2011 NBCA 26, 2011 NBCA 26

COURT OF APPEAL OF NEW BRUNSWICK 105-10-CA THE ROMAN CATHOLIC BISHOP OF EDMUNDSTON (Defendant) APPELLANT L’ÉVÊQUE CATHOLIQUE ROMAIN D’EDMUNDSTON (Défendeur) APPELANT - and - - et - SOLANGE MOREAU (Plaintiff) RESPONDENT SOLANGE MOREAU (Demanderesse) INTIMÉE The Roman Catholic Bishop of Edmundston v. Moreau, 2011 NBCA 26 L’Évêque catholique romain d’Edmundston c.

Moreau, 2011 NBCA 26 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: July 15, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 15 juillet 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 239 Décision frappée d’appel : 2010 NBBR 239 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 25, 2011 Appel entendu : Le 25 janvier 2011 Judgment rendered: March 24, 2011 Jugement rendu : Le 24 mars 2011

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Larlee The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Quigg Counsel at hearing: For the appellant: André G. Richard, Q.C. For the respondent: Bernard Valcourt, Q.C. Avocats à l’audience : Pour l’appelant : André G. Richard, c.r. Pour l’intimée : Bernard Valcourt, c.r. THE COURT The trial judge did not err as alleged in the grounds of appeal set out in the Supplementary Notice of Appeal.

The appeal is therefore dismissed with costs in accordance with Note (1), Tariff “A” of Rule 59 of the Rules of Court . LA COUR La juge du procès n’a pas commis les erreurs que lui reprochent les moyens d’appel formulés dans l’avis d’appel supplémentaire. L’appel est donc rejeté avec dépens calculés selon la remarque (1) suivant le tarif « A » de la règle 59 des Règles de procédure . English version of the judgment of the Court delivered by: J.E. DRAPEAU, C.J.N.B. I.

Introduction and general background [ 1 ] The respondent was severely injured when she fell in a stairwell connecting the choir loft with the ground floor of the Sainte-Anne-de-Madawaska church. In detailed reasons for judgment, the trial judge concluded: (1) the respondent was in no way negligent in descending the staircase; (2) her fall would likely have been avoided if the stairwell had been equipped with a handrail along its full length; and (3) the appellant was liable for the respondent’s damages because the failure to install this safety device constituted a breach of his duty of care (see Moreau v.

L’Évêque Catholique Romain d’Edmundston , 2010 NBQB 239 , [2010] N.B.J. No. 248 (QL)). [ 2 ] The fall that gave rise to the underlying action occurred on July 17, 2003. The respondent was then 56 years old and had retired from her teaching career two years earlier. She was attending church in her capacity of choir director as the choir was slated to sing hymns during the liturgy. As she had done hundreds of times before, the respondent left the choir loft after the service by way of the multiple flights of stairs and landings leading to the main floor. At the last landing, her left foot slipped and she lost her

balance. Unable to steady herself, the respondent fell forward onto the next six stairs until her shoulder hit the door frame leading to the ground floor. [ 3 ] The church was built in 1923. If, at the time, there were standards governing the construction of stairs in a building such as the Sainte-Anne-de-Madawaska church, neither party saw fit to introduce them into evidence.

Furthermore, the record does not shed any light on the provisions of the National Building Code that might have helped define the standard of care the appellant had to meet to escape liability in tort. [ 4 ] The following is the trial judge’s description of the stairwell where the respondent’s unfortunate fall occurred: [TRANSLATION] The only way to reach the choir loft is via the flight of stairs where Mrs. Moreau fell. Access to the stairwell is through a door on the main floor near the entry to the church. The stairwell is comprised of four flights of stairs at right angles to one another.

Once through the main floor door, a first landing leads to a flight of stairs, that is, seven steps, which leads to another landing where, making a right-angle turn to the left, the user reaches a second flight of seven stairs leading to another landing where, making a right- angle turn to the right, a third flight of seven stairs leads to another landing where, making a right-angle turn to the right, a fourth flight of six stairs leads to the landing where the entry door to the choir loft is located. The steps, landings and risers are made of [concrete] and painted with smooth grey paint.

