JESSICA ASHLEY FRANCOEUR Plaintiff v. LE KOZY BAR INC., 2023 NBKB 89

2023 NBKB 089 COURT FILE: WC 41-2020 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF WOODSTOCK BETWEEN: JESSICA ASHLEY FRANCOEUR Plaintiff and LE KOZY BAR INC. Defendant Before: The Honourable Mister Justice Danys R.X. Delaquis Date of hearing: March 30, 2023 Date of Decision: May 23, 2023 Appearances: Jordan Thompson - for the Plaintiff Stephanie M. Leahy Gabrielle Maltais - for the Defendant

Summary:

Summary Judgment Motions – Liability of Owner of Commercial Properties for Personal Injury DECISION DELAQUIS, J.:

OVERVIEW [ 1 ] On February 8, 2020, the Plaintiff attended the Defendant’s bar and restaurant for what she thought was going to be a nice evening out with her spouse and friends. She consumed some alcohol before and after dinner, but even the Defendant concedes that she was not intoxicated when, at about 12:45 am, the Plaintiff opened a self-closing basement door with a small “Employees Only” sign on it. After she stepped onto the top stair with no landing, the door pushed her forward and closed behind her.

Her attempt to grab a railing for support met with no success because it was not properly constructed or attached. As a result, the Plaintiff fell down the basement stairs and sustained personal injury. [ 2 ] The Plaintiff argues that

Summary Judgment should be granted in her favour because the Defendant’s breach of the applicable standard of care caused her personal injury.

The Plaintiff relies on expert opinion evidence regarding the condition of the stairs to establish that they violated various provisions of the National Building Code thereby creating unreasonably safe premises. [ 3 ] The Defendant concedes that it owed the Plaintiff a duty of care but takes the position that it met the standard of care in the circumstances by reasonably warning patrons not to enter the doorway leading to the basement and that any loss or damage “was caused solely by the negligence of the Plaintiff who failed to take necessary precautions and care to ensure her own safety”: see paragraph 20 of the Statement of Defence.

The Defendant also requests an Order granting

Summary Judgment. [ 4 ] The question to be determined is whether the Defendant is liable based on the law of negligence. If the Plaintiff establishes that the Defendant is liable, there is no genuine issue for trial in respect of her claim and

Summary Judgment follows. The same relief is afforded to the Defendant if it establishes a full defence in terms of liability because there would be no genuine issue in respect of its Defence. FACTS The Back of the Bar and the Stairs [ 5 ] Ms. Brigitte LaForest, one of the Plaintiff’s friends, confirmed that everyone used a gender-neutral washroom located near their table all evening, which was located near the video lottery terminals in the front corner of the bar, near the front entrance.

She further confirmed that there are smoking areas in the front and back of the bar. [ 6 ] During winter months, patrons, as well as the Defendant’s employees, are permitted to use the garage in the back of the premises to smoke. Patrons who access the garage to smoke walk past washrooms located in the same area, turn right and enter through a door. The basement door is situated to the left of the garage door, as one enters. [ 7 ] The basement is used to store supplies and to prepare food for the Bar and restaurant.

The Defendant’s owner, Maurice Rivard, states in his Affidavit that employees often use the basement stairs throughout the night to retrieve supplies, including alcohol for the bar. [ 8 ] Black and white photos (photocopies) of the back area of the Bar, as well as the stairwell door and the “Employees Only” sign were submitted as evidence. Photos of the stairwell and basement depict dark colored stairs with no landing at the top. The photos also show what can only be described as a homemade handrail purportedly attached to the wall on the right-hand side for someone wanting or needing to use it.

There is no handrail on the left side of the stairs and indeed, nothing preventing someone from falling into an open area onto the concrete floor below from that side. [Pages 13, 82, 113, 116,117 and 118 of the Record on Motion – “ROM”]. [ 9 ] A large 2-door cooler, presumably used to store alcohol and food, is situated to the left of the bottom of the basement stairs. A shelving unit used to store dry goods is situated directly across from the cooler [Page 117 of the ROM]. [ 10 ] My appreciation of the photos presented as evidence is that the washroom doors are dark, and perhaps black in color.

Washroom doors at the back of the Bar, near the stairwell door, are the same dark color as the basement door.

[ 11 ] The basement door opens toward the hallway or toward the person opening the door. Paragraph 15 of the Statement of Defence describes in more detail how the basement door operates: 15. The defendant further states that the said door is equipped with a standard automatic closing mechanism, adjusted to a reasonable tension, and clearly visible to anyone opening and examining that inside of that door, and was so equipped on the night in question. [ 12 ] This perhaps explains why Mr.

Rivard stated in his Affidavit at paragraph 14, that: “Une fois la porte ouverte, il faut advancer vers la porte.” [ 13 ] Once the door is opened, the person advances toward the stairs, which are situated immediately on the other side of the door. As Mr. Rivard confirmed in his Affidavit at paragraph 15: “L’escalier est immédiatement après la porte”. [ 14 ] The small “Employees Only” sign is dark with what appears to be a white or silver contour around it. The sign was posted in the middle, and above the mid-point, on the basement door. According to one of the Defendant’s employees, Ms.

Michaud, the “Employees Only” sign has been affixed to the basement door since at least 2014. However, Ms. Michaud and Mr. Rivard state that another sign indicating “Do Not Enter” was affixed to the basement door sometime after the incident occurred. [ 15 ] The basement door, according to paragraph 20(

g) of the Statement of Defence, was “also fitted with an electronic pushbutton combination lock and a keyhole above the doorknob, and as well a standard self-closing door mechanism clearly visible once the door is opened”. [ 16 ] Mr. Rivard confirmed that the basement door has a keypad to lock the basement door, but that it was not locked on February 8, 2020, to facilitate access to the employees. The keypad is located directly above the door handle.

It may be opened by either punching in a pre-determined code or with a key. [See for example, Photo 17 at Page 116 of the ROM]. [ 17 ] Some photos attempt to depict measurements of the height of the stairs, but in many cases, they are difficult to view because of the quality of the photographs. However, Exhibit B to the Plaintiff’s Affidavit [Page 204 of the ROM] is a sketch prepared by Réclamation Marsh Adjustment that the Plaintiff verily believes to be true.

This sketch also refers to various measurements of approximately 12 stairs, including that they are 53” long and have slightly different heights and widths. Steps 3, 10 and 11 have no edge border. [ 18 ] According to this sketch, the distance between the edge of the top stair and the door is approximately 14 inches.

Photo 40 at page 127 of the Record on Motion is described as showing a “view of underneath the door leading to the hallway taken from the staircase” and appears to confirm, according to the caption, that “[s]teps are accessed as soon as the hallway door is opened to access staircase to basement”. [ 19 ] The sketch is not drawn to scale but provides a bird’s eye view of the layout of the back area of the Bar. It depicts the layout of the hallway and the proximity of the garage door and the door leading to the basement.

The basement door is situated directly to the right of the garage door for someone exiting the garage and going back to the Bar. The ladies washroom door is to the left as one exits the garage door, but is a little further away from the garage door when compared to the basement door. The ladies washroom door is situated directly across the hall from the basement door on the sketch. [ 20 ] Mr. Rivard deposes in his Affidavit that there is a handrail (“une rampe”) which is attached to the wall and follows the stairs leading into the basement on the right-hand side. However, the Plaintiff’s common law spouse, Mr.

Morin, challenges this evidence at paragraph 14 of his Affidavit: 14. As I was helping the Plaintiff up the stairs, she leaned on the railing for support. The railing was a piece of two by four wood that was leaning against the wall, not secured to the wall. As the plaintiff put her left hand on the railing for support, it fell on us. [ 21 ] The caption of another photo taken on February 25, 2020, showing the homemade railing reads: “As per employee, Mrs. Martin-Roach this wooden ramp should have been attached to the permanent ramp at the time of the loss.

When she looked after TP fell, it was not attached, and she is assuming it is from claimant trying to secure herself when falling”. [Page 190 of ROM].

[ 22 ] Finally, a photo depicts one of the Defendant’s employees lying at the bottom of the basement stairs, where the Plaintiff allegedly was when she was located after her fall. [Photo 20 at Page 113 of the ROM]. This photo shows the employee lying on the basement floor with her upper torso and head facing upwards and pointing in the direction of the wall of the basement, to which the homemade hand railing was allegedly attached to. Lighting [ 23 ] Annick Michaud was working as a waitress and served the Plaintiff and her group until the end of her shift at 8:00 p.m.

