Kerr et al. v. Loblaws Inc.,

• Jurisdiction: Ontario
• Judge: Laskin, Cronk and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2007), 224 O.A.C. 56 (CA),2007 ONCA 371
• Date: 16 May 2007

Kerr v. Loblaws (2007), 224 O.A.C. 56 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.065

Clara Margaret Kerr, Angela Harper, Cathie Cambden and Carol Jones (plaintiffs/appellants) v. Loblaws Inc. (defendant/respondent)

(C45439; 2007 ONCA 371)

Indexed As: Kerr et al. v. Loblaws Inc.

Ontario Court of Appeal

Laskin, Cronk and Lang, JJ.A.

May 16, 2007.

Summary:

The 80 year old plaintiff injured her right ankle when she slipped and fell on a single grape in the produce section of the defendant's grocery store. The plaintiff and others sued for damages, claiming that the defendant breached its standard of care under the Occupiers' Liability Act. The jury determined that the defendant took reasonable care for the plaintiff's safety. Damages were provisionally assessed at $58,300. The trial judge dismissed the action. The plaintiff appealed, submitting that the trial judge misdirected the jury on the standard of care and causation, and complaining that the jury's verdict was unreasonable.

The Ontario Court of Appeal dismissed the appeal. The jury was properly instructed and there was evidence to support the verdict.

Practice - Topic 5191

Juries and jury trials - Charge to jury - Failure to object to - The plaintiff in a grocery store slip and fall action challenged the adequacy of the trial judge's jury charge on the standard of care of an occupier - The Ontario Court of Appeal rejected the contention that "Ontario case law establishes a specific standard of care for grocery store produce departments and that the trial judge erred by failing to particularize that standard of care for the jury" - The standard of care was established under s. 3(1) of the Occupiers' Liability Act, which obligated an occupier to take reasonable care to see that persons entering the store were reasonably safe - The trial judge properly quoted and explained the s. 3(1) standard of care - Once the trial judge identified and explained the relevant standard of care, he was not required to embellish that standard by providing specific examples of how the standard was applied in other cases - Although not determinative, the court noted that the plaintiff's counsel did not object to the jury charge.

Practice - Topic 5193

Juries and jury trials - Charge to jury - Respecting law and case law - [See Practice - Topic 5191 ].

Torts - Topic 3574

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Standard of care (incl. evidence) - [See Practice - Topic 5191 ].

Cases Noticed:

Galaske v. O'Donnell et al., [1994] 1 S.C.R. 670; 166 N.R. 5; 43 B.C.A.C. 37; 69 W.A.C. 37, refd to. [para. 21].

Stewart v. Pettie et al., [1995] 1 S.C.R. 131; 177 N.R. 297; 162 A.R. 241; 83 W.A.C. 241, refd to. [para. 22].

Nova Mink Ltd. v. Trans-Canada Airlines, [1951] 2 D.L.R. 241 (N.S.S.C.), refd to. [para. 22].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372; 47 O.A.C. 241, refd to. [para. 24].

Winters v. Loblaws Supermarkets Ltd., [2005] O.T.C. 705 (Sup. Ct.), refd to. [para. 24].

Garofalo v. Canada Safeway Ltd. (1998), 66 O.T.C. 241 (Gen. Div.), refd to. [para. 24].

Marche v. Empire Co. and Sobeys Inc. (2001), 193 N.S.R.(2d) 132; 602 A.P.R. 132 (C.A.), refd to. [para. 25].

Chan v. Erin Mills Town Centre Corp. et al., [2005] O.T.C. 986 (Sup. Ct.), refd to. [para. 28].

Brochu v. Pond et al. (2002), 166 O.A.C. 353; 62 O.R.(3d) 722 (C.A.), refd to. [para. 32].

Mizzi v. Hopkins (2003), 171 O.A.C. 161; 64 O.R.(3d) 365 (C.A.), refd to. [para. 32].

1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co. (2006), 209 O.A.C. 127; 267 D.L.R.(4th) 690 (C.A.), refd to. [para. 32].

Pereira v. Hamilton Township Farmers' Mutual Insurance Co. - see 1018202 Ontario Ltd. v. Hamilton Township Farmers' Mutual Fire Insurance Co.

Kamin v. Kawartha Dairy Ltd. (2006), 207 O.A.C. 199; 79 O.R.(3d) 284 (C.A.), refd to. [para. 40].

McCannell v. McLean, [1937] S.C.R. 341, refd to. [para. 46].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 46].

Snushall v. Fulsang et al. (2005), 202 O.A.C. 297; 78 O.R.(3d) 142 (C.A.), refd to. [para. 46].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (8th Ed. 1992), p. 106 [para. 21].

Counsel:

Kirk F. Stevens and Darcy Romaine, for the appellants;

David H. Lauder and Gillian B. Eckler, for the respondent.

This appeal was heard on February 1, 2007, before Laskin, Cronk and Lang, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was delivered by Cronk, J.A., and released on May 16, 2007.