Charlie v. Canada Safeway Limited, 2010 BCSC 618

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Charlie v. Canada Safeway Limited, 2010 BCSC 618 Date: 20100430 Docket: 08 3132 Registry: Victoria Between: Monica Patricia Charlie Plaintiff And Canada Safeway Limited and John Doe Defendants Before: The Honourable Mr. Justice Parrett Reasons for Judgment In Chambers Counsel for the plaintiff: A.J.E. Gilliland Counsel for the defendant Canada Safeway Limited: N.C. Carfra Place and Date of Trial/Hearing: Victoria, B.C. September 9, 2009 Place and Date of Judgment: Victoria, B.C.

April 30, 2010 INTRODUCTION [ 1 ] In this action the plaintiff seeks to recover damages for injuries sustained in a fall she suffered in the defendant’s retail store in Duncan, B.C., on August 1, 2006. [ 2 ] The action was set to proceed to trial on October 26, 2009. The present application, brought by the defendant Canada Safeway Limited (“Safeway”) under Rule 18A, seeks to have the issue of liability determined. Both sides agree this matter is suitable for determination under R. 18A.

BACKGROUND [ 3 ] The plaintiff was shopping in the defendant store which is located at 181 Island Highway in Duncan, British Columbia, on August 1, 2006. This grocery store was a large 48,000 square foot store with which the plaintiff was very familiar. She had shopped at this store at least once a week and at times twice a week for as long as she could remember. The plaintiff went on to testify that on none of those occasions had she ever been concerned for her safety. [ 4 ] In her affidavit the plaintiff describes the circumstances and her fall in paras. 7 to 9 as follows: 7.

While shopping in the defendant’s store in the middle of the afternoon I was walking towards till number 6 where my friend was waiting at the checkout. I was looking towards my friend as I was walking normally with a deli sample in one hand and holding my Safeway and Airmiles card in the other. At the time I was wearing flat-bottomed, foam treaded shoes that were secured tightly to my feet. I had worn these shoes before and found them to be very stable with good traction. I had never slipped in them before. 8. As I got close to till number 6 my feet suddenly slipped out from under me.

I fell heavily to my hands and knees, primarily to on my right side. On my way to the floor I knocked over some of the buckets of water with flowers in it displayed near the till . On the ground my clothing became soaked in water. . . . 9. At the time of the accident, in front of till number 6 there were buckets of water with bouquets of cut flowers displayed in them. It is apparent to me that water dripped off of the flowers as they were removed from the buckets of water by customers, or that one of the buckets leaked, resulting in the water on the floor that I slipped on.

I saw nothing else in the area that I could have slipped on . [Emphasis added.]

[ 5 ] In an unusual process agreed to by counsel, Ms. Charlie exhibited to her affidavit extracts from her examination for discovery. In relation to these extracts in para. 13 of her affidavit, she testifies that: I agree that the questions asked and the answers provided in the transcript are true and accurate and I stand by them. [ 6 ] I express no view in these reasons on this unusual procedure agreed to by counsel.

Suffice it to say that it was a procedure agreed to between them, and as a result these extracts by adoption are effectively direct evidence given by the plaintiff. [ 7 ] In these extracts the plaintiff gave, in part, the following evidence: 172 Q Right. Tell me how the accident happened, please. A I was coming from the Deli area, and I stopped for those samples, and Leon was telling me about where he was going, so I start walking. He said he needed my card, so I was walking towards him, and I was putting my hand out to give him the cards, and that’s when I slipped and fell.

I was on my hands, like that, and on my knees, and I was in water, and the flower --- I don’t know how high it stood. There’s a flower display that held the bouquets of flowers. I call them cones, you know, because the flower bouquets went in them. It’s like a coat rack, I guess. That’s how high it stood with cones in it. That was down on the floor with me, and I couldn’t get up. . . . 173 Q I’m just going to get you to stop there, because there’s parts of that I’d like to go back over to get a bit more detail, please.

So if I understand correctly, you’d actually gone over to till 6 and were very close to Leon, close enough to put out your hand to pass him the cards? A I just went – my cards are right here. 174 Q In your left hand? A I can’t recall, but I just remember I had my cards right here, and the next thing I knew, I was on the floor. 175 Q Okay. A It happened really, really fast. . . . 208 Q And what do you think caused you to fall? A Slipped on water. 209 Q Okay, and what makes you think that?

