IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20160415

Docket: S10489

Registry:
Campbell River

Between:

Cheryl Letain

Plaintiff

And

Quatsino Lodge
Ltd. also known as First Light Charters Ltd.,

Walter
Schoenfelder and Jean May Schoenfelder

Defendants

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

Introduction

[1]            
The plaintiff, Cheryl Letain, suffered a broken ankle as a result of a
fall on an articulated ramp leading to the dock of a fishing lodge owned and
operated by the defendants: Quatsino Lodge Ltd., Walter Schoenfelder and Jean
May Schoenfelder. Ms. Letain claims that the defendants are liable for damages
based on the condition of the articulated ramp pursuant to the Occupiers
Liability Act, R.S.B.C. 1996, c. 337.

[2]            
Ms. Letain believes that her fall was caused by physical contact with a
dog, “Tyee”, owned by Mr. and Mrs. Schoenfelder.

[3]            
The defendants dispute the claims of the plaintiff and deny liability. By
agreement this action was divided so that only the question of liability was
before this Court.

Issues

[4]            
The two principal issues in this case are:

(a)      the
condition of the articulated ramp and whether the condition of the ramp caused
or contributed to the injury suffered by the plaintiff so as to attract
liability under the Occupiers Liability Act; and

(b)      whether
the defendants are responsible for the alleged physical contact between the
dog, Tyee, and the plaintiff, which the plaintiff alleges caused her to fall and
resulted in an ankle injury.

The Setting

[5]            
Situated on Vancouver Island in Quatsino Sound, the Quatsino Fishing
Lodge is located some 23 kilometers by water from Coal Harbour, B.C. Coal
Harbour has road access from the east coast of Vancouver Island and is an embarkation
point for guests to board a water taxi to the lodge. The lodge consists of a
two-story main building with the ground floor including a reception desk,
kitchen and eating area, as well as a sitting room. Above, on the second floor,
there are accommodation rooms for guests. The lodge has an outside seating area
and a board walk that leads across a grass covered field towards the lodge’s
fishing dock. At the end of the boardwalk closest to the water and fishing
dock, there is a short bridge that spans a space between the edge of the field
and the footings that anchor the articulated ramp above the fishing dock. The
bridge has wooden hand rails on both sides and a wooden walking surface. None
of the significant events at issue in this case took place on the boardwalk or
on the bridge.

[6]            
Once one leaves the bridge heading to the fishing dock, there is a ramp;
approximately four feet wide with wooden handrails on both sides and a metal
mesh walking surface. The walking surface has small metal tines sticking
upwards to create traction. The ramp is attached well above the highest tide
line to the footings on the shore end with hinged fasteners which allow the
ramp to move up and down with the tide. There is a large wooden-surfaced floating
dock at the bottom of the ramp, which rests on a roller that allows the bottom
of the ramp to change position with the rising and falling of the tide. Fishing
boats are moored on the sides of the floating dock. There is also a fish
processing building on floats moored on one side of the floating dock.

[7]            
There is limited lighting on the boardwalk, bridge and ramp. Some light
is provided by the front of the fish processing building and a light is
intended to be directed at the ramp from the side of the fish processing
building. Mr. Schoenfelder testified initially that there were two bulbs in the
motion sensing fixture on the side of the fish processing building, one which
was pointed towards the ramp. After a review of contemporary photographs shown
to Mr. Schoenfelder in cross-examination, he agreed the bulb pointed at the
ramp was missing at the time of the accident.

[8]            
One of the features of the lodge is a dog, Tyee; a black Labrador
retriever, who, in August of 2010, was two years old. He was allowed to roam
freely on the property, having been trained by the Schoenfelders to greet
guests on arrival and to shield guests from wild animals, including bears and
cougars, that occasionally wander into the vicinity of the lodge. Tyee was
trained not to jump up or onto guests and to accept commands from his owners
and guests. Of Tyee, Mr. Schoenfelder said that he had had a number of dogs
over the years and Tyee was the brightest and took to training more easily than
any of his prior dogs. Tyee had come to live at the lodge near the end of the
2009 season and through the 2010 season without any incident while performing
his protective functions with skill. There was no reported incident of Tyee
negatively interacting with any guest at the lodge prior to the present complaint
by the plaintiff.

