Theriault v. Avery’s Farm Markets Limited, 2022 NSCA 36

Nova Scotia Court of Appeal Citation: Theriault v. Avery’s Farm Markets Limited , 2022 NSCA 36 Date: 20220505 Docket: CA 505998 Registry: Halifax Between: Joanne Marie Theriault Appellant v. Avery’s Farm Markets Limited Respondent Judge: The Honourable Justice Cindy A. Bourgeois Appeal Heard: January 17, 2022, in Halifax, Nova Scotia Subject: Occupiers’ Liability Act ; Civil Procedure Rule 51.10—common documents book

Summary: [ 1 ] On September 26, 2015, the appellant, Joanne Marie Theriault, stopped at Avery’s Farm Market in Coldbrook, Nova Scotia. Shortly after entering the store, the appellant asked an employee where she could locate some pears. Having been pointed to a display table, the appellant proceeded in that direction. [ 2 ] As the appellant approached the table, her right foot slid forward. She was wearing wedge- heeled sandals. The appellant was able to grab the table for support but landed on her left knee. She was assisted by other patrons and a staff member.

The appellant’s fall, and the time period before and immediately after, was captured on surveillance video. [ 3 ] The appellant brought a claim against the respondent, Avery’s Farm Markets Limited, in which she alleged it had breached its obligation under the Occupiers’ Liability Act , S.N.S 1996, c. 27 (“ OLA ”). She asserted she suffered injuries as a result of the fall and sought damages. [ 4 ] A trial was held in the Supreme Court of Nova Scotia. It was spread over six non-consecutive days and had unexpected delays.

After having heard the evidence and submissions of counsel, the judge found the appellant had not proven the respondent had breached its duty under the OLA , and dismissed her claim. He provisionally assessed the appellant’s damages. [ 5 ] The appellant sought to challenge the judge’s liability finding and provisional assessment of damages. At the heart of this appeal is the appellant’s assertion she was unfairly treated at trial by virtue of the judge removing an unreferenced document from the common documents book (an Incident Report) at the close of the respondent’s case, and by the respondent’s trial tactics.

Issues:

(1) Did the judge err in exercising his discretion to remove the Incident Report from the common documents book?

(2) Did the judge err by failing to recognize the Incident Report as an admission against interest?

(3) Did the judge err in concluding the appellant had failed to demonstrate the respondent breached its obligations under the OLA ?

Result: Appeal dismissed. The Incident Report had not been identified by any witness. Civil Procedure Rule 51.10 permitted the respondent to request at the close of its case that the Incident Report be removed from the common documents book. In the circumstances before him, the judge was entitled to grant that request. There was nothing improper about the respondent’s trial conduct, nor did it give rise to an injustice. The appellant had not laid an evidentiary foundation upon which the judge could consider the Incident Report to be an admission against interest. As such, he did not err as alleged.

The judge identified the correct legal principles. He made findings of fact which were supported on the evidentiary record. There was no demonstrable error in the judge’s application of the facts to the legal principles. His ultimate conclusion that the appellant had failed to demonstrate the respondent had breached its obligation under the OLA was supported by the evidentiary record. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 18 pages. Nova Scotia Court of Appeal Citation: Theriault v.

Avery’s Farm Markets Limited , 2022 NSCA 36 Date: 20220505 Docket: CA 505998 Registry: Halifax Between: Joanne Marie Theriault Appellant v. Avery’s Farm Markets Limited Respondent Judges: Wood C.J.N.S., Bourgeois and Van den Eynden JJ.A. Appeal Heard: January 17, 2022, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Bourgeois J.A.; Wood C.J.N.S. and Van den Eynden J.A. concurring Counsel: Luke C. Godin and J.W. Stephen Johnston, for the appellant Jonathan G.

Cuming, for the respondent Reasons for judgment: [ 6 ] On September 26, 2015, the appellant, Joanne Marie Theriault, stopped at Avery’s Farm Market in Coldbrook, Nova Scotia. Shortly after entering the store, the appellant asked an employee where she could locate some pears. Having been pointed to a display table, the appellant proceeded in that direction. [ 7 ] As the appellant approached the table, her right foot slid forward. She was wearing wedge-heeled sandals. The appellant was able to grab the table for support but landed on her left knee. She was assisted by other patrons and a staff member.

