Court File and Parties

Citation: 2024 ONSC 6569 Court File No.: CV-20-2278-00 Date: 2024-11-25 Court: Superior Court of Justice – Ontario

Between: Vida Mansori, Plaintiff And: York Region Standard Condominium Corporation No. 1279, Defendant Crossbridge Condominium Services Ltd., Defendant Ingerv Cleaner Company Ltd., Defendant Elite Residential Concierge Services Inc., Defendant

Counsel: Aryan Kamyab and Tim Thirukkumar, for the Plaintiff A.J. Billes and Frances Bertucci, for the Defendant York Condominium No. 1279 and Crossbridge Condominium Services Andrea LeDrew and Frank Csathy, for the Defendant Elite Residential Concierge Services

Heard: In person in Newmarket December 4-8, 2023, with written submissions filed March 5, 2024

Reasons for Decision

Regional Senior Justice M.L. Edwards

Overview

[1] On February 26, 2020, the plaintiff slipped and fell in a public washroom at a condominium building – York Regional Standard Condominium Corporation No. 1279; a condominium that was managed by Crossbridge Condominium Services Ltd. I will refer to these defendants as the condominium. As a result of the fall the plaintiff suffered a fracture to her left distal humerus and to her left distal radius. At the time of the fall the plaintiff was 61 years of age and a resident of Iran who was visiting the Greater Toronto area.

The Parties

[2] As previously indicated York Region Standard Condominium Corporation No. 1279 is the condominium building where the plaintiff fell. Crossbridge Condominium Services Ltd. was the management company responsible for the condominium. Ingerv Cleaner Company Ltd. (Ingery) was the cleaning company contracted to clean the building and, in particular, in this case the public washroom where the plaintiff fell. Elite Residential Concierge Services Inc. (Elite) amongst other things provided security services to the building. Elite was the employer of a security guard Arshdeep Kaur (Kaur) who was a security guard on duty at the time that the plaintiff fell.

[3] The claim against Ingerv was resolved prior to trial. On November 10, 2023 a Pierringer agreement was entered into between the plaintiff and Elite which settled all claims relating to the liability of Elite. The only claims asserted by the plaintiff that proceeded to trial were those of the plaintiff against the condominium.

Chronology – February 26, 2020

[4] The meteorological records reflect that on February 26, 2020, there had been approximately 14 centimetres of snow fall in the location of the condominium. The meteorological records reflect there was approximately seven centimetres of snow actually on the ground.

[5] Ingerv was on site pursuant to its contractual obligations from 7:00 a.m. to 3:00 p.m. on February 26, 2020 and was available on call after 3:00 p.m. if required.

[6] At 9:00 a.m. and again at 1:00 p.m. the washroom where the plaintiff fell was checked and cleaned by Ingerv.

[7] Between 1:03 p.m. and 5:19 p.m. when the plaintiff fell there were 26 people who used the washroom prior to the plaintiff. Between 3:30 p.m. and 5:19 p.m., 10 people used the washroom.

[8] Between 5:03 p.m. and 5:07 p.m. Ms. Kaur is seen on video entering the washroom. Her evidence which will be further reviewed below establishes that she did not see any water on the floor while she was in the washroom.

[9] Between 5:07 p.m. and 5:12 p.m. the evidence establishes that four people used the washroom prior to the plaintiff entering. The last person to exit the washroom prior to the plaintiff is seen exiting at 5:16 p.m.

[10] The plaintiff enters the washroom at 5:19 p.m. and she is present within the washroom for approximately one minute.

[11] The plaintiff is seen at 5:25 p.m. in the area of a dental office located in the general vicinity of the washroom. The plaintiff’s evidence establishes that the dentist went to the washroom and made observations. The dentist was not called to give evidence as to any observations that she might have made.

The Condominium Building

[12] The condominium is a large condominium building which has three public entrances. There are no restrictions on who is permitted to use the public washroom where the plaintiff fell.

[13] The building is open to the general public between 7:00 a.m. and 10:00 p.m. The washroom where the plaintiff fell is unlocked at 7:00 a.m. and is locked at 11:00 p.m.

The Maintenance of the Washroom

[14] Ingerv was contracted to be at the condominium between 7:00 a.m. and 3:00 p.m. The maintenance of the washroom was scheduled to take place twice per day at 9:00 a.m. and 1:00 p.m.

[15] If the security guards employed by Elite made any observations related to the state of the washroom the security guards were to make arrangements to have any problems addressed either by contacting their superiors and/or the cleaning company.

[16] No evidence was called as to the standard of care that might be expected in a public washroom in a building of comparable size to the condominium.

Expert Evidence – Were the Washroom Tiles Slippery

[17] Both sides called expert evidence as it relates to “slip resistance testing” and whether the tiles on the washroom floor met appropriate government standards.

[18] The thrust of the evidence called on behalf of the plaintiff’s liability expert Andrew Huntley was that the washroom floor was required to conform to the 2017 American National Standards Institute standard A326.3 entitled “American National Standard Test Method for Measuring Dynamic Coefficient of Friction of Hard Surface Flooring Materials” (referred to in these reasons as the American standard). Mr. Huntley offered the opinion that because the washroom floor did not meet a certain wet dynamic coefficient of friction number (a measurement of slipperiness when wet) set out in this American standard, that the washroom floor was unreasonably slippery and dangerous.

[19] In determining if the washroom floor met appropriate government and industry standards context is of some importance. The condominium was constructed between 2011 and 2015. Occupancy began in February 2015. The American standard came into existence in 2018 well after the condominium was built. The tile in the washroom floor is the same as the tiled floor throughout the common entrance areas of the condominium. No evidence was called to suggest that there had been any slip and falls on any of the tiled flooring in the common areas at any time prior to these proceedings.

[20] The design and construction of any building in Ontario will be subject to governing laws and regulations one of which is the Ontario Building Code (the Building Code). No where in the Building Code is there any mention of a requirement for a builder to conform with the American standard. No where in the Building Code is there any mention of a minimum coefficient of friction number that a tiled floor must meet.

[21] While the plaintiff will argue that the condominium should have been constructed with tiled floors that conformed with the American standard it is worth recalling the evidence of Mr. Huntley that conformity with the American standard is voluntary. The construction of a building that conforms with applicable legislation including the Building Code will not automatically absolve the owner/builder of liability in negligence when faced with an occupier’s liability claim. That said, conformity with the Building Code and any other applicable regulatory laws will assist in the determination of whether an occupier may be liable to an injured party under the Occupiers Liability Act.

[22] It is difficult to conceive how the condominium could have tiled floors that conform with the American standard when that standard was not even in existence when the condominium was built. As well, it is worth observing the obvious that the American standard is precisely that, i.e., an American standard not an Ontario nor a Canadian standard. There is nothing in the Building Code that mandates the use of the American standard. In any event, the 2012 ANSI/NFSI standard B101.3 provides that a level surface with a wet dynamic co-efficient of friction (a measurement of slipperiness when wet) of 0.30 to 0.42 has an “acceptable” slip resistance potential. The tiles in the washroom were all measured to be above 0.30; therefore, the washroom floor had an “acceptable” slip resistance according to the 2012 ANSI/NFSI standard B101.3 that existed at the time of the construction of the premises. Such a slip resistance has been accepted in at least one decision of this court.

[23] In the 2019 case of Caron v. Omers Realty Corporation et al., 2019 ONSC 1374, the Ontario Superior Court held that the acceptable range for an indoor floor’s wet dynamic coefficient of friction is 0.30 to 0.42. This is the same acceptable range set out in the 2012 ANSI/NFSI standard B101.3 referenced above and which existed at the time of the construction of the condominium. The washroom floor falls within this acceptable range as the tiles all measured above 0.30.

[24] I do not accept that the tiled washroom floors were inherently unsafe such that if wet the floors would unreasonably create a safety hazard. From the time that the condominium building opened to the public to the date of the plaintiff’s unfortunate injury there is no evidence to suggest that there were any other slip and falls on the tiled floors of the common public areas including that of the washroom.

Causation

[25] The plaintiff who was 61 years of age at the time of her fall was visiting from Iran. She testified that she was going to see a dentist in the condominium and that prior to her appointment she went to the washroom and that she was alone at the time. She stated that she took one or two steps into the washroom and fell. She stated that when she entered the washroom, she did not see any liquid on the floor. It was only after she fell that she realized the floor was wet as her clothes were wet.

[26] The plaintiff was asked in cross-examination if she had been paying attention would she have seen the liquid on the floor. In response to this question the plaintiff testified that “the time was short and I fell on the ground – I fell down very quickly”. On further questioning when she was asked whether she was paying attention would she have seen the liquid on the floor her response was “I don’t know what to say”. She was further asked if she had been paying attention and seen liquid on the floor would she have stepped in it. In response to this question the plaintiff stated, “if there was enough water I would have seen it.” She agreed that if she had seen the water or liquid, she would have walked around it.

[27] The plaintiff acknowledges that the only people who saw the state of the washroom immediately after her fall was herself and the dentist. The court received no explanation as to why the dentist was not called to corroborate the plaintiff’s evidence.

[28] The only other contemporaneous evidence as it relates to how and why the plaintiff fell can be found in the hospital records of the MacKenzie Richmond Hill Hospital (Hospital). The Hospital records reflect that at 6:48 p.m. a nurse took a history from the plaintiff which amongst other things states “was at dentist – slipped on wet floor – fell backwards – slipped – fell with left hand”. Another registered nurse at 7:08 p.m. took the following history, “plaintiff says she fell down and put her left hand out to break her fall”.

Damages

[29] The plaintiff suffered a significant injury to her left distal humerus and left distal radius which required two surgical interventions. The medical evidence consisted of the previously referenced hospital records; the evidence of a psychiatrist Dr. Parekh; and the evidence of Dr. Camazzola an orthopedic surgeon who treated the plaintiff at the hospital and performed the open reduction and internal fixation to the plaintiff’s left distal humerus.

[30] In Dr. Camazzola’s clinical note of October 20, 2021 (which was the last visit that he had with the plaintiff) Dr. Camazzola noted that the plaintiff had some functional limitations and was lacking twenty degrees extension in her left arm. Dr. Camazzola noted some tenderness in the flexor mass of her forearm and that she had some mild tenderness of her wrist. When seen on October 20, 2021 the plaintiff was complaining of some stiffness at her elbow and wrist as well as some numbness in her thumb. Dr. Camazzola noted in his report of October 20, 2021, that the plaintiff had some discomfort and some mild deficits of motion that she would have to learn to live with. Dr. Camazzola explained in his evidence at trial that the plaintiff had reached maximum medical recovery.

[31] No medical evidence was provided to the court with respect to what if any treatment the plaintiff might have undergone in Iran.

[32] Dr. Parekh, who is a psychiatrist, saw the plaintiff at the request of the plaintiff’s lawyer. The evaluation of the plaintiff took place on February 14, 2023. Dr. Parekh was of the opinion that the plaintiff suffered from an adjustment disorder with mixed anxiety and depressed mood and that her psychiatric complaints arose primarily as a result of her injury suffered in the slip and fall.

[33] There is no evidence that the plaintiff has received any kind of psychiatric or psychological treatment in Iran.

[34] The plaintiff in her evidence testified that her local pharmacy in Iran provides her with medication for her depression and anxiety. No records have been produced as to what if any medication has been used by the plaintiff since her accident.

[35] The plaintiff testified that she has difficulty with heavy housekeeping but did acknowledge that she has had the services of a “maid” since prior to her slip and fall who assists her now with heavier duty jobs. The plaintiff also testified that she has the assistance of both her husband and her daughter with respect to housekeeping, but neither were called to provide corroborating evidence.

[36] As it relates to the diagnosis of anxiety and depression the plaintiff testified that she is very severely depressed and anxious but acknowledged in cross-examination that she has never told any doctor about these concerns other than Dr. Parekh who saw her at the request of her lawyers.

[37] No evidence was provided to the court with respect to what if any medical rehabilitation treatment has been provided to the plaintiff in Iran. No evidence was provided to the court with respect to the plaintiff’s future needs both with respect to medical rehabilitation treatment as well as housekeeping assistance. No evidence was provided to the court as it relates to the cost of any such medical rehabilitation treatment and/or housekeeping assistance.

The Law

[38] The plaintiff brings her claim under s. 3 of the Occupiers’ Liability Act R.S.O. 1990, c. O.2 (the Act) which provides as follows:

s. 3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

[39] The claim by the plaintiff and the defence asserted in this case engages s. 6 of the Act which provides:

Liability where independent contractor

s. 6 (1) Where damage to any person or his or her property is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor, if the occupier had taken such steps, if any, as the occupier reasonably ought in order to be satisfied that the contractor was competent and that the work had been properly done, and if it was reasonable that the work performed by the independent contractor should have been undertaken.

[40] The leading case as it relates to occupiers’ liability is a decision of the Supreme Court of Canada in Waldick v. Malcolm, [1991] 2 S.C.R. 456. The Supreme Court affirmed the decisions of the Court of Appeal and the Superior Court of Justice. In that regard Blair J.A. for the Court of Appeal (1989) , 70 O.R. 2nd 717, described the duty of reasonable care at para. 19 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 is reasonable”. The trier of fact in every case must determine what standard of care is reasonable and whether it has been met. Occupiers are also not liable in cases where the risk of injury is “willingly assumed” by persons entering the premises or to the extent that such persons are negligent.

[41] In the Supreme Court of Canada in Waldick, Iacobucci J. at para. 33 stated:

The statutory duty on occupiers is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation – thus the proviso such care is in all the circumstances of the case is reasonable.

[42] The simple fact that the plaintiff in this case ended up falling and suffering a significant injury to her left arm does not in and of itself constitute negligence on the part of the defendants. It is improper to infer that there has been a breach of the standard of care from the fact that there has been an unfortunate and/or unexpected results. As noted by Stinson J. in Conn v. Darcel, 2013 ONSC 5080, at para. 109 “an unfortunate outcome is not proof of negligence.”

[43] The duty imposed on an occupier is not a duty which requires the occupier to maintain a constant surveillance or lookout for potential danger. The duty to take reasonable care imposed on an occupier is met if the occupier has taken measures that are reasonable in the circumstances. See Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302, at para. 31.

[44] In Caron the plaintiff slipped and fell on water found on the floor near the sink in the kitchenette of the plaintiff’s office workplace. The kitchenette was checked and cleaned twice a day (10:00 a.m. and 2:00 p.m.) by a cleaning contractor hired by the defendants. On these facts Roger J., at para. 37, concluded that the defendants had met their positive duty of care to take such care as in all the circumstances was reasonable to see that persons entering their premises were reasonably safe. The plaintiff’s action was dismissed.

[45] Expert evidence was called before Roger J. in Caron. Specifically, the expert evidence was directed with respect to the dynamic coefficient of friction which in layman’s language addresses whether the floor was slippery or not.

[46] At para. 23 of his reasons Roger J. stated

… The more relevant test results showed that the floor’s wet dynamic coefficient of friction (in movement) would fall within an acceptable range (0.37 was the average measurement, with 0.30 to 0.42 considered acceptable). In light of these results, his opinion was that the floor provided sufficient friction for normal use. Dr. Parkinson was a highly qualified, reasonable, and helpful expert.

[47] From the Reasons of Roger J. cited above I infer that Roger J. concluded that the wet coefficient of friction ranging between 0.30 to 0.42 was considered acceptable. Similar evidence was provided to this court.

[48] In Gujral v. Meat and Bread Sandwich Company Ltd., 2022 BCSC 917, Taylor J. stated at para. 79:

Further, I note that the legal authorities are clear that mere wetness on the floor is not sufficient taken alone to prove a hazard for the purposes of the OLA (citations removed). As noted in Fulber, the duty of care does not extend so far as to require the defendant to remove every possibility of danger, and the test is one of reasonableness, not perfection.

[49] The law does not require perfection. The law requires that an occupier takes reasonable steps to ensure the safety of those entering their premises. The law does not require an occupier to act as an insurer to provide against every eventuality.

The Legal Principle Applied

[50] The evidence in this case establishes that there were numerous people who used the washroom after 1:00 p.m. when it was last cleaned and inspected. None of those individuals between 1:00 p.m. and 5:00 p.m. had any difficulty with respect to the condition of the washroom. I reach this conclusion because there was no report of any wetness on the floor nor is there any evidence that anyone slipped and fell prior to the plaintiff’s fall.

[51] In this case I accept the evidence of the security guard Ms. Kaur that when she entered the washroom shortly after 5:00 p.m. and during the course of her four minutes in the washroom she made no observations as it relates to any wetness on the floor. I also accept her evidence that if she had she seen any wetness on the floor she would have taken the appropriate steps to address that situation. The evidence establishes that after Ms. Kaur left the washroom four other individuals entered the washroom prior to the plaintiff. None of those individuals experienced any difficulty with respect to wetness on the floor.

[52] If there was wetness on the floor after the fourth individual left the washroom and prior to the plaintiff’s entry the only explanation for wetness being on the floor is that either the last occupant of the washroom somehow left water on the floor while he or she was washing his or her hands or alternatively the water may somehow have been brought into the washroom by the plaintiff herself.

[53] Plaintiff’s counsel has noted that there was snow on the ground. While there is no evidence that there was any accumulation of precipitation on the entranceway to the condominium or anywhere else in the public areas it is conceivable that the plaintiff herself may have brought water into the washroom.

[54] It simply would have been impossible for anything to have been done after the security guard was in the washroom to have prevented against the accumulation of water on the washroom floor. I accept Ms. Kaur’s evidence that the washroom floor did not have any wetness on the floor when she was there no more than 12 minutes prior to the plaintiff’s fall. Accepting that the plaintiff did slip and fall because of wetness on the floor, that accumulation of wetness occurred sometime between 5:07 p.m. and 5:19 p.m.-and the fall most likely occurred sometime between 5:16 p.m. and 5:19 p.m. Either the fourth person seen leaving the washroom at 5:16 p.m. caused water to accumulate on the floor or the plaintiff herself inadvertently caused the water to accumulate on the floor resulting in her fall. The plaintiff maintains the water was in the immediate area of where she entered the washroom. If that was the case, then it is not unfair to consider why no one else fell on that water other than the plaintiff. We will never know who caused the water to accumulate on the floor, but the floor was dry when Ms. Kaur was in the washroom when she left at 5:07 p.m. On these facts, what happened to the plaintiff was an unfortunate accident; and adopting the words of Stinson J. in Conn, this unfortunate outcome does not amount to negligence. The plaintiff has not met her onus. The action is dismissed.

[55] As it relates to the plaintiff’s damages if I had found liability in this case, I would assess those damages in the amount of $100,000. There is no issue the plaintiff suffered a significant injury that required two surgical interventions and a period of hospitalization. It would have been helpful if the court had been provided with an up-to-date assessment from an orthopaedic specialist. It would also have been helpful to have received contemporaneous medical records from the plaintiff’s treating doctors in Iran. None were provided. It would also have been helpful to have been provided with what costs had been incurred in Iran together with what costs might be incurred in the future as it relates to the plaintiff’s needs for future care and housekeeping. None were provided. In the absence of this kind of evidence the court cannot speculate as to what if any future medical rehabilitation and housekeeping needs the plaintiff might require. I therefore make no assessment for these damages.

[56] I encourage the parties to resolve the issue of costs. If costs cannot be resolved, I will receive written submissions from the parties limited to two pages in length to be received no later than December 30, 2024. If submissions are not received by then the court will assume the issue of costs has been resolved.

[57] If there are any issues arising from these reasons as it relates to the Perringer agreement and insurance issues flowing from that agreement counsel may arrange a case conference with me to discuss those issues and how they may be resolved. Counsel are encouraged to resolve those issues.

Edwards, R.S.J.

Released: November 25, 2024