Gujral v Meat and Bread Sandwich Company Ltd

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.

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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.

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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.

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[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

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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.

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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.

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(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

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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

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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.

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[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

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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)

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(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

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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

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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.

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[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.

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[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.

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[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

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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

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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

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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.

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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:

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[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

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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

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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.”