) ) JOCELYNE HEBDITCH Plaintiff – v. –, 2013 ONSC 6458

CITATION : Hebditch v Birnie et al., 2013 ONSC 6458 COURT FILE NO.: 4306-08 DATE: 2013-10-28 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) JOCELYNE HEBDITCH Plaintiff – and – ESTATE OF JEANNE BIRNIE, DECEASED, MICHAEL BIRNIE and TED SEDDON Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Joelle Malette, Counsel for the Applicant D. Lynn Turnbull, Counsel for the Defendant ) ) ) HEARD: September 13, 2013 REASONS FOR JUDGMENT varpio, j. INTRODUCTION [ 1 ] This is a motion brought by the defendant, Ms. Birnie – now deceased - for

summary judgment. Ms. Birnie claims that there is no genuine issue for trial in this matter, which involves what is known in the legal profession as a “slip and fall”. As will be discussed below, evidential frailties in the record prevent me from having a full appreciation of the case and, as a result, the defendant’s motion is dismissed. FACTS [ 2 ] Ms. Jeannie Birnie was born in 1926 and, by 2002, she had led a full life with a family and grown children. In that year, Ms. Birnie’s family believed that she needed some assistance so they arranged to have people check in on her periodically.

Matters progressed and, although she continued to live in her own home, by 2006 Ms. Birnie required the assistance of a personal care worker. Ms. Birnie was having difficulty with some day-to-day living activities.

[ 3 ] Ms. Birnie's son and daughter-in-law, Mr. Michael Birnie and Ms. Susan Larmer, hired Ms. Jocelyn Hebditch to act as Ms. Birnie's personal care worker. Via contract dated May 31, 2006, Ms. Hebditch - operating as Sunset Senior Care - and Ms.

Larmer agreed that Sunset Senior Care would provide the following services: • “To make sure the house is clean (along with cats' litter and cat's [sic] eating area. • laundry • ironing clothes • meals • outtings [sic] (to apt. groceries, bank, fun, healthy walks, etc... • pampering day: Foot & leg massage, nails, cream for dryness • Keep chart of everyday events and what was done for the days Sunset Senior Care was there. The chart belongs to Sunset Senior Care.” [emphasis added] [ 4 ] Pursuant to the contract, Ms. Hebditch was required to keep a log of Ms. Birnie's daily activities. Ms.

Hebditch kept detailed and voluminous notes. [ 5 ] The contract did not require that Ms. Hebditch provide Ms. Birnie with 24-hour care and so, during the summer and fall of 2006, Ms. Hebditch attended at Ms. Birnie's house daily to ensure that Ms. Birnie's needs were met. There is no question that Ms. Birnie continued to have her faculties at this time such that she could stay in her house by herself at night. [ 6 ] During the fall of 2006, Ms. Birnie took steps to care for her house and yard. For example, Ms. Birnie appears to have hired Mr. James Brosseau to rectify some eavestrough issues for her.

According to the affidavits, although Ms. Hebditch appears to have contacted Mr. Brosseau initially, Ms. Birnie may have actually retained his services. [ 7 ] Ms. Birnie also had a long-standing business relationship with Mr. Ted Seddon, who is a defendant in this action. Mr. Seddon ploughed Ms. Birnie’s driveway. It is important to note that Mr. Seddon was not contracted to salt the driveway. In 2002, he ceased providing salting services. For the winter of 2006/2007, Ms. Birnie again retained Mr. Seddon's services and, according to Ms. Hebditch, paid Mr. Seddon via cheque. [ 8 ] Around this time, Mr.

Birnie and Ms. Larmer decided that Ms. Birnie required more extensive care and they thus contracted with Ms. Hebditch to provide 24-hour care for Ms. Birnie. No written contract was signed evidencing this change, but it is accepted that Ms. Hebditch hired other workers to assist with Ms. Hebditch. The nature of the duties performed by Ms. Hebditch and her associates expanded as they began to perform more tasks around and outside the home. Ms. Hebditch engaged in a variety of care activities including shoveling the driveway and looking after the house. The evidence is, however, unclear as to whether Ms.

