2018 QCCQ 1915, 2018 QCCQ 1915

Kape c. Cogir Société de gestion 2018 QCCQ 1915 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-22-224669-153 DATE: March 26, 2018 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ Rita kape Plaintiff v. cogir société de gestion -and- ELAD CANADA INC.

Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims damages in the amount of $33,055 from the property manager ( Cogir Société de gestion ) and owner (Elad Canada Inc.) of Westmount Square for the injury she allegedly suffered by tripping on the power cord of a computer in the food court area of the building. [ 2 ] The cord hung between the table on which a patron had placed the computer and an electrical outlet on a nearby wall.

Plaintiff claims that by allowing this situation to arise, Defendants created a danger to the safety of the public and must be held liable for her injury. [ 3 ] Defendants submit that Plaintiff provided no proof of fault or wrongdoing on their part and, consequently, that they cannot be held liable for the incident. Subsidiarily, they argue that there is no causal link between the incident and Plaintiff’s alleged injury. [ 4 ] For the reasons more fully set out below, the Court concludes that Plaintiff’s action must be dismissed.

FACTual context [ 5 ] On September 4, 2014, Plaintiff was walking through the food court area of the shopping concourse in Westmount Square (“ WS ”), where she had been living for several years. [ 6 ] In this area, tables and chairs for patrons’ use are located in the centre of a large corridor lined with businesses on each side. At the time, the last tables and chairs were approximately 10 feet away from a stone column in the centre of the corridor, leaving sufficient space to allow patrons to walk through from one side of the corridor to the other.

Patrons did so regularly. [ 7 ] Plaintiff was doing exactly that when she tripped on the power cord of a patron’s computer, which was hanging between a table and an electrical outlet at the foot of the column. Although Plaintiff stated in her pleadings and during her examination in chief that she tripped and fell, she later admitted in cross-examination that she could not recall touching the ground; she stated that she “ half fell ”, pushing her hands out in an effort to steady herself and avoid falling.

The Court retains that when Plaintiff felt the cord on her legs, she made a sudden movement to steady herself and did not fall. [ 8 ] The sudden movement nonetheless left her in pain. She immediately consulted a doctor at the WS walk-in medical clinic, who recommended that she consult her osteopath, Mr. Frederic Watine. She made an appointment and was able to see him on September 12, 2014.

From then on and until the end of 2014, she received weekly osteopathic treatments from him. [1] Regular but less frequent treatments continued in 2015, 2016 and 2017. [2] According to the Plaintiff, these treatments were needed as a result of the incident. [ 9 ] Prior to the incident, Plaintiff was suffering from osteo-arthritis and had been under the care of Dr. Michael Starr, a rheumatologist at the Rheumatic Disease Center, since July 2012. Dr. Starr had also referred her to an orthopedic surgeon, Dr.

Olga Huk, because of pain in the legs, hips and lower back. [ 10 ] According to Plaintiff, her health condition seriously deteriorated after the incident: despite the care of Dr. Starr, Mr. Watine and Dr. Huk, the pain in her lower back, legs and hips increased to the point that she had to undergo hip replacement surgery in March 2015. [ 11 ] Plaintiff reported the incident to Cogir Société de gestion by email on October 3, 2014. A letter of demand was sent to Cogir in October 2014 [3] and another to Elad Canada Inc. in February 2015. [4] [ 12 ] Plaintiff filed suit in September 2015.

She seeks the following damages:

a) Pain and suffering and loss of enjoyment of life: $15,000

b) Temporary partial incapacity: $10,000

c) Costs of osteopathic treatments: $4,305

d) Expenses for recovery from hip replacement surgery – (3 weeks @ $1,250/week): $3,750 TOTAL $33,055 questions in issue [ 13 ] These facts and the position of the parties call for the resolution of the following questions:

a) Has Plaintiff proven that Defendants committed a fault giving rise to liability towards her?

b) Did Plaintiff suffer injury as a direct and immediate consequence of the alleged fault?

c) Is Plaintiff entitled to the damages claimed? [ 14 ] The Court must also rule on an evidentiary objection taken under advisement during the trial.

EVIDENTIARY OBJECTION [ 15 ] During the course of the trial, Defendants objected to the filing of certain photographs [5] and to Plaintiff’s testimony offered to prove that shortly after the incident, the tables and chairs in the food court were moved further away from the column and a sign was put near the outlet indicating that it was not functional. [6] In Plaintiff’s view, these changes are an implicit admission of fault or wrongdoing on the part of Defendants. [ 16 ] The basis of Defendants’ objection is that evidence of facts subsequent to the facts at issue (here, the incident) is irrelevant and inadmissible. [ 17 ] The objection must be dismissed. [ 18 ] Although the admissibility of evidence to prove that changes were brought after the fact to the place of an accident has been the object of debate, such evidence is now generally considered admissible. [7] The Court is of the view that insofar as it is relatively contemporaneous with the facts at issue, such evidence is admissible.

