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Monday Morning Case Bites for December 23, 2019

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Christie Dewar

Bzdziuch v Loblaws Companies Limited, 2019 ABQB 984
Slip and Fall / Liability / Damages for fractured humerus

Sehic v National Home Warranty Group Inc, 2019 ABQB 955
Limitations / Section 5.3 of the Fair Practices Regulation


Bzdziuch v Loblaws Companies Limited, 2019 ABQB 984

This was a trial on liability and quantum for a slip and fall that occurred in a grocery store. The plaintiff was unsuccessful at trial.

The plaintiff tripped and fell over a pallet at a grocery store while shopping. The Court dismissed the claim on the following basis:

[22]           In answering these questions, I conclude that the defendants are not liable for the plaintiff’s injuries. The plaintiff’s arguments that the defendants allowed for an empty or significantly shopped down pallet to be protruding into the pedestrian walking area, that the defendants did not draw attention to the pallet, and that the plaintiff was following a busy crowd when she tripped on the edge of the pallet are unsupported by the evidence heard at trial.

In dismissing the claim, the Court relied on photos taken of the pallet on the date of the fall.  The pallet in question was not empty, and the bottom of the pallet was bright yellow:

[27]           Further, as I noted, the pallet was shopped down by about half, revealing the floor of the pallet, which is bright yellow. As boxes are removed from the pallet, more of the bright yellow floor of the pallet is exposed and visible. The base of the pallet is bright red in colour. The floor of the walk-in cooler is a dull grey concrete. The bright red and yellow colouring of the pallet stands out in stark contrast to the grey floor. It is well lit. I cannot reasonably conceive of any markings, delineations or signs that would be more effective in drawing a customer’s attention to this pallet than the extensive amount of bright red and yellow paint that is evident on the pallet itself.

Further, the store’s “Display Guidelines” were also considered:

[28]           The “Display Guidelines” of the defendants found in Exhibit 1, Tab I discuss how product is to be displayed on shelves and pallets. In it there is a reference to the five-foot rule at I.6 which says: “Ensure there is a clear 5 feet around all displays to allow for customer traffic.”  Also, on that page: “A minimum of 5-foot passage rule around all pallet drops…”. While there is a comment on page I.7 that “Pallet product should be kept at a consistent height” that appears to refer specifically to the displays of “Club Deals” in four pallet blocks in the “action alley” and is for the purpose of marketing the product. It is clear from the photographs and the evidence that there was more than 5 feet of clearance around this pallet on its three exposed sides. Accordingly, I do not believe that the defendants breached their “Display Guidelines”.

The Court confirmed that an occupier is not an insurer:

[32]           As noted earlier, the occupier is not an insurer of the visitor’s safety. It is difficult to conceive of what more the defendants could reasonably have done to protect the plaintiff from her own negligent inattention to where she was walking. It appears from her evidence that she never saw the pallet until after she fell. Yet she had to have walked into the cooler and past the brightly coloured pallet to get her eggs and other items in the cooler before turning around and proceeding to exit the cooler and falling. If she did not notice it then, it is doubtful she would have noticed tape, cones or signs. Further, it is not reasonable, in my opinion, to expect or require the occupier to keep the pallet full of product at all times.

In terms of damages, the plaintiff was 77 years old.  She suffered a fractured proximal humerus, and did not heal well.  She was hospitalized for three weeks and declined surgery:

[56]           In the final analysis, I find that as a result of the fall, the plaintiff suffered a fracture of the left proximal humerus which has gone on to non-union, together with some bruising. The bruising cleared up over about 10 weeks post-fall but left shoulder has not healed and has resulted in a permanent impairment, mobility and disability of that shoulder. Besides the significant restriction in the mobility of this shoulder, it has and continues to cause pain in the shoulder area. I also note that the plaintiff is left-handed.

General damages were provisionally assessed at $75,000.


Sehic v National Home Warranty Group Inc, 2019 ABQB 955

This was a successful appeal of a successful summary dismissal application. The claim was originally dismissed on the basis that it was brought more than two years after the cause of action arose, and therefore was barred by the Limitations Act. On appeal, the plaintiff relied on Section 5.3 of the Fair Practices Regulation, which requires an insurer to give written notice of the limitation period:

[18]           Mr. Sehic raises section 5.3 of the Fair Practices Regulation, promulgated under the Insurance Act.  Section 5.3(2) was effective July 1, 2012.  It requires an “insurer” to give written notice to a claimant of the applicable limitation period at various junctures, including within 60 days of being notified of the claim, and within 5 business days of denying the claim.[3]  Neither Aviva nor NHWG gave any such notice to the Sehics.

The appeal was allowed on the following basis:

[41]           Even if the application of section 5.3 of the Fair Practices Regulation in these circumstances amounts to retrospective application, it is generally accepted that the presumption against retrospective application does not apply where the new prejudicial consequences raised by the provision are intended to protect the public and where they are purely procedural:  Sullivan at 359.  Both of those exceptions are potentially at play here.  The Fair Practices Regulation is in the nature of consumer protection legislation.  And section 5.3 has no bearing on the interpretation of the Warranty, the rights of any party under the Warranty or even on the limitation period itself.  Rather, it merely establishes one step that an insurer is required to take as part of the claimant’s process of enforcing his rights under the Warranty or as part of the insurer’s process of enforcing its rights under the applicable limitations provision.

[44]           The facts in this application, as far as they go, are not seriously in issue.  To a significant extent, the issues raised involve applying the law to undisputed facts.  In those circumstances, the Court is often able to make a fair and just summary determination.  Summary determination of some sort is particularly attractive in a case like this, which involves a good number of factual and legal issues, the resolution of which could be disproportionate to the value of the claim, currently quantified at $116,000.  However, for the reasons set out above, NHWG has not met the burden to show that there is no merit to Mr. Sehic’s claim on the basis of the limitations issue raised in the summary judgment application:  Weir-Jones at para 47, point b).

[45]           In these circumstances, I must allow the appeal and dismiss the summary judgment application.  This does not mean that a trial is necessarily in the parties’ best interest.  I encourage them to look at the options available to them to streamline issues, or resolve the matter short of a full trial.