Miller v. Royal Bank of Canada, (2008) 272 N.S.R.(2d) 179 (CA)

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: Murphy,Roscoe,Saunders
• Neutral Citation: 2008 NSCA 118
• Citation: (2008), 272 N.S.R.(2d) 179 (CA),2008 NSCA 118,272 NSR(2d) 179,(2008), 272 NSR(2d) 179 (CA),272 N.S.R.(2d) 179
• Date: 16 December 2008

Miller v. Royal Bk. (2008), 272 N.S.R.(2d) 179 (CA);

    869 A.P.R. 179

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. DE.040

Brenda Miller (appellant) v. Royal Bank of Canada (respondent)

(CA 293629; 2008 NSCA 118)

Indexed As: Miller v. Royal Bank of Canada

Nova Scotia Court of Appeal

Roscoe and Saunders, JJ.A., and Murphy, J.(ad hoc)

December 16, 2008.

Summary:

The 43 year old plaintiff slipped and fell in the lobby of the defendant bank. The plaintiff brought an action for damages under the Occupiers' Liability Act, claiming that the floor was wet and a danger to bank customers. Video surveillance showed the flip-flop wearing plaintiff falling, getting up, and leaving the bank. No other customer slipped during the next 4.5 hours and the area was not mopped. It was unclear from the video whether the floor was wet.

The Nova Scotia Supreme Court, in a judgment reported (2008), 263 N.S.R.(2d) 121; 843 A.P.R. 121, dismissed the action, but provisionally assessed damages. The parties made submissions on costs.

The Nova Scotia Supreme Court, in a judgment reported (2008), 265 N.S.R.(2d) 58; 848 A.P.R. 58, awarded the successful defendant $13,545 in costs and disbursements of $7,262.78. The plaintiff appealed the dismissal of her claim.

The Nova Scotia Court of Appeal dismissed the appeal.

Torts - Topic 3574

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Standard of care (incl. evidence) - The 43 year old plaintiff entered a bank foyer on a misty day, wearing flip-flops - After stepping off the entrance mat, she slipped and fell on the tile floor - There were footprints of water on the tiles, tracked in by other ATM patrons, but no paper or other debris on the floor - There were no warning signs and the area had not been mopped - The bank had no system that designated certain employees to check and maintain the area - Employees checked the floor on an ad hoc basis and cleaned it up when necessary - In the almost two year period since the tiles were installed, there were no reported falls - In the 4.5 hours after the plaintiff fell, video surveillance established that no one else fell - There was no evidence that the plaintiff's footwear caused her to fall - The trial judge held that the bank did not breach its duty under s. 4 of the Occupiers' Liability Act to keep the premises "reasonably safe" for persons entering the bank - The standard of care was not one of perfection - The bank was not required to keep the floor absolutely dry at all times - Although there was evidence of the availability of floor tiles that were less slippery when wet, that did not establish that the floor tiles used were unsafe - To suggest that the bank install the least slippery tile available seemed to demand a standard of virtual perfection - The Nova Scotia Court of Appeal dismissed the plaintiff's appeal - There was no error in finding that the bank met the standard of care required of it under the Act.

Torts - Topic 3577

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Floors - [See Torts - Topic 3574 ].

Cases Noticed:

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. 6].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 6].

2703203 Manitoba Inc. v. Parks et al. (2007), 253 N.S.R.(2d) 85; 807 A.P.R. 85 (C.A.), refd to. [para. 6].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201, refd to. [para. 8].

Marche v. Empire Co. and Sobeys Inc. (2001), 193 N.S.R.(2d) 132; 602 A.P.R. 132 (C.A.), refd to. [para. 8].

Campbell v. Royal Bank of Canada, [1964] S.C.R. 85, dist. [para. 10].

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. 18].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 24].

Counsel:

Hugh R. McLeod, for the appellant;

Harvey M. McPhee, for the respondent.

This appeal was heard on December 4, 2008, at Halifax, N.S., before Roscoe and Saunders, JJ.A., and Murphy, J.(ad hoc), of the Nova Scotia Court of Appeal.

On December 16, 2008, Saunders, J.A., delivered the following judgment for the Court of Appeal.