Hebditch undertook these activities as a result of her contractual obligations or because Ms. Birnie specifically asked her to perform said duties on each occasion. [ 9 ] In January 2007, Ms. Birnie contracted pneumonia. Her mental condition worsened dramatically and she began hallucinating. Between January 2007 and mid-March 2007, Ms. Birnie had at least 14 separate instances where her mental faculties caused serious concern including instances of being lost in her house, speaking with deceased relatives, general confusion and other indicia of mental decline.

During these periods of hallucination and confusion, Ms. Birnie was not capable of making any decisions whatsoever. [ 10 ] Mr. Birnie would see his mother every week or so. Mr. Birnie is a busy North Bay lawyer. Mr. Birnie swore an affidavit in support of this motion and was cross-examined upon same. Mr. Birnie indicated in cross-examination he was unaware of his mother's true condition at the relevant time. Reading Ms. Hebditch’s log caused him to believe that his mother was in much worse condition mentally during the winter of 2006/2007 than he had realized. [ 11 ] On March 15, 2007, Ms. Hebditch took Ms.

Birnie out for supper towards the end of the former's shift. Winter conditions - as they will in Northern Ontario - persisted into the spring of 2007 and, when she was walking Ms. Birnie back into the home, Ms. Hebditch slipped on the snowy and/or icy driveway and hurt herself. She claims that her injuries have had a dramatic effect upon her life and ability to work, although the nature and extent of the injuries have no bearing upon this motion. [ 12 ] As a result of Ms. Birnie's general mental decline, Mr. Michael Birnie and his wife Ms. Larmer decided that Ms. Birnie should be moved to a senior's residence.

Ms. Birnie ultimately moved into such a residence. [ 13 ] After the filing of the original Statement of Claim, Mr. James Wallbridge, a lawyer at the firm representing Ms. Hebditch, contacted Mr. Birnie. During the conversation, Mr. Birnie denied that his mother was incompetent. Mr. Birnie takes the position that he uttered this statement as a result of the emotional difficulty he was having with the fact that a Statement of Claim would describe his mother as being incompetent. [ 14 ] In support of this motion, Dr. Leckie, Ms. Birnie’s doctor, provided a report/letter dated November 29, 2011wherein he states:

...This letter is in response to your letter dated November 24, 2011 regarding my former patient Ms. Jeanne Birnie and her estate. I have been a Family Physician in Ontario registered in 1982. I was Ms. Birnie’s family physician from 1998 until her death. Ms. Birnie was a very frail lady who suffered a major cerebral vascular accident which left her with some mild disabilities. She also had some coronary artery disease. Important to your question (#1) about her general state of health, Ms. Birnie was in decline cognitively since 2005-2006.

I had made a referral to the Senior’s Mental Health Program in North Bay to have her assessed by Dr. Grant McKercher and his staff regarding her decline and cognitive abilities and her memory. She was seen in September 2006. She had several follow-ups since her original appointment of September 2006 and it was documented by Dr. McKercher and his staff that she did have significant cognitive impairment. Her cognitive impairment was to such a degree that she had trials of cholinesterase inhibitors such as Aricept to help her with her memory. In response to your question #2 regarding Ms.

Birnie’s reasonable capability of appreciating/assuming responsibility for household maintenance requirements prior to March 16, 2007 I would have to say that she was very limited in her cognitive ability at that time and also in her memory capabilities. I would be very hardpressed to say that she was at all capable in maintaining household requirements prior to March 16, 2007. If I can be of further assistance please do not hesitate to contact me... [ 15 ] This report/letter was filed as an exhibit to an affidavit. It is accepted by all parties that Dr.

Leckie cannot provide an affidavit or be cross-examined as a result of his personal circumstances. POSITIONS OF THE PARTIES [ 16 ] The defendant, Ms. Birnie, brings this motion for

summary judgment indicating that there is no real issue for trial. The defendant has four grounds in support of her position: 1. Ms. Birnie was not an occupier at the time of the accident since she did not have the requisite mental capacity to have such status. Accordingly, she cannot be liable as per the Occupier’s Liability Act; 2. Ms. Hebditch herself was an occupier at the time of the accident since: (

a) she was providing care for Ms. Birnie; (

b) she was responsible for maintaining the interior and exterior of the house; and (

c) was being paid so to do. As such, she cannot claim that someone else is liable for her own deficient provision of service; 3. If Ms. Birnie was an occupier and Ms. Hebditch was not an occupier, Ms. Birnie nonetheless fulfilled her duties since she hired both Ms. Hebditch and Mr. Seddon to look after the exterior of the house; 4. If Ms. Birnie was an occupier and Ms. Hebditch was not an occupier, Ms. Hebditch nonetheless accepted the risks associated with entering the property to provide care for Ms. Hebditch and, as a result, Ms. Hebditch has no possible claim for risks she willingly incurred. [ 17 ] Ms.

