IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150703

Docket: S125094

Registry:
Vancouver

Between:

Darla Elizabeth
Zary

Plaintiff

And

Canada Mortgage
and Housing Corporation

Defendant

Before:
The Honourable Mr. Justice Skolrood

Reasons for Judgment

Introduction

[1]            
On October 24, 2010, the plaintiff, Ms. Zary, injured her right knee
when she fell in a washroom located in the Granville Island Public Market (the
“Market”). Ms. Zary has commenced this action seeking to recover damages
for the injury she suffered.

[2]            
The Market is operated by the defendant Canada Mortgage and Housing
Corporation (“CMHC”) and CMHC concedes that is an occupier within the meaning
of the Occupiers Liability Act, R.S.B.C. 1996, c. 337 (the “OLA”).

[3]            
CMHC applies, pursuant to Rule 9-7 of the Supreme Court Civil Rules,
B.C. Reg. 168/2009 the summary trial rule, for an order dismissing Ms. Zary’s
claim.

Summary of the Evidence

[4]            
While this is CMHC’s application, it is useful to start with Ms. Zary’s
evidence and, in particular, her description of how she fell.

[5]            
Ms. Zary is an artist and has been selling her art as a day vendor at
the Market since 2004. As a result, she was familiar with the washrooms at the
Market, including the one in which she fell, which is described as washroom
B-4.

[6]            
Ms. Zary deposes that she has used that washroom many times over the
years. She goes on to say:

Often the washroom is dirty. Before
October 24, 2010 there were frequent occasions when there was water on the
floor of the washroom. On occasions I would not use that washroom because I
know that water on the ceramic tile floor can be slippery.

[7]            
Ms. Zary also provides evidence of her general observations concerning
the washroom:

My observation is that there is
frequently water on the floor of that washroom. My observation is that the
water accumulates from water dripping from the fixtures. I have seen drops of
water that condense on the plumbing fixtures fall to the floor. I have not seen
a water leak in the washrooms, but I have seen water accumulate on the floor
from what I believe to be water condensing on to the steel and porcelain
fixtures. I have observed that there is a variation with respect to the
moisture on the floor in the washroom. For example, in the summer I have
observed the floor to be dry on some days. When the floor is dry it is not
slippery.

[8]            
In terms of the incident on October 24, 2010, Ms. Zary describes her
fall as follows:

On October 24, 2010 I had worked
at the public market. After the market closed I was getting ready to leave for
the day. I walked into one of the women’s washrooms at the public market. On
this occasion I did not see water on the floor as I walked into the washroom so
I thought I would use the washroom. I pushed open the swinging door of the
stall closest to the entrance of the washroom. When I pushed the swinging door
open I saw that there was water on the floor in the area around and approaching
the toilet. Upon seeing the water I thought to myself that I did not want to
use that stall because I did not want to run the risk of slipping because of
the water. I took one step with my left foot to leave the stall. As I stepped I
felt my right foot slip. I grabbed the door to the stall to try to prevent
myself from falling, but I was not able to prevent myself from falling. I could
not hold myself up by using the door and my legs were not in a position to
support me. I called for help as I was holding onto the door. I fell to the wet
floor and heard a “snap” from my right knee.

[9]            
Ms. Zary attaches to her affidavit a number of photographs that were
taken shortly after she fell by another vendor, Ms. Vlaar. Certain of the
photographs appear to show some moisture on the tiles and in the seams between
the tiles in the stall where Ms. Zary fell. While the moisture is apparent in
the photographs, there is no obvious pooling or collection of water on the
floor.

[10]        
Ms. Zary relies on the affidavit of Denis Gobeil who is also a vendor
who sells carvings at the Market. He deposes that on January 31, 2014 he
slipped on a wet floor in the men’s staff washroom after it was cleaned. He
says that he wrote a note reporting the incident to one of the tenant
co-ordinators.

[11]        
Mr. Gobeil’s affidavit is of minimal probative value given that he
describes an incident in a different washroom over three years after the date
on which Ms. Zary fell.

[12]        
CMHC put forward evidence from a number of individuals concerning the
system in place for inspecting and cleaning the washrooms at the Market as well
as evidence from employees who attended the scene when Ms. Zary fell.

[13]        
Vic Tacderan and Luisito Urbayo are janitors employed by CMHC who were
on duty on October 24, 2010. Mr. Tacderan deposes that he was working the
afternoon shift that day and that he performs his duties in accordance with a
set schedule. The janitorial staff work in two man teams and he was working
with Mr. Urbayo.

