Darla Elizabeth Zary Plaintiff v. Canada Mortgage and Housing Corporation, 2015 BCSC 1145

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Zary v. Canada Mortgage and Housing Corporation, 2015 BCSC 1145 Date: 20150703 Docket: S125094 Registry: Vancouver Between: Darla Elizabeth Zary Plaintiff And Canada Mortgage and Housing Corporation Defendant Before: The Honourable Mr. Justice Skolrood Reasons for Judgment Counsel for the Plaintiff: D. Grunder Counsel for the Defendant: V.J. Pahl M. Checchia A/S Place and Date of Trial/Hearing: Vancouver, B.C. June 8, 2015 Place and Date of Judgment: Vancouver, B.C. July 3, 2015 Introduction [ 1 ] On October 24, 2010, the plaintiff, Ms.

Zary, injured her right knee when she fell in a washroom located in the Granville Island Public Market (the “Market”). Ms. Zary has commenced this action seeking to recover damages for the injury she suffered. [ 2 ] The Market is operated by the defendant Canada Mortgage and Housing Corporation (“CMHC”) and CMHC concedes that is an occupier within the meaning of the Occupiers Liability Act , R.S.B.C. 1996, c. 337 (the “ OLA ”). [ 3 ] CMHC applies, pursuant to Rule 9-7 of the Supreme Court Civil Rules , B.C. Reg. 168/2009 the

summary trial rule, for an order dismissing Ms. Zary’s claim.

Summary of the Evidence [ 4 ] While this is CMHC’s application, it is useful to start with Ms. Zary’s evidence and, in particular, her description of how she fell. [ 5 ] Ms. Zary is an artist and has been selling her art as a day vendor at the Market since 2004. As a result, she was familiar with the washrooms at the Market, including the one in which she fell, which is described as washroom B-4. [ 6 ] Ms. Zary deposes that she has used that washroom many times over the years. She goes on to say: Often the washroom is dirty.

Before October 24, 2010 there were frequent occasions when there was water on the floor of the washroom. On occasions I would not use that washroom because I know that water on the ceramic tile floor can be slippery. [ 7 ] Ms. Zary also provides evidence of her general observations concerning the washroom: My observation is that there is frequently water on the floor of that washroom. My observation is that the water accumulates from water dripping from the fixtures. I have seen drops of water that condense on the plumbing fixtures fall to the floor.

I have not seen a water leak in the washrooms, but I have seen water accumulate on the floor from what I believe to be water condensing on to the steel and porcelain fixtures. I have observed that there is a variation with respect to the moisture on the floor in the washroom. For example, in the summer I have observed the floor to be dry on some days. When the floor is dry it is not slippery.

[ 8 ] In terms of the incident on October 24, 2010, Ms. Zary describes her fall as follows: On October 24, 2010 I had worked at the public market. After the market closed I was getting ready to leave for the day. I walked into one of the women’s washrooms at the public market. On this occasion I did not see water on the floor as I walked into the washroom so I thought I would use the washroom. I pushed open the swinging door of the stall closest to the entrance of the washroom. When I pushed the swinging door open I saw that there was water on the floor in the area around and approaching the toilet.

Upon seeing the water I thought to myself that I did not want to use that stall because I did not want to run the risk of slipping because of the water. I took one step with my left foot to leave the stall. As I stepped I felt my right foot slip. I grabbed the door to the stall to try to prevent myself from falling, but I was not able to prevent myself from falling. I could not hold myself up by using the door and my legs were not in a position to support me. I called for help as I was holding onto the door. I fell to the wet floor and heard a “snap” from my right knee. [ 9 ] Ms.

Zary attaches to her affidavit a number of photographs that were taken shortly after she fell by another vendor, Ms. Vlaar. Certain of the photographs appear to show some moisture on the tiles and in the seams between the tiles in the stall where Ms. Zary fell. While the moisture is apparent in the photographs, there is no obvious pooling or collection of water on the floor. [ 10 ] Ms. Zary relies on the affidavit of Denis Gobeil who is also a vendor who sells carvings at the Market. He deposes that on January 31, 2014 he slipped on a wet floor in the men’s staff washroom after it was cleaned.

He says that he wrote a note reporting the incident to one of the tenant co-ordinators. [ 11 ] Mr. Gobeil’s affidavit is of minimal probative value given that he describes an incident in a different washroom over three years after the date on which Ms. Zary fell. [ 12 ] CMHC put forward evidence from a number of individuals concerning the system in place for inspecting and cleaning the washrooms at the Market as well as evidence from employees who attended the scene when Ms. Zary fell. [ 13 ] Vic Tacderan and Luisito Urbayo are janitors employed by CMHC who were on duty on October 24, 2010. Mr.