Stephanie Roach is also employed by the Defendant and served the Plaintiff and her group from approximately 8:00 p.m. to 1:00 a.m. [ 24 ] Ms. Michaud indicates in her Affidavit that the area at the back of the premises leading to the garage, including where the washrooms were situated as well as the basement door, were well lit on the evening of February 8, 2020. Pot lights are situated in the hallway ceiling leading to the back area of the bar.

She further deposes that there is a light at the top of the basement stairs which was on as well on the date of loss. [ 25 ] There is another door with a window that leads to the basement from the garage which, according to Ms. Michaud, provides additional illumination to the basement area. An illuminated fridge with sliding glass doors situated in the basement apparently also provides additional light in the basement. [ 26 ] In her Affidavit, Ms.

Roach indicates that the light at the top of the stairs is always lit and was on when she opened the door to the basement and found the Plaintiff at the bottom of the stairs. However, Mr. Morin, the Plaintiff’s common law spouse, indicates in his Affidavit that Ms. Roach turned the light on when she opened the basement door and found the Plaintiff at the bottom of the stairs. Mr. Morin’s evidence suggests that the basement light was off when the Plaintiff opened the basement door and entered the stairwell. [ 27 ] Ms.

LaForest indicates that early in the evening they all smoked at the front end of the bar and restaurant, whereas they went to smoke in the back area (the garage) later in the evening. She says in her statement that she never noticed any specific signs on the doors in the back part of the bar and added: “Non, c’est pas vraiment bien allumé que je trouve, là. C’est…c’est un bar (…) c’est sombre, un bar, là. Toutes les bars sont de même, là.” [Page 92 of ROM]. [ 28 ] Ms. LaForest clearly disputes the extent of the lighting in the hallway leading from the back door to the dining area in her Affidavit as well.

For ease of reference, Ms. LaForest’s affidavit evidence on this point reads as follows: 10. When I was finished my cigarette, I entered The Bar from the back door. The hallway leading from the back door to the dining room and the bar where you pay is dark. There were very dim lights in the hallway. There were pot lights on in the garage, on the other side of the door. [ 29 ] Mr. Morin went to smoke a cigarette in the garage with the Plaintiff and Ms. LaForest shortly before the fall.

He swears in his Affidavit that “[t]he hallway leading from the back door to the dining room area and the bar where you pay is dark. There were very dim lights in the hallway. There were pot lights in the garage, on the other side of the door.” [ 30 ] The photographs submitted as evidence do not assist the Court on this specific point, other than to demonstrate where the pot lights were situated in the hallway.

In essence, the Court is left with some conflicting evidence about exactly how dark the back hallway leading to the basement door was on the night in question, as well as with respect to whether the light was on in the basement when the Plaintiff opened the basement door. [ 31 ] Pot lights from the garage would shine through the window part of the garage door and provide some very modest illumination to the hallway and, to a certain extent, in the basement. However, I do not accept that the hallway leading to the back of the Bar near the garage and basement doors was “well lit” (bien éclairé). As Ms.

LaForest indicates in her evidence, this was a Bar, and the lights were adjusted accordingly. The evidence of Mr. Morin and Ms. LaForest on this point is consistent with statements they gave to the Defendant’s adjuster shortly after the date of loss. The Plaintiff’s Affidavit evidence corroborates their recollection of the lighting. I accept their evidence and find that the hallway leading to the back of the Bar and, more specifically around the garage and basement doors, was dimly lit.

[ 32 ] The Plaintiff does not recall if the light was on in the basement when she walked in. Ms. Roach says the light was on when she found the Plaintiff, while Mr. Morin says Ms. Roach turned on the light when she opened the basement door. Ms. Michaud also says the basement light was on. Based on my appreciation of all the evidence, I am satisfied that the Plaintiff did not fall into a “black hole” when she fell down the stairs.

Employees were using the basement throughout the evening, so it does make sense that there was some light in the basement, whether it came from the pot lights in the garage, the cooler downstairs or from elsewhere. I am prepared to find that the basement was reasonably lit when the Plaintiff opened the door and walked in. Intoxication [ 33 ] The Defendant alleges at paragraph 20 (a), (

b) and (

c) of its Statement of Defence that the Plaintiff was intoxicated when she fell. [ 34 ] However, evidence submitted by the Defendant contradicts this assertion. Ms. Michaud and Ms. Roach depose in their Affidavits that while the Plaintiff did consume some alcohol, she was not intoxicated. [ 35 ] In addition, Ms. LaForest informs the Court about her observations of the Plaintiff prior to the fall at paragraph 9 of her Affidavit, to the effect that: “ The plaintiff was not having trouble walking and her speech was not slurred. The plaintiff did not appear intoxicated to me.” [ 36 ] Mr.

Morin stated that the Plaintiff did not present with slurred speech and had no difficulty walking around. According to him, the Plaintiff was not intoxicated. [ 37 ] The Plaintiff says she ordered a glass of red wine before dinner at approximately 6:15 p.m. She had another glass of red wine while eating her chicken wings and Caesar salad. She estimates finishing dinner at about 7:30 p.m. After dinner, the Plaintiff had another glass of red wine at about 8:30 p.m., plus one shot of Sour Puss.

Her evidence is that over the course of the entire evening or approximately four and one half hours, she consumed a total of four drinks - three glasses of wine and a shot of Sour Puss, along with three glasses of water. The Plaintiff admits to taking “one puff of a marijuana cigarette that was being passed around” shortly before leaving the garage and before the fall. [ 38 ] The uncontradicted evidence is that the Plaintiff consumed three glasses of wine and one shot of Sour Puss over the course of the evening from about 6:15 p.m. to 12:45 a.m., and had one “puff” of cannabis just prior to her fall.

The Plaintiff was not intoxicated. The Fall [ 39 ] At about 12:45 am, Ms. Roach and the Plaintiff went to smoke a cigarette along with other individuals, including Mr. Morin, in the garage at the back of the Bar. Ms. Roach left the garage area first and returned to work. Mr. Morin eventually returned to the bar area. The Plaintiff stayed behind. [ 40 ] After Mr. Morin returned to his table, he noticed the Plaintiff had still not joined him, so he went to look for her. He thought she was with Ms. LaForest, but she too could not locate the Plaintiff. After a few minutes, Mr. Morin inquired of Ms.

Roach as to her whereabouts. Ms. Roach then asked Mr. Morin to “wait a minute and walked toward a door in the back of the bar”. Mr. Morin followed Ms. Roach. Mr. Morin described the next sequence of events at paragraphs 12 and 13 of his Affidavit: 12. Stephanie opened the door that leads to the basement and turned the lights on. When she looked down the stairs, she immediately turned around. I looked down the stairwell and I saw the plaintiff at the bottom. 13. I went to the bottom of the stairs to help the plaintiff up. At this time, Stephanie had also come down the stairs.

As I was helping the plaintiff to her feet, Stephanie stated that she knew this would happen one day and that she had been telling the owner of the bar to fix the lock on the door for a long time.

[ 41 ] Ms. LaForest swears to the following additional facts in her Affidavit: 11. I was advised by the bartender, Stephanie Roach (Stephanie), that the plaintiff had fallen down the stairs. At that time, Stephanie advised me that she believed she should have locked the door to the basement, because it wasn't the first time someone had fallen down those stairs. [ 42 ] Exhibit 1 is an excerpt from the Discovery of the Defendant (Mr.

Rivard) which confirms that a person had fallen down the stairs previously after getting caught in “un des cores a “draft” pour descendre en bas, pis y’vait ete averti d’pas toucher a ca.” [ 43 ] The Plaintiff describes the fall in her Affidavit, which I take the liberty of referring to in full: 22. After we were done smoking, I told my common law husband (Patrick) that I was going to go back inside the bar and use the washroom. 23. I entered the bar from the back door. The hallway after I entered from the garage was dark. There were very dim lights in the hallway. There were pot lights on in the garage. 24.

