Date Issued: October 20, 2023

File: SC-2022-004455

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hagley v. A & W Food Services of Canada Inc., 2023 BCCRT 899

Between:

MICHAEL HAGLEY

Applicant

And:

A & W FOOD SERVICES OF CANADA INC. – SERVICES ALIMENTAIRES A & W DU CANADA INC. and WESTERN RESTAURANT FRANCHISES INC.

Respondents

REASONS FOR DECISION
Tribunal Member:	Peter Mennie

INTRODUCTION

1.      This is a dispute about personal injury damages from a trip and fall incident.

2.      The applicant, Michael Hagley, says he tripped and fell on a step on the respondents’ property. He says this resulted in serious injuries and claims $5,000 as damages for pain and suffering.

3.      The respondent A & W Food Services of Canada Inc. – Services Alimentaires A & W du Canada Inc. (A&W) says it is not responsible for Mr. Hagley’s fall because it does not own or operate the property where Mr. Hagley fell. A&W says its franchisee, the respondent Western Restaurant Franchises Inc. (Western), operates the restaurant where the alleged injury took place.

4.      Western agrees Mr. Hagley fell at its restaurant but says there is not enough evidence to prove the severity of Mr. Hagley’s injuries.

5.      Mr. Hagley is self-represented. A&W and Western are represented by employees.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly.

7.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

8.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

Issues with evidence

10.   In his submissions, Mr. Hagley refers to photographs of the accident scene which he did not upload to the CRT as evidence. Parties are told to submit all relevant evidence. CRT staff confirmed that they asked Mr. Hagley to review his uploaded evidence and that Mr. Hagley did not report any issues. While Mr. Hagley’s photos may have been helpful, his submissions describe the accident scene and neither of the respondents take issue with Mr. Hagley’s description. I find I am able to decide this dispute without Mr. Hagley’s photos.

ISSUES

11.   The issues in this dispute are:

a.    Is A&W a party to this dispute?

b.    Is Western responsible for Mr. Hagley’s trip and fall and, if so, what remedy is appropriate?

EVIDENCE AND ANALYSIS

12.   In a civil proceeding like this one, as the applicant Mr. Hagley must prove his claims on a balance of probabilities. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision. Mr. Hagley gave no final reply submissions despite having the opportunity to do so.

 

Claim against A&W

13.   A&W says that it should not be a party to this CRT dispute. A&W provided evidence to show that it is a franchisor of A&W restaurants. It undisputedly does not own or control the restaurant where Mr. Hagley tripped and fell.

14.   I find that A&W was not responsible for operating the restaurant where Mr. Hagley fell and so it did not owe Mr. Hagley a duty of care to ensure this property was safe. I dismiss Mr. Hagley’s claim against A&W.

Liability for trip and fall

15.   Mr. Hagley says on July 23, 2020, he tripped and fell while visiting a restaurant owned and operated by Western. He says there is a step in the asphalt leading to the door to Western’s restaurant. He says that the step and the ground are the same colour and the sun was in his eyes so that he did not see the step which caused him to trip.

16.   Western says that it is not aware of any witnesses to Mr. Hagley’s fall, however Mr. Hagley reported the fall to one of its employees. A Western employee followed up with Mr. Hagley on July 26, 2022, and Mr. Hagley said his arm was improving but his ribs were hurting. This employee reports that in late July Mr. Hagley attended the restaurant in person and reported that he was doing well overall.

17.   Western does not dispute that it owns or operates the restaurant where the accident happened. Section 3 of the Occupiers Liability Act (OLA) says that an occupier of a premises owes a duty to take care that a person and their property will be reasonably safe in using the premises. I accept that Western meets the definition of an “occupier” in the OLA. The standard of care in occupiers’ liability is reasonableness, not perfection. The question is whether Western provided a reasonable warning of potential hazards, including the step where Mr. Hagley tripped, that were on the property.

18.   Western did not provide substantive submissions on whether the step was hazard under the OLA. It is undisputed that, following Mr. Hagley’s fall, Western painted the step a different colour so the step would be more visible those entering the restaurant. Remedial measures taken after an incident are not necessarily determinative that they were taken to comply with a duty of care, but they are a factor to consider (Cahoon v. Wendy's Restaurant, 2000 BCSC 629 at para. 21).

19.   I find that Western breached the OLA by failing to provide a warning about the step to customers entering its restaurant. The uniform colour of the ground and step would make it hard for customers to distinguish the step. As a public restaurant, Western knew, or ought to have known, that a rise in the asphalt with no differentiation in colour could create a hazard. I find that Mr. Hagley tripped on the step due to its hazardous nature and that Western owes Mr. Hagley damages as a result.

20.   I turn to Mr. Hagley’s damages. Mr. Hagley says that his injuries were serious. While in the Dispute Notice he says that he suffered broken bones, his submissions state only that he lost the use of his left arm for many weeks and the injuries to his rib were extremely painful.

21.   The only medical record Mr. Hagley submitted was an Outpatient Record from his visit to the hospital on July 24, 2020, the day after his fall. Mr. Hagley reported to the treating doctor that he had pain in his left wrist and elbow and that he had minor chest discomfort. The doctor diagnosed Mr. Hagley as having an elbow soft tissue injury.

22.   Western says that Mr. Hagley has not submitted evidence to prove the severity of his injuries. As noted above, Western says that an employee followed up with Mr. Hagley in the days following the accident. This employee says around a week after the accident Mr. Hagley attended the restaurant and reported that he was doing well overall. Mr. Hagley did not dispute this, so I accept the employee’s evidence.

23.   Given the limited medical records provided by Mr. Hagley and Western’s employee’s evidence, I find that Mr. Hagley sustained a relatively minor injury to his chest and a soft tissue injury to his left arm which was largely resolved within a week. On a judgment basis, I find that $500 in non-pecuniary damages (damages for pain and suffering) is appropriate for Mr. Hagley’s injuries.

CRT fees and expenses

24.   The Court Order Interest Act (COIA) applies to the CRT. Under section 2 of the COIA, Mr. Hagley is not entitled to pre-judgment interest on his award for non-pecuniary damages. So, I make no order for interest.

25.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. Mr. Hagley proved liability but did not prove that he suffered serious injuries or broken bones which he claimed in his Dispute Notice. I find there was mixed success and so I order that Mr. Hagley be reimbursed $87.50, which is half his paid CRT fees. Neither party claimed dispute-related expenses.

ORDERS

26.   Within 30 days of the date of this decision, I order Western to pay Mr. Hagley a total of $587.50, broken down as follows:

a.    $500 as damages, and

b.    $87.50 in CRT fees.

27.   The applicant is entitled to post-judgment interest, as applicable.

28.   I dismiss Mr. Hagley’s claims against A&W.

29.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.