IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Gujral v. Meat and Bread Sandwich  
Company Ltd.,  
2022 BCSC 917  
Date: 20220602  
Docket: S155417  
Registry: New Westminster  
Between:  
And  
Harpreet Gujral  
Plaintiff  
Meat and Bread Sandwich Company Ltd.  
Salient Developments (Flack) Ltd. and  
Flack Hastings Properties Ltd. Inc. No. 884844  
Defendants  
Before: The Honourable Mr. Justice Taylor  
Reasons for Judgment  
Counsel for the Plaintiff:  
A.E. Maragos  
R.R. Lee  
Counsel for the Defendant Meat and Bread  
Sandwich Company Ltd.:  
M. Carnello  
Counsel for Defendants Salient  
Developments (Flack) Ltd. and Flack  
Hastings Properties Ltd. Inc. No. 884844:  
S.T. Frost  
J. Lauwers  
Place and Dates of Trial:  
New Westminster, B.C.  
June 7-11; 14-18; 21-25, 2021  
June 28-30, 2021  
October 13-15, 2021  
November 4, 2021  
Place and Date of Judgment:  
New Westminster, B.C.  
June 2, 2022  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 2  
Table of Contents  
INTRODUCTION ....................................................................................................... 3  
BACKGROUND......................................................................................................... 4  
ISSUES...................................................................................................................... 7  
ANALYSIS................................................................................................................. 8  
Are the Defendants Liable under the OLA.............................................................. 8  
Applicable Law.................................................................................................... 8  
Application of Legal Test to Facts of the Case.................................................... 9  
Were each of the defendants an “occupier of premises”?............................... 9  
Did the defendants breach their duty of care?............................................... 11  
Did a particular condition or hazard cause the Fall?.................................. 12  
No direct evidence..................................................................................... 12  
Issues with the credibility and reliability of Mr. Gujral’s testimony.............. 13  
There was an alternative explanation for the Fall ...................................... 21  
The other evidence in support of an inferential conclusion was not strong 23  
Was the Fall caused by a breach of duty? .................................................... 31  
No evidence the floors were slippery......................................................... 32  
There was no expert evidence................................................................... 34  
The defendants had no reasonable basis to know there was a real risk that  
the floors were a hazard ............................................................................ 37  
Conclusions on the Evidence Adduced by the Plaintiff ................................. 39  
Losses and Damages....................................................................................... 43  
ORDER.................................................................................................................... 43  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 3  
Introduction  
[1]  
On a rainy day on October 21, 2011, the plaintiff, Harpreet Gujral, slipped and  
fell (the “Fall”) as he was leaving the Meat and Bread restaurant located at 370  
Cambie Street in Vancouver (the “Restaurant”). As a result of the Fall, Mr. Gujral  
suffered a very serious ankle fracture, resulting in several surgeries and a lengthy  
recovery and rehabilitation period.  
[2]  
Mr. Gujral commenced an action under the Occupiers Liability Act, R.S.B.C.  
1996, c. 337 [OLA] against the defendants, Meat and Bread Sandwich Company  
Ltd. (“Meat & Bread”), which operates the Restaurant, and Flack Hastings Properties  
Ltd. (“Flack Hastings”), which owns the building where the Restaurant is located.  
[3]  
The first issue addressed at trial was whether the defendants, either jointly or  
severally, are liable to Mr. Gujral under the OLA with respect to the Fall. Mr. Gujral  
alleged at trial that the wood floor inside the Restaurant and tiled floor in the external  
alcove of the Restaurant were wet, which caused the Fall. The defendants deny all  
liability, asserting that there was no evidence that the floor was unreasonably wet or  
slippery and that, in any event, Mr. Gujral was the author of his own misfortune  
because he turned his body immediately before the Fall to wave goodbye to the  
Restaurant staff, which resulted in him losing his balance.  
[4]  
The second issue addressed at trial, on the assumption that liability is found  
under the OLA, is an assessment of loss and damages. Mr. Gujral, a successful  
insurance sales executive, seeks recovery in the amount of $10,076,000 for past  
and future income loss, non-pecuniary damages, costs of future care and special  
damages, with the bulk of his claim being attributable to alleged lost commissions  
and bonuses. Mr. Gujral alleges that, as a result of his injuries from the Fall, he  
suffered from pain and resulting emotional difficulties from 2011 up to the date of  
trial, resulting in him being unable to perform at work at his previous level or to grow  
his business opportunities.  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
[5] The defendants take issue with the evidentiary support for Mr. Gujral’s  
Page 4  
damages claim, and also his methodology for calculating his losses, asserting that, if  
damages are to be awarded or assessed, a more reasonable award is $432,900.  
Background  
[6]  
Mr. Gujral is a senior insurance sales executive with American Income Life  
(“AIL”), which he joined shortly after completing high school and where he has built a  
very successful career. He was 32 years old at the time of the Fall and was 42 years  
old at the date of trial.  
[7]  
The Restaurant is located in the historic building known as the “Flack Block”  
at the corner of Hastings Street and Cambie Street. The defendant Flack Hastings  
owns and maintains the Flack Block, and has tenancy agreements with a number of  
retail and commercial businesses operating in the building, including Meat & Bread.  
[8]  
There were numerous photographs adduced at trial of the exterior and interior  
layout of the Restaurant. The uncontested evidence was that the entrance to the  
Restaurant has a recessed front door, with a black and white checkered tile alcove  
outdoors between the sidewalk and the threshold to the Restaurant. The tiled area is  
on a declining slope towards the sidewalk. A metal floor plate at the doorway marks  
a transition from the tile on the outside of the doorway to wood flooring within the  
Restaurant itself.  
[9]  
Inside the Restaurant, on the left side as a patron enters, was a countertop  
that held items such as condiments and a water station. On the right side near the  
entrance was a banquette by the window and chalkboard listing the specials for the  
day. Further into the Restaurant there was a long communal table for eating which  
stretches toward the back and, at the back, a counter line for ordering food, a cash  
station for payment and the restrooms.  
[10] Mr. Gujral testified that he lives in the area near the Restaurant and had been  
there previously on six to eight occasions prior to the day of the Fall. On the day of  
the Fall, Mr. Gujral recalled that the weather was overcast with intermittent showers  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 5  
and that it “started coming down” when he left his residence. He stated that he was  
not carrying an umbrella but was wearing a rain jacket and a pair of boots that he  
described as “rain boots” but which, based upon the photograph adduced as  
evidence at trial, are more accurately described as insulated winter boots. He  
testified that, after a ten-minute walk, he entered the Restaurant around 2:15 pm.  
[11] Mr. Gujral testified that he ordered a sandwich at the back of the Restaurant  
and sat down to eat it at a table near the front. He stated that he was there for about  
45 minutes while he ate before rising to leave at approximately 3:00 pm. Having  
finished his lunch, he cleared his plate, waved to the staff and proceeded toward the  
exit. As he made his way towards the exit, right before the metal threshold, he  
testified that he stepped with his left foot on the wood floor on the Restaurant side of  
the doorway. He stated that his left foot slid out from under him, crossing the  
threshold onto the tiled area. He testified that he attempted to catch himself with his  
right foot but was unable to find solid footing on the tiled area, resulting in his feet  
slipping “like skating on ice” and what he described as a “backward log step”.  
[12] Mr. Gujral testified that, while he was engaged in the backward log step, his  
weight moved toward the right and his leg moved in opposition towards the left,  
which resulted in “cracks” in his lower leg, such that he “barrel rolled” forward onto  
the ground and landed on the tiled area, with his head on the sidewalk and his feet  
across the threshold pointing into the Restaurant and resting on the wooden floor.  
[13] Mr. Gujral testified that, immediately after the Fall, he screamed and  
attempted to pull himself out of the entranceway and onto the sidewalk and was  
soon helped by two nearby men. They lifted him up, assisted and supported him as  
he hopped on one leg back into the Restaurant. The two men laid Mr. Gujral onto  
the banquette at the front of the Restaurant where he rested facing the chalkboard  
and looking toward the back counter. Mr. Gujral testified that, while he was sitting on  
the banquette, he looked at the area where he had fallen and saw that the wood  
floor and the tiles were wet.  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 6  
[14] Mr. Gujral testified that, once he was seated on the banquette, Restaurant  
staff came to assist him and removed his boots. At that time, he stated that he  
observed Restaurant staff wiping the wooden floor with paper towels. He stated that  
some of the staff then grabbed a mat which he had observed at or near the water  
station approximately three to six feet to the left of the front door, and dragged it to  
the entranceway, where they placed it over the wooden floor, the threshold and the  
outdoor tiles.  
[15] Mr. Gujral also adduced as evidence photographs taken after the Fall  
depicting the entranceway to the Restaurant. The first photograph, taken the day  
after the Fall, shows a floormat placed over the threshold, such that it extends on to  
both the tiles and wood flooring. The second photograph, taken in January 2015,  
shows a floormat placed over the tiled area. The third, taken in 2016, shows the  
entranceway with two floormats placed on both sides of the threshold, with one mat  
covering the external tiled area and the other mat covering the wood flooring at the  
front.  
[16] Immediately after the Fall, Mr. Gujral was transported to St. Paul’s Hospital by  
ambulance, where his right leg was x-rayed and he received a preliminary  
assessment. Mr. Gujral described his injuries as including a broken fibula, broken  
tibia, a dislocated ankle, torn ligaments and a partial Achilles tear.  
[17] On October 24, 2011, Mr. Gujral underwent surgery to repair his fractured  
ankle. The surgery was complicated because the fracture was splintered. After  
several days at the hospital, Mr. Gujral was discharged with crutches and a full cast,  
which remained for a few weeks. In December 2011, the staples were removed from  
his leg and he was given a soft cast boot, which remained on his leg until his second  
surgery in February 2012 to remove screws from his fibula and tibia bone.  
[18] Mr. Gujral testified that, during the remainder of 2011 after the Fall, he was  
unable to return to the office or to work for any concerted period of time. He testified  
extensively about the many steps he was required to take to delegate his  
responsibilities and “recode” his contracts and clients (i.e. reassign primary  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 7  
responsibility and certain commission entitlements) to other agents at AIL, all of  
which resulted in lost commissions and bonuses for him.  