Hebditch, for her part, takes the position that, in order for the defendant to be successful, a greater understanding of the facts of the case is necessary to permit the Court to have a full appreciation of its merits. As such, a trial is needed in order to accurately assess the relevant evidence. LAW AND ANALYSIS

Summary Judgment Motions [ 18 ] Rule 20 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 governs

summary judgment motions. The relevant portions state:

RULE 20

SUMMARY JUDGMENT DISPOSITION OF MOTION General 20.04

(2) The court shall grant

summary judgment if, (

a) the court is satisfied that there is no genuine issues requiring a trial with respect to a claim or defence... ... Powers

(2.1) In determining under clause (2) (

a) whether there is a genuine issue requiring a trial, the court shall consider the evidencesubmitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for thepurpose, unless it is in the interest of justice for such powers to be exercised only at a trial: 1. Weighing the evidence. 2. Evaluating the credibility of a deponent. 3. Drawing any reasonable inference from the evidence. O. Reg. 438/08, s. 13 (3). [19] The leading case interpreting Rule 20 is Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 , [2011]O.J. No. 5431 (Ont. C.A.).

At paragraphs 50 to 56, the Ontario Court of Appeal enunciated what is known as the “full appreciation” test: 50 We find that the passages set out above from Housen, at paras. 14 and 18, such as "total familiarity with the evidence", "extensiveexposure to the evidence", and "familiarity with the case as a whole", provide guidance as to when it is appropriate for the motion judgeto exercise the powers in rule 20.04(2.1).

In deciding if these powers should be used to weed out a claim as having no chance of successor be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of theevidence and issues that is required to make dispositive findings be achieved by way of

summary judgment, or can this fullappreciation only be achieved by way of a trial? 51 We think this "full appreciation test" provides a useful benchmark for deciding whether or not a trial is required in the interest ofjustice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnessesand found in a voluminous record, a

summary judgment motion cannot serve as an adequate substitute for the trial process.Generally speaking, in those cases, the motion judge simply cannot achieve the full appreciation of the evidence and issues that isrequired to make dispositive findings. Accordingly, the full appreciation test is not met and the "interest of justice" requires a trial. 52 In contrast, in document-driven cases with limited testimonial evidence, a motion judge would be able to achieve the fullappreciation of the evidence and issues that is required to make dispositive findings.

Similarly, the full appreciation test may bemet in cases with limited contentious factual issues. The full appreciation test may also be met in cases where the record can besupplemented to the requisite degree at the motion judge's direction by hearing oral evidence on discrete issues. 53 We wish to emphasize the very important distinction between "full appreciation" in the sense we intend here, and achievingfamiliarity with the total body of evidence in the motion record.

Simply being knowledgeable about the entire content of the motionrecord is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. Thefull appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of theevidence that has been put before them. 54 The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessaryto enable him or her to fully appreciate the evidence and the issues posed by the case.

In making this determination, the motionjudge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without thebenefit of the trial narrative, without the ability to hear the witnesses speak in their own words, and without the assistance ofcounsel as the judge examines the record in chambers. 55 Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meetingthe full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trialnarrative, and to experience the fact-finding process first-hand.

Unless full appreciation of the evidence and issues that isrequired to make dispositive findings is attainable on the motion record - as may be supplemented by the presentation of oralevidence under rule 20.04(2.2) - the judge cannot be "satisfied" that the issues are appropriately resolved on a motion forsummary judgment. 56 By adopting the full appreciation test, we continue to recognize the established principles regarding the evidentiary obligations on asummary judgment motion.

