2003 MBCA 47, 2003 MBCA 47

IN THE COURT OF APPEAL OF MANITOBA Coram: Kroft, Monnin and Hamilton JJ.A. B E T W E E N : ANNA NIKKEL ) M. D. Jodoin ) for the Appellant (Plaintiff) Appellant ) ) D. J.

Mackinnon - and - ) for the Respondent ) ) Appeal heard: WESTFAIR FOODS LTD. trading ) March 13, 2003 under the business name and style of ) EXTRA FOODS ) Judgment delivered: ) April 3, 2003 (Defendant) Respondent ) MONNIN J.A. 1 This is an appeal from the dismissal of an action brought pursuant to the provisions of The Occupier’s Liability Act , C.C.S.M. c. 08 (the Act ). 2 The appellant plaintiff slipped upon entering one of the respondent defendant’s stores and injured herself.

She alleges that the defendant breached the duty of care it owed her by failing to reasonably maintain the condition of its store to ensure her safety. 3 A

summary of the facts is found in paras. 2 - 3 of the reasons for judgment: On December 31, 1996, the plaintiff, age 84, went shopping at the defendant’s store. Her son parked the car about 100 feet from the entrance and followed her into the store. Because of mild temperatures, the area surrounding the store was wet and slushy. The plaintiff walked through the slush, entered the foyer of the store and walked across a six-foot carpet, which extended to the sliding inner door of the store.

As the door opened, she took one step across the threshold onto a tiled area where she slipped and fell, suffering an undisplaced fracture of her right hip. The unfortunate accident took place at about 4:00 o’clock in the afternoon on a day when the store was very busy. As she entered the store, the plaintiff failed to observe a small sign that gave notice of danger because of slipperiness. A second mat had been placed over the tiled floor inside the door, but at a distance beyond which the plaintiff would be able to reach on her first step while entering the store.

The plaintiff was wearing rubber-soled shoes, which had been worn down over several years’ use. Where the plaintiff entered the store, there was a slight elevation above the tile contained in the foyer. Where she slipped, there was some moisture, but no pool of water. There is no evidence as to the nature of the tile located on the interior floor of the store.

One witness who attended on another occasion found it to be a little slippery, but there is no evidence that the tile fell below building standards or regarding the tile in use at the time in other stores. 4 In dismissing the plaintiff’s action, the trial judge stated at para. 11 of his reasons: In the circumstances of this case, I find that the plaintiff has failed to establish sufficient facts to render the defendant liable.

Based on the facts referred to in paras. 2 to 5 hereof, I find that the plaintiff slipped on water which she brought into the store, contributed to a minor extent by water located on the carpet which she walked over. It was foreseeable that one might slip on entering the store. That is the reason the carpets were put in place and the sign cautioning persons entering the store against the risk. However, the defendant had an adequate system in place. I find, on the evidence, that it would be expecting too much of the store to have extra mats or to vacuum the

mats. Focussing our attention at the site of the fall, there was a minimal amount of moisture, suggesting that the area had been mopped. It would be difficult to find that there was a requirement that the store employ a dryer to supplement the mopping. It is regrettable that the defendant did not call as a witness the employee who did the cleaning. Some explanation was given for the failure to call him.

However, the evidence of the assistant manager and the evidence that there was but some moisture justify a conclusion that the critical area had been cleaned. 5 The plaintiff grounds her appeal on two points: firstly, that the trial judge erred in finding that the defendant had an adequate plan in place to make the store reasonably safe and that in fact the store was reasonably safe; and, secondly, that the trial judge erred when he failed to draw adverse inferences against the defendant because the defendant did not produce at trial the employee who was charged with removing the water and moisture from the entranceway of the store and because the defendant did not produce documentary evidence to confirm the actions of its employees. 6 In support of her “adverse inferences” argument, the plaintiff relies on the following passage from a decision of Ball J. of the Court of Queen’s Bench of Saskatchewan in a similar “slip and fall” case ( Stonechild v.

Westfair Foods Ltd. , (2001), 212 Sask. R.312, 2001 SKQB 466 ) (at para. 17): An unfavourable inference can be drawn when, in the absence of an explanation, a party fails to adduce the evidence of a witness who would have knowledge of the facts and who would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.

Such failure is said to amount to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it (see Murray v. Saskatoon (City) , 1951 CanLII 202 (SK CA) , [1952] 2 D.L.R. 499 (Sask. C.A.) at 505-6) . 7 The trial judge was informed that the employee in question was no longer employed by the defendant nor could he be located. The documents that the plaintiff argued should be produced could not be located and the trial judge was so informed. He declined to make the adverse inferences that the plaintiff sought.

He was entitled to do so as that is a matter of fact finding that is within the competency of a trial judge and should not be interfered with unless there is palpable error which is not the case here. 8 On the more substantive ground that the defendant failed to have in place a reasonable plan to ensure the safety of its customers, the plaintiff’s argument centers on the location of the mats placed by the entranceway to absorb the snow and water.

She argues that the mat inside the store should have been placed closer to the doorsill so as to eliminate any portion of the tile floor being exposed. 9 The trial judge considered the evidence before him and his reasons clearly indicate that he was aware of the legal principles to be applied to the factual situation before him. He found that the plan put into effect by the defendant was a reasonable one and that it was properly executed. He was entitled to come to the conclusion that he did on the basis of all of the evidence before him. He made no error. 10 In LeClerc v.

Westfair Foods Ltd . (2000), 148 Man.R. (2d) 56 , 2000 MBCA 73 , Kroft J.A. wrote (at para. 36): The fact that the accident happened does not automatically mean that the occupier was liable. To me, this is one of the unwelcome incidents of life that occur even when the occupier of the premises has operated the store with reasonable care. 11 This comment applies well to this case. It is most unfortunate that the plaintiff was injured, but it is not because she suffered an injury that the defendant must be found liable. The defendant had a duty of care to the plaintiff.

The trial judge found that the defendant properly discharged that duty. There was evidence on which he could come to that conclusion. There is no basis for appellate interference. 12 I would dismiss the appeal with costs to the defendant. J.A. I agree: J.A. I agree: J.A.