Crews v. Tres Hermanas Inc., 2026 ONSC 2870
CITATION: Crews v. Tres Hermanas Inc., 2026 ONSC 2870
COURT FILE NO.: CV-20-00000037
DATE: 20260515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Renate Crews
Plaintiff
– and –
Tres Hermanas Inc.
Defendant
M. Blois, for the Plaintiff
HEARD: May 11,14,15 2026
MILLER J.
[1] The Plaintiff Renate Crews filed a Statement of Claim against the Defendant Tres Hermanas Inc. in respect of a personal injury she alleges occurred June 8, 2019 at the property owned by the Defendant.
[2] On May 11, 2026 Ms Crews brought a motion to strike the Defendant’s pleadings. The motion was granted. The Defendant’s pleadings and jury notice were struck. The result was a noting of the Defendant in default as per Rule 19.02 and liability in this case is therefore deemed to have been proven in accordance with the Plaintiff’s Statement of Claim. It remains only for the Plaintiff to prove her damages.
Evidence
[3] Certain aspects of the Statement of Claim are deemed to be proven in support of the claim made by Ms Crews: Renate Crews is the Plaintiff in this action and she, at the time of the incident resided in the Town of Tottenham, in the Province of Ontario; she was an invited guest of a tenant who resided at the Defendant’s property on June 8, 2019; Tres Hermanas Inc., the Defendant in this action, is an Ontario corporation carrying on business at the premises municipally known as 5632 8th Line, Egbert, ON L0L 1N0 (the “Premises”). It was, at all material times, an owner and/or occupier of the Premises.
[4] Other aspects of the Statement of Claim which have no factual basis to support them I find are NOT proven, particularly those which refer to ice and snow on a public walkway.
[5] Renate Crews testified that she attended at the Defendant’s Premises at the invitation of the tenant Gord Bodley. As she went to leave the Premises she walked down the steps of a newly installed deck and one of the steps, which was not secured to the deck, flipped up causing her to fall down on the ground to the right of the steps. Ms Crews testified that her right wrist took the brunt of her fall. Her wrist was injured and Mr. Bodley immediately helped her into his vehicle and took her to hospital in Alliston.
[6] Ms Crews testified that upon attending the hospital she was triaged, sent for x-rays and her wrist was put into a cast. On August 2, 2019 Ms Crews attended at the fracture clinic to consult with the orthopaedic specialist there, Dr. Singer. Ms Crews was very concerned as the wrist was very swollen still and she had a burning sensation in her hand. The wrist itself was still painful. Ms Crews testified that Dr. Singer told her she had symptoms of complex regional pain syndrome which could spread to other parts of her body.
[7] Ms Crews testified that her dominant hand is her right hand but that she has been unable to use it in the same way since the injury. She described the long term effects of the injury as her right hand being red and swollen as a result of movement that it also starts to stiffen up. She described the pain as not necessarily constant but with use or overuse it “acts up” and becomes red. She identified photographs she had taken of her left and right hands to show the difference – the right hand appears red and swollen in the photograph.
[8] Ms Crews described the steps she has taken since the injury in order to adapt to the long term effects. She described favouring using her left hand over her right hand so as not to aggravate the situation. Ms Crews testified that when rested for example after sleep the pain is relatively calm but that during the day performing basic things like feeding her animals, washing dishes, and brushing teeth the hand flares up and is red, swollen, painful and sweaty. When the pain gets very bad she takes prescribed narcotic painkiller but is cautious about doing so. As a result she is relegated to doing her daily tasks with one hand – she described using her left hand for laundry and carrying groceries and using her right shoulder and elbow to hang on. She continued to wear a splint on her wrist and adapted her riding lawnmower to that she could operate the gears by attaching the splint to the gear shifter.
[9] Ms Crews testified that for a few months following the injury she had help from friends doing things like cutting grass but eventually she had to adapt to doing basic things for herself. Ms Crews testified that she went to physiotherapy from August 2019 through October 2019 as that treatment was covered by OHIP. She found that the physiotherapy helped, increasing her range of motion, although not her strength or level of pain, and she testified about diligently doing the exercises she was prescribed by the physiotherapist. Ms Crews testified that she would continue physiotherapy but could not afford to do so.
