COURT FILE NO.: CV-19-80896
DATE: 2023/11/21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PAULA LOUISE COOPER Plaintiff
– and –
DANIEL EDWARD BEAUDOIN Defendant
Counsel: Victoria L. Boddy and Camille Ligier, for the Plaintiff Alex Hartwig, for the Defendant
HEARD: May 15 and 16, 2023
REASONS FOR JUDGMENT
REES J.
Overview
[1] The plaintiff, Paula Cooper, lives in Florida. In September 2017, she came to Ottawa to visit family and friends. She stayed with her sister, Elizabeth Cooper, and brother-in-law, Daniel Beaudoin. While at their home, Paula tripped over sandals that Elizabeth left on the back stoop and broke her ankle.
[2] Paula does not sue Elizabeth. Rather, Paula brought this action against Daniel under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the Act). She alleges that he did not take reasonable care in the circumstances to ensure she was reasonably safe while at his home.
[3] A bifurcation order was made, with the trial on the issue of liability proceeding first.
Factual Background
[4] Most of the relevant facts were agreed to by the parties. They filed a comprehensive agreed statement of facts.
[5] Elizabeth and Daniel have jointly owned and occupied their home in Ottawa since around 1989. Their home is a well-maintained bungalow with a basement. In the summer, they enjoy their backyard. Access to the house from the backyard is through their back door. To enter and exit the house from the backyard, one must walk up the steps of the back stoop and pass through the back door, which opens inwards onto a narrow landing. In the summer, Elizabeth and Daniel leave their shoes or sandals on the top step of the stoop.
[6] The stoop itself is a few feet across, slightly wider than the back door. When exiting the back door, there is a four-to-five-inch step down to the stoop. At the time of Paula’s injury, there was a black door mat at the top of the stoop, just under the doorway. From the top of the stoop, there are two steps down to a patio stone walkway, which leads to a garage and to a deck.
Issues
[7] The parties agree that Daniel is an “occupier” of the home under s. 1 of the Act. The parties also agree that Daniel owed Paula a duty of care under s. 3(1) of the Act, which provides that “[a]n 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.”
[8] The parties disagree on the following issues:
Did Daniel meet the standard of care he owed to Paula?
If not, did Daniel cause Paula’s injury?
If so, was Paula contributorily negligent?
Issue 1: Did Daniel meet the standard of care he owed to Paula?
A. The Law
[9] In its seminal decision on the Act, the Court of Appeal held that s. 3(1) “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”: Waldick v. Malcolm (1989), 70 O.R. (2d) 717 (C.A.), at p. 723, aff’d [1991] 2 S.C.R. 456.
[10] But the duty imposed on occupiers is not absolute. They 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’”: Waldick, at p. 723.
[11] The trier of fact in every case must determine what standard of care is reasonable and whether it has been met: Waldick, at p. 723.
[12] The Supreme Court has held that “the general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances”: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 69. What is reasonable depends on the facts of each case. Relevant facts include “the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury”, and “one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards”: Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at para. 28. These are not to be treated as a mathematical formula, but as factors in the overall standard of care analysis.
[13] Daniel adds a threshold question to the liability analysis. He contends that I must first answer the question, did the sandals constitute a “hazard or pose any unusual or unforeseen danger”? Structuring the analysis by introducing a threshold question is not helpful and could lead to error. Rather, these considerations should be considered as part of the standard of care required in the circumstances. Under the Act, there is no threshold question as posed by Daniel.
[14] Daniel relies on Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, aff’d 2015 ONCA 166, and Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70, aff’d 2019 ONCA 718. But neither holds that the analysis requires the court to answer a threshold question about whether the danger was a hazard, unusual or unforeseen.
[15] In Nandlal, the plaintiff alleged that debris and slippery stairs constituted a hazard and that the defendant transit commission breached the statutory duty of care by not keeping the subway station reasonably safe for patrons. On a summary judgment motion the court considered the evidence of whether there was a hazard at all and concluded, on the evidence, that this hazard did not exist: at para. 28. The court merely uses “hazard” as a shorthand for whether there was, in fact, debris and slippery stairs. The discussion is placed in the context of whether the transit commission met the statutory standard of care: at para. 30.
