IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100512

Docket:
S073695

Registry: Vancouver

Between:

Donald
Davis

Plaintiff

And

Kin’s
Farm Market (Lynn Valley) Ltd. and
666479 B.C. Ltd.

Defendants

And

Kin’s
Farm Market (Lynn Valley) Ltd. and
Marquise Facilities Corp.

Third Parties

Before: The Honourable Madam Justice Bruce

Reasons for Judgment

INTRODUCTION

[1]            
The plaintiff, Mr. Davis, has brought an
action against the defendants pursuant to the Occupiers Liability Act,
R.S.B.C. 1996, c. 337 [the Act] and, alternatively, in negligence,
for personal injuries caused by his fall at the Lynn Valley Mall in North
Vancouver, British Columbia on June 5, 2005. The defendant, 666479 B.C. Ltd. is
the owner of the Lynn Valley Mall (the “Owner”). The defendant Kin’s Farm
Market (“Kin’s Market”) is a tenant in the mall who operates a produce store.
Mr. Davis fell in the mall corridor adjacent to an area in which Kin’s Market
had fruit and vegetables displayed for sale in bins or on tables. There is no
dispute that Mr. Davis slipped and fell on a green grape.

[2]            
The defendants maintain they did not breach the
duty of care defined in the Act and were not otherwise negligent. While
the Owner concedes that it is an “occupier” of the common area of the mall
where the accident occurred, it argues that it took reasonable care to ensure
the premises were reasonably safe for persons entering the mall. Kin’s Market
argues that it is not an “occupier” within the meaning of the Act and,
further, did not otherwise breach a duty of care owed to Mr. Davis.

[3]            
The defendants have applied under Rule 18A of
the Rules of Court for dismissal of the plaintiff’s action. The parties
agree this is an appropriate case in which to determine liability under Rule
18A and have filed affidavits that contain the material facts, answers to
interrogatories, and the portions of the examination for discovery transcripts
relied upon.

[4]            
While the parties dispute the inferences to be
drawn from the material facts presented to the court and argue that some
evidence should be given more or less weight than other evidence, the court is
not generally required to make findings of credibility in this case. Nor is it apparent
that the parties differ on critical issues of fact that cannot be resolved
based upon the various evidentiary burdens imposed by the applicable legal
principles. Furthermore, this is a case involving a discreet issue of liability
with respect to the primary parties; the court is not being asked to assess
damages or determine any contingent liability of the third parties. Thus I find
this is an appropriate case for determination by summary trial.

RELEVANT LEGISLATION

[5]            
The relevant sections of the Act are as
follows:

Definitions

1    In this Act:

“occupier” means a
person who

(a)  is in
physical possession of premises, or

(b)  has
responsibility for, and control over, the condition of premises, the activities
conducted on those premises and the persons allowed to enter those premises,

and, for this
Act, there may be more than one occupier of the same premises;

…

Application of Act

2    Subject to section 3(4), and sections 4 and 9, this Act
determines the care that an occupier is required to show toward persons
entering on the premises in respect of dangers to them, or to their property on
the premises, or to the property on the premises of persons who have not
themselves entered on the premises, that are due to the state of the premises,
or to anything done or omitted to be done on the premises, and for which the
occupier is responsible by law.

Occupiers’ duty of care

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.

 (3)              Despite subsection (1), an occupier has no
duty of care to a person in respect of risks willingly assumed by that person
other than a duty not to

(a)                  create
a danger with intent to do harm to the person or damage to the person’s
property, or

(b)                  act
with reckless disregard to the safety of the person or the integrity of the
person’s property.

…

Independent contractors

5    (1)              Despite section 3 (1), if damage is caused by
the negligence of an independent contractor engaged by the occupier, the
occupier is not on that account liable under this Act if, in all the
circumstances,

(a)  the occupier
exercised reasonable care in the selection and supervision of the independent
contractor, and

(b)  it was
reasonable that the work that the independent contractor was engaged to do
should have been undertaken.

 (2)              Subsection (1) must not be construed as
restricting or excluding the liability, imposed by any other Act, of an
occupier for the negligence of the occupier’s independent contractor.

 (3)              If
there is damage under the circumstances set out in subsection (1), and
there is more than one occupier of the premises, each occupier is entitled to
rely on subsection (1).

FACTS

A.  Mr. Davis’ Fall

[6]            
On Sunday, June 5, 2005 at about 2:55 p.m.,
Mr. Davis, who was at the time 75 years old and a semi-retired insurance agent,
entered the Lynn Valley Mall and headed toward the Shoppers Drug Mart to mail a
letter for his wife. While walking past the fruit and vegetable display tables
located outside of Kin’s Market, he slipped and fell on a green grape. Mr.
Davis sustained injuries as a result of his fall. At the time of the fall he
was not in any hurry and was looking toward the Shoppers Drug Mart rather than
down at his feet. It was only after the fall that Mr. Davis saw several grapes
on the mall floor where he landed.

