



COURT OF APPEAL FOR ONTARIO

CITATION: Saisho v. Loblaw Companies Limited, 2015 ONCA 172

DATE: 20150317

DOCKET: C58630

MacFarland, Pardu and Huscroft JJ.A.

BETWEEN

Yaye (Jackie) Saisho and Yaye (Jackie) Saisho,
    Estate Trustee of the Estate of Tetsuo (James) Saisho

Plaintiffs (Appellants)

and

Loblaw
    Companies Limited, Westfair Properties Ltd. and

James
    Douglas Beardy

Defendants (Respondents)

Paul Pape and Joanna Nairn, for the appellants

Chantal Brochu, for the respondents Loblaw Companies
    Limited and Westfair Properties Ltd.

Heard:  February 27, 2015

On appeal from the judgment of Justice F. Bruce
    Fitzpatrick of the Superior Court of Justice, dated March 26, 2014, with
    reasons reported at 2014 ONSC 1949.

ENDORSEMENT

[1]

The appellants appeal the judgment of Fitzpatrick J. by which their
    action against Loblaw Companies Limited and Westfair Properties Ltd. was
    dismissed.

[2]

This was a tragic case. Mr. Saisho, now deceased, was 90 years of age in
    December 2007 when, with the help of his assistant, he went shopping at
    Westfair Bulk (Westfair), a bulk item grocery store in Thunder Bay. In this
    store, the evidence was that cashiers do not assist customers in loading their
    own purchases into their carts.

[3]

Mr. Saisho had run a grocery store for many years and was in Westfair
    buying bulk stock for his store.

[4]

James Beardy and his friend Albert Sakakeep were in Westfair shopping at
    the same time. Mr. Beardy and his friend had come from their Round Lake First
    Nation home some 200 miles north of Sioux Lookout to stock up on supplies and
    thereafter return to their home. Mr. Beardy admitted at trial that they were in
    somewhat of a rush to get back on the road home.

[5]

As it happened, Messrs. Beardy and Sakakeep were checking out through
    aisle 1 of Westfair at about the same time that Mr. Saisho and his helper were
    checking out through aisle 3.

[6]

Mr. Beardy and Mr. Sakakeep shopped independently of one another and
    each had a shopping cart containing their respective purchases. Mr. Beardy went
    through the checkout first. As the cashier scanned his items, he loaded them
    into his cart. When she finished scanning Mr. Beardys items, Mr. Beardy
    stopped loading his cart, approached the cashier and paid for his purchases. At
    this point in time, the evidence discloses his cart was not overloaded.

[7]

Mr. Sakakeep was next in line after Mr. Beardy. He placed his purchases
    onto the conveyor belt for the cashier to scan. Mr. Beardy remained with his
    cart at the end of the conveyor and loaded Mr. Sakakeeps purchases into his (Mr.
    Beardys) already partially loaded cart. Mr. Sakakeeps evidence was that Mr.
    Beardy had finished packing Mr. Sakakeeps purchases onto the cart at about the
    same time Mr. Sakakeep completed paying for his purchases.

[8]

As the two began to move toward the exit, Mr. Beardys cart was
    overloaded to the point that he could not see over the top and he was unable to
    see what was directly in front of him. Mr. Sakakeep then recalled the need
    to make a further purchase and he left Mr. Beardy to return to the merchandise
    area of the store. It was agreed that Mr. Beardy would go ahead and start to
    pack the truck. As Mr. Sakakeep left, he continued talking to Mr. Beardy, who
    turned to look at him while the two spoke.

[9]

Mr. Beardy described what happened next:

A. I start to, well I lean over to, to look, just glance
    without really making sure. I just assumed that its, its clear...

Q. Right?

A. ...and, and of course as Albert [Sakakeep] called my name I
    looked over to him...

Q. Right?

A. and I did not go very far when I felt a bump.

Mr. Beardy later testified:

A.

Because as I recall I
    felt like I had just started to move and I didnt go very far when I felt,
when I felt the bump and I heard
    something fall.

[10]

Unfortunately,
    the bump Mr. Beardy felt was his cart striking Mr. Saisho. Mr. Saishos
    helper had gone ahead to load their purchases into their vehicle, leaving Mr.
    Saisho, who moved very slowly and walked with the assistance of a cane, to make
    his own way alone to the car.

[11]

Mr.
    Saisho suffered a devastating injury as the result of being struck by Mr.
    Beardys cart and was confined to hospital from the accident date to the date
    of his death on January 18, 2010.

[12]

The
    law is not in dispute. Section 3 of the
Occupiers Liability Act
, R.S.O.
    1990, c. O.2 governs:

Occupiers Duty

3. (1) 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, and the property brought on the premises by those persons are
    reasonably safe while on the premises.

[13]

The
    trial judge concluded that the store policies in respect of general health and
    safety and the directions given to employees to take action if they saw a
    hazard were adequate and reasonable in all the circumstances.

[14]

The
    appellants submit that the trial judge erred in law in reaching this
    conclusion. They submit that the store policy was inadequate and there ought to
    have been a specific policy dealing with overloaded shopping carts and
    requiring checkout cashiers to specifically look to ensure their customers did
    not overload their carts. We do not agree with this submission.

