1

CITATION: Young v. Kent Standard Condominium Corporation No. 28, 2016 ONSC 5674

COURT FILE NO.: 226/15

DATE: 2016-09-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gaylene Young, Plaintiff

AND:

Kent Standard Condominium Corporation No. 28, formerly Kent Condominium

Corporation No. 3 also known as Kent Standard Condominium Plan No. 28,

Defendant

BEFORE: Heeney R.S.J.

COUNSEL: K. McNair, for the Plaintiff

G. Mallia, for the Defendant

HEARD: September 7, 2016 at London

ENDORSEMENT

[1] This is a motion for summary judgment brought by the defendant. It submits that there is

no genuine issue requiring a trial, because there is no evidence that the defendant

breached the standard of care owed to the plaintiff, nor that any act or omission of the

defendant caused her to trip and fall and injure herself.

[2] The plaintiff resides in an apartment building in Chatham owned by the defendant. She

had moved in to the building on June 1, 2010, almost three years before her accident of

February 7, 2013. She was well familiar with the layout of the building, including the

exterior sidewalks and flower beds. She habitually walked her dog several times each

day, took her recycling outside to the recycling bins, and walked to her car which was

parked in the parking lot to the north of the building. In the course of doing so, she

routinely walked along the sidewalks that ran adjacent to the sides of the building.

[3] The front door of the building faces west. There is a sidewalk that runs north from the

entrance parallel with the west wall, which then turns toward the east at the north end of

the building. This sidewalk leads to the rear of the building, where the recycling bins are.

There is a door on the north side of the building that provides a shorter route to the bins

than using the front door.

[4] Between the sidewalk and the building is a flower bed, bordered by a row of bricks. It is

admitted that the flower beds had been in place, unchanged, from the time the plaintiff

2

moved in until her accident, and she was well familiar with them. She had never

encountered any problem with the flower beds before.

[5] February 7, 2013 was a clear and sunny day, and the plaintiff walked her dog several

times before her accident. She took her recycling items to the bins at the rear of the

building, making use of the north door. On her return trip, though, she walked past that

door intending to follow the sidewalk west, and then south, to the front door of the

building, where she was to meet her sister.

[6] As she turned the corner to head south, she tripped on the corner of the brick border of

the flower bed and fell, sustaining injuries including a fractured wrist. It is admitted that

the sidewalk was free of snow and ice, and there is no suggestion that the sidewalk was in

any way defective.

[7] She described catching her baby toe on the brick, which caused her to fall. When asked

why that happened, she initially said:

I don’t know. Uhm, at first I had thought, uhm, because the brick, uhm, is, is starting to,

unh, fall or it’s, it’s like, falling down. The top brick is, uhm, just slightly, uhm, bent on

it, so, like…

[8] She then identified a photograph that she took of the corner of the flower bed a few days

after the fall, and confirmed that it accurately represented the condition of the bricks at

the time she fell. It is the only photograph in evidence, and I will have more to say about

it later.

[9] In describing what was allegedly defective about the bricks, she pointed to a crack

between two bricks where there appears to be no mortar.

[10] However, when further questions were asked about whether it was right at the very

corner of the flower bed where she caught her baby toe, she said:

Uhm, I don’t believe so but, uhm, I really didn’t see it. I didn’t, uhm – it turns out that I

had cataracts and I didn’t see that. I couldn’t see that.

[11] The following questions and answers were then asked and answered:

Q. So you were having some difficulty with your peripheral vision?

A. I was, but I was not aware of it at that time.

Q. And how was it that it affected your peripheral vision?

A. Uhm, I just couldn’t see the flower bed.

[12] Records obtained from her optometrist indicated that she was referred to Dr. McMahon,

an ophthalmologist, on October 14, 2014, complaining of a gradual decline in vision out

3

of each eye. She subsequently had cataract surgery on each eye, in December, 2014 and

March, 2015 respectively. She testified to a “vast improvement” in her peripheral vision

following the surgery.

[13] She then testified as follows:

Q. And based on the change that you saw when you had the lenses replaced, is it fair to

say that that is how you know that you had some difficulties with your peripheral vision

before that?

A. Yes.

Q. And your sense is that that’s why you didn’t see the flower bed?

A. Yes.

[14] Robert Reaume was examined for discovery on behalf of the defendant. He is the

property manager and is in charge of building. He testified that he does quarterly

inspections of the premises, which includes checking on the condition of the sidewalk.

The most recent inspection before the accident would have been in the last quarter of

2012.

[15] He was shown the photograph of the brick border at the corner of the flower bed. He

then testified as follows:

Q. My question about the photograph itself was, does that condition of that brick

represent something that would require repair?

A. Uh, it looks like it’s ajar.

Q. And so what would have to be done with that, if anything?

A. Nothing. It doesn’t appear to be a hazard.

[16] He was asked whether, if you were to lift up the brick that was described as being “ajar”,

would it come right off, or is it fastened in any way? His response was that he didn’t

know. He said that a lot of retaining wall bricks have a lip on them that holds them in

place, but he couldn’t verify whether these bricks had those or not.

