Taylor v. Halifax 1658 Bedford Highway Inc.

Taylor v. Halifax 1658 Bedford Highway Inc. Court Supreme Court Date 2006-06-02 Citation 2006 NSSC 172 Docket ST 259499 Judge/Registrar/Adjudicator McDougall, Glen G. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Taylor v. Halifax 1658 Bedford Highway Inc., 2006 NSSC 172 Date: 20060602 Docket: ST 259499 Registry: Truro Between: Hugh Cameron Taylor Plaintiff v. Halifax 1658 Bedford Highway Inc., a.b.c, also know as Bedford Place Mall First Defendant v. Cogir Management, a registered business Second Defendant v. Mikes Restaurants Inc./Les Restaurants Mikes Inc., a.b.c. Third Defendant Judge: The Honourable Justice Glen G. McDougall Heard: May 16, 2006, in Truro, Nova Scotia Counsel: Kerri-Ann Robson, for the plaintiff/respondent Peter Bryson, Q.C., for the applicant/third defendant By the Court: [1] This is an application for summary judgment under Civil Procedure Rule 13.01. [2] The application is made by the third defendant, Mikes Restaurants Inc. / Les Restaurants Mikes Inc. (the “applicant/defendant”). [3] The applicant contends that the slip and fall accident forming the basis of the plaintiff’s action against the three named defendants did not occur on premises either owned or occupied by it. Accordingly, the applicant seeks a dismissal of the action against it. FACTS: [4] Hugh Cameron Taylor (the “respondent/plaintiff”) in his statement of claim asserts that on May 15, 2005, he attended at the applicant’s place of business, located on property owned by Halifax 1658 Bedford Hwy Inc. and under the property management of Cogir Management. Upon leaving the restaurant he stepped on the side of the sidewalk which is located approximately six to nine inches above the parking lot. Both the sidewalk and parking lot are painted yellow which made it appear that the sidewalk and parking lot were at the same level. [5] The respondent/plaintiff further states that there was no hand railing leading up to the ramp or at the side of the sidewalk between it and the parking lot. As a result, he twisted his foot and fell headfirst smashing his head on the parking lot pavement. This caused immediate and severe pain along with serious personal injuries, the full extent of which remains to be detailed at trial. [6] The applicant/defendant says, amongst other things, that the claim establishes no cause of action against it as the alleged accident and consequent injuries did not occur on its premises. In proof of this, the affidavit filed in support of the application had appended to it a lease between Canada Mortgage and Housing Corporation, a body corporate, and Hoopp Realty Inc., a body corporate as landlords, and Atlantic Family Restaurants Ltd., a body corporate, as tenant. Mikes Restaurants Inc., 3044150 Nova Scotia Limited and Darren Throop joined in the lease agreement as indemnifiers for the tenant. [7] The issue of who the actual tenant is was only discovered the day prior to the summary judgment application and was not argued as a further reason to have the case against the applicant/defendant discontinued. LAW: [8] Counsel for both the applicant/defendant and the respondent/plaintiff agreed on the applicable legal test in summary judgment applications. [9] Civil Procedure Rule 13.01 provides a defendant with the right to bring an application for summary judgment. It states: Application for a summary judgment 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed. [Amend. 05/02] [10] In the case of Binder v. Royal Bank of Canada et al (2003), 216 N.S.R. (2d) 363 (N.S.S.C.), Moir, J., reviewed the law and concluded that the applicable test was as indicated by LaForest, J., in Hercules Management v. Ernst and Young, [1997] 2 S.C.R. 165 where he wrote: ...the defendant bears the initial burden of proving that the case is one where the question whether there exists a genuine issue for trial can properly be raised, the plaintiff bears the subsequent burden of establishing that his claim has a real chance of success. [11] After reviewing the authorities, Justice Moir in Binder, supra, wrote: Now any party may apply for summary judgment . And, the express standard picks up something of the approach adopted by the courts under the old rule. Now, the application is made on the ground that “there is no arguable issue to be tried with respect to the claim”: 13.01(a) or “there is no arguable issue to be tried with respect to the defence”: 13.01(b). In my opinion, no substantive distinction can be made between “no genuine issue for trial” and “no arguable issue to be tried”. Thus, the approach adopted by the Supreme Court of Canada in Hercules and in Guarantee Company of North America applies to summary judgment applications before this Court. The applicant must meet a threshold. Generally, that threshold is met when the case is such that the Court should properly inquire into the presence