[14]        
According to Mr. Tacderan, the afternoon work schedule requires that the
washrooms in the Market, including B-4, are cleaned at approximately 3:00 pm,
5:00 pm and 7:00 pm. The work schedule also sets out a detailed list of
tasks to be completed with each cleaning, which includes “sweep and mop floors,
thoroughly”.

[15]        
Mr. Tacderan deposes further that it is his invariable practice to
follow the tasks set out in the schedule. He says as well that if, while
carrying out his duties, he ever came upon a water leak in any of the
washrooms, he would immediately report it to the maintenance department. Mr.
Tacderan has no recollection of any leak in washroom B-4 on the day in
question.

[16]        
Of note, Mr. Tacderan says that because the washrooms in the Market
receive a fair volume of traffic, it is impossible to keep the floors in the washrooms
perfectly dry at all times. Accordingly, he says that bright yellow “Caution: Wet
Floors” signs are placed outside the entrance to each washroom.

[17]        
Mr. Tacderan says that on October 24, 2010, he heard a report on his
radio that someone had fallen in washroom B-4. He and Mr. Urbayo attended and
saw a woman lying on the floor in the washroom. He says that he did not have an
opportunity at that time to investigate what might have caused her to fall, but
when they did the next scheduled cleaning at 7:00 pm, he did not notice any
unusual amounts of water on the floor anywhere in the B-4 washroom.

[18]        
Mr. Urbayo gave virtually identical evidence in his affidavit.

[19]        
Carl Barrow is employed by CMHC as the Janitorial Supervisor at the
Market. Mr. Barrow was not working on October 24, 2010 but says that he has no
record of anyone reporting a leak in washroom B-4 on that day. He says further
that had there been any leak or unusual accumulation of water, he would have
been notified as he always is when such events occur.

[20]        
In his affidavit, Mr. Barrow describes the general system for cleaning
the public washrooms in the market as follows:

…the CMHC janitors, who work in
assigned teams of two in the Public Market, are required to clean two women’s
public washrooms, two men’s public washrooms, a smaller washroom for
handicapped patrons, and two smaller staff washrooms (men and women). At 0600h,
they clean the staff washrooms and do a visual inspection of the public
washrooms. At 1100h, 1300h, 1500h, 1700h and then 1900h, all of the Public
Market washrooms are cleaned in accordance with the Cleaning Schedule and
Washroom Cleaning procedure.

[21]        
Mr. Barrow goes on to say:

As a result of the foot traffic
the Granville Island Public Market typically receives on the weekends and people
washing their hands and moving from the sinks in the public washrooms to the
paper towel dispensers (as they were then), and washing fruit that is purchased
at the Market, it is practically impossible to keep the floors in the Market
public washrooms dry. In response, we schedule the cleaning of the washrooms as
often as practical and post a bright yellow plastic sandwich board “Caution”
sign to advise patrons and day vendors that the bathroom floor can be
potentially slippery when wet. These sign are located just inside the doorway
of the main entrance of the public washrooms. There is a sign for each washroom.
Such a sign would have been outside of the B-4 women’s washroom on the date of
Ms. Zary’s fall.

[22]        
Erik Nelson was the tenant coordinator for CMHC at the Market on October
24, 2010. Mr. Nelson’s shift ended that day at 1750h so he was not on duty at
the time of Ms. Zary’s fall. However, he was at the Market at 1900h as he was
there to pick up his wife who also worked there. Mr. Nelson says that he was
informed of the incident and so he went to look at washroom B-4. He says he did
so before the janitorial staff arrived to clean it. According to Mr. Nelson,
the floor was damp from use, which was typical for the time of year and time of
day, but he did not observe any puddles of water or accumulations that would
pose as a slip hazard.

[23]        
Heinz Pohl is a commissionaire who was on duty at the Market on October
24, 2010. He learned that someone had fallen in the B-4 washroom and attended
the site where he saw Ms. Zary seated on the floor next to the first stall.

[24]        
According to Mr. Pohl, he recalls that the washroom floor was damp in
places, but there were no significant puddles of any kind. He said there was
some water on the floor in the first stall, likely from the accumulation of the
condensation that forms on the toilet and its plumbing fixtures, but no puddles
or water. Mr. Pohl says further that before Ms. Zary was taken out of the
washroom, a yellow plastic “Caution” sign, that was outside the entrance to the
washroom, was placed in the doorway of the washroom.

[25]        
According to Mr. Pohl, during the approximately two and one half years
in which he was employed as a commissionaire at the Market, he was not made
aware of any other sip and fall events in any of the washrooms.

Severance and Suitability

[26]        
As noted, CMHC seeks to have the liability issue determined on this
summary trial. No formal severance application has been brought.

