



COURT OF APPEAL FOR
    ONTARIO

CITATION:  Cannon v. Cemcor Apartments Inc., 2017 ONCA 378

DATE: 20170510

DOCKET: C62160

Doherty, Benotto and Trotter JJ.A.

BETWEEN

Gregory Cannon

Plaintiff (Appellant)

and

Cemcor Apartments Inc. and Myles Property
    Management Inc.

Defendants (Respondents)

Paul J. Pape, for the appellant

Alan Rachlin, for the respondents

Heard:  April 26, 2017

On appeal from the judgment of Justice Cornell of the Superior
    Court of Justice, dated April 29, 2016; 2016 ONSC 2828.

By the Court:

[1]

Mr. Cannon slipped on the ice in the parking lot of the apartment where
    he lived and broke his leg.  Under the terms of his lease, the landlord, Cemcor
    Apartments Inc. (Cemcor), was responsible for maintaining the parking lot. 
    Cemcor had a contract with Myles Property Management Inc. (Myles) to clear
    the snow and ice from the parking lot.

[2]

Mr. Cannon sued Cemcor for negligence.  It is common ground that under
    the
Occupiers Liability Act
, R.S.O. 1990, c. O.2, Cemcor owed a duty
    of care to Mr. Cannon.  In the language of the statute, Cemcor was under a duty
    to take such care as in all of the circumstances of the case is reasonable to
    ensure that Mr. Cannon was reasonably safe while on the premises.

[3]

The trial judge dismissed the claim.  Mr. Cannon appealed.  At the end
    of oral argument, the court advised counsel that the appeal was dismissed with
    reasons to follow.  The reasons are set out below.

[4]

The evidence at trial focused primarily on two factual issues:

·

the
    terms of the winter maintenance program Cemcor had in place through its
    contract with Myles to plow and sand the parking lot; and

·

the
    actual conditions of the parking lot when Mr. Cannon slipped and fell.

[5]

After a detailed review of the evidence, the trial judge held, at para.
    49:

I conclude that given the realities and conditions that are
    experienced in northern Ontario in the winter, the landlord did have in place a
    reasonable policy to provide proper winter maintenance for the parking lot.

[6]

The appellant does not challenge this finding on appeal.

[7]

The appellant does submit, however, that the trial judge erred in
    finding that Cemcor followed that policy on the day of the accident.  The
    appellant argues that by the terms of Cemcors winter maintenance policy, the
    amount of snow on the ground on the day of the accident required that the
    entire parking lot be cleared of snow.  On the evidence, only a partial
    clearing had been done.

[8]

In considering whether, according to Cemcors own maintenance criteria,
    the entire parking lot should have been plowed, the trial judge focused on the
    actual conditions in the parking lot at the time of the accident, as described
    by various witnesses called by both Mr. Cannon and Cemcor (see paras. 68-109).

[9]

The trial judge ultimately held, based largely on the evidence of
    defence witnesses, but to some extent on Mr. Cannons evidence, that the
    parking lot was adequately cleared at the time of the accident, but for the
    isolated slippery spot on which Mr. Cannon slipped and fell.

[10]

The trial judge made no factual error in his analysis of the evidence.  The
    condition of the parking lot at the time Mr. Cannon fell was the crucial factual
    issue.  Evidence of Cemcors snow removal policy, evidence of snowfalls in the
    preceding weeks and days, and the Environment Canada records of snowfall at the
    Sudbury airport, some 20 to 25 kilometres away from the parking lot, while no
    doubt relevant, were regarded by the trial judge as of secondary value to the
    descriptions of the condition of the parking lot given by the persons who were
    in the parking lot on the day of the accident.

