Retail Case Update: Severance and Suitability for Summary Trial in Grocery Store Case

The B.C. Court recently published reasons in the case of Tahouney v. JCB Holdings Ltd., 2023 BCSC 1801 (linked here). In this case, the plaintiff alleged that she tripped on a bunched up mat placed on the produce section floor. The defendant store applied to sever the issue of liability from damages and dismiss the claim against them by way of summary trial.

The Honourable Mr. Justice Milman reviewed the test that the defendant grocery store had to meet when seeking an order to sever liability from damages and to have the issue of liability determined separately by way of a summary trial.

The defendant store argued that the plaintiff’s description of how the fall occurred was based on nothing more than speculation. The defendant store took the position the pre-existing fold in the mat was merely an inference that the plaintiff had drawn based on her post-fall observation that the mat was bunched up. Essentially, the defendant store argued it is just as or more likely that the fold was the effect rather than the cause of the fall, which is insufficient to support a finding of liability.

However, while Mr. Justice Milman agreed that the plaintiff’s description of the fall rested almost entirely on her own description of what she says she felt as she was falling, he could not agree with the defendant store’s position. The reason for this is the plaintiff’s evidence was set out in her affidavit and had not been tested through cross-examination, nor was it put to the plaintiff at her examination for discovery.

Similarly, Mr. Justice Milman was unable to find the defendant store had a reasonable system in place to prevent such a hazard from arising. Whether they in fact had such a system in place and whether it was sufficient for that purpose are questions that are best left for the trial judge to resolve in the context of the other evidence that is adduced at trial. These were not questions that could properly be answered on the evidence before Mr. Justice Milman as the evidentiary basis for that defense on the application was mostly hearsay.

It followed that this was not a case in which the issue of liability could be severed or tried separately. As a result, the matter is set to proceed to trial in January 2024. If the matter proceeds to trial, we will keep our readers apprised of the results.