I knew there were washrooms in the back of the bar. 25. I had been to the bar approximately fifteen (15) times before this visit. During my other visits, I had always used the washrooms at the front of the bar not the back. 26. I went to the door to the right of the back entrance from the garage. I thought this door led to the woman's washroom. 27. I did not look up at the door. I turned the handle to open the door. There was nothing odd about the handle that I noticed. I did not see any signs on the door. 28. The door was not locked. I was able to easily turn the knob and walk into the room.

The door handle is on my right side of the door. 29. I opened the door and took a step inside the room. I stepped into a “hole”. In photograph 12 from Exhibit A it shows that the door opens to the stairs directly. There is no landing at the top of the stairs. 30. When I stepped through the door, the door pushed me forward and closed behind me. 31. I remember trying to grab anything to catch myself from falling however I was not able to grab anything and fell down the stairs and landed at the bottom of the stairs. 32. I'm not certain if there were lights on in the basement.

However, I do not recall seeing any lights when I entered the door. 33. I fell down the stairs. I believe I was down at the bottom of the stairs for approximately twenty (20) minutes. 34. After time passed, Stephanie Roach (the server) and my common law husband, Patrick Morin, found me at the bottom of the stairs. They helped me up the stairs and then we left the bar. [ 44 ] After the fall, the Plaintiff went home with her spouse, but then proceeded to the Hospital in Grand Falls and in

Edmundston for diagnostic imaging and medical consultations. The Plaintiff attached to her Affidavit hospital records without objectionfrom defence counsel. [45] On February 9, 2020, the Plaintiff saw the triage nurse at 11:11 a.m. at the Hospital in Grand Falls, and theEmergency Room physician at 11:35 a.m. She underwent diagnostic imaging testing of her right humerus, right elbow and right wristbetween 3:01 p.m. and 3:13 p.m., and further testing of her right wrist at 7:19 p.m. [Pages 207-208, 217-220 and 221-222 of ROM]. [46] As a result of her fall, the Plaintiff fractured her right wrist scaphoid. Dr.

Bassam Zahra (Orthopedic Surgeon)noted nerve damage (atteinte neurologique aigu la nerf median et la nerf cubital) in his Consultation Report. [Page 231 of the ROM].The Plaintiff attached photos to her Affidavit depicting her injuries as well. [Pages 131 to 145 of the ROM]. ISSUES [47] Both parties brought Motions for

Summary Judgment pursuant to Rule 22 of the Rules of Court on the basis thatthere is no genuine issue for trial, but also because a “boomerang” motion is not an adjudicative option based on the direction of theCourt of Appeal in Abrams v. RTO Asset Management 2020 NBCA 57 at paragraph 50. The parties agreed that the evidence in onemotion is the evidence in the other.

There is therefore no need to repeat all the evidence, nor my findings that flowed from the evidence,twice. [48] There is no genuine issue for trial in respect of the Plaintiff’s claim if she establishes that the Defendant is liable.There is no genuine issue in respect of its Defence if the Defendant establishes a full defence in terms of its liability. In this case, liabilityis to be determined by the ordinary rules of negligence: McAllister v. Wal-Mart Canada Inc. (2000), (NB CA) atparagraph 14; Hatty v. Reid, 2005 NBCA 5 at paragraph 21 and Jones v.

Richard, (NB CA), [2000] N.B.J.No. 171 (NBCA) at paragraph 14. [49] There is no dispute that the Defendant owed the Plaintiff a duty of care, and that the Plaintiff suffered personalinjury (fractured right wrist). Those points are correctly conceded, in my view. The parties focused their submissions on the applicablestandard of care and causation. In her Brief, the Plaintiff discussed remoteness, but the Defendant did not in its written submission, nor inoral argument. For completeness, I will also address this issue briefly.

Lastly, the Defendant made no written or oral submission inrelation to contributory negligence, but I will nonetheless address that issue because it is pled in the Statement of Defence. In addition,the Defendant raised a preliminary issue with respect to the admissibility of expert opinion evidence proffered by the Plaintiff. That issuewill be determined first. [50] The issues before the Court are therefore as follows: 1. Should leave be granted to admit the Affidavit and Report prepared by Mr. Mannie Withrow pursuant to Rule 22.02(3) ofthe Rules of Court? 2.

What is the applicable standard of care and did the Defendant breach it? 3. What is the cause of the Plaintiff’s injuries? 4. Are the Plaintiff’s injuries too remote? 5. Does the Plaintiff bear any contributory negligence?

6. Costs. LAW AND ANALYSIS Rule 22 and Governing Principles [51] Both motions, properly in my view, seek relief by way of

summary judgment by relying on Rule 22.04 (1), whichstates that: 22.04 Disposition of Motion

(1) The court shall grant

summary judgment if (

a) the court is satisfied there is no genuine issue requiring a trial with respect to a claim or defence, or (

b) the parties agree to have all or part of the claim determined by a

summary judgment and the court is satisfied it is appropriate to grantsummary judgment. [52] Our Court of Appeal has canvassed the procedural and substantive principles governing motions for

summaryjudgment in New Brunswick on several occasions after Rule 22 was amended, and in keeping with the “culture shift” referred to by theSupreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7: see for example, O’Toole v. Peterson, 2018 NBCA 8; Russel et al. v.Northumberland Co-Operative Limited, 2019 NBCA 70, [2019] N.B.J. No. 285 (QL), leave to appeal refused by [2019] S.C.C.A. No.451; Babin v. C.J.M. Dieppe Investments Ltd. and TG 378 Gauvin Ltd. and Sood, 2019 NBCA 44, [2019] N.B.J. No. 144 (QL);Goyetche et al. v. International Union of Operating Engineers et al., 2019 NBCA 16 ; Abrams v.

RTO AssetManagement, supra; Edmondson et al. v. Edmondson et al., 2022 NBCA 4 , leave to appeal to the S.C.C. dismissed at (SCC) and Irwin v. Swift et al., 2022 NBCA 35 . [53] As noted in Edmondson et al. v. Edmondson et al., supra at paragraph 27: [27] With the advent of the revamped version of Rule 22 in 2017, coming on the heels of the Supreme Court’s pronouncement inHryniak, the Court’s disposition in Lange took on greater significance. As Drapeau C.J.N.B., as he then was, noted in O’Toole v.Peterson, 2018 NBCA 8, [2018] N.B.J.

No. 58 (QL), the objective of the new Rule is to bring about “an early determination where thereis no issue requiring a trial with respect to a claim or defence” (emphasis mine; para. 5) [54] In Russel et al. v. Northumberland Co-operative Limited, supra, the Court of Appeal explained the two-stepprocess to determine if

Summary Judgment should be granted: [21] The Rule therefore provides a two-step process with specific reference to the central question: is there a genuine issue requiringa trial? [22] In step one, the judge must determine if the evidence put before him reveals a genuine issue requiring a trial. At this point,there is no need to resort to the fact-finding powers contained in Rules 22.04(2) and (3). Adjudication under step one may include cross-examination on any affidavit (Rule 39.03). Any such cross-examination does not trigger the mini trial prescribed by Rule 22.04(3).

If,on the filed evidence alone, the judge can fairly and justly adjudicate the dispute, there will be no genuine issue requiring a trial and thejudge must grant

summary judgment. There is no discretion under the Rule to refuse to do so (see 22 King Street Inc. et al. v. The Bank ofNova Scotia, 2018 NBCA 16, [2018] N.B.J. No. 42 (QL)). The motion judge in this case granted

summary judgment on that basis andtherefore did not need to proceed to step two.

[23] A judge only proceeds to step two if the assessment of the filed evidence leads to the conclusion that there may be a genuineissue requiring a trial. In that case, the judge then needs to determine if that trial can be avoided by resorting to the fact-finding powers ofRules 22.04(2) and (3). The guiding principle is that it will always be in the interest of justice for the judge to make use of these fact-finding powers if, applying the principles of timeliness, affordability and proportionality, the judge believes a trial can be avoided and afair and just result can be obtained.

The discretion vested in the judge under this second step will provide the flexibility required tofashion the appropriate course to follow. [55] As to the burden of proof on a motion for

Summary Judgment, our Court of Appeal reaffirmed in Goyetche et al.v. International Union of Operating Engineers et al., supra at paragraph 34 that the balance of probabilities standard applies: [34] The decision under appeal was rendered pursuant to our new Rule 22 (“Summary Judgment”). The changes brought about bythe new Rule 22 are outlined in O’Toole v. Peterson, 2018 NBCA 8, [2018] N.B.J. No. 58 (QL), and need not be repeated here. Suffice itto point out that the stringent test set by the former Rule 22 no longer applies.