The Supreme Court of Canada addressed this point in Lameman, at para. 11, where the court cited Sharpe J.'sreasons in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), (ON SC), 28 O.R. (3d)423 (Gen. Div.), at p. 434, in support of the proposition that "[e]ach side must 'put its best foot forward' with respect to theexistence or non-existence of material issues to be tried." This obligation continues to apply under the amended Rule 20. On amotion for

summary judgment, a party is not "entitled to sit back and rely on the possibility that more favourable facts maydevelop at trial": Transamerica, at p. 434. [emphasis added]

Occupier Liability [ 20 ] The Occupiers’ Liability Act, R.S.O. 1990,

Chapter O.2 , states:

Definitions 1. In this Act, “occupier” includes, (

a) a person who is in physical possession of premises, or (

b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises; (“occupant”) “premises” means lands and structures, or either of them, and includes, (

a) water, (

b) ships and vessels, (

c) trailers and portable structures designed or used for residence, business or shelter, (

d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. O.2, s. 1 . Common law duty of care superseded 2. Subject to

section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. R.S.O. 1990, c. O.2, s. 2 . Occupier’s duty 3.

(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 persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises. Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. R.S.O. 1990, c. O.2, s. 3 . Risks willingly assumed 4.

(1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. ... Who May Occupy? [ 21 ] The classic definition of an “occupier” comes from Lord Denning in Wheat v. E. Lacon & Co. Ltd. , (1966) 1 All E.R. 582 at 593 :

It [the term “occupier”] was simply a convenient word to denote a person who had a sufficient degree of control over premises to put himunder a duty of care towards those who come lawfully onto the premises. As such, an occupier need not be an owner of a property.

Instead, the occupier must have a sufficient degree of control over the propertyin question to imbue that person with a duty of care towards “those who come lawfully onto the premises”. [22] Determining whether an individual possesses a duty of care becomes difficult to ascertain in cases where an owner/residentceases to have the requisite mental capacity to care for themselves or the property in question. In Anderson v. Anderson [1994] M.J. No.81, the Manitoba Court of Appeal dealt with a case where an 87 year-old owner and dweller of a farm was sued pursuant to the relevantManitoba legislation.

The Manitoba legislation’s wording is identical to the Ontario Occupiers’ Liability Act. The trial judge effectivelydetermined that the elderly lady was incapable of being an occupier since she did not have the requisite mental capacity to assumeresponsibility for the premises: [1993] M.J. No. 364 at paras. 9 to 11. The Manitoba Court of Appeal upheld the judgment on othergrounds, specifically declining to comment upon the trial court’s findings with respect to the elderly woman’s ability to occupy thepremises: [1994] M.J. No. 81 at para. 38. [23] Anderson v.

Anderson is the only case counsel provided dealing with the effect of mental incapacity upon a person’s ability tooccupy a premises. I did not hear extensive argument on whether the law is settled in this area. Nonetheless, given Lord Denning’sstatement regarding an occupier having “sufficient degree of control” over a premises, it appears axiomatic that an occupier would haveto have the requisite mental capacity to exercise control.

Thus, I accept that a legally incompetent owner/resident could be incapable ofbeing an “occupier” if they lacked the wherewithal to exercise the “sufficient degree of control” described by Lord Denning. What is the Nature of the Duty owed by the Occupier? [24] The Supreme Court of Canada dealt with the nature of the duty that arose as a result of the Ontario Occupiers’ Liability Act inWaldick v. Malcolm, (SCC), [1991] 2 S.C.R. 456 at 472. Iacobucci J. stated for the Court: …the statutory duty on occupiers is framed quite generally, as indeed it must be.

That duty is to take reasonable care in thecircumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of whatconstitutes reasonable care will necessarily be very specific to each fact situation – thus the proviso “such care as in all of the case isreasonable”. [25] The particular facts of each case will, therefore, determine the nature of the duty owed by the occupier.

Interestingly, and inwhat can only be considered a classic piece of Canadiana, the Court in Waldick was dealing with a fact scenario whereby the plaintiffslipped on an icy piece of property. The Supreme Court found that the defendant owed a duty of care to the plaintiff to both shovel andsalt the impugned land. This duty existed despite the fact that the plaintiff had walked past the land earlier that day and was aware of therisks associated with the unshovelled, unsalted walk.