The appellant’s fall,

and the time period before and immediately after, was captured on surveillance video. [ 8 ] The appellant brought a claim against the respondent, Avery’s Farm Markets Limited, in which she alleged it had breached its obligation under the Occupiers’ Liability Act , S.N.S 1996, c. 27 (“ OLA ”). She asserted she suffered injuries as a result of the fall and sought damages. [ 9 ] A trial was held in the Supreme Court of Nova Scotia. It was spread over six non-consecutive days and had unexpected delays. After having heard the evidence and submissions of counsel, Justice Gregory M.

Warner found the appellant had not proven the respondent had breached its duty under the OLA , and dismissed her claim. He provisionally assessed the appellant’s damages. [ 10 ] The appellant now seeks to challenge the judge’s liability finding and provisional assessment of damages. At the heart of this appeal is the appellant’s assertion she was unfairly treated at trial by virtue of the judge removing a document from the common documents book at the close of the respondent’s case, and by the respondent’s trial tactics. [ 11 ] For the reasons that follow, I would dismiss the appeal.

Background [ 12 ] The procedural history of the action is relevant to the issues now raised on appeal. To provide context for the reasons to follow, salient aspects of the advancement of the claim and conduct of the trial will be noted. Focus will be placed on those aspects relevant to the liability determination. [ 13 ] In her Notice of Action and Statement of Claim, filed February 25, 2016, the appellant alleged the following in support of her claim against the respondent: 3.

On or about the 26 th of September, 2015, the Plaintiff was walking through the Avery’s Farm Market located at 6976 Highway 1, Coldbrook, Nova Scotia. As the Plaintiff was walking throughout the store she passed by a table of produce and slipped over an accumulation of water and vegetable matter that was along the floor , resulting in the Plaintiff losing her footing and collapsing. … 5. The Plaintiff states that the Defendant was in breach of its statutory duty pursuant to the Occupiers’ Liability Act , R.S., 1996, c. 27,

Section 4, as amended, and that the injuries suffered by the Plaintiff are the result of the Defendant employees[’] careless and negligent supervision of the store, the particulars of which are: (

a) failing to take appropriate steps to ensure that customers were reasonably safe while traversing the premises; (

b) failing to maintain, or properly maintain, the Defendant’s property; (

c) failing to inspect the Defendant’s property adequately, or at all; (

d) failing to develop a maintenance policy which provides for reasonable and effective oversight and care of the premises; (

e) in the event there is a reasonable maintenance policy in place, failure on the part of the employees to adhere to the policy in place (

f) such other negligence as may appear. (Emphasis added) [ 14 ] In its Statement of Defence, the respondent denied the existence of an accumulation of water or vegetable matter on the floor as alleged, or other negligent conduct giving rise to a breach of statutory duty. [ 15 ] In her pre-trial brief, the appellant advised the following evidence would be called relating to the issue of liability: 9. Joanne will tender the following as evidence as regards the liability of Avery’s Farm Market for her fall: a. surveillance video evidence; b. testimony of Mr.

Jerry Strum; and c. testimony of Joanne. [ 16 ] She further indicated the “evidence of defendant witnesses” would be relevant to establishing liability. She wrote: 13.

We anticipate, based on discovery testimony, it will be shown that at the relevant time that: a. the Defendant did not have any formal policy for cleaning or maintenance of its stores; b. the Defendant had, prior to Joanne’s fall, hired a consultant who recommended a log system for sweeping and cleaning the floors of its stores, but that system had been disregarded by the Defendant prior to Joanne’s fall; c. the Defendant did not have any safety manual for its employees;

d. the Defendant did not provide any formal training to its employees with respect to maintaining a safe premise [ sic ] for customers and staff; and e. that neither Mr. Avery, nor any of the managers of his stores, had ever sought formal training with respect to the proper maintenance of his markets. [1] [ 17 ] At the commencement of trial, counsel for the appellant advised that Mr. Strum [2] would not be called to testify due to health concerns. Counsel did not ask for an adjournment in light of this development, nor was a request made to facilitate Mr. Strum’s testimony being received by other means.

Counsel for the respondent also advised that one of the persons named on its witness list, Katherine Curran, could not be located and would also not be called to give evidence. [ 18 ] Before the commencement of testimony, counsel for the appellant presented what he referred to as a “joint exhibit book” [3] along with two addenda. They were marked as exhibits. The common documents book included an electronic copy of the surveillance video depicting the respondent’s premises and the appellant’s fall. It also included (at Tab 11) a document entitled “Incident Report”.