There are no colour differentiations, nor any physical indicators of the beginning or edge of a step or landing. The steps are about 36 inches wide and 11 and one-half inches deep. The riser measures about seven and one-half inches. The landings, that is, the platforms between each flight of stairs, are of varying sizes. The landing where Mrs. Moreau fell measures about 36 inches wide and 37 inches long. On both sides of the stairs is either a full wall or a half-wall 28 inches high. The latter are made of concrete and are painted white.

On top of these half-walls is a varnished hardwood plank measuring about eight inches wide and two inches high. The varnished hardwood plank does not extend from one flight of stairs to another. That is to say, when one makes a right-angle turn to the right or the left to leave the landing and take the first step of the next flight of stairs, the half-wall ends and there is no varnished hardwood plank or other handrail that extends to connect the beginning of the next half-wall where the varnished hardwood plank again begins. There is no handrail along the full wall [.] At the location of Mrs.

Moreau’s fall, that is, in the last flight of stairs, going down, there is a half-wall on the right and a full wall on the left. There was no handrail in this stairwell at the time of the accident, other than the varnished hardwood plank on the half-wall. [paras. 19-24]. [Emphasis added.] [ 5 ] Of significance is the fact that, at the time these events occurred, the church featured another stairwell, similar to the one that concerns us here. This terrazzo staircase was located at the side of the church and connected the exterior courtyard with the main floor.

Even though it was comprised of only two flights of stairs (for a total of fifteen steps) and there were half-walls topped with varnished hardwood planks on the right, a circular handrail had been installed along the whole length of the full wall on the left. In addition, a white strip had been applied near the edge of each step and landing to demarcate those edges.

However, the steps and landings in the stairwell leading to the choir loft were left unmarked. [ 6 ] According to the trial judge, the following questions needed to be determined in order to decide the issue of the appellant’s liability: (1) was the respondent owed a duty of care and, if so, what standard of care applied? (2) did the appellant meet the applicable standard and, if not, did that failure cause the respondent’s losses? and (3) in the event the latter question were to be answered in the affirmative, was there contributory negligence on the part of the respondent?

The parties acknowledge that this analytical inquiry is beyond reproach. [ 7 ] Given the appellant’s acknowledgement from the outset that he owed a duty of care to the respondent, the judge focused on the issue of the standard of care. She held the applicable standard required the appellant to provide reasonably safe

premises and to take reasonable measures to ensure that users of the staircase leading from the choir loft to the main floor did not fall. The judge was of the view that [TRANSLATION] “an ordinary, reasonable and prudent person would not allow a [concrete] stairwell, comprised of four flights of [concrete] stairs with 27 steps in all, to be used by the public without the installation of an extended handrail…” (para. 60). According to the judge, a handrail would have provided support and helped users keep their balance. It would also have assisted in regaining balance, if necessary.

The judge found the appellant could have reasonably foreseen that, without an appropriate handrail, a user could lose his or her balance, be unable to regain it, fall to the bottom of the stairs and suffer serious injuries. [ 8 ] Moving from the general to the specific, the judge found that an appropriate handrail could have given the respondent support as she descended the stairs and, thus, have helped her avoid a fall altogether. She also found that an appropriate handrail would have given the respondent [TRANSLATION] “something sturdy” to grab onto so that she could regain balance.

According to the judge, the failure by the appellant to install an appropriate handrail constituted a breach of his duty to take reasonable measures to ensure the safety of the premises. [ 9 ] The judge then addressed the issue of causation. First, she stated that [TRANSLATION] “if there had been an appropriate extended handrail, the [respondent] could have been able to hold onto it while descending the stairs, grab hold of it when she lost her [balance] and thus prevent herself from falling” (para. 71).

She then left the hypothetical arena and recognized, in no uncertain terms, that there was a sufficient causal link between the appellant’s failure to install an appropriate handrail on the one hand, and the respondent’s fall and the injuries she sustained on the other (para. 75). According to the trial judge, it followed that the appellant was liable in negligence. [ 10 ] The trial judge then addressed the issue of contributory negligence.