[19] Mr. Gujral testified that, after the second surgery in February 2012, he was  
back on crutches and in a boot. In March and April 2012 he was only in the office a  
few hours a week, and was able to work very little, resulting in further financial  
losses. Mr. Gujral testified that he was doing rehabilitation work such as swimming  
and treadmill by June 2012. By August 2012, he was able to attend a work  
conference where he gave a fifteen-minute on-stage presentation, although he  
qualified this by noting that he was wearing an ankle and leg brace and suffering  
pain at the time.  
[20] By the end of summer 2012, Mr. Gujral had resumed relatively regular but  
limited work duties, although he testified that he continued to suffer thereafter from  
pain and complications arising from his injuries up to the date of trial, including the  
development of arthritis, depression and anxiety, which limited his productivity and  
career development, resulting in substantial additional economic losses.  
[21] Mr. Gujral testified that, although there has been some improvement since  
2015, he is still experiencing sufficient pain to necessitate a further surgery, which  
had been scheduled for late 2021.  
Issues  
[22] There were two principal issues at trial:  
1. whether the defendants, either jointly or severally, are liable to Mr. Gujral  
under the OLA with respect to the Fall; and  
2. if liability is found under the OLA, what recoverable losses and damages did  
suffer as a result of the Fall.  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 8  
Analysis  
Are the Defendants Liable under the OLA  
Applicable Law  
[23] Section 3 of the OLA imposes an obligation on an “occupier of premises” to  
take reasonable care that persons are “reasonably safe” in using the premises. The  
section reads as follows:  
Occupiers' duty of care  
3 (1) An occupier of premises owes a duty to take that care that in all the  
circumstances of the case is reasonable to see that a person, and the  
person's property, on the premises, and property on the premises of a  
person, whether or not that person personally enters on the premises, will be  
reasonably safe in using the premises.  
(2) The duty of care referred to in subsection (1) applies in relation to the  
(a) condition of the premises,  
(b) activities on the premises, or  
(c) conduct of third parties on the premises.  
[24] Section 3 of the OLA does not put the occupier of premises in the position of  
being an insurer of persons using the premises, nor does it create a presumption of  
negligence in the event that a person is injured. The burden is on an injured person  
to prove liability, and the standard of care is reasonableness and not perfection.  
[25] In Fulber v. Browns Social House Ltd., 2013 BCSC 1760 [Fulber], Justice  
Gray summarized the applicable analysis, at paras. 28-29, as follows:  
[28] A useful summary of the law is set out in Wilde v. The Cambie Malone  
Corporation, 2008 BCSC 704. I accept Ms. McCullagh's summary of that, and  
I am just going to read her summary of some of the principles stated in the  
Wilde case:  
(a)  
The goals of the Occupiers Liability Act are to promote  
positive action on the part of occupiers to make their premises  
reasonably safe.  
(b)  
The duty imposed by the Act is to take reasonable care  
in the circumstances to make the premises safe. The duty  
does not require occupiers to ensure that persons using the  
premises will be absolutely safe.  
(c)  
The care that must be taken by an occupier differs  
according to the nature and use of the premises.  
     
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 9  
(d)  
The onus is on the plaintiff to prove on a balance of  
probabilities that the defendant breached this duty of care. The  
fact of injury does not create a presumption of negligence. The  
plaintiff must be able to point to some act or failure on the part  
of the defendant which resulted in the injury.  
(e)  
This duty of care does not extend so far as to require  
the defendant to remove every possibility of danger. The test  
is one of reasonableness, not perfection.  
[29] I will also quote a statement in Bauman v. Stein, 1991 1140 (BC  
CA), [1991] 78 D.L.R. (4th) 118.  
… the Occupiers Liability Act does not create a presumption of  
negligence against "the occupier of the premises" whenever a  
person is injured on the premises. A plaintiff who invokes that  
section must still be able to point to some act (or some failure  
to act) on the part of the occupier which caused the injury  
complained of before liability can be established.  
[26] In Van Slee v. Canada Safeway Limited, 2008 BCSC 107 [Van Slee], at  
para. 31, Justice Cohen explained that, in addressing an OLA claim, the court must  
apply a two-step analysis:  
[A] plaintiff must prove: first, what condition or hazard caused her slip and fall;  
and, second, that the condition or hazard existed due to a breach of duty by  
the defendant.  
[27] In Druet v. Sandman Hotels, Inns & Suites Limited, 2011 BCSC 232 [Druet] at  
para. 40, the court stated: [w]here the plaintiff establishes a prima facie case of  
negligence, the occupier may rebut its alleged breach of the standard of care with  
evidence that at the time of the [a[ccident it had a reasonable system of cleaning  
and inspection in place that was being followed.”  
Application of Legal Test to Facts of the Case  
Were each of the defendants an “occupier of premises”?  
[28] A preliminary issue in this case is whether each of the defendants can be  
characterized as falling within the definition of an “occupier of premises” under the  
OLA. Section 1 of the OLA defines an occupier:  
"occupier" means a person who  
(a) is in physical possession of premises, or  
   
Gujral v. Meat and Bread Sandwich Company Ltd.  
(b) has responsibility for, and control over, the condition of  
Page 10  
premises, the activities conducted on those premises and the  
persons allowed to enter those premises,  
and, for this Act, there may be more than one occupier of the same premises;  
[29] The law is clear that both a property owner and a tenant can occupy the same  
premises at the same time and can both be held liable under the OLA, including with  
respect to the use of the external sidewalk by patrons: Der v. Zhao, 2021 BCCA 82  
at paras. 58 and 102; MacKay v. Starbucks Corporation, 2017 ONCA 350 at para. 7.  
[30] There is no question in my view, and it was not disputed at trial, that Meat &  
Bread was an occupier of the Restaurant. Pursuant to its lease agreement with  
Flack Hastings (the “Lease”), it clearly had responsibility for, and control over, the  
condition and safety of the Restaurant, the activities conducted in the Restaurant  
and the persons allowed to enter those premises.  
[31] The issue is more complicated with respect to Flack Hastings (the claim  
against the third defendant was discontinued). Flack Hastings, as the landlord, had  
no responsibility for the interior of the Restaurant, as the Lease made it clear that all  
such responsibility fell on Meat & Bread. However, the language in the Lease was  
ambiguous in terms of whether the definition of “premises” included the tiled alcove  
outside the Restaurant. Despite this fact, counsel for Flack Hastings conceded in  
argument that it was indeed an “occupier” of the tiled external alcove area under the  
OLA, jointly with Meat & Bread, because it exerted some control over that area by  
doing incidental cleaning and inspection.  
[32] I am satisfied that this concession by Flack Hastings was justified by the  
evidence. In particular:  
Colin Murray, the President of Flack Hastings, was called as a witness.  
Mr. Murray testified that Meat & Bread was responsible for cleaning and  
maintaining the floor inside the restaurant. With respect to the cleaning up  
outside of the building on the exterior he said it was his understanding that the  
tenants are responsible for everything within the leased premises but that the  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 11  
landlord would do litter pickup along the sidewalk and that the Flack Hastings  
building manager would be responsible for picking up any litter in the alcove.  
Mike Rushford, the property manager for Flack Hastings, also testified. He  
testified that in 2011 Flack Hastings contracted out janitorial services to a  
service provider named the Cleaning Solution. He also testified that there was  
a “day porter” role contracted to a company named Servantage. The role of  
the day porter included an inspection each day of the building’s exteriors and  
removal of any obvious debris and litter followed by detailed cleaning of the  
exteriors. He testified that the exterior duties included remove/shovel  
sidewalks, entrance ways, loading bays of snow & apply ice melt as required.  
In addition, as part of the read-ins from examinations for discovery,  
Mr. Rushford testified that, apart from a quarterly inspection regime, Flack  
Hastings was inspecting the tiles at the entranceways to Meat & Bread and  
the other tenants, that he understood the maintenance of the tile  
entranceways to Meat & Bread to be the responsibility of Flack Hastings, that  
he understood Servantage’s job description to include cleaning the tiling area  
and entranceway to the premises to the Restaurant, and that he understood it  
was the responsibility of Flack Hastings to keep the tiled area to the  
restaurant clean and safe.  
[33] On the basis of the foregoing, I conclude that Meat & Bread was the sole  
occupier of the Restaurant area and that Flack Hastings and Meat & Bread were co-  
occupiers of the tiled alcove area.  
Did the defendants breach their duty of care?  
[34] The burden at trial was on Mr. Gujral to prove both parts of the Van Slee  
analysis in order to establish prima facie negligence. Only once Mr. Gujral had met  
the burden of proof on these two parts would the onus move to the defendants to  
potentially rebut the alleged breach of the duty of care with evidence of a reasonable  
system of cleaning and inspection: Druet at para. 40.  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 12  
[35] I will deal with each of the two Van Slee elements in turn.  
Did a particular condition or hazard cause the Fall?  
[36] Mr. Gujral alleges that water on both the wood floor of the Restaurant and the  
tiles in the alcove caused the Fall.  
[37] In my view Mr. Gujral failed at trial to meet the threshold burden of proving on  
a balance of probabilities that water on the floor or tiles at the Restaurant did in fact  
cause the Fall. I have reached this conclusion for four principal reasons, which I will  
review in turn:  
1. There was no direct evidence from Mr. Gujral or any other corroborating  
witness that Mr. Gujral’s Fall was caused by water on the floor or tiles of the  
Restaurant;  
2. I found Mr. Gujral’s testimony at trial to be lacking in credibility and unreliable  
in important respects, including in relation to his description of the Fall;  
3. There was a plausible alternative causal explanation for the Fall apart from  
slipping on water; and  
4. There was insufficient other evidence, apart from Mr. Gujral’s testimony, to  
support an inferential conclusion that water on the floor or tiles caused the  
Fall.  
No direct evidence  
[38] I note at the outset that Mr. Gujral’s case suffered from a fundamental  
evidentiary flaw, namely, not a single witness at trial (including Mr. Gujral) testified  
that they actually saw Mr. Gujral slip on water.  