[7]            
The grapes were located about three to four feet
away from the display tables on the marble tiles that constitute the pedestrian
mall corridor. The display tables were situated on brick patterned tiles that
abut the outside of the Kin’s Market storefront. The brick tile area is four
feet in width. Pursuant to the lease agreement between Kin’s Market and the
Owner, the display tables must not encroach on the mall space any further than
the limits of the brick tiles. On the day of Mr. Davis’ accident, the display
tables were in fact beyond the brick tiles and were encroaching somewhat into
the marbled tiles forming the mall pedestrian corridor.

[8]            
Kin’s Market sells grapes every day on a
year-round basis at its Lynn Valley location and there is no distinction made
between red and green grapes. While a diagram created over a year after the
accident suggests that Kin’s Market was selling red grapes on June 5, 2005, and
makes no reference to green grapes, I find this document cannot be regarded as
conclusive evidence of the absence of such grapes for sale on the day in
question. The diagram does not purport to itemize all of the produce for sale
on June 5, 2005 as it illustrates several boxes that have no particular produce
identified. Further, the affidavit of Kin’s Market’s assistant store manager,
Mr. Ye, does not suggest that the market limits its grapes to the red variety
or that the store did so on June 5, 2005. Mr. Tung, who is Kin’s Market’s
operations manager, testified during his examination for discovery that a stock
employee advised him that the diagram represented generally what was being
displayed in the bins on June 5, 2005, based upon the usual practice. However,
I do not infer from this evidence that the diagram notations represent an
exhaustive or precise description of the produce offered for sale on the day of
the accident. Thus, on the balance of probabilities, I am satisfied that on
June 5, 2005, Kin’s Market offered green and red grapes for sale in its display
bins.

[9]            
There is also no evidence that the green grapes
seen on the marble floor of the mall came from any other source than Kin’s
Market. The Save-On-Foods store adjacent to the Kin’s Market did not have
outside display tables containing produce for sale. There are no other food
stores in the immediate vicinity. The grapes were found about three to four
feet from the bins displayed by Kin’s Market. I regard this as a short distance
generally, particularly given the propensity for round-shaped grapes to roll.
Based on this evidence I am satisfied on the balance of probabilities that the
grapes which caused Mr. Davis to fall originated from Kin’s Market.

[10]        
Mr. Davis’ fall was witnessed by the day porter
for the mall, Ms. Farenas. She is employed by Marquise Facilities Corporation
(“Marquise”). Marquise is an independent contractor responsible for all the
cleaning services for the mall. The Owner retained Marquise to provide these
services and does not directly employ any maintenance personnel. Ms. Farenas
noted the time of the accident as 2:55 p.m. and called security. Ms.
Janda, who was employed by Concord Security Corporation (“Concord Security”),
the independent contractor providing security services for the mall, attended
at the accident site immediately after receiving a call from Ms. Farenas. She
also noticed the green grapes where Mr. Davis fell. While Ms. Janda called for
an ambulance, Ms. Farenas alerted Mr. Ye to the accident.

[11]        
While waiting for the ambulance to arrive, Ms.
Janda alerted an employee of Kin’s Market to the grapes on the floor. He did
not seem concerned about the grapes and took no steps to remove them. As a
consequence, Ms. Janda picked the grapes up herself.

[12]        
Ms. Farenas deposed that she was “inspecting and
maintaining” the common areas outside of Kin’s Market between 1:50 p.m.
and 2:15 p.m. and saw no grapes on the marble tiles at that time.

B.  Maintenance Standards – Kin’s Market

[13]        
At the time of the accident, Kin’s Market had
cleaning and maintenance policies in place. Mr. Ye deposed that Kin’s Market
employees were responsible for cleaning the inside store areas and the areas
around the display tables on the brick tiles. Kin’s Market employees were not
responsible for cleaning the marble tiles in the mall corridors as those duties
were carried out by the mall cleaning staff. Whereas Kin’s Market employed an
hourly sweep log for the store’s interior spaces and the brick tile outside of
the store, there was no regular cleaning or sweeping regime for spills that may
occur beyond these areas. However, in practice, if an employee noticed a spill
or some dropped produce on the marble tiles adjacent to the display tables, he
or she would clean it up.

[14]        
To ensure the cleaning policies were regularly
enforced, Mr. Ye was directed to send the sweep logs to Kin’s Market’s head
office for inspection. Ms. Chu, Kin’s Market’s director of business, also
attended at the Lynn Valley Mall store twice per month to inspect the
cleanliness of the store and to ensure the employees were abiding by the
maintenance policies. If she noticed a problem, it would be brought to the
employees’ attention for rectification. The sweep log in evidence is dated May
23 to June 5, 2005. While there are a few gaps in the log, it generally
indicates that the employees were following the hourly sweep policy.

[15]        
There is evidence, however, that Kin’s Market
employees were not always vigilant with respect to their cleaning duties in the
display areas outside the store. Ms. Janda deposed that in 2005 and 2006 while
she was employed as a security guard at the mall she never saw a Kin’s Market
employee cleaning or sweeping the marble floor areas outside of the store or
the brick tiles where the display tables were located. Based on her
observations, the areas around the outside of Kin’s Market always had
substantially more debris than any other area of the mall. Every day she was on
shift, Ms. Janda would pick up debris outside the Kin’s Market. This was not
something she had to do for any other store in the mall.