Depending on its probative value and the particular circumstances of a case, such evidence could bring a Court to conclude to an admission of fault or liability. [ 19 ] Here, the disputed evidence concerns changes brought to the food court area a few weeks after the incident and is admissible. ANALYSIS [ 20 ] Plaintiff’s action is based on

article 1457 of the Civil Code of Québec (“ C.C.Q. ”). [ 21 ] To succeed, she must prove, on a balance of probabilities, [8] that Defendants committed a fault; [9] that she suffered injury as an immediate and direct consequence of that fault; [10] and that she is entitled to the damages claimed as compensation for said injury. [11] [ 22 ] To meet this burden of proof, the evidence offered must be clear and convincing; [12] the alleged facts must not only be possible, but probable. [13] The Court must determine liability on the basis of the most probable facts. [14]

a) Has Plaintiff proven that Defendants committed a fault giving rise to liability? [ 23 ] Plaintiff submits that Defendants committed a fault by allowing a dangerous situation to arise in the food court area of WS (i.e. the cord dangling between the table and nearby column). Defendants, as owner and property manager of WS, are liable because this was a “trap” within the meaning ascribed by the Supreme Court of Canada in Rubis v.

Grey Rocks Inn Ltd. [15] [ 24 ] In her view, Defendants implicitly admitted their fault when they moved the tables and chairs further away from the column and placed a sign near the outlet a few weeks after the incident. [ 25 ] Respectfully, Plaintiff’s submissions are without merit for the following reasons. [ 26 ] Firstly, the Court sees no admission of fault or liability in Defendants’ conduct after the incident. An admission can be implicit, [16] but there must be a clear and unequivocal acknowledgment of what is at issue.

Here, one cannot reasonably infer from the changes brought after the incident that Defendants admitted to any wrongdoing. On the contrary, any reasonably diligent property owner or manager would react in a similar way irrespective of the cause or responsibility for the incident. [ 27 ] Secondly, Plaintiff may have succeeded in proving that a dangerous situation existed in the food court on the day of the incident, but she has failed to prove that it resulted from a fault on the part of Defendants.

This is fatal to her action. [ 28 ] In Grey Rocks , the Supreme Court stated that the common law concept of a trap could give rise to liability under Québec civil law if “ the occupier committed any fault in allowing that situation to exist ”. [17] [ 29 ] Our courts [18] and legal writers [19] have underscored that the existence of a “trap” does not, in and of itself, establish a fault on the part of an owner or property manager. It is essential to prove that a defendant, by its conduct, caused the dangerous situation to arise, failed to stop it from arising or tolerated its existence.

[ 30 ] No evidence was offered suggesting that Defendants’ conduct was not that of a prudent and diligent property owner or manager or that they caused or failed to stop a dangerous situation from occurring. [ 31 ] Nothing indicates that the configuration of the food court area – with tables located approximately 10 feet from the column with the outlet at its base – was inherently dangerous.

No evidence was offered to show that such a configuration violated any applicable norms, usages or practices for public areas, nor that it created a risk or encouraged patrons to plug electrical devices across the passageway at the foot of the column. [ 32 ] It appears unforeseeable that a patron would indeed plug a computer into the outlet at such a distance and Defendants cannot be blamed for not anticipating that this could happen.

No evidence was offered suggesting that Defendants were made aware of anyone else doing so prior to incident and that they tolerated a known risk. [ 33 ] On the facts, the Court cannot conclude that Defendants committed a fault within the meaning of

article 1457 C.C.Q. Property owners or managers are not the insurers of the public; they cannot be held responsible for all possible situations that may arise, no matter how unforeseeable. [ 34 ] In the absence of a fault on the part of Defendants, the Court must dismiss Plaintiff’s action. The Court will nonetheless analyze the second question in issue.

b) Did Plaintiff suffer injury as a direct and immediate consequence of the alleged fault? [ 35 ] Even if the Court had concluded to the existence of a fault giving rise to Defendants’ liability, it would have dismissed the action for lack of conclusive evidence that Plaintiff suffered injury as a direct and immediate consequence of the incident . [ 36 ] Plaintiff claims that the incident significantly worsened her pre-existing medical condition to the point of making it necessary for her to undergo hip replacement surgery in March 2015.

