Court File and Parties

COURT FILE NO.: CV-18-1081-00 DATE: 20221130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GREG CHEPURNYJ Plaintiff

– and –

COLLINGWOOD HOME HARDWARE BUILDING CENTRE Defendant

Counsel: M. Blois and G. Bajenova, for the Plaintiff O. Ansell, for the Defendant

HEARD: November 29, 2022

BEFORE: HEALEY J.

Reasons for Decision

[1] The defendant seeks to have the issue of contributory negligence decided by the jury.

[2] This is not a case in which the jury should be asked to determine whether the plaintiff was contributorily negligent and apportion responsibility between the parties for the plaintiff’s injuries.

[3] The theory of the plaintiff’s case, as pled in his statement of claim, is that while walking through the defendant’s premises he was struck in the leg with a protruding metal support for a display, which punctured or cut his left calf.

[4] The plaintiff testified at trial that on August 6, 2017, he was walking from the paint department, where he had picked up sandpaper, to the nearby flooring department in order to speak to an employee who was standing in that location. In doing so walked between two display shelves. He caught the attention of the employee by raising his hand before moving toward him and making eye contact. As he moved between the displays or shelves, he stated that he hit something and the pain was such that it felt like a bullet went through his leg. He glanced down to inspect his pants and saw that they were not torn. He did not look at the shelving or inspect it to determine what he had hit, or otherwise look around the area. He could not identify what he collided with. It is his belief that there had to be something metal sticking out of the shelving. He was clear in his evidence that he could not describe a hazard because he did not see one that day. It was not until he noticed blood on the floor about one and half minutes later that he inspected his leg and saw that he was bleeding.

[5] When he went back to the store a few days later, it was his evidence that the shelving unit that he believes was responsible had been removed. Only one of the display shelves remained. He measured the shelving unit and determined that the first shelf of the display was 16 inches off the ground. That formed the basis for his belief that he hit his leg on the shelf, because the cut on his leg was measured by him to be 16 to 17 inches from the floor. The cut was also in the shape of an “L”, which he surmised had to be caused by a piece of metal of the same shape.

[6] The plaintiff’s evidence was that he had been in the store on previous occasions and had gone to the area where paint and sandpaper were sold, all without incident. Other than his own recounting of what occurred, there is no evidence of whether a hazard existed on August 6, 2017, and if so, what that hazard was.

[7] The plaintiff also testified that he did not stumble or lose his footing. He was aware that the shelves were made of metal. He stated that he was walking in the middle of the aisle. He was not looking down at his feet, but straight ahead toward the employee. He acknowledged that the area was well lit. As he moved between the displays toward the employee, he stated that he was walking briskly, but not much more quickly than a normal walk.

[8] Two of the defendant’s employees testified. Both were with the plaintiff at the time, or shortly after, blood was noticed to be coming from his leg. One of the witnesses, Marikay McDonald, testified that she remained with the plaintiff while waiting for an ambulance to arrive. She asked the plaintiff if he knew how his leg had been injured. His response was that he had bumped his leg, but he did not tell her how that had happened. She inquired what he bumped his leg on, and he could not recall. She said that the plaintiff gave no further information.

[9] The other employee, Iain Cathcart, was the employee toward whom the plaintiff was moving at the time that he said that he felt the pain in his calf. Mr. Cathcart testified that he was speaking to the plaintiff about flooring when he noticed that there was blood on the floor by the plaintiff’s feet. He testified that the plaintiff looked down and appeared to be shocked and said “I don’t know how that could have happened”. While waiting for the ambulance, the plaintiff said nothing to him about how the injury happened, nor did he point to anything in the store that may have been the cause of the injury.

[10] After emergency services had taken the plaintiff away, both Ms. McDonald and Mr. Cathcart inspected the aisles and shelving in the store to attempt to see if there was anything that presented a hazard, that could have injured the plaintiff’s calf. They retraced the areas where they had seen the plaintiff. Nothing unusual was seen. Nor had any dangers, obstructions or hazards been seen by them during their inspections of the store during their shifts that day. Both described the safety features of the shelving and displays, such as rounded bottom edges, end caps to finish the vertical shelving, plastic curb pallet guards surrounding displays or pallets that are “stacked out’ and wide aisles.

