



COURT OF APPEAL FOR ONTARIO

CITATION: Tondat v. Hudson's Bay Company, 2018 ONCA 302

DATE: 20180327

DOCKET: C63941

Epstein, van Rensburg and Brown JJ.A.

BETWEEN

Sandra Tondat

Plaintiff (Respondent)

and

Hudsons Bay
    Company and Quinterra Property Management Inc.

and Cintas Canada Limited

Defendants (
Appellants
)

Alan L. Rachlin, for the appellants

David S. Steinberg and Rebecca C. Glass, for
    the respondent

Heard: March 9, 2018

On appeal from the judgment
    of Justice Irving W. André of the Superior Court of Justice, dated May 26, 2017,
    with reasons reported at 2017 ONSC 3226.

REASONS FOR
    DECISION

[1]

On a wet day shortly before Christmas, the respondent Sandra Tondat
    slipped and fell, while entering a department store, fracturing her kneecap.
    The store was operated by the appellant Hudsons Bay Company, with maintenance
    services contracted to the second appellant, Quinterra Property Management Inc.

[2]

The respondents fall occurred after she had walked into the vestibule,
    or entryway to the store. She walked across a floor mat, stepped onto the tile
    floor, and slipped and fell. The parties agreed on the quantum of damages and
    the trial was limited to the question of liability.

[3]

The trial judge concluded that the floor where the respondent fell was
    wet, and that this was the cause of her fall. He accepted that there was no
    evidence of any safety system in place at the store to abate the risk of a
    fall, any effective inspection or maintenance system, or that the existing
    maintenance system was adjusted to account for adverse weather conditions. He
    was not persuaded by the opinion of Dr. Adam Campbell, the appellants expert
    in the analysis of slip and fall accidents, that the tile flooring where the
    fall occurred had a superior coefficient of friction when wet, such that the
    flooring was reasonably safe whether wet or dry.

[4]

On appeal, the appellants accept the trial judges findings that a wet
    floor caused the respondents fall, and that they lacked an effective
    inspection or maintenance system. Their main argument is that the trial judge
    failed to require the respondent to prove that the wet floor created an
    unreasonable risk of harm, before he turned his focus to the measures adopted
    by the appellants to make the premises safe.

[5]

Section 3(1) of the
Occupiers Liability Act
, R.S.O. 1990, c.
    O.2 (the Act) provides that 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 premisesare reasonably safe while on the premises. The statute
    imposes an affirmative duty requiring occupiers to take reasonable care in the
    circumstances to make their premises safe. The factors which are relevant to an
    assessment of what constitutes reasonable care will necessarily be very
    specific to each fact situation:
Waldick v. Malcolm
, [1991] 2 S.C.R.
    456, at 472.

[6]

The plaintiff in an occupiers liability case has the onus to prove that
    some act or failure to act on the part of the occupier caused her injury. The
    appellant argues that the plaintiff must then establish that what caused the
    injury was some specific, objectively unreasonable risk of harm. The appellant
    contends that the trial judge failed to identify any such risk of harm.

[7]

We disagree. The trial judges reasons disclose that he conducted the
    inquiry required by s. 3(1) of the Act. Once he determined that the cause of
    the respondents fall was the wet floor, the question remaining was whether the
    appellants in all the circumstances had taken reasonable care to prevent a fall
    on a wet floor.

[8]

As the principal safety measure the appellants relied on was the
    installation of what their expert said was safe tiling, the essence of the
    appellants complaint in this appeal is that the trial judge erred in the
    assessment of the expert evidence.

[9]

First, the appellants accept that it was open to the trial judge to
    reject the expert evidence. As such, there is no merit to their argument that
    the respondent was obliged to call her own expert witness to prove the floor
    was inherently slippery or to contradict the evidence about the slipperiness of
    the flooring when wet or dry.

[10]

Second,
    and contrary to the appellants submission, the expert did not provide an
    opinion that the floor tiles were safe to walk on under any and all conditions,
    whether dry or wet. Rather, Dr. Campbell testified about tests he had run in a
    highly controlled way, that he admitted did not take into account other
    factors that could affect the coefficient of friction of the floor tiles. The
    trial judge reasonably concluded that there were too many variables to
    conclude that the floor was inherently safe irrespective of the weather
    conditions, the wetness of the floor, the nature of the persons footwear or
    the presence of any oily or greasy substance on the floor.

[11]

We
    disagree with the appellants argument that the trial judge relied on
    irrelevant factors in rejecting the experts evidence. The trial judge
    reasonably concluded that the expert, during his testing, had not replicated
    the conditions typical of the entrance to a busy department store on a rainy
    day and for this reason he discounted the experts evidence on the question of
    whether the floor was slippery.

[12]

The
    evidence of maintenance and other measures taken by the appellants to make the
    premises safe consisted of a time sheet showing that a single maintenance
    person had been on duty both as a cleaner and porter in the 118,348 square foot
    store on the day in question, without any indication of what, if anything, had taken
    place in the vestibule area where the accident occurred.

[13]

Once
    the trial judge accepted that the cause of the respondents fall was a wet
    floor, the appellants defence, on the evidence in this case, depended entirely
    on whether the occupiers duties were discharged by its choice of flooring. The
    trial judge reasonably rejected this defence.

[14]

Nor
    did the trial judge err because he arrived at a different decision than the
    judge in a similar case relied on by the appellants:
Miller v. Royal Bank
    of Canada
, 2008 NSSC 32, 263 N.S.R. (2d) 121, affd. 2008 NSCA 118 (C.A.).
    There, a plaintiff who slipped on a moist footprint in an ATM lobby that was
    monitored on an
ad hoc
basis lost at trial and on appeal. The case was
    distinguishable for the reasons identified by the trial judge in this case; in
    any event, every occupiers liability case falls to be determined on its own
    facts.

[15]

The
    appellants have failed to demonstrate any palpable and overriding error in the
    trial judges reasons for concluding that they were liable in negligence for
    the respondents accident. And, contrary to the appellants argument, the trial
    judge did not impose a standard of perfection, or any standard other than
    reasonableness for the discharge of their responsibilities under the Act. The
    trial judges reasons for judgment, including his findings of fact, his
    treatment of the expert evidence and his discussion and application of the
    applicable law, are clear and thorough, and reveal no error.

[16]

Finally,
    the appellants asserted that the trial judge erred by failing to consider the
    question of contributory negligence. This submission, for good reason, was not
    pressed in oral argument. In his reasons for judgment, the trial judge
    considered the evidence of the respondents condition, her conduct and
    footwear, before he concluded that her fall was caused by the water on the
    floor. Any suggestion that she fell because she was not keeping a proper
    lookout is speculative, and not supported by the evidence.

[17]

The
    appeal is therefore dismissed. The respondent is entitled to her costs fixed in
    the agreed and all-inclusive amount of $15,000.

Gloria Epstein J.A.

K. van Rensburg J.A.

David Brown J.A.


