


COURT OF APPEAL FOR ONTARIO

Musselman v. 875667 Ontario Inc. (Cities
    Bistro), 2012 ONCA 41
DATE: 20120124
DOCKET: C52502
Doherty, LaForme and Hoy JJ.A.
BETWEEN
Gloria Musselman, V. Gerald Musselman, Karey
    Musselman, Carolyn Musselman, Mark Musselman, Leanna Wigboldus by her
    Litigation Guardian Carolyn Musselman and Lucas Musselman by his Litigation
    Guardian Mark Musselman
Plaintiffs (Appellants)
and
875667 Ontario Inc. carrying on business as
    Cities Bistro, BDO Dunwoody Limited, Trustee in Bankruptcy, the Corporation of
    the City of Toronto, Ida Dominelli, Minas Tzortzis, Stella Tzortzis and Fred
    Dominelli
Defendants (Respondents)
Jerome R. Morse and John J. Adair, for the plaintiffs
    (appellants)
Louis A. Frapporti and P. Kennedy, for the defendants
    (respondents), Dominelli
Heard:  January 18, 2012
On appeal from the judgment of Justice R.D. Reilly of the
    Superior Court of Justice, dated June 1, 2010.
ENDORSEMENT
[1]

The appellant slipped and fell on the stairs leading from the
    restrooms to the main floor of the restaurant.  She suffered catastrophic
    injuries.  As analyzed by the trial judge, the outcome of this case turned
    largely on whether the respondent (owner/landlord) was an occupier of the
    rented premises within the definition of occupier in the
Occupiers
    Liability Act
, R.S.O. 1990, c. O.2 (the 
Act
).
[2]

The trial judge dealt at length with the applicable law and the
    relevant evidence (paras. 171-188).  As we apprehend the submissions, the
    challenge on appeal is not to the trial judges legal interpretation of occupier,
    but to his treatment of the relevant evidence.
[3]

Counsel for the appellant submits that the trial judge
    misapprehended three parts of the evidence.  Two of the misapprehensions relate
    to the substance of the evidence of the tenant, Brian Heasman.  The appellant
    submits that properly understood, Mr. Heasmans evidence established that the
    respondent had the necessary responsibility for and control over the premises
    to make him an occupier under the
Act
.
[4]

Counsel for the appellant also submits that the trial judge
    misapprehended the terms of the operative lease and, in particular, the meaning
    of clause 6 in that lease.  Counsel contends, that properly understood, that
    term placed inspection and repair responsibilities on the respondent thereby
    giving the respondent sufficient control and responsibility over the premise to
    make him an occupier under the
Act
.
[5]

We can address the two alleged misapprehensions of Mr. Heasmans
    evidence together.  At para. 183 of his reasons, the trial judge indicated that
    there was no evidence that he [the respondent] ever used the basement
    washrooms or descended the stairs.  At para. 186, the trial judge found that
    Mr. Heasman testified that the respondent was responsible for the exterior walls
    and roof of the building and Mr. Heasman was responsible for everything inside
    the premises.
[6]

We have examined the extracts from Mr. Heasmans evidence relied
    on by counsel in support of these submissions.  We have also considered the
    other parts of Mr. Heasmans evidence put forward by counsel for the
    respondent.  In our assessment, the trial judges interpretation of Mr.
    Heasmans evidence was reasonably available on the entirety of his evidence. 
    At its highest, the appellants submissions demonstrate that certain of the
    extracts are capable of bearing a different interpretation.  That is not enough
    to find a misapprehension of the evidence warranting appellate interference.
[7]

The trial judges findings with respect to para. 6 of the lease
    appear at paras. 182 and 186 of his reasons.  At para. 182, he said:
Pursuant to paragraph 6 of the lease, Mr. Heasman had complete
    responsibility for repair and maintenance of the premises.
[8]

We think the trial judge correctly interpreted para. 6 of the
    lease.  He engaged in a careful and detailed analysis of many provisions of the
    lease, beginning with para. 4, which declared the lease to be a completely
    carefree net lease for the landlord.  Having regard to the entirety of the
    lease, we think the trial judge was correct in finding that para. 6 put
    complete responsibility on the tenant for repair and maintenance.  We accept
    counsel for the respondents submission that the exclusion of wear and tear
    from the tenants responsibility to maintain and repair does not place any
    obligation on the landlord to repair or inspect the property.
[9]

We would add that the trial judges finding that the respondent
    was not an occupier was based on his assessment of the entirety of the
    circumstances.  While the lease figured prominently in that analysis, the lease
    alone, much less one clause from the lease, was not determinative.  The conduct
    of the parties over the many years in which they were in a landlord/tenant
    relationship was also a significant consideration in determining whether the
    respondent was an occupier.  On the trial judges view of that conduct, it did
    not support the contention that the respondent had the necessary responsibility
    for or control of the premise to fall within the meaning of occupier under
    the
Act
.
[10]

We see no basis upon which to interfere with the trial judges
    finding of fact that the respondent was not an occupier.  He could not,
    therefore, be liable under s. 3 of the
Act
for the appellants most
    unfortunate injuries.
[11]

We add two further observations.  As we understood counsel for
    the appellant, the appellant does not rely on s. 8 of the
Occupiers
    Liability Act
.  In any event, as found by the trial judge (para. 187), we
    do not think s. 8 has any application.  However, if it does, then the exemption
    under s. 8(2) should operate to protect this respondent from any liability
    under s. 8.
[12]

Finally, counsel in his factum argued that the respondent could
    be liable in negligence apart from any liability in negligence as an occupier. 
    Counsel did not make any oral argument in support of this submission and we see
    no basis on this record for a finding of negligence against the respondent if,
    as found by the trial judge, the respondent was not an occupier within the
    meaning of the
Act
.
[13]

The appeal is dismissed.  As agreed to by the parties, the
    respondent is entitled to costs of the appeal in the amount of $25,000,
    inclusive of disbursements and relevant taxes.
Doherty J.A.
H.S. LaForme J.A.
Alexandra Hoy J.A.