The Accident

[9]            
The plaintiff and her husband had been guests at Quatsino Lodge in 2009
for a fishing trip and the plaintiff was familiar with the lodge and the ramp. She
had used the boardwalk, bridge and ramp several times each day during her
fishing trip in 2009.

[10]        
On August 22, 2010, the plaintiff, her husband and a guest, Gary Russell,
arrived at the lodge in a fishing boat owned by the Letains. They brought with
them their dog, Radar. All stayed in the lodge overnight. There was some
interaction between the two dogs in the afternoon on the field outside the
lodge but the interaction did not last long as Radar seemed uninterested. Eventually
he was taken to his owner’s guest accommodations.

[11]        
The next morning, in keeping with lodge practice, Mr. Schoenfelder
knocked on the doors of all of the guest rooms announcing that fishing would
begin shortly. Mr. Schoenfelder gave evidence that fishing boats had to be
warmed up on days when there was heavy dew to clear windscreens. He also
testified that fishing boats do not leave the dock until there is sufficient
ambient light to allow the operators to see ocean surface conditions adequately
for safe operation.

[12]        
After Mr. Schoenfelder’s announcement, guests awoke and prepared for the
day’s fishing, obtaining a brief breakfast in the lodge kitchen and filling
coffee thermoses to take along with them.

[13]        
The Letains intended to take Radar out in the fishing boat with them,
and the plaintiff left the lodge with Radar on a leash and walked along to the
boardwalk. She stopped walking and released Radar to relieve himself on the
grassy field adjacent to the lodge and boardwalk. Tyee began to try to play
with Radar; however, Ms. Letain called Radar and then put him on a short
leash, and began to head onto the ramp. In addition to having the leash looped
in her left hand, she was also carrying in her left hand a shopping bag containing
Radar’s food bowl, some food for Radar and a blanket. She testified that Tyee
was also on the ramp trying to interact with Radar. As she continued down the
ramp, Ms. Letain testified her leg was struck from behind and she fell onto the
surface of the ramp. Her ankle was broken in that fall. The matter of the exact
cause of Ms. Letain’s fall will be discussed further below.

[14]        
A number of persons went to her aide, including Mr. Letain and Mr. Russell,
both first responders in the health system. Mr. Schoenfelder and his daughter,
Samantha Schoenfelder, obtained wood and bandages to create and apply a splint
to Ms. Letain’s ankle. Ms. Letain was moved to a chair and placed into a
fishing boat that was then driven to Coal Harbour, where arrangements had been
made to meet an ambulance.

Standard of Care

[15]        
The plaintiff did not submit any expert report on the condition of the
articulated ramp at Quatsino Lodge. The plaintiff relied upon submissions that
the ramp was inherently dangerous, that the ramp was wet from dew, that the
ramp was poorly lit and that the ramp was steep.

[16]        
A number of comments are necessary. There is considerable evidence about
the ramp. The ramp was designed to be negotiated when wet, which is a condition
often encountered on the B.C. coast. Counsel for the plaintiff read into the
record at trial, for the truth of its contents, question and answer 222 from
the examination for discovery of Mr. Schoenfelder, as follows:

Q:        My
experience with ramps is they get slimy and slippery. Does this ramp have the
same problem?

A:         No, because it’s
metal.

