IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151014

Docket: 150661

Registry:
Vancouver

Between:

Sandra Helina

Appellant

And

Tannis Percival,
Don Somerville
and Fraser Valley Tree Service Ltd.

Respondents

Before:
The Honourable Mr. Justice Smith

On
appeal from: An order of the Provincial Court of British Columbia, dated September 29, 2014 (Helina v Percival et. al,
C70231 Surry Registry).

Reasons for Judgment

[1]            
The appellant, Sandra Helina, appeals from a decision of the Provincial Court
in which her claim for personal injuries was dismissed on a no evidence motion.

[2]            
Ms. Helina was a basement-suite tenant in a house owned by the
defendant Tannis Percival. She had been there a little less than two months
when, on June 24, 2009, employees of the defendant Fraser Valley Tree Service came
to trim trees on the property. The defendant Don Somerville is the president of
that company.

[3]            
Ms. Helina represented herself at trial in Provincial Court and on
this appeal. She testified at trial that, at Ms. Percival’s request, she
moved her car from the driveway of the house onto the street in order to
accommodate the tree service vehicles and equipment. Later that morning, she
says she left her apartment to go to her car. That required her to walk down
the driveway. However, she discovered that the exit from the driveway was
completely blocked by the tree‑service truck and chipper.

[4]            
Ms. Helina stated that she crossed a portion of the yard and
stepped over a low fence, but then discovered that she was blocked by low tree
branches and a ditch. When she turned around with the intention of going back
over the fence, she slipped and fell, injuring her ankle.

[5]            
Ms. Helina also called evidence from an employee of the tree
service, who testified that he knew that the equipment would block the driveway
to anyone leaving the property.

[6]            
At the close of Ms. Helina’s case, counsel for Ms. Percival
made a no evidence motion, arguing that Ms. Helina had failed to present
any evidence of a breach of a relevant duty of care. The trial judge agreed and
dismissed Ms. Helina’s claim, saying she should have waited until there
was an opportunity to ask the workers to move the truck. The judge went on to
say:

There is nothing in the testimony of Ms. Helina that she
took any of the steps I have already inquired about, asking staff while waiting
patiently if they could help her exit the property, move the truck and chipper
so she could walk on the driveway but she unilaterally, strangely and
peculiarly thought she could just go over a fence.

[7]            
The court may dismiss a plaintiff’s case on a no evidence motion at the
close of the plaintiff’s case if there is no evidence on an essential
ingredient of the case: Roberge v. Huberman, 1999 BCCA 196 at para. 18.
This is to be distinguished from a motion based on insufficiency of evidence,
where the court weighs evidence after the defence has specifically elected to
call none. In this court, Supreme Court Civil Rules 12-5(4) through (7)
specifically allow for and distinguish between those two motions:

No evidence application

(4)        At the close of the plaintiff’s case, the
defendant may apply to have the action dismissed on the ground that there is no
evidence to support the plaintiff’s case.

Defendant need not elect whether to call evidence

(5)        A defendant is entitled to apply under subrule (4)
without being called on to elect whether or not to call evidence.

Insufficient evidence application

(6)        At the close of the plaintiff’s case, the
defendant may apply to have the action dismissed on the ground that the
evidence is insufficient to make out the plaintiff’s case.

Defendant must elect not to call evidence

(7)        Unless the court
otherwise orders, an application under subrule (6) may be made only after the
defendant has elected not to call evidence.

[8]            
The Small Claims Rules, under which civil trials in Provincial Court
are conducted, contain no equivalent to those rules. The matter must be
governed by the common law approach, which Esson J.A. described in Roberge
at para. 63:

[63]      … Historically, the
prevailing view has been that the court should not entertain a no evidence
motion in a civil trial unless the defendant elects to call no evidence.

[9]            
It was therefore incumbent on the trial judge in this case to put the
defendant to the election of calling no evidence. In the absence of such an
election, the judge had discretion to decline to hear the motion. Although
counsel for the defendant appears to have intended a “true” no evidence motion,
there is nothing in the transcript to indicate the procedure of putting the
defendant to the election was followed.

[10]        
This is not merely a technical issue. Whether or not the defendant is
put to the election defines the issues and evidence to be considered on the
motion. A true no evidence motion in this case would be limited to whether
there was evidence of a breach of a duty of care by the defendants.

[11]        
However, the judge focused primarily on Ms. Helina’s own conduct
and found, in effect, that the accident was caused only by her own negligence. That
weighing of all the evidence would only have been appropriate, at that stage of
the trial, if there had been a clear election by the defendant to call no
evidence. Positive defences, such as contributory negligence, should not be
considered on a no evidence motion. Roberge at para 51.

