Wesley Casbohm Appellant (Plaintiff) v. Winacott Spring Western Star Trucks, 2021 SKCA 21

Court of Appeal for Saskatchewan Docket: CACV3396 Citation: Casbohm v Winacott Spring Western Star Trucks , 2021 SKCA 21 Date: 2021-02-03 Between: Wesley Casbohm Appellant (Plaintiff) And Winacott Spring Western Star Trucks and GEO Holdings Ltd. Respondents (Defendants) Before: Caldwell, Whitmore and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Whitmore On appeal from: Regina, 2019 SKQB 44 Appeal heard: October 15, 2020 Counsel: John Williams and Samuel Schonhoffer for the Appellant Jason Clayards for the Respondent Leurer J.A. I. Introduction [ 1 ] On June 18, 2004, Wesley Casbohm suffered personal injuries when he fell from a ladder while performing work-related tasks. The injury occurred at the business premises occupied by Winacott Spring Western Star Trucks [Winacott] and owned by GEO Holdings Ltd. [GEO]. Winacott had provided the ladder to Mr. Casbohm. [ 2 ] In 2006, Mr.

Casbohm commenced an action against Winacott, GEO and others for his injuries. In 2017, thirteen years after the accident and various amendments to the pleadings, Winacott and GEO applied for

summary judgment dismissing the claim against them. Mr. Casbohm brought his own application for

summary judgment “on the basis that the expert evidence filed by [Mr. Casbohm] support[ed] the claim that … the ladder … suddenly collapsed”, resulting in his injuries. While they disagreed on many things, both sides agreed that issues of liability should be determined by the Court using the

summary judgment procedure. [ 3 ] A Court of Queen’s Bench Chambers judge gave judgment dismissing Mr. Casbohm’s claim: Casbohm v Winacott Spring Western Star Trucks , 2019 SKQB 44 , [2019] 9 WWR 714 [ Chambers Decision ] . He concluded that he was “ not satisfied that Mr. Casbohm has proven that it is more likely than not that the defendants breached the duty of care that they owed him – whether in occupier’s liability or in negligence – and nor has he proven that any such breach was the cause of his injuries” (at para 162). [ 4 ] Mr. Casbohm now appeals to this Court.

He argues that the Chambers judge committed several errors, principally in relation to the treatment of the expert evidence. He says that, after correction for these errors,

summary judgment should issue in his favour. [ 5 ] For the reasons that follow, I would dismiss Mr. Casbohm ’s appeal. II. Background A. The accident [ 6 ] In 2004, Mr. Casbohm was working as a truck driver. His United States-based employer had been contracted to deliver three new tractor trailer units from Portland, Oregon to Winacott’s dealership located in Saskatoon, Saskatchewan. [ 7 ] Mr. Casbohm presented himself at Winacott’s business site with the tractor trailer units on June 18, 2004. Among Mr.

Casbohm’s delivery obligations was to re-install exhaust stacks that had been removed for transportation purposes from two of the three tractor trailer units. To accomplish this task, Mr. Casbohm was required to mount a ladder while holding the exhaust stack, stand on it while performing the installation and then descend. These steps would be repeated four times. To do all of this, Mr. Casbohm used an 8-foot fiberglass ladder provided to him by Winacott. [ 8 ] The third exhaust stack assembly installed by Mr. Casbohm was located on the right-hand side of one of the tractor trailer units.

Its installation required Mr. Casbohm to work towards the left side of the ladder. After Mr. Casbohm had finished the installation and was about to descend, the ladder tipped to Mr. Casbohm’s right, away from the truck. Mr. Casbohm fell to the ground. It is common ground that Mr. Casbohm was injured in the fall, although there remains a dispute as to the nature and extent of those injuries. [ 9 ] Before the fall, neither Mr. Casbohm nor any employee of Winacott had observed any damage to, or defect with, the ladder.

Photographs of the ladder, taken shortly after the fall, showed its right leg to have collapsed inward and that it had other damage. The

ladder was later discarded by Winacott and was not available for inspection by any of the experts that the parties later retained. [ 10 ] After the fall, Mr. Casbohm was taken to the hospital. He returned to Winacott’s facility the next day to gather his belongings. He did not ask to see the ladder or say anything about making a claim. He had no further contact with anyone from Winacott or GEO until after he had issued his statement of claim on June 16, 2006. B. Mr. Casbohm’s claim and the

summary judgment applications [ 11 ] Mr. Casbohm initially named Winacott, GEO and the ladder’s manufacturer as defendants. The statement of claim was amended several times and Mr. Casbohm later discontinued his action against the manufacturer. By the time the

summary judgment applications came before the Chambers judge, Mr. Casbohm was claiming “in occupiers’ liability” that Winacott and GEO had breached the duty resting on them “to keep their property and premises as safe as reasonable care and skill on their

part could make them” and that Winacott had been negligent. [ 12 ] In their statement of defence, Winacott and GEO denied that they had breached any duty owed to Mr. Casbohm or that any breach of duty on their part had caused the fall to occur. They further alleged that Mr. Casbohm’s claim was barred by s. 44 of The Workers’ Compensation Act, 1979 , SS 1979, c W-17.1 (now s. 43 of The Workers’ Compensation Act, 2013 , SS 2013, c W-17.1) and by provisions of the agreement between Mr. Casbohm’s employer and Winacott governing the transport of the units. [ 13 ] In July of 2017, Winacott and GEO applied for

summary judgment dismissing Mr. Casbohm’s claim. In support, they relied on admissions made by Mr. Casbohm at his questioning in September of 2011, and the evidence of several of its employees, as well as that of a licensed mechanical engineer, Stanley Kiska. [ 14 ] Corey Bubnick, one of Winacott’s principals, gave evidence as to several of its standard procedures, and that Mr. Casbohm had been given use of the 8-foot ladder from which he had fallen as well as a larger 12-foot ladder.

He stated that it was his “understanding, having spoken with current and former Winacott staff, that [the 8-foot ladder from which Mr. Casbohm had fallen] was discarded shortly after Mr. Casbohm’s fall, as it had been damaged from the fall and was not safe for further use”. At that time, “Winacott had no notice that Mr. Casbohm intended on advancing a claim against Winacott”. [ 15 ] Ron Kozlowski was the sales manager of Winacott at the time and was on site when Mr. Casbohm fell. He stated that he had “instructed Mr. Casbohm to use the 12-foot ladder to install the exhaust extensions”.

Later, he came to check on Mr. Casbohm and found the 8-foot ladder laying on its side and with one of its bottom legs “bent inward”. Mr. Kozlowski said he found Mr. Casbohm sitting on a flat deck trailer and that Mr. Casbohm had “stated that he ‘fell off the ladder’” and “appeared to have a small cut on his head” but “did not appear disoriented and did not seem distressed”. Mr. Kozlowksi took photographs “to document the scene around where Mr. Casbohm fell as [he] found it”. [ 16 ] Mr. Kiska identified the make, model and specification of the ladder using the photographs taken after the fall. Mr.

