IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Hamilton v. The Owners, Strata Plan VIS3782, |
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2018 BCSC 1585 |
Date: 20180917
Docket: S161520
Registry: Victoria
Between:
William Hamilton
Plaintiff
And
The Owners, Strata
Plan VIS3782 (Broadmead Terrace)
and Boorman Investment Co. Ltd.
Defendants
Before: The Honourable Mr. Justice N. Smith
Reasons for Judgment
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Counsel for the Plaintiff: |
P. Dudding |
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Counsel for the Defendants: |
J. Forsythe |
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Place and Dates of Hearing: |
Victoria, B.C. August 8 and 9, 2018 |
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Place and Date of Judgment: |
Victoria, B.C. September 17, 2018 |
[1] The plaintiff was injured when he fell while getting up from a wooden bench he had been sitting on. An armrest broke away from the bench when the plaintiff put his weight on it. That caused him to lose his balance and fall to the ground, breaking his hip.
[2] The bench was located on the grounds of Broadmead Terrace, a five-building condominium complex in Saanich, British Columbia, owned by the defendants, Owners of Strata Plan VIS3782 (the “Strata”). The issue on this summary trial application is whether the Strata is liable for the plaintiff’s injuries, either under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 [OLA] or at common law. The plaintiff consents to a dismissal of the action as against the second defendant, Boorman Investments Co. Ltd., which had previously performed some management services for the Strata.
[3] The fall occurred on December 14, 2015. The plaintiff was 75 years old at the time. He says he had gone for a walk while his wife was at a choir practice, but decided to seek shelter from increasing wind. He found the bench at the head of a flight of stairs near the entrance to Broadmead Terrace. Although the bench was outdoors, it was next to a portico that provided shelter from the wind. The plaintiff says the bench looked old, with moss growing on the backrest, but did not appear unsafe.
[4] After the plaintiff had been sitting on the bench for about half an hour, the weather improved and he decided to resume his walk. He says he put his hand on the right armrest to support his weight as he got to his feet. The armrest then broke away and the plaintiff says that unexpected loss of support put him off balance. His body twisted to the left and he fell to the ground.
[5] The bench was subsequently repaired and relocated to a different part of the Strata’s grounds. The only evidence of what it looked like immediately after the plaintiff’s fall is subject to an objection on admissibility.
[6] The plaintiff relies on two experts on wood products who have not directly inspected the bench and have only seen photographs of it in its repaired condition. They make the obvious point that wood left outdoors for several years in a climate such as British Columbia’s is subject to deterioration and decay. They also say, with specific regard to wooden benches, that decay is most likely to occur where the armrest connects to the bench because joints and fasteners trap water within the wood.
[7] One of those experts says that with regular cleaning and maintenance, wooden surfaces can have a useful life expectancy of approximately 25 years, but a lack of maintenance can shorten that by up to 10 or 15 years.
[8] There is no evidence that establishes the age of the bench at issue. Denis Moffatt, the president of the Strata Council at the relevant time, said on examination for discovery that the complex was developed in three phases that were completed in 1996, 2000, and 2005, but he did not know if the benches on the grounds were installed with the original landscaping. Although the photographs of the bench put into evidence were taken after it was repaired and relocated, they show a bench that is clearly far from new. That is consistent with the plaintiff’s evidence of his own observations on the day of the incident.
[9] The plaintiff’s experts say that because wooden surfaces exposed to the elements are subject to decay, they require regular inspection and maintenance. The Strata argues that it had an adequate, albeit informal system of inspection that had not previously revealed any problem with the bench and the Strata Council had received no complaints about it.
[10] Although it is the defendants who applied for dismissal of the plaintiff’s claim on summary trial, both parties now ask the court to decide the issue of liability. The plaintiff elected not to proceed with a cross‑application seeking further documents and a continued examination for discovery.
[11] The fact that both parties want liability to be decided on summary trial does not diminish the court’s duty to consider whether that is appropriate. Rule 9-7(2) of the Supreme Court Civil Rules permits an application for judgment on an issue or generally by way of a summary trial, but where a party seeks judgment on liability only, it must first meet the test for severance: Thomas v. The Roman Catholic Archbishop of Vancouver, 2016 BCSC 1466 at para. 16.