The disposition of motions under the new Rule 22 standsto be made on application of the balance of probabilities standard. The Court simply determines whether it has been established on abalance of probabilities that there is no genuine issue requiring a trial. [56] Having said this, there can be no doubt that parties facing

summary judgment must “lead trump” before themotion’s judge in terms of the evidence submitted, or risk losing: see the oft-quoted case of Cannon v. Lange (1998), (NB CA), at para. 23, which referred to the Ontario Court of Appeal decision in 1061590 Ontario Ltd. v. Ontario Jockey Club(1995), (ON CA). Issue 1 – Admissibility of Expert Opinion Evidence [57] Pursuant to Rule 22.02(3) of the Rules of Court, leave of the Court is required to submit opinion evidence on aMotion for

Summary Judgment. Rule 22.02(3) reads as follows:

(3) With leave of the court, an affidavit for use on motion for

summary judgment may contain opinion evidence if the deponent wouldbe allowed to give that evidence while testifying in court. [58] At the direction of the Court, the Plaintiff amended her Notice of Motion to properly request leave pursuant to Rule22.02(3). More specifically, the Plaintiff sought leave to admit the Affidavit of Mr. Mannie Withrow, who prepared a report outlininghis opinion on the condition of the stairs that the Plaintiff fell down on the evening in question. [59] Mr.

Withrow operates a consulting firm, Withrow Inspection Services of WCC Ltd., which provides municipalbuilding and fire inspection services. More specifically, Mr. Withrow’s education and work experience includes the administration andenforcement of the National Building and Fire Code of Canada “for new and existing construction”. [See curriculum vitae, page 100 ofthe ROM]. [60] The Plaintiff’s position is that Mr. Withrow’s affidavit and attached report is admissible as expert opinion evidencein accordance with the criteria set out in R. v.

Mohan, (SCC) (Mohan). [61] The Mohan criteria were, I note, referred to in White Burgess Langille Inman v. Abbott and Haliburton Co.,2015 SCC 23 (Burgess) at paragraph 19: [19] To address these dangers, Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence.That structure has two main components.

First, there are four threshold requirements that the proponent of the evidence must establish inorder for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of anexclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25; see also Sekhon, at para. 43).

Mohan also underlined theimportant role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative valuewas overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21. This is thesecond component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J.-L.J., at

para. 28. [62] In Burgess, the Supreme Court then stated the test, with reference to Mohan and other cases, at paragraphs 22 to24: [22] Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adoptthat approach. [23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility.

These are thefour Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case ofan opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for thatpurpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance atthis threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet thesethreshold requirements should be excluded.

Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M.Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, atpara. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72. [24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence inorder to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways.

In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliabilityand necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47.

Doherty J.A.summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions toadmissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that mayflow from the admission of the expert evidence”: para. 76. [63] The Defendant argues the Affidavit and report are not relevant to the issues before the Court because the cause ofthe loss – her own negligence by not observing the “Employees Only” sign - does not relate to the condition of the stairs.

TheDefendant’s position is that the first branch of the Mohan test – relevance - is therefore not met. [64] It should be noted that the Defendant did not challenge the admissibility of the Affidavit or Report for any reasonother than relevance. In other words, the Defendant accepts that Mr. Withrow is properly qualified to give the proposed opinionevidence based on the education and work experience set out in his Affidavit and attached curriculum vitae. The Defendant did not seekleave to cross-examine Mr.

Withrow, nor did it challenge his objectivity or independence. [65] Indeed, there was no evidence before the Court that Mr. Withrow was not providing independent assistance to theCourt by way of an objective unbiased opinion in relation to matters within his expertise. [66] Again, the Defendant’s objection to the admissibility is based solely on relevance. After some discussion at thehearing, I disagreed with the Defendant’s position that Mr. Withrow’s Affidavit and attached report are not relevant. It is trite law thatthe pleadings determine relevance. In Parlee v.

McFarlane (NB CA), at paragraph 33 Drapeau, J.A. (as he then was),said: [33] It is commonplace that trial by ambush has no place in our modern system of justice. The rules of pleading enunciated in rule 27 ofthe Rules of Court are designed to ensure that the relevant issues are raised, and that no party is taken by surprise. The importance ofpleadings cannot be under-emphasized. They define the issues not only for the parties, but for the judge as well.

Indeed, I cannot fathoma situation where a trial judge could properly decide the case before him or her on a basis not raised in the pleadings or at trial. [67] Then, in Agnew v. Smith, 2001 NBCA 83 the Court of Appeal reiterated the importance of pleadings indetermining the issues to be adjudicated upon at paragraph 3: [3] As a general rule, only the issues that emerge unresolved from the pleadings require adjudication at trial. This Court noted,in Parlee v.

McFarlane (1999), (NB CA), 210 N.B.R. (2d) 284, at para. 33, that it could not “fathom a situationwhere a trial judge could properly decide the case before him or her on a basis not raised in the pleadings or at trial”. See also ADI Ltd.v. 052987 N.B. Inc., 2000 NBCA 55 , [2000] N.B.J. No. 467 (C.A.), online: QL (NBJ); leave denied [2001] S.C.C.A. No. 48.

[ 68 ] Paragraph 3 of the Statement of Claim alleges that the door leading to the basement was not locked “and that the railing leading down to the basement was not attached to the wall.” The Plaintiff then alleges at paragraph 4 that the Plaintiff sustained personal injury, loss and damage “due to the dangerous condition of Defendant’s property (…)” Paragraph 5 of the Statement of Claim provides particulars of negligence, and more specifically at paragraph (

c) thereof by alleging that the Defendant did not to take reasonable care by failing “(…) to have in place reasonably adequate barriers and/or railings on the door and on the stairs leading down to the basement (…). [ 69 ] At paragraph 2 of the Statement of Defence, the Defendant denies paragraphs 3, 4, 5 and 6 of the Statement of Claim and “puts the Plaintiff to the strict proof thereof”.

Paragraph 3 of the Statement of Defence “denies any and all liability”, and further “denies that the Plaintiff suffered injury, loss or damage as alleged (…)”. [ 70 ] In addition, the Defendant alleges in paragraph 3 of its Statement of Defence that “at all relevant times the Defendant’s premises were kept reasonably safe (…)” and further references inspections by the local Fire Marshall “twice yearly” in support of its position that it had “a reasonable system of inspection, monitoring and maintenance” in place at the relevant time.

None of the inspection reports prepared by the Fire Marshall referred to by the Defendant in its Statement of Defence were tendered as evidence in this matter. [ 71 ] After reviewing the allegations in the Statement of Claim, as well as the denials and admissions in the Statement of Defence, I am satisfied that the condition of the stairs is a relevant consideration to the issues of the applicable standard of care as well as causation. The Defendant has, in no way, conceded that it did not meet the standard of care. In addition, the parties have different theories of causation.

The fact that the expert report does not support the Defendant’s theory of causation does not make the report irrelevant. [ 72 ] Relevance is a threshold issue in terms of the admissibility of all evidence, including expert opinion evidence, as confirmed by the Supreme Court in Burgess . However, the admissibility of such expert opinion evidence does not mean that the Court will accept that evidence as determinative of the issue before the Court.

In other words, it remains open to the Court to find that the cause of the loss was not the “dangerous condition of the Defendant’s property”, or the condition of the stairs more specifically, based upon an assessment and analysis of the totality of the evidence. [ 73 ] Indeed, the Defendant’s position that the condition of the stairs played no role in causing this loss, contrary to the Plaintiff’s assertions, reinforces the relevance of the expert opinion. In other words, there can be no doubt that this Court must adjudicate the issue of causation on these motions for

Summary Judgment. [ 74 ] Furthermore, in the context of a Rule 22 motion and the culture shift that accompanies it, leave may be granted where the expert would otherwise be allowed to give that evidence if he/she were testifying in Court. I was satisfied that Mr. Withrow, had he been present in Court, would be allowed to give opinion evidence in relation to the condition of the stairs and more specifically, whether the stairs met the standards referred to in the National Building Code . [ 75 ] After some discussion, I granted leave to the Plaintiff to have Mr.

Withrow’s Affidavit and report admitted as expert opinion evidence at the hearing on the basis that the criteria for admissibility of this evidence were met in this case.