Volenti Non Fit Injuria and s.4(1) of the Occupiers’ Liability Act [26] The Courts have also examined s. 4(1) of the Occupiers’ Liability Act which states: The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on thepremises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damageto the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. [27] Thus, an occupier does not owe a duty of care to a person who willingly assumes the risk of entering the premises short of theduty to “not create a danger with the deliberate intent of doing harm or damage… and to not act with reckless disregard”. [28] Relatedly, McKinnon J.’s decision in Lebrun v.

Ingram [2000] O.J. No. 2577 dealt with the duty to warn. In Lebrun, theplaintiff had special skill and expertise with a chainsaw. After the ice storm that struck Eastern Canada in January 1998, the defendantinvited the plaintiff to his property to view the damage caused by a fallen tree. The plaintiff entered the defendant’s property which wascovered with the remnants of the storm. The plaintiff was struck in the head by a flying object and injured. Justice McKinnonconsidered the Occupiers’ Liability Act and its

interpretation in Waldick. Then, when determining whether or not there was a duty towarn regarding obvious danger, he stated: 19 It is clear that the Plaintiff was seeking the advice of Mr. Lebrun and Mr. Atchison, both of whom were more experienced than hewith the use of chainsaws and the cutting of wood, respecting the broken limb that had penetrated his window. Both Mr. Lebrun and Mr.Atchison acknowledged this fact at trial. The Plaintiff was seeking their advice in an effort to minimize the dangerous conditions uponhis own property. Both Mr. Lebrun and Mr.

Atchison were completely aware of the obvious and apparent dangers occasioned by the icestorm. 20 This case is akin to Alchimowicz v. Schram (ON CA), [1999] O.J. No. 115 (OCA) where the appellant divedfrom the railing of a dock into shallow water and was rendered quadriplegic. The appellant argued that the defendant City of Windsorwas negligent by not displaying "No Diving" signs on the dock. The Court of Appeal held that: "The danger of diving from the dock was also evident to all the individual respondents.

There is no duty to warn of a danger which is soobvious and apparent that anyone would be aware of it." 21 In my view that finding applies to the case at bar. 22 Having found that there was no duty on the Defendant to warn the Plaintiff of the obvious dangers, I would go further and say thateven if the Defendant had done so, it would not have prevented the occurrence.

[29] From a common law negligence perspective, the principle of volenti non fit injuria appears to tread common ground to thatploughed by s. 4(1) of the Occupiers’ Liability Act. In Dube v. Labar, (SCC), [1986] 1 S.C.R. 649 at paras 6 to 8, theSupreme Court had occasion to examine the volenti principle in relation to a motor vehicle accident: 6 Thus, volenti will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk ofharm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant's part.

Theacceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise, in cases such asthe present, only where there can truly be said to be an understanding on the part of both parties that the defendant assumed noresponsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to. 7 Common sense dictates that only rarely will a plaintiff genuinely consent to accept the risk of the defendant's negligence.

GlanvilleWilliams wrote in Joint Torts and Contributory Negligence (1951), at pp. 307-08, that the defence must be restrictively construed and ... rarely applies in negligence actions. In almost every negligence action of modern timeswhere the defence of volens has been raised it has failed. This is because the cases in which a person truly consents to run the risk ofanother's negligence are altogether exceptional. He then drew the following conclusions as to the nature of the defence, which were expressly adopted by this Court in Lehnert v. Stein,supra, and in Eid v.

Dumas, supra: It is submitted that the key to an understanding of the true scope of the volens maxim lies in drawing a distinction between what may becalled physical and legal risk. Physical risk is the risk of damage in fact; legal risk is the risk of damage in fact for which there will be noredress in law ... . To put this in general terms, the defence of volens does not apply where as a result of a mental process the plaintiffdecides to take a chance but there is nothing in his conduct to show a waiver of the right of action communicated to the other party.

Toconstitute a defence, there must have been an express or implied bargain between the parties whereby the plaintiff gave up his right ofaction for negligence. 8 The example given by Glanville Williams, supra, at p. 308, of a person who, knowing that road traffic accidents regularly occur,nevertheless decides to go for a walk along a roadside and thereby runs the risk that he may be run down, illustrates the nature of thedistinction.