[12] The test for severance is whether there are extraordinary, exceptional or compelling reasons for the severance. A likelihood of a significant savings in time and expense realized by a summary trial may be compelling reason to order severance: Burg Properties Ltd. v. Economical Mutual Insurance Company, 2013 BCSC 209 at para. 27.
[13] I am satisfied that such savings are likely in this case. Judgment for the defendants on liability will end the matter and save both parties the expense of preparing and conducting a trial on issues on both liability and damages. If the plaintiff is successful on liability, a subsequent trial limited to damages will be significantly shorter and a pre-trial settlement will be more likely.
[14] As to whether the matter is suitable for summary trial, the question under R. 9-7(15) is whether the court can find the necessary facts on the evidence before it or whether it would be unjust to decided the issue summarily. Judgment should not be given on issues that intertwine with other issues that are left to trial: Coast Foundation v. Currie, 2003 BCSC 1781 at paras. 13–15.
[15] In this case, there is no intertwining of issues and there are no credibility issues that prevent determination of liability. The defendants do not challenge the credibility of the plaintiff’s evidence of how his injury occurred. Issues related to damages that may have to be tried separately are entirely distinct.
[16] The issue on liability is whether the defendants met their statutory and/or common law duty to take reasonable care to see that the premises were reasonably safe. The evidence of what steps the defendants took to meet that duty is contained in documentary, affidavit, and discovery evidence. The plaintiff does not challenge the credibility of that evidence, but says it falls short of the legal standard of care in the circumstances. By abandoning his application for further documents and discovery, the plaintiff effectively concedes that no further evidence is required to resolve the liability issue.
[17] I, therefore, agree with both counsel that a conventional trial is not necessary to decide the defendants’ liability and that a summary trial is a proportionate, more expeditious and less expensive means to achieve a just result.
[18] Before proceeding to the liability issue, it is necessary to deal with three evidentiary objections raised by the defendants.
[19] Shortly after the plaintiff fell, his son, Steven Hamilton, was called to the scene and arrived as ambulance paramedics were tending to his father. Steven Hamilton died in July 2017, but had been interviewed by a lawyer at plaintiff’s counsel’s firm on July 7, 2016. That was almost three months after the plaintiff’s notice of civil claim was filed. The plaintiff seeks to adduce a transcript of that interview and, in particular, Steven Hamilton’s observations of the condition of the bench.
[20] The central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability, but a hearsay statement may be admitted if it is both necessary and reliable. The defendants do not dispute that the evidence of Steven Hamilton may be considered “necessary”, but say that it does not meet the test for reliability.
[21] The reliability requirement will generally be met by showing:
(a) that there is no real concern about whether the statement is true or not because of the circumstances in which it came about; or
(b) that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than cross-examination.
R. v. Khelawon, 2006 SCC 57 at paras. 61–63.
[22] Neither of those conditions are met in regard to Steven Hamilton’s interview. The interview took place almost seven months after the fact, after litigation had been commenced, and for the purpose of that litigation. Mr. Hamilton was describing observations he had made at the same time that he would obviously have been concerned about his father. Counsel for the defendants has no opportunity to test the nature and extent of his observations or the accuracy of his recollection. There is no other evidence that the hearsay statement can be directly compared to and weighed against.
[23] I agree with counsel for the Strata that the accuracy of the evidence cannot be meaningfully tested and that it does not meet the requirement of threshold reliability.
[24] The plaintiff also seeks to rely on the hearsay statement of Vic Edwards, who volunteers as a handyman for the Strata. Mr. Edwards has been said to have had discussions with members of the Strata Council about maintenance of benches on the property. These discussions preceded the plaintiff’s fall. He also repaired the bench after the plaintiff’s fall. Although Mr. Edwards spoke to plaintiff’s counsel, he was apparently unwilling to swear an affidavit.
[25] The statement from Mr. Edwards is actually double hearsay. It is contained in an affidavit from a paralegal stating that plaintiff’s counsel obtained contact information for Mr. Edwards and “an interview was conducted”. It does not say who in the law firm conducted the interview, but summarizes what the affiant understands Mr. Edwards to have said to the interviewer. Unlike the statement of Steven Hamilton, the affidavit does not purport to include a transcript of Mr. Edwards’ actual words and there is no way to determine if any context or qualification is missing from the summarized statement.