[17]        
The plaintiff attempted to file photographs of other ramps, but due to
the very late timing of that attempt, the Court declined to permit the proffered
photographs to be admitted into evidence at trial. At page 10 of the
plaintiff’s written submissions the plaintiff repeated its trial submission
relating to those photographs; this is neither argument nor appropriate in the
submissions made by the plaintiff. At page 15 of the plaintiff’s submissions,
the plaintiff referred to “other ramps in the area”. This reference is
unsupported by any evidence called by the plaintiff. Mr. Schoenfelder gave
evidence that, except for the government dock at Coal Harbour, the dock at
Quatsino Lodge was the best in the area.

[18]        
Exhibit 7 is a photograph of the ramp, which the defendants testified was
taken at a tide level that was the same as the tide level on the day of the
accident. The plaintiff did not lead any specific evidence concerning the angle
of the ramp at the time of the accident. The plaintiff submitted that the
photograph filed in evidence as Exhibit 7 “may not be an exact representation”,
but did not explain or further particularize that submission. It is a
photograph of considerable clarity. Upon a review of Exhibit 7, the articulated
ramp is clearly at a downward angle that does not appear extreme or especially
steep.

[19]        
The statutory duty of care imposed on occupiers is set out in s. 3 of
the Occupiers 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.

[20]        
The parties agreed that the law on the standard of care in British
Columbia in the context of the Occupiers Liability Act and the law of negligence
was settled in Agar v. Weber, 2014 BCCA 297 at paras. 30-32, leave to
appeal ref’d [2014] S.C.C.A. No. 423:

[30]      The standard of care under the OLA and at
common law for negligence is the same: it is to protect others from an
objectively unreasonable risk of harm. Whether a risk is reasonable or
unreasonable is a question of fact.

[31]      Under the statutory test for occupiers liability,
the Court in Waldick v. Malcolm, [1991] 2 S.C.R. 456 described the
standard of care at 472:

…the statutory duty on occupiers is
framed quite generally, as indeed it must be. That duty is to take
reasonable care in the circumstances to make the premises safe. That duty
does not change but the factors which are relevant to an assessment of what
constitutes reasonable care will necessarily be very specific to each fact
situation — thus the proviso “such care as in all the circumstances of the
case is reasonable”. [Emphasis in original.]

[32]      Similarly, in Ryan v. Victoria (City), the
Court described the standard of care for negligence as follows:

[28]      Conduct is negligent if it creates an objectively
unreasonable risk of harm. To avoid liability, a person must exercise the standard
of care that would be expected of an ordinary, reasonable and prudent person in
the same circumstances. The measure of what is reasonable depends on the facts
of each case, including the likelihood of a known or foreseeable harm, the
gravity of the harm, and the burden or cost which would be incurred to prevent
the injury. In addition, one may look to external indicators of reasonable
conduct, such as custom, industry practice, and statutory or regulatory
standards.

[21]        
A summary of the general law in this area was also set out in Wickham
v. Cineplex Inc., 2014 BCSC 850 at paras. 29-31:

[29]      The general principles pertaining to the OLA
were described in by Justice Gray in Fulber v. Browns Social House Ltd.,
2013 BCSC 1760 at para. 28:

A useful summary of the law is set out in Wilde v. The
Cambie Malone Corporation, 2008 BCSC 704. I accept Ms. McCullagh’s summary
of that, and I am just going to read her summary of some of the principles
stated in the Wilde case:

(a) The goals of the Occupiers
Liability Act are to promote positive action on the part of occupiers to
make their premises reasonably safe.

(b) The duty imposed by the Act is to take reasonable
care in the circumstances to make the premises safe. The duty does not require
occupiers to ensure that persons using the premises will be absolutely safe.

(c) The care that must be taken by an occupier differs
according to the nature and use of the premises.

(d) The onus is on the plaintiff to prove on a balance of
probabilities that the defendant breached this duty of care. The fact of injury
does not create a presumption of negligence. The plaintiff must be able to
point to some act or failure on the part of the defendant which resulted in the
injury.

(e) This duty of care does not extend so far as to require
the defendant to remove every possibility of danger. The test is one of
reasonableness, not perfection.