[16]        
In addition, Ms. Janda deposed that several
hours after the ambulance took Mr. Davis away, she walked past Kin’s Market and
noticed more grapes on the marble tiles immediately outside the store. She
brought the grapes to the attention of the employee in charge of Kin’s Market
at that time and suggested that they be picked up before anyone else fell. When
this employee took no steps to clean up the grapes, Ms. Janda picked them up
herself.

[17]        
Knowing that fallen grapes and other fruit can
pose a serious hazard to people attending the mall, and in particular elderly
persons, Kin’s Market took no steps to reduce the potential hazard beyond the
sweep policy and reliance upon its employees to notice spills and clean them
up. In particular, Kin’s Market does not have non-slip mats around its display
tables or troughs to catch falling grapes and other small fruits and
vegetables.

C.  Maintenance Standards – Owner

[18]        
At the time of the accident, the Owner had no
cleaning or maintenance policies in place for the mall. Instead, the Owner
contracted out the maintenance services to Marquise backed up by Concord
Security. The arrangement between the Owner and Marquise required Marquise to
take responsibility for cleaning, maintaining and performing regular
inspections of all common areas in the mall, including the area where Mr. Davis
fell. Concord Security staff also provided a backup system in the form of
patrols throughout the mall to ensure the safety of the public.

[19]        
On the day of the accident the Owner had no
employees on duty. Marquise had one employee working that day, Ms. Farenas, who
was the sole day porter on duty for the entire mall. Ms. Janda was on duty for
Concord Security; however, it is not known if there were additional security
personnel on duty the day of the accident.

[20]        
Ms. Farenas’ evidence concerning her duties on
the day of the accident and generally as a day porter is contained in an
affidavit sworn December 15, 2008. The day porter has a large array of duties
during a shift, only one of which is to inspect the common areas for spills and
debris and clean them up. In addition to this duty, Ms. Farenas cleaned and
checked the washrooms for supplies; ensured that all the mall furniture, signs
and garbage containers were clean and in their correct locations; spot cleaned
the entrance door glass; removed and compacted all the garbage from the common
areas of the mall; cleaned all surfaces in the mall such as balustrades and
railings; dusted generally, including light fixtures; and washed down all the
elevator walls, stairwells, ledges and mirrored glass. Although Ms. Farenas’
affidavit appears to suggest that she swept the marble tiles in the common
areas on a regular basis, the maintenance log only refers to the mall entrances
as the subject of regular, hourly inspections. In addition, it is apparent that
while Ms. Farenas may have regularly inspected the mall entrances for debris
and spills, she did not sweep the floor. The night janitor swept and mopped the
entire floor each evening. Ms. Farenas’ cart contained cleaning supplies;
however, she did not carry with her a broom suitable for sweeping the entire
floor on these inspection rounds. She had only a small brush and scoop.

[21]        
Ms. Farenas’ affidavit is also quite vague as to
precisely what her duties included when she deposes that she “inspected and
maintained” the mall corridor near Kin’s Market on the afternoon of the
accident. From the term “inspection”, it may be inferred that she looked around
for debris and spills; however, what type of maintenance she performed is left
in doubt. In addition, there is no indication of how much time Ms. Farenas
spent on this duty. She can only recall that it was done sometime between 1:50 p.m.
and 2:10 p.m. Lastly, because her inspection of this area of the mall does
not appear to be a regular, hourly function recorded in the maintenance log,
one cannot assume that the work was carried out in accordance with a set
standard or fixed routine.

[22]        
Mr. Downie, the Owner’s operations manager,
deposed that the security guards employed by Concord Security patrol the common
areas of the mall to ensure the safety of the public. If a security officer saw
debris or a spill on the floor in the common area, he or she was to report it
to Marquise for maintenance.

D.  Relevant Lease Terms

[23]        
Section 3 of Schedule F attached to the lease
agreement between the Owner and Kin’s Market sets out the special conditions
imposed on the display of produce outside the store. These provisions are as
follows:

3.         The tenant shall be permitted to
merchandise outside the storefront of the Premises provided such merchandising
shall not protrude farther than four feet from the lease line and shall be done
utilizing portable carts which shall be no higher than four feet in height. The
Tenant shall not be permitted to include umbrellas or any other item which may
extend beyond four feet in height.

…

The Tenant shall
ensure that the area around the carts shall be kept clean and free of any and
all debris. The tenant shall indemnify the Landlord and save it harmless from
and against any and all loss, claims, actions, damages, liability, and expense
in connection with loss of life, personal injury, damage to property, or any
other loss or injury whatsoever occurring as a result of such merchandising.

ISSUES

1.       Was Kin’s Market an occupier as
defined in the Act? If Kin’s Market is not an occupier, did it otherwise
owe a duty of care to Mr. Davis in the circumstances?

2.       Did Kin’s Market meet the standard
of care under either the Act or at common law?

3.       Did the Owner meet the standard of
care under either the Act or at common law?

4.       Is there any contributory
negligence on the part of Mr. Davis?

ARGUMENT AND DISCUSSION

1.  Was Kin’s
Market an occupier as defined in the Act? If Kin’s Market is not an occupier,
did it otherwise owe a duty of care to Mr. Davis in the circumstances?