That person could not reasonably be seen to have assumed the risk in the manner required to support the defence of volenti.To permit the defence to succeed on facts showing merely that the plaintiff knew of the risk and yet chose to undergo it is inconsistentwith the decisions of this Court, supra, which require not merely knowledge, but express or necessarily implied acceptance of the risk ofharm without recourse to law by the plaintiff, along with an inference that the defendant, for his part, took no responsibility for theplaintiff's safety. Occupier’s Liability Act and

Summary Judgment [30] Counsel for the plaintiff provided the Court with a copy of Pammett v. McBride Corp., 2013 ONSC 2382 , [2013]O.J. No. 1822. Pammett dealt with a situation where the defendant operated a Tim Horton’s franchise in a strip mall. The plaintiffsslipped and fell on a walkway that provided access to the Tim Horton’s. The defendants leased the space in the strip mall but did notlease any exterior portions of the building. The walkway belonged to the mall owner but the Tim Horton’s employees did, uponoccasion, salt the walkway in question. The defendants brought a

summary judgment motion claiming that there was no genuine issuefor trial since, inter alia, the defendant was neither an occupier of the walkway as per the Occupiers’ Liability Act nor in sufficientcontrol of the walkway to justify a common law negligence claim. [31] In dismissing the

summary judgment claim, Justice Smith stated as regards the Occupiers’ Liability Act: 22 In Moody v. Toronto (City) (1996), (ON SC), 31 O.R. (3d) 53, at paras. 5-6, Dambrot J. stated as follows withregards to defining an occupier: The Divisional Court, in Slumski v. Mutual Life, [1994] O.J. No. 301 (February 10, 1994) has made clear that in view of this definition,the owner or occupier of a property adjacent to a public sidewalk is not, in respect of the sidewalk, an "occupier" of "premises" within themeaning of the Act, and does not owe a duty of care to users of the sidewalk, absent special circumstances.

The reason that an adjacent owner can be liable in "special circumstances" also flows from the definition of "occupier". [Emphasisadded.] 23 In Moody, ibid, at para. 11, the court found that there were special circumstances which made the adjacent owner an occupierbecause the walkway in question was used almost exclusively by patrons of the owner's venue and secondly, a significant number ofpatrons had no alternative but to use the walkway.

Such facts were found to be capable of amounting to special circumstances. 24 In Musselman v. 875667 Ontario Inc. (Cities Bistro), 2012 ONCA 41, at para. 9, the Court of Appeal held that the conduct of theparties over many years in which they were in a landlord-tenant relationship was also a consideration in determining whether therespondent was an occupier. 25 I find that McBride has not met its onus on a balance of probabilities to satisfy me that there is no genuine issue requiring a trial todetermine whether or not it is an occupier under the OLA because its employees assumed responsibility for maintaining the walkway in asafe condition by checking it regularly and salting the walkway outside of the leased premises as required, which constituted the main

entrance to the Tim Hortons restaurant. This case is very similar to the facts in Moody, supra, as the entrance way was used almostexclusively by customers of the Tim Hortons restaurant and this entrance/walkway was maintained by employees of McBride. [32] Justice Smith then looked at the possibility that a common law claim could exist independent of the Occupiers’ Liability Act: 27 In the text Cause of Action: Occupiers' Liability (Toronto: Carswell, 2011), Janet E.

Smith, states at p. 4 that: Ontario's definition of an occupier, requiring only one of the above elements, is similar to that of Manitoba and Prince Edward Island.

Itis broader than that of provinces such as Alberta and British Columbia which require that all of the above elements be present. [Emphasisadded.] 28 On page 5, the author states: The defendant who is found not to be an occupier under the Occupier's Liability Act may still attract liability based on common lawnegligence principles. 29 I agree with the plaintiffs' submission that there is a genuine issue requiring a trial to determine whether McBride could be foundliable in negligence even if it is found not to be an occupier under the OLA.

A trial is required to determine if McBride owed a primafacie duty of care to the users of the walkway and to determine if there was a sufficient relationship of proximity between the parties thatit would be reasonably foreseeable that a careless act by the defendant could result in injury to the plaintiff.

The second step in theanalysis is to determine whether there are factors which exist which should eliminate or limit the duty found under the first branch of thetest. 30 A trial is required for the court to have a full appreciation of the evidence with regards to the proximity of the parties, the duty ofcare and any factors which should limit the duty of care found under the first branch of the test. [33] This line of reasoning is especially interesting given s. 2 of the Occupier’s Liability Act which states that the Act “supersedes”any common law duties owed.