[39] Although Mr. Gujral stated at several points in his testimony that he slipped  
on the “wet floor”, and it was clearly his opinion that water caused the Fall, it was  
also apparent from his testimony as a whole that this was a conclusion he had  
reached after the fact and not based upon contemporaneous observation. For  
   
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 13  
example, in his narrative description of the Fall, I found it significant that at no time  
did he testify that he was aware of or witnessed in that moment that he was slipping  
on water, nor did he testify that he had visually identified water under or near his feet  
prior to or immediately after that moment.  
[40] Mr. Gujral did testify that, after the Fall when he was seated on the banquette,  
he observed water on the floor in the area where he had slipped. However, his  
testimony on this was vague, as he did not identify how much water there was (for  
example he did not testify that he observed a puddle, pool or other unusual  
accumulation of water), nor did he definitively state that the water was precisely in  
the location where he slipped, as opposed to in the general vicinity.  
[41] Equally importantly, there was no other witness at trial who corroborated  
Mr. Gujral’s testimony on the cause of the Fall. I find it significant that not a single  
other witness testified that they observed Mr. Gujral slipping on water, nor did any  
other witness testify that they saw any water on the floor at all, either before or after  
the Fall, let alone a sufficient amount of water to cause a slip.  
[42] As I will discuss below this is not necessarily fatal to Mr. Gujral’s claim, as a  
causal link between water on the floor and the Fall could in theory be established by  
inferential reasoning. However, absent such inferential reasoning, the lack of direct  
evidence made Mr. Gujral’s claim weak on its face.  
Issues with the credibility and reliability of Mr. Gujral’s testimony  
[43] To the extent that no other witnesses were able to corroborate Mr. Gujral’s  
testimony that he slipped on water, this places an additional onus on the credibility  
and reliability of Mr. Gujral’s testimony. Unfortunately for Mr. Gujral, I found his  
testimony to be lacking in credibility and reliability.  
[44] Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186 sets out the applicable  
approach to the assessment of credibility:  
[186] Credibility involves an assessment of the trustworthiness of a witness’  
testimony based upon the veracity or sincerity of a witness and the accuracy  
of the evidence that the witness provides (Raymond v. Bosanquet (Township)  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 14  
(1919), 1919 11 (SCC), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The  
art of assessment involves examination of various factors such as the ability  
and opportunity to observe events, the firmness of his memory, the ability to  
resist the influence of interest to modify his recollection, whether the witness’  
evidence harmonizes with independent evidence that has been accepted,  
whether the witness changes his testimony during direct and cross-  
examination, whether the witness’ testimony seems unreasonable,  
impossible, or unlikely, whether a witness has a motive to lie, and the  
demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202  
(Ont.H.C.); Farnya v. Chorny, [1952] 2 D.L.R. 152 (B.C.C.A.) [Farnya]; R. v.  
S.(R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)).  
Ultimately, the validity of the evidence depends on whether the evidence is  
consistent with the probabilities affecting the case as a whole and shown to  
be in existence at the time (Farnya at para. 356).  
[45] In Welder v. Lee, 2019 BCSC 1328 at para. 60, reliability of testimony was  
contrasted with credibility as follows:  
Credibility is concerned with the veracity of the witness and assessment of  
reliability involves consideration of the accuracy of the witness’ testimony;  
accuracy engages the ability of the witness to observe, recall and recount: R.  
v. Khan, 2015 BCCA 320 at para. 44, leave to appeal ref’d [2015] S.C.C.A.  
No. 374.  
[46] I will address the question of the credibility of Mr. Gujral’s testimony generally  
and then proceed to discuss the credibility and reliability of his account of the Fall.  
[47] As a general matter I found Mr. Gujral’s testimony to be lacking in credibility  
for a number of reasons:  
As Mr. Gujral proudly explained at trial, he is a very talented salesperson  
whose primary competitive advantage is his ability to train other  
salespersons by teaching them how to sell. By his own admission, Mr. Gujral  
has spent years thinking about and perfecting strategies for persuasion. In  
his testimony, for example, Mr. Gujral went into great detail to explain  
effective sales techniques, including the use of “scripts”, repetitive practice  
and advance preparation;  
While the above techniques have no doubt helped propel Mr. Gujral to the  
top of his profession, they did not assist his credibility as a witness at trial. To  
the contrary, perhaps as a result of his training, Mr. Gujral’s testimony often  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 15  
appeared scripted and somewhat strategic. For example, under cross-  
examination, Mr. Gujral had a tendency to avoid answering specific  
questions directly and instead to default to reciting apparently pre-prepared  
narratives which had a scripted quality, and were not directly responsive to  
the question. Over a period of days this tended to give his testimony a  
contrived and at times evasive aspect;  
Many fact witnesses testified on Mr. Gujral’s behalf (most in relation to his  
alleged business losses) but, tellingly, these witnesses fell almost exclusively  
into two categories: (1) employees who report to Mr. Gujral and are therefore  
economically dependent upon him; and (2) senior executives at AIL who  
benefit from Mr. Gujral’s continued success. One of the employee witnesses,  
Alex Paguio, described Mr. Gujral as “the Godfather” and the consistent  
theme from employee witnesses was that Mr. Gujral has an intimidating  
personality, is very directive and does not tolerate failure. It is clear he is  
respected by employees but also feared. It is also clear that he rallied a large  
number of witnesses in his support at the trial (almost exclusively in relation  
to his business losses as opposed to the Fall itself), which raises the  
question to what extent these witnesses were truly independent. Moreover, I  
find it significant that Mr. Gujral did not adduce evidence from any fact  
witnesses who would realistically be described as independent of Mr. Gujral’s  
financial influence;  
Conversely, one of the agents who formerly reported to Mr. Gujral and  
subsequently left AIL, Ben Ainscough, testified on behalf of the defendant  
that he recently received a phone call from one of Mr. Gujral’s current  
agents, Mr. Seneghat, with respect to Mr. Ainscough’s testimony at the trial.  
Mr. Ainscough testified that Mr. Seneghat questioned him about his  
upcoming testimony and sought to influence the testimony, resulting in a  
“screaming match”. Mr. Ainscough testified that he subsequently complained  
to AIL executives about the interaction. Counsel for Mr. Gujral alleged that  
Mr. Ainscough was a disgruntled employee and Mr. Seneghat denied in his  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 16  
testimony that he attempted to influence Mr. Ainscough’s testimony (although  
admitting he made the call on Mr. Gujral’s behalf). Nonetheless, I found  
Mr. Ainscough’s testimony to be credible, particularly to the extent that it was  
consistent with the testimony of many witnesses that Mr. Gujral has an  
obsessive need to control the narrative in all circumstances, including with  
respect to this lawsuit, and also that he is not afraid to intimidate employees  
to bend them to his will and agenda;  
Moving from the general to the specific, I note that there were many aspects  
of Mr. Gujral’s testimony which were either incredible on their face or difficult  
to reconcile with the overall narrative and other evidence and therefore  
brought into question the veracity and reliability of what he was saying. For  
example:  
o A key part of Mr. Gujral’s evidence was that, as a result of the Fall, he  
suffered debilitating injuries which restricted his ability to return to full  
capacity in his employment up to the date of trial. However, this  
narrative is very difficult to square with videotape evidence adduced at  
trial from a conference in 2012, only about a year after the Fall, where  
he is observed comfortably walking on stage making a 45-minute  
presentation and at one point bounding up the stage steps three at a  
time. Mr. Gujral testified that he was in great pain during the  
performance, although this was not at all apparent from the video.  
However, if it were true that Mr. Gujral was indeed able to perform  
stoically at a high level despite suffering great pain as early as 2012,  
this brings into question the credibility of his further allegation that pain  
has restricted his effectiveness and earnings at work for almost a  
decade since the Fall;  
o Mr. Gujral’s testimony about the long-term effect of his injuries is also  
inconsistent with his testimony that, as a result of rehabilitation work  
he had undertaken after the Fall, he had the body of an “Adonis” as of  
2012 and was in excellent physical condition. It is also difficult to  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 17  
reconcile with other photographic evidence adduced at trial which  
showed Mr. Gujral performing normally at work functions, including  
one photograph from a conference with Mr. Gujral crouching in the  
“Usain Bolt stance”, which requires an obvious athletic redistribution of  
weight between the two legs;  
o Mr. Gujral went to great pains in his testimony to deny that a social  
event he hosted at his residence in 2012 was a “party”, despite  
documentary evidence that his staff was promoting the event as the  
“party of the year”, photographic evidence which clearly showed that it  
was a party and evidence that there was alcohol served. Mr. Gujral  
insisted in his testimony that this was not a party but instead a  
“recognition event” for one of his salespersons who had broken sales  
records that year, Mr. Seneghat. However, in Mr. Seneghat’s  
testimony, he undermined Mr. Gujral’s narrative by stating that he did  
not understand the purpose of the event to be in relation to his  
achievements and that he actually felt his achievements had not been  
adequately recognized by AIL at the party or otherwise;  
o Mr. Gujral’s allegation that he suffered over $10 million in damages  
was supported by little or no corroborative documentary evidence  
(such as documentary evidence of sales contracts supporting his  
allegations of lost commissions or an expert business valuation  
independent of data that Mr. Gujral or his witnesses had provided).  
Instead, his claim was almost entirely based upon evidence from the  
two categories of witnesses I identified above, who were not  
independent from Mr. Gujral’s influence. For example, Mr. Weston, the  
expert retained by Mr. Gujral to opine on his business losses, admitted  
that his report was not an independent business valuation but instead  
simply a calculation of assumed facts provided to him by Mr. Gujral  
and AIL staff. The spreadsheets supporting Mr. Gujral’s alleged losses  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 18  
were also all created by AIL management or employees, rather than  
independent third parties or experts;  
o Mr. Gujral’s claim that he suffered massive losses after the Fall was  
inconsistent on its face with evidence from his tax returns, which are in  
my view a more reliable indicator of objective facts than spreadsheets  
and data summaries created by AIL staff, as they are reviewable by  
the Canada Revenue Agency, and therefore required Mr. Gujral to be  
accurate. In contrast to his own allegations about losses, Mr. Gujral’s  
tax returns indicate that he in fact suffered a reduction in gross income  
in only one year, 2013, after which the evidence was that his gross  
income improved consistently and considerably thereafter:  
2008  
2009  
2010  
2011  
2012  
2013  
2014  
2015  
2016  
2017  
2018  
2019  
$283,420.56  
$333,381.24  
$380,230.53  
$379,123.79  
$389,370.08  
$324,673.61  
$415,419.74  
$435,438.90  
$487,784.55  
$530,118.00  
$616,225.00  
$1,357,774.00  
Gujral v. Meat and Bread Sandwich Company Ltd.  
