Court File and Parties
COURT FILE NO.: CV-16-550623 DATE: August 9, 2021 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Armanda Massaroni AND: Yum! Brands Inc., c.o.b. as Kentucky Fried Chicken Canada Company (KFC), John Doe, TD Bank Group c.o.b. TD Canada Trust, Scott’s Trustee Corporation, Penlim Investments Limited and The City of Toronto
BEFORE: W.D. Black J.
COUNSEL: Stefan Juzkiw, for the Plaintiff Chris T. Blom, for the Defendant TD Bank Group c.o.b. TD Canada Trust, Scott’s Trustee Corporation Vanessa De Sousa, for the Defendants, Yum! Brands Inc. c.o.b. as Kentucky Fried Chicken Canada Company
HEARD: August 4, 2021
ENDORSEMENT
Overview
[1] This is a motion for summary judgment brought by the remaining defendants (the action having earlier been dismissed on consent against the defendant City of Toronto).
[2] The underlying action is a claim that on April 11, 2014, while walking from the parking lot of the KFC store at 4032 Kipling Avenue to the TD Bank at 4038 Kipling Avenue, the plaintiff slipped and fell on, or as a result of tripping over, a structure comprised of a curb (the “curb”) and retaining wall (the “retaining wall”) (hereinafter the curb and the retaining wall will be referred to collectively as the “Barrier”) dividing the properties of the two defendants.
[3] As a result of her fall, the plaintiff suffered a fracture of her right foot and/or ankle and claims to be suffering ongoing difficulties as a result of her injuries.
[4] The summary judgment motion is in respect of liability, and proceeds on the premise that based on the record before me, it is plain and obvious that the defendants were not negligent and did not breach the relevant provisions of the Occupiers’ Liability Act, RSO 1990, c. O.2 (the “OLA”) and that therefore there are no genuine issues requiring a trial with respect to their alleged liability in this action.
The Plaintiff’s Route and the Barrier
[5] The plaintiff, Armanda Massaroni (Ms. Massaroni or the “plaintiff”) was 47 years of age on the date of the incident giving rise to this claim (April 11, 2014).
[6] On that afternoon, which was sunny and clear, she was cutting through the KFC parking lot to get to the TD Bank.
[7] In order to do so, she necessarily crossed the Barrier. The Barrier was (and is) comprised of two structures. On the KFC parking lot and entirely on KFC’s property, there is a typical concrete curb approximately 6 inches tall. The curb extends alongside and demarks the edge of the KFC drive-through entrance lane.
[8] Beside the curb towards the TD parking lot there is a concrete retaining wall. There is a space of what appears to be several inches between the curb and the retaining wall. The retaining wall is estimated to be approximately 2 feet tall and looks to be about as wide (or perhaps slightly wider; it is difficult to be precise based on the photographs in evidence). It is not in dispute that the retaining wall is partly on the KFC property and partly on the TD property. Although plaintiff’s counsel has characterized this structure as a “step wall” it is in fact a retaining wall and serves as a barricade to prevent vehicles from crossing from one property to the other.
[9] It should be noted that there is a municipal sidewalk along Kipling Avenue, a short distance from where the fall is alleged to have happened (albeit there is some inconsistency in the evidence about exactly where the plaintiff fell). The plaintiff’s evidence on discovery was that the place she fell was about 10 feet from the municipal sidewalk.
[10] In keeping with the characterization of the retaining wall as a “step wall”, the plaintiff’s position is that the Barrier “invites people to use the step” as a shortcut between the two properties and that “many patrons” used the route chosen by the plaintiff as a crossing area.
[11] In my view the evidence does not support these suggestions. There is nothing in the appearance of the Barrier that would reasonably lead one to believe that it invites one to cross over it. Rather, the essence of the Barrier suggests otherwise; its clear primary function is to block traffic (in fairness, primarily vehicles) from crossing from one property to the other.
[12] Moreover, although the plaintiff claims that she herself had crossed over the Barrier on a few occasions in the past, (she estimates 4 or 5 times), the evidence that anyone else did so, let alone regularly, is scanty. In support of the proposition that “many patrons” crossed the Barrier as she did, the plaintiff points to answers given by TD’s representative on discovery which was that he (Rodney Pinto, TD’s representative on discovery), “couldn’t recall if at all people would be walking back and forth”. When pressed by plaintiff’s counsel with the suggestion that “generally people were crossing (the Barrier)”, Mr. Pinto said: “…I guess people would cross, but I don’t know how often or anything like that”. Boiled down, Mr. Pinto’s evidence appears to be that he cannot recall seeing anyone crossing the Barrier, guesses that people might do so, but cannot say how frequently that has actually happened. Even if I were to accept the plaintiff’s spin, in effect that this evidence demonstrates that people other than the plaintiff crossed the Barrier, this evidence in no way demonstrates that “many patrons” did so.