[17] At that point, counsel for the plaintiff asked for an undertaking to confirm how the bricks

are held in place. The response from defence counsel was that plaintiff’s counsel was

“welcome to have a look at the construction”. That invitation was never acted upon. No-

one attended the site on behalf of the plaintiff to inspect the condition of the brick border,

or for any other purpose. Accordingly, the only evidence we have as to the condition of

the brick border is the photograph, the evidence of the plaintiff, and the evidence of Mr.

Reaume.

4

[18] I now turn to the photograph. It is a close-up view of the corner of the north-west corner

of the flower bed. The corner brick is slightly raised where it meets the next brick to the

south, and there is a gap between those two bricks. Significantly, however, the north face

of the brick is exactly in line with the face of the brick immediately to the east of it, and

the west face of the brick is in line with the face of the brick immediately to the south of

it. In other words, the brick does not protrude into the walkway in any way. I find as a

fact that it does not represent a tripping hazard to someone walking along the sidewalk.

[19] Pursuant to s. 3 of the Occupier’s Liability Act, R.S.O. 1990 c. O.2, the defendant owes a

duty to take such care as in all the circumstances of the case is reasonable to see that

persons entering on the premises, and the property brought on the premises by those

persons, are reasonably safe while on the premises.

[20] In order to succeed, the plaintiff must prove, on a balance of probabilities, two things:

a) That the defendant breached that duty of care; and,

b) That the acts or omissions of the defendant which constituted the breach actually

caused the plaintiff’s loss.

[21] The defendant is not the insurer of the plaintiff. The mere fact that the plaintiff was

injured does not, in and of itself, mean that the defendant is liable. A visitor may be

injured without fault on the occupier’s part: see Leweke v Saanich School District No.

63, 2005 BCCA 304 at para. 13

[22] Does the fact that the brick is apparently “ajar” constitute a breach of the duty of care? In

my view, it does not. The defendant is required to take all such care that is reasonable to

ensure that the plaintiff is reasonably safe. It is alleged that the brick was loose. On the

evidence, that has not been proven. While it appeared to be ajar, Mr. Reaume was unable

to say whether it was in fact loose, and nobody on behalf of the plaintiff bothered to

inspect the site to see whether it was or not.

[23] Even if it was loose, however, that would only constitute a breach of the defendant’s duty

if that represented an unreasonable risk to the safety of those entering on to the property.

A mere state of disrepair is not a breach of duty, unless the lack of repair gives rise to an

unreasonable risk to the safety of persons such as the plaintiff.

[24] It is clear from the photographic evidence, and I have found as a fact, that the brick did

not protrude into the walkway and did not represent a tripping hazard. The brick, in the

condition it was in, did not, therefore, represent an unreasonable risk to the safety of the

plaintiff. Accordingly, the defendant’s duty to take such care as in all the circumstances

of the case is reasonable to see that persons entering on the premises were reasonably

safe did not include a duty to repair the brick, because it was already reasonably safe in

the condition it was in.

5

[25] In terms of causation, and again assuming (without any proof) that the brick was loose,

there is no evidence that the plaintiff would not have fallen had the brick been cemented

into place. She tripped because she struck her toe on the corner of the brick. There is no

evidence that she would not have fallen had the brick she struck been firmly held in

place. Indeed, from a common sense perspective, one would think that a person would be

less likely to trip after striking their foot on something that was capable of moving and

giving way, rather than striking an immoveable object. To make the causation argument,

expert evidence would be required, which is entirely lacking.

[26] It is settled law that the plaintiff must “lead trump” on a motion for judgment or risk

losing. Here it would appear that the plaintiff has no trump to lead.

[27] If the state of apparent disrepair of the brick did not amount to a breach of the duty of

care, what other act or omission of the defendant did amount to such a breach? Counsel

for the plaintiff was pressed during argument to articulate precisely what the defendant

did or didn’t do that allowed an unreasonable risk of harm to exist on the property, which

caused the plaintiff to trip and fall.

[28] It was suggested that the brick border amounts to a “low brick wall” that, by its very

nature, is an unreasonable design and creates a hazard for users of the property. If a brick

border around a flower bed is an unreasonable and hazardous design, then there must be

many hundreds of thousands, or perhaps millions, of similarly hazardous borders

throughout the country. Once again, if the plaintiff wishes to pursue this argument, it

would have to be through expert evidence that establishes that there is something about

this particular “wall” that is inherently hazardous and falls below established design

standards, and which sets it apart from the similar flower bed borders that are ubiquitous

in this country.

[29] In this regard, I note from the photograph that the brick border appears to be about the

same height as a curb along the edge of a street or in a parking lot. Once again, if the

border is so low as to constitute an inherent hazard, then every curb in every town and

city in this country is also inherently hazardous. That simply cannot be.

[30] It was suggested that there was a duty to warn. But warn of what? I suppose that the

defendant could place a sign that said “Danger, flower bed ahead!”, but that is patently

unreasonable. A warning is only required to put others on notice that there is a risk of

danger that they need to be on the lookout for. Here, none exists, and therefore there is

no duty to warn. An occupier has no duty to warn of the ordinary risks arising out of the

exigencies of everyday life, such as the mere presence of stairs on a property: see

Leweke (supra) at para. 13.

