] A great deal of jurisprudence has developed in relation to summary judgment motions, both before and after the 2010 amendments. Much of the pre-2010 jurisprudence remains valid. In addition to the principles enunciated in Hyrniak, the following others have emerged over the years and continue to apply:
(a) The moving party continues to bear the legal and persuasive burden to establish that there is no genuine issue requiring a trial to resolve;
(b) The responding party continues to bear an evidentiary burden to establish that there is a genuine issue requiring a trial;
(c) Each party must “put their best foot forward”. Neither may rest on the allegations in their pleadings; and,
(d) The court is entitled to assume that the record before it contains the core substance of the evidence that the parties will present at trial.
See Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.) at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26 and 32; and Penretail Management Ltd. v. 2380462 Ontario Inc. (o/a Bolton Health Centre), 2016 ONSC 600, at para. 10.
[18] With the foregoing principles in mind, I will turn to a review of the evidence relevant to the cause of Ms. Adler’s fall. It can be stated briefly.
THE RELEVANT EVIDENCE
[19] Ms. Adler described the incident in issue at paragraph 6 of her Statement of Claim as follows:
On or about Thursday, August 8, 2018, in the City of Vaughan, in the Province of Ontario, the Plaintiff attended at the premises as a patron. As the Plaintiff was walking in a safe and prudent manner within the vicinity of the food court area, suddenly, the Plaintiff slipped and/or tripped in a pool of liquid and/or debris that had accumulated on the floor, and fell violently to the ground, striking her head and face. As a result of the fall, the Plaintiff suffered serious personal injuries.
[20] Ms. Adler was examined for discovery on November 22, 2019. She testified that when the movie was over, she called her daughter-in-law to come and pick up her and her granddaughter from the mall. When her daughter-in-law arrived, the three of them walked from the cinema to the food court because Ms. Adler wanted to pick up something for dinner. She was wearing slip-on walking shoes at the time. She was walking a little ahead of her daughter-in-law and granddaughter.
[21] The fall occurred in the food court area along a hallway in front of some tables. Ms. Adler was understandably questioned about the particulars of the fall. The following exchange took place between her and defence counsel, beginning at question 114 of the discovery transcript:
Q. Do you remember what you fell on? A. No.
Q. You don’t know what you fell on? A. No.
Q. Did you notice anything unusual in the area where you fell right before you fell? A. No.
Q. Did you notice any water or spills on the ground? A. No.
Q. Did you notice anything like gum or debris or dirt on the ground? A. No.
Q. Was the area a flat area that you were walking? A. Yes.
Q. Did you make any other observations at all? A. No.
Q. How was the lighting? Was the lighting on? A. Yes.
Q. It was bright? A. Yes.
Q. You could see? A. Yes.
Q. To the best of your knowledge, what do you think caused your fall? A. Something on the floor.
Q. But you can’t say what that something was? A. No.
[22] In response to the summary judgment motion, Ms. Adler filed an affidavit sworn by her on April 29, 2021. She deposed, amongst other things, that as she was walking through the food court her foot suddenly stuck to something on the floor. As she attempted to move forward, her foot stayed stuck, causing her to fall forward.
[23] She further deposed that the floor was flat, that her shoes were dry and that she did not trip over any loose objects or sink holes in the floor.
[24] She acknowledged that she does not know what the sticky substance was. She offered that it might be reasonable for a trier of fact to infer that it was food or drink that had been spilled on the floor given that her fall was proximate to the food court.
[25] Ms. Adler was cross-examined on her affidavit on June 2, 2021. She testified that she did not remember if she saw anything on the floor before her foot got stuck. Once she fell on the ground, she did not make any attempt to investigate what her foot stuck on. She was pre-occupied by pain and bleeding.
[26] Ms. Adler confirmed that her daughter-in-law and her granddaughter have no evidence to offer as to what, if any, substance was on the floor where she fell.
THE PARTIES’ POSITIONS
The Moving Parties
[27] The principal thrust of this motion, as argued, is that Ms. Adler’s case cannot succeed because there is an absence of objective evidence that there was any hazardous substance on the floor where she tripped. The defendants contend that Ms. Adler is merely speculating that there was something on the floor, given the absence of any known cause for her sudden fall. They submit that no breach can be made out in the absence of any admissible evidence that there was a hazard on the floor.
[28] As I understand the defendants’ argument, however, they also advance two fall-back positions in the event the court concludes that there is admissible evidence of a hazard.
