



COURT OF APPEAL FOR ONTARIO

CITATION: Davis v. East Side Mario's Barrie, 2016 ONCA 770

DATE: 20161019

DOCKET: C62178

Cronk, Juriansz and Brown JJ.A.

BETWEEN

Katherine Irene Davis, Gregg James Davis
and Paige Gwen Davis, a minor by her litigation Guardian
Katherine Irene Davis

Plaintiffs (Appellants)

and

East Side Marios Barrie

Defendant (Respondent)

J. Keenan Sprague, for the appellants

Robert L. Love and Edona C. Vila, for the respondent

Heard: October 14, 2016

On appeal from the judgment of Justice Phillip Sutherland
    of the Superior Court of Justice, dated April 27, 2016.

ENDORSEMENT

[1]

This litigation arises from a slip and fall incident in September 2010,
    when the appellant Katherine Irene Davis fell down a flight of stairs at the
    respondents restaurant premises while enroute to the washroom. The appellants
    appeal from the summary judgment granted by the motion judge in favour of the
    respondent, by which the motion judge dismissed the appellants action in
    negligence and breach of contract against the respondent, without prejudice to
    the appellants right to move, within 30 days from the date of the judgment, to
    amend their statement of claim to plead that the [respondent] breached s. 9 of
    the
Consumer Protection Act
, 2002
, S.O. 2002, c. C.30 [the
    CPA], as amended, in failing to advise the [appellant] Katherine Davis of the
    existence of a main floor washroom at the [respondents] premises.

[2]

The appellants advance two main grounds of appeal. First, they argue
    that the motion judge erred in his interpretation and application of s. 3 of
    the
Occupiers Liability Act
, R.S.O 1990, c. O.2 (the OLA). Second,
    they submit that the motion judge further erred by bifurcating the issue of the
    respondents liability, if any, into two separate hearings.

[3]

At the conclusion of oral argument, we dismissed the appeal with reasons
    to follow. These are those reasons.

[4]

We reject the appellants first ground of appeal. In our view, when the challenged
    judgment is read in light of the motion judges reasons, its effect is twofold:

(1)

any argument by the appellants at trial on the first branch of their
    theory of liability, namely, that the respondent is liable to the appellants
    based on a breach of the OLA arising from any hazards on or other unsafe
    conditions pertaining to the stairs where the accident occurred, including any
    alleged failure by the respondent to properly maintain the stairs, is
    precluded; and

(2)

on proper amendments to their pleading, it is open to the appellants to
    pursue the second branch of their theory of liability, namely, that the
    respondent is liable to the appellants in contract or under either or both of
    the OLA and the CPA by reason of its alleged failure to advise Ms. Davis of the
    existence of a main floor washroom at the respondents premises.

[5]

The motion judges dismissal of the appellants claim based on the first
    branch of their theory of liability, described in para. 4(1) above, is amply
    supported by the evidentiary record. The appellants led no independent evidence
    on the summary judgment motion of any existing hazards on or unsafe conditions
    relating to the stairs at the respondents establishment at the time of the
    accident. Even Ms. Davis was unable to provide specific evidence of such
    hazards or conditions.

[6]

The appellants claim based on the second branch of their theory of
    liability is expressly preserved by the motion judges judgment and, following
    the date of the judgment, the appellants amended their statement of claim
    accordingly. Further, before this court, the respondent expressly acknowledged,
    through counsel, that:

(1)

the appellants are free to seek to establish and to argue at trial all
    the matters alleged in paras. 7, 7.1 and 8 of their amended pleading so long as
    their efforts to do so are not directed at any alleged hazards on or the
    conditions of the stairs at the respondents restaurant where the accident
    occurred; and

(2)

the respondent will not seek to argue at trial that the appellants
    claim or claims under the OLA are defeated by reason of their inability to lead
    evidence concerning, argue or otherwise rely on all the circumstances relating
    to the accident, in particular, any hazards on or the conditions of the stairs
    at the respondents restaurant premises.

[7]

In light of i) these concessions by the respondent, ii) the effect of
    the judgment, properly read, as outlined above, and iii) the appellants
    amended pleading, the appellants are not constrained from advancing the second
    branch of their liability case at trial.

[8]

We also reject the appellants second ground of appeal  their
    bifurcation argument. When the judgment under appeal is read in the fashion
    outlined above, it is apparent that the appellants were not prejudiced by the
    procedure followed by the motion judge. The motion judge was obliged to
    determine the respondents summary judgment motion on the basis of the
    appellants case as then pleaded. That is precisely what he did. As we have
    said, the appellants pleading has now been amended and the action is
    proceeding on that basis.

[9]

For the reasons given, the appeal is dismissed. The respondent is
    entitled to its costs of the appeal in the agreed amount of $12,000, inclusive
    of disbursements and all applicable taxes.

E.A. Cronk J.A.

R.G. Juriansz J.A.

David Brown J.A.