Kiska had conducted several experiments using ladders of a like model. One of these experiments “demonstrated the effect of a 51 lb. weight falling onto the [ladder’s] side rail as the ladder tipped over”. Mr. Kiska offered several opinions, including that the “damage to the Ladder was most likely caused by Mr. Casbohm’s fall onto it, and not the precipitating cause of Mr. Casbohm’s fall”. [ 17 ] Mr. Casbohm made his own application for

summary judgment seeking to have the issue of liability determined in his favour, with the quantification of damages to be determined in a subsequent trial. He was given leave to cross-examine the defendants’ affiants on their affidavits. This occurred, and the transcripts of the cross-examinations formed part of the evidentiary basis for the Chambers judge’s decision. Mr. Casbohm also filed evidence in relation to both

summary judgment applications, including evidence from the examination for discovery of the defendants’ proper officer, his own affidavit and several lay and expert witnesses’ affidavits. [ 18 ] Mr. Casbohm stated that, for the purposes of the installation of the exhaust stacks, he was directed by Winacott to use an 8-foot ladder. Although a 12-foot ladder was later set up beside the truck, it only came to his attention after his fall.

He stated he remembered standing on the sixth rung of the ladder when installing the first two exhaust stacks but did not “actually remember which rung [he] stood on to tighten the clamp on the third exhaust stack”. He corrected his evidence given in an earlier affidavit that “implied” he had been standing on the seventh rung. In relation to the fall itself, he said he remembered that he had “finished installing the exhaust stack on the passenger side of the front red truck and, with [his] ratchet in [his] right hand, [he] was about to go down the ladder”, but he had “no recollection of the fall”.

He was knocked unconscious. After he regained consciousness, although injured, at the request of Winacott, he completed the installation of the fourth exhaust stack using the undamaged 12-foot ladder. He was later taken to the hospital. Mr. Casbohm received some compensation for his injuries from his employer’s workers’ compensation scheme. In a second affidavit, Mr. Casbohm stated that the only reason he had used the 8-foot ladder was “because the Sales Manager instructed me to do so”.

He also gave evidence of the “extensive injuries” he had suffered as a result of the fall and that he has “been and continue[s] to be unable to work”. [ 19 ] Matthew Troha, an officer of the successor company of Mr. Casbohm’s employer, gave evidence as to the contractual relationship with Winacott. [ 20 ] Mark Hughes was tendered by Mr. Casbohm as a “registered professional mechanical engineer”, qualified to express opinions on the “engineering mechanics of a ladder”, the “mechanics of a fall involving a ladder and associated damage” and “[f]ailure analysis related to the design and construction of ladders”.

He was asked to provide opinions as to the “likely cause of the ladder collapse” and the “likely cause of the damage to the ladder”. Mr. Hughes’ principal conclusion was that “[p]re-existing damage of the ladder side-rail, as opposed to an imbalance of Mr. Casbohm or his movements, resulted in a moment of instability, leading to Mr. Casbohm’s fall”. He also prepared a report to rebut Mr. Kiska’s evidence. [ 21 ] Mr.

Casbohm also tendered Rebecca Moss as a registered professional bio-mechanical engineer qualified to express opinions on the “injury bio-mechanics of a ladder fall”, the “bio-mechanics of a person falling off a ladder” and “[i]njury causation in connection with contact related to a fall from a ladder”. Ms. Moss offered several opinions, including that the “ladder tipping was not induced by Mr. Casbohm’s movements alone, rather it was a combination of reasonable movements from Mr. Casbohm and a pre-existing weakness of the ladder” and that “Mr.

Casbohm’s injuries were indicative of him having landed on the nearby bumpers, suggesting that

Mr. Casbohm fell with the ladder, staying near its top as it tipped and fell to the right”. The latter opinion was offered to respond to Mr. Kiska’s opinion that Mr. Casbohm had fallen on top of the ladder. [ 22 ] The defendants did not seek to cross-examine any of Mr. Casbohm’s witnesses on their affidavits. They did, however, object to the admissibility of Mr. Hughes’ and Ms. Moss’ evidence. They also filed a reply report of Mr.

Kiska that commented on the allegation of prior damage to the ladder, including whether damage might have been undetectable to the eye, the cause of the damage shown in the photographs, the unavailability of the ladder for inspection, the effects of loose gravel, ladder “racking” and the reliability of Mr. Casbohm’s testimony. C. The Chambers Decision [ 23 ] Although the parties had agreed that issues of liability should be determined by the court using the

summary judgment procedure, the Chambers judge began by considering if it was appropriate for him to do so. He took note of Rule 7-5(1)(

b) of The Queen’s Bench Rules , which allows the

summary judgment procedure to be used in circumstances where “the parties agree to have all or part of the claim determined by

summary judgment and the Court is satisfied that it is appropriate to grant

summary judgment”. He concluded that “ the evidence, as presented, provide[d] a sufficient basis for [him] to (

i) comfortably and justly resolve the conflicts in the evidence, and (ii) make the necessary findings of fact to properly analyze the legal issues raised”. He found, on this basis, that the evidence was “sufficient … to make the necessary findings of fact, and apply the law to those facts in a proportionate way” (at para 16), and therefore it was appropriate to decide the liability issues using the

summary procedure. No appeal is taken from this determination. [ 24 ] The Chambers judge held that, because Mr. Casbohm had entered onto the defendants’ premises to carry out the contractual responsibilities of his employer and Winacott had, by contract, agreed with that employer to provide “adequate and sufficient facilities”, Mr. Casbohm was a contractual entrant. As such, the Chambers judge found that the law implied “a term that the premises are as safe for the purpose as reasonable care and skill on the part of the occupier can make them” (at para 32).

The Chambers judge took stock of The Occupational Health and Safety Act, 1993 , SS 2013, c O-1.1 (now The Saskatchewan Employment Act , SS 2013, c S-15.1 ) and The Occupational Health and Safety Regulations, 1996 , RRS c O-1.1 Reg 1 , and then concluded: [47] Taking those standards into account, along with the nature of Mr. Casbohm’s employment and the provisions of the contract, in my view, Winacott owed Mr. Casbohm a duty to provide a working environment that was as safe as reasonably possible, in all the circumstances. This would include: (

i) Providing a ladder sturdy enough, and tall enough, to perform the required tasks safely; (ii) Taking reasonable measures to ensure that the ladder was compliant with safety standards, mechanically sound, and free from damage or defects; (iii) Taking reasonable measures to provide a safe place for Mr. Casbohm to work, meaning a surface that was reasonably solid, level and free from other conditions that would be likely to contribute to ladder instability, and free from any unusual hazards. [48] In my view, however, that duty did not extend so far as to require that Winacott provide Mr.

Casbohm with a detailed history of when the ladder was last inspected, or provide a warning or disclaimer about its fitness. Nor did it require Winacott to provide instruction on the safe use of a ladder. Mr. Casbohm was an experienced worker, and a stepladder is not a complicated piece of equipment. Nor did the duty on Winacott require it to provide someone to hold the ladder while Mr. Casbohm worked on it. [ 25 ] The Chambers judge then turned to answering the question of whether Mr. Casbohm had established that the defendants had breached these duties and, if so, whether such breaches caused Mr.

Casbohm’s injury. [ 26 ] T he Chambers judge concluded that he did not need to resolve the dispute over whether Winacott’s employee had offered or instructed Mr. Casbohm to use the 12-foot ladder since he was “satisfied from the evidence that the 8-foot ladder was adequate for the task Mr. Casbohm was performing” (at para 54). He found that “ there was nothing out of the ordinary in terms of the ground conditions around the second tractor unit” (at para 72). He also found that “Mr.