[10] Eventually Ms Crews was referred by Dr. Singer to Dr. Tuli, an orthopaedic surgeon, who recommended further surgery on the injured wrist. In February 2023 Ms Crews underwent the recommended surgery in which a piece of bone was removed from her hip and placed into the wrist. A protruding wrist bone was also operated on so that it protruded less.
[11] Ms Crews testified that since that corrective surgery her wrist is much improved and she can write again however it but it is still slightly skewed. She testified that she does not have the grip strength she used to have before the injury. During tasks like vacuuming she has to have to stop take a break – the injury continues affecting her grip and the duration of any activity requiring gripping. In addition she cannot do any heavy lifting and must ask for help to carry, for example, a bag of dog food. She cannot do any shovelling and relies on a kind neighbour to do it for her.
[12] Ms Crews testified that while before her injury she did all the maintenance inside an outside her home on a five acres of property. She earned income as a certified dog groomer. She testified that the garage at her home had been modified in 2003 so that she could operate her business from her home. She produced income information showing that from dog grooming in 2009 she earned $23,294; in 2010 $24,807 and in 2011 $24,139. Ms Crews testified that after that she had some difficulties in her personal life which impacted her business. She testified that in the years before her injury – 2016-2019 she earned approximately $8,000 per year from dog grooming.
[13] Ms Crews described the task involved in dog grooming, including lifting the animals into and out of a tub and on to and off a grooming table. She described the manual dexterity and stamina required to “demat” a dog, the brushing and clipping. She testified that since the injury she has difficulty handling the clippers which weigh only 1.5- 2 pounds or holding them for any length of time. She testified that she only grooms her own small dogs and for certain former clients for special occasions. She testified that a grooming job that used to take her 1.5 hours now takes half a day and she could not handle more than one dog per day. It is not financially viable for her to return to dog grooming.
[14] Ms Crews testified that following the injury she was unable to immediately return to the gym which was an important part of her wellness. She persisted and continued at the gym doing exercises involving only her legs. She could not ride a motorcycle with a cast or splint but has acquired an adaptor which now permits her to ride and shift gears even with the limited mobility on her right hand. She can do limited gardening but has had to give up on vegetable gardening as the equipment is too heavy.
Analysis
[15] Ms Crews claimed damages in the amount of one million dollars ($1,000,000.00); her costs of this action and pre-judgment interest in accordance with the Courts of Justice Act.
[16] Before me Ms Crews sought damages totalling $280,000 comprised of general damages in the amount of $175,000; loss of income from the time of the injury to today in the amount of $56,000; future loss of income between today and when MS Crews attains the age of 75 in the amount of $28,000; assistance in housekeeping in the amount of $4,200 and future care costs in the amount of $16,800. There is a separate OHIP subrogation claim in the amount of $14,594.84.
[17] Ms Crews relies on her assertion that the Defendant owed her a duty to ensure that the Premises was reasonably safe for invitees and that the Defendant corporation failed to do so. Ms Crews pleads and relies upon the Occupiers’ Liability Act.
[18] The Occupiers’ Liability Act R.S.O. 1990, c. O.2 provides that:
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.
[19] The Act further provides that:
8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
[20] In Ontario there is a legal duty imposed by the Occupiers’ Liability Act, on defendants who are in possession or control of premises to a person who comes onto those premises. Occupiers include the owners or tenants of a property. The act defines an occupier as follows:
“occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises.
[21] I find that the Defendant corporation in this case was an occupier according to the statute. As I have found that the Defendant corporation was the occupier of the Premises on which the Plaintiff says she was injured on June 8, 2019, as a matter of law, the Defendant corporation owed a duty of care to the Plaintiff.
[22] I find that the Defendant corporation was required to take all steps that were “reasonably necessary” to ensure that the Plaintiff was “reasonably safe” on its property. The law requires the Defendant to have been proactive about making their premises reasonably safe for the people that used them. The standard of reasonableness requires neither perfection nor unrealistic or impractical precautions against unknown risks. However, occupiers are duty-bound to take such care as in all the circumstances of the case is reasonable.
[23] I find, on a balance of probabilities, that the Defendant corporation failed in that duty of care to Ms Crews by installing the step(s) or permitting the step(s) to be installed, in such a manner that the step(s) were not secured to the deck creating an entirely foreseeable risk that the step would tilt in the manner described by Ms Crews and the danger of injury to any person using the steps.
[24] I find that Ms Crews was an invitee to the Premises; not trespassing; and therefore the Defendant corporation is liable for damages resulting from the injury suffered by Ms Crews caused by the failure of the Defendant corporation to meet that duty of care.
[25] In assessing the evidence I note that Ms Crews was shown photographs of the residence and deck in question. These photographs were date stamped October 23, 2019. Ms Crews identified the residence and the deck but testified that the single unsecured wooden step which appears in the photographs was not the one she fell from. She testified that there were two unsecured wooden steps at the time of her fall. She testified that the two wooden steps leading from the deck were unsecured in the same manner as the one in the photographs.
[26] I have some doubt as to whether Ms Crews’ memory is reliable in this respect for several reasons. I find that it is unlikely that following her fall and injury that anyone – either the Defendant corporation occupier or the tenant occupier – would have changed the step but left it unsecured and unstable in the same manner that Ms Crews asserts was the case at the time of her fall June 8, 2019. Further, the single step portrayed in the photographs appears to be constructed of the same wood and of the same age as the wood on the deck as it appears in the photographs. I am therefore left with a doubt as to whether there were two steps as Ms Crews remembers or only one step as portrayed in the October 23, 2019 photographs. However, I find that this uncertainty is immaterial, as in either case I find that the step or steps were unreasonably unsafely unsecured to the deck, creating an obvious risk of injury to any user.
[27] In all other respects I found Ms Crews to be a reliable and credible witness. She did not embellish her testimony and was proud both of the adaptations she had fashioned and the degree of recovery from her injury she had accomplished through treatment and her own diligence in performing the physiotherapy exercises. She did not exaggerate her injury or its effects but, I find, had taken all reasonable steps to mitigate the effects of the injury on her ability earn income and to perform daily tasks of housekeeping. She also took extraordinary steps to return to such activities as she has been able.
[28] Nonetheless it is clear that the injury to Ms Crews’ right wrist, her dominant hand, has had a devastating effect both in the immediate aftermath of the injury and on a longer term basis. I am satisfied on the evidence before me that it is unlikely, even with future physiotherapy which may ameliorate the debilitating repercussions of the injury, that Ms Crews will ever be able to return to the degree of health and well-being she enjoyed before the injury.
[29] Counsel provided the case of Tenhunen v. Tenhunen, 2015 BCSC 26 with respect to degree of liability, the factual basis being quite similar. In that case the Court apportioned liability 50% to the plaintiff and 50% to the defendant on the basis that the plaintiff was residing at the premises and had used the ramp in question many times before her fall. The Court found that on the occasion when she fell, the plaintiff failed to take reasonable care for her own safety in choosing to forego the increased safety of a handrail.
[30] In this case I find that the Plaintiff, Renate Crews was taking complete reasonable care for her own safety, as she was only visiting the Premises, she was not distracted in any way, was not holding anything, and did not have the option of utilizing handrails (since they were entirely absent from the construction of the step(s)) to prevent her from falling.
[31] In the circumstances of this case it would not be appropriate to apportion any part of liability to Ms Crews who was entirely victim to the Plaintiff corporation’s failure to meet its duty of care. I find the Defendant corporation to be 100% liable for the damages suffered by Ms Crews.
[32] I have also reviewed the cases relied on by counsel in their submissions on damages together with arithmetical calculations as to adjustments for inflation.