Although not necessary for my determination of this motion, I note that full argument may be required inorder to determine whether or not a common law claim can exist independent of the Occupier’s Liability Act given the facts of this case. ANALYSIS 1. Ms. Birnie’s Mental State as it Relates to Occupation [34] In order for me to make a finding that Ms.

Birnie was not an occupier of her house, I would first need to be satisfied that hermental state at the time of the accident was such that she could not exercise a “sufficient degree of control over premises to put [her]under a duty of care towards those who come lawfully onto the premises”. In order to do so on a

summary judgment motion, I must besatisfied that I have a full appreciation of the facts and legal issues involved. The evidence before me does not permit such a definitivefinding. [35] Firstly, it is apparent from Ms. Hebditch’s notes that, while Ms. Birnie was slipping in the early months of 2007, Ms. Birnienonetheless had periods of lucidity whereby she would engage in normal occupier duties such as signing cheques for Mr. Seddon. Thus, Ms. Hebditch’s notes constitute insufficient evidence to prove that Ms.

Birnie could not have been an occupier. [36] Secondly, counsel for the defendant rightly conceded that I must discount the weight to be placed upon Dr. Leckie’s reportgiven the latter’s inability to swear an affidavit. Further, Dr. Leckie’s report does not reference Ms. Hebditch’s notes. While I acceptthat Dr. Leckie is of the opinion that Ms. Birnie had a deficient mental capacity in the winter of 2006/2007, I cannot find that Ms. Birnielacked the mental acuity necessary to be an occupier based on an unsworn document that does not address all the relevant evidence. [37] I also note that Mr.

Birnie’s statement to Mr. Wallbridge regarding his mother’s competence is of no evidentiary value. Inorder for opinion evidence to be admitted, it must be relevant evidence offered by a qualified expert, R. v. Mohan, (SCC), [1994] 2 S.C.R. 9. Taken at its highest, Mr. Birnie’s statement to Mr. Wallbridge is an opinion regarding Ms. Birnie’s medicalor legal competence. With respect to the former, Mr. Birnie does not appear to have any medical training. With respect to the latter,Mr. Birnie’s opinion regarding his mother’s legal competence would usurp the Court`s function. Thus, Mr.

Birnie’s statement is notadmissible. As a result, I draw no inferences from the fact that Mr. Birnie discussed his belief regarding his mother`s competence withMr. Wallbridge. [38] Looking at all the admissible evidence, it is possible that the defendant may ultimately prove that Ms. Birnie lacked therequisite mental capacity to make her an occupier of the premises. Nonetheless, given both the absence of sufficiently weighty medicaltestimony and the presence of evidence suggesting that Mrs. Birnie had some level of lucidity at the relevant times, I cannot make adetermination regarding Ms.

Birnie’s ability to be an occupier in early 2007. I cannot, therefore, grant judgment on this ground since Ido not have a full appreciation of Ms. Birnie’s mental state. 2. Ms. Hebditch’s Alleged Occupation [39] As noted in the Occupiers’ Liability Act, it appears possible to have multiple occupiers of a property. Mr. Birnie indicated inhis affidavit and in his cross-examination that Ms. Hebditch had decision-making “carte blanche” when it came to caring for his mother,

including taking care of her home. Mr. Birnie expected Ms. Hebditch to do that which was necessary to care for his mother. In my view, a finding that Ms. Hebditch had such a “carte blanche” would constitute proof that she was an occupier of the residence as she would have had the requisite degree of control as described in Wheat v. E. Lacon & Co. [ 40 ] Ms. Hebditch’s logs provide numerous instances where Ms. Hebditch undertook chores around the house including chores outside the residence. What is unclear from the logs, however, is whether or not Ms.

Hebditch attempted those tasks of her own accord or whether she undertook those actions because Ms. Birnie instructed her so to do. [ 41 ] For her part, Ms. Hebditch made several claims in her evidence that she only acted at the direction of either Ms. Birnie or Mr. Birnie when shovelling snow and the like. This evidence stands in contrast to the suggestion that Ms. Hebditch had decision-making “carte blanche” responsibility for Ms. Birnie and suggests that Ms. Hebditch was not an occupier in so far as she merely acted upon direct instruction. [ 42 ] A closer examination of Ms.

