Many people involved in accidents take photos to record the events for use in an anticipated legal case – but what happens if the photos are not time-stamped or the exact location where the accident occurred isn’t identified?
The recent case of Basaraba v Bridal Image Inc. offers a reminder to parties to personal injury cases to take useful photos to support their case. The defendants sought to have the case thrown out prior to trial, claiming that there was no genuine issue to be determined. However, the Superior Court of Justice of Ontario declined to do so, finding that the evidence submitted, including photos tendered by the defendants, did not allow a decision to be made on whether a duty of care was owed to the plaintiff.
Plaintiff suffers a slip and fall accident at a strip mall
In 2014, the plaintiff fell over in a small strip mall in Mississauga, while attempting to pick up a wedding dress from a bridal store. She slipped and fell on some ice located on what she described as a pathway and the store owner described as a landscaped area.
The defendant used one of the car parking spots at the side of the building. There was also one spot in front of the entrance to the bridal store that blocked pedestrian access from the side spots if a car was parked there, as is alleged to have been the case at the time of the accident.
Upon exiting her car, the defendant did not walk between the parked cars to enter the store via the area immediately in front of the door. Instead, she took the unpaved strip of land beside the building, where the accident occurred.
The plaintiff sued the store for failing to keep the premises reasonably safe, as required by section 3(1) of the Occupier’s Liability Act. The defendants brought a motion for summary judgment, arguing that the paved parking area and the paved pad in front of the door to the store were safe and the plaintiff was the author of her own misfortune in having chosen instead to take the landscaped strip.
What is a “summary judgment”?
According to rule 20.04(2)(a) of Ontario’s Rules of Civil Procedure, a summary judgment may be granted by the court where “there is no genuine issue requiring a trial with respect to a claim or defence”. This allows the court to dispose of some cases, without the need for a formal trial.
Both parties submitted photographs as evidence
Justice Dunphy was directed to two photos taken by the defendants and one by the plaintiff, but none of the photos were dated. The photos were inconsistent, with a pile of snow visible in only two of them.
In addition, the photos were not accompanied by sworn testimony. The defendants relied on an unsworn witness statement from a store manager who was not present when the incident occurred, and as such, was not able to bring actual knowledge of the relevant events on the day in question. This led His Honour to say:
The moving parties’ decisive photographic evidence was, to all intents and purposes, useless as presented. This was not “best foot forward” being applied to the single most crucial piece of evidence on which the defendants’ joint motion relied.
The plaintiff’s photo was taken at night and showed visible footprints in the ice, which Justice Dunphy felt at least raised the suggestion that the plaintiff was not the first person to have the idea to walk along the unpaved area.
However, none of the photos showed the accident’s actual location, which was a few feet to the right of the area depicted in the three photos.
Were the defendants entitled to summary judgment?
It is important to note that the court was not deciding the merits of the plaintiff’s claim for damages in this particular case. Instead, it was determining whether the plaintiff had a right to continue to bring her action against the defendants in a subsequent trial.
Justice Dunphy explained that the issue, in this case, is a very fact-intensive assessment of the entire context of the incident to determine whether or not a duty of care existed to keep safe for transiting customers the very area where the accident occurred.
His Honour held that the evidence presented did not enable him to arrive at a reasoned view of the application of the duty of care with the confidence necessary to enter a judgment one way or the other.
Justice Dunphy disagreed with the defendants that it was “plain and obvious” that the standard of care was met. His Honour thought that it was possible people might expect a sidewalk to be located around the perimeter of the mall building, and noted:
There is at least an open question as to whether that strip of land beside the building would appear to the reasonable observer as being the logical means of approaching the store from the parking lot in preference to the area immediately in front of the door which, while paved, was also entirely blocked by parked cars. As well, it is not at all clear whether the unpaved nature of that verge would be apparent to a reasonable observer approaching the area in winter conditions.
As a result, His Honour dismissed the defendants’ motion for summary judgment.
It is possible that the judge would have been able to make a decision with the necessary confidence had the defendants been more careful when recording and presenting the evidence. One key aspect of this was the photographic record, which was lacking in this case.
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