She found the respondent’s hands were unburdened, her footwear was suitable, she “descended the staircase slowly and carefully, one step at a time, as always” and she slipped before losing her balance (para. 70). According to the judge, the respondent slipped and lost her balance despite exercising reasonable care. There were, therefore, no grounds to hold her liable for any part of the damages. [ 11 ] The Supplementary Notice of Appeal took issue with the assessment of damages made at trial but the grounds of appeal on point were abandoned at the hearing.

Nevertheless, it may be useful to lay out the details of the respondent’s injuries and their after-effects, if only to illustrate the serious risks associated with the absence of a handrail. [ 12 ] After her fall, the respondent was taken by ambulance to the regional hospital where the diagnosis of a severely comminuted fracture of her left shoulder was made. When both a closed and open reduction of the fracture proved impossible, the attending orthopedic surgeon opted for a Neer arthroplasty, the purpose of which was to restore articular mobility through the use of a prosthesis.

The trial judge accurately described the after-effects of the July 17, 2003 fall in the following excerpt from her reasons for judgment: [TRANSLATION] The plaintiff had to undergo a long period of rehabilitation that required no fewer than about sixty physiotherapy sessions over a period of a year and a half, as well as several follow-up visits with the orthopedic surgeon. She also maintained a home exercise program prescribed for her by a physiotherapist. On December 10, 2008, Dr. Perkins made the following observations after viewing x-rays of Mrs.

Moreau’s left shoulder: [TRANSLATION] “We can therefore conclude that the x-rays indicate major muscle atony with mechanical restriction due to the position of the prosthesis inserted as a result of the fracture to Mrs. Moreau’s shoulder.” He concluded in the following terms: [TRANSLATION] “We can therefore state with certainty that this shoulder is barely functional and that it is practically impossible for Mrs. Moreau to lift her arm above her head.” The treatment described by Dr. Perkins as a shoulder-saving surgical intervention did not produce the desired results. Mrs.

Moreau still experiences pain and discomfort. She was left with a considerable loss of strength and movement in her upper left limb. This interferes with her daily activities and limits her ability to carry out her personal care routine. Mrs. Moreau testified that she was unable to do much of anything for several months after the accident. She had trouble sleeping because of the pain. She took medication to control her pain and wore a sling on her left arm. Her husband had to take care of her personal needs and household duties. Things improved after a few months.

As a result of the accident and the functional restrictions resulting from her injuries, Mrs. Moreau is no longer completely self-sufficient with respect to her personal hygiene and care. She requires her husband’s assistance to shower and bathe, to wash and do her hair, and to get dressed and undressed. She can carry out light domestic chores by herself if she goes slowly, but is dependent upon her husband for heavier housework such as major housecleaning, sweeping and washing floors and moving and emptying heavy pots and pans.

Her husband is also the one who has to clean the toilet and bathtub, wash the walls and floors and do the vacuuming. He also has to help her perform several other tasks that she was previously able to do herself. She is restricted as regards to any work that requires her to lift her left arm past her left shoulder or that requires strength in her left arm. Mrs. Moreau summarized her persisting problems as pain in her shoulder, in the upper part of her left arm and under the armpit, constant stiffness in her upper left limb and an inability to move her arm around to her back or lift her arm up past her shoulder.

All of these limit her daily activities considerably to one degree or another. She has had to learn to function with only one arm and hand whenever possible. She has specific limitations in her upper left extremity caused by limited range of motion in the shoulder and loss of strength and muscular endurance of the arm. These restrict daily activities that require the use of this extremity. Mrs. Moreau is right-handed. Her continued ability to perform certain tasks, albeit with pain and discomfort, would entitle her to general damages for non-pecuniary loss.

If she continues to be able to perform certain tasks but needs more time to get them done, her loss of time would be considered, at best, a loss of enjoyment of life and must also be taken into account in the calculation of general damages for non-pecuniary loss. I am satisfied on the evidence that there are certain home-related chores that Mrs. Moreau cannot perform at all and others that she cannot perform without her husband’s help. These are tasks that she normally performed prior to the accident. The evidence shows that Mrs.