The wide gap between Mr. Gujral’s alleged losses and the  
Page 19  
financial picture presented in his tax returns was never  
adequately explained by Mr. Gujral in his testimony.  
o With reference to the prior two bullets, I note that, due to my ultimate  
finding on liability, it is unnecessary in these reasons for me to  
address Mr. Gujral’s damages claim in its entirety (although I have  
reviewed his claim very carefully) and I have not done so in these  
reasons. To the extent that I reference his damages claim here it is  
solely for the purposes of addressing the matter of credibility.  
[48] Dealing with Mr. Gujral’s account of the Fall specifically, I found that several  
aspects of his account were also lacking in credibility or were otherwise unreliable:  
Mr. Gujral testified that he had been to the Restaurant approximately six to  
eight prior times but that the date of the Fall was the first time that he had  
been there when it was raining. I do not find this testimony to be credible.  
Attendance at a sandwich shop for a quick lunch is an unremarkable  
experience, and it is simply not believable to me that Mr. Gujral would have  
had a perfect recall of the weather on all his prior visits (particularly given the  
fact that Mr. Gujral testified to having memory lapses on far more material  
aspects during his testimony, as I will discuss below). Moreover, I cannot  
ignore the fact that Mr. Gujral’s testimony, if believed, would conveniently  
favour his case because evidence of rain on prior visits would otherwise tend  
to support the adverse conclusion (at least to his case) that the floors at the  
Restaurant were not necessarily slippery on rainy days. The same is true of  
Mr. Gujral’s testimony that the rain on the day of the Fall got heavier as he  
was heading toward the Restaurant which, again, reveals a strangely detailed  
recollection of developing weather conditions on that day and would also tend  
to conveniently favour his allegation that the floors would have been more wet  
at the time of the Fall due to the heavy rain;  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 20  
Mr. Gujral went to great pains in his testimony at trial to make the point that  
the Fall occurred on both the floor of the Restaurant and also on the tiles of  
the alcove, despite some passages from prior discovery evidence where his  
testimony on this point was not as definitive. It was apparent from Mr. Gujral’s  
quite vociferous testimony at trial on this point that he was likely aware that  
such testimony would potentially benefit his case by enabling him to claim  
against two defendants, Flack Hastings and Meat & Bread, rather than only  
one, thereby giving him access to deeper pockets;  
However, the downside of Mr. Gujral’s definitive testimony above was that it  
had the effect of making his overall account of the Fall less believable and,  
indeed, somewhat incredible. Mr. Gujral’s testimony with respect to the  
mechanics of the Fall was that it started with his left foot slipping on the  
wooden floor and his left leg heading “upwards” towards his head. Common  
sense indicates that this initial slip would have also had his torso and right leg  
falling backwards, resulting in his buttocks moving toward the ground and his  
feet pointing toward the door. However, according to Mr. Gujral, after his left  
foot had slipped upwards, he was nonetheless able to move his right foot  
forward over the metal threshold and then plant the right foot on the tiles,  
ultimately doing a “log dance” on the tiles. With his left leg already flying in the  
air and his body moving backward it is difficult to understand how Mr. Gujral  
could have moved his right foot forward into the alcove area, let alone gain  
any kind of purchase. It is also difficult to understand how Mr. Gujral’s left leg,  
which was moving up and backward, could have suddenly moved forward to  
enable him to perform the log dance on the tiles;  
Moreover, the narrative got stranger from there as Mr. Gujral testified that his  
body after the Fall ultimately settled in a position where his head was on the  
sidewalk and feet were pointing toward the inside of the Restaurant. This is  
difficult if not impossible to square with his testimony that the Fall started with  
his feet facing the door on the floor and his weight falling backwards inside  
the Restaurant, particularly since the uncontroverted evidence was that the  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 21  
alcove tiles had a downward slope. In effect, Mr. Gujral’s testimony would  
have had him rotating 180-degrees after he slipped backwards and falling  
uphill. This simply defies imagination even taking into account his testimony  
about an alleged “barrel roll”;  
Mr. Gujral testified that on the day of the Fall he was wearing “rain boots”.  
However, it was apparent from a photograph adduced as evidence at trial that  
Mr. Gujral was not wearing rain boots but instead was wearing bulky insulated  
winter boots, which was a counterintuitive choice of footwear in Vancouver in  
October. There was no evidence from Mr. Gujral as to the relative  
adhesiveness of his boots but his unwillingness to admit that his boots were  
at least not an obvious seasonal choice for autumn in Vancouver (as opposed  
to winter) did not assist his credibility.  
[49] Accordingly I find that Mr. Gujral’s testimony, including his narrative of the  
Fall, was lacking in credibility and transparently self-serving on the key material  
issues. I have taken this into account in my factual findings generally and also to the  
extent that there is a conflict in the evidence with respect to the evidence of other  
witnesses.  
There was an alternative explanation for the Fall  
[50] The conclusion that water must have been the cause for Mr. Gujral’s Fall  
would be more supportable if there were no other causal explanation. However,  
there was another plausible explanation in this case. Mr. Jarvie, the prior owner of  
Meat & Bread, testified that on the day of the Fall, he was standing behind the  
counter on a 45-degree angle to the door. He testified that he witnessed Mr. Gujral  
head toward the front door as he was leaving the Restaurant, and saw Mr. Gujral  
turn and wave goodbye immediately prior to the slip and fall.  
[51] Under cross-examination, Mr. Gujral admitted that he did wave goodbye and  
accepted that he turned his body to the left to make a waving motion, which was  
consistent with Mr. Jarvie’s account:  
Harpreet Gujral (the plaintiff)  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 22  
Cross-exam by Counsel M. Carnello  
Q
Now, after you finish your meal and you're walking out, you would  
then have to -- now as you're exiting the restaurant, as you're walking  
out, if you were to wave goodbye to Mr. Jarvie, which you said you did  
in your direct examination; correct?  
A
Yes.  
Q
You would then have to turn your body, twist your body, circle your  
body, in order to wave and look over your left shoulder, correct,  
because you're looking back at where Mr. Jarvie would be, which  
would now be to your left; correct?  
A
Q
A
You mean like this? This is what it would -- I would –  
Yes, and you would be twisting, a twisting motion?  
I don't know if I twisted. I just would -- I was just saying thank you for  
serving me the food, and I just waved as I walked out. Moved my  
head left maybe.  
Q
A
So if you can describe that motion for the record. It was a -- you  
turned your body to your left?  
Yeah.  
[Emphasis Added.]  
[52] However, apparently recognizing that this answer was not helpful to his case,  
Mr. Gujral sought to immediately adjust his testimony, by subsequently claiming that  
he did not recall if he had waved “as I walked out”, and also claiming that he did not  
recall what side he waved on.:  
Q
A
And you –  
I remember the wave. I don't remember if it was on the way where I  
waved putting the wood plank away where I was like this or if I put it  
away and I did like that. I don't recall what side it was or what have  
you, but I was just starting my way out of the restaurant on the way of  
cleaning up after myself.  
[Emphasis added.]  
[53] With reference to my credibility analysis above, I note that testimony of this  
nature, which appeared strategic and evasive in nature, did not assist Mr. Gujral’s  
credibility. Immediately after testifying that he had turned his body to the left to wave  
as he headed out the door, Mr. Gujral testified to the opposite, namely, that he  
cannot remember when he waved and also cannot remember “what side it was, or  
what have you”.  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 23  
[54] In my view Mr. Gujral’s initial instinctive answer was more believable than his  
subsequent corrected answer, particularly as it is consistent with Mr. Jarvie’s  
testimony (which I found to be credible as it was consistent with the other evidence,  
understated, and Mr. Jarvie was willing to make admissions that did not necessarily  
favour the defendants, as I will discuss below). As noted by counsel for Meat &  
Bread in closing argument, this sudden memory loss should be contrasted with how  
he Mr. Gujral remembered with precision that it never rained on his several prior  
visits to the Restaurant, and also that it rained more heavily after entering the  
Restaurant on the day of the accident.  
[55] In my view, it is certainly plausible that the motion of turning his body left to  
wave could cause a loss of balance which resulted in the Fall. While the evidence on  
this sequence of events most likely does not establish on a balance of probabilities,  
taken alone, that Mr. Gujral’s waving motion caused the Fall, the burden of proof in  
this action did not rest upon the defendants, who were therefore under no obligation  
to prove it. However, at a minimum, this plausible explanation brings into doubt  
Mr. Gujral’s allegation that it was water that caused the Fall, making it more difficult  
for him to establish his alleged causal connection on a balance of probabilities.  
The other evidence in support of an inferential conclusion was  
not strong  
[56] Mr. Gujral argued at trial that, in addition to his own testimony, there was  
sufficient other evidence to enable this Court to infer that there was a causal link  
between a water hazard on the floor and tiles and the Fall. In support of this  
argument Mr. Gujral relied upon the following evidence:  
Mr. Gujral testified that, while seated on the banquette after the Fall, he  
observed Restaurant employees come to the entranceway and wipe the wood  
floor with paper towels. He further testified that the employees then grabbed a  
mat which he had observed at or near the water station approximately three  
to six feet away from the door, and dragged it to the entranceway, where they  
placed it over the wood and tiles. This, Mr. Gujral argued, would tend to  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 24  
support the conclusion that the Restaurant employees believed at the time  
that Mr. Gujral had slipped due to wetness on the floor and tiles;  
Similarly, Mr. Gujral adduced evidence that, after the Fall, the Restaurant  
changed its practice with respect to the number and positioning of mats at the  
entranceway, encouraging this Court to infer that the Restaurant itself had  
concluded that the floor and tiles at the entrance were unreasonably slippery;  
and  
Mr. Gujral argued that the defendants had failed to establish that they had a  
reasonable and regular practice of cleaning and drying the Restaurant’s  
entrance and alcove area.  