[11] Evidence was given by Ms. McDonald that the plaintiff’s footwear was a house slipper or moccasin, and that he appeared to be in poor health.

[12] This court asked counsel for submissions on whether it would be appropriate, given this evidence, to allow the defence of contributory negligence to be decided by the jury. Counsel were referred by the court to an excerpt from Linden et al., Canadian Tort Law, 12th ed. (Toronto: Lexis-Nexis Canada Inc., 2022), at p. 863 where the authors state: “Further, contributory negligence generally cannot be found on the part of the plaintiff in the absence of knowledge of the risk or danger posed”. Several cases were cited for this proposition, including Singer v. Hamilton (City), 2009 ONCA 559, 251 O.A.C. 201.

[13] In Singer, the Court of Appeal upheld a trial decision that found no contributory negligence where the plaintiff was not alerted by warning signs of a deep trench, a hazard, that was next to what appeared to be a sidewalk. The court characterized it as a “trap” or “hidden danger” because the plaintiff’s view of the trench was obscured by machinery and the risk was not obvious. With respect to the trial judge’s analysis of contributory negligence, at paras. 29 and 30 the Court held:

The above analysis also disposes of the appellants' submission that the trial judge erred by failing to find Ms. Singer contributorily negligent. The appellants argued that by walking on the ledge next to the trench, Ms. Singer should have foreseen that she might injure herself. On the findings of the trial judge, however, there was no warning or barricade to prevent Ms. Singer from entering a situation of danger. He found that the lack of warning or barricade resulted in her "being led into direct conflicts with work site vehicles, equipment or operations". By the time she would have been aware of the trench "it was too late and she fell into the ditch, fracturing her right leg". That Ms. Singer was wearing high heels, a fact the appellants emphasized, does not undermine the findings of the trial judge.

This analysis was supported by the evidence and was reasonable. There is no basis upon which this court can interfere. I would not give effect to this ground of appeal.

[14] Counsel for the defendant referred the court to several cases in which the issue of contributory negligence was considered. These were: Turner v. Oakville, 2018 ONSC 5647, Lopez v. Toronto (City), 2013 ONSC 848; Miller v. Her Majesty the Queen in Right of Canada, 2015 ONSC 669; Dowbenko Estate v. Westfair Foods Ltd., 1996 CanLII 18000 (MB KB); and Litwinenko v. Beaver Lumber Company, 2006 CanLII 28740 (ON SC).

[15] Each of these cases is distinguishable from the fact pattern in this trial in a significant way, as each involved a potential hazard that was known or ought to have been known by the plaintiff [a steep slope on a bicycle trail maintained by the Town (Turner), a visible patch of ice on a walkway that had been pointed out to the plaintiff by his son before he fell (Lopez), a slip on an icy staircase, when the plaintiff knew of the poor weather conditions and had already encountered slippery conditions on the walkway leading to the steps (Miller), a visible bulge in a mat in the vestibule of a grocery store, estimated by witnesses to be 2 to 4 inches high (Dowbenko), and a height difference between a cement ramp and walkway, of which the plaintiff was aware (Litwinenko)]. In the case at bar, neither the plaintiff nor the defendant has identified a foreseen or foreseeable risk or hazard that the plaintiff was faced with while walking normally through the hardware store.

[16] A succinct summary of the requirements for a finding of contributory negligence can be found in Fridman, The Law of Torts in Canada, 3rd ed., (Toronto: Thompson Reuters Canada Limited, 2010), at pp. 463-464:

Whether the plaintiff has been negligent in this way will depend on his or her prior knowledge of the danger here she is incurring by acting or omitting to act in a certain way. Such prior knowledge, however, does not inevitably lead to a finding of contributory negligence. Much depends on the plaintiff’s foresight of the consequences of his or her behaviour. To be contributorily negligent, the plaintiff must foresee harm to himself or herself. Contributory negligence, like negligence, arises from a failure to take such care as the circumstances require. All the elements of actionable negligence must be established except the requirement of a duty owed by the party alleged to be contributorily negligent (although, as noted earlier, such a duty might be owed, and in such cases it may be easier to prove contributory negligence). A momentary lapse is not sufficient to prove contributory negligence. Nor is a want of attention. There has to be a lack of reasonable care demanded by the situation. (Citations omitted)

[17] In Zsoldos v. Canadian Pacific Railway Company, 2009 ONCA 55, 93 O.R. (3d) 321, at para. 54, the Court of Appeal explained that contributory negligence can arise in three ways, citing P. H. Osborne, The Law of Torts, 3rd ed. (Toronto: Irwin Law, 2007), at pp. 104 – 105 and Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Carswell, 2003), at p. 457. The three ways are:

1. The plaintiff’s negligence may have been a cause of the accident in the sense that his acts or omissions contributed to the sequence of events leading to the accident;

2. The plaintiff has put himself in a position of foreseeable harm, even though the plaintiff’s negligence is not a cause of the accident; and

3. The plaintiff may fail to take precautionary measures in the face of foreseeable danger.

[18] The second and third ways of establishing contributory negligence obviously involve harm that is foreseeable to the plaintiff. Examples are a person who gets into a car being driven by an intoxicated person, and a person who fails to wear a helmet on a motorcycle. But foreseeable risk of harm is also a requirement of the first category, when a person’s own acts or omissions contribute to their own harm. A plaintiff must have prior knowledge of a potential danger to be able to appreciate that their conduct could lead to an unfortunate outcome before contributory negligence can succeed. For example, in Cork v. Kirby MacLean Ltd., [1952] 2 All ER 402 (C.A.), the plaintiff failed to tell his employer that he suffered from epilepsy and fell from an unsafe scaffolding while suffering an epileptic fit. The court held that his employer would likely not have assigned him to work on the scaffold if he had told his employer about his medical condition. In Cork contributory negligence was only established on the basis that the plaintiff knew of his epilepsy, yet failed to take reasonable care in the circumstances to ensure that he was not placed in a situation of potential danger in the event that he had a seizure.

[19] This requirement for foreseeability is contained in the test for contributory negligence. The test for contributory negligence that was accepted by the Supreme Court of Canada in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., 1997 CanLII 307 (SCC), [1997] 3 S.C.R. 1210, at para. 76, arises from the statement of Denning L.J. in Jones v. Livox Quarries, [1952] 2 Q.B. 608 (Eng. C.A.), at p. 615:

Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.

[20] On the fact pattern raised by the evidence in this case, the defendant would be urging the jury to assign contributory negligence to the plaintiff by asking the jury to find that he failed to look down at display or shelving as he was passing by, or that he failed to give the display or shelving sufficient berth as he was passing. I accept the submission of plaintiff’s counsel that his footwear has no significance in this case. To be successful, the defendant would also have to establish that the plaintiff knew or should have known that a situation existed in which conducting himself in that way could lead to injury or harm. There is no such evidence. The defendant has led evidence that no such hazard was there to be seen, and so I am unable to see how it can also logically argue that the plaintiff should have known about the hazard and taken it into account as he proceeded through the store. And given that the plaintiff has been unable to identify the mechanism of his injury, or to identify with any certainty that part of the shelving or something protruding from it was the culprit, the jury would be asked to evaluate the reasonableness of the plaintiff’s behavior in the context of an unknown risk.

[21] Defence counsel also argued that the jurors should be permitted to decide the issue now that they have heard the evidence about the plaintiff’s conduct on which it would be relying to try to establish contributory negligence. Further, plaintiff’s counsel did not object to the evidence at the time that it was given. I would add that plaintiff’s counsel did not object to the jury question on contributory negligence as initially drafted until the issue was raised by the court. None of this matters, however, when the evidentiary basis required to meet the test for contributory negligence simply does not exist.

[22] For these reasons, the issue of contributory negligence will not be permitted to be put to the jury.

HEALEY J.

Released: November 30, 2022