Casbohm was not likely higher than the sixth rung from the ground at any point while on the stepladder” for the simple reason that he “would not have needed to be in order to complete the task” (at para 73), but he could not “draw any conclusions about the location of his body on the ladder, or what movements he was engaged in just before the fall” (at para 74). [ 27 ] The Chambers judge qualified each of the proffered experts to give expert opinion evidence but limited the scope of each witness’ testimony. Overall, the Chambers judge concluded as follows: [152] In

summary, I do not find the expert evidence in this case to be particularly helpful. There is little to no reliable evidence as to what actually occurred at the time Mr. Casbohm fell. He remembers little of it, and nobody else saw it happen. None of the expert witnesses was able to examine the ladder. In fact, their only observations of the ladder came from a handful of photographs taken after the incident, which do not even particularly focus on the condition of the ladder. Furthermore, there are other problems with the reliability and credibility of all three expert witnesses, which I have discussed previously.

Accordingly, I find myself unable to place much reliance on the expert evidence. [ 28 ] The Chambers judge stated that, contrary to the submission of Mr. Casbohm, he was “ not prepared to draw an adverse inference against the defendants based on the disposal of the ladder” (at para 156). Although the ladder had been disposed of shortly after the accident, the Chambers judge did “not accept that this was done with the prospect of litigation in mind” (at para 157).

Instead, he accepted Winacott’s evidence that “the reason for the disposal was that the ladder was clearly damaged beyond repair, and was no longer safe to use” (at para 158) and “[w]hile Winacott was aware that Mr. Casbohm had fallen and suffered injuries, I cannot conclude that Winacott was aware of the extent of those injuries at the time the ladder was discarded” (at para 159). All of this satisfied the Chambers judge that Winacott had “rebutted the presumption of spoliation” (at para 160). [ 29 ] After all of this, the Chambers judge summarized his conclusions as follows:

[161] After considering all of the evidence, I am able to draw the following conclusions : 1. Mr. Casbohm was provided with a ladder that was adequate for the task he was required to perform. The ladder appeared to meet required safety standards. 2. The location which Winacott provided for Mr. Casbohm to conduct his tasks contained no unusual hazards, and there is no evidence that the ground conditions were soft, slippery, noticeably sloped, or otherwise unstable. 3. Mr. Casbohm has no recollection of exactly how the fall occurred. 4. Nobody else saw the fall occur. 5.

There is no evidence of any pre-existing damage to the ladder. None had ever been reported, and there is no evidence that anyone ever observed any damage prior to Mr. Casbohm’s fall. 6. There are two contradictory lines of expert opinion in evidence; one of which says the fall was the result of pre-existing damage; and one of which says that Mr. Casbohm’s fall caused the damage, not vice versa. I do not find either line of opinion evidence to be particularly compelling, because of many deficiencies affecting the credibility and reliability of that evidence, on both sides. 7.

The disposal of the stepladder, in the circumstances, does not support the drawing of an adverse inference against the defendants. [162] In short, I am not satisfied that Mr. Casbohm has proven that it is more likely than not that the defendants breached the duty of care that they owed him – whether in occupier’s liability or in negligence – and nor has he proven that any such breach was the cause of his injuries. Mr.

Casbohm’s claim must fail. [163] Having reached that conclusion, it is not necessary that I address the defendants’ arguments that the claim is statute-barred by the provisions of The Workers’ Compensation Act, 1979 , SS 1979, c W-17.1 (since rep) or that the claim is prohibited by the Contract Carriage Agreement. (Emphasis in original) III. Issues [ 30 ] In my respectful view, the outcome of Mr. Casbohm’s appeal is dictated by the answers to two questions: (

a) Did the Chambers judge err in his treatment of the spoliation issue? (

b) Did the Chambers judge err in holding that, if the defendants breached a duty of care, the evidence did not establish that such breach caused Mr. Casbohm’s injuries? IV. Analysis A. Did the Chambers judge err in his treatment of the spoliation issue? [ 31 ] The Chambers judge recognized that “[o]ne factor that impacts significantly on the quality of the expert evidence in this case – for both sides – is the fact that the experts were not able to inspect the ladder that Mr. Casbohm was using at the time of the fall” (at para 153). Before the Chambers judge, Mr.

Casbohm argued that, “because Winacott disposed of the ladder knowing that it contained evidence relevant to a claim that would potentially be brought against them by him, an inference should be drawn that any evidence the examination of the ladder would have provided would be damaging to Winacott’s position” (at para 154). However, the Chambers judge held that he was “not prepared to draw an adverse inference against the defendants based on the disposal of the ladder” (at para 156). [ 32 ] The Chambers judge explained this conclusion as follows: [157] It is clear that after Mr.

Casbohm suffered his fall, Winacott disposed of the ladder in fairly short order, but I do not accept that this was done with the prospect of litigation in mind. First, Mr. Casbohm admitted during questioning on September 14, 2011, that after the accident, he did not ask to see the ladder, and nor did he give any indication to anyone at Winacott that he contemplated making a claim against them. In fact, following the incident of June 18, 2004, Mr.

Casbohm had no contact with anyone at Winacott until the statement of claim was issued nearly two years later (see questions 798–809). [158] Second, I accept the evidence of Cory [ sic ] Bubnick, who said that the reason for the disposal was that the ladder was clearly damaged beyond repair, and was no longer safe to use. I expect that, in hindsight, it may well have been better to retain the ladder, so that it could be examined, but I am unable to conclude that Mr. Bubnick or Winacott were contemplating litigation against them at the time of disposal. [159] While Winacott was aware that Mr.

Casbohm had fallen and suffered injuries, I cannot conclude that Winacott was aware of the extent of those injuries at the time the ladder was discarded. And, it was nearly two years after the fall before Mr. Casbohm began his action. There is nothing in the evidence to suggest that Mr. Bubnick or anyone at Winacott were given notice of Mr.

Casbohm’s intention to bring a claim, or that they had any sort of awareness of pending litigation that would support an inference that disposal of the ladder was done with the intention to conceal evidence. [160] In short, I am satisfied that Winacott has rebutted the presumption of spoliation.

[33] In this Court, Mr. Casbohm attacks the Chambers judge’s conclusion that the doctrine of spoliation provides no aid to his casefrom several directions. First, Mr. Casbohm argues that the Chambers judge’s analysis embeds an error in principle. [34] The Chambers judge had framed his analysis of the spoliation issue with reference to the

summary of the law provided byConrad J.A. in McDougall v Black & Decker Canada Inc., 2008 ABCA 353, 302 DLR (4th) 661 [McDougall], in which she explained thatspoliation “currently refers to the intentional destruction of relevant evidence when litigation is existing or pending” (at para 29, emphasisadded). Mr. Casbohm argues that litigation does not have to be existing or pending for spoliation to be invoked.

More specifically, he saysthat it was irrelevant to the spoliation issue whether he had an intention to sue as of the date the ladder was destroyed, whether he hadcommunicated an intention to sue at that point, or even that he had delayed for two years before he sued. Instead, he says, the question thatthe Chambers judge was required to confront was whether the ladder was destroyed by Winacott so that it would not be available iflitigation came about.