[29] First, the defendants contend that the presence of a hazard is not sufficient, on its own, to establish a breach of the duty of care owed by the defendants to the plaintiff. The OLA does not impose strict liability. The standard is reasonableness. The evidence is clear, in the defendants’ submission, that they had in place a reasonable system of inspection and maintenance. In the result, even if there is evidence of a hazard, there remains no genuine issue for trial with respect to the allegation of breach.
[30] Second, the defendants argue that even if the court is satisfied that there is a genuine issue for trial, this is an appropriate case for the court to exercise its enhanced fact-finding powers to determine the case in a summary fashion. They contend that the plaintiff’s case is so patently weak that it would be just, fair and proportionate for the court to determine, on the record before it, that the case cannot succeed and must be dismissed.
Ms. Adler
[31] Ms. Adler denies that her case is grounded in speculation. She says that she knows there was something sticky on the floor. She recollects clearly that her foot stuck to it. While it is true that she is unable to identify that substance, that inability is not an impediment to her claim, essentially for two reasons. First, because there is circumstantial evidence available that supports an inference that the sticky substance was food or drink. Second, because it is not strictly necessary that she be able to identify what the substance was. She is only required to establish that there was a hazard on the floor and that the defendants breached their duty of care to ensure that persons using the mall were reasonably safe.
[32] Ms. Adler asserts that the defendants failed to ensure the premises were reasonably safe. They have not demonstrated, she says, that they had a reasonable system in place to inspect and maintain the premises, particularly in the food court area, or that they followed any such system on the occasion in question. In her submission, the breach issue is very much a live and genuine one requiring a trial to resolve.
[33] Given shortcomings in the evidentiary record, it would be inappropriate for the court to utilize its enhanced fact-finding powers to dispose of the case on this motion. Ms. Adler urges the court to dismiss the motion.
ANALYSIS
[34] Claims, like this one, advanced under the OLA are, in essence, negligence claims. To succeed in a negligence claim, a plaintiff must be able to establish that “(1) the defendant owed him or her a duty of care; (2) the defendant's conduct breached the applicable standard of care; (3) the plaintiff sustained compensable damage; and (4) the damage was caused, in fact and in law, by the defendant's breach”. See Turcotte v. Lewis, 2018 ONCA 359 at para. 43.
[35] Of the four elements that make up a successful negligence claim, only numbers (2) and (4) are in issue here.
[36] There is no doubt that the defendants owed Ms. Adler a duty of care. Section 3(1) of the OLA imposes a statutory duty of care on occupiers of premises 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.”
[37] For the purposes of this motion, there is no dispute that each of the defendants was an “occupier” under the OLA.
[38] Similarly, there is no doubt that Ms. Adler suffered compensable damages, provided she can establish that the defendants breached their duty of care and that she would not have suffered her injuries but for the breach.
[39] The live issues in the proceeding are whether the defendants breached the duty of care owed to Ms. Adler on the occasion in question and whether her injuries were caused by the breach.
[40] As I indicated, the argument on this motion focused on whether Ms. Adler has adduced any admissible evidence of the presence of a hazard on the floor of the mall in the location where she fell. The presence of a hazard is a necessary ingredient of her claim. Absent such evidence, the claim cannot succeed. In other words, absent such evidence there is no genuine issue requiring a trial.
Evidence of a Hazard
[41] The defendants’ argument is that Ms. Adler has produced no “objective” evidence of the presence of a hazard and thus is unable to establish a breach of any duty of care owed to her. They rely on two cases of this court in support of their assertion: Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 and Nandlal v. Toronto Transit Commission, 2014 ONSC 4760.
[42] In Nandlal, the plaintiff sued the TTC for injuries she suffered when she slipped and fell while on a staircase at the Kennedy subway station. The plaintiff said on discovery that she slipped on floor tiles. In response to the TTC’s summary judgment motion, however, she filed an affidavit in which she deposed that she believed she slipped on debris at the top of the stairs. She said she had seen debris at the station that morning. However, she did not see the debris she believed she fell on. She did not know what she fell on but believed she stepped on something.
[43] Justice Perell observed that in an action brought pursuant to the OLA, a plaintiff must be able “to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury.” (Para. 8). In this instance, he found that the plaintiff was unable to do so. All she could offer was her personal belief that she must have slipped on debris, even though she did not see debris and there was no corroborating evidence that any debris was present where she slipped. Perell J. concluded that she was advancing a subjective rationalization for what happened. There was, he said, no objective evidence of the slippery steps hazard. He concluded that the plaintiff had failed to establish, on a balance of probabilities, that a hazard existed and he granted summary judgment in favour of the TTC.