Issue 2 – The Standard of Care [76] The standard of care applicable to an owner of commercial premises was summarized by Drapeau, C.J.N.B. (as hethen was), in The Roman Catholic Bishop of Edmundston v. Moreau, 2011 NBCA 26 at paragraph 16: [16] The trial judge held the standard of care applicable to the appellant required he provide reasonably safe premises for thepurposes contemplated and, correlatively, that he refrain from acts or omissions that an ordinary person might reasonably foresee werelikely to cause damage to his or her “neighbour” (paras. 12 to 15).

This statement of the standard of care falls squarely 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, 250 N.B.R. (2d) 207 (perGlennie, J. at paras. 65, 93-95) and McAllister v. Wal-Mart Canada Inc (2000), (NB CA), 228 N.B.R. (2d) 230,[2000] N.B.J. No. 300 (C.A.) (QL), at paras. 14, 18-22). [77] The Plaintiff relied considerably on older jurisprudence such as Bate v. Kileel Enterprises Ltd [1976] N.B.J. No.99 (NBCA), while the Defendant was adamant that it did not apply and that it was not on point.

I will therefore review the case andcomment upon it. [78] The Plaintiff argued Bate v. Kileel Enterprises Ltd, supra, applied because the Court of Appeal at paragraph 5agreed with the Trial Judge’s finding that “the unlight stairway, without any top landing, was clearly an unusual danger”, and that Ishould do the same given the similar fact pattern. The facts of that case were summarized by the Court of Appeal at paragraph 4 asfollows: 4 The plaintiff was a patron of the beauty salon and usually entered the premises from Campbell Street.

On December 12, 1972, shehad a hair dressing appointment with the beauty salon. She was conveyed by her brother who parked his car on Westmorland Street nearthe defendants building. Not realizing there were two entrances to the building close to each other on Westmorland Street, the plaintiffentered the door at number 14 Westmorland Street by mistake. She proceeded to the second door on the left side of the hallway - beingthe rear door of the defendant's offices - and found the door locked.

She paused for a moment and upon hearing what she believed to bethe sound of clippers coming from a room in the direction of Westmorland Street, she returned to the first door on the left of the hallwayas she had entered and turned the knob. The door immediately opened inwards and she fell down a steep stairway leading to thebasement area. As a result of this unfortunate accident the plaintiff was seriously injured. [79] The Court of Appeal then considered whether there was an unusual danger at paragraphs 15 and 16: 15 Now considering whether there existed an unusual danger known to the defendant.

The door leading to the basement was keptunlocked to provide emergency access thereto and also to allow the tenants access to a storage area in that part of the building. Theevidence indicates the stairway was poorly constructed and very steep. There was no landing at the top of the stairway. The top step wasabout six inches wide. The door opened easily inwards directly over the top step of the stairway. The latter was unlighted with no siderailings. The plaintiff testified the first thing she saw when she opened the door was "a big black hole as [*page 211] I was going down.

Icouldn't see a thing because there was no light on or anything. I couldn't see". The president of the defendant company says he visitedthe building "20 times a week at least, 3 times a day". However, he was unable to swear there were any warning signs on or near thebasement door at the relevant time. 16 I agree with the trial Judge's conclusion that the unlighted steep stairway without any top landing was clearly an unusual dangerknown to the defendant. The premises in question were not reasonably safe. There was no persuasive evidence to show there was awarning of the danger given to the plaintiff.

The absence of a warning or of an inadequate warning by a sign or otherwise is enough toestablish liability on the part of an occupier: Mitchell et al. v. Canadian National Railway Company, (SCC), 1 N.R.

344, [1975] 1 S.C.R. 592; Stewart et al. v. Routhier, (SCC), 1 N.R. 630, [1975] 1 S.C.R. 566. [80] The precedential value of older cases is limited because the old occupier liability rules have been abolishedpursuant to paragraph 2(1) of the Law Reform Act, S.N.B. 1993, c. L-1.2. Indeed, at least two decisions from our Court of Appeal clearlymake this point. [81] First, in McAllister v. Wal-Mart Canada Inc., supra, Drapeau, C.J.N.B. (as he then was) warned of the danger ofincorporating pre-Law Reform Act rules of “unusual danger” into the negligence test.

The Court of Appeal held at paragraphs 18 to 22that it is not necessary, now that the law of occupier's liability has been abolished in New Brunswick, to find that an “unusual danger”existed at the time of a slip and fall before determining that a defendant is liable for the injuries suffered by a plaintiff: Wal-Mart’s submission that the action ought to have been dismissed because the treadmill did not constitute an unusual danger must fail.The concept of "unusual danger" is a feature of the law of occupier's liability that has been swept away by the changes brought about bythe Law Reform Act.

It is axiomatic that liability in negligence is not contingent on a finding that the defendant's acts or omissions gaverise to an "unusual danger". See Jones v. Richard, at para. 15. Now that the law of occupier's liability has been abolished, courts should be vigilant to prevent its concepts from inconspicuouslycreeping back into the mix and contaminating the process of fault determination on the basis of the ordinary rules of liability innegligence.

In my view, Justice Landry was not required to find that the treadmill constituted an unusual danger before he couldconclude that Wal-Mart was liable for the injuries suffered by the McAllisters. [82] In Hatty v.

Reid, supra, the Court of Appeal reiterated the same principle at paragraph 26 as follows: [26] While New Brunswick courts may be able to utilize occupiers’ liability cases decided with respect to specific legislation, casesdecided on the basis of the common law of occupiers’ liability (older cases from every province and current cases from Saskatchewan)are of no use. [83] However, the Court of Appeal in Hatty v.

Reid, supra also stated at paragraphs 29 to 31: (…) It should be noted, however, that if something constitutes an unusual danger, it will often indicate negligence because the standardof care is higher in negligence. [30] For the purposes of the present case, it is therefore necessary to determine the standard of care that might be expected of anordinary, reasonable and prudent person in the same circumstance as the appellant by applying the law of negligence.

I am also of theview that while it might be useful in some circumstances to refer to cases with similar facts from other jurisdictions that have occupiers’legislation, in this case it is sufficient to apply Ryan v. Victoria (City). [31] In Ryan v. Victoria (City), Major J. states at para. 28: Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of carethat would be expected of an ordinary, reasonable and prudent person in the same circumstances.

The measure of what is reasonabledepends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden orcost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such ascustom, industry practice, and statutory or regulatory standards. Victoria has been applied recently in cases from this Court: O’Donnell v. O’Blenis and Daigle v. Turrett (2001),2001 NBCA 38, 244 N.B.R. (2d) 148 (C.A.) both of which dealt with statutory duties.

[84] It is very difficult to find a case that is literally “on all fours”, although Bate v. Kileel Enterprises Ltd is close.Factual distinctions are often made between cases. For example, in Hennessy v. Roy, [1991] N.B.J. No. 330, the Court of Appeal upheldthe Trial Judge’s decision to dismiss the action. The Trial Judge distinguished the Bate v. Kileel Enterprises Ltd decision on the basisthat it involved a commercial building rather than a private dwelling, and that the door in Hennessey v. Roy was secured by a hook andeye, unlike in Bate v.

Kileel Enterprises Ltd. [85] There are several cases that refer to instances where a Plaintiff has fallen down stairs and sustained injury:Canadian National Railway Company v. LePage (SCC), [1927] S.C.R. 575; Grant v. C.P.R. (NBCA), 11 M.P.R. 25 (N.B.C.A.); St. Pierre v. Harrison [1976] N.B.J. No. 73; Fleming v. British American Oil Co. Ltd and Clark,[1952] M.J. No. 51 (Man. C.A.); Kobs v. Merchants Hotel [1990] M.J. No. 663 (Man. C.A.); Brown v. B and F Theatres Ltd (SCC), [1947] S.C.R. 486 (S.C.C.); Craig v. Lockhart et al [1967] A.J. No. 28 (Alta. C.A.); Bossert v. Grover’s Store[1977] A.J. No. 440.

In some instances, the action is allowed while in other cases the action is dismissed. But the older cases begin withthe analysis of determining if an unusual danger exists and defining the duty based upon the relationship between the parties at the timeof the accident, i.e. tenant, licensee, invitee, etc. However, that type of analysis is no longer the law. [86] This case shall be decided on its own facts and based on the ordinary rules of negligence. I do not need to find thatthe stairs constituted an “unusual danger” as those terms were understood under the old law of occupier’s liability.