For their part, the defendants championed the Chambers Decision, arguing that spoliation requires litigation to beexisting or pending and that “[i]t is not enough that litigation be possible”. [35] As I will explain, I would agree with Mr. Casbohm that the fact he may have had no intention to sue at the point the ladder wasdestroyed does not preclude the possibility that spoliation may have occurred.

I am also of the view that the respondents’ argument on thispoint proceeds on a misunderstanding as to what Conrad J.A. meant, when she stated that spoliation “refers to the intentional destructionof relevant evidence when litigation is existing or pending” (McDougall at para 29, emphasis added). However, in my respectful view,this does not assist Mr. Casbohm in his appeal. To explain this conclusion, it is helpful to return to several first principles. [36] In a legal context, spoliation refers to the destruction, mutilation, alteration or concealment of evidence.

It has been historicallyassociated with the maxim omnia praesumuntur contra spoliatorem (all things are presumed against the wrongdoer): St. Louis v TheQueen (1896), 1896 CanLII 65 (SCC), 25 SCR 649 at 652 [St. Louis]; Spasic Estate v Imperial Tobacco Ltd. (2000), (ON CA), 49 OR (3d) 699 (CA) at para 10 [Spasic Estate]; and McDougall at para 15.

When it occurs, “[s]poliation interferes with twomajor policy goals of the legal system: the establishment and maintenance of a fair trial process and the quest for the truth”: BritishColumbia Law Institute, Report on Spoliation of Evidence, BCLI Report No 34 (Vancouver, November 2004) at 1. Justice Tallis, in Doustv Schatz, 2002 SKCA 129 at para 27, 227 Sask R 1 [Doust], succinctly stated that spoliation “undermines the prospect of a fair trial”. [37] For this reason, a party whose interest has suffered due to spoliation may be entitled to one of several remedies.

One of these isthe imposition of a rebuttable presumption of fact that the lost or destroyed evidence “would not assist” (McDougall at para 29(2)), or“would have been damaging to” (Spasic Estate at para 10) the party responsible for the fact the evidence is not available to the partyopposite or the court. [38] Most Canadian jurisprudence dealing with spoliation is rooted in St. Louis, which was helpfully summarized in McDougall asfollows: [18] St. Louis, therefore, stands for the following proposition. Spoliation in law does not occur merely because evidence has beendestroyed.

Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation incircumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this isdemonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it. This presumption isrebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affectingthe litigation, or through which the party either proves his case or repels the case against him.

In this province, see: Doust at paras 27–29; Triple 3 Holdings Ltd. v Paccar Inc., 2014 SKQB 427, 464 Sask R 160 at paras 8–15; andGalenzoski v Awad, 2007 SKQB 436 at para 174, 306 Sask R 79 (per Hunter J.A. ex officio) [Galenzoski]. [39] McDougall contains a useful historical review of the case law to that point. Justice Conrad offered the following

summary ofthe applicable principles: [29] In conclusion, therefore, I would summarize the Canadian law of spoliation in the following way: 1. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending. 2. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would notassist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, toaffect the litigation, or by other evidence to prove or repel the case. 3.

Outside this general framework other remedies may be available – even where evidence has been unintentionally destroyed. Remedialauthority for these remedies is found in the court’s rules of procedure and its inherent ability to prevent abuse of process, and remediesmay include such relief as the exclusion of expert reports and the denial of costs. 4. The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty topreserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open. 5.

Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial wherethe trial judge can consider all of the facts and fashion the most appropriate response. 6. Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. Butgenerally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the controlof abuse of process. (Emphasis added) [40] Justice Conrad’s

summary has been referred to by appellate and trial courts from many jurisdictions. It is also cited in SidneyN. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018) at §18.155, aswell as several other texts. It is hardly surprising, therefore, that the Chambers judge referenced it in the Chambers Decision.

[41] McDougall involved a claim for damages following a house fire. A fire investigation pointed to several possible causes for thefire, including a defective drill manufactured and sold by the defendant entities, collectively referred to as Black & Decker. Before a suitwas launched claiming the drill as the cause of the fire, the home had been razed to facilitate its reconstruction and certain parts of thesuspect drill, which had been retained by an investigator hired by the homeowner’s insurer, had gone missing.

Black & Decker applied tohave the action dismissed on the basis of spoliation, claiming it was unable to defend itself because it could not properly investigate thefire scene or the drill to determine the probable cause of the fire. A Chambers judge granted the application. The Alberta Court of Appealset this order aside. It concluded that the issue of whether spoliation had occurred and, if it had, what consequences might flow from it,were matters properly dealt with at trial.

Justice Conrad explained this as follows: [37] … In my view, the chambers judge erred in law in determining that he could dismiss the appellants’ action on the basis ofspoliation. There was no basis to conclude that the matter of spoliation could not adequately be dealt with at trial. Although one couldfind, impliedly, that the judge did conclude that the acts were intentional to the extent of supporting an inference, it is not clear, and thefacts upon which that inference could be drawn were sketchy.

And certainly, there was no evidence upon which the chambers judge couldhave concluded that Black & Decker could not mount a full defence. I would allow the appeal and restore the action. [42] I recite these facts to make three points. The first is that the contentious issue in McDougall was not whether litigation wasexisting or pending when the spoliation occurred, but whether the purpose for the spoliation was to render evidence unavailable iflitigation arose.

The second, and most central, point is that the focus for testing whether litigation was “existing or pending” was on whatwas in the minds of the spoliator. The spoliation issue left for trial was whether any actions taken by the homeowner or its insurer mightsupport the drawing of an adverse inference. The issue in this regard was as to the motivation of the alleged spoliator.

The third point isthat the outcome in McDougall did not depend on the degree of certainty that had to exist in the mind of the spoliator as to whetherlitigation might result before a rebuttable inference may be drawn. [43] Later cases speak to the latter two of these points.

For example, Newbury J.A.’s comments in Chow-Hidasi v Hidasi, 2013BCCA 73, [2013] 4 WWR 1, one of the cases cited by the respondents, invite an examination of the intentions of the spoliator to affect theoutcome of litigation, but do not address how likely the prospect of litigation must be in the mind of the spoliator: [28] I have considerable sympathy for the plaintiff’s position, but in my view the presumption she seeks may not be drawn in thecircumstances of this case.

First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only thedefendant’s hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC wasaware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it wasdestroyed. (It was Mr. Hidasi who requested that the vehicle not be destroyed.) [29] On the present state of the law, it is clear that spoliation requires intentional conduct: see St. Louis v.

Canada (1896), 1896 CanLII65 (SCC), 25 S.C.R. 649; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para. 29; Endean v. Canadian Red CrossSociety (1998) (BC CA), 157 D.L.R. (4th) 465 (B.C.C.A.); Dawes v. Jajcaj, 1999 BCCA 237 at para. 68; and thediscussion in Holland v. Marshall, 2008 BCCA 468 at paras. 70-2. (I understand ‘intentional’ to mean ‘with the knowledge that theevidence would be required for litigation purposes’.) As stated in McDougall v.