[31] It was also suggested that the colouring of the brick was so similar to the colouring of the

sidewalk that it rendered the brick effectively invisible to the plaintiff. That theory is

answered by the photograph. It shows the brick border to be plainly visible, and readily

distinguishable from the adjacent sidewalk.

6

[32] Furthermore, this theory of liability fails on the issue of causation. There is no evidence

that the plaintiff failed to see the brick and tripped because the brick was of a similar

colour to the sidewalk. Rather, there is an explicit admission by the plaintiff that she

failed to see the brick and tripped over it because she was having problems with her

peripheral vision, and “just couldn’t see the flower bed”.

[33] This case is highly analogous to Porchak v. Pizza Pizza Ltd., 2016 ONSC 4551, save

only for the fact that the plaintiff based his case on ordinary negligence rather than on the

Occupier’s Liability Act. The plaintiff in that case worked at a Metro store in a plaza,

and went to Quiznos in the same plaza to buy his lunch. On the way back to the Metro

store, he walked by Pizza Pizza carrying a plastic cup of water in one hand and a cigarette

in the other. As he passed by Pizza Pizza, he stepped into a bike rack that was sitting on

the sidewalk, caught his foot in the bars, and fell.

[34] The action was dismissed on a motion for summary judgment. Rady J. found that there

was no evidence that the bike rack posed a hidden or unusual danger on the sidewalk. It

was there in plain view, the plaintiff knew it was there, and had passed by it frequently in

the past. In fact, he had passed by it on his way to lunch, and there was no suggestion it

had been moved in the meantime. The bike rack was not camouflaged in any way, nor

was there evidence of any state of disrepair that caused or contributed to the injury.

There was no evidence of an industry practice or standard regarding bike racks, nor of

any breach thereof.

[35] Similar comments can be made regarding the case at bar. There is nothing inherently

dangerous about a brick border around a flower bed. The plaintiff knew it was there, and

passed by it frequently. It was in plain view, and plainly visible. While there was some

evidence of disrepair in the allegation that the corner brick appeared to be ajar, there is no

evidence that this created an unreasonable risk of danger to the plaintiff, nor that such

state of disrepair, if it existed, caused or contributed to her injury.

[36] On the evidence, and in particular on the admissions of the plaintiff, it is clear that the

plaintiff caught her toe on the brick and tripped because she didn’t see the border due to

her problems with her peripheral vision. Alternatively, if problems with the plaintiff’s

vision did not cause her to fail to see the brick border, then she must not have been

keeping a proper lookout and watching where she was going. The brick border was there

in plain view to be seen, and she knew it was there. Either way, the fact that she ran into

it with her foot and tripped is no fault of the defendant.

[37] I find that the defendant did not breach its duty of care to the plaintiff, and that no

impugned act or omission of the defendant caused the plaintiff to trip and fall.

[38] This is a classic case where it is appropriate to grant summary judgment. In Hryniak v.

Maudlin, 2014 SCC 7, Karakatsanis J., speaking for the court, said the following, at para.

49:

7

There will be no genuine issue requiring a trial when the judge is able to reach a fair and

just determination on the merits on a motion for summary judgment. This will be the

case when the process (1) allows the judge to make the necessary findings of fact, (2)

allows the judge to apply the law to the facts, and (3) is a proportionate, more

expeditious and less expensive means to achieve a just result.

[39] That is the case here. The process allows me to make the necessary findings of fact,

without making use of the expanded powers under rules 20.04(2.1) and (2.2). I need to

make no findings of credibility because the evidence is not in conflict, and taking the

evidence at face value enables all necessary facts to be found. The process also allows me

to apply the law to the facts, since the legal questions to be answered are clear and the

answers to those questions are readily apparent when those facts are considered. Finally,

it is clear that this is the most expeditious and least expensive means to achieve a just

result. Having a trial would be an expensive and protracted means of arriving at the same

result, since the dismissal of the plaintiff’s claim would be, in my view, a foregone

conclusion.

[40] There is no genuine issue for trial on the threshold issue of liability. The plaintiff’s claim

is dismissed.

[41] With respect to costs, counsel for the defendant presented a costs outline claiming partial

indemnity costs for the motion of $5,545.30. This claim for costs is objectively

reasonable, and counsel for the plaintiff took no issue with it. Costs of the motion are

awarded to the defendant in that amount.

[42] However, since the order obtained on this motion dismisses the entire action, the

defendant is presumptively entitled to the costs of defending the action, separate and

apart from the costs incurred on this motion. Hopefully, counsel can come to an

agreement on those additional costs. If not, I will accept brief written submissions from

the defendant within 20 days, with the plaintiff’s response within 15 days thereafter, and

any reply within 10 days thereafter. Failing that, the parties will be deemed to have

resolved the issue of costs as between themselves.

“T. A. Heeney R.S.J.”

Regional Senior Justice T. A. Heeney

Date: September 15, 2016