Case Summary: Stefanyk v Sobeys Capital Incorporated

2. Liability Issues

   3. 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]

1. 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.

2. 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...