[57] In my view, the foregoing additional pieces of evidence relied upon by  
Mr. Gujral are not sufficient either taken alone or together to enable me to conclude  
by inference that water on the floor or tiles caused the Fall. I will address each piece  
of evidence in turn:  
Actions of Restaurant employees after the Fall  
[58] I note at the outset that the description of what Restaurant employees were  
doing immediately after the Fall was derived entirely from Mr. Gujral’s testimony.  
Given my finding concerning the issues with his credibility and reliability, this  
testimony must be approached with caution.  
[59] However, even if Mr. Gujral’s testimony on these events is accepted at face  
value, this evidence is not in my view particularly probative of the issue whether  
water on the floor or tiles caused the Fall. The mere fact that Restaurant employees  
after the Fall may have wiped the wood floor with paper towels and moved a mat to  
the general area where the Fall occurred certainly does not prove that these actions  
were justified by an actual hazard. After a customer was injured in a dramatic  
incident such as this one, it is certainly not surprising that employees took whatever  
steps seemed reasonable in their minds at the time to mitigate any risks of slippery  
floors they may have perceived or feared could exist, even if those risks may not  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 25  
have existed in reality. However, this ultimately amounts to little more than  
speculation about the motivations and intentions of employees at the time, and is  
different from proof on cause and effect relating to the Fall.  
[60] In this respect I further emphasize that there was no testimony adduced from  
any Restaurant employee at trial explaining the motivations for their actions after the  
Fall nor was there any testimony from employees that the floor actually was slippery  
on the day of the Fall or that there was any unusual accumulation of water.  
Mr. Gujral, with the burden of proof, had the option of calling Restaurant employees  
who were present on that day as witnesses but chose not to do so.  
Changing the number and position of the mats  
[61] Mr. Gujral’s evidence that he observed the Restaurant change its practice  
with respect to the number and positioning of mats at the entranceway in the days  
and years after the Fall is for similar reasons not probative of the issue whether  
water on the floor or tiles caused the Fall.  
[62] Firstly, I note that there was a conflict in the evidence concerning the  
positioning of the mat prior to the Fall. Mr. Gujral insisted in his testimony that there  
was only one mat that day and that it was positioned by the water station to the left  
and not in front of the door. By contrast, Mr. Jarvie testified that the mat was usually  
positioned in front of the door and he had no recollection that the mat had been  
moved to the water station as Mr. Gujral alleged.  
[63] Given my concerns with the credibility of Mr. Gujral’s testimony I have doubts  
about his account. However, secondly, even if Mr. Gujral’s account was correct and  
there was no mat by the door on the day of the Fall, the fact that the Restaurant  
subsequently placed mats by the door does not prove that the absence of such mats  
caused the Fall or created a hazard.  
[64] The law is clear that remedial measures taken by a defendant after a slip and  
fall accident are not necessarily evidence that a hazard existed before the accident.  
A good example is Nerland v. Toronto-Dominion Bank, 2016 BCSC 45 [Nerland]. In  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 26  
Nerland, the plaintiff’s action was also for damages for personal injuries sustained at  
the defendant’s bank. The plaintiff attended the defendant for banking services, and  
was seated at a sit-down teller wicket, while meeting with the bank employee. The  
plaintiff testified that he leaned forward to pick up documents from the desk, and the  
chair went from under him, causing him to fall to the tile floor, striking his head, neck,  
elbow and shoulder, and causing serious injuries. After the accident, the defendant  
put a mat on the tile floor for the sit down wickets. With regard to this fact, the court  
held as follows, at paras. 71 to 73:  
[71] As to the remedial measure of one of the defendant’s employees placing  
a mat at the sit down wicket, the defendant submits that this is not proof that  
such steps were necessary to make the premises reasonably safe and it was  
not an admission of liability, per Anderson (Guardian ad litem of) v. Erickson  
(1992), 1992 2389 (BC CA), 71 B.C.L.R. (2d) 68 (C.A.) at paras. 31-  
32.  
[72] Counsel for the defendant also relies on Cahoon v. Wendy’s Restaurant,  
2000 BCSC 629. The plaintiff tripped when he stepped off a curb. He pursued  
an action under the OLA and relied on the defendant’s subsequent remedial  
measures of repainting lines to indicate the edges of the curb in the area  
where the plaintiff fell to establish the area was not reasonably safe.  
Mr. Justice Burnyeat observed:  
[21] Any "remedial" steps taken by the defendants are not to  
be considered as proof that such steps were required to make  
the premises "reasonably safe." The defendants only have to  
make the premises "reasonably safe." The defendants do not  
have to provide an environment which guarantees against all  
possible accidents. Steps taken after an accident may well  
only change an already reasonably safe area to an area which  
is more than reasonably safe. On the other hand, steps taken  
after an accident may well convert an unsafe area to an area  
which is then reasonably safe. What is done after the fact is  
merely a factor to be considered in answering the question of  
whether the area at the time of the accident was reasonably  
safe for occupants of the premises.  
[73] Burnyeat J. continued:  
[26] … However, even if I wrong in my finding about where the  
accident occurred, I am still satisfied that the ramp and the  
area immediately beside the ramp was also reasonably safe  
for occupants such as Mr. Cahoon. With even a minimal  
amount of attention paid, the edge of the sidewalk and the  
actual edge of the ramp were there to be seen. The test to be  
applied is one of reasonableness not perfection. The plaintiff  
was under a duty to be aware of his surroundings and I am  
satisfied that there was nothing about the premises which  
would mislead the plaintiff in any way. This accident could  
Gujral v. Meat and Bread Sandwich Company Ltd.  
have been avoided by a modicum of awareness on the part of  
Page 27  
the plaintiff. Instead, I find that the plaintiff was in a rush to get  
[to] his meeting and to retrieve his vehicle from an  
unauthorized parking spot and that he exited the door "on the  
run" and without the care and awareness that was incumbent  
upon him.  
[65] In dismissing the Plaintiff’s action in Nerland, the court held as follows, at  
para. 75:  
[75]  
The defendant owed the plaintiff a duty of care, but I can find no  
breach of it in the circumstances of this case. The chair provided to the  
plaintiff to sit on at the sit down wicket was reasonably safe to sit on. I found  
no evidence of any prior or subsequent incidents with similar chairs. The  
placement of a mat under the chair at the sit down wicket at some point after  
the plaintiff fell was not an admission of liability and I do not find it a  
persuasive factor.  
Cleaning and maintenance practices  
[66] Mr. Gujral argued that the defendants had failed to establish that they had a  
reasonable and regular practice of cleaning and drying the Restaurant’s entrance  
and alcove area.  
[67] In my view, this line of argument confused two distinct steps in the legal  
analysis. As I explained above, the onus is on the plaintiff to prove prima facie  
negligence under the test set out in Van Slee. It is only once the plaintiff has proved  
prima facie negligence that the onus shifts to the defendants in rebuttal to establish  
that they had a reasonable and regular practice of cleaning and drying the area in  
question. If I were to import this issue into the Van Slee prima facie negligence  
analysis, this would have the effect of reversing the burden of proof on negligence  
from the plaintiff to the defendants, which would be inconsistent with well-  
established authority.  
[68] For example, in the Druet case at paras. 42-49, which was relied upon heavily  
by Mr. Gujral himself in argument, Mr. Justice Savage made it very clear in his  
reasons that the analysis must proceed sequentially: he first found there was  
sufficient evidence to support a prima facie case of negligence and, only after  
making that finding, did he shift the onus to the occupier to rebut the alleged breach  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 28  
of the standard of care with evidence it had a reasonable system of cleaning and  
inspection in place:  
[42]  
I have found that the floor of the Lobby was unacceptably slippery  
when wet or when walked on with wet shoes and that the combination of this  
slipperiness and the moisture on the soles of the plaintiff’s shoes caused her  
injury.  
[… ]  
[45]  
In my view Druet has established a prima facie breach of the Act  
by Sandman. Sandman had a floor which was unacceptably slippery for a  
variety of shoe soles when the floor was wet, or when walked on by wet  
shoes.  
[…]  
[48]  
Where there is evidence of a prima facie breach of the Act, an  
occupier, such as Sandman, may rebut the breach of duty by leading  
evidence that it had put into place a reasonable system of care, inspection  
and maintenance that was being followed at the time of the Accident.  
[49]  
I must now consider whether Sandman had a reasonable system  
in place that was being followed to guard against this hazard. The burden is  
on the defendants to adduce this evidence.  
[69] Accordingly, I conclude that the question whether the defendants had a  
reasonable and regular practice of cleaning and drying the Restaurant’s entrance  
and alcove area is not an issue to be considered in support of an inferential  
conclusion that the defendants were negligent. It is instead an issue to be  
considered only once a case of prima facie negligence has been proved, which it  
has not been in this case.  
[70] Nonetheless, even if I were to find that the cleaning and maintenance  
practices of the defendants must be considered, I would find on the facts that these  
practices were reasonable in this case. The evidence with respect to Flack Hastings’  
practices was as follows:  
Mr. Rushford was the Operations Manager for Flack Hastings at the date of  
incident and gave evidence at trial that Flack Hastings, through its day porter  
sub-contractor Servantage, did daily cleaning and inspection of the exterior  
retail entrances, including the tiled entries. This involved cleaning any litter or  
debris and if needed, removing snow and applying ice melt as required;  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 29  
Mr. Rushford stated that the day porter would attend at the Flack Block every  
single day if not twice a day. He stated that the day porter would attend the  
Flack Block before the lunch hour each day. While he could not say for  
certain that the day porter attended on the day of the Fall, he also gave  
evidence that he did not hear any reports of them ever not attending as  
required;  
Mr. Rushford also said he would personally visit the Flack Block every day if  
not every other day in order to do various tasks including inspections. This  
would include inspections to ensure that the maintenance and janitorial  
services were done properly at the building;  
Mr. Rushford stated that his operations staff also regularly visited the Flack  
Block and would do so every day or every other day. They would complete  
work orders, do maintenance, and do inspections of the exterior and common  
areas as part of their duties;  
Mr. Rushford also gave evidence that Flack Hastings would do quarterly  
inspections of the building. His evidence was that the purpose of these  
quarterly inspections was “to be really thorough and get through the entire  
building” and find if any items needed to be corrected, repaired, or replaced.  