Black & Decker, “When the destruction is not intentional,it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.” (Para. 24). (Italicized emphasis in original; underlined emphasis added) [44] This view is supported by the Ontario Superior Court of Justice’s numerous holdings stating that spoliation refers to “thedestruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonablyforeseeable litigation” (for example, Cheung v Toyota Canada Inc., (Ont SC) at para 1 [Cheung], emphasis added;Blais v Toronto Area Transit Operating Authority, 2011 ONSC 1880 at para 72, 105 OR (3d) 575; and Delco Automation Inc. v Carlo’sElectric Limited, 2014 ONSC 7157 at para 70, 46 CLR (4th) 284, rev’d in

part 2016 ONCA 591, 62 CLR (4th) 1). [45] Recently, in CMT et al. v Government of PEI et al., 2020 PECA 12 [CMT], Jenkins C.J. referred first to McDougall (at para 43)and then adopted (at para 44) the test for spoliation set out by Newbould J. in Catalyst Capital Group Inc. v Moyse, 2016 ONSC 5271, 35CCEL (4th) 242: [136] ... a finding of spoliation requires four elements to be established on a balance of probabilities, namely: (1) the missing evidence must be relevant; (2) the missing evidence must have been destroyed intentionally; (3) at the time of destruction, litigation must have been ongoing or contemplated; and (4) it must be reasonable to infer that the evidence was destroyed in order to affect the outcome of the litigation. [46] Chief Justice Jenkins apparently did not see these “four elements” as being at odds with McDougall; nor do I.

So long as it isunderstood that what is relevant is what was in the mind of the alleged spoliator, there seems to be little if any difference as to whetherlitigation was “ongoing or contemplated” (Catalyst Capital Group at para 136(3)) or “existing or pending” (McDougall at para 29) or“reasonably foreseeable” (Cheung at para 1). The operative question is whether the circumstances justify the reasonable inference that theevidence was destroyed to affect the outcome of litigation. [47] Many facts may bear on whether it is reasonable to draw this inference.

These facts may include whether the affected party hasformed an intention to sue or given notice of that intention to the alleged spoliator. However, neither may be required in order for anadverse inference to be drawn. For example, there may be circumstances where, by reason of experience with previous litigation orotherwise, the spoliator acts of its own initiative in order to suppress evidence in anticipation that litigation may be brought.

If the overallcircumstances give rise to a reasonable inference that evidence was suppressed so that it would be unavailable if litigation were to occur,the spoliator may be called on to provide an innocent explanation, failing which the adverse inference may be drawn or other appropriateremedy may be granted.

[ 48 ] In my respectful view, nothing in McDougall or its progeny detracts from this idea. It is certainly a relevant fact whether litigation has been commenced. However, there may be situations, and this seems to be one of them, where the eventual plaintiff had not formed any intention, one way or the other, at the point when the evidence was destroyed.

There is, in the end, no need to focus at all on the intentions of the eventual plaintiff. [ 49 ] If the focus is kept on the circumstances surrounding the destruction of the evidence, and what those circumstances say about what was in the mind of the alleged spoliator, the Court will be able to determine if “ a reasonable inference can be drawn that the evidence was destroyed to affect the litigation” ( McDougall at para 18 ).

If this inference is reasonably drawn, then the spoliator may still be able to rebut it by leading evidence that there is an innocent explanation for the destruction of the evidence: see, St. Louis at 652–​654; McDougall at para 29 ; CMT at para 43 ; and Galenzoski at para 174 . [ 50 ] Based on all of this, I can agree with Mr.

Casbohm that the fact Winacott had no notice of his possible suit, or that he delayed for two years in initiating a claim, or even that he may not have formed an intention to sue at the point the ladder was destroyed, is not determinative of the question of whether spoliation may have occurred.

For these reasons, I would also restate ever so slightly the first principle summarized by Conrad J.A. in McDougall (at para 29 (1)), to state that “spoliation refers to the intentional destruction of relevant evidence when litigation is existing, or in anticipation or with a concern that litigation may be brought, so as to justify the inference that the evidence was destroyed to affect the outcome of litigation”. [ 51 ] It should be relatively easy to apply this idea when litigation has already been commenced and this fact was known to the party that destroyed the evidence.

These two facts will generally create the circumstance that justifies the drawing of the adverse inference, unless the spoliator provides an explanation that satisfies the court that the destruction was not done to affect the litigation. [ 52 ] In circumstances where litigation has not been commenced, any number of factors could bear on whether the court is satisfied that there are circumstances that justify placing the onus on the spoliator to explain the destruction as being for a reason other than to affect the litigation.

Without purporting to draw an exhaustive list of such circumstances which might create sufficient suspicion to cast such an onus, I will identify several that could, depending on the facts, be significant. [ 53 ] The first, and most obvious, would be any fact that influences the likelihood of litigation at the point the evidence was destroyed. If the eventual plaintiff has signalled an intention to sue, there is likely to be little reason to view the party that destroyed evidence more favourably than one who did so in the face of litigation that has already been commenced.

This may well have been what Conrad J.A. had in mind when she spoke of spoliation extending to the destruction of evidence in the face of “pending” litigation. However, factors other than notice may bear on the likelihood of litigation. In this regard, it may be obvious – because of the nature of an incident, the degree of injury suffered or the field of activity involved – that litigation is likely. This idea is reflected in the case law that has stated the requirement to simply be that the litigation be “foreseeable”.

Another factor may be the timespan between the incident giving rise to the claim and the destruction of the evidence. The intentional destruction of evidence immediately after an incident is apt to be more suspicious than when it occurs many years later, unless there is an intervening event or circumstance that suggests litigation is imminent or more likely than it was previously. Of course, these factors often interconnect.

To give but one obvious example, the destruction of evidence following a catastrophic incident that is likely to spawn litigation may be viewed differently when it occurs after the expiration of applicable limitation periods than when done in its immediate aftermath. [ 54 ] Ultimately, it is up to the trier of fact to determine whether, in all of the circumstances, the evidence was intentionally destroyed in the face of existing litigation or in anticipation of litigation or with a concern that litigation may be brought.

If the trier of fact concludes that this is the case, it may give rise to the inference that the destruction occurred to affect that litigation and it will then fall on the party responsible for the destruction to show that it did not intend, by destroying the evidence, to affect the litigation. The foundational issue is whether the evidence was intentionally destroyed to affect the litigation.

If it was, spoliation has occurred and the court must then address what remedy is appropriate in the circumstances. [ 55 ] When the applicable principles are understood in this way, the questions that the destruction of the ladder raised were whether the circumstances surrounding its destruction were such that they gave rise to an inference that the ladder had been destroyed to affect possible litigation and, if so, whether Winacott had discharged the onus resting on it to provide an innocent explanation for the destruction. The case law tends to treat these as two separate questions.

Indeed, the idea that the destruction of evidence in the face of existing or anticipated litigation creates a presumption that may be rebutted requires the two issues to be kept apart. However, in many circumstances at least, there is a connection between them. In St. Louis , the appellant had destroyed documents prior to litigation, yet it was found that he was not a spoliator because the destruction, while intentional in the sense it was not accidental, was done in the regular course of business before litigation was contemplated.

Justice Girouard asked rhetorically, “[w]hy punish the appellant for the innocent doings of the time-keepers, who alone and without any suggestion from the appellant have destroyed the so-called original material, or at least the greatest portion of it, as mere waste paper?” (at 677). [ 56 ] Nothing is gained in this appeal by attempting to fully parse when, or in what circumstances, it is necessary to pull these two issues apart .