Tacderan deposes that he was working the afternoon shift that day and that he performs his duties in accordance with a set schedule. The janitorial staff work in two man teams and he was working with Mr. Urbayo. [ 14 ] According to Mr. Tacderan, the afternoon work

schedule requires that the washrooms in the Market, including B-4, are cleaned at approximately 3:00 pm, 5:00 pm and 7:00 pm. The work

schedule also sets out a detailed list of tasks to be completed with each cleaning, which includes “sweep and mop floors, thoroughly”. [ 15 ] Mr. Tacderan deposes further that it is his invariable practice to follow the tasks set out in the schedule. He says as well that if, while carrying out his duties, he ever came upon a water leak in any of the washrooms, he would immediately report it to the maintenance department. Mr. Tacderan has no recollection of any leak in washroom B-4 on the day in question. [ 16 ] Of note, Mr.

Tacderan says that because the washrooms in the Market receive a fair volume of traffic, it is impossible to keep the floors in the washrooms perfectly dry at all times. Accordingly, he says that bright yellow “Caution: Wet Floors” signs are placed outside the entrance to each washroom. [ 17 ] Mr. Tacderan says that on October 24, 2010, he heard a report on his radio that someone had fallen in washroom B-4. He and Mr. Urbayo attended and saw a woman lying on the floor in the washroom.

He says that he did not have an opportunity at that time to investigate what might have caused her to fall, but when they did the next scheduled cleaning at 7:00 pm, he did not notice any unusual amounts of water on the floor anywhere in the B-4 washroom. [ 18 ] Mr. Urbayo gave virtually identical evidence in his affidavit. [ 19 ] Carl Barrow is employed by CMHC as the Janitorial Supervisor at the Market. Mr. Barrow was not working on October 24, 2010 but says that he has no record of anyone reporting a leak in washroom B-4 on that day.

He says further that had there been any leak or unusual accumulation of water, he would have been notified as he always is when such events occur. [ 20 ] In his affidavit, Mr. Barrow describes the general system for cleaning the public washrooms in the market as follows: … the CMHC janitors, who work in assigned teams of two in the Public Market, are required to clean two women’s public washrooms, two men’s public washrooms, a smaller washroom for handicapped patrons, and two smaller staff washrooms (men and women). At 0600h, they clean the staff washrooms and do a visual inspection of the public washrooms.

At 1100h, 1300h, 1500h, 1700h and then 1900h, all of the Public Market washrooms are cleaned in accordance with the Cleaning

Schedule and Washroom Cleaning procedure. [ 21 ] Mr. Barrow goes on to say: As a result of the foot traffic the Granville Island Public Market typically receives on the weekends and people washing their hands and moving from the sinks in the public washrooms to the paper towel dispensers (as they were then), and washing fruit that is purchased at the Market, it is practically impossible to keep the floors in the Market public washrooms dry. In response, we

schedule the cleaning of the washrooms as often as practical and post a bright yellow plastic sandwich board “Caution” sign to advise patrons and day vendors that the bathroom floor can be potentially slippery when wet. These sign are located just inside the doorway of the main entrance of the public washrooms. There is a sign for each washroom. Such a sign would have been outside of the B-4 women’s washroom on the date of Ms. Zary’s fall. [ 22 ] Erik Nelson was the tenant coordinator for CMHC at the Market on October 24, 2010. Mr. Nelson’s shift ended that day at 1750h so he was not on duty at the time of Ms.

Zary’s fall. However, he was at the Market at 1900h as he was there to pick up his wife who also worked there. Mr. Nelson says that he was informed of the incident and so he went to look at washroom B-4. He says he did so before the janitorial staff arrived to clean it. According to Mr. Nelson, the floor was damp from use, which was typical for the time of year and time of day, but he did not observe any puddles of water or accumulations that would pose as a slip hazard.

[23] Heinz Pohl is a commissionaire who was on duty at the Market on October 24, 2010. He learned that someone had fallen in theB-4 washroom and attended the site where he saw Ms. Zary seated on the floor next to the first stall. [24] According to Mr. Pohl, he recalls that the washroom floor was damp in places, but there were no significant puddles of anykind. He said there was some water on the floor in the first stall, likely from the accumulation of the condensation that forms on the toiletand its plumbing fixtures, but no puddles or water. Mr. Pohl says further that before Ms.