He stated that from those quarterly inspections he never became aware of  
any issues with the alcove tiles at Meat & Bread prior to 2011;  
Mr. Murray testified that Meat & Bread was responsible for cleaning and  
maintaining the floors within their leased premises, including day-to-day  
janitorial cleaning. He stated that the Meat & Bread was responsible for  
providing mats at the leased premises. He stated that as landlord, Flack  
Hastings would do litter pickup along the outside sidewalk.  
[71] The evidence of Meat & Bread with respect to cleaning and maintenance was  
less extensive but there was evidence of a daily practice:  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 30  
Mr. Jarvie testified that there were staff allocated daily to sweep and clean the  
floors;  
Mr. Jarvie testified that as part of the Restaurant’s morning opening routine  
he would make sure the tiled entry was clean and tidy;  
Mr. Jarvie testified that Meat & Bread arranged to have Canadian Linen  
supply a felt mat with a rubberized bottom for the store and that this was  
placed inside the store for people to wipe their feet. He testified that the mat  
was refreshed once or twice to week to ensure that it was clean;  
Mr. Jarvie testified how he maintained the area daily upon arrival, how it was  
observed and maintained by staff during the day, and how a mat was placed  
at the metal threshold;  
Mr. Jarvie did not recall that Meat & Bread deviated from any of the above  
practices on the date of the Fall.  
[72] Counsel for Mr. Gujral argued that there was no maintenance log book in  
evidence that would prove that the particular cleaning and maintenance practices  
above were actually undertaken on the day of the Fall, nor did Meat & Bread have a  
written policy on cleaning and maintenance at the time.  
[73] However, the law is clear that the onus is not on the defendants to adduce  
such evidence, as the burden of proof under the Van Slee analysis rests upon the  
plaintiff. In Kayser v. Park Royal Shopping Centre Ltd. (1995), 13 B.C.L.R. (3d) 330,  
1995 655 at paras. 14-15 (B.C.C.A.) the plaintiff attempted to assert that  
since there was no direct evidence that the system of inspection and maintenance  
had been followed on the day of the injury, the defendant did not establish it met its  
duty of care under the OLA. The Court disagreed, and stated that in the  
circumstances of that case, it was entirely reasonable to infer from the fact that a  
system was in place that it was followed on the day in question:  
14  
In my view, in the circumstances of this case, it was entirely  
reasonable to infer, from the fact that a system was in place for ensuring that  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 31  
the lighting was functioning properly, that the system was followed on the day  
in question. A similar issue arose in Ball v. British Pacific Properties Limited  
(29 October 1991), Vancouver B903692 (B.C.S.C.). Mr. Justice Drost held at  
13 that:  
Proof of a regular system of business is prima facie proof that in a  
particular case the general system has been followed. From evidence  
concerning a regular system or practice, it may be inferred that at the  
time in question that system or practice was being followed.  
It seems to me that in this case, absent any evidence to the contrary,  
it is both reasonable and just to draw such an inference ...  
15 The plaintiff cannot prove on a balance of probabilities that the defendant  
was negligent in this case by merely stating the there was no direct evidence  
that the usual routine was being followed on the day in question. The plaintiff,  
upon whom the burden of proof lies, tendered no evidence suggesting that  
this usual routine was not followed on that day.  
[74] Similarly, the evidence of Mr. Rushford, Mr. Murray and Mr. Jarvie supports  
the inference that the daily system of inspection and maintenance, including  
sweeping, cleaning and placement of a mat, was carried out on the day of  
Mr. Gujral’s injury, and that other inspections, such as the quarterly inspections,  
were also carried out. Mr. Gujral has not established that the system was not carried  
out or that the system of inspection and maintenance was unreasonable. In this  
respect, I note that Mr. Gujral adduced no evidence from any employee of the  
defendants that inspection and maintenance was not carried out on the day of the  
Fall, nor any expert evidence that the systems of inspection and maintenance the  
defendants had in place were inadequate, below industry standards, or otherwise  
unreasonable.  
Was the Fall caused by a breach of duty?  
[75] I have concluded that Mr. Gujral has failed to prove that the Fall was caused  
by water on the floor or tiles. However, even if Mr. Gujral had proved that causal  
connection, this would not be sufficient taken alone to establish prima facie  
negligence. The second part of the Van Slee analysis requires Mr. Gujral to prove  
that the water on the floor or tiles was unsafe or created a foreseeable risk of harm.  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 32  
[76] In my view, Mr. Gujral has failed to prove that the floor or tiles at the  
Restaurant were unsafe or presented a foreseeable risk of harm on the day of the  
Fall. I have reached this conclusion for the following reasons:  
1. There was no eyewitness evidence that the floors or tiles at the time of the  
Fall were slippery or otherwise created an unreasonable risk;  
2. There was no expert evidence that the floors or tiles at the time of the Fall  
were slippery or otherwise created an unreasonable risk; and  
3. The defendants had no reasonable basis to believe that the floors or tiles at  
the time of the Fall were slippery or otherwise created an unreasonable risk.  
No evidence the floors were slippery  
[77] I note that there was not a single witness at trial, including Mr. Gujral, who  
testified that the floors or tiles at the Restaurant on the day of the Fall were slippery  
or hazardous. For example, there was no witness who testified that they inspected  
the floor or tile either immediately before or after the Fall to determine if it felt  
slippery to the touch, nor did any witness testify to observing an unusual amount of  
water or any other foreign substance.  
[78] Mr. Gujral sought to rely on an admission by Mr. Jarvie during his  
examination for discovery, in the context of answering questions about the use of a  
mat by the Restaurant, that water on the floor “could” be slippery. However, this  
question was posed in a theoretical manner (he said it “could” be slippery as  
opposed to “was”) and the answer was certainly not evidence that the Restaurant  
floor on the day of the Fall was slippery.  
[79] Further, I note that the legal authorities are clear that mere wetness on the  
floor is not sufficient taken alone to prove a hazard for the purposes of the OLA:  
Dudas v. Ikea Ltd., 2016 BCSC 826 at para. 47; Zary v. Canada Housing and  
Mortgage Corporation, 2015 BCSC 1145 [Zary] at para. 57. As noted in Fulber, the  
duty of care does not extend so far as to require the defendant to remove every  
possibility of danger, and the test is one of reasonableness, not perfection.  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 33  
[80] A comparable case is Miller v. Royal Bank of Canada, 2008 NSSC 32; appeal  
dismissed at 2008 NSCA 18, where the plaintiff slipped and fell in the lobby of the  
defendant bank and claimed the floor was wet. The trial judge, in dismissing the  
claim stated at para. 119:  
[119] I do not believe the defendant can be required to observe a standard  
of perfection, or to act as an insurer, in keeping its foyer floor dry, which, I  
believe, is what would be required if it were found necessary to monitor an  
ATM foyer for the presence of wet footprints in order to meet the duty of care  
under the Act.  
[81] Similarly, in Hendy v. McDonald's Restaurants of Western Can. Ltd., 1986  
BCSC, Vancouver Registry No. C822769 (unreported), aff’d 15 B.C.L.R. (2d) 120,  
1987 2597 (B.C.C.A.), the plaintiff slipped and fell while entering a  
McDonald’s restaurant in Vancouver and alleged that the wet floor caused the fall.  
Justice McKay held as follows, from the top of page 4, first full paragraph:  
I accept that the landing and steps were wet. That would not be an unusual  
occurrence in Vancouver. If there was any undue accumulation of water,  
which I doubt, it would not add to any risk at or near the steps.  
[82] In Deroche v. Best Western Coquitlam Inn, 1999 3631 (B.C.S.C.),  
where the plaintiff sustained injuries when she slipped and fell on the floor of a  
stand-up shower stall in a room of the hotel owned by the defendant, Justice  
MacKenzie dismissed the claim, noting in particular at paras. 18-21 that testimony  
from lay witnesses about the slipperiness of the floor added very little evidentiary  
value:  
[18] The only evidence before me is that Ms Deroche found the shower "very  
slippery". Ms Shepherd's evidence that the floor was "extremely slippery"  
appears to be based only on having looked it. Her evidence adds nothing to  
the plaintiff's assertion.  
[19] Based on all the evidence, the plaintiff has not established a prima facie  
case of negligence. The mere fact of her fall is not, in itself, evidence of  
negligence. There is no evidence that a foreign substance was lubricating the  
shower floor. Nor was the hotel aware of anything which would alert it to the  
presence of unusual danger of the type which would require a warning.  
[20] A number of explanations for the fall are possible, but on the totality of  
the evidence, speculation about whether the hotel improperly cleaned the  
shower floor is insufficient to prove it breached the duty of care owed to the  
plaintiff in the circumstances before me.  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 34  
[21] As McEachern C.J.B.C. said in Malcolm v. B.C. Transit et al (1988), 1988  
3213 (BC CA), 32 B.C.L.R. (2d) 317 (B.C.C.A.), at p. 318:  
In my respectful view, it is not negligence or a breach of any  
duty not to warn an adult person, not suffering under any  
disability, of the ordinary risks arising out of the exigencies of  
every day life.  
There was no expert evidence  
[83] While Mr. Gujral was not of course legally required to adduce an expert report  
in order to meet his burden of proof, his choice not to do so was nonetheless a  
puzzling tactical decision, given the lack of any other direct evidence at trial about an  
unreasonable risk created by a specific hazard or condition on the floor or tiles.  