[30]      The fact that the burden of proof is on the
plaintiff and there is no presumption of negligence when a person is injured on
premises was expressed in Foley v. Imperial Oil Ltd., 2011 BCCA 262
where Smith J.A. said at para. 30:

…The burden of proof in establishing liability under the Act
was described in Kayser v. Park Royal Shopping Centre Limited (1995),
16 B.C.L.R. (3d) 330 (C.A.) as follows:

[13] The onus of proof on a plaintiff to prove the liability
of a defendant on a balance of probabilities in a standard negligence action
also applies in cases arising under the Occupiers Liability Act. As Wood
J.A. held in Bauman v. Stein (1991), 78 D.L.R. (4th) 118 (B.C.C.A.) at
127:

Section 3 of the Occupiers Liability Act does not
create a presumption of negligence against “the occupier of the premises”
whenever a person is injured on the premises. A plaintiff who invokes that
section must still be able to point to some act (or some failure to act) on the
part of the occupier which caused the injury complained of before liability can
be established.

[31]      There was no specific
evidence about the normal maintenance or design of medians adjacent to parking
spaces or the usual standard of care for medians that are used in commercial
parking lots. I received some evidence of the fact that there had been no
previous complaints with this median and I was shown a photograph of a median
at another mall in Vancouver. I recognize that in considering whether the
defendant used reasonable care to ensure the plaintiff was reasonably safe I
can consider whether there were other slip and falls. One factor to consider is
that many others had passed this way without incident: see Cahoon v. Wendy’s
Restaurant of Canada Inc., 2000 BCSC 629 at para. 16; Scriven v.
Crescent (Pacific No. 240) Branch of The Royal Canadian Legion, [1985]
B.C.J. No. 84 at para. 5 (S.C.); and Crerar v. Dover, [1984] 3 W.W.R.
236 at paras. 22-27 (B.C.S.C.), aff’d [1986] 2 W.W.R. 562 (B.C.C.A.).

[22]        
Not only must the plaintiff prove that the defendants created an
unreasonable risk of harm, the plaintiff must also show on a balance of
probabilities that "but for" the negligent conduct her injury would
not have occurred: see Resurfice Corp. v. Hanke, 2007 SCC 7; Clements
v. Clements, 2012 SCC 32. The “but for” test requires that the defendants’
negligence was necessary to bring about the injury, in the sense that without
the negligence the injury would not have occurred: Clements at para. 8.
If the plaintiff fails to establish this on a balance of probabilities, her
action against the defendants fails.

[23]        
The plaintiff submitted that based on the evidence of four witnesses who
described some kind of slip on the ramp, none of which created an injury, the
ramp was inherently dangerous. This submission cannot be given effect because
it ignores the evidence that since those incidents, the ramp was renovated and
improved under the direction of Mr. Schoenfelder in 2003-2004, with galvanized
marine grade steel decking with  teak strips at right angles to the direction
of travel to improve traction. Mr. Schoenfelder also testified that based on
his long experience with fishing and fishing lodges in the Quatsino area, there
is no articulating ramp better than the ramp at Quatsino Lodge. This evidence
was not challenged. Mr. Schoenfelder also testified that he had never had
a complaint from a guest or employee concerning the safety or functionality of
the ramp; and perhaps more importantly, that hundreds of lodge guests had used
the ramp without incident over the years since it was renovated.

[27]    Ms. Letain had no problems or concerns with the
ramp, its lighting and the lack of warning signs around the ramp in 2009.
Neither she nor her husband nor her 77 year old father expressed any concern
using the ramp in 2009. She testified that she did not need a warning sign to
tell her about the condition of the ramp.

[24]        
There were no reports of slips or problems with the ramp on August 22,
2010, the day of arrival, and she used the ramp at least three times that day
without expressing any concerns about its condition.

