IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100224

Docket: S80003

Registry:
New Westminster

Between:

Elsie Hilda Schray

Plaintiff

And

Jim Pattison Industries Ltd. operating as
Save-On-Foods and the said

Jim Pattison Industries Ltd. and

Pinetree Village Holdings Inc.

Defendants

Before:
The Honourable Madam Justice E.A. Arnold-Bailey

Reasons for Judgment

Introduction

[1]          
The defendants, Jim Pattison Industries Ltd. and Jim Pattison Industries
Ltd. operating as Save-On-Foods, apply pursuant to Rule 18A of the Rules of
Court, B.C. Reg 221/90, for an order that this action be dismissed with
costs.  The plaintiff, Elsie Hilda Schray, is suing the defendants for alleged
negligence and breach of statutory duty relating to her slip and fall while in
the front-end department of the defendants’ Coquitlam Store No. 998 (“the Store”)
on February 19, 2002, as a result of which she claims to have suffered injury,
loss, and damage.

[2]          
The plaintiff’s claim is brought under the Occupier’s Liability Act,
R.S.B.C. 1996, c. 337 (“the Act”).  The defendants concede that they are
“occupiers” within the meaning of the Act.

[3]          
This action was commenced by a writ of summons filed May 6, 2003,
and a statement of claim was filed on June 6, 2003.  Examinations for
discovery of the plaintiff and a representative of the defendants took place on
June 22, 2004.

[4]          
On June 12, 2006, the defendants applied to have this action
dismissed pursuant to Rule 18A.  On July 24, 2006, a judge of this Court
allowed the defendants’ application and ordered that that the plaintiff’s
action be dismissed (Schray v. Jim Pattison Industries Ltd., 2006 BCSC
1120).  On October 18, 2007, the Court of Appeal overturned that decision on
the basis that the learned summary trial judge made a factual error and
directed the action be returned to this Court for trial (Schray v. Jim
Pattison Industries Ltd., 2007 BCCA 514).

[5]          
The defendants now bring a “stream-lined” version of the same application
that recognizes if there was water on the floor, and if that was the cause of
the plaintiff’s slip and fall, those matters are not appropriately resolved by
a summary trial application.  Thus, in the present application they ask the
Court to assume there was water on the floor of the Store and that it caused
the plaintiff to slip and fall.  However, the defendants submit they had in
place a reasonable system of inspection and maintenance (“maintenance system”) that
fully discharges the standard of care required of them under the Act. 
On that basis, they seek a dismissal of the plaintiff’s action.

[6]          
The plaintiff submits that the affidavit evidence filed on behalf of the
defendants is incomplete and contains a conflict as to what inspection of the
front-end department of the Store actually took place around 9:30 a.m. on
the morning in question.  This conflict arises from the two key affidavits of Store
employees:  Mr. Heggie, the manager, and Ms. Wright, whose job was to
regularly inspect and clean the floors.  The plaintiff submits that given the
contradictory evidence and the inference that may be drawn that Ms. Wright
did not follow the Store’s policy and procedure of logging her inspections
immediately after she performed them, in particular with regards to her alleged
9:30 a.m. inspection, it would be unjust to dismiss the plaintiff’s action
without permitting the conflicts in the evidence to be tested in a trial.

The Evidence

[7]          
The evidence discloses that the plaintiff fell very close to 9:30 a.m.
on February 19, 2002, in the front-end of the Store by a till, when her
left foot slipped and she fell to the floor, injuring her right shoulder.  Evidence
about the plaintiff’s fall and its approximate time is contained in a number of
affidavits.  The time of the fall is noted by Mr. Heggie on the Store’s
notice of accident form as 9:35 a.m.

[8]          
The following portions of Mr. Heggie’s affidavit briefly set out his
involvement with the plaintiff at the time, his observations about the area
where she fell, his practice in terms of looking out for hazards in the store,
and details about the “sweep log” and the practice and procedures in relation
to the inspections of the Store’s floors and their documentation:

4.         At or about 9:35 a.m., I attended to the Plaintiff
who had fallen in the Store. Attached as Exhibit “A” to this my Affidavit is a
true copy of the “Notice of Accident Form”, which consists of two pages, that I
completed upon or shortly after my attendance to the Plaintiff.

