Trial Judge did not Err, Appeal is Dismissed - Tondat and Hudson's Bay Company, 2018 ONCA 302

April 03, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Tondat and Hudson’s Bay Company, 2018 ONCA 302

Date of Decision: March 27, 2018
Heard Before:  Gloria Epstein J.A., K. van Rensburg J.A., and David Brown J.A.

On Appeal from the judgment of Justice Irving W. André of the Superior Court of Justice, dated May 26, 2017, with reasons reported at 2017 ONSC 3226.

REASONS FOR DECISION

On a wet day shortly before Christmas, Sandra Tondat slipped and fell entering The Bay, fracturing her kneecap. The maintenance services were contracted to the second appellant, Quinterra Property Management Inc.

Ms. Tondat’s fall occurred after she had walked into the vestibule when she walked across a floor mat, stepped onto the tile floor, and slipped and fell. The parties agreed on the quantum of damages and the trial was limited to the question of liability.

The trial judge concluded that the floor where Ms. Tondat fell was wet, and that this was the cause of her fall. He accepted that there was no evidence of any safety system in place at the store to abate the risk of a fall, any effective inspection or maintenance system, or that the existing maintenance system was adjusted to account for adverse weather conditions. He was not persuaded the Bay’s expert in the analysis of slip and fall accidents, that the tile flooring where the fall occurred had a superior coefficient of friction when wet, such that the flooring was reasonably safe whether wet or dry.

On appeal, the Bay accepted the trial judge’s findings that a wet floor caused Ms. Tondat’s fall, and that they lacked an effective inspection or maintenance system. Their main argument is that the trial judge failed to require Ms. Tondat to prove that the wet floor “created an unreasonable risk of harm”, before he turned his focus to the measures adopted by the Bay to make the premises safe.

The Occupiers’ Liability Act provides that “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…are reasonably safe while on the premises”. The statute imposes an affirmative duty requiring occupiers to take reasonable care in the circumstances to make their premises safe. The factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation: Waldick v. Malcolm, [1991] 2 S.C.R. 456, at 472.

The plaintiff in an occupiers’ liability case has the onus to prove that some act or failure to act on the part of the occupier caused her injury. The Bay argues that the plaintiff must then establish that what caused the injury was some specific, objectively unreasonable risk of harm. The Bay contends that the trial judge failed to identify any such risk of harm.

The Court of Appeal disagreed. The trial judge’s reasons disclose that he conducted the inquiry required by s. 3(1) of the Act. Once he determined that the cause of Ms. Tondat’s fall was the wet floor, the question remaining was whether the Bay in all the circumstances had taken reasonable care to prevent a fall on a wet floor. As the principal safety measure the Bay relied on was the installation of what their expert said was safe tiling, the essence of the Bay’ complaint in this appeal is that the trial judge erred in the assessment of the expert evidence.

First, the Bay accepted that it was open to the trial judge to reject the expert evidence. As such, there is no merit to their argument that Ms. Tondat was obliged to call her own expert witness to prove the floor was inherently slippery or to contradict the evidence about the slipperiness of the flooring when wet or dry.

Second, and contrary to the Bay’s submission, the expert did not provide an opinion that the floor tiles were safe to walk on under any and all conditions, whether dry or wet. Rather about tests he had run “in a highly controlled way”, that he admitted did not take into account other factors that could affect the coefficient of friction of the floor tiles. The trial judge reasonably concluded that there were “too many variables to conclude that the floor was inherently safe irrespective of the weather conditions, the wetness of the floor, the nature of the person’s footwear or the presence of any oily or greasy substance on the floor”.

The Court of Appeal disagreed with the Bay’s argument that the trial judge relied on irrelevant factors in rejecting the expert’s evidence. The trial judge reasonably concluded that the expert, during his testing, had not replicated the conditions typical of the entrance to a busy department store on a rainy day and for this reason he discounted the expert’s evidence on the question of whether the floor was slippery.

The Bay has failed to demonstrate any palpable and overriding error in the trial judge’s reasons for concluding that they were liable in negligence for Ms. Tondat’s accident. And, contrary to the Bay’ argument, the trial judge did not impose a standard of perfection, or any standard other than reasonableness for the discharge of their responsibilities under the Act. The trial judge’s reasons for judgment, including his findings of fact, his treatment of the expert evidence and his discussion and application of the applicable law, are clear and thorough, and reveal no error.

Finally, the Bay asserted that the trial judge erred by failing to consider the question of contributory negligence. This submission, for good reason, was not pressed in oral argument. In his reasons for judgment, the trial judge considered the evidence of Ms. Tondat’s condition, her conduct and footwear, before he concluded that her fall was caused by the water on the floor. Any suggestion that she fell because she was not keeping a proper lookout is speculative, and not supported by the evidence.

The appeal is therefore dismissed. Ms. Tondat is entitled to her costs fixed in the agreed and all-inclusive amount of $15,000.

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