



COURT OF APPEAL FOR ONTARIO

CITATION: Nandlal v. Toronto Transit Commission, 2015 ONCA
    166

DATE: 20150312

DOCKET: C59285

Cronk, Gillese and Brown JJ.A.

BETWEEN

Sarojanie (Mazie) Nandlal and Haitram Nandlal

Plaintiffs (Appellants)

and

Toronto Transit Commission

Defendant (Respondent)

Alan L. Rachlin and Joel P. McCoy, for the appellants

Stephen Sargent, for the respondent

Heard and released orally: March 10, 2015

On appeal from the judgment of Justice Paul Perell of the
    Superior Court of Justice, dated August 18, 2014.

ENDORSEMENT

[1]

The appellants, Sarojanie (Mazie) Nandlal and Haitram Nandlal, appeal
    from the summary judgment granted in favour of the respondent, Toronto Transit
    Commission (the TTC), dismissing their claim for damages arising from
    personal injuries sustained by Mrs. Nandlal when she slipped and fell at the
    threshold of a flight of stairs at the TTC rapid transit station known as the
    Kennedy Station.

[2]

The appellants raise three grounds of appeal.  First, they argue that
    the motion judge erred by finding that there was no objective evidence of a
    slippery steps hazard at the location in the Kennedy Station where Mrs. Nandlal
    fell.

[3]

We reject this argument.

[4]

In their statement of claim, the appellants allege that Mrs. Nandlal
    slipped and fell on slippery and debris strewn steps at Kennedy Station. 
    However, Mrs. Nandlals own evidence was that, although she was alert, walking
    with care and actually looking for hazards as she was proceeding through the
    station, she did not see any debris on the tile at the location where she
    fell.  Rather, because she had noticed garbage and debris in the station and in
    subway cars on prior occasions, and elsewhere on the station floor on the day
    in question, she believed that she had slipped on debris at the top of the
    stairwell.  This was not evidence about the condition of the top of the
    stairwell on the day that Mrs. Nandlal unfortunately fell.  Further, there was
    undisputed affirmative evidence before the motion judge that the tiles on which
    Mrs. Nandlal fell were non-slip tiles and were not defective or in need of
    repair.

[5]

In light of this evidence, the motion judge held:

[26]    In the case at bar, Mrs. Nandlal provides no direct
    evidence that there was debris on the stairs, but, rather, she provides her
    belief that the stairs were slippery and debris strewn.  The direct evidence is
    that the tiles were non-slip tiles in good repair, and, thus, Mrs. Nandlals
    case comes down just to her belief that she slipped on stairs made slippery by
    the strewn debris that she believes existed but that she did not see,
    notwithstanding her alertness and the care in which she was walking.

[27]    There is no objective evidence of the slippery steps
    hazard, but only a subjective rationalization by Mrs. Nandlal for her having
    fallen down the stairs.  That she saw other debris at other parts of the
    station that day or that she saw debris on past occasions does not lead to the
    inference that there was a debris hazard at the top of the stairs on November
    18, 2008 that the TTC could and should have removed.

[6]

We see no reversible error in this reasoning.  Indeed, we agree with it.

[7]

The appellants rely on the decision of this court in
Kamin v. Kawartha
    Dairy Ltd.
(2006), 79 O.R. (3d) 284 to argue that the motion judge erred
    by imposing too high a burden of proof on the appellants in resisting the TTCs
    summary judgment motion.

[8]

We disagree.  In our view,
Kamin
does not assist the
    appellants.  In
Kamin
, unlike this case, there was considerable
    uncontradicted evidence that the entire parking lot where the plaintiff was
    injured was in poor condition and a state of disrepair:
Kamin
at para.
    5.  This included the testimony of the plaintiffs husband that at the time and
    place his wife fell, the surface of the parking lot was unclear, unmaintained,
    unsafe and, generally, in a state of disrepair.  There was no comparable
    evidence in this case.

[9]

The appellants next argue that the motion judge erred in his application
    of the test for granting summary judgment by refusing, ostensibly without
    resorting to his enhanced fact-finding powers under rule 20.04 of the
Rules
    of Civil Procedure
, to draw an inference based on the circumstantial
    evidence before him that the top of the stairwell where Mrs. Nandlal fell was
    in a state of non-repair.

[10]

Again,
    we disagree.  The reasons reveal that the motion judge appreciated the test for
    granting summary judgment set out in
Hryniak v. Mauldin
, 2014 SCC 7 and
    applied it correctly in this case.

[11]

In
    accordance with
Hryniak
, the motion judge first considered whether
    there was a genuine issue requiring a trial based on the record before him,
    without resorting to his fact-finding powers under Rule 20.  Based principally
    on Mrs. Nandlals own uncontradicted evidence, he concluded that no genuine
    issue requiring a trial had been demonstrated.  Unlike the authorities relied
    on by the appellants, this determination did not involve the assessment of
    credibility or the resolution of conflicting evidence.  The motion judges
    conclusion on this issue attracts significant deference from this court.

[12]

Finally,
    contrary to the appellants submission, we see no error in the motion judges
    approach to or application of the summary judgment test or the substantive law
    on occupiers liability.  The motion judge found that the appellants had not
    established that the TTC failed to meet its statutory obligation to keep
    Kennedy Station reasonably safe for use by TTC patrons.  This finding was
    grounded in the evidentiary record.  In particular, there was evidence before
    the motion judge that the TTCs maintenance system at the Kennedy Station
    reflected reasonable steps to keep the premises safe in all the circumstances. 
    The appellants say that the motion judge wrongly inferred from the evidence of
    the TTCs general maintenance practices that those practices were actually
    followed on the day of the accident.

[13]

We
    reject this submission.  The motion judge observed at para. 30: There is no
    evidence that would justify a conclusion that the TTC did not meet its
    statutory duty to take such care in all the circumstances as is reasonable to
    see that persons entering on the Kennedy Station are reasonably safe.  Further,
    there was uncontradicted evidence before the motion judge from the TTC
    caretaker assigned to Kennedy Station of his duties under the TTC maintenance
    system.  He swore that he believed that he had discharged those duties on the
    day in question by performing a visual scan of the entire station for any hazards. 
    The appellants elected not to cross-examine the TTC caretaker on this evidence.

[14]

It
    was open to the motion judge to accept the caretakers unchallenged evidence,
    which was fatal to any suggestion of a genuine issue requiring a trial in
    respect of the TTCs alleged negligence as occupier of the premises.

[15]

For
    these reasons, the appeal is dismissed.  The TTC is entitled to its costs of
    the appeal, fixed in the amount of $5,000, inclusive of disbursements and HST.

E.A. Cronk
    J.A.

E.E. Gillese
    J.A.


David Brown J.A.