[26] Double hearsay is rarely admissible. It will only be permitted in exceptional circumstances where each level of the hearsay falls within an exception or is otherwise admissible under the principled approach: R. v. Starr, 2000 SCC 40 at para. 172. Where hearsay is permitted, the source of the information must be precisely set out: Sermeno v. Trejo, 2000 BCSC 846 at para. 10.
[27] The hearsay statement of Mr. Edwards not only fails to meet the reliability requirement for the reception of hearsay evidence but likely does not meet the necessity requirement. The plaintiff could have applied for pre-trial examination of a witness under R. 7-5 (although the plaintiff may have faced a difficulty in that the Rule requires such an application be supported by an affidavit stating that the witness refused or neglected “to give a responsive statement, either orally or in writing”. Mr. Edwards gave a responsive statement orally, but refused a request to follow that up with a written one.)
[28] In any event, the hearsay evidence can only be said to be “necessary” in the context of a summary trial application that both parties agreed was appropriate. If the matter proceeded to a conventional trial, plaintiff’s counsel could have obtained Mr. Edwards’ attendance through a subpoena. If his evidence was critical to the plaintiff’s case, that may have been a basis for finding the matter unsuitable for summary trial, but the plaintiff made no such submissions.
[29] Defence counsel also objects to the plaintiff’s reliance on minutes of Strata Council meetings that the defendants have produced in the course of this action. The plaintiff seeks to rely on those minutes to show that in the months preceding the plaintiff’s fall, the Strata Council discussed a need to replace two benches that were deteriorating.
[30] Defence counsel says those documents do not meet the requirements for admissibility of business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124. Those requirements are set out in s. 42(2):
(2) In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if
(a) the document was made or kept in the usual and ordinary course of business, and
(b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time after that.
[31] When documents are produced by a party, that party will frequently agree to their admissibility as business records. But in the absence of such an agreement or admission, the party seeking to rely on them must call a witness to prove that the preconditions for admissibility are satisfied. The records are not made admissible merely by placing them before the court: Sandhu v. Gill (1999), 93 A.C.W.S. (3d) 670 (B.C.S.C.). No agreement has been made in this case and the necessary evidence has not been called.
[32] As an alternative to the documents being admissible as business records, plaintiff’s counsel relies on the “documents in possession” doctrine. In Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCSC 861 at para. 49, Justice Steeves adopted the definition of the doctrine from Phipson on Evidence, 13th ed. (1982):
[49] ...
Documents which are, or have been, in the possession of a party will, ... generally be admissible against him as original (circumstantial) evidence to show his knowledge of their contents, his connection with or complicity in, the transactions to which they relate, or his state of mind with reference thereto. They will further be receivable against him as admissions (i.e. exceptions to the hearsay rule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them.
[Emphasis in original.]
[33] Justice Steeves also referred to and followed the approach adopted in Ault v. Canada (Attorney General), [2007] O.J. No. 4924 (S.C.).
[58] The plaintiffs in Ault argued that the documents were admissible for their truth even though they contained hearsay. This was based on necessity and reliability under the principled approach to the exceptions to hearsay (discussed below). In contrast, the defendants argued that the documents might be admissible for the limited purpose of proving certain statements were made or information was sent or received. However, because they were hearsay and there were issues related to necessity, they were not admissible for their truth. In the end, some documents were admitted for their truth and others were not admitted.
[59] As a first step in its reasoning, the court found that all of the documents were relevant (at para. 10). The court then noted that all but one document was authored by a government employee and were in the possession of the defendant at some time and were therefore admissible under the documents in possession doctrine (at para. 11).
[60] On this basis the documents at issue in Ault (except for one document) were admissible for a limited purpose, to prove that (at para. 12):
… the statements were made to and/or by the defendant, that information was provided to and/or by the defendant, what specific information was provided to whom at what time and the state of mind, beliefs or understanding of the defendant (through its agents) at a particular point in time.
[61] I adopt this approach and find that the documents in possession doctrine applies to the documents at issue in the subject application for the purposes of their admission but for limited purposes. Those purposes will depend on the nature of each document. This doctrine does not establish the truth of a document unless the contents have been recognized, adopted or acted upon by, in this case, British Columbia, or, as below, they are admissible under one of the exceptions to the rule against hearsay.
[Emphasis in original.]