[12]        
More importantly, the trial judge was not referred to and did not consider
clear authority in the Provincial Court that strongly discourages no evidence
motions, particularly in cases involving self‑represented litigants. In Walls
v. Ross, 2001 BCPC 187, Stansfield A.C.J. Prov. Ct., as he then was,
referred to Roberge and said at para. 45:

[45]      Having regard to:

a)         Mr. Justice Esson’s observations about the
principled reasons to entertain no evidence motions only after an election has
been made as to whether evidence is to be called;

b)         the desirability of avoiding appeals from
successful no evidence motions which in turn could lead to repetitions of
trials;

c)         the desirability of being "spared the arid
and often confusing intellectual exercise of having to decide whether the
evidence heard to that point is, as a matter of law, ‘no evidence’" (see
Esson J.A., above); and

d)         the fact that because claimants in Provincial
Court do not have the opportunity to prove part of their case through
examination for discovery evidence, the spectre of a nonsuit application could
lead to claimants perceiving a need to call defendants as part of their case,
with all of the attendant complications of applications to have the defendant
declared adverse, and so on;

it is my view that
"no-evidence" or "non-suit" applications should be
discouraged in this court as generally not contributing to a "just,
speedy, inexpensive and simple" resolution of the claim.

[13]        
Those comments were referred to and followed in Stone v. Insurance Corporation
of British Columbia, 2008 BCPC 383, where Woods Prov. J. stated at paras. 28
and 29:

[28]      We have a streamlined procedure in the Provincial
Court for very good reason. The cost and burdensomeness of the process in this
court is reduced by reason of a less Byzantine and less complex regime of civil
procedure. But that streamlined procedure does leave parties without some of
the tools that are available in the Supreme Court. In circumstances where even
the Supreme Court, operating in a system where all of those tools are
available, expresses concerns about the use of no evidence motions, one must be
even more concerned about no evidence motions being employed in the Provincial
Court’s Civil Division.

[29]      In Provincial Court
civil trials a party in [the defendant’s] position must wait until its
adversary … takes the stand and then try to elicit helpful admissions under
cross-examination. It must wait as well for any other witnesses that its
adversary may rely upon and get what it can in cross-examination of those
witnesses in order to fortify or buttress or add to its case. Opportunities to
get that kind of evidence and read them into the record exist in the Supreme
Court. They do not exist in this court. That is a factor that Judge Stansfield
took into account in the Walls, supra, decision and it is a factor that
must be taken into account in this case.

[14]        
In Potter v. Montpetit, 2012 BCPC 268, MacCarthy Prov. J. said at
paras. 49–51:

[49]      It is my view that in considering a no evidence
motion in a small claims trial, the Court should also look at the whole of the
circumstances surrounding the case and consider from what sources important
evidence is available. If evidence that is required or helpful for the
claimant’s case is likely available from a defendant and is not likely
available from other sources, then there should be a greater reluctance for the
Court to grant the non-suit.

[50]      When looking at the whole of the circumstances
surrounding a case and when dealing with a no-evidence motion in a small claims
trial, the Court should also consider if the defendant is represented by a
lawyer and if the claimant is self-represented and is without legal training.

[51]      It may not likely occur to a claimant in such a
situation that calling an adverse witness will be necessary in order to
adequately prove their case and to thereby avoid being non-suited. Furthermore,
the possibility of facing a no evidence motion, in the absence of some clear
prior indication from the defendant’s counsel of an intention to bring such an
application, most likely come [sic] as a surprise to and be most
confusing for such a claimant. If the no evidence motion is granted, they will
no doubt be left with the question “Why didn’t I have the opportunity to cross
examine the defendant on matters important to my case?”

[Emphasis added.]

[15]        
I respectfully agree with that statement and find it applicable to this
case. Ms. Percival was both the occupier of the property and landlord. Her
duty as occupier is set out in s. 3(1) of the Occupiers Liability Act,
R.S.B.C. 1996, c. 337:

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.

[16]        
Consideration of what was reasonable would, in these circumstances,
include Ms. Percival’s duties as landlord. Under s. 28(d) of the Residential
Tenancy Act, S.B.C. 2002, c. 78, Ms. Helina was entitled to “use
of common areas for reasonable and lawful purposes, free from significant
interference.” In Kiceluk v. Oliverio, 2001 ABQB 704, the court
said at para. 27:

[27] A tenant, as an implied term of lease, has the
right to reasonably safe means of ingress and egress to the leased premises,
not [sic] only does this apply to leased premises in an apartment
building, with respect to common areas including the entrance way, hallways,
stairs and the like, but surely this right extends to walkways and sidewalks
leading up to the leased premises located on the landlord’s property or
property occupied by the landlord. [Emphasis added.]

[17]        
Ms. Helina’s case was essentially that Ms. Percival failed to
provide a reasonably safe means of entry to and exit from the property. Whether
Ms. Percival failed to take steps that would have been reasonable in the
circumstances depends in part on her knowledge of the danger, the length of
time she expected access to be blocked, and whether any safe alternative access
or assistance could have been made available. Evidence on those issues could
only have come from Ms. Percival, had she decided to give evidence. Ms. Helina
should not have been denied the opportunity to elicit helpful evidence on cross‑examination.
If Ms. Percival did not intend to give evidence, that possibility should
have been made clear to Ms. Helina well in advance, as suggested by Judge
MacCarthy in Potter.

[18]        
Accordingly, I must allow the appeal, set aside the order dismissing Ms.Helina’s
claim, and direct that a new trial take place in Provincial Court. Ms. Helina
is entitled to costs of this appeal.

“N.
Smith J.”