Hebditch’s evidence demonstrates that it has some inconsistencies, especially with respect to the number of times salt was purchased, by whom and at whose request. While these inconsistencies are material and certainly diminish the value of Ms. Hebditch’s evidence, these evidential frailties are nonetheless insufficient for me to state that there is no genuine issue for trial with respect to Ms. Hebditch’s alleged occupation. Ms.

Hebditch may be able to explain her evidential inconsistencies. [ 43 ] Given the need to weigh the above-referenced evidence, I am unable to say that there is no genuine issue for trial since it is possible that Ms. Birnie’s alleged directions are illustrative of Ms. Birnie having control of the residence to the exclusion of Ms. Hebditch’s possible occupancy. As noted in Combined Air above, where real issues with respect to credibility of witnesses exist, the granting of

summary judgment is generally inappropriate. 3. Fulfilment of Duty [ 44 ] Ms. Birnie takes the position that, even if Ms. Birnie were the sole occupier of the house, she fulfilled her duty by hiring Ms. Hebditch and Mr. Seddon to care for the property. [ 45 ] Although I have heard no evidence in this regard, there appears to be a difference between the duty to shovel and salt a driveway as per Waldick. I believe that I can take judicial notice that salting becomes necessary as walkways become slippery.

Slippery conditions can arise in any number of situations such as thawing and freezing, water being spilled, constant use of previously icy surfaces, etc. The duty to salt would mandate, I would think, a constant overview of the area in question to ensure that it was not too icy. That duty is distinct from the need to shovel which typically arises when there is some accumulation of snow. [ 46 ] This difference is crucial since Ms. Birnie hired Mr. Seddon to shovel/plough – but not salt – the driveway. In order for me to determine that there is no genuine need for trial, Ms.

Birnie would thus have to satisfy me that it was Ms. Hebditch’s responsibility to salt the driveway. As seen in paragraphs 39 to 43, there are several findings of credibility that would need to occur for me to make such a determination. Accordingly, I am unable to find that there is no genuine issue for trial. 4. S. 4(1) Occupiers’ Liability Act/Volenti [ 47 ] Finally, I must determine whether or not I am satisfied that there is no genuine issue for trial that Ms. Hebditch voluntarily assumed the risk of going onto Ms.

Birnie’s driveway to perform her duties. [ 48 ] On one hand, there appears to be support for the position that Ms. Hebditch’s responsibilities included caring for the exterior of the house. Further, Ms. Hebditch’s contract mandated that she take Ms. Birnie on outings. It would seem apparent that Ms. Hebditch thus had a duty to ensure that she did so in a conscientious manner. Such a duty would involve, I would think, ensuring that the driveway was safe for Ms. Birnie and Ms. Hebditch to exit the house.

Given these facts and absent other considerations, it is tempting to state that regardless of who occupied the premises, Ms. Hebditch willingly assumed the risk of an unsalted driveway. This is especially true since Ms. Hebditch knew that Ms. Birnie’s mental condition was such that Ms. Birnie might not always be able to salt the driveway in the event of frost or other winter conditions. [ 49 ] However, given the fact that Ms. Birnie appeared to retain some responsibility for the driveway by hiring Mr. Seddon, it is possible that Ms. Hebditch did not willingly accept the risk of an unsalted driveway. Ms.

Hebditch may have reasonably believed that Mr. Birnie or Ms. Birnie would have either salted the driveway themselves or retained someone so to do. I simply do not have sufficiently clear evidence before me to suggest that Ms. Hebditch thus willingly accepted the legal – as opposed to factual - risk. As such, I am unwilling to grant judgment based on either s. 4(1) of the Occupier’s Liability Act or based on the common law Volenti principle. CONCLUSION [ 50 ] For the foregoing reasons, I dismiss the instant

Summary Judgment Motion. COSTS [ 51 ] The parties may write to me within 15 days of the release of this decision in no more than 2 pages.

Varpio, J. Released: 2013-10-28 CITATION : Hebditch v Birnie et al., 2013 ONSC 6458 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOCELYNE HEBDITCH - and - ESTATE OF JEANNE BIRNIE, DECEASED, MICHAEL BIRNIE and TED SEDDON REASONS FOR JUDGMENT Varpio, J. Released: 2013-10-28