[44] In Hamilton, the plaintiff claimed to have slipped and fallen on vinyl floor in a common area of a condominium she resided in which was operated by the Toronto Community Housing Corporation (“TCHC”).
[45] TCHC moved for summary judgment asserting that the plaintiff had offered no evidence of any hazard existing on the vinyl floor where she fell. The plaintiff filed an affidavit in response to the summary judgment motion. She deposed that she slipped on something on the floor. She did not know what it was but recalled the floor being slippery. She did not observe any hazard on the floor.
[46] On discovery she confirmed that she had not seen anything slippery on the floor. She said there must have been something on the floor that she did not see.
[47] Sanfilippo J. concluded that, at best, the plaintiff’s case was based on a subjectively held belief that there had to have been something slippery on the floor. She was not able to identify any unsafe condition that caused her to slip and fall. He held that the plaintiff’s purported inference that there must have been something slippery on the floor was in fact nothing more than conjecture. It was not an inference drawn on established facts, but rather speculation. In the result, the summary judgment motion succeeded.
[48] As I read Nandlal and Hamilton, in each of those cases the motions judge was satisfied that the plaintiff had not adduced any admissible evidence of a hazard capable of substantiating a breach of an occupier’s duty of care. In each of those cases, the plaintiff advanced only her own speculative rationalization about what must have happened.
[49] The case at bar is different. Ms. Adler is not attempting to reconstruct what must have happened, nor is she speculating about what conditions might have led to her fall. She has offered her own direct observations of a sticky substance on the floor. She did not see it. She is unable to identify it. But she felt it. She says clearly that her foot stuck to it and in doing so it impacted her stride and caused her to fall forward. Her testimony on this issue is admissible, direct evidence that there was a sticky substance on the floor and that her foot stuck to it.
[50] Ms. Adler may not be able to pinpoint the substance that was on the floor, but she is able to pinpoint the hazard. In the result, this case is distinguishable from Nandlal and Hamilton. Here there is direct evidence that there was a sticky substance on the floor. If that evidence is believed, the trier of fact will be able to conclude that there was a hazard on the floor that posed a risk to those using the premises, even though the trier may not be able to say precisely what the substance was.
[51] To the extent that the defendants’ motion is premised on an absence of any evidence of a hazard, it cannot succeed. As I noted, however, two fall-back positions are advanced. I will turn to them now.
Evidence of Reasonable Care
[52] It is important to recognize that the OLA does not impose strict liability on occupiers of premises. The duty imposed by the OLA is one of reasonableness. It was described by the Court of Appeal in Waldick v. Malcolm, (1989), 1991 CanLII 8347 (ON CA), 70 O.R. (2d) 717 at para. 19, aff’d 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456 (S.C.C.) as follows:
All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers' liability with the modern law of negligence. The duty is not absolute, and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable." The trier of fact in every case must determine what standard of care is reasonable and whether it has been met.
[53] In other words, the presence of a hazard does not inexorably lead to the conclusion that the occupier has been negligent. The standard of care imposed by the OLA is one of reasonableness. The plaintiff bears the onus to establish, on a balance of probabilities, that the defendants failed to take reasonable care to ensure the safety of those using the mall on the date of loss.
[54] Ms. Adler alleges that the defendants failed to take reasonable steps to maintain the mall premises in a proper state of repair. They failed, she asserts, to regularly inspect the area where she fell and they lacked a reasonable program or procedure for the detection and remediation of hazards in the area of the food court.
[55] The defendants, on the other hand, assert that they had in place a reasonable system of inspection and cleaning and indeed say that the area in which Ms. Adler fell was cleaned just moments before the fall.
[56] The defendants filed an affidavit in support of the summary judgment motion sworn by Ms. Teresa Rabaca, GDI’s operations manager. She deposed that on the date of loss there were ten cleaning staff assigned to the Promenade Mall. At the time of the fall there were four cleaners on site working. There were two food court attendants who stayed in the food court area for their entire shifts. One, Ms. Nenita Pedrezuela, was on site and working in the food court area at the time of Ms. Adler’s fall.