[24]        
Kin’s Market argues that it was not an
“occupier” within the meaning of the Act because it was not in physical
possession of the location where Mr. Davis fell and the grapes were located.
Only the Owner occupied that space. Further, Kin’s Market says it did not have
responsibility or control over the condition of the marble tiles. The lease
agreement with the Owner only required Kin’s Market to clean around the bins or
tables. Lastly, Kin’s Market argues that the Owner assumed responsibility for
inspecting and cleaning the marble tiles; Kin’s Market had no control over who
entered this area or what activities went on there.

[25]        
Mr. Davis argues that Kin’s Market was an
occupier within the meaning of the Act for several reasons. First, Kin’s
Market was obliged to clean the brick areas outside of its store and around the
bins. Mr. Ye also acknowledged an obligation to pick up debris from the bins
even if it was located on the marble tiles. Mr. Tung, an operations manager
employed by Kin’s Market’s head office, also acknowledged in his examination
for discovery an obligation to clean up any debris that fell off the bins and
landed in the mall corridor. Second, the right to place merchandise outside the
store under the lease agreement came with an obligation to ensure this area and
the surrounding spaces (in the mall corridor) were cleaned up. Third, on June
5, 2005, the bins displaying produce encroached on the marble tiles that were
part of the common areas of the mall and this was a regular occurrence. Fourth,
Kin’s Market had a measure of control and responsibility for the location of
the accident due to its obligation to keep these areas clean and safe for mall
patrons.

[26]        
I am satisfied that Kin’s Market was an occupier
within the meaning of the Act in regard to the location of the accident.
An occupier is defined by the Act as a person who is in physical
possession of premises or who has responsibility for and control over the
condition of the premises, the activities conducted on the premises, and the
persons allowed to enter the premises. The evidence is that Kin’s Market not
only was physically in possession of the brick tiles where the display tables
were located on the day of the accident, but it also had physical possession of
a portion of the marble tiles surrounding the tables. It is irrelevant that the
Owner also occupied the same premises as the Act specifically provides
that more than one person may occupy the same premises.

[27]        
Kin’s Market also had control over and
responsibility for the areas surrounding its merchandizing bins. The lease
agreement granted Kin’s Market the right to occupy the space outside its
storefront on condition that it took responsibility for cleaning the
surrounding spaces and ensuring the safety of the public.  Having chosen to
occupy this space on such conditions, I find there is little distinction
between the brick tiles where the bins were located and the marble tiles
immediately adjacent to the bins. Both areas were occupied by Kin’s Market for
the purpose of selling and displaying its products and there was no barrier or
line separating these areas.

[28]        
In the alternative, I find that in the
circumstances Kin’s Market owed a duty of care to Mr. Davis. Kin’s Market
extended its business location by establishing a merchandizing area in the mall
concourse outside its storefront. In doing so, Kin’s Market was aware or should
reasonably have been aware that fruit and vegetables that fell out of the bins
would be hazardous to passing mall patrons. Given the nature of such produce,
and grapes in particular, it is readily apparent that such debris would likely
roll past any notional line between the bricks, which Kin’s Market acknowledges
responsibility for, and the marble tiles immediately adjacent to the bricks.
Thus I am satisfied that Kin’s Market had a duty of care at common law to
ensure the areas around the bins, even if on the marble tiles, were reasonably
safe for passing customers.

2.  Did Kin’s
Market meet the standard of care under either the Act or at common law?

[29]        
Kin’s Market argues that it had a reasonable
system of inspection and maintenance in place on the date of the accident and
this system was followed by its employees. The test to be applied is one of
reasonableness and not perfection: Lee v. Loblaws Inc. (d.o.b. The Real
Canadian Superstore), [1997] B.C.J. No. 866 (S.C.) [Loblaws] at
para. 22. It says that the standard of care applicable to supermarkets is
a system of hourly store sweeps: Bjerregaard v. Westfair Foods Ltd. (c.o.b.
Extra Low Foods), 2003 BCSC 1755, [2003] B.C.J. No. 2648 [Bjerregaard]
and Hoffert v. Westfair Foods Ltd., [1996] B.C.J. No. 2863 (S.C.) [Hoffert].

[30]        
Kin’s Market maintains that because Ms. Farenas
swept the location of the accident on June 5, 2005 within one hour of Mr.
Davis’ fall, the court must find that the standard of care has been met
notwithstanding it was a Marquise employee who carried out the cleaning
functions. Provided the Owner has met the standard of care, Kin’s Market is not
liable for Mr. Davis’ injuries. The fact that on other days Kin’s Market may
not have followed its sweep system is irrelevant to the question of liability
on the day of the accident.

[31]        
Kin’s Market also argues that the standard of
care does not require the use of mats or troughs around the bins or any other
preventative safety measures: Hoffert and Bjerregaard at paras. 17-26.
Furthermore, there is no evidence that these devices would have prevented the
grapes from falling out of the bins. In these circumstances, Mr. Davis has
failed to prove a causal relationship between the failure to use mats or
troughs and his accident.