[27]        
Rule 9-7 does contemplate in subsection (2) that a party may apply for
judgment on an issue or generally. However, the authorities make it clear that
where a party seeks judgment on liability only, even in the absence of a
severance application, the court must consider the principles governing
severance.

[28]        
In Burg Properties Ltd. v. Economical Mutual Insurance Company, 2013
BCSC 209, Madam Justice Gerow described the proper approach as follows at
para. 27:

There is authority for the
proposition that in a summary trial application where a party seeks to proceed
only on liability, a two step approach should be followed: the first step is to
determine whether there should be severance, and the second step is to
determine if a summary trial on the issue of liability is appropriate: Chun
v. Smit, 2011 BCSC 412 at paras. 8-9. In Chun, the court stated that
the test for severance is whether there are extraordinary, exceptional or
compelling reasons for the severance. A compelling reason to order severance is
a likelihood of a significant savings in time and expense realized by a summary
trial: Bramwell v. Greater Vancouver Transportation Authority, 2008 BCSC
1180 at para. 12.

[29]        
I am satisfied that the test for severance is met in this case. In
particular, I am satisfied that by deciding the liability issue in advance,
there will be a considerable saving in time and expense. If the liability issue
is decided in favour of CMHC, then the case will be at an end, subject to any
appeal. If, however, liability is found in favour of Ms. Zary, the resulting
trial on damages will be considerably shorter, if indeed it goes at all.

[30]        
The issue then is whether the matter is suitable for determination by
summary trial. On this point, Rule 9-7(15)(a) states:

On the hearing of a summary trial application, the court may

(a) grant
judgment in favour of any party, either on an issue or generally, unless

(i) the court
is unable, on the whole of the evidence before the court on the application, to
find the facts necessary to decide the issues of fact or law, or

(ii) the court is of the opinion that
it would be unjust to decide the issues on the application,

[31]        
The critical question facing the court when hearing a summary trial
application is whether the court can find the facts necessary to decide the disputed
issues. Even where the court can find the necessary facts, it must still
consider whether it would be just to decide the matter summarily, by reference
to factors such as the amount involved, the complexity of the matter, its
urgency, any prejudice that might arise by reason of delay, and the cost of
taking the matter forward to a conventional trial: see Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202
(C.A.) and Gichuru v. Pallai, 2013 BCCA 60 at paras. 30-31.

[32]        
Taking account of all of the relevant factors, it is my view that the
liability issue can properly and fairly be determined on this summary trial
application. I note in particular that all of the evidence going to the
liability issue is before the court. Both parties came prepared to argue the
issue and both made comprehensive submissions on liability.

[33]        
The only real conflict in the evidence concerns the location of the
yellow “Caution” sign. Ms. Zary says that it was not present when she entered
the washroom but was placed in the doorway after she fell. In contrast, a
number of the defendant’s witnesses say that the sign was outside of the
washroom door before the fall.

[34]        
In my view, little turns on this conflict in that Ms. Zary states in her
affidavit that she did not need a sign to tell her that the floor might be wet
because she knew this from past experience.

[35]        
In the circumstances, I am satisfied that I am able to find the
necessary facts to determine the issue of liability on this summary trial
application.

Legal Framework for Occupier’s Liability

[36]        
As noted at the outset, CMHC concedes that it is an occupier within the
meaning of the OLA. Section 3 of the OLA sets out the applicable
duty of care owed by an occupier:

3
(1) An occupier of
premises owes a duty to take that care that in all the circumstances of the
case is reasonable to see that a person, and the person’s property, on the
premises, and property on the premises of a person, whether or not that person
personally enters on the premises, will be reasonably safe in using the premises.

(2) The duty of care referred to in
subsection (1) applies in relation to the

(a) condition of
the premises,

(b) activities
on the premises, or

(c) conduct of third parties on the
premises.

[37]        
The applicable standard of care was described by Madam Justice Ross in Ball
v. GAP (Canada) Inc., 2001 BCSC 1106, aff’d 2002 BCCA 488 in these terms at
paras. 25-27:

[25] The standard expected of an occupier is one of
reasonableness, not perfection. In Milina v. Bartsch (1985), 49
B.C.L.R. (2d) 33 (S.C.), (aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.), McLachlin
J., as she then was, wrote at p. 58:

…the duty owed by an occupier of
premises is to take reasonable care to see that persons using the premises will
be reasonably safe. The Acts do not impose a duty to take reasonable care to
insure that persons using the premises will be ‘absolutely safe’. As stated
in Hagerman v. Niagra Falls (1980), 29 O.R. (2d) 609, per
Labrosse J. at p. 613, the occupier does not owe a duty to provide safety in
all circumstances, but rather a duty to use reasonable care to prevent injury
or damage from danger which is known or which ought to be known. [emphasis
added]

[26] Case law holds that "an occupier is not an
insurer". Lamont v. Westfair Properties (Pacific Ltd.) et al.,
[2000] B.C.J. No. 513 (Q.L.); 2000 BCSC 406, at para. 20.

