Every week, Bell Temple LLP selects and reports on interesting and relevant decisions from the Ontario Superior Court of Justice, Ontario Court of Appeal, and Supreme Court of Canada.
This week’s case reports are written by Liam Mackrell
Cooper v. Beaudoin, 2023 ONSC 6543 (CanLII),
https://canlii.ca/t/k19x2
The Plaintiff was staying with her sister and brother-in-law at their home in Ottawa. While at their home, she tripped over sandals that her sister left on the back stoop and broke her ankle. The house is jointly owned and occupied by Plaintiff’s sister, Elizabeth, and brother-in-law. The Plaintiff chose only to name her brother-in-law as Defendant.
Access to the house from the backyard is through the back door. To enter and exit the house into the backyard, one must walk up the two steps of the back stoop and through the back door. The steps are a few feet across. Elizabeth and the Defendant leave their shoes on the top step of the stoop in the summer.
It was agreed that the Defendant was an occupier as defined by the Occupiers Liability Act, R.S.O. 1990, c. O.2 (“the Act”). Section 3(1) of the Act imposes an affirmative duty on the occupier to “make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm”. This is not an absolute duty, but instead imposes a responsibility for occupiers to take “such care as in all the circumstances of the case is reasonable”.
On the day of the incident, the Plaintiff entered the house prior to Elizabeth. Elizabeth then entered the house and left her sandals on the top step. The Plaintiff was a regular visitor at the house but did not know that Elizabeth and the Defendant were in the habit of leaving their shoes on the top step, and did not know at the material time that Elizabeth had left her sandals on the top step. When the Plaintiff left the house again through the back door, she stepped down on the sandals without first seeing them, fell, and broke her ankle.
The Court determined that leaving one’s sandals on the back stoop in the middle of an Ontario summer is a reasonable practice with which there is no unusual or inherent danger. The judge opined that “the existence of some risk is an ordinary part of life”.
The Plaintiff contended that the Defendant failed to meet the standard of care required in the circumstances by failing to:
- request the Elizabeth not leave her sandals on the stoop;
- warn Paula to watch out for shoes on the stoop;
- install a shoe rack on the stoop; and
- widen the stoop to leave room or leave room for shoes to be placed somewhere that was not directly in front of the door.
The Court determined that a reasonable and ordinarily prudent person:
- would not tell their spouse where to put their sandals at home;
- would not warn a visitor of their spouse’s habit of leaving shoes on the stoop because the likelihood of injury is low, and the gravity of harm is modest;
- would not have installed a shoe rack on their back stoop to avoid the possibility of a trip; and
- would not have widened their stoop because their spouse often left their shoes on the steps during the summer.
Therefore, the Court determines that the Defendant met the burden of care he owed to the Plaintiff.
The Court also determined that the Defendant did not cause the Plaintiff’s injuries. It was Elizabeth who left her shoes on the back step, and it was not in the Defendant’s power to control whether she did so.
The Court opined that the Plaintiff would have been 25% contributorily negligent had that been relevant. A reasonably prudent person should look down when stepping down onto a step. Had the Plaintiff done so, she likely would have seen the sandals and avoided the fall.
The Plaintiff made a mistake in this case by not also claiming against her sister, Elizabeth. The Plaintiff would not have tripped and broken her ankle “but for” Elizabeth leaving her sandals on the back step. The Plaintiff may have been successful in her claim if she also claimed that Elizabeth was negligent for leaving her sandals on the top step of the stoop.
Charron-Rix v Rix and Freeman., 2023 ONSC 6630 (CanLII), https://canlii.ca/t/k1bnk
This action is born out of injuries that the Plaintiff allegedly sustained in a motor vehicle accident. The action has been set down for trial and a pre-trial has occurred. The action is to proceed to trial the week of January 8, 2024. The Defendant in this action brought a motion for an order to compel the Plaintiff to attend a defence orthopaedic assessment and to extend the time for service of the resulting defence orthopaedic report.
The Plaintiff served a trial record in January 2020 and the action was set down for trial. The Plaintiff served a chronic pain assessment report in November 2019, a future loss of income report in April 2020, and a future cost of care report in June 2020. The Plaintiff never produced an expert report by an orthopaedic surgeon. At the August 2023 pre-trial, the Plaintiff served additional clinical notes and records from various medical treating professionals. After reviewing the additional clinical notes and records, defence counsel wrote to plaintiff counsel, advising them that an orthopaedic assessment was scheduled for November 2023. Plaintiff counsel refused to consent to the Plaintiff attending this orthopaedic assessment.
The Court acknowledged that the right to respond to a plaintiff’s expert report is a substantive right and that the court has the authority to order a party to attend an independent medical examination. Typically, a responding expert’s report must be served no less than 60 days before the pre-trial conference, in accordance with Rule 53.08 of the Rules of Civil Procedure. The Court stated that emphasis has been placed on requiring compliance with Rule 53.08 due to a “systemic problem” of late delivery of experts’ reports. In this matter, the responding expert’s report was due before the end of April 2023, 60 days prior to the pre-trial conference.
The Court found that the Defendant took no action to request a defence medical examination for three years following the delivery of the Plaintiff’s chronic pain assessment report. Further, the updated productions produced by the Plaintiff at pre-trial did not disclose a new medical diagnosis that would justify a responding medical examination only two months before trial. The Court also found that ordering a defence medical assessment on the eve of trial would prejudice the Plaintiff. The Plaintiff may need to obtain their own expert report to respond to the Defences. The trial likely would need to be postponed while expert reports were requisitioned, which would cause create injustice for the plaintiff. Therefore, the motion was dismissed and the Defendant was unable to compel the Plaintiff to attend the defence orthopaedic assessment.
The Court opined that “a party cannot sit on his or her rights then claim unfairness. Excessive delay, such as in the case here, can create unfairness for the opposing party instead”. This case is a reminder to defence counsel to be prompt in requisitioning and serving responding expert reports, as late reports may not be permitted.