[11]

It was open to the trial judge to treat the firsthand evidence of the
    witnesses as more probative of the condition of the parking lot at the time of
    the accident than the statistical information from Environment Canada.  We do
    not accept the argument that the Environment Canada records unequivocally
    established that the amount of snow on the ground in the parking lot was in excess
    of the amount that on Cemcors own maintenance criteria required the plowing of
    the entire parking lot.  While the records indicated significant snowfall in
    the Sudbury area in December and January, they were not so compelling as to
    require the trial judge to reject the evidence of the witnesses who were
    actually in the parking lot on the day of the accident.  The trial judge made
    no error in his analysis of the evidence.

[12]

The appellant also submits that the trial judges interventions in the
    course of the trial demonstrate a reasonable apprehension of bias.  In his
    factum, the appellant referred to interventions by the trial judge, both during
    counsels cross-examination of defence witnesses and during counsels closing
    argument.  In oral argument, counsel focused on the interventions during
    cross-examination.  We will do the same. The interventions by the trial judge
    during closing argument were not inappropriate.

[13]

There were many interventions by the trial judge during counsels
    cross-examination of the defence witnesses.  Some were appropriate.  Trial
    judges have a responsibility to ensure that cross-examinations are conducted fairly
    and in accordance with the rules of evidence.  For example, it was proper for
    the trial judge to caution witnesses against guessing or assuming,
    especially when the nature of some of counsels questions on cross-examination seemed
    to invite speculation or assumptions.  It was also appropriate for the trial
    judge to interrupt counsel when the purpose of a certain line of questioning
    was unclear to the trial judge.  Sometimes, a trial judge cannot assess
    relevancy without some idea of where a line of questioning is going.

[14]

However, many of the interventions were unnecessary, or at least
    premature, especially in the context of a trial without a jury.  The
    interventions, in their cumulative effect, disrupted counsels cross-examination
    and interfered with the narrative flow of the evidence.  As the trial
    proceeded, the interruptions also created an obvious tension between counsel for
    Mr. Cannon (not Mr. Pape) and the trial judge.  As the interventions increased
    and the tensions mounted, the trial judges tone on occasion became blunt, if
    not rude, and sometimes condescending.

[15]

It must be said that the efficiency and,
    perhaps more importantly, the tone of the trial suffered, to some degree, as a
    result of the trial judges many interventions and the tensions that developed
    between counsel and the trial judge as a result of those interventions.  We
    also understand the appellants concern about the appearance of fairness. 
    However, the trial judges interventions do not rise to the high level required
    to displace the presumption of judicial impartiality.  Having regard to that
    presumption, a reasonable person, properly informed, would not apprehend bias
    as a result of the trial judges interventions.

[16]

The interventions did not prevent counsel from fully developing the
    defence position.  Nor did the interventions necessarily favour the defence
    over the plaintiff.  We do not agree with counsel for the appellants
    submission that the trial judges interventions coached the defence witnesses. 
    The trial judges repeated admonitions to witnesses to stay within the limits
    of their own knowledge in answering questions did not appear to necessarily advantage
    one side or the other.  Depending on the question, the limits on the response imposed
    by the trial judge had the potential to assist either side.

[17]

We also do not agree that the transcript permits this court to conclude
    that the trial judge took over carriage of the defence.  As counsel for the
    respondent correctly points out, it is impossible to say from the transcript
    alone whether some of the trial judges interventions were at his own
    initiative, or in response to defence counsel standing to make an objection.

[18]

The trial would have proceeded more smoothly had the trial judge intervened
    less and allowed defence counsel to conduct his cross-examination as he saw
    fit.  Indeed, the need for many of the interventions would probably have
    disappeared had the trial judge simply allowed defence counsel a little more
    leeway in developing his line of questions.  However, while the judge can be
    properly criticized for many of his interventions, we do not accept that those interventions
    rendered the trial unfair, or created a reasonable apprehension of bias.

[19]

The appeal is dismissed.  Costs to the respondent in the amount of
    $15,000, inclusive of disbursements and relevant taxes.

Released:  DD  MAY 10 2017

Doherty J.A.

M.L. Benotto J.A.

G.T.
    Trotter J.A.