[15]

The
    written store policy was in general terms. Item 10 of the Westfair Foods Ltd.
    Safety, Environment and Waste Management Policy provided:

10.     Be on the alert for potentially dangerous activities by
    patrons; those carrying leaking containers, drinks, broken bags or failing to
    control their children, etc. If they are creating a hazard for others I must
    ask them to stop. If they will not, I must contact my supervisor or store
    manager immediately.

[16]

It
    is clear from the evidence adduced at trial that the employees were well aware
    that overloaded shopping carts presented the potential to cause injury or harm.
    Staff testified that, if they saw one, they would intervene and address the
    situation. There were examples given in evidence of what employees had done in
    the past when they observed a patron with an overloaded cart, from helping the
    customer reorganize the load, to providing a second cart, and to offering
    assistance to the parking lot. It was, as the trial judge observed, a matter of
    common sense. This was a no frills operation. The evidence was that customers
    knew they were responsible for bagging and boxing their own purchases and
    loading their own carts. Customers would not get any assistance from the
    cashier, who was often already onto the next customer.

[17]

To
    require a standard that would specifically address the problem of overloaded
    shopping carts, as the appellants submit, would in our view be to require a
    standard of perfection and that is not what the law requires. There was a reasonable
    policy in place and the employees knew what to do if they saw an overloaded
    cart. Furthermore, cashiers were warned on a weekly basis to be aware of
    hazards. In our view, the policy was a reasonable one. We would dismiss this
    ground of appeal.

[18]

Next,
    the appellants submit that, if we conclude the store policy was reasonable, on
    the evidence it was breached because, although store employees saw the
    overloaded cart, they did not intervene.

[19]

It
    is submitted that the first person who would have seen the state of the cart
    would have been Ms. Hovey, the cashier on aisle 1 who checked through Mr. Beardy
    and Mr. Sakakeep. Unfortunately, Ms. Hovey did not testify. She could not be
    located and did not give evidence of what she saw or did not see. When Mr.
    Beardy walked from the end of the aisle where he was loading his purchases into
    his cart, toward the cashier to pay, the cashier would have had the opportunity
    to see his cart at that point. The evidence, however, is that at that point, Mr. Beardys
    cart was not overloaded. All of his purchases fit in the cart.

[20]

When
    Mr. Sakakeep paid for his purchases, the cashier would have had no cause to
    turn back to look at the cart because her customer was not at the end of the
    aisle loading his purchases. He had no need to because Mr. Beardy was doing
    that for him and Mr. Beardy said that Mr. Sakakeep did not help him load the
    cart.

[21]

The
    evidence indicated that the only employee who observed the cart in its
    overloaded state before this unfortunate event was Ms. Tait. On the day in
    question, Ms. Tait was the cashier on aisle 3.

[22]

She
    had just finished checking Mr. Saisho through and had turned and already
    started her next customer when, as she said, she glanced to lane one to check
    on Laurie [Hovey] and noticed a customer with a cartright at the end of lane
    one that just at a glance appeared to be overloaded, way overloaded. She said
    the customer was already in motion when she observed him and that Ms. Hovey
    seemed to be still communicating with the customer as he moved away from her.
    Ms. Tait assumed that Ms. Hovey was communicating with her customer about his
    overloaded cart.

[23]

The
    trial judge dealt with this evidence at paragraph 75 of his reasons. He noted
    that Ms. Tait admitted that her observations were just a glance and took
    place in a fraction of a second. She also agreed the store was very noisy and
    she did not hear what, if anything, Ms. Hovey said to Mr. Beardy. On the other
    hand, Mr. Beardys evidence was clear that Ms. Hovey had said nothing to
    him. The trial judge preferred the evidence of Mr. Beardy and concluded Ms.
    Tait was mistaken about having observed some communication between Mr. Beardy
    and Ms. Hovey. The trial judge concluded Ms. Hovey had not seen the overloaded
    cart. In the circumstances, he concluded it was

not reasonable to expect a cashier to be vigilant to look
    behind her to ensure that two distinct customers are not loading up their
    purchases into one cart. Common sense dictates the opposite. Mr. Beardy
    testified he was rushing. He made a bad decision in an attempt to save time.
    However, I do not find that it is reasonable to make the store liable for that
    particular decision of Mr. Beardy.

[24]

He
    also concluded that, in all the circumstances, it was reasonable for Ms. Tait
    not to have intervened. This was the trial judges call.

[25]

The
    standard of care is reasonableness in the circumstances. This was a tragic
    event that took place in a matter of seconds while the operator of an
    overloaded shopping cart was momentarily distracted. That he was negligent is
    not in doubt.  In our view, however, the conduct of the occupier was reasonable
    in all the circumstances and the law requires nothing more.

[26]

The
    appeal is dismissed.

[27]

Costs
    to the respondent fixed in the sum of $15,209.58 inclusive of disbursements and
    applicable taxes.

J. MacFarland
    J.A.

G. Pardu
    J.A.

Grant
    Huscroft J.A.