[13] The only other evidence about this question is evidence from the plaintiff’s sister that when she and the plaintiff went back to the scene about 4 weeks after her fall, she saw another person (shown in a photograph she took) whom she believed crossed over the Barrier. The plaintiff herself (not the plaintiff’s sister who deposed this evidence), was asked about this person on cross‑examination and said she did not remember seeing that person cross over the Barrier. So again, the plaintiff’s evidence falls well short of demonstrating the “many patrons” crossed the Barrier in this area.
[14] There is also no evidence of a path (well worn or otherwise) anywhere in the vicinity that would suggest people regularly crossing over the Barrier.
[15] The lack of evidence of people crossing the Barrier is important in assessing the duty the plaintiff alleges the defendants had to clean and maintain the Barrier. Considering the purpose and function of the Barrier, to prevent the crossing of vehicles from one property to the other, it would be surprising in my view, if either defendant had a duty to clean the top of the Barrier or otherwise clean the Barrier on an on‑going basis or at all. In terms of maintenance, if the concrete in the Barrier was showing signs of breakdown, then I could imagine a duty to maintain or replace the concrete so as not to have pieces of concrete potentially in the way of vehicles, but short of that it would be odd to expect regular cleaning or other maintenance of the Barrier.
[16] It would, or might, be different if there was evidence of pedestrians regularly using a path that required them to cross the Barrier. In that hypothetical scenario, it might be required for the defendants to clean or maintain the Barrier or, perhaps more likely, to put up a sign specifically prohibiting or discouraging pedestrians from crossing the Barrier but as set out above, the evidence simply does not establish such use.
[17] Moreover, the plaintiff’s evidence that she herself had crossed over the Barrier 4-5 times cuts both ways. While it could establish, if supported by evidence of other people doing so regularly, that the crossing was traversed by pedestrians often enough to create a duty on the part of the defendants, it also suggests that the plaintiff ought to have known what was involved in crossing the Barrier and taken appropriate care while doing so.
[18] Despite the plaintiff’s evidence that she was “walking normally” and did not look down at the Barrier but was looking straight ahead while crossing it, ordinary common sense suggests that one would not reasonably cross the Barrier that way. That is, if one is necessarily navigating one’s way over a curb and then in close proximity, a 2-foot high retaining wall structure, it would be reasonable and indeed indispensable, to look down to ensure that one is stepping in the right spots and stepping over the 2-foot wall.
[19] This is particularly so when there is a municipal sidewalk which the plaintiff conceded would not involve crossing any barriers or structures as close as 10 feet (on one version of the plaintiff’s evidence), or even 30-40 feet away (based on another version of the plaintiff’s evidence).
Plaintiff’s Different Versions of the Fall
[20] Speaking of different versions of events, there are problematic contradictions within the totality of the plaintiff’s evidence and inherently suspect aspects within each version of her evidence, (i.e. even leaving aside the contradictions with other versions of her evidence) that make that evidence unreliable. I will discuss below the extent to which I am required to assess credibility but as a general observation, the plaintiff’s evidence is not compelling.
[21] First and foremost, the change in the plaintiff’s evidence about where she stepped and how she fell from her testimony at discovery to her later evidence in an affidavit and cross-examination in the context of this motion, gives me no confidence in her evidence, particularly on such a fundamental point.
[22] On discovery (on October 30, 2020), the plaintiff said: “I put my foot on the curb and I slipped” (question 470).
[23] In her affidavit (within this motion, sworn May 26, 2021) she said: “I stepped across the small curb contouring the parking lot… and on top of the concrete step on the side of the TD Bank” (paragraph 5 of her affidavit), and “As I put my foot on top of the step, suddenly and without warning I slipped on the pebbles, stones and debris that I felt under my shoes”.
[24] On cross-examination she insisted that she had put her foot over the curb and slipped on what she calls the “step”, which is the 2-foot retaining wall. She agreed that this represented a change in her evidence and claimed that she could not remember whether her memory on this point changed before or after she read the affidavit prepared by her lawyer (questions 81-84 of the cross‑examination).