[32]        
Mr. Davis argues that Kin’s Market may have a
reasonable system in place for sweeping inside its store and the bricks outside
the store; however, it has no inspection and maintenance system for the areas
surrounding the bins. Cleaning these areas was left to chance because an
employee was only required to clean up a spill or debris if she or he noticed
it. Moreover, cleaning tasks did not take priority over serving a customer. Mr.
Davis also argues that the system in place for the store and the brick tiles is
not as described by Mr. Ye. In particular, Mr. Davis argues that Kin’s Market’s
employee manual does not require them to keep an hourly sweep log. The
employees are only required to use their powers of observation to “ensure the
floor is clean at all times”. Mr. Davis also argues that the system in place
was deficient because no particular employee was in charge of cleaning the
floor or the areas around the display tables. The failure to make a specific
employee directly responsible for cleaning designated areas was found to
constitute negligence by an occupier: Savoie v. K-Mart Canada Ltd.
(1990), 110 N.B.R. (2d) 388, [1990] N.B.J. No. 949 (Q.B.), aff’d (1991),
120 N.B.R. (2d) 171, [1991] N.B.J. No. 862 (C.A.). Mr. Davis argues that
without effective preventative measures set up to monitor and clean those areas
around the bins, Kin’s Market failed to meet the standard of reasonableness.

[33]        
In summary, Mr. Davis argues that Kin’s Market had
no system for inspecting the areas around the display tables and no system of
maintenance to address fruit falling out of the bins and rolling into the mall
corridor. Kin’s Market took no steps to minimize the risk of falling fruit
knowing that this was a hazard to passing customers, and, in particular, senior
citizens.

[34]        
Mr. Davis also argues that Kin’s Market failed
to follow its own maintenance system. The sweep log does not describe what the
employees actually did and the employee policy manual only requires them to
“clean as and when needed”. Mr. Davis argues that attempts to fill in these
gaps with recollections of what was done over three years ago, without any
notes, should be viewed with caution. In addition, Mr. Davis argues that Kin’s
Market employees both on the day of the accident and on other days were not
interested in cleaning up spills from the bins that affected the marble tile
areas even when such debris was brought to their attention. In this regard, Mr.
Davis relies upon Ms. Janda’s evidence. This evidence, argues Mr. Davis, tends
to show that a system of cleaning reliant upon employee observations alone does
not meet a standard of reasonableness: Anderson v. Hicks Enterprises Ltd.,
[1991] B.C.J. No. 3059 (S.C.) and Coulson v. Canada Safeway Ltd.
(1988), [1989] 2 W.W.R. 264, 32 B.C.L.R. (2d) 212 (C.A.) [Coulson].

[35]        
Section 3(1) of the Act places upon an
occupier a duty of care, “that in all the circumstances of the case is
reasonable to see that a person … on the premises … will be reasonably safe
in using the premises.” The duty of care applies in relation to the condition
of the premises, the activities carried on in the premises, and the conduct of
third parties. Where there is evidence of a prima facie breach of the Act,
an occupier may refute the breach by leading evidence that it had put into
place a reasonable system of inspection and maintenance that was being followed
at the time of the accident: Atkins v. Jim Pattison Industries Ltd.
(1998), 146 B.C.A.C. 83, 61 B.C.L.R. (3d) 183 [Atkins cited to
B.C.L.R.].

[36]        
In this case, I find that Mr. Davis has
established a prima facie breach of the duty of care imposed by the Act.
He slipped and fell on grapes that posed a serious hazard that Kin’s Market was
cognizant of and which, if permitted to remain on the floor, would constitute
negligence. The onus thus shifts to Kin’s Market to rebut this prima face
case by leading evidence that it had in place a reasonable scheme of
maintenance designed to minimize the chance of such hazards occurring and that
this scheme was in fact being followed at the relevant time. As Ryan J.A. says
in Atkins at para. 6:

[6]        …The
plaintiff established a prima facie case of negligence. The defendant
sought to refute it by showing that it had a reasonable scheme in place which
was being followed. It is not enough to demonstrate that there is a plan in
existence. The defendant must call some evidence to show that it was being
followed. To paraphrase Cumming J.A. in Kayser v. Park Royal Shopping
Centre Ltd. (1995), 16 B.C.L.R. (3d) 330 (B.C. C.A.), at p. 334, there must
be evidence from which it is reasonable to infer that the system in place for
ensuring that hazards are minimized was followed on the day in question. In
some cases the occupier may not be in a position to call evidence to show that
a particular person swept the floor (or did whatever the plan required) on the
particular day in question. It must at least establish that there was routine
compliance with the scheme from which the trial judge can infer observance on
the day in question.

[37]        
Turning to the first part of the test, I must
determine whether the system in place for inspection and maintenance of the
marble tiles adjacent to the bins or display tables was reasonable in the
circumstances. In my view, Kin’s Market did not implement a reasonable system
for monitoring spills from its bins that spread to the surrounding marble tile
areas. Kin’s Market’s storefront merchandizing display tables created a
potential hazard in that fruit falling from the bins could likely roll out onto
the mall corridor. The only means by which it ensured such spills or debris did
not become a hazard to mall patrons was the chance observation by employees on
duty. The routine hourly sweep policy did not apply to areas beyond the four
foot brick tiles and Mr. Ye did not supervise employees’ compliance with this
observation system by requiring them to log their inspection times or by any
other means. No specific employee was designated to keep an eye out for spills
and debris that might constitute a hazard. There were also no precautionary
measures used to minimize spills from the bins or the rolling of fruit onto
slippery tile surfaces.

