IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100430

Docket:
08 3132

Registry: Victoria

Between:

Monica
Patricia Charlie

Plaintiff

And

Canada
Safeway Limited and John Doe

Defendants

Before: The Honourable Mr. Justice Parrett

Reasons for Judgment
In Chambers

INTRODUCTION

[1]            
In this action the plaintiff seeks to recover
damages for injuries sustained in a fall she suffered in the defendant’s retail
store in Duncan, B.C., on August 1, 2006.

[2]            
The action was set to proceed to trial on
October 26, 2009.  The present application, brought by the defendant Canada
Safeway Limited (“Safeway”) under Rule 18A, seeks to have the issue of
liability determined.  Both sides agree this matter is suitable for
determination under R. 18A.

BACKGROUND

[3]            
The plaintiff was shopping in the defendant
store which is located at 181 Island Highway in Duncan, British Columbia, on
August 1, 2006.  This grocery store was a large 48,000 square foot store with
which the plaintiff was very familiar.  She had shopped at this store at least
once a week and at times twice a week for as long as she could remember.  The
plaintiff went on to testify that on none of those occasions had she ever been
concerned for her safety.

[4]            
In her affidavit the plaintiff describes the
circumstances and her fall in paras. 7 to 9 as follows:

7.         While shopping in the defendant’s
store in the middle of the afternoon I was walking towards till number 6 where
my friend was waiting at the checkout.  I was looking towards my friend as I
was walking normally with a deli sample in one hand and holding my Safeway and
Airmiles card in the other.  At the time I was wearing flat-bottomed, foam
treaded shoes that were secured tightly to my feet.  I had worn these shoes
before and found them to be very stable with good traction.  I had never
slipped in them before.

8.         As I got close to till number 6
my feet suddenly slipped out from under me.  I fell heavily to my hands and
knees, primarily to on my right side. On my way to the floor I knocked over
some of the buckets of water with flowers in it displayed near the till. 
On the ground my clothing became soaked in water.  . . .

9.         At the time of the accident, in
front of till number 6 there were buckets of water with bouquets of cut flowers
displayed in them. It is apparent to me that water dripped off of the
flowers as they were removed from the buckets of water by customers, or that
one of the buckets leaked, resulting in the water on the floor that I slipped
on.  I saw nothing else in the area that I could have slipped on.

[Emphasis added.]

[5]            
In an unusual process agreed to by counsel, Ms.
Charlie exhibited to her affidavit extracts from her examination for
discovery.  In relation to these extracts in para. 13 of her affidavit, she testifies
that:

I agree that the
questions asked and the answers provided in the transcript are true and
accurate and I stand by them.

[6]            
I express no view in these reasons on this
unusual procedure agreed to by counsel.  Suffice it to say that it was a procedure
agreed to between them, and as a result these extracts by adoption are
effectively direct evidence given by the plaintiff.

[7]            
In these extracts the plaintiff gave, in part,
the following evidence:

[8]            
While this is the essence of the plaintiff’s
evidence on how the fall occurred there is other evidence on which the
plaintiff’s counsel relies.  These come from Steve Wadsworth, the Second
Assistant Manager of the store at the time, who was working that day and
attended on the plaintiff after the fall and while:

. . . she was
sitting on the ground by the display and checkout stand number 6.  She was
holding her right knee and appeared to be in some [pain]. Ms. Charlie
informed me that she had slipped on some water located near the display.

[9]            
Mr. Wadsworth then, according to his affidavit
(para. 6):

. . . had Ms.
Charlie fill out a portion of the Customer Injury Report (“Injury Report”)
detailing the time of the fall, which was approximately 3:40 pm, in addition to
her name, date of birth and address information.  I then filled out the
remainder of the Injury Report wherein I outlined how the fall occurred as
detailed by Ms. Charlie.

[10]        
The Injury Report is attached to Mr. Wadsworth’s
affidavit, and includes the statement attributed to Ms. Charlie:

. . . Customer said
she slipped on water on the floor in front of checkstand 6.

[11]        
In passing I note that the injury report is
dated in two locations and in apparently two different handwritings.  The first
is in the portion apparently completed by Ms. Charlie where the accident date
is given at the top of the page.  The second is at the bottom of the page
immediate above Mr. Wadsworth’s signature where the entry is the Date of This
Report.  In both cases, the date entered is July 1, 2006.

[12]        
The plaintiff, in her submissions, asserts that
evidence supporting the plaintiff’s evidence is found in the evidence of Derik
Sheers, the store Manager, given at his examination for discovery.  During the
course of that evidence Mr. Sheers testified that:

(a)        At times he had noticed water on
the floor around the buckets;

(b)        When
cut flowers were taken from the buckets water can drip to the floor;

(c)        The
amount of water could be quite significant;

(d)        If water was
on the floor it “would be slippery” and would create a hazard for customers.

[13]        
The evidence establishes that at the time of the
plaintiff’s fall the defendant had in place a system that:

(a)        Required
that sweeps be carried out at regular intervals and recorded and time stamped
in a log;

(b)        That
employees were trained and instructed to immediately clean any spill;

(c)        That
when cleaning any wet area employees are required to place a wet floor sign and
then mop the area;

(d)        A
regular management review of the sweep logs;

(e)        A system by
which on site management regularly walked the floor areas looking for, amongst
other things, compliance with policy and slipping hazards.

[14]        
The written policy established at the store
requires that the grocery area, including the area where this incident
occurred, to be inspected and swept “. . . approximately once every two hours”
and that the person performing it “promptly and accurately log each and every
sweep upon completion”.

[15]        
The written policy goes on to stipulate that
these are the minimum standards and that compliance with the policy is mandatory. 
It goes on to warn that failure to comply with the policy may result in
disciplinary action.

[16]        
The logs were produced for the day in question
and reveal that generally the inspection and sweeps were completed within an
hour or slightly more throughout the day with one exception. 

[17]        
The log shows that the last inspection and sweep
of the area where the plaintiff fell was completed and recorded at 15:31.  This
was nine minutes or less before the plaintiff fell which, according to the
Injury Report, took place at 3:40 p.m. or 15:40.  Ms. Charlie, in her evidence,
described receiving a telephone call on her cellular telephone moments after
the fall at 3:38 p.m. or 15:38.

THE LAW

[18]        
The duty of care on an occupier of premises to
persons on the premises is set out in s. 3 of the Occupiers Liability Act
(the “Act”), R.S.B.C. 1996, c. 337:

(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.

[19]        
The law is usefully summarized by Cohen J. in
his decision in Van Slee v. Canada Safeway Limited, 2008 BCSC 107, at
para. 7 ff.  In this decision the court began by quoting the decision of our
Court of Appeal in Coulson v. Canada Safeway Limited (1989), 32 B.C.L.R.
(2d) 212 at p. 214, where Hutcheon J.A. speaking for the court said:

In Rees v. B.C. Place, [1987]
B.C.W.L.D. 756, Vancouver No. C850843, 25^th November 1986 (not yet
reported), Mr. Justice Trainor summarized the obligation under s. 3 of the Occupiers
Liability Act in this way:

The proceedings
are brought under the Occupiers 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.

[20]        
The plaintiff in this case bears the onus of
proving her claim on a balance of probabilities and this burden applies in the
circumstances of a motion brought under R. 18A: Miura v. Miura (1992),
66 B.C.L.R. (2d) 345 at p. 352.

[21]        
The provisions of the Occupiers Liability Act
do not create a presumption of negligence and the fact that someone slips and
falls does not shift the onus of proof. 

[22]        
A person who brings an action under the Act
must still establish that their injury and loss was caused by some act (or
omission) on the part of the occupier: Bauman v. Stein (1991), 78 D.L.R.
(4^th) 118 at p. 127; Lansdowne v. United Church of Canada,
2000 BCSC 1604 at para. 22.

[23]        
The present case has marked similarities to that
before the court in Van Slee and that in Lansdowne as well.  At
paras. 26 to 29 of Van Slee, Cohen J. writes:

[26]      In the case at bar, the plaintiff
made a similar assertion.  In para. 10 of her affidavit the plaintiff deposed
“. . . given the nature of the weather on the day in question, I am certain that
I must have slipped on water that had accumulated in front of the customer
service desk”.  As defence counsel pointed out, like the plaintiff in Lansdowne,
supra, the plaintiff in the case at bar deposed, essentially, “what else
could it have been”?

[27]      However, unlike the plaintiff in Lansdowne,
supra, who could point to loose carpet threads, the plaintiff in the case
at bar did not see any accumulated water, has no other evidence about
accumulated water, nor any evidence that a hazard of any kind was present at
the time she slipped and fell.  Thus, I agree with defence counsel that
her case is not even as strong as that of the plaintiff in Lansdowne, supra.

[28]      Returning to Lansdowne, supra,
at para. 22 Scarth J. noted that the Court cannot presume negligence on the
part of an occupier.  At para. 23 his Lordship went on to state, as follows:

In my judgment, on
the evidence before the Court here the Court would have to resort to
speculation in order to find that Ms. Lansdowne’s fall was caused by the loose
threads on the bottom step of the stairs or some other defect in the carpeting
on those stairs.  This it must not do.  According to [the plaintiff’s friend],
when she saw the threads one week after the accident they were coming out over
the bottom step.  Ms. Lansdowne, however, does not know on which step she
tripped or where on the stairs she started falling.  At best both [the
plaintiff’s friend] and Ms. Lansdowne are able only to advance a theory that in
some way Ms. Lansdowne’s sandals got caught up on the loose threads and that as
a result she tripped and fell.

[29]      Scarth
J. went on to dismiss the action.

[24]        
In the case at bar the plaintiff’s evidence does
not and cannot establish the existence of water on the floor at the time she
slipped and fell.  The assumption that she slipped in water clearly arises from
the fact that her clothing was wet while she was on the floor after the display
was knocked over.  The evidence relied upon by the plaintiff’s counsel from Mr.
Wadsworth is based on the assumption the plaintiff made and that arising from
the evidence of Derik Sheers was both hypothetical and unrelated to the date of
the accident.  Mr. Sheers was not working on the day of the slip and fall and
had no first hand knowledge of the incident.  Neither establishes a breach by
the defendant.

[25]        
As was the case in Van Slee, the
plaintiff has not proven the existence of a condition or hazard which caused
her to slip and fall, nor, that the existence of any such condition existed as
a result of a breach of duty by the defendant.

[26]        
The evidence on this application establishes
that a reasonable system was in place to inspect, clean and identify problem
areas or conditions and that it was followed.

[27]        
The evidence establishes that the specific area
was examined and cleaned approximately nine minutes before the fall in
question.

[28]        
Regretfully, the plaintiff has not met the
burden of proof.  The action is dismissed.  Costs will follow that event.

“Parrett J.”