More will be said about these two items later. [ 19 ] The appellant testified. She was asked in direct examination to describe “what happened step by step” leading up to her fall. She said: Well, basically, I was just walking the way I normally walk, like everyone normally walks, just looking around, or whatever, or out of the sight of your eyes and just walking towards the pears. And all of a sudden I just felt my foot slide and I felt myself going down … I just felt like I was going down, and the table was – there was a table in front of me.

I’m not even sure, to my recollection if it was the one that had the pears. But I felt myself slipping, and I tried to right myself, ‘cause my leg was going in front of me, so I tried to get my balance, and I couldn’t. And I reached out, of course, as instincts do, to try to grab something. And I ended up that I was – I think I was pretty well – I kind of did the splits a little bit, I believe. And I was almost down to my knees I think, and I know I had a hold of that edge of the table.

I don’t know if it was a corner or up further, but I had a hold of that for dear life, and that’s what stopped me from possibly hitting my feet, or whatever. [ 20 ] Counsel then asked the appellant with which hand she grabbed the table, to which she replied “with my right”. As a final point of clarification, the appellant was asked which foot she felt “go from underneath” her. She testified it was her right foot.

Later in her testimony the appellant stated, “I think I remember someone cleaning up at some point.” She did not elaborate. [ 21 ] A review of the record demonstrates the appellant provided no further testimony regarding the condition of the respondent’s premises. She did not state there was an accumulation of water or vegetable debris on the floor that prompted her fall as had been alleged in the pleadings. She gave no explanation in her testimony as to why she believed her right foot slid as she was approaching the pear table.

Although included in the common documents book, the appellant was not asked to identify or comment upon the surveillance video depicting her fall. [ 22 ] The appellant called other witnesses at trial; however, they did not speak to the issue of liability.

Notwithstanding identifying in her pre-trial brief the discovery evidence of “defendant witnesses” as relevant to the respondent’s alleged breach of its duty under the OLA , the appellant did not tender discovery evidence as part of her case. [4] Further, the appellant closed her case without any witness referencing the surveillance video or the Incident Report. [ 23 ] Immediately after the appellant closed her case, the respondent advised it intended to bring a motion for non-suit on the basis the appellant had not produced evidence upon which a finding of liability against it could be made.

As a consequence of the motion, a dispute arose between the parties as to what evidence had been introduced by the appellant.

In particular, the parties were at odds as to whether the surveillance video and Incident Report, by virtue of their inclusion in the common documents book, should be considered as having been introduced by the appellant and thus part of the evidentiary record on the non-suit motion. [ 24 ] Counsel for the appellant advised the judge the parties had agreed in advance of trial the contents of the common documents book were to be introduced into evidence and, as such, the surveillance video and Incident Report constituted part of the record. Counsel for the respondent denied the existence of such an agreement.

The appellant submitted that the inclusion of the documents within the common documents book, without complaint by the respondent, meant the contents should be considered, for all purposes, as evidence. The respondent strenuously disagreed. [ 25 ] In light of the difference of opinion regarding the intended evidentiary use of the common documents book, the judge gave the parties the opportunity to file affidavit evidence addressing what agreements, if any, the parties had reached regarding the use of the contents generally, or with respect to the surveillance video and Incident Report in particular.

This necessitated a mid-trial adjournment. [ 26 ] Counsel for the appellant filed an affidavit. It attached correspondence between counsel, as well as internal email communications within his office. The correspondence between counsel referenced the surveillance video. There was discussion in the correspondence that there would be no need to call a witness for its authentication.

The correspondence contained no discussion pertaining to the use of the Incident Report. [ 27 ] Based on the correspondence exchanged between counsel, the judge concluded the parties had reached an agreement regarding the use of the surveillance video at trial, namely, there was no need for it to be authenticated and it would be admitted for the truth of its contents. He further found that the appellant had intended to tender the surveillance video as part of her case, but had overlooked specifically doing so.

The judge determined it should be considered as evidence in the appellant’s case. [ 28 ] However, the trial judge found no agreement had been made regarding the admission and use of the Incident Report at trial. Given no witness had referenced the Incident Report either in viva voce evidence or by virtue of tendered discovery evidence, the judge determined it had not been entered into evidence by the appellant.