Rather, the questionfor me is whether the premises were reasonably safe for the purposes contemplated. [87] In some cases, it is possible to decide the standard of care without reference to expert evidence where “the contextis so esoteric that a person with ordinary judgment and experience could not form a valid opinion on the reasonableness of the conduct inissue”: see The Roman Catholic Bishop of Edmundston v. Moreau, supra at paragraph 17. [88] Courts may nonetheless rely on expert evidence in certain cases.

Indeed, as the Court of Appeal stated in Reid v.Hatty, supra at paragraph 14: "(…) one may look to external indicators of reasonable conduct, such as custom, industry practice, andstatutory or regulatory standards". [89] In Basque v. The City of Saint John, 2002 NBQB 131 , the essence of the expert testimony and reportwas “with respect to the safety and structural design of stairs in small and large buildings, including the physical geometry of stairs, as itrelates to the safety and use of stairs by people and the maintenance of stairs.” [90] The expert in Basque v.

The City of Saint John, supra, provided an opinion as to various “deviations” from theNational Building Code that could contribute to a fall, including a narrow upper landing, which could cause the initial imbalance to starta fall, non uniform rises which could cause the user of the stairs to improperly judge the location of the next stair tread, the lack ofuseful handrails, which may assist a person who was falling and a handrail that could have provided the user with something substantialto grasp to assist in recovering from the fall.

The Court accepted the expert’s findings at paragraph 40 and found that the Defendant wasnegligent. [91] In Keenan v. Scandals Ltd, [2000] O.J. No. 992, the Plaintiff entered the Defendant Scandals premises as apatron at about 8 p.m. Scandals served him alcohol. At just after midnight, while attempting to locate a washroom, the Plaintiff fell downa steep flight of stairs that led to the basement washrooms. As a result of the accident, the Plaintiff sustained serious permanent injuries. [92] In that case, an engineer offered expert evidence that there were three unsafe conditions involving the stairs.

Thefirst was the absence of a horizontal run of handrail at the stair top and bottom thus depriving a user of a measure of security beforetaking the first downward step. The second was the condition of the landing, including the rubber mat and metal nosing strip. The third

was the apparent wearing away of the travelled portion of the treads: see Keenan v Scandals Ltd, supra at paragraph 16. [93] The Court in Keenan v Scandals Ltd, supra, held, in discussing occupier’s liability as well as common lawprinciples of negligence, at paragraphs 21 and 22, that the Defendant was negligent in: (1) failing to take such care of the premises andproperty as was necessary as an owner, occupier, possessor and controller; (2) failing to take reasonable steps to provide safe stairs to thewashrooms; (3) failing to take reasonable care to protect patrons whom it knew or ought to have known were at risk due to the conditionof the stairs. [94] In this case, there is no evidence of the Defendant overserving alcohol to the Plaintiff.

The point is that the stairsand surrounding area did not comply with the Ontario Building Code and were determined to be unsafe in the Keenan v. Scandals Ltd,supra case, the Court relied upon expert evidence to find that they were, and that such evidence was relevant to assisting the Court indetermining whether the standard of care was breached, or not. [95] Here, Mr. Withrow provides the only opinion with respect to whether the stairs and surrounding area met thestandards referenced in the National Building Code.

He concludes “that the basement stairs are not constructed properly and constitute asafety hazard” and, more specifically, at paragraph 11 of his Affidavit that: 11. Specifically, the stairs do not have a proper landing at the top of the stairs, an uneven rise and run throughout the flight of stairs,and an open side to the stairs without a proper guard. All of this creates an unsafe set of stairs. [96] It was incumbent upon the Defendant to put its best foot forward, including adducing any evidence that mightrefute or contradict Mr. Withrow’s findings, and it did not do so.

The expert evidence put forward by the Plaintiff is thereforeuncontradicted. The stairs, the landing, and the absence of a handrail on the left side of the stairwell failed to meet the standards of theNational Building Code in the manner set out in Mr. Withrow’s Affidavit and report. I accept the evidence of Mr. Withrow and find thatthe stairs were unsafe and constituted a safety hazard. [97] The facts of this case give rise to a standard of adequately warning patrons of the existing safety hazards anddanger.

The Plaintiff says that the Defendant failed to adequately warn the Plaintiff of the unsafe condition of the stairs and surroundingarea. The Defendant argues that the “Employees Only” sign on the door leading to the basement stairs constituted sufficient warning tomeet the applicable standard of care of providing reasonably safe premises to the Plaintiff for the purposes contemplated. [98] The purposes contemplated here deserves some context. It bears noting that in this case, the Defendant invites andallows patrons to the back end of the Bar and the garage to smoke.

These same patrons have the option of using washrooms situated inclose proximity to the garage. It is reasonable to assume that patrons may decide to use these washrooms rather than those situated in thefront part of the Bar. There is a risk that a patron, including the Plaintiff, opens the wrong door situated a few steps away from the garagedoor, by pure inadvertence. [99] It is trite law that there is no duty to warn of an obvious danger: Roy v. Doucet, 2005 NBCA 84 at paragraph 20.

In Canadian Tort Law, 2022, Lexis Nexis (12th Edition), the authors explain the duty to warn at pages 885-886 as follows: Further, there is a duty to warn about unknown dangers but not about obvious dangers.

Accordingly, it is not unreasonable for anoccupier of a swimming pool to fail to warn healthy adult visitors not to dive off high platforms if one is not in control of one's own body,nor is it reasonable to fail to warn that shortcuts through steep alleys with loose gravel surfaces might result in a fall or that falling debrismight injure an individual after eastern Canada’s severest ice storm in recorded history, nor should an experienced snowmobiler requirewarning of the danger posed by crossing rail lines on a rail bed when very little snow cover is present. [100] In Brown et al. v.

Keenan et al., 2009 NBCA 81 , the Respondent dove off the end of a dock at theAppellant’s summer home at 2:00 a.m. As a result of that dive, the Respondent suffered injuries which left him a tetraplegic. Indiscussing the duty to warn, our Court of Appeal stated the following at paragraph 10:

[10] Relying on the majority opinion in Kranabetter, the Browns argued that diving into unknown waters is foolhardy and a diver isbound to determine the water’s depth before taking the plunge. The argument continues with the premise that there is no duty towarn of an obvious danger. The short answer to the argument is that the danger in question was not obvious. This is not a case ofa person diving into unknown waters in the middle of a cold winter night. This is a case of a known and hidden risk of danger. This isa case of foreseeable risk of harm.

In cottage country, people do swim in the early morning hours, during the summer months, eventhough it is dark. [Emphasis added] [101] A patron walking into a commercial property and seeing a big yellow cone on the floor that says “Slippery” knowsthat the floor is wet and appreciates the danger. A patron using stairs that are marked with a contrasting edge colour appreciates that theymay be uneven and may thus avoid a misstep. A patron reasonably warned of the existence of a “riser” in the floor, may then take stepsto avoid tripping on it.

Patrons in these circumstances are specifically warned of the danger and, unless they do not use reasonable carefor their own safety, may suffer personal injury. [102] The “Employee Only” sign does not warn the Plaintiff, who inadvertently entered the basement door from a dimly lithallway, of the unsafe condition of the stairs and surrounding area.

Safety concerns include: no landing, an uneven rise and run throughthe stairs, a tension loaded automatic closing door, no handrail on one side of the staircase and another handrail that was homemade with“2x4 racking to transport boxes up and down the stairs”. [Page 150 of ROM]. The fact that the area is reserved for employees does notmean that it is safe or without hazards. [103] To the extent that the “Employees Only” sign constitutes a “warning”, it is not a warning of danger, nor specific tothe danger.

The owner and employees using these stairs constantly every night have knowledge of the condition of the stairs, the contourof the landing, the absence of a handrail and how the door hinges back. But the Plaintiff had no idea. As she indicated in her affidavit,she had never used the washrooms situated at the back of the Bar. The point is that the unsafe hazardous condition of the stairs andsurrounding area was not so obvious that the Plaintiff was aware of it. [104] Unless specifically warned, a reasonable person may inadvertently enter a door without any knowledge of whatexists on the other side. In Jones v.