[57] Attached as an exhibit to Ms. Rabaca’s affidavit is a form outlining the daily cleaning duties for GDI employees attending to the food court area. Those daily tasks included addressing all wet/dry spills, as well as sweeping and mopping the food court floor where necessary.
[58] The defendants produced a security video that partially shows the incident as well as activity in the food court area before and after the fall. Having viewed the video, I can say that the fall is almost undetectable. Certainly, the condition of the floor at the time of the fall cannot be seen.
[59] Ms. Rabaca was cross-examined on her affidavit. She testified that the cleaning staff were required to fill out a log of some kind indicating when they swept or mopped or did other cleaning duties in the food court. Those logs have been lost.
[60] Ms. Rabaca was taken through the security video produced by GDI. She confirmed that the video does not reflect anyone cleaning in the area where Ms. Adler fell.
[61] Promenade’s general manager, Verena Matsuga, was produced for examination for discovery on behalf of Promenade. She testified that it was GDI’s responsibility to clean all retail floors. Promenade’s operations manager was, she said, responsible for conducting visual inspections of GDI’s work. There was no set schedule, however, for when those visual inspections would take place. How and when the inspections were done appears to have been in the discretion of the operations manager.
[62] The determination of what standard of care is reasonable is a case-specific exercise, as is the determination of whether that standard has been met.
[63] In the circumstances of this case, on the record before me, it is far from clear that the defendants, or any of them, had a reasonable system in place to detect and correct hazards as they arose in the food court or otherwise. One available inference on the record before me is that the “system” was rather haphazard and lacked structure. Its sufficiency may well have depended on the diligence of the cleaner assigned on any given shift.
[64] As I noted above, a litigant to a summary judgment motion is expected to put its best foot forward. In this instance, my view is that the defendants put their best foot forward in relation to the argument that there is no admissible evidence of a hazard. That was the focus of the oral argument and the written material. The evidentiary record has not, in my view, been filled in sufficiently in terms of the defendants’ system of maintenance and any assigned cleaner’s adherence to that system on the occasion in question.
[65] Given the state of the evidentiary record, I cannot help but conclude that there is a genuine issue for trial with respect to whether the defendants took reasonable steps, in all the circumstances, to ensure the safety of persons while on the premises of the Promenade Mall on the date of loss.
Use of the Enhanced Fact-Finding Powers
[66] I have found that there is a genuine issue for trial with respect to the alleged breach of the defendants’ statutory duty of care to Ms. Adler.
[67] In the face of that finding, I must address the defendants’ request that I utilize my enhanced fact-finding powers to dispose of the plaintiff’s case on a summary basis. In the words of defence counsel, Ms. Adler “does not have enough horses here, even if there was a sticky substance.” He contends that she cannot succeed, on a balance of probabilities.
[68] With respect to defence counsel, I do not consider this case to be well-suited to resolution on a summary judgment motion; at least not on the record presently before the court.
[69] Assuming, for the sake of argument, that I am prepared to make credibility findings, I would have no reason to dismiss Ms. Adler’s evidence of a sticky hazard on the floor as not credible or as unreliable. That means that, for me, the outcome of the motion turns on my assessment of the reasonableness of the defendants’ efforts to maintain the premises in a safe condition.
[70] I have already found that there is insufficient evidence in this record to make a proper assessment of the reasonableness of the defendants’ maintenance efforts.
[71] I am mindful of the fact that the plaintiff bears the onus to establish that reasonable care was not taken to ensure her safety while at the mall. The presence of a sticky substance does not, itself, amount to negligence. But that said, the plaintiff cannot be expected to know what steps – reasonable or otherwise – the defendants, or any of them, took to keep the premises in a reasonable state of repair. That information is in the hands and control of the defendants. And from what has been disclosed thus far, it is a very live issue, in my view, as to whether reasonable steps were taken to meet the defendants’ duties under the OLA.
[72] In my view, this is not a case where it would be fair and just to resolve the case by way of summary judgment. I am simply not able to make the necessary factual findings to fairly and justly adjudicate the dispute on this motion, with or without resort to any enhanced fact-finding powers.
[73] For all of the foregoing reasons, the motion is dismissed.
[74] The parties are urged to reach an agreement on the issue of costs. If they are unable to do so they may make submissions to me in writing on a 14-day turnaround. The plaintiff’s submissions should be served and filed by August 23, 2021 and the defendants’ by September 7, 2021. Submissions should not exceed two pages, not including cost outlines.
C. Boswell J.
Released: August 9, 2021