The judge concluded the fact the respondent did not object to its inclusion in the common documents book did not, on its own, establish the parties had agreed it would be entered into evidence for the truth of its contents. It was not part of the evidentiary record for the purposes of the non-suit motion, as it had not been introduced as part

of the appellant’s case. [29] Having established the evidentiary record, the judge then turned to consider the respondent’s motion. After setting out thelegal principles governing the granting of non-suit and considering the evidence adduced by the appellant, the motion was dismissed. Following the judge’s oral decision on the motion, respondent’s counsel asked for the opportunity to seek instructions on whetherdefence evidence would be adduced. [30] The trial resumed two weeks later. The respondent advised it would not be calling evidence and closed its case.

It requestedthe Incident Report be removed from the common documents book, as it had not been identified in the evidence by any witness. Thejudge removed the document as requested. [31] After hearing final submissions on the merits of the claim, the judge rendered an oral decision. He reviewed the evidence andlegal principles, and found that the appellant had not established the respondent breached the OLA. As noted earlier, notwithstanding hisliability finding, the judge proceeded to assess the appellant’s damages on a provisional basis.

Issues [32] The appellant filed a Notice of Appeal on May 7, 2021 in which she challenges both the judge’s liability finding and hisprovisional assessment of damages. [33] To resolve the appeal, it is only necessary to address the arguments advanced in relation to the judge’s liability determination. In her factum, the appellant sets out two grounds in that regard: I.

The Learned Trial Justice erred in law by removing Tab 11 of the common book as the objection to the exhibit’s admission wasonly raised after the close of the Appellant’s case, after the common book had been tendered, and in any event, Tab 11 was an admissionagainst the interest of the Respondent. … II.

The Learned Trial Justice erred in fact and law by misapplying the Occupiers’ Liability Act 1996, s. 27, s. 1 when His Lordshipheld that the Appellant must identify what caused her fall despite video evidence being entered to demonstrate the same. … [34] Having considered the arguments advanced, I would restate the issues to be resolved as follows: 1. Did the judge err in exercising his discretion to remove the Incident Report from the common documents book? 2. Did the judge err by failing to recognize the Incident Report as an admission against interest? 3.

Did the judge err in concluding the appellant had failed to demonstrate the respondent breached its obligations under theOLA? Standard of Review [35] In Miller v. Royal Bank of Canada, 2008 NSCA 118, which also involved a claim under the OLA, Justice Saunders describedthe standard of review as follows: [6] Before addressing each of these arguments it is important to recall this court’s limited jurisdiction on appeal. Whether themembers of this panel might have decided the case differently had they heard it in first instance, is not the test. Neither does an appealprovide an opportunity for a second trial.

Great deference is paid to a trial judge’s findings of fact, or inferences drawn from those facts.Such conclusions are immutable unless it can be shown that they are the result of palpable and overriding error. Assessing testimony,evaluating the evidence, making factual findings, and drawing inferences are all functions well within the jurisdiction of the trial judgewho enjoys a significant advantage in seeing and hearing the witnesses first hand. Not every misapprehension of the evidence or everyerror of fact by the trial judge will justify appellate intervention.

The error must not only be plainly seen, but be overriding anddeterminative. See for example Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235; Delgamuukw v. BritishColumbia, (SCC), [1997] 3 S.C.R. 1010; and 2703203 Manitoba Inc. v. Parks (2007), 2007 NSCA 36 , 253N.S.R. (2d) 85 (C.A.). … … [8] The trial judge made several findings of fact with respect to the bank’s premises on the day of the mishap. These are set out at ¶111 of his decision. At no point in the trial judge’s discussion with respect to liability does he find that the actions of the bank “constitutenegligence”.

On the contrary, he refers to and then properly applies the law as set out in the Occupiers Liability Act (OLA), to thecircumstances as he found them to exist on the day of the mishap. The application of the correct standard when judging an occupiers’conduct is a question of law. Whether, in the particular circumstances, the occupier met that standard, is a question of fact. See Ingles v.Tutkaluk Construction Ltd., 2000 SCC 12 , [2000] 1 S.C.R. 298; and Marche v. Empire Co., (2001) 2001 NSCA 59, 193 N.S.R. (2d) 132 (C.A.). [36] The standard of review applied to a discretionary decision is well-known.