[84] This tactical decision was made even more problematic by evidence at trial  
that Mead & Bread had received an email earlier in the proceedings regarding  
arrangements made by Mr. Gujral’s counsel for an engineering expert, Harvey West  
from Baker Materials Engineering Ltd., to attend at the Restaurant to conduct  
testing. Notably, Mr. West was the same expert who filed a report on floor slip  
resistance relied upon by one of the parties in both Hendy and Atley v. Popkum  
Water Slides Ltd. (1992), 64 B.C.L.R. (2d) 1, 1992 5956 (B.C.C.A.), another  
slip and fall case. And yet, strangely, no report from Mr. West or any other expert  
was ultimately relied upon by Mr. Gujral in this case.  
[85] The failure of Mr. Gujral to adduce expert evidence, while perhaps not fatal on  
its own, was nonetheless very unhelpful to his case in terms of enabling him to meet  
the burden of proof on the issue of whether a hazard or condition caused the Fall. In  
this respect, I note that, in the majority of slip and fall cases involving water on the  
floor, expert evidence has played a central role in guiding the determination of the  
courts on the threshold issue of whether a condition or hazard existed which caused  
the slip.  
[86] For example, in Druet, which involved a slip and fall in a hotel lobby on a rainy  
day, expert evidence was led by the plaintiff to demonstrate that the tile used by the  
hotel was unreasonably slippery when wet.  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 35  
[87] Similarly, in Caron v. Omers Realty Corporation, 2019 ONSC 1374 at  
paras. 18-23, a slip and fall case involving a water leak in a workplace office  
kitchenette, the court rejected the plaintiff’s argument that the defendant employers  
had a positive duty to install a non-slip mat in the area of the leak. In reaching its  
decision as to whether the water leak constituted a hazard, the court weighed two  
contrary expert opinions:  
[18] The expert called by the plaintiff, an engineer specialized in slip and fall  
investigations, including slip resistance testing, opined, without any one from  
his office having attended at the site and without having conducted any  
testing, that because following the incident other employees identified the  
floor as slippery when wet, then it was likely that the floor was not sufficiently  
slip resistant when wet. He also opined that the installation of a slip-resistant  
floor mat would have mitigated the danger of a slip on water. Essentially, I  
understood his evidence to be that the floor was too slippery because two  
persons slipped on it, and that a mat would have reduced the risk of slipping  
by creating more friction. I have a number of concerns with the stated  
opinions of this expert …  
[…]  
[23] By contrast, the expert retained by the defendants conducted testing to  
measure the floor’s slip resistance. Testing revealed that, under wet  
conditions, the floor’s static coefficient of friction (not in movement) would be  
considered a high traction floor based on current standards (0.86 was the  
average measurement, with 0.60 and up considered high traction). The more  
relevant test results showed that the floor’s wet dynamic coefficient of friction  
(in movement) would fall within an acceptable range (0.37 was the average  
measurement, with 0.30 to 0.42 considered acceptable). In light of these  
results, his opinion was that the floor provided sufficient friction for normal  
use. Dr. Parkinson was a highly qualified, reasonable, and helpful expert.  
[88] In contrast to Caron, in Mr. Gujral’s case the court was presented with no  
evidence regarding measurements of the Restaurant floors’ slip resistance or  
adhesion, whether it be the tiled or wooden floor, to determine if one, or both, or  
none, were “unacceptably slippery when wet” or “unreasonably slippery”, or even  
slippery at all.  
[89] Similarly, this Court was presented with no expert evidence concerning the  
slope of the floor or tiles. Evidence of this nature was a critical determining factor in  
Simpson v. Qualicum Beach (Town), 2019 BCSC 1310 [Simpson] at paras. 14-24,  
which involved a slip and fall at a community swimming pool. In determining whether  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 36  
the pool deck was “hazardously slippery”, the court considered expert evidence from  
an engineer, Mr. Gough, on both the friction coefficient and degree of slope of the  
deck, but ultimately rejected that expert evidence because the data had been  
collected from the wrong area of the pool deck:  
[14]  
During his site visits to the pool, Mr. Gough made some  
measurements of the degree of slope and the coefficient of friction of wet tiles  
at certain locations around the pool deck. One of the locations he tested was  
near the circular drain that was closest to where the plaintiff fell. Mr. Gough  
reported that the slope of the deck at the drain varied from 4.0% and 4.4% to  
the south and north, to 9.8% and 10.6% to the west (away from the pool) and  
east (toward the pool).  
[15]  
One of the conclusions that emerges from Mr. Gough’s testing is that  
the pool deck tiles that he examined, even when wet and at their highest  
degree of slope, were not hazardously slippery. The plaintiff’s argument  
recognizes and takes account of these facts: the submission focuses not on  
the degree of slope but the absence of uniformity of the slope to drain and  
in particular the lack of uniformity in the area of the circular drain near where  
the fall occurred. This argument places heavy reliance on the pool design  
standards that use the word “uniform” when delineating standards on the  
degree of slope to drains.  
[16] However, on a close reading of his report, it is apparent that Mr. Gough  
tested the slopes at the circular drain, and in other locations around the pool,  
but not where the plaintiff said his right foot slipped about 70 cm away  
from the drain. One of the plaintiff’s engineers, Craig Luker, remarked on this:  
“[T]he expected path followed by Mr. Simpson … does not actually pass  
though the area that was measured by Mr. Gough. In other words, his  
measurements missed the single most important area.”  
[17]  
The usefulness of Mr. Gough’s slope and friction measurements is  
limited by the absence of measurements of the tiles in the area where  
Mr. Simpson slipped. This is not a criticism of Mr. Gough’s work — I think it  
likely that at the time the measurements were made, he was not equipped  
with accurate knowledge about where Mr. Simpson slipped.  
[18]  
However, Mr. Simpson’s case is not helped by the absence of  
measurements at the relevant location. The defendants chose to have  
Mr. Gough attend at the site and take measurements, but it is the plaintiff’s  
case to prove.  
[…]  
[24] Mr. Simpson has not proved his allegation of the lack of tile-slope  
uniformity in the location where he fell. And, he has failed to prove a  
causative link between the allegedly defective conditions and his unfortunate  
fall. His action must therefore be dismissed.  
[90] In this case Mr. Gujral adduced no evidence at trial of “measurements of the  
degree of slope and the coefficient of friction of wet tiles” of any of the flooring  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 37  
materials despite the fact, as noted by the court in Simpson, that “it is the plaintiff’s  
case to prove” and Mr. Gujral could have done so with recourse to an expert.  
Moreover, to the extent that Mr. Gujral himself gave evidence about observing  
wetness on the floor after the Fall, I reference my earlier conclusion that his  
evidence on the specific location of the wetness was vague and not definitively  
connected to the precise spot of the Fall. I note that, in Simpson, this lack of  
specificity on location was fatal to the claim.  
The defendants had no reasonable basis to know there was a  
real risk that the floors were a hazard  
[91] In Mason v. Reid, 1999 5438 (B.C.S.C.) [Mason] at para. 7, which  
involved a slip and fall on a wet wooden wheelchair ramp, Justice Lamperson  
outlined a helpful list of some of the questions a court may ask in considering  
whether the occupier’s conduct is in accordance with the generally accepted  
standard of care:  
1.  
Would a reasonable and knowledgeable person looking at the  
part of the premises under consideration know that there was  
a real risk as opposed to a mere possibility that an accident  
would happen unless steps were taken to eliminate the risk, in  
other words, was there a foreseeable risk of harm?  
2.  
3.  
4.  
5.  
How long had the ramp been safely used?  
Had there been complaints prior to the accident?  
Had there been prior accidents?  
Did the ramp comply with the building code in effect at the  
time?  
6.  
What was the cost of eliminating the danger?  
[92] With reference to the above list of questions from Mason, I find the following  
evidence to be persuasive in this case:  
The Restaurant opened in 2010 and the Fall did not occur until October 2011.  
There was no evidence of any prior complaint from a Restaurant customer  
relating to a slippery floor, or of a prior slip and fall by any customer;  
There are six retail units on the ground floor of the Flack Block, with seven  
entry points all utilizing the same tile as the Meat & Bread entrance, some  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 38  
with similar configurations to the Meat & Bread entry. Both Mr. Rushford and  
Mr. Murray gave evidence that they were not aware of any other slip and falls  
at the Meat & Bread tiled entry, nor were they aware of any slip and falls at  
any of the other tiled retail entryways at the Flack Block. There was no  
evidence of any other complaints concerning slippery tiles made by any of the  
tenants, their customers or at all;  
The Restaurant is a high-traffic location. Mr. Jarvie gave evidence that, on the  
day of the Fall, approximately 400 customers entered and exited the premises  
in the same entranceway where Mr. Gujral fell. There was no evidence that  
any other customer complained of slippery floors or suffered a similar slip as  
Mr. Gujral on the day of the Fall. Moreover, Mr. Gujral’s own evidence was  
that he entered and circulated within the Restaurant that day, and on six-eight  
prior occasions, without slipping; and  
There was no evidence that the floors or the tiles failed to comply with the  
building codes or any other regulatory standards at the time.  
[93] Evidence of prior safe use and continued safe use, while not determinative,  
are relevant to the question of whether the area was reasonably safe at the time of  
the incident in question: Robson v. Trail Bay Developments Ltd., 2009 BCSC 806;  
Simmons v. Yeager Properties Inc., 2013 BCSC 889, varied 2014 BCCA 201.  
[94] Further, with respect to the costs of eliminating the danger identified in  
Mason, it is not apparent from Mr. Gujral’s argument where a reasonable stopping  
point lies. Mr. Jarvie testified that there was, as a matter of practice, a mat at the  
door of the Restaurant, although after the Fall this was increased to two mats.  
However, the logic of Mr. Gujral’s claim appears to be that the Restaurant could in  
theory be held liable for any slip that occurred on a floor or tile surface not covered  
by a mat. This logic would appear to imply that even two mats may not be enough  
and, if accepted, would appear to necessitate the Restaurant either spreading mats  
across the entire surface of the floor and tiles or removing and replacing the floor  
and tiles altogether and replacing them with a different surface. This in my view  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 39  
would have entailed an excessive cost, particularly without reference to any expert  
evidence concerning the relative risks and safety advantages of the proposed  
changes to the flooring of the Restaurant. Since Mr. Gujral failed to adduce any such  
evidence in this case, there was simply no basis upon which a court could reach a  
reasoned and evidence-based conclusion on these questions.  