I am comfortable in concluding, from paragraph 157 of the Chambers Decision, that the Chambers judge’s clear focus was on whether the destruction of the ladder “was done with the prospect of litigation in mind”. Tellingly, the Chambers judge appears to have accepted the fact that the destruction of the ladder was done in circumstances that required Winacott to provide an innocent explanation. The Chambers judge concluded his analysis on this point by stating that he was “satisfied that Winacott has rebutted the presumption of spoliation ” (at para 160, emphasis added).

In other words, the Chambers judge considered the circumstances to be sufficiently suspicious to require Winacott to satisfy him that there was an innocent explanation for the destruction of the ladder. [ 57 ] In coming to the conclusion that the presumption of spoliation had been rebutted, the Chambers judge “accept[ed] the evidence of Cor[e]y Bubnick, who said that the reason for the disposal was that the ladder was clearly damaged beyond repair, and was no longer safe” (at para 158). He also referred to a broad set of circumstances. These included that Mr.

Casbohm “did not ask to see the ladder, and nor did he give any indication to anyone at Winacott that he contemplated making a claim against them” (at para 157), and “[w]hile Winacott was aware that Mr. Casbohm had fallen and suffered injuries”, he could not “conclude that Winacott was aware of the extent of those injuries at the time the ladder was discarded” (at para 159). All these circumstances are capable of supporting Mr. Bubnick’s evidence that there was an innocent explanation for the destruction of the ladder.

[ 58 ] The analysis undertaken by the Chambers judge in this case is akin to that found in Gutbir v University Health Network , 2010 ONSC 6752 [ Gutbir ], wherein Wilson J. looked to similar facts in the course of concluding that there was nothing sufficiently suspicious to raise an adverse inference against the party that destroyed the records: [21] In the case before me, I do not agree that the Plaintiffs have established the necessary elements for the jury to be instructed on the availability of a negative inference.

In my opinion, there is no factual underpinning on the evidence that would give rise to the availability of a negative presumption arising from spoliation. I come to this conclusion for several reasons. The only evidence as to the timing of the destruction of the records is that it took place in May of 2000. The first request for the hospital records was in November 2001. It cannot be said that the destruction of the records occurred in the face of existing or contemplated litigation. Mr.

Seibert argued that simply by reason of the fact that Zmora was born with deficits the hospital should somehow have been alerted to the possibility that there might be a lawsuit. He also submitted that the fact of an adverse outcome is sufficient to suggest motivation to destroy records. I reject these submissions. Many medical procedures and hospitalizations may not have the desired outcome, but that does not automatically lead to the conclusion there will be litigation. In this case, on the evidence, there was no complaint made by the Plaintiffs to the hospital concerning the care received during Mrs.

Gutbir’s labour and delivery. On the contrary, the evidence from Mr. Gutbir was that it was not until 2001 that he and his wife contemplated a lawsuit arising from the birth of their daughter. … [23] Finally, the negative presumption requires that the destroyer did so in order to influence the litigation. Given that there is no evidence the hospital was aware in 2000 that the Gutbirs would be issuing a claim arising from the birth of Zmora, they could not have been acting in a manner to affect a lawsuit they did not know about at the time.

The evidence is that the destruction took place as part of a massive undertaking by the hospital to get rid of old files that were taking up huge amounts of storage areas, in concert with a movement towards the utilization of electronic records. (Emphasis added) [ 59 ] Of course, each case depends on its own facts. In Gutbir , the plaintiff had longer to communicate an intention to sue and the documents had been destroyed as part of general housekeeping.

Ultimately, it is for the trier of fact to assess whether the facts are sufficiently suspicious to raise a presumptive adverse inference and, if so, whether the party responsible for the destruction of the records has satisfactorily explained that act. As I see it, this is precisely the analysis undertaken by the Chambers judge in this case. In short, I see no error in principle in the Chambers judge’s analysis of this issue. [ 60 ] Mr. Casbohm is left to argue his spoliation point by challenging the Chambers judge’s findings of fact surrounding the reasons for the destruction of the ladder.

In this regard, the Chambers judge stated that he “accept[ed] the evidence of Cor[e]y Bubnick, who said that the reason for the disposal was that the ladder was clearly damaged beyond repair, and was no longer safe to use” (at para 158). [ 61 ] Mr. Bubnick did not just baldly assert that Winacott had an innocent explanation for the destruction of the ladder; he provided circumstantial support for his position. For example, as the Chambers judge recognized, Mr.

Bubnick “said that on the date of the incident, Winacott owned three fibreglass stepladders” and that Winacott’s practice had been to “discard any ladders that were damaged or missing parts” (at para 67). The Chambers judge also had in front of him the undisputed evidence that, after the fall, the ladder was unusable – a conclusion that was evident from the photographs entered in evidence. In the context of all of this, I take the Chambers judge’s conclusion to be that Winacott’s explanation for the destruction of the ladder rang true. [ 62 ] Notwithstanding all of this, Mr.

Casbohm says that the Chambers judge’s factual conclusions were “tainted” by failing to consider evidence that Winacott was aware of the possibility of litigation when it disposed of the ladder and by inconsistencies in the evidence of one of its witnesses. With respect to the first of these points, Winacott was aware that Mr. Casbohm suffered some injury. Mr. Kozlowski, one of its employees, who was aware of this, acknowledged under cross-examination that he took photographs to “freeze the scene”. Mr.

Kozlowski agreed that he did so because he was aware that “when accidents happen, down the road there might be claims made”. In connection with the second of these points, there was variation in the evidence of another of Winacott’s witnesses, Mr. Bubnick, as to whether he was aware of what had become of the ladder after the accident. [ 63 ] Both witnesses were vigorously cross-examined on both these points. The following is part of the exchange from the cross- examination of Mr.

Bubnick dealing with the purported inconsistency between the action of taking photographs and the claim that Winacott did not destroy the ladder in anticipation of litigation: Q So learning that from Mr. Kozlowski, both you and Mr. Kozlowski had in the days following the accident turned your minds to the possibility that Mr. Casbohm might bring a claim on account of his injuries, right? A No. Q Well, you were aware that Mr. Kozlowski wanted to document the scene in case something came of this incident, right? A Yes. Q That something possibly could happen, right? A I guess, yeah. I guess, yeah.

Q And one of those possibilities was Mr. Casbohm might bring a claim for his injuries, correct? A Well, if we were under that impression, then we wouldn’t have thrown out the ladder. There would have been a lot more documentation if we were thinking that this was going to happen, right? Q But, sir, I’m suggesting you did know from Mr. Kozlowski that the reason he took the photos was to document the scene? A Correct. Q And you understand what that means, right? A Correct.

Q So that in case something happens later, we’ve got the photos, right?A Correct. I was also -- well, okay.Q Okay. And yet despite that you’re saying you threw out the ladder?A Correct. [64] Elsewhere, Mr. Bubnick explained differences in his testimony as relating to the passage of time between the accident (whichtook place in 2004), the examinations for discovery (in 2011), the swearing of his affidavit (in 2017) and cross-examination (in 2018). Inthe face of all of this, the Chambers judge specifically stated that he accepted Mr. Bubnick’s explanation for the reasons for disposing ofthe ladder.

The findings of fact made by a Chambers judge in this context may only be challenged if they are the product of palpable andoverriding error. I am not prepared to find either in relation to this issue. [65] For these reasons, it is my conclusion that the Chambers judge did not err, in either law or fact, when he determined he wouldnot “draw an adverse inference against the defendants based on the disposal of the ladder” (at para 156). B. Did the Chambers judge err in holding that, if the defendants breached aduty of care, the evidence did not establish that such breach caused Mr.