A deferential approach is taken. This Court will notintervene unless an appellant can demonstrate the judge erred in law, or the result was patently unjust. See for example Laframboise v.Millington, 2019 NSCA 43 and McPherson v. Campbell, 2019 NSCA 23. Analysis Did the judge err in exercising his discretion to remove the Incident Report from the common documents book? [37] The Incident Report had not been identified by a witness at the close of evidence. In such instances a document “may” beremoved from a common documents book (see Rule 51.10(4) set out below).

The judge’s decision to remove the Incident Report from

the common documents book was an exercise of his discretion. As such, the appellant must demonstrate the decision to do so was based on an error of law, or led to a patent injustice.

Although intermingled within her arguments, the appellant submits the judge’s decision constituted an error in principle given his misapplication of Nova Scotia Civil Procedure Rule 51.10, and gave rise to an injustice by condoning the respondent’s objectionable trial conduct. [ 38 ] It is obvious from the record below and the arguments advanced on appeal, the parties are at odds about the purpose and use of a common documents book, and the evidentiary import of having materials included therein. In the court below, and on appeal, both parties rely on Rule 51.10, but advance very different approaches to its

interpretation and application. [ 39 ] Rule 51.10 governs the use of a common documents book and provides:

(1) The parties must communicate with each other before trial for the production of a common documents book, or a common file of electronic information that the presiding judge or jurors can read.

(2) All documents and electronic information a party wishes to offer, and to which no other party will object, must be bound in the common book, or placed in the common file.

(3) The common book or file may be presented at the beginning of trial as containing jointly offered exhibits or exhibits to be tendered separately when the party offering the exhibits closes the party’s case.

(4) A document in a common book, or electronic information in a common file, may be removed if no witness has identified the document, or information.

(5) Unless the judge orders otherwise, a document or electronic information is taken as admitted if it is not removed from a common book or a common file when the last party closes that party’s case.

(6) The contents, including hearsay, of a document or electronic information taken as admitted are taken to be evidence for all purposes unless the parties agree, or the judge rules, that the document or information is admitted for a limited purpose. [ 40 ] As noted above, the appellant says she was treated unfairly by the respondent, and the judge’s removal of the Incident Report from the common documents book constituted an improper application of the Rule. Several passages from her factum demonstrate the appellant’s concern. In her overview, she writes: 2. This appeal concerns fairness.

The Respondent disclosed in its affidavit of documents the incident report of the fall. This incident report was included in the common book. The respondent did not object to its inclusion. The respondent prepared a witness list. On the eve of trial, it removed the author of the report as a witness and, at the opening of trial, did not object to the common book being marked as exhibit 1. Only after the close of the Appellant’s case, did the Respondent object to the inclusion of the report.

This was not fair and not with [ sic ] keeping with object of the NS Civil Procedure Rules. [ 41 ] Later, the appellant again impugns the trial conduct of the respondent, and the judge’s failure to prevent an unfair proceeding: 22. It is trite to say that the Nova Scotia Civil Procedure Rules seek to prevent trial by ambush because they require the parties to engage in full pre-hearing disclosure of relevant documents, witness lists, common exhibit books, and positions in respect of damages. This is to allow for fairness for both sides and for the proceeding to occur in an expeditious manner. 23.

That did not occur as regards the common exhibit book at trial and with respect, the Learned Trial Judge erred when he removed Tab 11 from the common exhibit book marked as Exhibit 1A at the trial. [ 42 ] After quoting Rule 51.10, the appellant writes: 25. In

summary, a party is required to complete a common book of exhibits and provide it to the opposing party. The opposing party can add, alter, delete or object to documents in the common exhibit book. Once the parties agree to the contents of the common exhibit book it is submitted and marked as an exhibit at trial.

The documents contained therein are admitted for all purposes and only a judge may remove a document from it. (Emphasis added) [ 43 ] According to the appellant, it was the failure of the respondent to object to the documents being included in the common documents book, as contemplated in Rule 51.10(2), that gave rise to the contents being admissible at trial for all purposes.

She says the judge’s failure to recognize this was an error in law. [ 44 ] The respondent says there was no unfair “trial by ambush” and asserts the judge’s removal of the Incident Report at its request was an entirely appropriate exercise of discretion and in accordance with Rule 51.10. The respondent submits the appellant anchors her argument in an overly insular reading of Rule 51.10(2) and she is wrong in her assertion that the inclusion of a document in a common documents book without objection makes it automatically “admitted for all purposes.” [ 45 ] I agree with the respondent.