[34] I adopt the same approach in this case. The Strata Council minutes were produced by the defendants and are clearly documents in their possession. They are admissible for the fact that Strata Council received certain information, but not for the truth of that information. They are also admissible as evidence that the council discussed taking certain actions, but not as evidence those things were done.
[35] Minutes of Strata Council meetings show that on June 11, 2015, Council had some discussion about a deteriorating bench, although not the one at issue. The minutes do not contain details regarding the nature of this deterioration or how it was discovered. They simply record that the Strata Council adopted a motion that:
The bench be removed and moved to replace a deteriorating bench near 4484.
[36] On October 19, 2015, Strata Council again discussed a deteriorating bench. The minutes state:
A bench in front of 4484 will be replaced with a new one due to wood decay.
[37] Counsel for the plaintiff says the need to replace two benches because of deterioration or decay in a four‑month period should have prompted the Strata Council to change its approach to inspection and maintenance. It is not clear to me, however, that those two sets of minutes are referring to two different benches. I note that both refer to a bench at the same location within the complex.
[38] Mr. Moffatt was the president of the Strata Council at the relevant time. He says in an affidavit that the Strata Council has a garden committee whose responsibilities include benches in the complex. The committee reports to the Strata Council every month. He says he was not aware of any issues or complaints about the bench prior to the plaintiff’s fall. Asked on discovery whether there was a regular inspection or maintenance program, Mr. Moffatt said:
Basically, there is no regular inspection or maintenance done on any of the benches. Periodically, they may be -- what’s the word -- tested, shaken, pulled, rattled, banged, sat in by -- we do have a garden committee. One of the members may do that. But in terms of any kind of regular maintenance program, no, there is not such a program. The benches are used extensively and intensively during the summer months by residents who are quick, I assure you, to point out any deficiencies that might be observed. Including the occasional sliver, maybe.
[39] Joyce Lennard was a member of the garden committee from 2014 to 2016. She swore an affidavit saying that she, in fact, toured the gardens once a week or every few days. During those tours, she looked at and “rattled” the benches to ensure they were in good condition. She says she did not notice any problems with the bench at issue prior to the plaintiff’s fall. Counsel for the plaintiff points out that Ms. Lennard does not specifically say she inspected the armrests.
[40] Dr. Darrel Nicholas is a professor in the Department of Sustainable Biomaterials at Mississippi State University and has conducted research in all aspects of wood bio-deterioration and preservation. He is one of the experts, referred to above, who says that areas where the armrest connects to the bench would be most susceptible to decay.
[41] Dr. Nicholas says in a report that wood structures exposed to the elements need to be inspected periodically, with particular attention to areas such as armrests that tend to trap water. He says a reasonable inspection would include a visual and probing inspection of joints as well as putting weight on the load bearing areas.
[42] The plaintiff’s other expert is Matt Anderson, a wood science consultant. He also says regular inspection of connections, such as those between the armrest and the bench, is important and should be done at least once a year.
[43] Counsel for the plaintiff argues that Ms. Lennard’s description of her regular visual inspection and “rattling” of benches does not meet the standard of inspection the experts say is required, particularly when the Strata Council had specifically discussed deterioration of benches in the preceding months.
[44] Section 3 of the OLA provides:
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.
[45] There is no dispute that the strata was an “occupier” under the OLA. The definition of “premises” includes:
(a) land and structures or either of them, excepting portable structures and equipment other than those described in paragraph (c),
...
(c) trailers and portable structures designed or used for a residence, business or shelter, and ...
[46] The standard of care under the OLA and at common law for negligence is the same: it is to protect others from an objectively unreasonable risk of harm. Whether a risk is reasonable or unreasonable is a question of fact: Agar v. Weber, 2014 BCCA 297 at para. 30.
[47] Some time was taken in argument over the issue of whether the bench was a fixture on the property or a portable structure covered by the exception in the OLA definition of premises. Plaintiff’s counsel argued that it was a fixture because it had likely been attached to four small concrete pads that are still in the ground at its former location. However, counsel for the Strata eventually conceded that there was no need to decide that issue because even if the OLA does not apply, the applicable standard of care at common law is the same in these circumstances.