[27] While it is the case that the occupier is not an insurer
and that the standard is not one of perfection, the Act does
place an affirmative duty on the occupier to make the premises reasonably safe.
See Waldick v. Malcolm, [1991] 2 S.C.R. 456.

[Emphasis in original.]

[38]        
In Mainardi v. Shannon, 2005 BCSC 644 [Mainardi], Mr.
Justice Preston at para. 21 set out a number of principles developed in cases
applying the occupier’s duty imposed by the OLA:

(1) The plaintiff bears the onus of proving
on a balance of probabilities that the occupier breached his or her duty of
care.

(2) A presumption of negligence is not
created by the fact that the plaintiff was injured. The plaintiff must
establish that some act or failure to act on the part of the occupier resulted
in his or her injury.

(3) The duty of care imposed by the Act
does not require the occupier to remove every possibility of danger — the test
is one of reasonableness, not perfection.

(4) The Court is not entitled to resort to
speculation when determining the cause of the plaintiff’s fall and subsequent
injury. The plaintiff must prove the nexus between his or her fall and the
occupier’s failure to discharge his or her duty of care.

(5) The care that an occupier must take
differs according to the nature and use of the premises.

(6) The occupier need not, in all cases, show
that he or she had a specific policy in place to deal with the maintenance of
the portion of the premises where the fall occurred. The nature of the premises
will determine whether or not a maintenance scheme will be required.

[Omitting the citations.]

[39]        
Ms. Zary cites a number of cases in which
liability was found against the occupier in similar circumstances, including Burnett
v. Canada Safeway Ltd., [1984] B.C.J. No. 1848 (C.A.); Coulson v. Canada
Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 (C.A.); and Clark v. Royal Oak
Holdings Ltd. et al, 2003 BCSC 275.

[40]        
Ms. Zary also cites a number of cases in which
the plaintiff was unsuccessful in establishing liability because the cause of
the fall could not be determined on the evidence: see for example Crudo v.
Westfair Foods Ltd., 2005 BCSC 320; Van Slee v Canada Safeway Ltd., 2008
BCSC 107 and Kerr v. Global Investments House Inc., 2014 BCSC 1544. Ms.
Zary submits that these cases are distinguishable because the evidence in this
case clearly establishes the presence of moisture on the floor of the washroom.

[41]        
For its part, CMHC submits that it had in place
a reasonable scheme for monitoring and cleaning up any potential hazards in the
public spaces at the Market and that accordingly, it is not liable for Ms.
Zary’s fall. It cites Tremblay v. Westfair Foods Ltd., 2003 BCSC 1017; McComb
v. Vancouver Island Health Authority, 2007 BCSC 556 [McComb] and Atkins
v. Jim Pattison Industries Ltd. (1998), 61 B.C.L.R. (3d) 183 (C.A.) in
support of this position.

[42]        
It is useful to note that in Atkins, the
Court of Appeal held that it was not sufficient for the occupier to simply show
that it had a reasonable scheme in place, it also had to demonstrate that the
scheme was being followed (at para. 6).

Analysis

[43]        
In determining whether CMHC breached the
applicable standard of care, it is first necessary to make findings of fact as
to the circumstances of Ms. Zary’s fall.

[44]        
I accept Ms. Zary’s evidence that when she first
entered the B-4 washroom, she did not see any water on the floor of the main
part of the washroom but she did see water when she entered the first stall. The
evidence is unclear however as to how much water was present. In her affidavit,
she simply states that “there was water on the floor in the area around and
approaching the toilet”. As noted, she attaches a number of photographs to her
affidavit and in describing one of them, she refers to the water that had accumulated
in the seams between the floor tiles. At her examination for discovery, she
said that when she opened the stall door, her first reaction was “there’s all
this water.”

[45]        
None of CMHC’s witnesses dispute that there was
water on the floor of the washroom, but they say that there were no puddles or
unusual accumulations and that some degree of dampness was to be expected.

[46]        
Thus, on the evidence, it is clear that there
was some water on the floor, at least in the washroom stall.

[47]        
I also accept that Ms. Zary’s fall was caused by
the dampness on the floor. I agree with CMHC that her explanation of how she
tried to exit the stall and precisely how she fell is somewhat muddled but, as
I understand her evidence, when she saw the water on the floor of the stall,
she turned to leave and took one step with her left foot. As she did, her right
foot slipped out from under her causing the fall. Based on the evidence, I am
satisfied that the only proper inference to be drawn is that Ms. Zary slipped
due to the water on the floor.