A There was - - a puddle of water is what I landed in when I was down. 210 Q Did you notice that puddle of water before or after the flower display fell over? A While I was laying in it. 211 Q Okay, but - - when you first noticed the water on the floor, had the flower display already tipped over? A No, it came down. It came down - - the flower display thing came down with me. 212 Q Okay. A It came down with me. It - - because I slipped, and I went down, and it just came down with me. 213 Q So how do you know the water that you saw underneath you wasn’t from the display that tipped over with you?

A Because I slipped before the flower display. 214 Q Is it fair that you’re thinking that it must have been water on the floor before, but you don’t actually know whether there was water on the floor? A There was water on the floor because I was - - there was nothing else around me but the flower display and the - - there was no - - like, there was not even a wet floor sign that Safeway and all the other stores do put up those signs a lot, but they didn’t have any of that there either. . . . 221 Q And I’m not trying to be tricky here, I just want to be sure I understand. You didn’t see water before you fell.

Do I have that correct? A I didn’t see - - like visually see it? 222 Q Right. A No. 223 Q Okay, and then when you first noticed water on the floor, when you described that you were on your hands and knees, that’s when you first noticed the water on the floor?

A That’s - - I was like that on my hands and knees, and I was in the water. [ 8 ] While this is the essence of the plaintiff’s evidence on how the fall occurred there is other evidence on which the plaintiff’s counsel relies. These come from Steve Wadsworth, the Second Assistant Manager of the store at the time, who was working that day and attended on the plaintiff after the fall and while: . . . she was sitting on the ground by the display and checkout stand number 6. She was holding her right knee and appeared to be in some [pain]. Ms.

Charlie informed me that she had slipped on some water located near the display . [ 9 ] Mr. Wadsworth then, according to his affidavit (para. 6): . . . had Ms. Charlie fill out a portion of the Customer Injury Report (“Injury Report”) detailing the time of the fall, which was approximately 3:40 pm, in addition to her name, date of birth and address information. I then filled out the remainder of the Injury Report wherein I outlined how the fall occurred as detailed by Ms. Charlie. [ 10 ] The Injury Report is attached to Mr. Wadsworth’s affidavit, and includes the statement attributed to Ms. Charlie: . . .

Customer said she slipped on water on the floor in front of checkstand 6. [ 11 ] In passing I note that the injury report is dated in two locations and in apparently two different handwritings. The first is in the portion apparently completed by Ms. Charlie where the accident date is given at the top of the page. The second is at the bottom of the page immediate above Mr. Wadsworth’s signature where the entry is the Date of This Report.

In both cases, the date entered is July 1, 2006. [ 12 ] The plaintiff, in her submissions, asserts that evidence supporting the plaintiff’s evidence is found in the evidence of Derik Sheers, the store Manager, given at his examination for discovery. During the course of that evidence Mr. Sheers testified that: (

a) At times he had noticed water on the floor around the buckets; (

b) When cut flowers were taken from the buckets water can drip to the floor; (

c) The amount of water could be quite significant; (

d) If water was on the floor it “would be slippery” and would create a hazard for customers. [ 13 ] The evidence establishes that at the time of the plaintiff’s fall the defendant had in place a system that: (

a) Required that sweeps be carried out at regular intervals and recorded and time stamped in a log; (

b) That employees were trained and instructed to immediately clean any spill; (

c) That when cleaning any wet area employees are required to place a wet floor sign and then mop the area; (

d) A regular management review of the sweep logs; (

e) A system by which on site management regularly walked the floor areas looking for, amongst other things, compliance with policy and slipping hazards. [ 14 ] The written policy established at the store requires that the grocery area, including the area where this incident occurred, to be inspected and swept “. . . approximately once every two hours” and that the person performing it “promptly and accurately log each and every sweep upon completion”. [ 15 ] The written policy goes on to stipulate that these are the minimum standards and that compliance with the policy is mandatory.

It goes on to warn that failure to comply with the policy may result in disciplinary action. [ 16 ] The logs were produced for the day in question and reveal that generally the inspection and sweeps were completed within an hour or slightly more throughout the day with one exception. [ 17 ] The log shows that the last inspection and sweep of the area where the plaintiff fell was completed and recorded at 15:31. This was nine minutes or less before the plaintiff fell which, according to the Injury Report, took place at 3:40 p.m. or 15:40. Ms.