[38]        
While the standard required to be met is not one
of perfection and Kin’s Market is not an insurer for its customers or the mall
patrons, I find that reliance on the powers of observation of busy employees
falls short of the standard of reasonableness in the circumstances. As the
authorities Kin’s Market relies upon clearly illustrate, merely tasking employees
with a duty to clean up spills that they notice is insufficient to satisfy the
duty of care imposed by s. 3(1) of the Act unless it is
supplemented by a system of routine inspection and sweeping. Further, the
failure to assign the job of monitoring spills from the bins in the mall
concourse further reduced the likelihood that such hazards would be noticed.
Additional precautionary measures, such as mats or troughs, are not necessary
to meet the standard of care if a routine maintenance policy is in place.
However, where an occupier is relying solely on the chance observation of
spills by its employees, such precautionary measures, by reducing the
likelihood of a spill, may tip the balance in favour of a reasonable standard
of care. The absence of precautionary measures in these circumstances leads to
a conclusion that the occupier failed to meet the standard of reasonableness.

[39]        
In addition to having no reasonable system of
inspection and maintenance in place to address spills from the bins and display
tables outside the store, I find that the employees were not complying with the
standards set by their employer on the day of the accident. Ms. Janda’s
evidence tends to show that the employees of Kin’s Market were lax in regard to
the cleanliness of the areas surrounding the bins. While evidence of a failure
to comply with the cleaning policies well prior to the date of the accident
cannot be used to infer such a failure on the date of the accident, in this
case there is evidence that just hours after Mr. Davis’ fall there were more
grapes on the marble tiles adjacent to the bins displayed by Kin’s Market. This
evidence suggests that the employees of Kin’s Market had rather poor powers of
observation. Moreover, the fact that on two occasions on June 5, 2005,
employees of Kin’s Market took no steps to clean up fallen grapes after the
spills were brought to their attention strongly suggests that they took no
responsibility for any produce that landed beyond the brick tiles.

[40]        
Lastly, Kin’s Market argues that even if it
failed to meet the standard of care owed as an occupier, the fact that the
Owner met this standard removes any responsibility they may have for the
accident. I am unable to accept this argument. Where there are two occupiers of
premises, each of them owes a duty of care to persons invited to enter the
premises. The fact that the Owner may rebut a prima facie breach of the Act
does not obviate the necessity for Kin’s Market to also satisfy the two pronged
test articulated by the Court of Appeal in Atkins. Permitting grapes to
remain on the floor as a hazard is negligent absent proof that a reasonable
system of maintenance and inspection was in place and being followed on the day
of the accident. Kin’s Market has failed to satisfy this onus and it is irrelevant
whether the Owner has led evidence that shows it met the required standard of
care.

3.  Did the Owner meet the standard of care under either
the Act or at common law?

[41]        
The Owner argues that the Act does not
create a presumption of negligence on the part of an occupier. Mr. Davis must
prove some act or failure to act that constitutes negligence: Bauman v.
Stein (1991), 78 D.L.R. (4th) 118 at 127, [1991] B.C.J. No. 548
(C.A.). Where the plaintiff establishes a prima facie breach of the Act,
the occupier may rebut this case with evidence that at the time of the accident
it had a reasonable system of cleaning and inspection in place and that it was
being followed: Bjerregaard at para. 14. The onus of showing the
system was not being followed rests with Mr. Davis. The Owner argues that an
hourly system of inspecting and sweeping the floors of the mall meets the test
of reasonableness in the circumstances: Bjerregaard and Loblaws.

[42]        
The Owner argues that by employing Marquise to
clean and inspect the mall for hazardous spills and debris, it had a reasonable
system in place in all of the circumstances. Marquise regularly inspected the
mall corridors throughout the day. Ms. Farenas inspected and maintained the area
in question approximately one hour before the accident occurred. She also
inspected the same area about 20 minutes after the accident.

[43]        
In addition, the Owner argues that it met the
standard of reasonable care by imposing on its tenant, Kin’s Market, an
obligation to clean the areas surrounding the display bins as a condition of
permitting merchandizing outside the store area. In this regard, the Owner
maintains that the sweep system in place at Kin’s Market was reasonable in all
of the circumstances.

[44]        
A third level of security for patron safety was
provided by Concord Security who was also hired by the Owner to carry out this
function. The security guards patrolled the area in question and were on site
on the date of the accident. The fact that Ms. Janda picked up the offending
grapes on the day in question is evidence that this backup system was working.

[45]        
Mr. Davis argues that Marquise was negligent in
the circumstances and that the Owner has failed to satisfy the requirements of
s. 5(1) of the Act which addresses the engagement of independent
contractors to work on the premises. In particular, Mr. Davis argues there is
no evidence that it was reasonable for the Owner to select Marquise for the
cleaning functions at the mall or that the Owner provided any supervision of
its contractor.

