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Case Summary: Stefanyk v Sobeys Capital Incorporated
Defence + Indemnity

C.  A tenant of a shopping centre may be an “occupier” of a sidewalk in front of its leased premises in some circumstances, or owe visitors a common law duty of care regarding same, but it is not negligence to put a bicycle rack at that location.

Stefanyk v Sobeys Capital Incorporated, 2018 ABCA 125   [4273] 

I. FACTS AND ISSUES

This is the appeal of the decision reported in the February 2018 edition of Defence + Indemnity.
 
The plaintiff was walking on the sidewalk outside a Sobey’s store when a dog (which had been tied to a bicycle rack there) lunged at her, causing her to fall.  She sued the owner of the shopping center property First Capital (Eastview) Corporation and Sobey’s. Sobey’s lease granted it exclusive possession of the store property itself, which did not include the sidewalk outside the store’s front doors.
 
Eastview had placed garbage receptacles on the sidewalk and either Eastview or Sobey’s had installed the bicycle rack there.
 
The Master granted Sobey’s summary dismissal of the claim on the basis that it was not an “occupier” of the sidewalk pursuant to the Occupiers’ Liability Act, R.S.A. 2000, c. O-4, that it did not owe the plaintiff a common law duty of care that applied and that if it did Sobey’s had not been negligent.  The Queen’s Bench reversed the summary dismissal finding that Sobey’s could have been an “occupier”, and could have owed a common law duty of care but that a trial was necessary regarding liability because the position of Sobey’s was not “unassailable”.  Sobey’s appealed.
 
II. HELD: For the Defendant; appeal allowed and summary dismissal granted.

1. The Court of Appeal summarized the test for summary judgment:

[12]         An action may be summarily dismissed where “there is no merit to a claim or part of it”: R. 7.3(1)(b). Summary judgment is an appropriate procedure where there is no genuine issue requiring a trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (a) allows the judge to make the necessary findings of fact, (b) allows the judge to apply the law to the facts, and (c) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v Mauldin, 2014 SCC 7 (CanLII) at para. 49, [2014] 1 SCR 87; Windsor v Canadian Pacific Railway, 2014 ABCA 108 (CanLII) at para. 13, 94 Alta LR (5th) 301, 572 AR 317. Parties to a summary disposition application are expected to put their “best foot forward”, meaning that gaps in the record do not necessarily prevent summary disposition: Canada (Attorney General) v Lameman, 2008 SCC 14 (CanLII)
. . .

[14]         First of all, it is now established that there is only one civil standard of proof, and it is proof on a balance of probabilities. The rule was definitively stated in F.H. v McDougall, 2008 SCC 53 (CanLII) at para. 40, [2008] 3 SCR 41: “. . . I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities”. That is the standard the summary judgment rule engages when it talks about “merit”: proof on a balance of probabilities. “Unassailable” and “very high likelihood” are not recognized standards of proof.
 
[15]         Secondly, the test for summary judgment is stated in the binding cases like Hryniak v Mauldin and Windsor v Canadian Pacific Railway. Summary judgment is one procedure for deciding whether the moving party has proven its case on a balance of probabilities. Summary judgment is the appropriate procedure where the record is such that a fair and just disposition can be made on it: 776826 Alberta Ltd. (c.o.b. Budweiser Motorsports Park) v Ostrowercha, 2015 ABCA 49 (CanLII) at paras. 9-10, 593 AR 391. In other words, is the record such that it is fair and just to decide summarily if the moving party has proven the case on a balance of probabilities? That generally comes down to deciding if there is any material issue of fact on which a trial is justified, or whether the chambers judge can make any required fact findings from the summary dismissal record in a fair and just manner. A trial may be the preferred and proportional procedure where there is a reasonable expectation that a better evidentiary record will be created by a trial, for example because there are disputed issues of material fact, or issues of credibility, that cannot fairly be resolved summarily.
 