Richard, supra, the Plaintiff was searching for the hallway bathroom, but she mistakenly enteredinto a dark room containing open stairs while a guest at the Defendant’s mobile home. She fell down an unguarded flight of basementstairs. Other than the fact that that case occurred in a residential rather than commercial setting, Jones v. Richard supra is, in otherrespects, apposite to this matter in terms of giving proper warning.

The Court of Appeal discussed the Defendant’s duty at paragraph 16: 16 Further, the door, whether closed or open, had no lock on it, hook or fastener of any kind to secure it against being opened inerror. A simple warning of the danger would have sufficed in this case; see Moore v. New Brunswick Housing Corporation (1976), (NB KB), 15 N.B.R. (2d) 389 at 398 para. 19 per Stratton J. (N.B.S.C.Q.B.D.). [Emphasis added] [105] One question that comes to mind, and was argued by the parties, is why the lock pad was not being used on thenight in question.

The Defendant suggests that it is inconvenient for employees to use it every time they had to retrieve supplies from thebasement throughout the night. As Mr. Rivard stated in his Affidavit at paragraph 9: “Cependant, la porte n’était pas vérouillée pourfaciliter l’accès aux employés”. [106] In Kobs v. Merchant Hotel, supra the Defendant normally kept a doorway leading to the basement stairs locked.However, the door was unlocked to provide access to an independent contractor to repair a refrigeration unit in the basement.

ThePlaintiff, who had “consumed beer over a period of approximately two hours” accidentally backed into the door, lost his balance, and felldown the basement stairs.

[107] The Trial Judge found that the hotel and contractor were each 25 per cent liable and attributed 50 per cent liability tothe Plaintiff. The Trial Judge found that the hotel failed to take reasonable precautions considering the layout of the premises and its useby persons who had been drinking, in failing to ensure that the door was locked, but also in failing to advise the contractor that the doorwas to be always locked. The Trial Judge further found the contractor negligent in not taking reasonable steps to ensure that the dooralways remained locked.

Lastly, the Plaintiff was found to be contributorily negligent in not seeing a well-lit door and “being affected bythe beer he drank”. The Manitoba Court of Appeal in Kobs v. Merchant Hotel, supra dismissed the Plaintiff’s appeal and theDefendant’s cross-appeals on the issue of liability, but found that the contractor had no liability. [108] Rule 22.04(2)(

c) permits the Court to draw a reasonable inference from the evidence in determining whether agenuine issue for trial exists. I infer from the evidence that the existence of the lock pad on the basement door had a specific purpose,namely, to prevent patrons from entering the basement despite the existence of the “Employee Only” sign. There is no other reason forthe basement door to have a lock pad in addition to an “Employees Only” sign. Alcohol was stored in the basement, along with othersupplies for the kitchen, so the lock pad may exist to possibly prevent theft of products by patrons.

However, theft during business hoursis much less likely given the constant presence of employees. Only the owner and employees would know what code unlocks the door.At minimum, proper use of the lock pad satisfies the dual purpose of preventing theft and keeping patrons safe. [109] I emphasize here that the evidence of Mr. Morin and Ms. LaForest about Ms. Roach’s contemporaneous statement tothem that she knew this would happen, had informed the owner and should have locked the door, is not refuted or challenged by Ms.Roach, or by Mr. Rivard, the owner of the premises.

There is other evidence to provide some context to these conversations and on thisissue before the Court. [110] The caption of a photo taken by the Defendant’s adjuster on February 25, 2020, of the stairs, railing and basementdoor, as noted by the Defendant’s adjuster, indicates that: “As per Claimant and spouse, the wood railing was not attached. Insured usesthis to bring down boxes. The exterior door at the top of the staircase stays locked unless there is a delivery.” [Photo 12 at page 185of ROM].

Then, the caption of another photo taken the same day of the outside of the basement door depicting the “Employees Only”sign reads as follows: “(…) Door is never locked as per employees and Mr. Rivard, insured.” [Photo 17 at page 188 of ROM][Emphasis added]. This evidence was unchallenged or rebutted by the Defendant. [111] If there was cogent evidence that explained why the lock pad was not being used, or could not be used, it wasincumbent upon the Defendant to “lead trump” or otherwise run the risk of losing.

Evidence that it is more convenient for employees toleave the basement door unlocked is not cogent, nor does it resemble leading trump. [112] As the Supreme Court said in Ryan v. Victoria (City), (SCC), a reasonable balance must be struckbetween what is practical in the circumstances and what is proportional to reasonably perceived risks to users. It might take 5 seconds orless for an employee to enter a code into the lock pad to open the door. It is not a big ask.

In my view, the safety of patrons outweighsany alleged inconvenience to the employees. [113] In this case, the Defendant knew, or ought to have known, that the stairs and surrounding area were unsafe andposed a risk of danger. Perhaps the best “warning” the Defendant could have given all patrons was to use the readily available lock padfor its intended purpose, which is to keep the door locked. [114] In my view, the Defendant failed to provide reasonably safe premises for the purposes contemplated and, as ourCourt of Appeal sated in The Roman Catholic Bishop of Edmundston v.

Moreau, correlatively failed “to refrain from acts oromissions that an ordinary person might reasonably foresee were likely to cause damage to his or her “neighbour”” who, in this case, wasthe Plaintiff. [115] In

summary, the premises were not reasonably safe for the purposes contemplated because: • The stairs were unsafe and constituted a safety hazard.

• No specific warning was given to the Plaintiff the danger that was not obvious to her. • The Defendant failed to ensure the basement door was locked. [116] I find that the Defendant breached the applicable standard of care. However, the breach of the standard of care doesnot automatically equate to causing the loss. Issue 3 – Causation [117] LeBlond, J.A. discussed the test for causation-in-fact at paragraphs 68-70 of Edmonson v. Edmonson, supra: [68] I therefore turn to the fourth element: causation-in-fact.

It is, of course, trite law to state that, at a minimum, the defendant’sconduct must cause some of the plaintiff’s loss; otherwise, there is no liability regardless of how negligent the conduct may have been.However, causation-in-fact is not to be confused with proximate cause, often referred to as causation-at-law. That notion deals with theextent of the defendant’s liability and engages the legal doctrine of remoteness. Again, that is the fifth element noted above, which Idiscuss in the next

section of these reasons. [69] The classic test for determining causation-in-fact is the “but for” test established by the Supreme Court in Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102 (QL). It posits that, but for the defendant’s breach of his standard of care,would the plaintiff have suffered some injury? [70] If the harm would have resulted regardless of the defendant’s negligence, the latter cannot be said to be a cause of the loss.

Inother words, the defendant’s negligence must have made a difference in order for liability to flow from it. [118] The essence of the Defendant’s position on causation is that the Plaintiff was the author of her own misfortune. [119] The evidence satisfies me that the Plaintiff was not intoxicated on the night in question. There is no evidence that herbalance, perception or judgement were impaired to the extent of causing or contributing to the fall and her resulting personal injury.

Inany event, the Defendant did not argue the point. [120] Upon exiting the garage, the Plaintiff turned right instead of left in a dimly lit hallway and opened the basement doorsituated only a few steps away. The basement door and the washroom doors were the same colour: both were very dark or black incolour. The basement door is in very close proximity to the garage door from which the Plaintiff exited, literally a few steps away. [121] I am satisfied that the Plaintiff opened the basement door under the mistaken belief that she was entering thewashroom, or in error.

This is pure inadvertence not negligence on her part and, to that extent, she was not the author of her ownmisfortune. [122] Several factors caused this loss, none of which relate to any of the Plaintiff’s acts or omissions. The door wasunlocked despite the existence of the lock pad. The hallway was dimly lit. The adjuster described the staircase as “steep” [Page 202 ofthe ROM]. Violations of the National Building Code have been established that I find contributed to the loss. There is no landing at thetop of the stairs.

The door “is equipped with a standard automatic closing mechanism, adjusted to a reasonable tension (…)” by theDefendant’s own admission in its pleadings. The railing on the right side was not intended to prevent the Plaintiff from losing herbalance or falling because it was either not attached, poorly constructed and/or being used for another purpose such as to move boxes upand down the stairs despite assertions to the contrary by the Defendant.