Casbohm’sinjuries? [66] The Chambers judge dismissed Mr. Casbohm’s claim for two reasons. First, he concluded that Mr. Casbohm had failed toestablish, on the balance of probabilities, that “the defendants breached the duty of care that they owed him – whether in occupier’sliability or in negligence”. Second, he held that Mr. Casbohm had not “proven that any such breach was the cause of his injuries” (atpara 162). To succeed in his appeal, Mr. Casbohm must convince this Court that the Chambers judge erred in both conclusions. [67] Mr.

Casbohm advanced various reasons why the Chambers judge had erred in the treatment of his experts’ evidence.Collectively, this evidence was offered to show that the ladder had failed because it was defective. For the purposes of analyzingMr. Casbohm’s appeal, I will proceed on the assumption that Mr. Casbohm has a meritorious position that his expert testimony shouldhave been admitted without qualification and, once admitted, it would have shown the ladder to be defective. In making this assumption, Inote that Mr.

Casbohm did not challenge the general framework within which the Chambers judge made his determinations respectingexpert evidence, which was in accordance with White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR182, R v Abbey, 2017 ONCA 640, 350 CCC (3d) 102 and R v Chung, 2018 SKCA 70. I reference this to underscore that consideration ofMr.

Casbohm’s arguments respecting the admission and weighing of his expert evidence invited the application of several differentstandards of review and the outcome of any analysis of the issues he raised with respect to that evidence is not a foregone conclusion. [68] Mr. Casbohm argued his appeal as if, once he had shown the ladder to be defective, he was entitled to prevail in his action. Icannot agree. Mr. Casbohm asserted two causes of action; one in occupiers’ liability and one in negligence. Neither allows for strictliability. Both causes of action require Mr.

Casbohm to show a breach of a duty owed to him by one or both of the respondents, and thatthe breach of that duty was the cause of the injuries for which he claims damages. [69] In connection with the claim in occupiers’ liability, Mr. Casbohm’s amended statement of claim alleged that Winacott andGEO “were obligated to keep their property and premises as safe as reasonable care and skill on their

part could make them” (emphasisadded). This statement accords with the duty owed by an occupier to a contractual entrant in the absence of an express standard of careprescribed in the contract. See, generally: J. Victor Di Castri, Occupiers’ Liability (Toronto: Burroughs and Company, 1980) at 15–16[Di Castri]; and Allen Linden & Bruce Feldthusen, Canadian Tort Law, 10th ed (Toronto: LexisNexis, 2015) at 753. The Chambers judgeadopted this as the applicable standard of care owed to Mr.

Casbohm, stating: [32] In the case of a contractual entrant, if the contract expressly prescribes the obligations of the occupier in relation to safety, thecontractual standard prevails. If the contract is silent on the matter, the law implies a term that the premises are as safe for the purpose asreasonable care and skill on the part of the occupier can make them: Allen Linden & Bruce Feldthusen, Canadian Tort Law, 10th ed,(Toronto: LexisNexis, 2015) at 753.

Put another way, where the visitor to a premises is a contractual entrant, the occupier must “take duecare that the premises should be reasonably safe for persons using them in the customary manner and with reasonable care”: Brown v B. &F. Theatres Ltd., (SCC), [1947] S.C.R. 486; [Hawman v Regina Exhibition Association Ltd., 1999 SKQB 123, 186 Sask R.225]. [70] In the absence of a specific contractual duty, an occupier is not a guarantor of a contractual entrant’s safety. Di Castri put it thisway (at 19): … (

a) The warranty is not that the premises are safe, but only that reasonable care and skill have been used to make them safe; theoccupier is not an insurer of the entrant’s safety. … (

b) In the absence of negligence, the occupier is not liable for injury sustained by theentrant from some danger inherent in the mutually contemplated purpose of the contract. (

c) The occupier is not responsible for defectswhich could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration,repair or maintenance of the premises. ... (Footnotes omitted) Lewis N. Klar, Remedies in Tort, loose-leaf (Rel 2020-12) vol 3 (Toronto: Thomson Reuters, 2020) at 18.34.8 makes these same generalpoints. [71] Mr. Casbohm’s claim in negligence, advanced against Winacott alone, was similarly dependant upon him showing a breach ofthe duty of reasonable care.

The Chambers judge described the content of the duty of care in negligence in the following terms: [47] Taking those standards into account, along with the nature of Mr. Casbohm’s employment and the provisions of the contract, inmy view, Winacott owed Mr. Casbohm a duty to provide a working environment that was as safe as reasonably possible, in all thecircumstances. This would include:

(

i) Providing a ladder sturdy enough, and tall enough, to perform the required tasks safely; (ii) Taking reasonable measures to ensure that the ladder was compliant with safety standards, mechanically sound, and free from damageor defects; (iii) Taking reasonable measures to provide a safe place for Mr. Casbohm to work, meaning a surface that was reasonably solid, level andfree from other conditions that would be likely to contribute to ladder instability, and free from any unusual hazards. [48] In my view, however, that duty did not extend so far as to require that Winacott provide Mr.

Casbohm with a detailed history ofwhen the ladder was last inspected, or provide a warning or disclaimer about its fitness. Nor did it require Winacott to provide instructionon the safe use of a ladder. Mr. Casbohm was an experienced worker, and a stepladder is not a complicated piece of equipment. Nor didthe duty on Winacott require it to provide someone to hold the ladder while Mr. Casbohm worked on it. [72] Mr.

Casbohm did not contend in this appeal that the Chambers judge erred in rejecting the idea that Winacott was obligated toprovide a warning or disclaimer of the sort referred to in paragraph 48, or that it was required to provide him with instructions on theladder’s use or provide someone to hold the ladder for him. I would add that there would be no basis to conclude that, if a duty ofinstruction existed, its breach caused Mr. Casbohm to fall, since his position throughout was that he had used the ladder correctly. Simplyput, Mr.

Casbohm did not point to anything he did not know about the proper use of the ladder. Instead, his complaint was simply that itcontained an undetected defect. [73] There is also no basis to conclude that the defendants breached the duty owed under the principles of occupiers’ liability or thetort of negligence by reason of providing Mr. Casbohm with a ladder of the type or kind from which he fell or by providing an inadequatework environment. The Chambers judge held that the ladder Mr. Casbohm used “was a fibreglass stepladder, of a sort that met CSAstandards” (at para 53) and “was adequate for the task Mr.

Casbohm was performing” (at para 54). He also concluded that the “locationwhich Winacott provided for Mr. Casbohm to conduct his tasks contained no unusual hazards, and there is no evidence that the groundconditions were soft, slippery, noticeably sloped, or otherwise unstable” (at para 161(2)). Mr. Casbohm did not appeal from these findings,each of which was consistent with the evidence of his own experts. [74] All of this leaves Mr.

Casbohm to contend that Winacott should be held liable because it failed to identify the defect in theladder itself – there being no suggestion that GEO owed this duty. [75] Winacott agreed before the Chambers judge that “[it] had no system for regular testing or inspection of the ladders” (at para67). Mr.