She relies in this respect on her own testimony, as well as on the expert reports of her treating physicians, Dr. Starr and Dr. Huk. [ 37 ] She testified that prior to the incident, she was followed by Dr. Starr for osteoarthritis and for pain in the legs and hips, but that she was generally quite well; she was able to walk and exercise frequently.

She stated that the increase in pain and gradual deterioration of her condition leading to the surgery was all secondary to the incident. [ 38 ] Plaintiff’s testimony in this regard is inconsistent, however, with her medical file at the Rheumatic Disease Center, [20] which suggests a much more serious medical condition prior to the incident. Indeed, Dr.

Starr’s notes state, inter alia , that Plaintiff was suffering from “ progressive OA [osteoarthritis]” of both hips, with “ rapid progression ”; [21] that she suffered from back pain; [22] from pain in her right hip; [23] in her lower back and upper buttocks; [24] and also in her groin and thigh. [25] [ 39 ] Dr. Starr’s notes also suggest that Plaintiff believed that the deterioration of her medical condition was not due to the incident at WS, but to other causes. On September 16, 2014, only ten days after the incident, Dr.

Starr suggests that Plaintiff attributes her deteriorating condition to a motor vehicle accident that took place on February 12, 2014; [26] earlier in January 2014, she seemed to suggest that the increased pain in her right hip was due to a “ trauma around x-mas/2013 after [she] hit a pothole ”. [27] [ 40 ] These inconsistencies seriously affect the reliability and credibility of her testimony. [ 41 ] Moreover, the “reports” of Plaintiff’s treating physicians do not establish that her condition worsened as a direct and immediate consequence of the incident. [ 42 ] Dr.

Starr’s report, dated September 30, 2014, [28] is very limited, containing only the following statement: “Please be advised that Rita Kape has osteoarthritis in her hips, and since fall in Westmount Square 12 sept/2014 (sic), her pain has increased, and she now requires orthopedic treatment, and increased use of anti-inflammatories.” [ 43 ] As for Dr. Huk’s report, dated May 13, 2015, [29] it simply states: “Patient with osteoarthritis R+L hip. Hip pain got worse after fall in Westmount Square in Sept 2014.

Had total hip replacement in March 2015.” [ 44 ] Although filed as expert reports, these notes clearly do not meet the requirements of

article 238 of the Code of civil procedure , which reads: 238. An expert report must be brief but provide sufficient details to enable the court to make its own assessment of the facts set out in the report and of the reasoning that led to the conclusions drawn by the expert. It must mention the analytical methodology used. Any testimony taken by the expert is attached to the report and forms part of the evidence.

The expert’s conclusions are not binding on the court or on the parties, unless the parties declare that they accept them. [ 45 ] What can the Court conclude from these notes? [ 46 ] It must be noted at the outset that both notes are based on the assumption that Plaintiff fell – most probably because this is what she told them – while the evidence shows that she did not. The basic assumption is therefore incorrect. [ 47 ] In addition, Dr.

Starr merely states that on September 30, 2014 (a short time after the incident) Plaintiff’s pain and need for treatment had increased “ since ” (and not as a result of) a “fall” in WS on September 12, 2014 (rather than September 4). Dr. Huk’s note of May 2015 provides little more help. It merely states that Plaintiff’s hip pain increased “ after ” (and not as a result of) a “fall” in WS

and in no way suggests that her hip replacement surgery was needed because of this. [ 48 ] This is not clear and convincing evidence that the incident in WS was the direct and immediate cause of the Plaintiff’s deteriorated medical condition. [ 49 ] As a final point, the Court notes that Plaintiff was wearing sunglasses at the time of the incident.

Had Plaintiff met her burden of proof on the essential elements of her claim against Defendants, the Court would have concluded that she should bear a portion of the responsibility, as this most probably hindered her ability to see and contributed to her tripping on the cord. [ 50 ] In conclusion, Plaintiff’s action must be dismissed with costs, including the fees of Defendant’s expert, proven to be of $1,724.63. [30] FOR THESE REASONS, THE COURT: DISMISSES the action; THE WHOLE WITH LEGAL COSTS , including experts fees in the amount of $1,724.63. __________________________________ DOMINIQUE GIBBENS, J.C.Q.

Date of hearing: September 13 and 14, 2017 (Taken under advisement on September 30, 2017) Me Alan M. Stein, Avocat Attorney for Plaintiff Me Xavier Mondor Weidenbach, Leduc, Pichette Attorney for Defendants