Zary was taken out of the washroom, a yellowplastic “Caution” sign, that was outside the entrance to the washroom, was placed in the doorway of the washroom. [25] According to Mr. Pohl, during the approximately two and one half years in which he was employed as a commissionaire at theMarket, he was not made aware of any other sip and fall events in any of the washrooms. Severance and Suitability [26] As noted, CMHC seeks to have the liability issue determined on this

summary trial. No formal severance application has beenbrought. [27] Rule 9-7 does contemplate in subsection (2) that a party may apply for judgment on an issue or generally. However, theauthorities make it clear that where a party seeks judgment on liability only, even in the absence of a severance application, the courtmust consider the principles governing severance. [28] In Burg Properties Ltd. v. Economical Mutual Insurance Company, 2013 BCSC 209, Madam Justice Gerow described theproper approach as follows at para. 27: There is authority for the proposition that in a

summary trial application where a party seeks to proceed only on liability, a two stepapproach should be followed: the first step is to determine whether there should be severance, and the second step is to determine if asummary trial on the issue of liability is appropriate: Chun v. Smit, 2011 BCSC 412 at paras. 8-9. In Chun, the court stated that the testfor severance is whether there are extraordinary, exceptional or compelling reasons for the severance. A compelling reason to orderseverance is a likelihood of a significant savings in time and expense realized by a

summary trial: Bramwell v. Greater VancouverTransportation Authority, 2008 BCSC 1180 at para. 12. [29] I am satisfied that the test for severance is met in this case. In particular, I am satisfied that by deciding the liability issue inadvance, there will be a considerable saving in time and expense. If the liability issue is decided in favour of CMHC, then the case willbe at an end, subject to any appeal. If, however, liability is found in favour of Ms. Zary, the resulting trial on damages will beconsiderably shorter, if indeed it goes at all. [30] The issue then is whether the matter is suitable for determination by

summary trial. On this point, Rule 9-7(15)(

a) states: On the hearing of a

summary trial application, the court may (

a) grant judgment in favour of any party, either on an issue or generally, unless (

i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues offact or law, or (ii) the court is of the opinion that it would be unjust to decide the issues on the application, [31] The critical question facing the court when hearing a

summary trial application is whether the court can find the facts necessaryto decide the disputed issues. Even where the court can find the necessary facts, it must still consider whether it would be just to decidethe matter summarily, by reference to factors such as the amount involved, the complexity of the matter, its urgency, any prejudice thatmight arise by reason of delay, and the cost of taking the matter forward to a conventional trial: see Inspiration Management Ltd. v.McDermid St. Lawrence Ltd. (1989), (BC CA), 36 B.C.L.R. (2d) 202 (C.A.) and Gichuru v.

Pallai, 2013 BCCA 60 atparas. 30-31. [32] Taking account of all of the relevant factors, it is my view that the liability issue can properly and fairly be determined on thissummary trial application. I note in particular that all of the evidence going to the liability issue is before the court. Both parties cameprepared to argue the issue and both made comprehensive submissions on liability. [33] The only real conflict in the evidence concerns the location of the yellow “Caution” sign. Ms. Zary says that it was not presentwhen she entered the washroom but was placed in the doorway after she fell.

In contrast, a number of the defendant’s witnesses say thatthe sign was outside of the washroom door before the fall. [34] In my view, little turns on this conflict in that Ms. Zary states in her affidavit that she did not need a sign to tell her that the floormight be wet because she knew this from past experience. [35] In the circumstances, I am satisfied that I am able to find the necessary facts to determine the issue of liability on this

summarytrial application. Legal Framework for Occupier’s Liability [36] As noted at the outset, CMHC concedes that it is an occupier within the meaning of the OLA.

Section 3 of the OLA sets out theapplicable duty of care owed by an occupier:

(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, andthe person's property, on the premises, and property on the premises of a person, whether or not that person personally enters on thepremises, 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. [37] The applicable standard of care was described by Madam Justice Ross in Ball v. GAP (Canada) Inc., 2001 BCSC 1106, aff’d2002 BCCA 488 in these terms at paras. 25-27: [25] The standard expected of an occupier is one of reasonableness, not perfection. In Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33(S.C.), (aff'd (1987), 49 B.C.L.R. (2d) 99 (C.A.), McLachlin J., as she then was, wrote at p. 58: ...the duty owed by an occupier of premises is to take reasonable care to see that persons using the premises will be reasonably safe.