Charlie, in her evidence, described receiving a telephone call on her cellular telephone moments after the fall at 3:38 p.m. or 15:38. THE LAW [ 18 ] The duty of care on an occupier of premises to persons on the premises is set out in s. 3 of the Occupiers Liability Act (the “ Act ”), R.S.B.C. 1996, c. 337 :

(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2) The duty of care referred to in subsection (1) applies in relation to the

(

a) condition of the premises, (

b) activities on the premises, or (

c) conduct of third parties on the premises. [ 19 ] The law is usefully summarized by Cohen J. in his decision in Van Slee v. Canada Safeway Limited , 2008 BCSC 107 , at para. 7 ff. In this decision the court began by quoting the decision of our Court of Appeal in Coulson v. Canada Safeway Limited (1989), 1988 CanLII 3202 (BC CA) , 32 B.C.L.R. (2d) 212 at p. 214, where Hutcheon J.A. speaking for the court said: In Rees v. B.C. Place , [1987] B.C.W.L.D. 756 , Vancouver No. C850843, 25 th November 1986 (not yet reported), Mr.

Justice Trainor summarized the obligation under s. 3 of the Occupiers Liability Act in this way: The proceedings are brought under the Occupiers Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe. The first requirement to satisfy that obligation is to take the kind of steps that were taken by the defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse.

And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place. [ 20 ] The plaintiff in this case bears the onus of proving her claim on a balance of probabilities and this burden applies in the circumstances of a motion brought under R. 18A: Miura v.

Miura (1992), 1992 CanLII 1040 (BC CA) , 66 B.C.L.R. (2d) 345 at p. 352. [ 21 ] The provisions of the Occupiers Liability Act do not create a presumption of negligence and the fact that someone slips and falls does not shift the onus of proof. [ 22 ] A person who brings an action under the Act must still establish that their injury and loss was caused by some act (or omission) on the part of the occupier: Bauman v. Stein (1991), 1991 CanLII 1140 (BC CA) , 78 D.L.R. (4 th ) 118 at p. 127; Lansdowne v.

United Church of Canada , 2000 BCSC 1604 at para. 22 . [ 23 ] The present case has marked similarities to that before the court in Van Slee and that in Lansdowne as well. At paras. 26 to 29 of Van Slee , Cohen J. writes: [26] In the case at bar, the plaintiff made a similar assertion. In para. 10 of her affidavit the plaintiff deposed “. . . given the nature of the weather on the day in question, I am certain that I must have slipped on water that had accumulated in front of the customer service desk”.

As defence counsel pointed out, like the plaintiff in Lansdowne, supra , the plaintiff in the case at bar deposed, essentially, “what else could it have been”? [27] However, unlike the plaintiff in Lansdowne, supra, who could point to loose carpet threads, the plaintiff in the case at bar did not see any accumulated water, has no other evidence about accumulated water, nor any evidence that a hazard of any kind was present at the time she slipped and fell.

Thus, I agree with defence counsel that her case is not even as strong as that of the plaintiff in Lansdowne, supra. [28] Returning to Lansdowne , supra , at para. 22 Scarth J. noted that the Court cannot presume negligence on the part of an occupier. At para. 23 his Lordship went on to state, as follows: In my judgment, on the evidence before the Court here the Court would have to resort to speculation in order to find that Ms. Lansdowne’s fall was caused by the loose threads on the bottom step of the stairs or some other defect in the carpeting on those stairs. This it must not do.

According to [the plaintiff’s friend], when she saw the threads one week after the accident they were coming out over the bottom step. Ms. Lansdowne, however, does not know on which step she tripped or where on the stairs she started falling. At best both [the plaintiff’s friend] and Ms. Lansdowne are able only to advance a theory that in some way Ms.

Lansdowne’s sandals got caught up on the loose threads and that as a result she tripped and fell. [29] Scarth J. went on to dismiss the action. [ 24 ] In the case at bar the plaintiff’s evidence does not and cannot establish the existence of water on the floor at the time she slipped and fell. The assumption that she slipped in water clearly arises from the fact that her clothing was wet while she was on the floor after the display was knocked over. The evidence relied upon by the plaintiff’s counsel from Mr.

Wadsworth is based on the assumption the plaintiff made and that arising from the evidence of Derik Sheers was both hypothetical and unrelated to the date of the accident. Mr. Sheers was not working on the day of the slip and fall and had no first hand knowledge of the incident.

Neither establishes a breach by the defendant. [ 25 ] As was the case in Van Slee , the plaintiff has not proven the existence of a condition or hazard which caused her to slip and fall, nor, that the existence of any such condition existed as a result of a breach of duty by the defendant. [ 26 ] The evidence on this application establishes that a reasonable system was in place to inspect, clean and identify problem areas or conditions and that it was followed. [ 27 ] The evidence establishes that the specific area was examined and cleaned approximately nine minutes before the fall in question. [ 28 ] Regretfully, the plaintiff has not met the burden of proof.

The action is dismissed. Costs will follow that event. “Parrett J.”