[16]         It follows that a plaintiff cannot resist summary dismissal merely by raising a “doubt”, although the plaintiff is not required at that stage to prove its case on a balance of probabilities: McDonald v Brookfield Asset Management Inc., 2016 ABCA 375 (CanLII) at para. 13. The plaintiff can obviously resist summary dismissal by showing that the applicant has not, at that stage, proved its defence on a balance of probabilities. Summary dismissal can also be resisted when the record or the issues mean that summary dismissal is not a fair and just procedure for both parties: Abbey Lane Homes v Cheema, 2015 ABCA 173 (CanLII) at para. 22. A dispute about material facts that cannot be resolved on the existing record, or that fairly and reasonably call for a trial, will be sufficient: Ostrowercha at para. 11.​

2. The Court held that the Queen’s Bench judge had applied the incorrect test for summary judgment.  This case met the test in that “[t]here are no material facts in dispute, no overwhelming issues of credibility, and the court is able to apply the law to the facts.”
 
​3. The Court held that both Sobey’s and Eastview could be “occupiers” of the sidewalk pursuant to the Occupiers’ Liability Act, s. 1(c)(ii) which provides that a person is an “occupier” where “he/she has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises.”

a. The Court held that there can be multiple occupiers for a particular place, each with its own different standard of care:

[22]         The Act specifically contemplates that there can be more than one occupier of any premises. Thus, it is possible that both Sobeys and Eastview were “occupiers” of the sidewalk at the time of the incident. If that was the case, it would not necessarily follow that the duty owed by each of them was equal, or that the standard of care they would be required to meet would be the same. Both the duty and the standard of care would vary depending on the circumstances, including the degree of control exercised, the number of other occupiers, the nature of the risk that materialized, and many other factors. Further, the mere existence of a duty does not mean that the occupier becomes an insurer for everything that happens on the premises: Wood v Ward, 2009 ABCA 325 (CanLII) at paras. 7, 13-4, 12 Alta LR (5th) 52; Waldick v Malcolm (1989), 1991 CanLII 8347 (ON CA), 70 OR (2d) 717 at p. 723 (CA) affirmed 1991 CanLII 71 (SCC), [1991] 2 SCR 456.
 
[23]         The recognition of multiple occupiers means that an occupier need not have “minute-to-minute, hour-to-hour control” of the premises as suggested by some of the cases. It is unlikely that each of several occupiers would have such complete control. Rather, the degree to which each occupier controls the premises will impact the scope of the duty of care and the content of the standard of care. A more important consideration is the extent of the control of any particular occupier at the time at which an incident occurred, and the nature of the risk that emerged.

b. The Court held that Sobey’s qualified as an “occupier”:

[17] . . . Sobeys had some, although limited, control over the sidewalk and the condition of the sidewalk. It did, in fact, exercise that control from time to time. It also had some control over the persons using the sidewalk, such as panhandlers. It is reasonable to conclude that it could have prohibited dogs from the sidewalk. The logical access to the Sobeys store is through the parking lot and across the sidewalk where the dog was tied up. It is also reasonable to conclude that Sobeys had some control over potentially dangerous conditions on the sidewalk, such as ice and snow, even if the primary responsibility for them lay with Eastview. Sobeys cannot demonstrate on a balance of probabilities that it is not an “occupier” of the sidewalk.

4. The Court held that even if Sobey’s was not an “occupier” of the sidewalk in front of its leased premises, it owed the plaintiff a common law duty of care:

a. Only “occupiers” owe a duty of care under the Occupiers’ Liability Act to visitors. However, an “occupier” may owe a common law duty of care to visitors on adjacent premises in some circumstances:

[21]         The liability of an occupier, with respect to the premises of which it is an occupier, is exclusively governed by the Occupiers’ Liability Act. That statute was only enacted because there was no appropriate common law duty of care. Thus, if Sobeys is an occupier of the private sidewalk where the plaintiff was injured, its liability must be determined under the statute; there is no residual “common law duty of care”. However, if Sobeys is not an occupier of the sidewalk, it would be necessary to apply the common law rules to determine if there is a common law duty on Sobeys that extends to the areas of which it is not an occupier.
. . .
 