5.         As I note on the second page of the
above-mentioned Form marked as Exhibit A, I myself had walked by the area in
which the Plaintiff fell numerous times from 9am until the incident occurred.
It is my invariable practice to always be on the lookout for hazards to
customers [sic] safety, including items on the floor, whenever I am moving
about the store. From 9am until the incident occurred at or about 9:30 a.m.,
the floor was dry and clear of debris.

6.         As Store Manager,
after an incident such as this occurs, it is my responsibility to fill out the
above-noted Form, and attach any related documents. One of the documents I
attached to the Form above was the Sweep Log for the area in question. The
Sweep Log is a document that is completed and kept in the ordinary course of a
business day at the Store. I immediately obtained this document from its
storage location and made a copy of it to be attached to the Notice of Accident
form. I then put the Sweep Log back in its storage location. It is because of
this procedure that this form does not have any entries beyond 9:00 a.m.
Attached as Exhibit “B” to this my Affidavit is a true copy of that Sweep Log.
On the face of the document, I understand that Carole Wright had inspected the
area at 8:00 a.m., 8:30 a.m. and 9:00 a.m. It is mandatory, and in the ordinary
course of a business day at the Store, that a clerk, who is assigned the
responsibility to inspect the floor area of a particular area or department,
mark and record in the Sweep Log the findings and results of their half-hourly
inspections, immediately subsequent to such inspections, on a Sweep Log from
such as this.

[9]          
He wrote the following additional comment on the notice of accident
form:

-As a follow up to the first
page, till #15 is located near our front cash office which is our main mail
pickup and I myself had been by that area numerous times from 9 a.m. until the
incident occurred.  The floor was dry and clear of debris.

[10]       
Mr. Heggie attached to his affidavit the copy of the sweep log he
made shortly after the incident, which shows Ms. Wright having made
entries in relation to her “sweeps” at 8:00 a.m., 8:30 a.m. and 9:00 a.m.
that morning.  At the time when Mr. Heggie obtained the original sweep
log, copied it, and then replaced it, there was no entry for 9:30 a.m., as
might have been anticipated to be made by Ms. Wright; and no entries for
any subsequent times.

[11]       
Ms. Wright, employed as a general clerk in the Store, was charged
on that day with the responsibility to inspect and sweep or mop the front area
of the Store and to note the times she did so.  In her affidavit she deposed
the following:

3.         On February 19, 2002, at or about 9:30 a.m., I was
working nearby the location of the Plaintiff’s fall. On that day, it was one of
my responsibilities to inspect and sweep and/or mop the floor areas at the
front-end of the store and to make notations on our Sweep Log that the floor in
that area was, in fact, inspected and swept and/or mopped. At all times while
completing such an inspection, I normally carry either a broom or a mop in order
to attend to any debris or moisture I might discover. The “front-end” area of
the store includes the two north and south entrances, the floor space in
between those entrances, and the area of floor in and around the tills; the
“front-end” area for which I was responsible extends to the front of the
cosmetics/pharmacy department, the photo shop, and in and around the service
desk. The “front-end” of the store includes the area in which the Plaintiff
fell on February 19, 2002. […]

4.         On the morning in question, I performed
inspections and sweeps and/or mops of the front-end of the Store on a
half-hourly basis commencing at 8:00 a.m. and ending at approximately 4:00
p.m., the end of my shift. My name appears beside each of those times on the
Sweep Log, indicating that I performed inspections and sweeps at those times.
It is my understanding that the Plaintiff’s fall happened shortly after 9:30
a.m. in the morning. The entries beside my name in the Sweep Log indicate that
I performed an inspection of the area at 9:00 a.m., 9:30 a.m., and 10:00 a.m. I
did not discover any debris or moisture on the floor in the area that the
Plaintiff fell during those times. If I had found any sort of debris or
moisture, it would have been my custom to post a warning sign and then commence
a clean-up. […]

5.         If it was raining that day, and it is my
understanding that it was, I would be especially diligent in closely inspecting
or scrutinizing the store area to ensure that not only was there no debris or
pooling water, but that there was even no moisture on the floor.

6.         It is my understanding that the Plaintiff’s fall
occurred a short time after I had done my floor inspection and sweep and/or mop
at 9:30 a.m., which would have included the area around till number 15. It
is my understanding that till number 15 is the general area in which the
Plaintiff fell.

7.         To my knowledge and
recollection, the floor area where the Plaintiff fell was dry before, at the
time of the fall, and afterwards when I checked it again.

[12]       
The copy of the sweep log that she appended to her affidavit for the
same date shows entries by her every half hour from 8:00 a.m. through 4:00 p.m.
on February 19, 2002, including an entry for 9:30 a.m., the
approximate time of the plaintiff’s slip and fall, and therefore is “at odds”
with the same sweep log copied by Mr. Heggie.

[13]       
It is agreed before me, as was found by the judge in the earlier
application, the sweep log produced by Ms. Wright with entries subsequent to
9:00 a.m. is not admissible as a business record on behalf of the
defendants to establish that those sweeps were performed.  This is because the
sweep log copied by Mr. Heggie shortly after the plaintiff’s fall did not
include Ms. Wright’s entry for 9:30 a.m., or any for later that day.  As
such, the most reasonable inference to be drawn is that Ms. Wright filled
in the entry pertaining to the 9:30 sweep sometime later, and therefore the
sweep log as appended to her affidavit that shows her entries on the half hour
from 8:00 a.m. to 4:00 p.m. may not properly be regarded as
contemporaneous to the inspection and sweep she deposes to have performed at
9:30 a.m.

[14]       
Thus, the evidence of Ms. Wright’s inspections and sweeps of the
floor in the front-end department of the Store indicates her last recorded
sweep was at 9:00 a.m. on February 19, 2002.  In addition, she
deposes to having done “my floor inspection and sweep and/or mop at 9:30” of
the area that included where the plaintiff fell.

Defendants’
Position

[15]       
Counsel for the defendants reminds the Court that although it is the
defendants’ application, the onus remains on the plaintiff to prove her case on
a balance of probabilities.  He submits that the plaintiff is unable to
establish that the defendants failed to take reasonable care to ensure that the
Store’s premises were safe, and therefore, her action ought properly to be
dismissed.

Plaintiff’s
Position

[16]       
Counsel for the plaintiff agrees that the factual issues of whether
there was water on the floor of the Store, and if so, did it cause the
plaintiff to slip and fall, are not suitable for determination by way of a Rule 18A
application.  He concedes that the affidavits of Mr. Heggie and Ms.  Wright
show that the Store had a maintenance system in place, but submits the available
evidence does not show that the system was being followed on the day of the
accident.  If it had been, he submits that Ms. Wright’s notation as to her
9:30 a.m. inspection would have appeared on the sweep log when Mr. Heggie
collected and photocopied it, shortly after the time of the accident that he
noted as 9:35 a.m.  This is particularly so as it is reasonable to assume
that Mr. Heggie took some time to deal with the plaintiff before filling
in the form and going to get the sweep log to copy.

[17]       
As such, counsel for the plaintiff submits the evidence of Mr. Heggie
and Ms. Wright is not consistent, and it was this apparent contradiction
combined with the prior judge’s misapprehension of the requirement of the
maintenance program that sweeps be logged immediately, that gave rise to the
Court of Appeal finding that the judge had erred, thus ordering that matter be
returned to this Court for trial.  In the latter regard, he submits that the
comments of the Court of Appeal ought to be interpreted to preclude a further
dismissal of the plaintiff’s action by way of a summary judgment, although he
does not submit that the defendants now require leave of the court pursuant to
Rule 18A(12) to bring the present application.

Analysis
and Findings

The Reasons
of the Court of Appeal

[18]       
I will first address the submission on behalf of the plaintiff that when
the Court of Appeal directed this action be returned to this Court for trial,
the direction ought to be interpreted to preclude a further Rule 18A
application.

[19]       
The brief oral reasons of the Court of Appeal delivered by Mackenzie J.A.
(concurred in by Chaisson J.A. and Tysoe J.A.) are as follows:

[1] MACKENZIE, J.A.: This is an appeal from a
summary judgment under Rule 18A dismissing the appellant’s claim for damages
under the Occupiers Liability Act, and for negligence for personal
injuries suffered when she slipped and fell in a Save-On-Foods store operated
by the respondent, Jim Pattison Industries Ltd., on 19 February 2002.  I
have concluded for the reasons that follow that the appeal must be allowed and
the case returned to the Supreme Court for trial.  The facts are contested
and I intend to refer to the evidence only to the extent necessary to decide
the issue before us.

[2]        The 70 year old appellant, Elsie Hilda Schray,
fell in an area inside the store entrance referred to in the respondent’s
records as the front-end.  She alleges that the cause of her fall was
water on the floor and that the respondent failed to take reasonable care to
implement a reasonable inspection and maintenance system.  The summary
trial judge concluded that on the affidavit evidence and exhibits before her
that she could not determine whether there was water on the floor which caused
the appellant’s fall.  She decided, however, that if the appellant’s fall
was caused by water on the floor “[the appellant’s] claim cannot succeed in
light of the uncontradicted evidence as to the defendants’ reasonable system of
inspection and sweeping of the area where she fell.  Whether or not water
on the floor caused Ms. Schray’s fall, she fails to establish that the
defendants did not take reasonable care for her safety”.

[3] 
She amplified the reasons for her conclusions later in her reasons:

[35]      Mr. Taylor submits that
the evidence as a whole therefore discloses a conflict between Ms. Wright’s
affidavit evidence that she performed half-hourly sweeps throughout the day,
and the documentary evidence (through the Sweep Log appended to Mr. Heggie’s
affidavit running through to and including 9:00 a.m.) that by inference she did
not perform a sweep at 9:30 a.m.

[36]      I do not agree.  The
fact that a 9:30 a.m. sweep is not recorded on the admitted business record
does not in the circumstances undermine the reliability of Ms. Wright’s
affidavit evidence that she performed that sweep.  There is no evidence
to suggest that policy or customary practice required her to record the sweep
immediately after she had performed it; I note also that there has been no
application to cross-examine Ms. Wright or any other of the defendants’
witnesses in this or any other area.  Furthermore, the fact that the
admitted business record shows regular half-hourly sweeps through to 9:00 a.m.
provides support to Ms. Wright’s affidavit evidence that she was
performing regular sweeps throughout the day.

[underlining added]

[4]        Counsel are agreed that the underlined passage is
in error and that the policy did require that the entry in the sweep log be
made immediately after the sweep was performed.  The fact that the log as
copied by Mr. Heggie, the store manager, shortly after the fall and appended to
the accident report, did not record a 9:30 sweep may raise a doubt that a sweep
was performed before the accident at 9:30 as later recorded by the sweeper, Ms.
Wright.

[5]        While the summary trial judge did not rely
exclusively on the sweep log practice in reaching her decision that a sweep was
made at or about 9:30, it clearly influenced her conclusion that Ms. Wright
followed the practice laid down by the store’s maintenance system and that she
had not observed water on the floor in the course of a sweep within a few
minutes before the accident.  The evidence of other witnesses was
conflicting as to whether there was water on the floor at the time of the
accident and the summary trial judge concluded that the presence or absence of
water could not be determined on the affidavit evidence.

[6]        The summary trial judge also concluded that sweeps
as frequent as half-hourly were not required to meet the standard of a
reasonable inspection system.  However, half-hour sweeps were mandated by
the respondent’s system and the question whether it can rely on a less exacting
standard in the circumstances should be left for further consideration.

[7]        In my view, the
factual error undermines the conclusion of the summary trial judge to an extent
that the judgment cannot be sustained.  I would allow the appeal, direct
that the order dismissing the action be set aside, and the action be returned
to the Supreme Court for trial.

[20]       
I do not interpret these reasons to preclude the defendants bringing a
second Rule 18A on essentially the same basis, as a “trial” in this Court
properly includes a summary trial.  However, it is possible that this further
application may attract similar or other difficulties in terms of the
defendants satisfying the Court a dismissal of the plaintiff’s action is indeed
warranted.

The Applicable Law

[21]       
I agree that the prior summary trial judge set out the correct law in
the previous application at paras. 5-10, as follows:

[5]        The duties of an occupier are set out in s. 3 of
the Occupier’s Liability Act:

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.

[6]        The Act does not create a presumption of
negligence against an occupier whenever a person is injured on the
premises.  To establish liability, a plaintiff must point to “some act (or
some failure to act) on the part of the occupier which caused the [plaintiff’s]
injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

[7]        A
similar test applies under the common law. 

[8]        An occupier’s duty of care does not require the
occupier to remove every possibility of danger.  The test is one of
reasonableness, not perfection.  Thus, an occupier may avoid liability if
it establishes that it had in place a reasonable system of inspection:  Carlson
v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.). 

[9]        The plaintiff also bears the burden of proving
that the hazard in question caused the injury: Keraiff v. Grunerud
(1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

[10]      An occupier’s duty under the Act in relation
to slips and falls in grocery stores was described as follows by Trainor J. in Rees
v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with
approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32
B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

The proceedings are brought under
the Occupier’s Liability Act and that Act provides that an occupier has a duty
to take that care that is reasonable in all the circumstances of the case to
see that a person, in using the premises, will be reasonably safe.

The first requirement to satisfy
that obligation is to take the kind of steps that were taken by the Defendants
here to put into place a system to safeguard against dangerous substances being
allowed to remain on the surface of the concourse.  And then secondly
to be sure that there was compliance by the people who were carrying out that
responsibility with the system in place.

[Emphasis added.]

Application to the Present Case

[22]       
In relation to the first requirement referred to above, the law is clear
with regards to the adequacy of an occupier’s maintenance system.  What may be
held to be reasonable varies with the number of people likely to pass through a
particular area of a store or other place into which an occupier invites the
public and the hazards that may accrue in such an area.

[23]       
The defendants in the present case have a maintenance system in place in
the Store where the plaintiff slipped.  The case law suggests that a
maintenance system that requires regular inspections or sweeps of the floors, in
this case on the half hour during business hours, to safeguard shoppers from
slipping and falling due to the presence of water or other items, is likely to
be found to meet the standard of reasonable care.

[24]       
In support for a dismissal of the plaintiff’s action under Rule 18A,
counsel for the defendants relies in particular on Crudo v. Westfair Foods
Ltd., 2005 BCSC 320 [Crudo], and Gryschuk v. Westfair Foods Ltd.,
[1999] B.C.J. No. 302 (S.C.) [Gryschuk].

[25]       
In Crudo, the plaintiff fell near the entrance of the store on a
rainy day.  It was not established that water or debris on the floor caused her
fall.  The defendant had a maintenance system in place whereby they used mats
at the entrances, required staff and management to be on the lookout for
hazards in the store, and conducted inspections of the front-end of the store
on an hourly basis and of the beauty department every two hours.  Loo J.
found, at paras. 21-22 “that there was no water on the floor where Mrs. Crudo
slipped and fell” and even if there was water on the floor that “the defendant
met the requisite standard of care required of it under the Occupier’s
Liability Act”.

[26]       
In Gryschuk, the plaintiff slipped and fell on a wilted piece of
lettuce.  In addition to staff and management being on the lookout for spills,
the defendant’s regular maintenance system required staff to sweep or mop
certain areas of the store more prone to spillage on an hourly basis.  Other
departments in the store, including the dairy department in which the plaintiff
slipped and fell, were on a two hour sweep schedule.  After reviewing various
details related to the proximity of the dairy department to the produce
department, the actual times of the scheduled sweeps, the large size of the
store and its maintenance, as well as the potentially thousands of customers coming
through the store in any one day, Burnyeat J. found, at para. 18,
that “the general sweep of the entire floor of the store including the sweeping
of the dairy department at the scheduled times was reasonable in the
circumstances” and, at para. 31, that “a general sweep of the store
approximately every 2 – 3 hours is reasonable”.  He also concluded, at para. 31,
that “as long as it could be said that a slip did not occur more than 2 hours
and 15 minutes to 3 hours and 15 minutes after the last sweep in an area, it
cannot be said that the scheme which was in effect that day was unreasonable”. 
Lastly, Burnyeat J. found, at para. 36, based on the evidence before
him, “it was reasonable to infer that the maintenance schedule which was in
effect was being observed that day”.

[27]       
I also note if a maintenance and safety program is found to be
reasonable and adequate, a defendant may not logically be found negligent for
failing to provide a degree of supervision greater than what the program called
for: Carlson v. Canada Safeway Limited (1983), 47 B.C.L.R. 252 (C.A.) [Carlson]. 
In Carlson, the plaintiff slipped on a strawberry in the produce
department five minutes before the store closed.  The trial judge, in
apportioning liability equally between the parties, found the store’s
maintenance and safety program to be adequate, but also found the defendant
partially liable for the plaintiff’s fall because no employee was available in
the retail area at all times to watch for hazards.  The Court of Appeal allowed
the appeal and dismissed the action based on a finding, at 255, that it was
“inconsistent and illogical to find the defendant negligent for failing to
provide a degree of supervision greater than that called for by the programme”.

[28]       
In the present case, counsel for the defendants submits that given the
defendants in Crudo and Gryschuk were found to meet the requisite
standard of care with a schedule of inspections less frequent than those called
for by the present defendants’ maintenance system, by logical inference I ought
to find that the plaintiff will be unable to establish her case.

[29]       
I am of the view that the defendants, having a system that required
half-hourly sweeps, and then possibly on conflicting evidence from their
employees having not met their own standards, seek now to “rely on a less
exacting standard in the circumstances”, identified by the Court of Appeal at
para. 6 of their reasons in this matter.  That is an issue that must be
dealt with in the context of a full and proper examination of all relevant
circumstances at trial.  I do not regard that aspect to have been fully argued
before me in this application, nor could it have been given the conflicts in
the available evidence.

[30]       
I also note with respect to this submission that for an occupier to have
an adequate, or even an overly rigorous, maintenance program in place is only
the first part of the required analysis regarding standard of care referred by Trainor J.
in Rees v. B.C. Place, [1986] B.C.J. No. 2594 (S.C.) [Rees], cited
with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988),
32 B.C.L.R. (2d) 212 at 214 (C.A.).

[31]       
The second requirement referred to in Rees relates to whether
there was compliance by those charged with meeting the requirements of the
maintenance system.  It is the issue of compliance with the maintenance system
that gives rise to the apparent conflict in evidence in the present case.

[32]       
As was noted in the reasons of the Court of Appeal, the fact that the
sweep log does not record a 9:30 a.m. sweep by Ms. Wright may raise a
doubt that the sweep was in fact performed at 9:30, before the plaintiff’s fall,
as was required by the maintenance system in effect.  The potential inconsistency
between Ms. Wright’s testimony regarding the sweep she claims to have made
at 9:30 a.m. and the requirements of the maintenance system that included
she record her sweep “immediately,” in light of the sweep log copied by Mr. Heggie,
require a determination via the trial process.

[33]       
As well, I am of the view that the weight to be attached to the more
general statements in the affidavit of Mr. Heggie as to his frequent walks
through the area where the plaintiff fell and his “invariable practice to be on
the lookout for hazards to customers’ safety, including items on the floor”
also invite testing through the trial process.

[34]       
I do not regard this case to fall within the parameters of Anglo
Canadian Shipping Co. v. Pulp, Paper & Woodworkers of Canada (1988), 27
B.C.L.R (2d) 378 (C.A.) [Anglo] because it cannot be said that the
plaintiff as the party opposing the summary trial application has frustrated
the procedure contemplated by Rule 18A.  Given the particular history of
this matter and the reasons of the Court of Appeal, the plaintiff has had very
legitimate grounds upon which to resist the present application; grounds that
do not include delaying or failing to invoke pre-trial procedures to explore
relevant facts, as described at para. 20 of Anglo.

[35]       
Furthermore, given the history of this matter and the nature of the
evidentiary records upon which it is based, I am of the view that it would not
be appropriate to adjourn the application and direct cross-examination on
certain affidavits as is warranted in some cases and discussed in Inspiration
Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202
(C.A.).  There comes a point when such a process becomes more cumbersome than
the trial it is designed to replace and this is likely one such instance.

[36]       
In fact, a review of the cases provided on behalf of the defendants that
deal specifically with occupier’s liability issues, as opposed to those dealing
with procedural aspects of Rule 18A, indicate that all but one arise from
trials on the merits as opposed to summary judgments.  The exception, Lamont
v. Westfair Properties (Pacific) Ltd., 2000 BCSC 406, is factually
distinguishable in light of the finding by McEwan J. at para. 16 as
follows:

While I have not exhaustively recounted the evidence, I am
satisfied that the defendant has proved that throughout the store there were
systems in place to periodically sweep the floors of debris and spillages.  I
am further satisfied that in the relevant area of the store, the front end, the
defendant has established overlapping systems of inspection at the relevant
time and date.

[Emphasis added.]

The latter comment as it relates to compliance with a
maintenance system may not properly be made in the present case.

[37]       
Therefore, I decline to dismiss the plaintiff’s action against the
defendants in light of the particular factual circumstances of this application
viewed in the context of the applicable law.

Conclusion

[38]       
For these reasons the defendants’ application for a dismissal of the
action brought by the plaintiff is denied.  The plaintiff is entitled to costs
at Scale B payable by the defendants in any event of the cause.

“The
Honourable Madam Justice E.A. Arnold-Bailey”