[33] Counsel specifically relied on Bisoukis v. Brampton (City) 1999 3825 (ON CA), [1999] O.J. No. 4598 (C.A.) (leave to appeal to the SCC dismissed) in which the Ontario Court of Appeal upheld a general damages award of $75,000 where the plaintiff had suffered a compound fracture of her right distal ulna, a major laceration of her right forearm and soft tissue injuries.
[34] Counsel further relied on Sorrenti v. Blair, 2013 ONSC 2584 in which damages for a fractured humerus were assessed at between $50,000-$60,000 (aggravated and increased to $75,000 by the circumstances of intimate partner violence).
[35] Counsel also relied on Tarrington v. Havcare Investments Inc., 2021 ONSC 2175 a more recent decision with facts not dissimilar to the case before the Court, in which the plaintiff had to undergo further surgeries and nonetheless had a permanent and serious impairment. The general damages award in that case was $150,000.
[36] Considering the serious nature of the injury, the need for corrective surgery some 2.5 years after the initial break and the ongoing debilitative effects of the injury on Ms Crews’ daily life and occupation I am satisfied that an award of $175,000 in general damages (adjusting the precedent amounts for inflation) is appropriate.
[37] Given Ms Crews’ modest claim for loss of income on annual basis in the amount of $8,000 from the date of the injury to today and future loss of income to Ms Crews’ 75th birthday, I am satisfied that loss of income from the time of the injury to today in the amount of $56,000 and future loss of income to when Ms Crews attains the age of 75 in the amount of $28,000 has been proven.
[38] I am further satisfied that Ms Crews has established her need for assistance in housekeeping and that $4,200 for future housekeeping is a reasonable amount. I am additionally satisfied that Ms Crews would benefit from physiotherapy going forward, based on her history of a modest improvement in her abilities by compliance with physiotherapy treatment and advice and that the requested amount of future physiotherapy care of $16,800 is reasonable.
[39] I am also satisfied on the basis for the separate OHIP subrogation claim in the amount of $14,594.84.
Conclusion
[40] I am satisfied that Renate Crews has proven her claim for damages totalling $280,000 comprised of general damages in the amount of $175,000; loss of income from the time of the injury to today in the amount of $56,000; future loss of income between today and when Ms Crews attains the age of 75 in the amount of $28,000; assistance in housekeeping in the amount of $4,200 and future care costs in the amount of $16,800. There will be an order awarding her those amounts.
[41] There will be an order for payment of the separate OHIP subrogation claim in the amount of $14,594.84.
[42] There will be an order for prejudgment interest in accordance with the Courts of Justice Act in the amount of $24,269.86 and post judgment interest in accordance with the Courts of Justice Act.
Costs
[43] Rule 57.01 of the Rules of Civil Procedure provides that in awarding costs a court should consider, amongst other things, the complexity of the proceeding; the importance of the issues; the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding; and, whether any step in the proceeding was improper, vexatious or unnecessary as well as any other matter relevant to the question of costs.
[44] I have reviewed the Bill of Costs submitted by counsel for Ms Crews. I find the legal costs incurred to be proportionate and reasonable to the circumstances of the case. I have further reviewed the disbursements and find they are also reasonable given the progression of this case.
[45] Given the conduct of the Defendant corporation in this case in unnecessarily lengthening the time for this case to get to trial, I find it is appropriate, in addition to the order for costs thrown away in the amount of $17,000 made by LeMay J. on May 1, 2026, that legal costs be awarded on a substantial indemnity basis.
[46] The legal costs incurred, on a substantial indemnity basis, including HST amount to $76,127.38. Deducting from that amount the $17,000 order for costs thrown away already made, I order the Defendant corporation to pay the Plaintiff’s legal costs in the amount of $59,127.38 including HST, plus disbursements in the amount of $8,598.24 for a total costs award, payable forthwith, in the amount of $67,725.62.
MILLER J.
Released: May 15, 2026
CITATION: Crews v. Tres Hermanas Inc., 2026 ONSC 2870
COURT FILE NO.: CV-20-00000037
DATE: 20260515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Renate Crews
Plaintiff
– and –
Tres Hermanas Inc.
Defendant
REASONS FOR JUDGMENT
MILLER J.
Released: May 15, 2026