[24]         A common situation arises where the occupier of lands is sued for damage that occurs on adjacent land. Often that adjacent land is used for access to the “occupied lands”. The case law presumes that the occupier is only liable for what happens on the occupied lands, subject to certain exceptions: Kluane v Chasse, 2003 ABCA 30 (CanLII), 35 MPLR (3d) 86; Bongiardina v York (Regional Municipality) (2000), 2000 CanLII 5408 (ON CA), 49 OR (3d) 641 at paras. 19-21, 13 MPLR (3d) 167 (CA). Some cases say that the occupier can become a “deemed occupier” of the adjacent lands if it assumes some control of those lands: Bogoroch v Toronto (City), [1991] OJ No 1032. Others look for “special circumstances” before imposing a duty of care: Moody v Toronto (City) (1996), 1996 CanLII 8229 (ON SC), 31 OR (3d) 53. An occupier may also be liable for hazards that originate on its land, and migrate onto adjacent premises: Bongiardina at para. 21.
 
[25]         A more scientific approach is to examine if a common law duty of care arises with respect to the adjacent premises using the common law test, set out in a series of cases including Cooper v Hobart, 2001 SCC 79 (CanLII), [2001] 3 SCR 537. The analysis turns on whether the relationship between the claimant and the defendant discloses sufficient foreseeability and proximity to establish a prima facie duty of care and, if so, whether there are any residual policy considerations which ought to negate or limit that duty of care. Defining the relationship can involve looking at expectations, representations, reliance, and the property or other interests involved. The object is to evaluate the closeness of the relationship between the plaintiff and the defendant to determine whether it is just and fair having regard to that relationship to impose a duty of care in law upon the defendant.

b. The Court held it probable that even if Sobey’s was not an “occupier” of the sidewalk in front of its store it owed a common law duty of care to the plaintiff.

[28]         In the alternative that Sobeys was not an “occupier” of the sidewalk, it is probable that it owed a common law duty of care. Sobeys invited customers to its store, and the logical access to the store is through the parking lot and across the private sidewalk where the dog was tied up. This was not a situation where the privately owned sidewalk provided access to other stores, nor a situation where the sidewalk provided an obvious route unrelated to access to the Sobeys store. Given the relationship between the plaintiff and Sobeys, and having regard to the expectations of the plaintiff and the property interests involved, it is appropriate to recognize a common law duty of care in the circumstances. It is not necessary, to resolve this appeal, to precisely define the scope of that duty of care.

5. However, the Court found the facts to be clear enough for it to summarily determine that Sobey’s had not been negligent.

[31]         It cannot be negligent to have a bicycle rack or garbage bins on the sidewalk, even if they would inevitably obstruct the view of some other parts of the sidewalk. Sobeys would undoubtedly have a duty to warn of or remove unreasonable hazards or risks, but the record discloses that Sobeys had no prior notice of a danger created by the garbage receptacles, the bicycle rack, or dogs. There is no evidence on the record supporting any “failure to inspect”. The fact that Sobeys did not have a formal “policy” about dogs is of little significance if its conduct with respect to the incident was reasonable.

[32]         It was suggested in argument that Sobeys could have prohibited the leaving of unattended dogs on the sidewalk, or could have posted warning signs about the risk. Dogs are domesticated animals, and while some dogs can be unpredictable, on the whole they likely do not present an unreasonable risk. Liability for damage caused by domestic animals is based on foreseeability, which in turn is highly dependent on whether the animal had a history of creating a risk of injury: Nasser v Rumford (1977), 1977 ALTASCAD 296 (CanLII), 7 AR 459 at paras. 22, 26, 5 Alta LR (2d) 84 (Alta SC, AD); Wilk v Arbour, 2017 ONCA 21 (CanLII) at para. 40, 135 OR (3d) 708; Whippey v Jones, [2009] EWCA Civ 452 at para. 19. It is not negligent to keep dogs in public, at least when they are restrained or supervised. Further, dog owners can be expected to be responsible about their pets. Sobeys could expect that owners of unpredictable or aggressive dogs would not leave them tied up unattended outside grocery stores. It is clearly foreseeable that there are dogs that are unpredictable, and dog owners that are irresponsible, but that does not mean that a defendant like Sobeys must ban all dogs to avoid being found negligent.

[33]         The Master correctly determined that there was nothing on the record to demonstrate that Sobeys was negligent. Since Sobeys was not directly responsible for the dog, any negligence would have to arise from its failing to prohibit any dogs from the premises, or for failing to deal with this particular dog. Given that there had never been any prior problem with the dog, and that Sobeys had no notice that this dog was even present, negligence has not been demonstrated.

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