[16] So too in Hosseinkhani. The plaintiff was injured when she tripped and fell on a dumbbell during a gym class at the defendant gym. She sued the gym under the Act. The court concluded that “[t]he risk that a round dumbbell might roll is an obvious risk. An occupier does not have to warn an adult about obvious risks”: at para. 99. This was considered as part of the statutory standard of care analysis. It was not a threshold question, as Daniel contends.
B. Analysis
Paula was a regular visitor to the house
[17] Paula helped Elizabeth and Daniel move into the house. After Paula moved away from Ottawa, ultimately living in Florida, she visited them yearly or every other year. There was some disagreement over how often Paula visited their home and how often she stayed with them. On this point, I prefer the evidence of Daniel and Elizabeth, which was consistent with one another. I find that Paula was a regular visitor over the years and was familiar with the house. I also find that Paula sometimes stayed with Elizabeth and Daniel when she visited friends and family in Ottawa. But Paula was not aware, before the accident, that Elizabeth had a habit of leaving her sandals on the stoop.
The accident
[18] For a week in early September 2017, Paula came to Ontario to visit family and friends. For part of the week, she stayed with Elizabeth and Daniel.
[19] On the evening of the accident, Paula had been visiting a friend. When she returned to Elizabeth and Daniel’s home, she sat with them in the garage for a few minutes. The weather was warm and sunny. They agreed to go to a restaurant for dinner and made reservations.
[20] Paula left the garage and entered the house through the back door, so that she could use the bathroom and get ready for dinner. To enter the house, Paula walked along the path, ascended the stairs of the back stoop, and entered the back door. She does not recall seeing any shoes or sandals on the stairs or stoop before entering the back door. I find that there were no shoes or sandals on the stairs or stoop when Paula entered the house.
[21] Daniel testified that Elizabeth entered the house first. This contradicts the evidence of Paula and Elizabeth. The weight of the evidence establishes that Paula entered the house first, followed later by Elizabeth.
[22] Paula was in the house for about ten minutes. Elizabeth then entered the house, removing her sandals and leaving them on top of the stoop. She asked Paula to leave the bathroom so that she could use it. Paula then went back outside through the back door after leaving the bathroom. She does not remember looking down at the top of the stoop before stepping down from the back door. As she stepped down, Paula tripped over a pair of black sandals. She fell and broke her left ankle.
[23] Daniel and Elizabeth did not see Paula fall. Daniel heard Paula scream and rushed to help her off the stoop. Elizabeth drove Paula to the hospital after her fall.
The likelihood of harm, the gravity of harm, and the nature of the practice
[24] No evidence was led directly addressing the likelihood of tripping over the sandals as a known or foreseeable harm, or the gravity of that harm. In assessing those factors, I have considered both common sense and the many years Elizabeth left her sandals on the back stoop without incident. I find that tripping over sandals left on a back stoop is reasonably foreseeable, but the likelihood of the harm is low.
[25] Further, I find that the gravity of harm is modest. Here, Paula broke her left ankle. Although not trivial, a broken ankle is a relatively modest injury. Within the range of human misfortunes, it cannot objectively be characterized as a catastrophic or major injury.
[26] I must also weigh the nature of the practice. In closing submissions, counsel for Daniel suggested that Daniel conceded on cross-examination that leaving shoes on the stoop in front of the door is a “hazard” to be helpful to Paula. I disagree that Daniel was anything but honest in his assessment. He was a forthright witness throughout his evidence. He made appropriate concessions, and he presented a coherent narrative of events.
[27] All that said, the standard is objective: that of a reasonable person. Therefore, Daniel’s characterization does not determine the standard of care. It is one piece of evidence that I have considered.
[28] I find that leaving one’s sandals on the back stoop is a reasonable practice. It was late summer in Ottawa. It is common for people to slip off their shoes or sandals on their back stoops when entering the house. Although there is some risk in doing so, there is nothing unusual or inherently dangerous about this practice. The existence of some risk is an ordinary part of life.
[29] Paula contends that Daniel failed to meet the standard of care required in the circumstances by not doing these things:
a. Daniel did not request that Elizabeth not leave her sandals on the stoop in front of the back door.
b. Daniel did not warn Paula to watch out for the shoes or sandals that are commonly left on the back stoop.
c. Daniel did not install a shoe rack on the stoop before Paula’s fall.
d. Daniel did not widen the stoop or leave room for shoes to be placed somewhere else that was not directly in front of the door.
