



COURT OF APPEAL FOR ONTARIO

CITATION: Hashemi-Sabet Estate v. Mazzulla, 2016 ONCA 273

DATE: 20160415

DOCKET: C60893

Weiler, Cronk and Benotto JJ.A.

BETWEEN

The Estate
    of Abdolrahim Hashemi-Sabet, By his
    Estate Trustee and Executrix Savitri Maharaj, Savitri
    Maharaj, Fatima Hashemi-Sabet by her Litigation  Guardian
    Savitri Maharaj, and Farah Hashemi-Sabet by her  Litigation
    Guardian Savitri Maharaj

Plaintiffs (Appellants)

and

Giuseppe Mazzulla and Christine Gavine

Defendants (Respondents)

Alfred Schorr, for the appellants

Alan L. Rachlin and Emily Casey, for the respondents

Heard: April 12, 2016

On appeal from the judgment of Justice M.L. Edwards of
    the Superior Court of Justice, dated June 19, 2015.

By the Court:

[1]

The deceased  who could not swim  drowned on Lake Simcoe while he and
    his family were visiting the respondents cottage. His estate and the surviving
    family members brought an action alleging negligence on the part of the
    respondents for failing to warn the deceased of the dangers of going into the
    lake; failing to provide him with a life jacket; failing to stop him from going
    to the lake; and failing to supervise him. The action was dismissed on a
    summary judgment motion. The estate and the family members appeal.

[2]

At the conclusion of oral argument on behalf of the appellants, the
    court dismissed the appeal with reasons to follow. These are those reasons.

Facts

[3]

The respondent Giuseppe Mazzulla owns a cottage near Lake Simcoe;
    Christine Gavine is his wife. The respondents were friends with the deceased
    and his family and had entertained them at their cottage. The cottage was not
    on the lake. There were other properties between their cottage and the lake.

[4]

On August 16, 2010, the deceased, his common law spouse and her daughter
    visited the respondents. On at least one previous visit, the deceased had gone
    to the lake and waded in the water without a life jacket. This time, while the
    others were having lunch, he left the cottage to walk to the lake. He did not
    ask for a life jacket, nor did anyone suggest to him that he should take a life
    jacket. He changed into a swim suit and took an inflatable ring that he had brought
    with him. His wifes daughter, then 10 years old, accompanied him to the lake.
    At some point after she returned to the cottage, the deceased drowned.

[5]

A police report indicated that witnesses observed that the wind blew the
    deceased out into the open lake and that he either fell or jumped off the ring
    in approximately 10-12 feet of water, possibly in a panicked state, and that he
    went under the surface. Although there was wind that day, the deceaseds wife
    agreed that the wind was not so strong at the cottage that she was concerned
    about her husband going to the lake.

[6]

In support of their negligence claim, the appellants primarily relied on
    the allegation that the respondents had previously told the deceased that the
    lake was safe and that one could walk out for miles without the water going
    above ones knees.

Decision Below

[7]

The motion judge determined that the claim essentially boils down to the
    suggestion that the [respondents] had misrepresented to the [appellants], and
    [the deceased] in particular, that the lake was safe, very shallow, and that
    one could walk for miles with the water level never being above ones knees.
    He referred to
Her Majesty the Queen v. Cognos Inc.
,
[1993] 1 S.C.R. 87, for the elements of
    the tort of negligent misrepresentation, and noted that the appellants were
    required to establish that the respondents owed the deceased a duty of care
    based on a special relationship. He also referred to
Childs v. Desormeaux
,
    [2006] 1 S.C.R. 643 for the principle that:  A positive duty of care may exist
    if foreseeability of harm is present and if other aspects of the relationship
    between the plaintiff and the defendant establish a special link or proximity.

[8]

The motion judge concluded that there was no special relationship
    between the parties, no duty of care owed by the respondents and no foreseeable
    risk of harm. Further, there was no evidence to suggest that the lake was
    unsafe. It only became unsafe when, for reasons that could not possibly have
    been known to the respondents, the deceased chose to get onto the ring and
    place himself in peril.

Appeal

[9]

The appellants submit that the trial judge erred in finding that the
    representation allegedly made to the deceased was insufficient to support a
    finding of negligence. Simply put, they allege that he drowned as a result of
    his reliance on the respondents representation that the lake was safe. They
    state further that the statement as to the depth of the lake
itself
gave rise to a duty of care.

Analysis

[10]

We
    agree with the motion judge that there is no genuine issue requiring a trial.
    The motion judge put the appellants case at its highest by viewing the action as
    one that encompassed negligent misrepresentation and then by accepting that the
    alleged statement about the lake had been made by the respondents. He concluded
    however that the facts did not disclose any special relationship of proximity
    giving rise to a duty of care on the part of the respondents to the deceased.

[11]

We
    agree. The evidence disclosed that the deceased and his family were attending
    the cottage purely as a social visit; the cottage property did not abut Lake
    Simcoe and the beach; the deceased had been to the cottage previously and had
    gone into the water up to his waist; the deceased, although a non-swimmer, was
    a highly educated, intelligent and sober adult; and, no one, including the
    deceaseds wife, had reason to believe that he would get onto the ring and
    float into the lake.

[12]

In
    these circumstances, no relationship of supervision or control by the
    respondents over the deceased existed.  Nor did the respondents create or
    control a risky situation, giving rise to a duty to warn.  The motion judges
    finding of no special relationship between the parties was fatal to the
    appellants claim that the respondents owed a duty of care to the deceased.

[13]

The
    motion judge concluded that any representation made to the deceased concerning
    the lake was not relied upon. The deceased had been in the water before, gone
    in deeper than his knees, knew he could not swim, was well educated and sober. On
    this basis as well, the respondents did not owe a duty of care to protect the
    deceased from or warn him of obvious dangers removed from their property over
    which they had no control.

[14]

In
    the absence of any duty of care owed by the respondents to the deceased, the
    appellants negligence action cannot succeed. There is no genuine issue
    requiring a trial.

[15]

Accordingly,
    the appeal is dismissed with costs of the appeal payable to the respondents in
    the amount of $8,260.10, inclusive of disbursements and HST.

Released: April 15, 2016

K.M. Weiler J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.