[48] The applicable principles in cases applying the OLA were summarized in Mainardi v. Shannon, 2005 BCSC 644 at para. 21:
(1) The plaintiff bears the onus of proving on a balance of probabilities that the occupier breached his or her duty of care.
(2) A presumption of negligence is not created by the fact that the plaintiff was injured. The plaintiff must establish that some act or failure to act on the part of the occupier resulted in his or her injury.
(3) The duty of care imposed by the Act does not require the occupier to remove every possibility of danger -- the test is one of reasonableness, not perfection.
(4) The Court is not entitled to resort to speculation when determining the cause of the plaintiff’s fall and subsequent injury. The plaintiff must prove the nexus between his or her fall and the occupier’s failure to discharge his or her duty of care.
(5) The care that an occupier must take differs according to the nature and use of the premises.
(6) The occupier need not, in all cases, show that he or she had a specific policy in place to deal with the maintenance of the portion of the premises where the fall occurred. The nature of the premises will determine whether or not a maintenance scheme will be required.
[49] The plaintiff must prove firstly, what hazard or condition caused the fall and, secondly, that the defendants’ breach of their duty of care caused the hazard or condition to be present: Thomas, quoting Newsham v. Canwest Trade Shows Inc., 2012 BCSC 289 at para. 42.
[50] In Howells v. Southland Canada, Inc., [1995] B.C.J. No. 397 (S.C.), the plaintiff was injured when a chair he was sitting on in a convenience store broke. There was no evidence about why the chair broke and the court concluded at para. 28:
[28] ... Given the fact that it has not been established why the chair broke, whether it was because of the plaintiff’s weight or due to some defect or damage to the chair, it is not a reasonable inference that the chairs themselves were unsafe or that the defendant ought to have known that they presented an unreasonable risk to its customers.
[51] Similarly, in Visser v. Loblaw Inc. et al, 2001 BCSC 1781, the plaintiff was injured when the chair upon which she was sitting in the pharmacy area of the defendant’s store broke, but there was no evidence of why it broke. The court said at para. 18:
[18] ... There was no evidence that this type of chair deteriorates over time. Without evidence as to why the chair broke, I cannot infer that the chair was unsafe or that the defendant knew or ought to have known that it was unsafe. ...
[52] In this case, there is evidence that this type of bench, when exposed to the elements on a long-term basis, does deteriorate over time and that the bench broke at the very spot where the deterioration is most likely to occur. That is evidence from which it can be inferred, on the balance of probabilities, that there was some defect or deterioration in the wood that caused the armrest to break off when the plaintiff put his weight on it. I find that the plaintiff has satisfied the first branch of the test referred to in Thomas.
[53] On the second branch of that test, the question is whether the presence of that defect amounted to an objectively unreasonable risk of harm. That depends on whether the Strata knew or reasonably should have known about it, and whether a reasonable owner, knowing about the defect, would have repaired or removed the bench before the date of the plaintiff’s fall. The standard is one of reasonableness, not perfection.
[54] The evidence is clear that the Strata Council had received no complaints about the bench and was not aware of any defect. The evidence of Ms. Lennard is that benches were inspected regularly to ensure they were secure and in good condition. That inspection was undoubtedly more cursory or less exacting than what the plaintiff’s experts suggest, but there is no evidence that residents of a strata who volunteer to serve on a garden committee had or should have had the same knowledge as experts in wood products.
[55] Dr. Nichols said the purpose of the inspection he recommends is to “simulate the strains or stresses applied to the wood structure during use.” Mr. Moffatt said, on discovery, that the benches were used “extensively and intensively during the summer months.” As counsel for the Strata notes, the “ordinary stresses and strains” were not just simulated, but were actually being applied on a regular basis.
[56] I find that the standard of inspection put forward by the plaintiff is one of perfection rather than reasonableness. But even if that standard is applicable, the plaintiff’s expert, Mr. Anderson’s opinion was that the detailed inspection be done only at least once a year. The logical time to perform an annual inspection would have been in the spring—before the period of most intensive use and immediately after the season of greatest exposure to rain. There is no evidence from which it can be inferred that the defect that caused the plaintiff’s fall in December 2015 would have been present or detectable on an inspection six to eight months earlier.
[57] I find that the plaintiff has failed to prove that the bench posed an unreasonable risk that the defendants knew or should have known about and the action must be dismissed with costs.
“N. Smith J.”