Executive Summary: Key Legal and Evidentiary Issues

• The court addressed whether liability should be severed from damages in a slip-and-fall claim.
   
• Justice Klein found compelling reasons existed to sever liability from damages, applying the test from Zary v. Canada Mortgage and Housing Corporation.
   
• A central issue was whether the summary trial was suitable given the plaintiff's challenge to the credibility of Orchards' owner and manager, Regina Wong.
   
• Her failure to pursue further examination for discovery regarding the November 2021 sweep log weighed against the plaintiff's position.
   
• Whether Orchards maintained a reasonable system of inspection under the Occupiers Liability Act was a key evidentiary question.
   
• Ultimately, the court found the defendants had established a reasonable system of maintenance in effect at the time of the incident.
   

Facts of the case

On November 30, 2021, at around 5:30 p.m., the plaintiff, Christine Tu, slipped and fell at Orchards Farm Market ("Orchards"), a produce store. She alleges she slipped on a piece of lettuce left on the floor, which she did not notice before falling but noticed afterward, and that she suffered injuries including a significant injury to her ankle. The premises were owned by the defendant 12300118 Holdings Ltd. and leased to the defendant 1099091 BC Ltd., doing business as Orchards. The defendants also named in the action include ABC Property Management Company and XYZ Property Maintenance Company. The evidence before the court consisted of affidavits from the plaintiff and from Regina Shui Hing Wong, the owner and manager of Orchards and a director of 12300118 Holdings Ltd., along with excerpts from Ms. Wong's examination for discovery conducted on May 21, 2024. Ms. Wong's affidavit described personally training employees on a maintenance system and attached a sweep log for November 2021, a table recording staff initials for inspection times between 8 a.m. and 7 p.m. each day; all boxes between 4 p.m. and 7 p.m. on November 30, 2021, were marked with initials. The sweep log was not disclosed at the time of Ms. Wong's discovery examination but was included when the defendants' summary trial application was filed on July 18, 2025. The plaintiff requested the log upon its disclosure but did not seek to further examine Ms. Wong about it or pursue other potential witnesses regarding employee training.

Policy and legislative provisions at issue

The defendants applied under Rule 9-7(2) of the Supreme Court Civil Rules to have the plaintiff's claim dismissed by way of summary trial. Rule 9-7(11) permits the court to adjourn or dismiss a summary trial application where the issues are not suitable for disposition under the rule or where a summary trial would not assist the efficient resolution of the proceeding, and the plaintiff relied on this provision, along with Rule 9-7(15)(a)(i) and (ii), in arguing that the evidence was insufficient to decide liability and that it would be unjust to do so summarily. The statutory duty of care at the heart of the claim is set out in section 3 of the Occupiers Liability Act, RSBC 1996, c. 337, which requires an occupier to take reasonable care to see that persons on the premises are reasonably safe, extending to the condition of the premises, activities on it, and conduct of third parties there.

Reasoning and analysis

The court first considered severance of liability from damages, applying the two-step approach described in Zary v. Canada Mortgage and Housing Corporation, 2015 BCSC 1145, which asks whether extraordinary, exceptional, or compelling reasons justify severance before considering whether a summary trial on liability alone is appropriate. Justice Klein rejected the plaintiff's argument that liability and damages were interconnected, finding they existed in separate silos, and concluded that deciding liability first would produce considerable savings in time and expense, warranting severance. Turning to suitability, the court found that the plaintiff's credibility was not genuinely in issue, since the defendants did not dispute that she slipped and fell and was injured. The plaintiff's central objection was that Ms. Wong's affidavit evidence on employee training and the sweep log was contradicted by her discovery evidence and could only be tested through cross-examination at trial. Comparing Ms. Wong's affidavit to her discovery transcript, the court found no material contradiction: in both, she described training employees to inspect for and clean up hazards roughly once an hour. Relying on Canstar Restorations Limited Partnership v. MBW Canada Holding Inc., 2026 BCSC 472, and Arbutus Investment Management Ltd. v. Russell, 2022 BCSC 72, the court noted that a party who fails to make use of pretrial procedures, such as continuing an examination for discovery after receiving new disclosure, takes the risk that judgment will be granted on the evidence available, and found that the plaintiff had not pursued the November 2021 sweep log or otherwise sought evidence to contradict Ms. Wong despite having ample opportunity to do so. Drawing on Rahnama v. Loblaws City Market, 2024 BCSC 2120, aff'd 2025 BCCA 176, the court treated the sweep log as a reliable business record and found no credibility issue requiring trial. On the reasonableness of the maintenance system itself, the court applied the standard under section 3 of the Occupiers Liability Act, describing the duty as one of reasonableness rather than perfection, consistent with Fulber v. Browns Social House Ltd., 2013 BCSC 1760, and the summary of governing principles in Sioui v. Canada Safeway Limited, 2001 BCSC 188. The court compared Orchards' hourly inspection practice to the systems upheld as reasonable in Charlie v. Canada Safeway Limited, 2010 BCSC 618, and Tremblay v. Westfair Foods Ltd., 2003 BCSC 1017, and found that, if anything, Orchards' hourly inspections were more thorough than the two-hour interval accepted in Charlie. On that basis, the court concluded that Orchards' employees had been trained, that a system of inspection and maintenance was in place and operational at the relevant time, and that the system was reasonable in the circumstances.

Ruling and overall outcome

The court allowed the defendants' summary trial application and dismissed the plaintiff's action against them, finding no liability on the part of the defendants because they had met the duty of care imposed by the Occupiers Liability Act through a reasonable and operational system of inspection and maintenance. The court noted that the separate question of whether 12300118 Holdings Ltd. was an occupier of the premises did not need to be decided, since even if it were, it could rely on the same system. The defendants were the successful parties and were awarded their costs, though the judgment does not specify a quantified amount.