[25] Her counsel suggested that there was confusion, on the plaintiff’s discovery, about what was the “curb” and what was the “step” or “wall”. This suggestion is entirely undermined by the plaintiff’s evidence at discovery. Immediately after question 470 (excerpted above), in which she said “I put my foot on the curb and I slipped” she was asked, in question 471, “Which curb? The first small wall or the larger two-foot wall?”. She answered: “the first curb, the small curb. I slipped.”
[26] Having confirmed that she was specifically saying that she slipped on the “small curb” (i.e. the curb) as opposed to the retaining wall, the plaintiff’s evidence in the following questions on discovery (qq. 472-482), makes it clear that her recollection was that she stepped on the curb, slipped and fell.
[27] The change in her evidence on this point in her affidavit less than 9 months later and her acknowledgement on cross-examination that the version in her affidavit, that she stepped over the curb and not on it, and slipped not on the curb but on the retaining wall, represented a change in her evidence, would be hard to overcome at trial on such an important point, even if it was the only contradiction between the plaintiff’s versions of events.
[28] Unfortunately, it is not the only one.
[29] Another example (and there are several, so I do not propose to review all of them here) is the plaintiff’s evidence about the location of the fall. On discovery, the plaintiff estimated that the place she fell was approximately 10 feet away from the municipal sidewalk.
[30] In her affidavit, the plaintiff referred to and attached photographs that her sister had taken when the two of them returned to the area of her fall about 4 weeks later and circled on one of the photographs the approximate location along the retaining wall where she slipped and fell.
[31] While it is not possible to be precise and there is no evidence of anyone having measured the distance between the plaintiff’s circle drawn on the wall (depicting the place where the plaintiff fell) and the municipal sidewalk, that distance is clearly multiples of the 10 feet from the sidewalk to which the plaintiff testified at discovery. I would estimate the distance as not less than 30 or 40 feet and perhaps more. Plaintiff’s counsel, when I questioned him about this discrepancy, candidly acknowledged that the plaintiff’s evidence on discovery was “incorrect”.
Failure to Correct Discovery Evidence
[32] That being the case, I asked plaintiff’s counsel whether the plaintiff’s evidence had been the subject of a correction pursuant to Rule 31.09. Counsel confirmed that there had been no correction under that Rule to this aspect or any aspect of the plaintiff’s discovery evidence (despite many changes). His position seemed to be that the version of events in the later affidavit served as “corrections” of the erroneous portions of the plaintiff’s discovery evidence. In my view, if a party does not resort to the appropriate correction mechanism under the Rules, the later version of events amounts to contradictions rather than corrections and the party is stuck with the consequences.
Rules and Caselaw Governing Summary Judgment
[33] Rule 20.04 (2)(a) provides that the court shall grant summary judgment if, (a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[34] Rule 20.04 (2.1) provides that in determining under clause 2(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and if the determination is being made by a judge, lists certain powers that a judge may exercise to make that determination (weighing the evidence, evaluating credibility, and/or drawing any reasonable inference from the evidence) unless it is in the interest of justice for such powers to be exercised only at trial.
[35] The Supreme Court’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 explains that this is a two‑stage exercise and that a judge need only resort to the second-stage powers if there appears to be a genuine issue requiring a trial and if she, at her discretion, determines that the need for trial can be avoided through the use of those powers provided that their use is not against the interest of justice. The court explains that the use of those powers will not be against the interest of justice if they lead to a fair and just result, and serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.
Application of Rules and Caselaw
[36] In my view, there is sufficient evidence in the record before me to allow me to make dispositive findings. The obligation on the parties is of course to put their best foot forward such that I can assume that the record contains all of the evidence that the parties will present at trial.
[37] If the moving party meets the evidentiary burden of producing evidence on which the court can conclude that there is no genuine issue requiring a trial, then the responding party must counter the moving party’s evidence by “leading trump” or risk losing. I understand that to require a certain degree of diligence on the part of the parties and their counsel. That is, a party cannot rest on mere denials or speculate about additional evidence that may be forthcoming but must make a genuine effort to assemble the evidence that it would lead at trial. If that evidence raises issues requiring a trial, then summary judgment will not issue, but generally speaking, the party must point to evidence as opposed to the promise of potential evidence to come.
[38] In this case the evidence is necessarily assessed in relation to the OLA.