Conclusions on the Evidence Adduced by the Plaintiff  
[95] In my view, given the lack of evidence I have described above, Mr. Gujral’s  
allegation that he slipped on water and that the water was an unreasonable hazard  
at the Restaurant on the day of the Fall, appears to be little more than mere  
speculation.  
[96] The courts have cautioned that mere speculation is not sufficient to enable a  
plaintiff to meet the burden of proof under the OLA: Cropley v. Daishinpan (Canada)  
Inc., 2002 BCSC 1477 at para. 22. For example, in Van Slee, the court stated very  
clearly that “the Court must not speculate”. In that case, the plaintiff slipped and fell  
in the defendant's grocery store on a rainy day. Although the plaintiff did not observe  
water on the floor, she inferred that she had slipped on water accumulated on the  
floor of the premises in front of its customer service desk. In dismissing the action,  
the Court held:  
[31] The law is clear in this area, the Court must not speculate. The plaintiff  
must prove: first, what condition or hazard caused her slip and fall; and,  
second, that the condition or hazard existed due to a breach of duty by the  
defendant. I find that as the plaintiff cannot prove the former, thus she cannot  
prove the latter.  
[97] Similarly, in Kerr v. Global Investments House Inc., 2014 BCSC 1544 [Kerr],  
the court explained that while causation need not be proved with “scientific  
precision” the court should also not resort to speculation as a substitute for positive  
evidence. In Kerr, the plaintiff slipped and fell in front of the defendant's hotel. The  
plaintiff argued that the fall occurred because the hotel landing was slippery and that  
the defendant failed to post a warning about the danger. The court found that the  
plaintiff had failed to establish on the evidence that hotel landing was sufficiently  
slippery to create an unsafe condition:  
 
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 40  
29. Even if it is established that an occupier breached its duty by failing to  
take reasonable care to ensure that its premises was reasonably safe, the  
plaintiff must also prove on a balance of probabilities that the unsafe  
condition caused the fall: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228  
(C.A.); Tolea v. Ialungo, 2008 BCSC 395, at paras. 68-69.  
30. The court cannot speculate when determining the cause of the plaintiff's  
fall: Ferrier, at para. 19; Zantvoort v. Welyk, 2003 BCSC 995. Having said  
that, causation need not be determined by scientific precision and can be  
determined by the practical application of common sense: Druet v. Sandman  
Hotels, Inns & Suites Ltd., 2011 BCSC 232, at paras. 14-18, citing Snell v.  
Farrell, [1990] 2 S.C.R. 311.  
[98] In dismissing the plaintiff’s action in Kerr at para. 77, the Court emphasized  
the burden on the plaintiff to go beyond speculation and adduce actual evidence of  
an unsafe condition and a causal connection between that condition and the  
accident:  
77. I am unable to determine, on the evidence, the likely cause of Mr. Kerr's  
fall. As already noted, even if it was established that the defendant breached  
its duty by failing to warn of an unsafe condition, Mr. Kerr must also prove on  
a balance of probabilities that the unsafe condition caused the fall. While  
causation need not be determined by scientific precision, the court cannot  
speculate. For the foregoing reasons, I find that even if the defendant  
breached its duty to Mr. Kerr, Mr. Kerr has failed to establish on a balance of  
probabilities that the defendant's breach caused his fall.  
[99] In response to the above authorities, Mr. Gujral relies upon the decision of  
Zary, a slip and fall case where there was evidence of “some water on the floor”, on  
the basis that Justice Skolrood concluded at para. 47 that “the only proper inference  
to be drawn is that Ms. Zary slipped due to water on the floor”.  
[100] However, in my view Zary is readily distinguishable on the facts. In contrast to  
Zary, where there was no other inference to be drawn from the evidence, there was  
another reasonable inference in this case with respect to the cause of Mr. Gujral’s  
fall, which was his twisting motion occasioned by turning and waving to the  
Restaurant staff. Further, in contrast to this case, the plaintiff in Zary actually testified  
as to witnessing water on the floor before her slip and fall and also as to a history of  
slippery floors due to water accumulation. At paras. 6-8, the court summarized the  
key evidence as follows:  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 41  
[6]  
Ms. Zary deposes that she has used that washroom many times over  
the years. She goes on to say:  
Often the washroom is dirty. Before October 24, 2010 there were frequent  
occasions when there was water on the floor of the washroom. On occasions  
I would not use that washroom because I know that water on the ceramic tile  
floor can be slippery.  
[7]  
Ms. Zary also provides evidence of her general observations  
concerning the washroom:  
My observation is that there is frequently water on the floor of that washroom.  
My observation is that the water accumulates from water dripping from the  
fixtures. I have seen drops of water that condense on the plumbing fixtures  
fall to the floor. I have not seen a water leak in the washrooms, but I have  
seen water accumulate on the floor from what I believe to be water  
condensing on to the steel and porcelain fixtures. I have observed that there  
is a variation with respect to the moisture on the floor in the washroom. For  
example, in the summer I have observed the floor to be dry on some days.  
When the floor is dry it is not slippery.  
[8]  
In terms of the incident on October 24, 2010, Ms. Zary describes  
her fall as follows:  
On October 24, 2010 I had worked at the public market. After  
the market closed I was getting ready to leave for the day. I  
walked into one of the women’s washrooms at the public  
market. On this occasion I did not see water on the floor as I  
walked into the washroom so I thought I would use the  
washroom. I pushed open the swinging door of the stall  
closest to the entrance of the washroom. When I pushed the  
swinging door open I saw that there was water on the floor in  
the area around and approaching the toilet. Upon seeing the  
water I thought to myself that I did not want to use that stall  
because I did not want to run the risk of slipping because of  
the water. I took one step with my left foot to leave the stall. As  
I stepped I felt my right foot slip. I grabbed the door to the stall  
to try to prevent myself from falling, but I was not able to  
prevent myself from falling. I could not hold myself up by using  
the door and my legs were not in a position to support me. I  
called for help as I was holding onto the door. I fell to the wet  
floor and heard a “snap” from my right knee.  
[101] In Zary, the plaintiff’s evidence was that she had seen water in the  
washrooms before she slipped and also that water on the floor had been an ongoing  
prior problem. On the day of the accident she saw water in the stall and sought to  
avoid it because she knew it was slippery but failed to do so. By contrast, Mr. Gujral  
did not testify to having any prior knowledge of slipperiness from water at the  
Restaurant nor did he attest to viewing water at all before he slipped. His evidence  
that he slipped on water was based solely upon his own ex post facto opinion that it  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 42  
must have been water that caused the Fall. In addition, there was no alternative  
explanation presented in Zary for the cause of the fall whereas in this case there  
was a plausible alternative explanation. Finally, Justice Skolrood in that case found  
the plaintiff’s testimony to be credible whereas I have made an adverse credibility  
finding in this case which places it on a different footing.  
[102] Mr. Gujral also seeks to rely upon the decision in Owens v. Steveston  
Waterfront Properties Inc., 2019 BCSC 746 at para. 49, a case involving a slip on a  
boardwalk ramp. However, that case is also very different on the facts. In that case,  
the plaintiff had adduced expert evidence from an engineer as to a “variance in  
frictional properties of the boardwalk at the site where the plaintiff fell” which the  
court accepted. In this case no expert evidence at all was adduced. In addition, in  
that case there was evidence that occupiers of neighbouring boardwalks had  
mounted signs warning of a potential slipping hazard. In Mr. Gujral’s case there was  
no evidence of occupiers of neighbouring restaurants and shops posting signs  
warning of a risk of slipping on rainy days.  
[103] Finally, Mr. Gujral relies on Tondat v. Hudson’s Bay Company, 2017 ONSC  
3226, aff’d 2018 ONCA 302 [Tondat]. In that case the plaintiff slipped and fell in the  
vestibule at the entrance of a Hudson’s Bay store, which was found liable. It had  
been raining heavily that morning but had reduced to a drizzle by the time she  
entered the store. She entered the store, stepped onto a black floor mat and then, as  
she stepped from the mat onto the tiled floor, she slipped and fell on her right knee,  
breaking her right knee cap. The plaintiff’s sister, who attended the scene, gave  
separate evidence that the tiles in the vestibule appeared wet.  
[104] In my view, Tondat is to be distinguished from this case for a number of  
reasons. First, there was evidence in Tondat from the plaintiff that she sat down in  
the spot where she had slipped after the fall and there was sufficient water to make  
her buttocks wet. By contrast, there was no evidence in Mr. Gujral’s case concerning  
the quantity and specific location of the water. Second, there was a witness in  
Tondat other than the plaintiff who testified that the floor was wet, whereas there  
Gujral v. Meat and Bread Sandwich Company Ltd.  
Page 43  
was no witness other than Mr. Gujral who testified that the floor was wet at the  
Restaurant. Third, the court in Tondat clearly found the plaintiff to be a credible  
witness, whereas I have found that there were serious issues with Mr. Gujral’s  
credibility. Fourth, there was no other plausible explanation for the plaintiff’s fall in  
Tondat, whereas the evidence in this case was that Mr. Gujral may have caused the  
fall by waving and twisting as he exited the store.  
[105] Therefore I conclude that Mr. Gujral has not met the burden of proof to  
establish that the Fall was caused by a risk or hazard at the Restaurant, or that any  
such risk or hazard was unreasonable under the circumstances. While I believe that  
Mr. Gujral did indeed suffer the alleged injuries, and have sympathy for his condition,  
it appears the Fall is an unfortunate example of what has been described as one of  
the “ordinary risks arising out of the exigencies of everyday life” as stated by Chief  
Justice McEachern in Malcolm v. B.C. Transit et al. (1988), 32 B.C.L.R. (2d) 317,  
1988 3213 (B.C.C.A.) at para. 10.  
Losses and Damages  
[106] Having found no breach of duty by the defendants under s. 3 of the OLA, it is  
unnecessary for me to proceed to assess the alleged losses and damages.  
ORDER  
[107] Mr. Gujral’s claim is dismissed.  
[108] The parties are granted leave to speak to the issue of costs.  
M. Taylor J.”  
   



© 2019 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission