Court File and Parties

COURT FILE NOS.: CV-18-591642 CV-16-556173 DATE: 20241213

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KELLY BAINBRIDGE Plaintiff – and – 1392396 ONTARIO LIMITED and RAUL OROZCO and MIKHAIL OROZCO Defendants

COUNSEL: Jennifer Ilton, for the Plaintiff

HEARD: December 11 and 12, 2024

BEFORE: Papageorgiou J.

Overview

[1] The plaintiff fell down the stairs of her rental unit when she slipped on snow and ice on the front staircase.

[2] The defendants were her landlords. She commenced this proceeding. The defendants did not defend and were noted in default.

[3] This matter proceeded to an undefended trial before me.

Decision

[4] For the reasons that follow I grant the plaintiff judgment in the amount of $150,000 for general damages, out of pocket expenses in the amount of $635.57, future care costs in the amount of $12,000 plus costs in the amount of $36,058 inclusive of HST on a partial indemnity basis as well as disbursements in the amount of $11,000.80.

The Issues

Issue 1: Was the plaintiff’s fall caused by the defendants’ negligence?
Issue 2: If so, what are the damages to which the plaintiff is entitled?

Analysis

Issue 1: Was the plaintiff’s fall caused by the defendants’ negligence?

[5] Pursuant to r. 19.02, having not defended the proceeding, a defendant is deemed to admit the truth of all allegations of fact made in the Statement of Claim.

[6] Pursuant to the Occupiers Liability Act, R.S.O., 1990, C. 0.2, an occupier owes a duty of care to ensure that persons entering onto premises, are reasonably safe.

[7] In Wilson v 356119 Ontario Ltd., 2023 ONSC 600, from paras 24 to 38, Dolyle J. provided a helpful analysis of cases involving the liability of occupiers in cases of slip and fall. The cases are fact specific, and factors that a court considers in determining whether the occupier fell below the standard of care include the weather, the time of year, the cost of preventative measure, the nature of the property and the quality of footwear worn by the visitor. Occupiers have been found liable for failing to apply salt in a timely and appropriate manner resulting in the creation of ice, and for the failure to remove snow and ice.

[8] I am satisfied that the plaintiff has established that the defendants were “occupiers” within the meaning of the Act. I am also satisfied that they failed to take reasonable care to ensure that the Property was reasonably safe for persons on the Property, based upon the following deemed admissions in the Statement of Claim as well as the testimony of the plaintiff before me:

In or around July 2015, the plaintiff began residing at 1377 King Street (the “Rental Property”) with her four children.
The defendants 1392396 Ontario Limited, Raul Orozco and Mikhail Orozco were at all material times the owners and/or occupiers and/or lessees’ or and had the care, custody and control of and/or were responsible for maintenance and/or management and/or removal of snow and ice and/or salting and/or sanding the Property. They had the responsibility to keep the Property in a reasonable state of repair and were at the Property doing maintenance on a regular basis. At no time was the plaintiff ever requested to do any maintenance of the Property. They were occupiers within the meaning of the Act.
There are 8 steps leading from the wooden porch to the road. The first six steps are wooden.
On February 10, 2016, the plaintiff was walking in a careful and prudent manner on the front stairwell of the Property. Suddenly without warning she slipped on ice and/or obscured ice and/or snow, causing her to fall violently to the ground. She lost control because she slipped on this ice and snow. She was holding her son at the time and fell on her knee into the bottom cement step.
At the time, she was wearing winter boots that had a tread and which did not have a heel.
She had gone up and down these stairs with her child in a similar way many times a day since she moved into the Property, all without incident.
After she fell, she saw that there was a sheet of ice under snow on the stairs.
A passerby called an ambulance and while she waited for the ambulance, she took photographs that support her evidence of the condition of the stairs and the fact that there was snow and ice on them.
The plaintiff gave the defendants written and verbal notice that this incident had occurred and they took steps that day to clear the snow and ice which shows it was not difficult to clear.
The fall was caused as a result of negligence by the defendants and any servants or agents for whom they are liable. There are many deemed admitted particulars that satisfy the test. The main ones are:
- they caused and/or permitted ice and/or obscured ice and/or snow to accumulate on the premises.
- they allowed it to become a hazard or trap to users of the premises, including the plaintiff.
- they knew or ought to have known that there was a hazard or trap consisting of ice and/or obscured ice and/or snow on the premises and they could have and should have removed or prevented same.
- they failed to properly maintain the premises, and in particular, the area where the casualty occurred, when they knew or ought to have known that the failure to do so would result in injury to users of the premises, including the plaintiff.
- they failed to properly, or at all, employ any or reasonable steps to remove ice and/or obscured ice and/or snow from the premises where the casualty occurred; they caused and/or permitted ice and/or obscured ice and/or snow to accumulate on the premises where the casualty occurred.
- they failed to adequately or at all monitor weather conditions on or prior to the date on which the casualty occurred.
- they failed to have due concern for the physical safety of the plaintiff.
- they failed to exercise due care and skill in the management of the area where the casualty occurred.

Issue 2: If so, what are the damages to which the plaintiff is entitled?

[9] Pursuant to r. 19.06 a plaintiff is not entitled to judgment on a motion for judgment or at a trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

[10] Here, the plaintiff testified as to her significant and ongoing injuries in this matter which were also supported by her medical records and by her expert. I found her testimony reliable, credible and believable. She had good recall of the events in question.

The Plaintiff’s Injury as documented by her medical reports and testimony

[11] After the accident, the plaintiff was taken from the Property to the hospital. She had swelling in her knee with limited range of motion. An x-ray showed a lateral tibial plateau fracture. The physician on call recommended surgery to place a metal plate and screws into her leg, which surgery was conducted by an orthopedic surgeon, Dr. George Vincent, on February 12, 2016.

[12] The plaintiff’s injury and operation was serious enough that she remained in hospital until February 19, 2016. She was discharged wearing a large plaster cast and had to use a wheelchair and crutches because she could not put weight on her leg.

[13] For many years, her knee throbbed and she had difficulty walking or standing for any extended periods of time. She also had the feeling of pins and needles in her leg.

[14] On February 27, 2019, she had a second surgery to remove the plate and screws as it was thought this could improve her pain. The surgery did improve her pain somewhat but she still had difficulty walking and still used a cane. She would have a sharp pain in her meniscus that would come out of nowhere, and her leg would also swell up and hurt all over at times.

[15] Her family physician then arranged an MRI that occurred on December 4, 2020, which showed the following:

Complex tear of the lateral meniscus.
Complete tear of the lateral collateral ligament.
Partial tear of the anterior cruciate ligament.
Anterior bowing/laxity of the patellar ligament, which is suspicious for injury, possibly remote, with superior subluxation of the patgila.
Severe degenerative changes involving the lateral compartment and moderate degenerative changes in the patellofemoral compartment.
Moderate joint effusion with a couple possible loose bodies.

[16] Her final appointment with her orthopedic surgeon, Dr. Vincent was on August 12, 2021. She was five years post the accident, and her knee was swelling and throbbing. He could not offer her any solutions.

[17] She did not schedule any follow up visits or see Dr. Vincent again because her physicians told her that her knee had healed as best it could. She understood that she would have to deal with the pain and live with it, which is what she has tried to do.

The Impact on the Plaintiff’s Life and Daily Living

[18] The plaintiff continues to have significant pain to this day. She tried many different pain medications, attended physiotherapy and had a cortisone injection, but her pain continues.

[19] There is a long visible scar running down her leg from her knee. She is embarrassed and tries to hide her scar. It also hurts.

[20] She continues to use cannabis for the pain.

[21] She has difficulty going up and down stairs. She can only go up or down, one step at a time.

[22] She cannot bend her knee very well. As a result, she never squats to pick things up but bends over which she knows is bad for her back, but she must do this because of the pain she experiences when she bends her knee.

[23] She still uses a cane at times when her pain is extreme.

[24] She was unable to keep up with her parental responsibilities. During these years, her children wanted to go out but she could not supervise them and they had to stay home. She is still limited in recreational activities that she can do with her children. She is concerned because her youngest child is 9 years old and he will need her to be more active but she has difficulty.

[25] As well, in the early days of her injury, the medication gave her mood swings and this also affected her relationship with her children.

[26] She can no longer have intimate encounters because of pain and because of her feelings of being ugly.

Expert Report

[27] The plaintiff obtained an expert opinion from Dr. Rick Zarnett, an orthopaedic and Arthroscopic Surgeon which was admitted pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E 23. His opinion, dated January 23, 2017, is:

Ms. Bainbridge suffered a comminuted intra-articular fracture. There has been permanent and irreversible damage to the articular surface of the knee. Ms. Bainbridge is therefore at risk of developing arthritis in the future.

[28] He also opines that in all probabilities she will have some permanent level of impairment and that she could need further surgery in the form of arthroscopy or knee replacement. He reviewed literature that showed that individuals with the type of injury the plaintiff had a 5.3 time increase in the likelihood of such surgery compared to individuals in the general population.

[29] Because it is not recent, I give it much less weight, but the note does suggest that she is at risk of future surgery which I do accept. I do not that most of what Dr. Zarnett predicted in his report did occur in the plaintiff’s case.

Causation

[30] A defendant is liable for any injuries caused or contributed to by his or her negligence: This test will be satisfied where it is shown that the injury would not have occurred but for the negligence of the defendant, or that it is a material cause of the injury: Athey v. Leonati at paras 13 to 15.

[31] The plaintiff had no pre-existing conditions at the time of the incident. She was active and in good health. She had just had a baby ten months ago.

[32] As well, the plaintiff had no accidents after this incident that could have caused her damages.

[33] I am satisfied that the proximate and material cause of the plaintiff’s injuries is the defendants’ negligence. Her injuries would not have occurred but for the defendant’s negligence which caused her fall on February 10, 2016.

Contributory Negligence

[34] I do find any basis for a finding that the plaintiff was contributorily negligent. She had walked up and down these steps several times a day for many months in the exact same way she did on the day in question, without incident. She was also wearing shoes with a tread. Moreover, because the defendants did not defend, her pleading that she was being prudent is deemed admitted.

Quantification of Damages

[35] The plaintiff claims general damages, past out of pocket expenses and future care costs for future expenses.

[36] The plaintiff referenced a significant body of caselaw which shows that orthopedic injuries involving the tibia are serious. The cases referenced show a range of damages from $115,000 to $175,000: Beardwood v. the City of Hamilton, 2022 ONSC 4030; Maceachern v. TFG Inc., 2018 ONSC 242; Klurfeld v. Nova Quest Logistics Inc., et al, 2014 ONSC 1538; Iacolucci v. Fernbrook Homes (Brooklin) Ltd., 2006 CarswellOnt 9398. The plaintiff’s injuries are similar to the injuries in these cases.

[37] Based upon the nature of the plaintiff’s injury, her period of recovery, her ongoing challenges and the nature of her now permanent disability and pain, I assess the plaintiff’s general damages in all the circumstances at $150,000.

Out of Pocket Expenses

[38] She incurred expenses for her wheelchair in the amount of $288.40 and for medical marijuana in the amount of $347.17. I award these amounts.

Future Care Costs

[39] In order to establish future pecuniary losses, a plaintiff must show a real and substantial possibility of a risk of future losses. This does not need to be proven on a balance of probabilities but mere speculation will be insufficient: Butler v. Royal Victoria Hospital, 2017 ONSC 2792 at para 197 citing Athey v. Leonati at para 27.

[40] The only drug that the plaintiff found assisted her pain is cannabis and she has been using it since 2017. The receipts that she provided show that she will continue to spend approximately $400 per year for the next 30 years which equates to $12,000.

[41] I find that she has shown a real and substantial possibility that she will continue to need to use cannabis and award this amount for future care costs.

Costs

[42] The plaintiff requests costs on a substantial indemnity basis in the amount of $54,086 or in the alternative $36,058 on a partial indemnity basis as well as disbursements in the amount of $11,000.80.

[43] Pursuant to s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, costs are in the discretion of the court. Rule 57 of the Rules of Civil Procedure sets out the factors which courts should have regard to when awarding costs. The overall objective is “to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”: Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4; Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at para. 26; Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722, 100 O.R. (3d) 66, at para. 52; and G.C. v. Ontario (Attorney General), 2014 ONSC 1191, at para. 5.

[44] The court has the discretion to award substantial indemnity costs, but such costs are “rare and exceptional” and only warranted where there has been reprehensible, scandalous or outrageous conduct on the part of a party: see DUCA Financial Services Credit Union Ltd. v. Bozzo, 2010 ONSC 4601, at para. 5; Foulis v. Robinson (1978), 21 O.R. (2d) 769 (C.A.); and most recently Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.

[45] The fact that the defendants did not defend and that the plaintiff had to proceed to an undefended trial does not satisfy the test for substantial indemnity costs.

[46] I award the plaintiff her partial indemnity costs and her disbursements in full. She has provided a detailed Bill of Costs. The hours charged as well as the rates are all fair and reasonable and the overall award is within the reasonable contemplation of the defendants.

Conclusion

[47] Therefore, I award the plaintiff $150,000 in general damages, $635.57 in out-of-pocket expenses and $11,000 for future care costs as well as $36,058 on a partial indemnity basis as well as disbursements in the amount of $11,000.80.

[48] The prejudgment rate of 5 % shall apply to the general damage award and post judgment interest at the rate in the Courts of Justice Act shall apply.

Papageorgiou J. Released: December 13, 2024

Reasons for Judgment

ONTARIO SUPERIOR COURT OF JUSTICE