Moreau perseveres and succeeds in performing tasks that she normally performed before, but only by taking more time to perform them and while suffering discomfort. The prosthesis inserted into the plaintiff’s left shoulder has a life span of 10 to 15 years. In his September 1, 2005, report, Dr.

Perkins expressed the following opinion: [TRANSLATION] “The patient may eventually require further surgery to replace the prosthesis because these prostheses have a limited life span and it is common for such patients to [undergo surgery again] to replace the prosthesis, particularly when they are relatively young.” If Mrs.

Moreau undergoes further surgery to replace the prosthesis, she will again require hospitalization, time to convalesce and prolonged physiotherapy treatment and will be left with even more severe functional restrictions. [paras. 83-92] [ 13 ] The judge then went on to assess damages, taking into account the medical and actuarial evidence that she chose to accept: Past loss of valuable services, including interest $27,034.00 Future loss of valuable services $36,640.00 Cost of future care $15,916.00 Various amounts, including interest $2,481.66 Medicare, including interest $21,794.73 General damages, including interest $53,656.64 GRAND TOTAL: [$157,523.03 ] [para. 125] II.

Analysis and decision [ 14 ] In his Supplementary Notice of Appeal, the appellant submits the trial judge erred in that she: (1) defined the applicable standard of care without expert evidence on point and notwithstanding the fact that building standards were not established by

the evidence; (2) determined a causal link existed between the failure to meet the standard of care as she defined it, on the one hand, andthe respondent’s fall, on the other, without any evidence whatsoever in support; and (3) exonerated the respondent of all liability.

In hiswritten submission, the appellant also formulated arguments outside the framework of these grounds, but it should be noted that, underRule 62.09 of the Rules of Court, “an appellant shall not rely on a ground of appeal unless it is stated in the Notice of Appeal or aSupplementary Notice of Appeal” except with leave of the Court of Appeal or a judge thereof. Given that leave was not obtained underRule 62.09, I propose to dispose the appeal exclusively on the basis of the issues raised by the grounds of appeal contained in theSupplementary Notice of Appeal. A.

Could the judge define the standard of care to be applied to the appellant without expert testimony on the issue or evidence toestablish the relevant building standards? [15] It is incumbent upon the court to define the standard of care as dictated by the facts and by the law, and todecide whether the conduct of a party to the proceedings has met that standard.

Though it is true the court may take external indicators ofreasonable conduct into account, including standard practices in the field at issue, as well as statutory or regulatory standards, the factremains that the court must define the applicable standard of care according to its appreciation of the conduct “of an ordinary, reasonableand prudent person in the same circumstances” as the party involved (see Ryan v. Victoria (City), (SCC), [1999] 1S.C.R. 201, [1999] S.C.J. No. 7 (QL), at para. 28 for a statement of the general principle, and Carper v. Oakway Holdings Ltd. (c.o.b.The Surrey Inn), [1991] B.C.J.

No. 3851 (S.C.) (QL) and Robins v. Tremblay, [1993] O.J. No. 4691 (Gen. Div.) (QL), which dealt withactions in tort based on the absence of a handrail). [16] The trial judge held the standard of care applicable to the appellant required he provide reasonably safepremises for the purposes contemplated and, correlatively, that he refrain from acts or omissions that an ordinary person mightreasonably foresee were likely to cause damage to his or her “neighbour” (paras. 12 to 15). This statement of the standard of care fallssquarely within the law (see para. 2(1) of the Law Reform Act, S.N.B. 1993, c.

L-1.2, Basque v. Saint John (City), 2002 NBQB 131, 250N.B.R. (2d) 207 (per Glennie, J. at paras. 65, 93-95) and McAllister v. Wal-Mart Canada Inc (2000), (NB CA), 228N.B.R. (2d) 230, [2000] N.B.J. No. 300 (C.A.) (QL), at paras. 14, 18-22). [17] Furthermore, I am of the view the trial judge was entitled to find the failure to install an extended handrailconstituted a breach of the applicable standard of care even though the correctness of that finding was not confirmed by expert testimony(see Spokane & Inland Empire Railroad Company v. United States, No. 136, 241 U.S. 344 (1916), Salem v.