Although there may be circumstances where a judge removing a document from a common documents book may constitute an improper exercise of discretion, such did not occur here. As is often the case, context matters. [ 46 ] The trial judge was entitled in the circumstances before him to grant the respondent’s request to remove the Incident Report from the common documents book at the close of its case. His doing so was not an error in principle. In reaching this conclusion, I note the following: • The purpose of a common documents book is to create a single location for the materials anticipated to be entered into

evidence at trial. It is a means of making the documentary record more manageable for the parties, witnesses and court. Instead of entering a number of individual exhibits, with the resulting shuffling of paper as witnesses and parties refer to multiple documents, a common documents book (notably when tabbed and indexed) provides a more streamlined means of referencing the evidentiary record; • The intent of Rule 51.10 is not to lower the evidentiary bar for the authentication of documents or their admission for the truth of their contents.

Reading Rule 51.10(2) in isolation, and in the manner suggested by the appellant, would do so; • Rule 51.10(4) expressly contemplates a judge removing a document from a common documents book if, as in the present case, it has not been referenced by a witness; and • Rule 51.10(5) contemplates, as occurred here, a request being made to have a document removed when the last party closes its case. [ 47 ] The appellant’s assertion that the inclusion of a document in a common documents book without objection by an opposing party triggers its automatic inclusion into evidence is incompatible with not only the provisions noted above, but also with Rule 51.10(2) upon which she relies.

For ease of reference, I set it out again:

(2) All documents and electronic information a party wishes to offer, and to which no other party will object, must be bound in the common book, or placed in the common file. [ 48 ] Rule 51.10(2) says a document can only be included in a common documents book when no other party will object to it being offered at trial. It does not follow that the other parties have agreed the document is authentic or can be accepted into evidence for the truth of its contents without the need of it being referenced by a witness.

Rather, the objection contemplated therein would be one that would prohibit a party from offering the document into evidence regardless of proof of its authenticity or the ability of a witness to speak to it.

Without limiting the circumstances where a party may object to another party offering a particular document at trial, examples may include the document being subject to a claim of privilege; it constituting improper expert opinion; it containing information subject to a confidentiality order; or a claim of irrelevancy. [ 49 ] Based on the above, I see no error in principle in the judge’s removal of the Incident Report from the common documents book.

It was not referenced by any witness, and its removal was an outcome fully contemplated by Rule 51.10. [ 50 ] As I noted earlier, the purpose of a common documents book is to make the management of a trial easier for all concerned. However, that worthy objective is diminished when trial judges find themselves mired in completely avoidable disputes about the intended use of materials contained in a common documents book.

Before moving on to address the appellant’s claims of injustice, I will pause for some observations that I hope may be of assistance to other litigants: • It is a rare case that a party does not rely upon documentary or electronic evidence in support of its claim or defence. Identifying what needs to be admitted into evidence and how that can be achieved is essential trial advocacy that should not be left to happenstance or the last minute.

Parties are well-advised to turn their minds to what documents they wish to offer at trial and seek early agreement on their inclusion in a common documents book; • As this case demonstrates, simply because a document finds itself in a common documents book without objection, a party intending to rely on it must still ensure it will be entered into evidence.

This typically requires the document to be authenticated and admitted into evidence; • Absent agreement between the parties, a document that has not been authenticated and referenced in evidence runs the risk of being removed from the common documents book when the last party closes its case; • To avoid disputes, parties should seek specific agreement regarding the use of the contents of common documents books. For instance, if there is agreement a document does not need to be authenticated, that should be clearly noted.

If there is agreement a document can be entered into evidence for the truth of its contents, or for some other purpose, without the need of a supporting witness, the party seeking its admission ought to detail it clearly. Discussing the potential for agreement is something that should occur well in advance of trial; • Parties, especially those represented by counsel, should not be surprised to have judges inquire in advance of trial about what agreements, if any, have been reached regarding the contents of the common documents book.

Even if not asked in advance, counsel should be in a position to confirm for the trial judge at the commencement of trial the existence of any agreements relating to authentication and the scope of admission respecting each document in the common documents book; and • If the parties have not reached agreement regarding the use of the contents, Rules 51.10(5) and (6) may result in unidentified documents being admitted into evidence for all purposes in the absence of a request to have them removed.