[25]        
Ms. Letain did not testify that she slipped on the surface of the ramp
or that the angle of the ramp or its configuration was in any way the cause of
her fall. She also did not say that the lack of either ambient or electric
lighting contributed in any way to the fall. After her fall in 2010, the only
safety concern that Ms. Letain expressed was that Tyee was roaming off leash on
the lodge property, including on the ramp and dock.

[26]        
Based on the foregoing review of the evidence, I find that the plaintiff
has not proven that any particular hazard existed in or around the articulated
ramp at Quatsino Lodge or that “but for” any hazard the accident would not have
occurred. Further, I find that the plaintiff has failed to prove on a balance
of probabilities that any aspect of the ramp caused or contributed to the fall
which the plaintiff experienced in 2010.

Tyee – a cause or a bystander?

[27]        
Ms. Letain was the only person on the ramp at the time she sustained her
injury. She was accompanied by her dog, Radar, on a short leash looped around
her left wrist with the slack of the leash held in her left hand. Also looped
around her left wrist was a plastic shopping bag which contained the dog’s
bowl, food and a blanket. Ms. Letain was aware that Tyee was behind her on the
ramp. In chief, she testified that some distance above her on the ramp, she
could feel the two dogs jostling but she could not see the dogs behind her as
she was looking down the ramp. Her right leg got bumped, causing her to fall. She
looked back and she saw Tyee above her on the ramp on her right side while
Radar was on her left. From her description of what she observed after the
fall, it was apparent in giving her answer that Ms. Letain was speculating as
to the involvement of the dogs in her fall, at a time when she admitted that
she was going into shock, as noted by other witnesses. Ms. Letain testified
that she was 100% sure that Tyee bumped into her right leg from behind.

[28]        
Mr. Schoenfelder described his history with dogs and the need for a dog
to help protect staff and guests in a remote fishing lodge from wild animals,
including cougars and bears. Mr. Schoenfelder described in detail how Tyee was
chosen from a litter of nine puppies independently: first, by his son and
daughter-in-law; second, by his in-laws and, finally, by his wife. Tyee was
quickly trained to heel, sit, “stay” and to remain on a mat outside of the
lodge while guests were present, for instance during mealtimes. He was not
permitted to “crowd” guests or jump up on them when greeting guests at the dock
or at the lodge. Mr. and Mrs. Schoenfelder and their daughter, Samantha, each
testified about the role they individually took to train Tyee. He was also
trained to defecate in the bush away from the lodge. His other training
involved detecting and chasing away wild animals to protect the staff and guests
of the lodge, who may walk, from time to time, around the lodge in their
leisure time.

[29]        
Mr. Schoenfelder also testified that he had never seen or heard of Tyee
refusing to obey any command from a guest, including the command to “shoo”,
which Ms. Letain said she had given to Tyee as she entered the ramp prior to
her fall.

Assessment of Credibility

[30]        
Ms. Letain was the sole person on the articulated ramp at the lodge when
she fell. Her credibility is therefore fundamental to the proof on a balance of
probabilities of her claim involving the dog, Tyee.

[31]        
The factors to be considered when assessing credibility are well
established. They were summarized by Dillon J. in Bradshaw v. Stenner, 2010
BCSC 1398 at para. 186 [Bradshaw], aff’d 2012 BCCA 296, as
follows:

[186]    Credibility involves an
assessment of the trustworthiness of a witness’ testimony based upon the
veracity or sincerity of a witness and the accuracy of the evidence that the
witness provides (Raymond v. Bosanquet (Township) (1919), 59
S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination
of various factors such as the ability and opportunity to observe events, the
firmness of his memory, the ability to resist the influence of interest to
modify his recollection, whether the witness’ evidence harmonizes with
independent evidence that has been accepted, whether the witness changes his
testimony during direct and cross-examination, whether the witness’ testimony
seems unreasonable, impossible, or unlikely, whether a witness has a motive to
lie, and the demeanour of a witness generally (Wallace v. Davis, [1926]
31 O.W.N. 202 (Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152
(B.C.C.A.) [Farnya]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at
para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether
the evidence is consistent with the probabilities affecting the case as a whole
and shown to be in existence at the time (Farnya at para. 356).

[32]        
There were ongoing abject conflicts between the evidence given by
Ms. Letain during her examination for discovery on October 23, 2013, and
the evidence she gave at trial.

[33]        
For example, on November 25, 2015, in court, Ms. Letain testified she
had a conversation with her husband. In that conversation she expressed the
view to her husband that Tyee should not be running loose on the dock.
Mr. Gurney, the boat operator and fishing guide, is reported by Ms. Letain
to have overheard the conversation and said that Tyee was “a pain in the ass”.

[34]        
However, at question 176 of the examination for discovery, held on
October 23, 2013, the question asked of Ms. Letain was “Did you express to
anyone at the lodge, whether it was Walter or Jean [Schoenfelder] or any of the
employees that you knew that you were concerned about Tyee being off leash?”
The answer was “No”. Ms. Letain said that the answer was true when she gave it
on discovery but that, because she had reconsidered her testimony after the
discovery, she did not consider the evidence given on discovery to be true at
the trial. She testified that after the discovery she remembered the
conversation with her husband revealed in the transcript at question 176. She
also testified “I thought we might have had the conversation in the room”
before she left the room. That comment indicates that the conversation between
the Letains may have been in their guest room and not in a fishing boat at all.
In this regard, I find that Ms. Letain’s evidence on this point is a
reconstruction and is not reliable.

[35]        
Further, Mr. Gurney testified in chief when called by the defendants
that he did not have any conversation about Tyee with the Letains, and he did
not make the comment to the Letains that Tyee was “a pain in the ass”. He was
not challenged on cross-examination concerning that statement.

[36]        
After being confronted with that inconsistency, Ms. Letain was asked if
there were any other inaccuracies in the transcript for discovery. She
testified there were no other inaccuracies. Yet it was evident throughout her
cross-examination that there were a number of inconsistencies and inaccuracies.

[37]        
It was suggested that Ms. Letain never complained about Tyee’s behaviour
or any unsafe condition during her visits to the lodge in 2009, 2010 or 2011.
She disagreed with that statement in court. But at question 610 of her
examination for discovery, she was asked the same question and said it was
correct; she had not made a complaint. In an attempt to explain the
discrepancy, Ms. Letain said that the answer she gave at the examination for
discovery was true in 2013; that she was telling the truth at that time as she
remembered it. She then told the Court she had time to think about her evidence
and “go over [it] in my memory”, which is why her answer changed.

[38]        
Ms. Letain stated while she was testifying at discovery several years
had gone by since the accident and she “did not have time to remember things in
the discovery”. There was no complaint of any compulsion to answer questions in
a rushed manner reported from her discovery.

[39]        
As another example of inconsistency, Ms. Letain testified that she felt
pressured to descend the ramp to the fishing dock when she did because some of
the fishing boats had already left that morning. When confronted about the
truth of that statement, she acknowledged that she had no basis to believe that
fishing boats had left. The testimony of Mr. Schoenfelder and other fishing
guides was that fishing boats do not leave the dock in the dark as it is unsafe
to do so because the boat operators could not see hazards on the water if they
travelled in the dark.

[40]        
Ms. Letain testified that Tyee, prior to going down the ramp, was
harassing Radar by sniffing his backside, nipping at Radar’s ears, and jumping
on Radar’s back with all four of his paws and trying “to hump” Radar as she was
descending the ramp. Radar was a larger dog than Tyee. Radar’s head was
approximately 3.5 to four feet tall and his back was about 3 feet tall. Radar
weighed about 80 pounds. Tyee’s head was 2.5 feet tall and his back was about 2
feet tall. He weighed about 60 pounds. It defies common sense that a smaller
dog could jump with all four paws onto the back of a larger dog, this occurring
on an articulating ramp which was sloping. Tyee would in those circumstances
have been immediately beside the left leg of Ms. Letain, and not behind Ms.
Letain as she asserts.

[41]        
Ms. Letain was inconsistent when she spoke about the effects of drugs
taken to control pain. When confronted with the conflicts noted above regarding
her fall, Ms. Letain said “she was addled by drugs at discovery and much more
so now”. At the time of the discovery, Ms. Letain was asked:

149      Q: Okay how are you doing this morning?

 A: Oh, as good as I get.

150      Q: But you’re understanding my questions and you’re
– –?

 A: Oh, yes.

151      Q: You’re functioning mentally?

 A: This morning,
yes.

[42]        
Ms. Letain’s evidence concerning the effect of delay and medications on
her memory was also not consistent. She testified that medication was affecting
her at the examination for discovery. She also testified that since the
examination for discovery she has taken a lot more medication, which impairs
her memory. She was asked if her recollection was likely better at discovery
than at the date of trial. She answered that her recollection was better at
trial because she had had time to review matters in her memory and come to
different conclusions. This latter answer is completely inconsistent with the
foregoing answer where she testified that medication, which has increased in
dosage since the examination for discovery, actually impaired her memory.

[43]        
During her testimony in chief on November 25, 2015, Ms. Letain told the
court that Tyee was behind her and had bumped her right leg from behind,
causing her to fall on the ramp. She testified she was 100% sure of that fact.
When she was asked in cross-examination when she came to know that Tyee had
bumped her right leg from behind she testified it was “shortly after it
happened and I have always known that.”

[44]        
Again, Ms. Letain’s answers to questions during her examination for
discovery were in conflict with that trial testimony. On October 23, 2013, Ms.
Letain was asked the following questions and gave the following answers, which
she swore were true:

498      Q: What causes your fall, ma’am?

 A: The dogs jostling. They hit me when they’re
moving around.

499      Q: The two – – which dog hit you?

 A: That
I — it was from behind. I don’t know. It was one or both of them.

500      Q: Hit you from behind?

 A: Yeah.

[45]        
Counsel for the defendants in submissions also referred to questions 501
and 502 from the examination for discovery transcript. After reviewing the
digital audio recording of the trial, however, I have come to the conclusion
that counsel did not actually read those two questions to Ms. Letain, and she
did not provide any evidence concerning those questions. The submission
relating to those two questions and answers must therefore be ignored in these
reasons.

[46]        
That said, the inconsistency remains that Ms. Letain always put Radar on
her left side, where she could see Radar. In virtually the same breath, she
testified the dogs were jostling behind her and that caused her fall. If Radar
was jostling behind her with Tyee, she could not have seen Radar.

[47]        
As noted, Ms. Letain then testified that the dogs were jostling behind
her and she was 100% sure that if Tyee had not been there she would not have
fallen. I find this is a rather different answer than she was 100% sure that
Tyee had made contact with her leg. Ms. Letain’s answer about what caused her
fall is an assumption, not an observation of what actually happened.

[48]        
The Court appreciates that Ms. Letain has experienced considerable
physical pain following surgeries to her ankle, but in respect to the cause of
her fall on the ramp at Quatsino Lodge, she is not a reliable or credible
witness. Her evidence about her fall is internally and externally inconsistent.

[49]        
Fundamental facts which are reconsidered by a witness, after examination
for discovery, should be viewed with some care particularly where, as in the
case at bar, there is little other evidence to corroborate or support the
change. In the case of eye-witness testimony of identification, for instance,
such a change in testimony would be considered strong support for the
proposition that the witness was simply unreliable. This is because such a
witness was not recalling what actually happened but, in reconsideration,
creating a memory of what may have happened. Such evidence would rarely be
accepted as reliable without significant corroborating evidence.

[50]        
Applying the factors summarized by Dillon J. in Bradshaw to the
present case, I find the plaintiff to be a less than credible witness respect
to her recollection of the cause of her fall. Most significantly, there was a
complete conflict between her statements from the examination for discovery and
the testimony she gave at trial about the events of the fall. At discovery, the
plaintiff testified she did not know which of the two dogs contacted her leg. At
trial, she testified that Radar was on her left side and she was 100% sure it
was Tyee that contacted her right leg and caused her to fall. This change in
the evidence of Ms. Letain was over three years after the fall had occurred. During
those three years she was taking very strong medications to control pain. If
the testimony given on discovery is accepted as the truth then the claim
against the present defendants has little hope of success. While Ms. Letain was
not a deliberately dishonest witness, it was clearly in her financial interest
to change her testimony from what she said at the examination for discovery.

[51]        
There is the additional inconsistency between her testimony at discovery
that she was mentally in control and her trial testimony, where she stated that
she was addled by medication at the time of discovery. Her explanation for this
inconsistency was not convincing. I do not accept that she was having difficulty
at the discovery as she now alleges. Her credibility was further compromised by
the contradiction between her statement at trial that her memory was better at
the time of trial than it was during her discovery, notwithstanding her
statement that medication which she had been prescribed between discovery and
trial had impaired her memory.

[52]        
The consideration of discrepancies between statements
made prior to trial and at trial are useful in determining credibility and
reliability. In R. v. A.M., 2014 ONCA 769, the court stated:

12        Fourth, one of the most valuable means of assessing
witness credibility is to examine the consistency between what the witness said
in the witness box and what she has said on other occasions, whether or not
under oath: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p.
354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390.
Inconsistencies may emerge in a witness’ testimony at trial, or between their
trial testimony and statements previously given. Inconsistencies may also
emerge from things said differently at different times, or from omitting to
refer to certain events at one time while referring to them on other occasions.

13        Inconsistencies vary
in their nature and importance. Some are minor, others are not. Some concern
material issues, others peripheral subjects. Where an inconsistency involves
something material about which an honest witness is unlikely to be mistaken,
the inconsistency may demonstrate a carelessness with the truth about which the
trier of fact should be concerned: G. (M.), at p. 354.

[53]        
In R. v. C.(H.), 2009 ONCA 56, Watt J.A. explained the difference
between credibility and reliability, at para. 41:

[41]      Credibility and
reliability are different. Credibility has to do with a witness’s veracity,
reliability with the accuracy of the witness’s testimony. Accuracy engages
consideration of the witness’s ability to accurately

i) observe;

ii) recall; and

iii) recount

events in issue. Any witness whose evidence on an issue is
not credible cannot give reliable evidence on the same point. Credibility, on
the other hand, is not a proxy for reliability: a credible witness may give
unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526
(C.A.).

[54]        
While these cases discussed credibility and reliability in the criminal
context, in my view, the same applies in the civil context as well: see also F.H.
v. McDougall, 2008 SCC 53 at paras. 57-58.

[55]        
It is difficult to see how the ramp ahead of her, said by her to be
steep and wet, would not have been the focus of Ms. Letain’s attention. It is
doubtful that she would have been paying much attention to what two dogs were
doing where she did not expect contact from either of them. It is also
difficult to appreciate how, after her leg was contacted from behind, she would
not have explained what occurred accurately at the examination for discovery.

[56]        
The plaintiff in this action was required to prove the claims made on a
balance of probabilities. In this case, the plaintiff has alleged that the
defendants are liable in negligence for damages caused by allowing Tyee to be
on the Quatsino Lodge property off leash. That claim has not been proven on a
balance of probabilities.

[57]        
Because of the ultimate decision in this case, it is not necessary to
consider the question of contributory negligence by the plaintiff.

Conclusion

[58]        
In this case, the plaintiff advanced two claims: one, related to the
alleged inherent danger of an articulated ramp leading to a fishing dock; and
two, related to the behaviour of the dog, Tyee. I have found that the plaintiff
has failed to prove both of these claims for the foregoing reasons. The action
is therefore dismissed with costs on Scale “B”.

“Ball
J.”