United States Lines Co., No.283, 370 U.S. 31 (1962), Emily S. Hopkins v. Fox & Lazo Realtors et al., 132 N.J. 426 (1993) and Evans v. Mathis Funeral Home, Inc.,No. 92-8856, 996 F.2d 266 (1993)). Although expert testimony on the accepted norms may be beneficial in many instances, it isessential only where the context is so esoteric that a person with ordinary judgment and experience could not form a valid opinion on thereasonableness of the conduct in issue (see Beshara v. Dysart (1998), (NB CA), 207 N.B.R. (2d) 14 (C.A.), [1998]N.B.J. No. 480 (QL)).

In the case at bar, the context is as commonplace as can be and, in my view, the trial judge had the necessarywherewithal to assess the reasonableness of the appellant’s conduct.

In any event, nothing in the record suggests there was somecommon practice or safety standard (statutory or regulatory) applicable to a stairwell in a building such as the Sainte-Anne-de-Madawaska church at the time of the respondent’s fall. [18] The trial judge found that, in light of all of the circumstances of the case, including the narrowness of thestairway and its component parts, namely four flights of stairs and 27 concrete steps, an ordinary, reasonable and prudent person wouldhave installed an extended handrail so that users “could protect themselves and avoid falls by holding onto it when descending the stairsand grabbing hold of it if they lost their balance” (para. 60).

This finding of fact cannot be set aside since there was no palpable andoverriding error in the judge’s assessment of the pertinent evidence. Furthermore, in my opinion, the soundness of this finding becomescrystal clear upon examination of the photographs that were admitted into evidence, including, in particular, those of the site of the falland of the other stairwell that was equipped with an extended handrail and white strip markings delineating the edges of the stairs andlandings. All things considered, the judge’s findings stand as products of ordinary common sense. B.

Did the trial judge err in her conclusions on the issue of causation? [19] The onus is on the plaintiff to prove on a balance of probabilities that his or her losses would not have occurredwithout the tortfeasor’s negligence. As Chief Justice McLachlin underscored in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, atpara. 78, and in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 22, the court must determine whether the losseswould have occurred but for the tortious conduct.

The trial judge found the appellant’s failure to install an extended handrail[TRANSLATION] “constituted the actual cause of the harm” suffered by the respondent. The appellant contends there is no evidence tosupport this finding. With respect, I cannot agree. [20] The existence of a sufficient causal link between the tortious conduct and the losses sustained is “essentially a

practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory” (see AlphacellLtd v. Woodward (1972), 2 All E.R. 475, at p. 490, Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, [1990] S.C.J. No. 73(QL), at para. 29, and Russell Brown, “The Possibility of ‘Inference Causation’: Inferring Cause-in-Fact and the Nature of Legal Fact-Finding” (2010), 55 McGill L.J. 1). The respondent testified as follows as to how her fall occurred: [TRANSLATION] When I reached the last step, I put my left foot on the landing and then my foot slipped. It was when I turned.

I was turning towards theright. Then, when I brought my right foot forward, it sort of made me lose [my balance] and there was absolutely nothing for me to grabhold of. [21] The respondent is a mature and responsible person. Recall that she is a retired teacher and the volunteerdirector of the church choir. The respondent, who was markedly obese at the time of the mishap, had to be alive to the loss of agilityassociated with such a condition. Furthermore, as described by the trial judge, her movements in the stairway in question were theepitome of caution.

In my view, the judge was entitled, in this set of circumstances, to draw the inference that the respondent wouldprobably have used a handrail wisely, if there had been one in the stairwell, and that, as a result, she would have avoided losing herbalance and falling. At the end of the day, the judge’s conclusions on the issue of causation are, to my mind, amply justified. C. Should the trial judge have found contributory negligence on the part of the respondent? [22] It has been stated many times that, under s. 5 of the Contributory Negligence Act, R.S.N.B. 1973, c.

C-19, faultis a question of fact (see, among other decisions on this issue, Roy v. Doucet, 2005 NBCA 84, 288 N.B.R. (2d) 12, and Hatty v. Reid,2005 NBCA 5, 279 N.B.R. (2d) 202, at par. 14, Larlee, J.A.). Even though the definition of the standard of care is a mixed question offact and law whose examination on appeal must be made according to the correctness standard of review (see Galaske v. O’Donnell, (SCC), [1994] 1 S.C.R. 670, [1994] S.C.J. No. 28 (QL), at p. 690, and Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235, at paras. 33 and 106), the decision on whether the respondent’s conduct met this standard is a finding of fact that calls for theapplication of a much more deferential standard of appellate review. According to the case law emanating from this Court since thedecision in Gallant v. Thibodeau (1998), (NB CA), 206 N.B.R. (2d) 336, [1998] N.B.J.

No. 445 (C.A.) (QL), such afinding of fact will not be reversed unless one of the following situations exists: (1) the primary facts supporting the finding were settledupon through a palpable and overriding error in the assessment of the relevant evidence; (2) the analysis and reasoning yielding thefinding were themselves tainted by a palpable and overriding error; and (3) the finding on the issue was unreasonable. [23] The appellant argues the judge should have found contributory negligence on the part of the respondent basedon the fact that she only began to lose her balance after a “misstep” (“faux pas” in French).

He points to Le Grand Robert de la langue française, vol. 4, 2nd ed. (Montréal: Les Dictionnaires Robert, 2001), where the expression “faux pas” is equated to [TRANSLATION]“a deviation from what is correct, normal”. It follows, he claims, that the respondent could not have made the “misstep” leading to herloss of balance unless she failed to look out for her own safety.

In my opinion, the Court cannot accept this argument for the followingreasons. [24] As I have already pointed out, the trial judge found the respondent descended the stairs slowly and carefully,and she rejected the appellant’s contention that the respondent was not wearing appropriate footwear. The judge concluded therespondent began to lose her balance when she slipped on the final landing that was painted [TRANSLATION] “with smooth rather thanrough grey paint”.

While it is true the trial judge occasionally used the expression “faux pas” (misstep) to describe the first stage in theloss of balance experienced by the respondent, it seems clear to me that she did not give the expression in question the figurativemeaning which the appellant is putting forward. In this regard, suffice it to recall that the trial judge found there was no lack of care onthe respondent’s part when she slipped on the smooth surface of the last landing.

With respect, the meaning that the appellant seeks togive to the expression “faux pas” (misstep) seems ill-suited to describe the precipitating event, that is to say, the respondent’s left footslipping on the smooth surface of the last landing without any fault on her part. [25] Be that as it may, one of the primary purposes of a handrail is precisely to prevent a stairway user from losinghis or her footing; the other is to help him or her regain balance.

According to the trial judge’s findings of fact, a handrail would probablyhave prevented the respondent’s “faux pas” (misstep) and, in the event she did lose her balance, it would have allowed her to steadyherself.

Accordingly, the genesis of the “faux pas” and the ensuing fall are clearly within the purview of the appellant’s lack of care. [26] With respect, the appellant has failed to establish any of the following situations: (1) the primary factsunderlying the exoneration of the respondent were settled upon through a palpable and overriding error in the assessment of theevidence; (2) the analysis and reasoning yielding the exoneration were themselves tainted by a palpable and overriding error; (3) theexoneration was unreasonable.

Accordingly, it is my duty to uphold the respondent’s complete exoneration of liability for the losses shesuffered.

III. Conclusion and disposition [ 27 ] The trial judge did not err as alleged in the grounds of appeal set out in the Supplementary Notice of Appeal. I would, therefore, dismiss the appeal. Lastly, I would order the appellant pay costs in accordance with Note (1), Tariff “A” of Rule 59 of the Rules of Court . __________________________________ J. Ernest Drapeau, Juge en chef du Nouveau-Brunswick NOUS SOUSCRIVONS À L’AVIS: ____________________________________ M.E.L. Larlee, J.C.A. ____________________________________ Kathleen A. Quigg, J.C.A.