[48]        
That, of course, is not sufficient to establish
liability on the part of CMHC. As numerous authorities have found, there
is no presumption of negligence against an occupier simply by virtue of the
fact that someone is injured. The plaintiff must still establish some act or
omission on the part of the occupier that caused the injury (Mainardi at
para. 21).

[49]        
Accordingly, the central issue in this case is
whether CMHC met its obligation under s. 3(1) of the OLA to take
reasonable care to insure that persons entering its premises would be
reasonably safe. Put another way, and with reference to the Court of Appeal’s
decision in Agar v. Weber, 2014 BCCA 297 [Agar] at para. 30, did
CMHC take adequate steps to “protect others from an objectively unreasonable
risk of harm”?

[50]        
I pause here to note that in its written
submission, CMHC submits that water accumulating on the floor of a public
washroom does not constitute an “unusual danger.”   However, as stated by Madam
Justice Smith in Agar at para. 49, the concept of “unusual danger” was
an aspect of the former common law test for occupier’s liability, which has
been superseded by the provisions of the OLA and the corresponding test
set out above.

[51]        
CMHC submits that it has met its obligation
under the OLA. It points to its established system of regular
maintenance and cleaning which it says operated to reasonably minimize the
hazards associated with a public washroom. Further, it submits that it would be
wholly unreasonable, and would amount to imposing a standard of perfection, to
require it to maintain the public washroom floors in a completely dry state at
all times.

[52]        
CMHC cites Cooper v. Spectra Food Corp., [1998]
B.C.J. No. 2297 [Cooper] which involved a slip and fall by the plaintiff
near to the front entrance of a restaurant. Madam Justice Loo made the
following observation at para. 38, which is relied on by CMHC:

…It would be
unreasonable for the defendant to achieve a standard of perfection and maintain
a perfectly dry floor, particularly near the entrance of a restaurant in a city
which is known for its rainfall.

[53]        
That passage however must be read alongside of
the preceding sentences in para. 38 where Madam Justice Loo said:

I find that
where the plaintiff fell was approximately ten feet from the front entrance and
most probably had traces of water on it due to the rain and snowy conditions
outside. However the defendant had absorbent mats in the doorway to absorb
water and snow tracked in by the restaurant patrons. I find that to be
reasonable in these circumstances.

[54]        
Thus, as can be seen, the defendant in Cooper
had taken steps to address an identified hazard. It should be noted as well
that notwithstanding her finding above with respect to the absorbent mats,
Madam Justice Loo nonetheless found the defendant liable for failing to ensure
that the slip resistant flooring installed elsewhere in the restaurant was
properly maintained and re-applied when necessary (at para. 40).

[55]        
Ms. Zary submits that here, CMHC failed to take
any similar precautionary measures. For example, she says that if CMHC could
not provide a dry floor, it should have taken steps to render the floor less
slippery, such as installing some sort of abrasive or slip resistant surface to
the floor.

[56]        
While the use of absorbent mats, as in Cooper,
or the addition of slip resistant flooring material would no doubt be prudent
on the part of CMHC, the absence of these measures does not in my view
constitute a failure by CMHC to meet its statutory obligations under the OLA.

[57]        
Given the nature of the business carried out at
the Market and the volume of foot traffic that passes through the Market,
particularly on weekends, it is inevitable that there will be some moisture on
the floor of the public washrooms at any given time. However, absent evidence
that any degree of dampness renders the floors in the bathrooms unsafe, the
mere presence of water does not in my view constitute an “objectively unreasonable
risk of harm”. This is particularly so given Ms. Zary’s knowledge that the
floor in the washroom was often damp.

[58]        
Moreover, I am satisfied that, in any event,
CMHC has in place a reasonable system of maintenance of the public washrooms which
provides for inspection and cleaning of the washrooms at reasonable intervals
as well as a process for dealing with unusual events such as a water leak. In
my view, that system effectively “minimized hazards and fulfilled the
defendant’s duty to keep the bathrooms reasonably safe for use by all users,
including the plaintiff”: McComb at para. 57.

[59]        
Ms. Zary’s fall is unfortunate and the injuries
that she sustained have no doubt had a significant adverse effect on her. However,
I am unable to find that the fall was caused by an act or omission of CMHC in
breach of its obligations under the OLA. Ms. Zary’s claim is therefore
dismissed.

[60]        
CMHC is entitled to its costs at Scale B.

“Skolrood J.”