[30] For each of these proposed measures, I consider below the burden or cost Daniel would incur had he adopted them.
Did the standard of care require Daniel to request that Elizabeth not leave her sandals on the stoop in front of the back door?
[31] The standard of care must be considered in the specific circumstances of the case. This is not a case of a parent supervising a child or of an employer supervising an employee. Nor is this a case of a commercial property owner inviting the public to enter their property. Nor is Daniel a municipality responsible for public property. Reliance on cases with those facts is inapt.
[32] Elizabeth is a fully independent, capable adult. She requires no supervision or prompting from her husband as to where she should or should not place her sandals. In the circumstances of a private home, as between capable adult spouses, the standard of care does not require one spouse to police the conduct of another spouse over where they leave their sandals. A reasonable person – an ordinarily prudent person – would not tell their spouse where to put their sandals at home. In weighing the burden which would be incurred to prevent the injury, I considered the strain this would have put on spousal relations and what is reasonable for spouses who are co-occupants.
Did the standard of care require Daniel to warn Paula to watch out for the shoes or sandals that are commonly left on the landing?
[33] The evidence is unequivocal that Daniel did not know Elizabeth had left her sandals on the landing before the accident. And while he knew she often did so, the reasonable person in the circumstances would not have warned a visitor to watch out for them. The likelihood of injury is low; the gravity of the harm is modest. Although the burden of warning visitors of his spouse’s habit is low, only the most anxious person would warn visitors to be on guard that his spouse might leave sandals on the stoop. That goes beyond the standard of an ordinarily prudent person in these circumstances.
[34] This is not a case where the defendant was aware of a permanent or ongoing structural or environmental danger. The plaintiff would set the standard of care too high: an occupier does not need to the warn a visitor about the possibility that his spouse might leave her sandals on the back stoop.
Did the standard of care require Daniel to install a shoe rack on the landing before Paula’s fall?
[35] Paula contends that Daniel should have installed a shoe rack before the fall. She argues that the likelihood that someone would trip over Elizabeth’s sandals was foreseeable and the potential injury was serious, but the burden and cost of prevention were negligible.
[36] After Daniel received notice of the action, he and Elizabeth installed a shoe rack on the stoop, so that people could put their shoes there instead of on the stoop and thus prevent future falls. They obtained the shoe rack for free. They later removed the shoe rack to make room for a railing they installed. In any event, the evidence shows that, after the accident, Elizabeth continued to leave her sandals on the stoop, even while the shoe rack was temporarily in place.
[37] Post-accident remedial measures can be relevant to whether the defendant breached the standard of care, but the remedial measures are not an admission of liability: Sandhu v. Wellington Place Apartments, 2008 ONCA 215, 291 D.L.R. (4th) 220, at paras. 54-63.
[38] Given what happened to Paula, it is no surprise that Daniel and Elizabeth temporarily put in a shoe rack. But this is hindsight. The standard of care did not – and does not – require them to do so. Recall, the standard is not one of perfection, but what a reasonable person would do in the circumstances. The reasonable person would not have installed a shoe rack on the landing to mitigate the chance of a trip. Only an overly cautious person would have installed a shoe rack on the landing outside their back door because their spouse had a habit of leaving their sandals on the stoop.
Did the standard of care require Daniel to widen the stoop or leave room for shoes to be placed somewhere else that was not directly in front of the door?
[39] There is no evidence before me that the width of the back stoop is deficient or dangerous. A reasonable person would not have widened the stoop simply because it was common for his spouse to leave sandals there when she entered the house in the summer. On the record, the stoop’s width is adequate. A court must use common sense when applying the statute: (Canada) Attorney General v. Ranger, 2011 ONSC 3196, at para. 34.
Conclusion on standard of care
[40] Although I agree that another occupier having caused Paula’s injury does not relieve Daniel of his duty of care under the Act, I find that Daniel met the standard of care that he owed to Paula in the circumstances. Paula’s action is not aimed at Elizabeth, who left the sandals on the stoop, but at her brother-in-law. The case against Daniel misses the mark. The Act does not impose vicarious liability on a co-occupant for the acts or omissions of another co-occupant; all the circumstances must be considered to determine whether the co-occupant met the standard of care. Here, Paula would set too high a standard.
Issue 2: Did Daniel cause Paula’s injury?