or absence of a genuine issue (Hercules, para. 5 and 15), which I would equate with a reasonably arguable issue. Specifically, the threshold is met in cases where “there is no genuine issue of material fact requiring trial” (Guarantee Company of North America, para. 27 ...). Once the threshold is met, the respondent is required to show a real chance of success in its claim or defence. This is not much different from the approach we are used to and, like it, this approach places incentive on both parties to produce evidence justifying their positions. (para. 7) [12] The Nova Scotia Court of Appeal had occasion to consider the proper test for summary judgment by a defendant in a case called United Gulf Developments Ltd. v. Iskandar (2004), 222 N.S.R. (2d) 137 (N.S.C.A.), (application for leave to appeal dismissed [2004] S.C.C. No. 172). Roscoe, J.A., writing for the panel, stated at para. 9, page 5 of the Carswell version of the decision: I agree with Justice Moir that it is not possible to mirror the usual test for a plaintiff on a summary judgment application where a defendant brings the motion. I agree as well, that there is no appreciable difference between the standard of no genuine issue, and no arguable issue. I concur with the Chambers judge that the appropriate test where a defendant brings an application for summary judgment in Nova Scotia is the test as set out in Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423: The appropriate test to be applied on a motion for summary judgment is satisfied when the applicant has shown that there is no genuine issue of material fact requiring trial, and therefore summary judgment is a proper question for consideration by the court... Once the moving party has made this showing, the respondent must then “establish his claim as being one with a real chance of success” (Hercules, supra, at para. 15, cited in United Gulf, at para. 9). [Emphasis added.] [13] In cases where the material facts are not in dispute there should not be a need for a trial to consider whether there is an arguable issue to be tried and whether the plaintiff has a “real chance of success” on the legal issues that underlie the claim. DISCUSSION: [14] The respondent/plaintiff’s case is based on the law of occupiers’ liability. The Occupiers’ Liability Act, (the “Act”), S.N.S. 1996, c. 27 governs this situation. [15] Section 2 of the Act provides the following definition of “occupier”. It reads: 2 In this Act, (a) "occupier" means an occupier at common law and includes (i) a person who is in physical possession of premises, or (ii) a person who has responsibility for, and control over, the condition of premises, the activities conducted on the premises or the persons allowed to enter the premises, and, for the purpose of this Act, there may be more than one occupier of the same premises; [16] Sections 3 and subsection 4(1) of the Act are also relevant for purposes of this discussion. They read as follows: Replacement of common law rules 3 This Act applies in place of the rules of common law for the purpose of determining the duty of care that an occupier of premises owes persons entering on the premises in respect of damages to them or their property. 1996, c. 27, s. 3 Duties of occupier 4 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that each person entering on the premises and the property brought on the premises by that person are reasonably safe while on the premises. [17] Under the terms of the lease the applicant/defendant’s rights and obligations, vis à vis the landlord, are clearly spelled out. Although the respondent/plaintiff is not a signatory to the lease and, hence, is not bound by its provisions, it is nonetheless made clear that the landlord is responsible for maintaining and repairing “the Common Area and Facilities and the Shared Common Area and Facilities as would a prudent owner of a similar Shopping Centre...”. [Section 9.04 of the lease.] [18] Counsel for the applicant/defendant cites the case of Trenholm v. Langham & West Insurance Ltd. (1990), 106 N.B.R. (2d) 181 (Q.B.) in support of its contention that the applicant/defendant cannot be liable for the alleged accident and the consequent injuries since they occurred on premises it did not occupy. CONCLUSION: [19] I accept this authority and conclude that there is no genuine issue as to material facts that would require a trial. Furthermore, the respondent/plaintiff has not established his claim as being one with a real chance of success against this particular defendant and, as a result, summary judgment is granted dismissing the respondent/plaintiff’s action against the applicant/defendant (i.e., third defendant only). [20] Costs of the application are payable to the successful party. If counsel cannot agree on an amount, they can make further written submissions to me within 30 days of the date of this decision. J.