TheActs do not impose a duty to take reasonable care to insure that persons using the premises will be 'absolutely safe'. As stated inHagerman v. Niagra Falls (1980), (ON SC), 29 O.R. (2d) 609, per Labrosse J. at p. 613, the occupier does not owea duty to provide safety in all circumstances, but rather a duty to use reasonable care to prevent injury or damage from dangerwhich is known or which ought to be known. [emphasis added] [26] Case law holds that "an occupier is not an insurer". Lamont v. Westfair Properties (Pacific Ltd.) et al., [2000] B.C.J.

No. 513(Q.L.); 2000 BCSC 406, at para. 20. [27] While it is the case that the occupier is not an insurer and that the standard is not one of perfection, the Act does place an affirmativeduty on the occupier to make the premises reasonably safe. See Waldick v. Malcolm, (SCC), [1991] 2 S.C.R. 456. [Emphasis in original.] [38] In Mainardi v. Shannon, 2005 BCSC 644 [Mainardi], Mr. Justice Preston at para. 21 set out a number of principles developedin cases applying the occupier’s duty imposed by the OLA:

(1) The plaintiff bears the onus of proving on a balance of probabilities that the occupier breached his or her duty of care.

(2) A presumption of negligence is not created by the fact that the plaintiff was injured. The plaintiff must establish that some act orfailure to act on the part of the occupier resulted in his or her injury.

(3) The duty of care imposed by the Act does not require the occupier to remove every possibility of danger -- the test is one ofreasonableness, not perfection.

(4) The Court is not entitled to resort to speculation when determining the cause of the plaintiff's fall and subsequent injury. The plaintiffmust prove the nexus between his or her fall and the occupier's failure to discharge his or her duty of care.

(5) The care that an occupier must take differs according to the nature and use of the premises.

(6) The occupier need not, in all cases, show that he or she had a specific policy in place to deal with the maintenance of the portion ofthe premises where the fall occurred. The nature of the premises will determine whether or not a maintenance scheme will be required. [Omitting the citations.] [39] Ms. Zary cites a number of cases in which liability was found against the occupier in similar circumstances, including Burnett v.Canada Safeway Ltd., [1984] B.C.J. No. 1848 (C.A.); Coulson v. Canada Safeway Ltd. (1988), (BC CA), 32 B.C.L.R.(2d) 212 (C.A.); and Clark v.

Royal Oak Holdings Ltd. et al, 2003 BCSC 275. [40] Ms. Zary also cites a number of cases in which the plaintiff was unsuccessful in establishing liability because the cause of thefall could not be determined on the evidence: see for example Crudo v. Westfair Foods Ltd., 2005 BCSC 320; Van Slee v CanadaSafeway Ltd., 2008 BCSC 107 and Kerr v. Global Investments House Inc., 2014 BCSC 1544. Ms.

Zary submits that these cases aredistinguishable because the evidence in this case clearly establishes the presence of moisture on the floor of the washroom. [41] For its part, CMHC submits that it had in place a reasonable scheme for monitoring and cleaning up any potential hazards in thepublic spaces at the Market and that accordingly, it is not liable for Ms. Zary’s fall. It cites Tremblay v. Westfair Foods Ltd., 2003 BCSC1017; McComb v. Vancouver Island Health Authority, 2007 BCSC 556 [McComb] and Atkins v.

Jim Pattison Industries Ltd. (1998), (BC CA), 61 B.C.L.R. (3d) 183 (C.A.) in support of this position. [42] It is useful to note that in Atkins, the Court of Appeal held that it was not sufficient for the occupier to simply show that it had areasonable scheme in place, it also had to demonstrate that the scheme was being followed (at para. 6). Analysis [43] In determining whether CMHC breached the applicable standard of care, it is first necessary to make findings of fact as to the

circumstances of Ms. Zary’s fall. [ 44 ] I accept Ms. Zary’s evidence that when she first entered the B-4 washroom, she did not see any water on the floor of the main part of the washroom but she did see water when she entered the first stall. The evidence is unclear however as to how much water was present. In her affidavit, she simply states that “there was water on the floor in the area around and approaching the toilet”. As noted, she attaches a number of photographs to her affidavit and in describing one of them, she refers to the water that had accumulated in the seams between the floor tiles.

At her examination for discovery, she said that when she opened the stall door, her first reaction was “there’s all this water.” [ 45 ] None of CMHC’s witnesses dispute that there was water on the floor of the washroom, but they say that there were no puddles or unusual accumulations and that some degree of dampness was to be expected. [ 46 ] Thus, on the evidence, it is clear that there was some water on the floor, at least in the washroom stall. [ 47 ] I also accept that Ms. Zary’s fall was caused by the dampness on the floor.

I agree with CMHC that her explanation of how she tried to exit the stall and precisely how she fell is somewhat muddled but, as I understand her evidence, when she saw the water on the floor of the stall, she turned to leave and took one step with her left foot. As she did, her right foot slipped out from under her causing the fall. Based on the evidence, I am satisfied that the only proper inference to be drawn is that Ms. Zary slipped due to the water on the floor. [ 48 ] That, of course, is not sufficient to establish liability on the part of CMHC.

As numerous authorities have found, there is no presumption of negligence against an occupier simply by virtue of the fact that someone is injured. The plaintiff must still establish some act or omission on the part of the occupier that caused the injury ( Mainardi at para. 21 ). [ 49 ] Accordingly, the central issue in this case is whether CMHC met its obligation under s. 3(1) of the OLA to take reasonable care to insure that persons entering its premises would be reasonably safe. Put another way, and with reference to the Court of Appeal’s decision in Agar v.

Weber, 2014 BCCA 297 [ Agar ] at para. 30 , did CMHC take adequate steps to “protect others from an objectively unreasonable risk of harm”? [ 50 ] I pause here to note that in its written submission, CMHC submits that water accumulating on the floor of a public washroom does not constitute an “unusual danger.” However, as stated by Madam Justice Smith in Agar at para. 49 , the concept of “unusual danger” was an aspect of the former common law test for occupier’s liability, which has been superseded by the provisions of the OLA and the corresponding test set out above. [ 51 ] CMHC submits that it has met its obligation under the OLA .

It points to its established system of regular maintenance and cleaning which it says operated to reasonably minimize the hazards associated with a public washroom. Further, it submits that it would be wholly unreasonable, and would amount to imposing a standard of perfection, to require it to maintain the public washroom floors in a completely dry state at all times. [ 52 ] CMHC cites Cooper v. Spectra Food Corp., [1998] B.C.J. No. 2297 [ Cooper ] which involved a slip and fall by the plaintiff near to the front entrance of a restaurant.

Madam Justice Loo made the following observation at para. 38, which is relied on by CMHC: … It would be unreasonable for the defendant to achieve a standard of perfection and maintain a perfectly dry floor, particularly near the entrance of a restaurant in a city which is known for its rainfall. [ 53 ] That passage however must be read alongside of the preceding sentences in para. 38 where Madam Justice Loo said: I find that where the plaintiff fell was approximately ten feet from the front entrance and most probably had traces of water on it due to the rain and snowy conditions outside.

However the defendant had absorbent mats in the doorway to absorb water and snow tracked in by the restaurant patrons. I find that to be reasonable in these circumstances. … [ 54 ] Thus, as can be seen, the defendant in Cooper had taken steps to address an identified hazard. It should be noted as well that notwithstanding her finding above with respect to the absorbent mats, Madam Justice Loo nonetheless found the defendant liable for failing to ensure that the slip resistant flooring installed elsewhere in the restaurant was properly maintained and re-applied when necessary (at para. 40). [ 55 ] Ms.

Zary submits that here, CMHC failed to take any similar precautionary measures.

For example, she says that if CMHC could not provide a dry floor, it should have taken steps to render the floor less slippery, such as installing some sort of abrasive or slip resistant surface to the floor. [ 56 ] While the use of absorbent mats, as in Cooper , or the addition of slip resistant flooring material would no doubt be prudent on the part of CMHC, the absence of these measures does not in my view constitute a failure by CMHC to meet its statutory obligations under the OLA . [ 57 ] Given the nature of the business carried out at the Market and the volume of foot traffic that passes through the Market, particularly on weekends, it is inevitable that there will be some moisture on the floor of the public washrooms at any given time.

However, absent evidence that any degree of dampness renders the floors in the bathrooms unsafe, the mere presence of water does not in my view constitute an “objectively unreasonable risk of harm”. This is particularly so given Ms. Zary’s knowledge that the floor in the washroom was often damp. [ 58 ] Moreover, I am satisfied that, in any event, CMHC has in place a reasonable system of maintenance of the public washrooms which provides for inspection and cleaning of the washrooms at reasonable intervals as well as a process for dealing with unusual events such as a water leak.

In my view, that system effectively “minimized hazards and fulfilled the defendant’s duty to keep the bathrooms reasonably safe for use by all users, including the plaintiff”: McComb at para. 57.

[ 59 ] Ms. Zary’s fall is unfortunate and the injuries that she sustained have no doubt had a significant adverse effect on her. However, I am unable to find that the fall was caused by

an act or omission of CMHC in breach of its obligations under the OLA . Ms. Zary’s claim is therefore dismissed. [ 60 ] CMHC is entitled to its costs at Scale B. “Skolrood J.”