Parties should be vigilant to make a request to have unidentified documents removed should they wish to avoid such materials being part of the evidentiary record. [ 51 ] I turn now to the appellant’s complaints of unfairness. They can be dispensed with quickly. [ 52 ] As explained earlier, the respondent’s request to have the Incident Report removed from the common documents book was entirely consistent with Rule 51.10.

The respondent was under no obligation to give the appellant advance warning that should she fail to introduce the Incident Report as part of her case, it would ask the judge to remove it. [ 53 ] Further, there is no merit to the appellant’s complaint the respondent failed to call the author of the Incident Report (or other witnesses) as part of its defence. At the close of a plaintiff’s case, a defendant may be of the view the plaintiff has failed to adduce evidence establishing the facts underpinning their claim. At this point, a defendant may strategically decide not to call evidence at all.

Absent the plaintiff having secured an undertaking from the defendant to call a particular witness at trial, there is no obligation on a

defendant to call persons named on their witness list. As noted by Justice Oland in Tibbetts v. Murphy , 2017 NSCA 35 : [69] Civil Procedure Rule 4.18 reads in part:

(1) A party must, before the finish date, file a list of the witnesses the party intends to call at trial, except a witness the party will call only to impeach the credibility of another expected witness. …

(5) A party is not required to call each person on the party’s witness list, but a party who decides not to call a person on the list must immediately notify all other parties and the trial judge. [70] Rule 4.18 does not oblige a party to call all the witnesses on his list of witnesses. It only requires that immediate notice be given when a party decides not to call a witness. The record shows that Mr.

Murphy gave notice, and there is no basis for any suggestion that there was any deliberate delay in his doing so. [ 54 ] As a final point, including a document in a party’s Affidavit of Documents does not give rise to an obligation for that party to introduce it into evidence at trial. Here, if the appellant were of the view the Incident Report was material to advancing her claim, she could have taken steps to have it entered into evidence as part of her case. She did not do so. [ 55 ] The respondent was under no obligation to fill in evidentiary gaps that remained at the close of the appellant’s case.

Its response was strategic, but it was not unfair. The appellant has failed to demonstrate an injustice. Did the judge err by failing to recognize the Incident Report as an admission against interest? [ 56 ] In her argument before this Court, the appellant says the Incident Report was completed by Katherine Curran, a supervisor at the respondent’s Coldbrook store. She argues the contents of the report should have been admitted into evidence because it was an admission against the respondent’s interest and the judge erred by failing to do so. [ 57 ] With respect, I disagree.

The Incident Report, which appears to be a pre-printed form, was included in the record before this Court. There is handwriting on the document that says “she [slipped] on a small looked like leaf of one of the mums … the piece of leaf she [slipped] on was about the size of a quarter”. It is this factual assertion in particular the appellant says should have been admitted by the judge.

The problem with the appellant’s assertion, however, is that she laid no evidentiary foundation upon which such a determination could have been made. [ 58 ] Although the appellant argues the author of the report was a supervisor at the respondent’s premises, there is no basis in the evidentiary record for that assertion. The evidentiary record is silent as to the author of the Incident Report, how that person was related to the respondent, how the document came to be created or even whether it was a true copy.

Even if the judge had accepted the Incident Report was created by a supervisor of the respondent, there was no evidentiary basis to establish the author directly observed the incident, or how she may have come to have knowledge of the alleged material on the floor. [ 59 ] It is possible that evidence had been elicited through discovery proceedings about the nature of the document and the circumstances of its creation.

If that were the case, perhaps the evidentiary record could have been supplemented; however, the appellant chose not to tender that evidence. [ 60 ] Simply, there was no evidentiary foundation laid that would permit the judge to consider admitting the Incident Report as an admission against the respondent’s interest. The appellant has not demonstrated an error in this regard. Did the judge err in concluding the appellant had failed to demonstrate the respondent breached its obligations under the OLA ? [ 61 ]

Section 4 of the OLA provides: 4(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that each person entering on the premises and the property brought on the premises by that person are reasonably safe while on the premises.

(2) The duty created by subsection (1) applies in respect of (

a) the condition of the premises; (

b) activities on the premises; and (

c) the conduct of third parties on the premises.