There was no railing whatsoever on the left side of the stairs forthe Plaintiff to rely upon either. [123] Keeping those facts in mind, along with the Plaintiff’s evidence that “When I stepped through the door, the doorpushed me forward and closed behind me”, and “I remember trying to grab anything to catch myself from falling however I was not able

to grab anything and fell down the stairs and landed at the bottom of the stairs”, it is easy to understand how and why the Plaintiff fell. [ 124 ] As noted above, I have accepted the Plaintiff’s evidence that the door pushed her forward and closed behind her. That sequence of events would have occurred irrespective of whether the basement was reasonably lit or not. With no landing in place – approximately 14 inches of space on the top stair - she fell forward and tried to brace her fall. However, the homemade handrail did not function as intended, or at all.

It would have been of no use for her to reach to her left because there is no handrail there at all to prevent her from falling. By her description, she fell into a “hole”. [ 125 ] I also find that this unfortunate incident would not have occurred if the Defendant had reasonably warned the Plaintiff about the unsafe and hazardous condition of the stairwell and/or used the lock pad on the date of loss. The Defendant knew about the danger because as Ms. Roach informed Ms.

Morin immediately after find the Plaintiff that “she knew this would happen one day” and that she had been telling the owner to fix the lock on the door for a long time. Ms. Roach also informed Ms. LaForest shortly after the incident that she should have locked the door to the basement and that it was not the first time someone had fallen down the stairs. [ 126 ] The Defendant therefore knew of the risk of injury. However, the Plaintiff did not, and could not, have reasonably anticipated it in the circumstances.

The Defendant’s failed acts and omissions could reasonably be foreseen to cause the Plaintiff loss and damage. The Defendant could have reasonably foreseen that ordinary and reasonably prudent patrons invited to use the garage to smoke, and the washrooms situated at the rear part of the Bar, were at risk of injury. In my view, this is a case of foreseeable risk of harm. [ 127 ] In essence, all of this could have easily been avoided by the Defendant for the reasons discussed above.

I am satisfied that, but for the Defendant’s breach of the standard of care, the Plaintiff would not have suffered personal injury and resulting loss and damage. Issue 4 - Remoteness [ 128 ] As noted above, the Defendant did not advance any written or oral argument on remoteness.

I will nevertheless briefly address the issue for clarity. [ 129 ] The analysis with respect to remoteness is to consider whether the Defendant was able to foresee that its breach of the standard of care would cause the extent of the injury suffered by the Plaintiff. [ 130 ] In this case, the Plaintiff fell down a flight of steep basement stairs because of the Defendant’s failure to provide reasonably safe premises for the purposes contemplated.

It is makes perfect sense that she fractured her right wrist when she fell down the flight of 12 stairs because she would be trying to brace herself by any means possible, but especially by using her hands to stop and/or to soften the landing. This type of injury would not be unusual for someone falling down a flight of stairs. It was the Defendant’s negligence that precipitated the Plaintiff’s fall and, as a result, it is directly connected to the injury she sustained thereby giving rise to its liability.

Issue 5 - Contributory Negligence [ 131 ] Although I have found that the Defendant did not meet its duty to provide reasonably safe premises for the purposes contemplated, the Plaintiff still has a duty to exercise reasonable care to ensure her own safety. As the Court of Appeal said in McAllister v. Wal-Mart Canada Inc . , supra if a customer fails in this duty, and consequently contributes to his or her injuries, fault must be apportioned for loss. In other words, does t he Plaintiff bear any contributory negligence.

I do not believe she does in this case. [ 132 ] The Plaintiff was not familiar with the rear area of the Bar. She never opened the basement door prior this incident. She was wearing proper footwear [Pages 105-106 of ROM]. The Plaintiff was not intoxicated. There is no evidence that the Plaintiff was fumbling around in total darkness when she entered the basement door, hurried onto the first step knowing it was unsafe, made a misstep or otherwise took any unreasonable risk.

[ 133 ] I hasten to point out that the Plaintiff was not given an opportunity to proceed down the stairs “slowly and carefully” in this case, because the automatic tension adjusted closing door pushed her forward onto a stair without any landing, which caused her to lose her balance and reach for support. As noted above, I have found that the condition of the handrail or lack thereof was one of the causes of the Plaintiff’s fall down the stairs. [ 134 ] In rejecting the Appellant’s argument on contributory negligence, the Court of Appeal stated the purpose of a handrail in Roman Catholic Bishop of Edmundston v.

Moreau , supra at paragraph 25: 25 Be that as it may, one of the primary purposes of a handrail is precisely to prevent a stairway user from losing his 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 probably have prevented the respondent's "faux pas" (misstep) and, in the event she did lose her balance, it would have allowed her to steady herself. Accordingly, the genesis of the "faux pas" and the ensuing fall are clearly within the purview of the appellant's lack of care. [ 135 ] I refer back to the Kobs v.

Merchant Hotel , supra case, where the Plaintiff was found to be contributorily negligent in not seeing a well-lit door and “being affected by the beer he drank”. In this case, the hallway and door were not “well-lit” and she was not intoxicated. [ 136 ] Considering all these circumstances, the fact that the Plaintiff says she did not see the “Employees Only” sign does not convince me that she contributed to her injury or failed to exercise proper care. The sign was small, the hallway was dimly lit, all the doors looked alike and, significantly, the warning was not specific to the danger.

The Plaintiff cannot be expected to take reasonable steps to ensure her own safety without any knowledge of what safety issues in fact exist. The “Employees Only” sign does nothing to change that reality in the context of this case. [ 137 ] I am satisfied that the Plaintiff was not contributorily negligent. Conclusion on Liability [ 138 ] In

summary, the stairs were unsafe and constituted a safety hazard. The “Employees Only” sign on the basement door failed to specifically warn the Plaintiff of the danger. In any event, the Defendant failed to use the lock pad on the basement door for its intended purpose, which was to keep the door locked. The Defendant’s failure to provide reasonably safe premises caused the Plaintiff’s injury. In essence, the Defendant’s negligence created an unreasonable risk of harm to the Plaintiff. [ 139 ] The Court of Appeal in The Roman Catholic Bishop of Edmundston v.

Moreau , supra at paragraph 6 found that that the following questions to be determined vis-à-vis the liability of an owner of premises were proper: [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. [ 140 ] Similarly, in Edmonson v. Edmonson , supra, LeBlond, J.A. stated at paragraph 44 the following elements had to be proven to establish negligence: 1) duty of care;

2) standard of care; 3) causation; and 4) remoteness of damage or proximate cause. [ 141 ] The Court of Appeal in Edmonson v. Edmonson , supra also discussed under the heading of causation the issue of contributory negligence at paragraph 75: [75] If there is to be an apportionment of the damages under provincial negligence statutes, such as the Contributory Negligence Act , R.S.N.B. 2011, c. 131 , that occurs at the damages phase of the trial. However, apportionment is not a barrier to

summary judgment for liability. [ 142 ] I find that the Defendant is liable under the law of negligence because: • The Defendant owed the Plaintiff a duty of care. • The Defendant failed in its duty to provide reasonably safe premises for the purposes contemplated. • The Defendant’s failure to satisfy its duty and its breach of the applicable standard of care caused the Plaintiff’s injury and losses. • The Plaintiff suffered an injury because of the Defendant’s negligence namely, a fractured right wrist (scaphoid). • The Plaintiff’s injury is not too remote. • The Plaintiff in no way voluntarily assumed the risk of injury (which was not pled in any event), nor was there any basis to find that she was contributorily negligent. [ 143 ] Based on these findings on liability, I am satisfied on a preponderance of the evidence that there is no genuine issue for trial in respect of the Plaintiff’s claim against the Defendant.

As a result,

summary judgment must be granted in favour of the Plaintiff: Russel et al. v. Northumberland Co-operative Limited , supra at paragraph 23. [ 144 ] Conversely, the Defendant has not established that there is no genuine issue for trial in respect of its defence and, as a result, its request for

summary judgment is denied. Issue 6 – Costs [ 145 ] Both parties asked for costs on their respective motions. Costs awarded on Motions for

Summary Judgment consider the consequences of the relief sought and may therefore involve higher amounts than what might be awarded on other motions. However, discretion must be exercised by considering the factors set out in Rule 59.02 of the Rules of Court , in addition to those referred to in Rule 22.06, which reads as follows:

22.06 Costs Sanctions for Improper Use of Rule If Motion Fails

(1) On a moti

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