COURT OF APPEAL FOR ONTARIO

CITATION: Cannon v. Cemcor Apartments Inc., 2017 ONCA 378

DATE: 20170510

DOCKET: C62160

Doherty, Benotto and Trotter JJ.A.

BETWEEN

Gregory Cannon

Plaintiff (Appellant)

and

Cemcor Apartments Inc. and Myles Property Management Inc.

Defendants (Respondents)

Paul J. Pape, for the appellant

Alan Rachlin, for the respondents

Heard: April 26, 2017

On appeal from the judgment of Justice Cornell of the Superior Court of Justice,
dated April 29, 2016; 2016 ONSC 2828.

By the Court:

[1] Mr. Cannon slipped on the ice in the parking lot of the apartment where he
lived and broke his leg. Under the terms of his lease, the landlord, Cemcor
Apartments Inc. (Cemcor), was responsible for maintaining the parking
lot. Cemcor had a contract with Myles Property Management Inc. (Myles) to
clear the snow and ice from the parking lot.

[2] Mr. Cannon sued Cemcor for negligence. It is common ground that under
the Occupiers Liability Act, R.S.O. 1990, c. O.2, Cemcor owed a duty of care to
Mr. Cannon. In the language of the statute, Cemcor was under a duty to take
such care as in all of the circumstances of the case is reasonable to ensure that
Mr. Cannon was reasonably safe while on the premises.
[3] The trial judge dismissed the claim. Mr. Cannon appealed. At the end of
oral argument, the court advised counsel that the appeal was dismissed with
reasons to follow. The reasons are set out below.

[4] The evidence at trial focused primarily on two factual issues:

the terms of the winter maintenance program Cemcor had in place through

its contract with Myles to plow and sand the parking lot; and

the actual conditions of the parking lot when Mr. Cannon slipped and fell.

[5] After a detailed review of the evidence, the trial judge held, at para. 49:

I conclude that given the realities and conditions that are experienced
in northern Ontario in the winter, the landlord did have in place a
reasonable policy to provide proper winter maintenance for the parking
lot.

[6] The appellant does not challenge this finding on appeal.

[7] The appellant does submit, however, that the trial judge erred in finding
that Cemcor followed that policy on the day of the accident. The appellant
argues that by the terms of Cemcors winter maintenance policy, the amount of
snow on the ground on the day of the accident required that the entire parking lot
be cleared of snow. On the evidence, only a partial clearing had been done.

[8] In considering whether, according to Cemcors own maintenance criteria,

the entire parking lot should have been plowed, the trial judge focused on the
actual conditions in the parking lot at the time of the accident, as described by
various witnesses called by both Mr. Cannon and Cemcor (see paras. 68-109).

[9] The trial judge ultimately held, based largely on the evidence of defence
witnesses, but to some extent on Mr. Cannons evidence, that the parking lot was
adequately cleared at the time of the accident, but for the isolated slippery spot
on which Mr. Cannon slipped and fell.

[10] The trial judge made no factual error in his analysis of the evidence. The
condition of the parking lot at the time Mr. Cannon fell was the crucial factual
issue. Evidence of Cemcors snow removal policy, evidence of snowfalls in the
preceding weeks and days, and the Environment Canada records of snowfall at
the Sudbury airport, some 20 to 25 kilometres away from the parking lot, while no
doubt relevant, were regarded by the trial judge as of secondary value to the
descriptions of the condition of the parking lot given by the persons who were in
the parking lot on the day of the accident.

[11] It was open to the trial judge to treat the firsthand evidence of the
witnesses as more probative of the condition of the parking lot at the time of the
accident than the statistical information from Environment Canada. We do not
accept the argument that the Environment Canada records unequivocally
established that the amount of snow on the ground in the parking lot was in
excess of the amount that on Cemcors own maintenance criteria required the
plowing of the entire parking lot. While the records indicated significant snowfall
in the Sudbury area in December and January, they were not so compelling as to
require the trial judge to reject the evidence of the witnesses who were actually in
the parking lot on the day of the accident. The trial judge made no error in his
analysis of the evidence.

[12] The appellant also submits that the trial judges interventions in the course
of the trial demonstrate a reasonable apprehension of bias. In his factum, the
appellant referred to interventions by the trial judge, both during counsels cross-
examination of defence witnesses and during counsels closing argument. In oral
argument, counsel focused on the interventions during cross-examination. We
will do the same. The interventions by the trial judge during closing argument
were not inappropriate.

[13] There were many interventions by the trial judge during counsels cross-
examination of the defence witnesses. Some were appropriate. Trial judges
have a responsibility to ensure that cross-examinations are conducted fairly and
in accordance with the rules of evidence. For example, it was proper for the trial
judge to caution witnesses against guessing or assuming, especially when the
nature of some of counsels questions on cross-examination seemed to invite
speculation or assumptions. It was also appropriate for the trial judge to interrupt
counsel when the purpose of a certain line of questioning was unclear to the trial
judge. Sometimes, a trial judge cannot assess relevancy without some idea of
where a line of questioning is going.

[14] However, many of the interventions were unnecessary, or at least

premature, especially in the context of a trial without a jury. The interventions, in
their cumulative effect, disrupted counsels cross-examination and interfered with
the narrative flow of the evidence. As the trial proceeded, the interruptions also
created an obvious tension between counsel for Mr. Cannon (not Mr. Pape) and
the trial judge. As the interventions increased and the tensions mounted, the trial
judges tone on occasion became blunt, if not rude, and sometimes
condescending.

[15] It must be said that the efficiency and, perhaps more importantly, the tone
of the trial suffered, to some degree, as a result of the trial judges many
interventions and the tensions that developed between counsel and the trial
judge as a result of those interventions. We also understand the appellants
concern about the appearance of fairness. However, the trial judges
interventions do not rise to the high level required to displace the presumption of
judicial impartiality. Having regard to that presumption, a reasonable person,
properly informed, would not apprehend bias as a result of the trial judges
interventions.

[16] The interventions did not prevent counsel from fully developing the defence
position. Nor did the interventions necessarily favour the defence over the
plaintiff. We do not agree with counsel for the appellants submission that the
trial judges interventions coached the defence witnesses. The trial judges
repeated admonitions to witnesses to stay within the limits of their own
knowledge in answering questions did not appear to necessarily advantage one
side or the other. Depending on the question, the limits on the response
imposed by the trial judge had the potential to assist either side.

[17] We also do not agree that the transcript permits this court to conclude that
the trial judge took over carriage of the defence. As counsel for the respondent
correctly points out, it is impossible to say from the transcript alone whether
some of the trial judges interventions were at his own initiative, or in response to
defence counsel standing to make an objection.

[18] The trial would have proceeded more smoothly had the trial judge
intervened less and allowed defence counsel to conduct his cross-examination
as he saw fit. Indeed, the need for many of the interventions would probably
have disappeared had the trial judge simply allowed defence counsel a little more
leeway in developing his line of questions. However, while the judge can be
properly criticized for many of his interventions, we do not accept that those
interventions rendered the trial unfair, or created a reasonable apprehension of
bias.

[19] The appeal is dismissed. Costs to the respondent in the amount of

$15,000, inclusive of disbursements and relevant taxes.

Released: DD MAY 10 2017

Doherty J.A.
M.L. Benotto J.A.

G.T. Trotter J.A.