[41] While my conclusion that Daniel met the standard of care is enough to decide the outcome of this action, I will also briefly address causation.
[42] Daniel argues that he did not cause Paula’s injuries because even had he asked Elizabeth not to put her shoes on the landing, or even had he installed a shoe rack before Paula’s fall, Elizabeth would have continued to leave her shoes on the landing.
[43] For a defendant to be found liable, they must be found to be both negligent and to have caused the plaintiff’s injury. In this regard, “[o]n its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence … caused the injury. That link is causation” (emphasis in original): Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 6 (per McLachlin C.J.).
[44] In law, for Daniel to have caused Paula’s injury, Paula must establish that “but for” Daniel’s act or omission her injury would not have occurred: Athey v. Leonati, [1996] 3 S.C.R. 458.
[45] I agree that Daniel did not cause Paula’s injury. Even had Daniel asked Elizabeth not to leave her sandals on the back stoop, it would have made no difference. Elizabeth continued to do so even after Paula’s accident. If her sister’s injury did not alter her behaviour, Daniel asking her not to leave her sandals on the back stoop before the injury would not have done so.
[46] Although Elizabeth sometimes used the shoe rack after it was installed, she continued to sometimes leave her sandals on the back stoop. She did this even after she knew Elizabeth had injured herself tripping over her sandals. Installing a shoe rack would thus have not changed Elizabeth’s habit of leaving her sandals on the stoop.
[47] The same goes for the width of the stoop. As discussed, the width of the stoop was adequate. Paula did not establish that widening the stoop would have avoided the injury. Elizabeth’s habit was to slip off her sandals as she entered the house, and to leave them on the stoop in front of the door. She left them in front of the door even after the accident and after the shoe rack was installed. If she continued to do this even with a shoe rack, it is likely that a wider landing would not have led her to put the sandals out of the way.
[48] Thus, Paula’s injury would likely have happened just the same had Daniel taken these precautions. Daniel’s omissions made no difference. The only possible exception on causation would have been to warn Paula about Elizabeth’s habit of leaving sandals on the back landing. But, as discussed above, the standard of care did not require Daniel to have warned Paula.
Issue 3: Was Paula contributorily negligent?
[49] Given my conclusion on liability, I need not consider whether Paula was contributorily negligent. That said, I would have found that Paula is 25 percent contributorily negligent.
[50] Daniel and Elizabeth were uncertain about which pair of Elizabeth’s sandals Paula tripped over. Paula’s recollection was clearest. Based on Paula’s evidence, I find that Elizabeth left her sandals on the top step of the stoop. The sandals were black and had a silver circle on the top strap. I also find, based on the strength of Paula’s recollection, that they were left on top of a black doormat.
[51] A reasonably prudent person looks down when stepping down from a higher elevation onto a step. Paula was familiar with the home and back stoop. She knew there was a step down. She should have looked down before stepping out of the house. Paula admits that she did not look down before stepping out of the door onto the back stoop. Had Paula done so, I find it likely that she would have seen the sandals, even though they were black on a black mat. On cross- examination, Paula admitted that she would have seen the sandals had she looked down. Thus, I conclude that Paula did not take sufficient care.
[52] To assess contributory liability, each case must be considered on its own facts. I have done so here. I have also considered other cases where a plaintiff was not looking where they were going or should have cast a more critical eye on their surroundings: Ellington v. Castles, [1990] O.J. No. 622 (H.C.), at para. 51; Collict v. Loblaws Supermarket Ltd., [1995] O.J. No. 4168 (Gen. Div.), at para. 27; and Lytle v. Toronto (City) (2004), 2 M.P.L.R. (4th) 58 (Ont. S.C.), at paras. 28-34 (Ont. S.C.), aff’d (2006), 28 M.P.L.R. 162 (Ont. C.A.).
Disposition
[53] I dismiss the action and grant judgment to Daniel.
[54] If the parties cannot agree on costs, they can each make written submissions to me of no more than 1,000 words, accompanied by bills of costs and any Rule 49 offers, within two weeks of the release of these reasons for judgment.
Justice Owen Rees
Released: November 21, 2023
Released: November 21, 2023
COURT FILE NO.: CV-19-80896
DATE: 2023/11/21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PAULA LOUISE COOPER Plaintiff
– and –
DANIEL EDWARD BEAUDOIN Defendant
REASONS FOR JUDGMENT
Rees J.