[39] The OLA requires that an occupier of premises owes a duty to take such care, as in all of the circumstances of the case is reasonable, to see that persons entering on the premises are reasonably safe while on the premises. (OLA, s. 3(1)). “Premises” is defined as including lands and structures.
[40] The duty does not change from case to case, but as the language of s. 3(1) contemplates, the factors relevant to an assessment of what constitutes reasonable care are necessarily specific to each situation (see Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456 at p. 472).
[41] The case law confirms that it is important to use common sense when applying the OLA and that falls on private property are not always the result of conduct of the owner of such property. A fall does not create a presumption of negligence and a plaintiff must identify some act or failure to act on the part of the occupier. (St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, 2005 CanLII 23112 (Ont. S.C.); Nandlal v. Toronto Transit Commission, 2014 ONSC 4760).
[42] The duty of care is not absolute, does not require an occupier to remove every possible danger or maintain a constant surveillance or lookout for potential danger and does not require occupiers to become insurers liable for any damages suffered by any persons entering the premises. The relevant standard is reasonableness and not perfection. (Nandlal, Waldick, Kerr v. Loblaws Inc., 2007 ONCA 371, 224 O.A.C. 56).
[43] There is no duty to warn of something that is plainly visible and that the plaintiff knows exists. (Porchak v. Pizza Pizza Ltd., 2016 ONSC 4551).
[44] In the assessment of potential liability, an inference of causation must be based on objective facts not speculative rationalization, and speculative theories are not sufficient to establish liability. (Cannito v. Madison Properties Inc., 2018 ONSC 6190).
[45] In this case, the plaintiff fails to meet various elements of what will be required to prove negligence and/or a breach of the OLA.
[46] First, I do not think the plaintiff’s evidence establishes a duty of care in relation to the Barrier, at least insofar as the plaintiff’s use of the Barrier is concerned. That is, as set out above, there is very little evidence of people crossing over the Barrier in the way that the plaintiff did. This is understandable given the close proximity of a municipal sidewalk.
[47] The Barrier is self-evidently intended to prevent vehicles from crossing from one property to the other. It does not “invite” pedestrians to cross over it and there is no path or pattern of pedestrian traffic to suggest that people do so.
[48] Consistent with that, there is no evidence of any prior or subsequent accident involving the Barrier or people crossing it, and one witness who confirmed that no such accidents have happened had been employed by one of the defendants in this location since 1993. Nearly 30 years without any other such incident is telling.
[49] As set out above, the fact that the plaintiff herself had apparently crossed over the Barrier on 4 or 5 prior occasions cuts both ways. As one would expect, case law confirms that someone who uses a shortcut, particularly one that is not intended as a shortcut nor regularly used in that way, must keep a careful lookout. (Lane v. Regina (City), 2007 SKQB 414, 303 Sask.R. 296, at para. 30, quoting from Neid v. Vancouver (City), [1984] B.C.J. No. 837 (S.C.)).
[50] In that regard the plaintiff’s evidence, or at least one version of it, that while crossing over the Barrier she did not look down but rather looked straight ahead, defies common sense. Again, someone stepping over two adjacent structures (the curb and the retaining wall) one of which is two feet tall, would be expected to look down carefully to see where they are stepping.
[51] Moving from the duty of care to the standard of care, the plaintiff points to cases in which defendants demonstrate a systematic routine of cleaning and maintenance and argues that because the evidence of the defendants, taken together, is that neither one of them routinely cleaned pebbles and debris off the top of the curb or retaining wall, they failed to meet the standard of care required.
[52] Standard of care, like duty of care, must be considered in context. Presumably, in the absence of evidence of people regularly crossing the Barrier, the defendants saw their obligations relative to the Barrier in terms of the Barrier’s intended purpose. If there were pebbles or debris atop the curb or retaining wall, this would in no way interfere with the suitability of the Barrier to prevent vehicles from crossing one property to the other.
[53] Moreover the plaintiff’s evidence does not demonstrate, even if there were a duty to clear off the top of the curb and retaining wall, that there were any rocks, pebbles or debris of any kind atop these structures on the day of the plaintiff’s accident.