[46]        
Addressing the substance of the systems employed
by the independent contractors, Mr. Davis argues that Concord Security did not
acknowledge any obligation on the part of its security staff to watch for
tripping hazards and clean them up or report them. Mr. Davis argues that
Marquise’s cleaning practices were also deficient in a number of ways. First,
Marquise had only one day porter on duty to cover all the common areas of the
mall, including the administrative offices on the second floor, the washrooms
and the elevators. Second, Ms. Farenas’ job description contains so many duties
that it would be impossible for her to thoroughly inspect all areas of the mall
for hazardous debris. Third, her job description does not include inspecting
the floors and, in any event, the descriptors “inspect and maintain” are devoid
of any specific meaning. Fourth, Marquise does not employ anyone to sweep the
mall floors during the day shift. Only the night janitor mops the floor. Ms.
Farenas does not carry a dry mop in her mobile maintenance cart. Finally, Ms.
Farenas only regularly went to the Mall entrances to inspect for cleanliness;
it was not part of her regular routine to inspect around Kin’s Market and the
display tables.

[47]        
In summary, Mr. Davis argues that the Owner,
through its independent contractor Marquise, effectively had no system in place
for inspecting the concourse areas for spills and debris. The maintenance done
consisted of cleaning up debris noticed by the day porter in the course of her
substantial duties. She was not required to sweep any part of the concourse as
a preventive measure. These measures, argues Mr. Davis, were inadequate in the
circumstances.

[48]        
The preliminary issue is whether the Owner is
liable as an occupier despite the engagement of an independent contractor to
perform the cleaning and maintenance functions. Section 5(1) of the Act
provides that an occupier is not liable for the negligence of an independent
contractor engaged to perform work on the premises provided three conditions
are satisfied:

1.       The occupier exercised reasonable care in
selecting the independent contractor,

2.       The occupier exercised reasonable care in
supervising the independent contractor, and

3.       It
was reasonable that the work done by the independent contractor should have
been undertaken.

[49]        
Although the language of condition 3 is somewhat
confusing, I find it addresses whether it was reasonable for the occupier to
contract out the particular work in question. This interpretation is supported
by Grochowich v. Okanagan University College, 2003 BCSC 236, [2003]
B.C.J. No. 980, aff’d 2004 BCCA 325, where the trial judge held that s. 5(1)(b)
of the Act requires the occupier to establish that it was reasonable to
delegate the work to an independent contractor.

[50]        
In this case, I find it was reasonable for the
Owner to contract out the cleaning services for the mall rather than employ
staff who would be responsible for this work. Certainly there is nothing in the
evidence that would suggest that it was inappropriate or unreasonable for the
Owner to contract out the cleaning services. The mall has a significant square
footage dedicated to common areas and administrative offices. A company solely
dedicated to this type of work would in theory be capable of carrying out the
required tasks more efficiently and more effectively than the Owner of the
mall.

[51]        
On the other hand, there is no evidence of what
steps, if any, the Owner took to ensure that Marquise was a reasonable choice
as an independent contractor. There is also no evidence of what form of
supervision, if any, was exercised over the work performed by Marquise. Mr.
Downie, the operations manager for the Lynn Valley Mall, was not on duty on
June 5, 2005, and there were no other employees of the Owner on site that day.
Mr. Downie did not provide evidence of how, if at all, he supervises the work
done by Marquise.

[52]        
Thus I find that the Owner has failed to satisfy
the provisions of s. 5(1) of the Act. If Marquise is found to be
negligent, the Owner cannot claim the defence found in this provision of the Act.

[53]        
As discussed above, I find that Mr. Davis has
established a prima facie breach of the duty of care described in s. 3(1)
of the Act. He slipped and fell on some grapes that were left on the
marble tiles of the pedestrian concourse in the Lynn Valley Mall. The Owner
concedes that, in relation to this part of the mall, it is an occupier within
the meaning of the Act. If left unattended on the floor, these grapes
presented a hazard that the Owner was either aware of or should reasonably have
been aware of in all of the circumstances. Thus, absent proof of a reasonable
maintenance and inspection system in place and being followed on the day in
question, leaving the grapes unattended constitutes negligence and a breach of
the duty of care under the Act.

[54]        
Turning to the first prong of the Atkins
test, I find the cleaning and inspection system employed by Marquise was not
reasonably adequate to ensure the safety of the public in a manner consistent
with the standard of care defined by s. 3(1) of the Act. Marquise
employed a single day porter to carry out all of the cleaning services required
to be done inside the mall during its opening hours. This employee was tasked
with a wide variety of duties apart from carrying out an inspection of the
floors for debris. These tasks took Ms. Farenas into the washrooms, the
elevators, the stairways, the administrative offices, the exterior entrances,
the service corridors, and the second floor corridors. There is no evidence
that she was able to carry out all of these functions and sweep the entire mall
on a regular basis. Indeed, the maintenance log, originally drafted to record
when the washrooms were cleaned, only required Ms. Farenas to inspect and
maintain the entrances to the Mall. No part of her duties included a regular
inspection of the other common areas, including the marble tiles adjacent to
Kin’s Market.

[55]        
In my view, the evidence supports a conclusion
that it was only by chance that Ms. Farenas would see hazardous debris in any
areas of the mall apart from the entrances. While her job description required
Ms. Farenas to tour the common areas for spills on a regular basis, the
maintenance log, as well as her affidavit evidence, supports a finding that she
was not required to regularly inspect any other areas of the mall beyond the
entrances. While her job description included sweeping and mopping the common
areas, she had no dry mop to carry out this function.

