Robitaille et al. v. Anspor Construction Ltd. et al.

• Jurisdiction: Ontario
• Judge: Charron, Sharpe and Simmons, JJ.A.
• Citation: (2002), 161 O.A.C. 96 (CA)
• Court: Court of Appeal (Ontario)
• Date: 20 June 2002

Robitaille v. Anspor Constr. Ltd. (2002), 161 O.A.C. 96 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JN.056

Enid Robitaille and John Stevenson (plaintiffs/appellants) v. Anspor Construction Limited and Nuberg & Dale Construction Limited trading as Nuspor Investments (defendants/respondents)

(C33389)

Indexed As: Robitaille et al. v. Anspor Construction Ltd. et al.

Ontario Court of Appeal

Charron, Sharpe and Simmons, JJ.A.

June 20, 2002.

Summary:

Robitaille broke her ankle when she slipped and fell in the parking lot of her apartment building. She and her husband sued the building's owners.

The Ontario Superior Court dismissed the action. The plaintiffs appealed.

The Ontario Court of Appeal dismissed the appeal.

Evidence - Topic 1591

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Hospital records - Robitaille broke her ankle when she slipped and fell in the parking lot of her apartment building - She and her husband unsuccessfully sued the building's owners - They appealed, arguing that the trial judge erred in: (1) admitting those portions of the hospital records and an ambulance report that referred to the mechanism of the fall; and (2) in permitting the references to the mechanism of the fall contained in the hospital records and the ambulance report to be used as evidence of prior inconsistent statements of Robitaille - The plaintiffs asserted that the impugned references in the hospital records and the ambulance report were not properly admissible as business records under s. 35 of the Evidence Act (Ont.) because the record makers had no personal knowledge of the mechanism of the injury - They also claimed that it was not in the usual and ordinary course of business to record this type of information, relying on testimony of the attending physician to the effect that the question of whether Robitaille fell over a chain or slipped on ice was not significant to her treatment - The Ontario Court of Appeal rejected the plaintiffs' arguments and dismissed the appeal - See paragraphs 2 to 6.

Torts - Topic 3574

Occupiers' liability or negligence for dangerous premises - Negligence of occupier - Standard of care - The jury asked the trial judge what was the meaning of "reasonable" as used in a the following question that they were required to answer: "Did the defendants take reasonable care under the circumstances to see that the Plaintiff [...] was reasonably safe while on the premises of [...]" - The trial judge responded that the term "reasonable" carried "its ordinary, everyday meaning" and that what was reasonable was for them to decide "having regard to all the circumstances disclosed by the evidence and it is measured by the person of ordinary prudence and not by someone of extraordinary conscientiousness" - The plaintiffs, unsuccessful at trial, appealed, arguing that the term "ordinary" may have confused the jury because "ordinary" prudence, or "customary" prudence, may not be reasonable in particular circumstances - The Ontario Court of Appeal rejected the argument and dismissed the appeal - See paragraphs 7 to 9.

Counsel:

Chris Morrison and Gary Will, for the appellants;

Daniel I. Reisler and Leanne N. Notenboom, for the respondent.

This appeal was heard on June 14, 2002, by Charron, Sharpe and Simmons, JJ.A., of the Ontario Court of Appeal.

The Court of Appeal released the following endorsement on June 20, 2002.