(3) Without restricting the generality of subsection (1), in determining whether the duty of care created by subsection (1) has been discharged, consideration shall be given to (

a) the knowledge that the occupier has or ought to have of the likelihood of persons or property being on the premises; (

b) the circumstances of the entry into the premises; (

c) the age of the person entering the premises; (

d) the ability of the person entering the premises to appreciate the danger; (

e) the effort made by the occupier to give warning of the danger concerned or to discourage persons from incurring the risk; and

(

f) whether the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offersome protection.

(4) Nothing in this

Section relieves an occupier of premises of any duty to exercise, in a particular case, a higher standard of carethat, in such case, is required of the occupier by virtue of any law imposing special standards of care on particular classes of premises. [62] The legal principles applicable to a claim under the OLA are not controversial. At trial, both parties relied upon this Court’sdecision in Miller, supra.

They do so again on appeal. [63] There, this Court upheld the lower court’s articulation and application of the legal principles of occupiers’ liability drawn froma number of case authorities, including those set out by the Newfoundland Court of Appeal in Gallant v.

Roman Catholic EpiscopalCorp. for Labrador, 2001 NFCA 22: • There is a positive obligation upon occupiers to ensure that those who come onto their properties are reasonably safe; • The onus is on the plaintiff to prove on a balance of probabilities that the defendant failed to meet the standard ofreasonable care; • The fact of an injury in and of itself does not create a presumption of negligence.

The plaintiff must point to some act orfailure to act on the part of the defendant that resulted in their injury; • If a plaintiff is able to demonstrate a prima facie case of negligence, the occupier can discharge its evidential burden byshowing it has a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what ispractical in the circumstances and what is commensurate with reasonably perceived potential risk to those lawfully on the property; and • An occupier is not a guarantor or insurer of the safety of the persons coming on its premises. [64] Additionally, I would note: • In assessing whether an occupier has taken reasonable care in the circumstances to make the premises safe, the factors to beconsidered by the trial judge will be specific to the particular fact situation (Waldick v.

Malcolm, (SCC), [1991] 2 S.C.R.456 at para. 33); and • Demonstrating the existence of

an act or omission by an occupier does not give rise to an automatic finding of negligence. Whether an action or omission constitutes negligence giving rise to a statutory breach will depend on all the circumstances (Miller, supraat para. 9). [65] In the present case, the judge cited the correct legal principles governing the matter before him. He found the appellant had notestablished a prima facie case of negligence and, as such, she failed to demonstrate a statutory breach.

In reaching this conclusion, thejudge was not satisfied the evidence demonstrated the existence of debris on the floor giving rise to the appellant’s right foot slidingforward. [66] The appellant says the judge erred when he concluded she “must identify what caused the fall despite video evidence beingentered to demonstrate the same”. The appellant’s argument is straightforward: • She fell; • The video shows debris on the floor; • A finding of prima facie negligence must therefore be made. [67] With respect, the appellant is missing critical components in her analysis.

It is not enough to demonstrate there was debris onthe floor; she was required to establish the nature thereof was such that the respondent had not met its statutory burden to take reasonablecare for her safety. More importantly, the appellant has entirely overlooked the necessity to show the respondent’s conduct (permittingdebris to be on the floor) caused her to fall. [68] The judge carefully reviewed the surveillance video. Although he determined there may have been material on the floor inother locations, he found the area where the appellant slid was clear of debris.

The appellant says this was a palpable and overridingerror. I disagree. [69] I have carefully reviewed the surveillance video. The judge’s factual finding that there was no debris on the floor where theappellant fell is entirely supportable. The appellant’s right foot undoubtedly slid forward, but it could not have been because of debris onthe floor. As noted above, the appellant must demonstrate the fall arose because of the respondent’s failure to meet its statutory duty ofcare.

On the evidentiary record, I would not interfere with the judge’s conclusion the appellant failed to demonstrate a prima facie caseof negligence. Disposition [70] For the reasons above, I would dismiss the appeal. Costs have yet to be determined arising from trial; therefore, I am unable toapply the usual tariff. The appellant and respondent both suggest costs in the amount of $5,000 would be appropriate for the successfulparty on appeal. I agree. [71] I would order the appellant pay costs on appeal to the respondent in the amount of $5,000, inclusive of disbursements.

Bourgeois J.A. Concurred in: Wood C.J.N.S. Van den Eynden J.A.