[56]        
Ms. Farenas deposed that she “inspected and
maintained” the common area in front of Kin’s Market between 1:50 p.m. and
2:10 p.m. on June 5, 2005. There is no more specific evidence of what
precisely Ms. Farenas did to complete her “inspection and maintenance”. Ms.
Farenas did not file an accident report and it appears that the first time she
was called upon to provide her recollection of the events was when she swore
the affidavit on December 15, 2008, over three years after the accident. Because
this was not a routine part of her job, it is unlikely that Ms. Farenas would
have been able to recall the specifics of her duties on June 5, 2005, so long
after the events. Ms. Janda’s accident report indicates that the last time the
floor around the area of Kin’s Market was swept was the night before the
accident. Thus it is reasonable to conclude that “maintenance” did not include
sweeping this area. The general phrase, “inspect and maintain” provides no
other clues as to what is meant. It could be as little as a cursory glance at
the floor as Ms. Farenas pushed her maintenance cart to the other end of the
mall.

[57]        
The evidentiary onus rests with the Owner to
show that it had a reasonable system in place at the time of the accident. The
affidavit evidence of Ms. Farenas does not permit the court to evaluate the
reasonableness of her actions on the day of the accident because it is so void
of informative descriptors of what she did or how she carried out these duties.
Thus I find that the Owner has failed to satisfy the onus resting on it to show
that it had a reasonable system in place that adequately protected the public
from hazards on the floor of the mall corridors.

[58]        
At best, Marquise’s system was to rely upon the
powers of observation of its single employee to detect a spill and clean it up.
Given the large number of duties the day porter had during her shift, I find it
was unreasonable to expect that she would have the time to be sufficiently
vigilant to detect hazardous debris in a reasonably satisfactory manner. While
this ad hoc system of detecting spills and other hazards was backed up somewhat
by the security personnel employed by Concord Security, I find this added
safeguard was insufficient to meet the standard of reasonableness. There is no
evidence of how often or how regularly the security guards toured the mall with
a view to detecting and reporting hazardous spills. There is no job description
for the security guards in evidence and Ms. Janda’s affidavit only provides a
general description of her duties. Further, while Ms. Janda reported spills to
tenants in the mall and, in particular, to Kin’s Market, she does not
acknowledge this was a regular function of a security guard.

[59]        
In summary, I find that the Owner has failed to
rebut the prima facie evidence of negligence and a breach of the duty of
care under s. 3(1) of the Act.

4.  Is there any contributory negligence on the part of
Mr. Davis?

[60]        
Kin’s Market argues that Mr. Davis had an
obligation to keep a proper look out for his own safety and to be aware of his
surroundings: Gervais v. Do, 2000 BCSC 1271, [2000] B.C.J. No. 1732.
Kin’s Market points to Mr. Davis’ admission that his attention was not directed
to where he was walking before he fell; rather, he was looking toward the
Shoppers Drug Mart. He was familiar with the mall and could have avoided the
fall had he been paying attention to the floor where he was walking.

[61]        
Mr. Davis argues that Kin’s Market and the other
tenants encourage shoppers to look at their displays rather than the floor
while they walk through the mall. It is thus unreasonable to find him negligent
when he is simply responding to this encouragement: Coulson at para. 15.

[62]        
In my view, it is not reasonable to expect Mr.
Davis to be staring at his feet as he walked through the mall towards the
Shoppers Drug Mart. Had he positioned his head in a downward direction to
detect possible hazards on the floor, Mr. Davis may have stepped over the
grapes in his path; however, he may also have run into another mall patron
possibly causing damage to himself and the other person. It is also
understandable that Mr. Davis would not be cognizant of the risks associated with
walking in the common area of the mall adjacent to Kin’s Market, particularly
as he was three to four feet from the display tables. He was not inside the
store where he may have been alerted to the possibility of produce that had
fallen to the floor. Lastly, I find Mr. Davis’ circumstances are similar to
that found by the Court of Appeal in Coulson. The tenants in the mall
design their displays to attract customers’ eyes. They do not encourage patrons
to keep their eyes on the floor ahead of their feet. As Bauman J. (as he then
was) said in Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474, [2000]
B.C.J. No. 1988 at para. 44:

[44]      As to
the issue of contributory negligence, it has been said many times, most
recently by Justice Burnyeat in Coleman v. Yen Hoy Ent. et al,
2000 BCSC 276 [In Chambers], that while there is a duty on the plaintiff to be
aware of her surroundings, it is not the case that she is required to “glue her
eyes to the ground.”

CONCLUSION

[63]        
I find that the defendants, Kin’s Market and the
Owner, are jointly and severally liable to the plaintiff, Mr. Davis, for the
injuries he suffered during the fall on June 5, 2005. I find, in particular,
that neither defendant has rebutted the prima facie breach of the duty
of care in s. 3(1) of the Act established by the plaintiff based on
the evidence led in this Rule 18A application.

[64]        
The plaintiff is entitled to his costs at Scale
B.

“Bruce
J.”