Casbohm argues that “[t]he provision of the unsafe, uninspected ladder constituted a breach of the standard of care imposed onthe respondents in either occupier’s liability or negligence”. [76] Currie v Stirling Fruit Farms Ltd. (2000), (NS SC), 185 NSR (2d) 359 (NSSC) [Currie], aff’d2001 NSCA 83, 194 NSR (2d) 60, sheds some light on the obligation to carry out inspections. In Currie, the plaintiff went apple pickingwith a friend who was a regular employee of the defendant orchard. One of the defendant’s other employees provided the plaintiff and herfriend with ladders on their first day of picking.

On the second day, the plaintiff and her friend decided that the plaintiff would pick fromlower branches. The plaintiff selected a shorter ladder for the task. After using the ladder for two hours, the ladder broke and she fell,breaking her ankle. The defendant carried out purchase inspection checks and end of the season checks before placing the ladders instorage, but only cast aside broken ladders during the season, to be collected at the end of the season. Nothing was done to or with theladders throughout the season unless they were damaged.

The plaintiff argued that the defendant should have taken more care in theprocess and that a one-time inspection check when a ladder is handed out, without further involvement until the next time it is handed out,was not akin to providing regular inspections for ladders throughout the season. [77] Justice Stewart noted that, while an employer’s duty does not include warranting the safety of tools, the employer does have tomaintain a proper system of continuing supervision and inspection: [35] As noted in [John G.

Fleming, The Law of Torts, 8th ed (Sydney: Law Book Co., 1992)] at page 507, the employer’s obligation toobserve reasonable care in the provision and maintenance of proper plant and appliances does not extend to the employer warranting thesafety of tools or being answerable for negligence on the part of anyone involved with their manufacturer and supply.

An employer “doeshowever have a duty of care to procure suitable tools from a respectable source, inspect them for fitness and thereafter maintain a propersystem of continuing supervision and inspection.” [78] She went on to dismiss the plaintiff’s claim, finding that the defendant’s inspection system was sufficient. As she noted: [39] It is standard practice for Stirlings during season to rely on site visual inspections of the ladders, which they regularly carry outwhen handing out or assigning the ladders.

For over thirty years, Ralph Stirling has been purchasing ladders and inspecting them from thesame reliable skilled craftsman and is not aware of any problems with their construction, material or durability or with breakage during usecausing a fall. Currie in substituting ladders took no steps to return her assigned ladder and seek assignment of another.

Nothing about theladder selected presented as obviously problematic and would have been no more obvious to the orchard boss than to Brown or Currie,given the fact there were no external safety issues noticeable either visually or physically and even if Stirlings had done so when Currieselected her ladder, the routine inspection would not have disclosed anything. Certainly it is not feasible to expect Stirlings to check theirequipment throughout the day or each time an employee traverses it up and down. The ladder proved to be functionable and safe for twohours into the morning picking.

There is no evidence to suggest the ladder in the pile selected by Currie had not been inspected byStirlings and was ready for hand out and use for the season. Stirlings are not required to guarantee ladders will not crack after they deliverthem to their pickers. [40] In accepting Ralph and Jay Stirling’s evidence as to their purchase and inspection procedures before, during and after the season, Iam satisfied Stirlings made reasonable inspections for discoverable defects and undertook reasonable care for latent defects.

Not only wasthere a defect that could not be disclosed on a routine inspection which may have been heightened by Currie’s method of picking but alsoin acquiring the equipment and dealing with it, they took all reasonable care before, during and after season to see that it was in good order

and condition ( Pearce v. Round Oak Steel Works Ltd , [1969] 1 W.L.R. 595 ). I am satisfied that every proper care was taken to provide a reasonably safe place of work and to maintain the ladder and that negligence has not been established against Stirlings. There has been no breach of duty. (Emphasis added) [ 79 ] Ultimately, while Winacott’s duty to Mr. Casbohm did not take the form of an absolute warranty that the ladder was safe, I am satisfied that Winacott had an obligation to adopt a reasonable system of inspection of the ladder.

Winacott’s admission that it had no system at all in place leads to the further conclusion that Winacott thus breached the duty of care it owed to Mr. Casbohm. However, it is not enough that Winacott breached its duty of care. Its breach must also have been the cause of Mr. Casbohm’s injuries. [ 80 ] A breach by Winacott of its duty of inspection can only be said to have been a cause of Mr. Casbohm’s injuries if the ladder was defective and if a reasonable system of inspection would have detected the fault. Giving Mr.

Casbohm the benefit of the assumption that he would prevail in his challenge to the Chambers judge’s conclusions regarding the expert testimony, and therefore that it may be said that the ladder contained a defect, the question becomes whether a reasonable system of inspection would have detected the (assumed) defect in the ladder. [ 81 ] A consideration of this issue begins with the Chambers judge’s findings of fact that any defect that may have existed in the ladder was not readily observable. The Chambers judge stated in this regard, as follows: [70] First, the ladder used by Mr.

Casbohm showed no readily observable signs of damage or defects before he began using it. If it had, either he would have noticed it, or it would have become apparent during one of the several trips he made up and down the ladder before the fall, or it would have become apparent to the person who used the ladder before him. [ 82 ] Mr. Casbohm does not challenge this finding of fact, based as it was largely on his own evidence. [ 83 ] The second point of note is that Mr.

Casbohm’s experts offered no direct evidence to support a contention that the (assumed) defect in the ladder would have been detected by an appropriate system of inspection. Mr. Hughes stated, in both his original report and the report responding to Mr. Kiska, that he was limited in his ability to comment on pre-existing damage to the ladder because it was not available for inspection. However, neither he nor Ms. Moss offered evidence as to what system of inspection the defendants should have maintained in order to have detected a hypothetical flaw or defect in the ladder that was undetected by an ordinary user.

To the extent that Mr. Hughes’ evidence bears on this issue at all, it suggests the opposite conclusion. In this regard, Mr. Hughes offered the following critique of Mr. Kiska’s evidence that there was no evidence of pre-existing damage to the ladder: This was an assumption and not a conclusion. There was also no evidence in the record to suggest the ladder was undamaged prior to the accident. The ladder was unavailable for inspection and the only evidence presenting the ladder condition consisted of low quality photographs showing only the gross deformation.

Pre-existing damage in the ladder explains the circumstances of Mr. Casbohm’s fall. Microcracks or small deformities indicating pre-existing conditions could not be ruled out. [ 84 ] Simply put, there is nothing in the evidence to support the idea that Winacott should have had in place a system of inspection that would have resulted in the detection of microcracks or small deformities. More generally, I agree with Winacott when it says that there is “no evidence that the damage required to cause the ladder to spontaneously collapse would have been noticeable on a reasonable observation or inspection”.

This leads to the further conclusion, again as argued by Winacott, that “if [Mr. Casbohm’s] case is taken at its highest, and all of the evidence is admitted, it still does not prove that something Winacott did, or failed to do, caused the fall”. [ 85 ] For these reasons I would conclude that the Chambers judge did not err in holding that, if the defendants had breached a duty of care, the evidence did not establish that such breach caused Mr. Casbohm’s injuries. V. Conclusion [ 86 ] I would dismiss Mr. Casbohm’s appeal. The respondents are entitled to one set of costs against Mr.

Casbohm. “Leurer J.A.” Leurer J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Whitmore J.A.” Whitmore J.A.