[54] The plaintiff and her sister went back to the site of the accident 4 weeks later and photographed a portion of the retaining wall that appears to have a few tiny pebbles on it. One wonders if the presence of pebbles on this limited stretch of the top of the retaining wall influenced the plaintiff’s recollection of the site of her fall (the circle she drew on a photo to show where she fell approximately circumscribes the small area where a few tiny pebbles are situate), but in any event the presence of pebbles does not create a danger and the presence of pebbles 4 weeks after the accident does not prove anything about the state of the top of the retaining wall 4 weeks earlier.
[55] In Cannito, the plaintiff fell in the parking lot of a plaza. She acknowledged that when she returned to the property two weeks later and saw a “missing piece” on the southeast corner of a speedbump, she concluded that that missing piece and the uneven terrain it created must have been the cause of her slip and fall. The court held that notwithstanding the plaintiff’s subjective belief about what had caused her fall, there was no objective evidence about the state of the speedbump proximate to the time of the slip and fall, and the plaintiff’s claim was dismissed.
[56] Similarly in Nandlal, the plaintiff testified on discovery that she slipped on floor tiles but in response to the defendant’s summary judgment motion, she stated that she believed that she slipped on debris at the top of some stairs. The basis of her belief was that in the morning she had seen debris in the TTC station (and had frequently seen debris in the station in the past). At the time of the accident she did not see debris but nonetheless believed that debris caused her slip and fall.
[57] The court found that there was no objective evidence of debris on the steps, but only a subjective rationalization by the plaintiff to explain having fallen down the stairs. The fact that she saw debris in parts of the station on past occasions did not lead to an inference that there was a debris hazard at the top of the stairs on the date of the loss.
[58] In this case, the plaintiff does not claim to have seen pebbles or debris on the curb or retaining wall on the day of her fall. She maintains, in the second version of her evidence, that she felt something under her foot and because when she went back with her sister 4 weeks later she saw some pebbles atop one section of the retaining wall, she concluded that that must have been the site and cause of her fall.
[59] I note that the plaintiff’s “subjective rationalization” in this case is even less compelling than the unsuccessful plaintiff’s subjective rationalization in Nandlal. It is not hard to accept that the TTC has a duty to keep its pedestrian areas, including in particular stairs, free of debris. As discussed above, it is much harder to accept that either TD or KFC has a duty to keep the top of the Barrier in their parking lots free from debris.
Conclusion
[60] All of these shortcomings of the plaintiff’s case here are evident on the record before me. I am persuaded by that record that there is no genuine issue requiring a trial. Plaintiff’s counsel argues that there may be witnesses who saw the events, or statements made to third parties by the plaintiff at the time that will assist the plaintiff and should be aired and tested at trial. There are two problems with this idea. First, there is no suggestion that there is actually any such evidence that will be helpful to the plaintiff. Plaintiff’s counsel notes that there were two bystanders who came to the plaintiff’s aid after she had fallen and says that perhaps they witnessed the fall. There is no indication, however, as to the identity of the good Samaritans, nor any suggestion that either of them actually witnessed the fall. Similarly, in terms of statements to third parties, the only evidence in the record is in the form of the plaintiff’s statement to a doctor and the content of the contemporaneous note of that statement in no way assists the plaintiff.
[61] The second problem is that even if there was a reasonable prospect that such evidence could assist the plaintiff, it is not good enough to come to the hearing of a summary judgment motion, when parties are presumed to be putting their best foot forward and leading trump, and to speculate at that hearing that there may be additional evidence that could help that party. At the very least, in order for such speculation to help the party offering it, there would have to be evidence of efforts to obtain that evidence and evident substance to helpful aspects of the evidence that the party is diligently attempting to obtain. Here there is none of that, but rather hollow speculation about what might be forthcoming, without evidence of meaningful efforts to obtain that evidence.
[62] Given my conclusion that there is no genuine issue requiring a trial, guided by the SCC decision in Hryniak, I need not resort to the additional powers set out in Rule 20.04 (2.1). Were I to do so, however, as alluded to above, I would have considerable concerns about the plaintiff’s credibility and the significant changes in her evidence on fundamental points.
[63] For all of these reasons, I find that this is not a case in which there are genuine issues requiring a trial. The record before me is more than adequate to allow me to conclude that the plaintiff’s claim has no reasonable prospect of success.
[64] Accordingly I grant the defendants’ motion for summary judgment. The defendants are entitled to their costs. The defendants should provide me with brief (no more than 2 page) written submissions and a bill of costs within three weeks of today’s date. The plaintiff shall then have two further weeks to respond with submissions also limited to 2 pages.
W.D Black J.
Date: August 9, 2021