Ruling upholds refusal to draw adverse inference from store's failure to keep video recording
The British Columbia Court of Appeal has affirmed the summary dismissal of a personal injury claim seeking personal injury damages under BC’s Occupiers Liability Act, 1996, arising from a slip-and-fall incident at a grocery store.
In Rahnama v. Loblaws City Market, 2025 BCCA 176, the appellant filed a January 2020 civil claim against the respondent, an occupier of a grocery in North Vancouver. She alleged that she slipped and fell on debris on the store floor in January 2018.
The respondent denied the presence of debris. In July 2024, the respondent applied to dismiss the claim summarily. The respondent argued that the grocery adhered to its sweep log procedure – a reasonable system of inspection and maintenance that absolved it of legal liability – on the day of the incident, even if debris caused or contributed to the fall.
The respondent called on its store manager, who gave evidence of the store’s efforts to keep people using its premises reasonably safe. Specifically, the store manager alleged that:
- The store clearly explained its general cleaning policies to new employees
- All employees participated in training sessions
- The store offered its employees a handbook identifying the need for housekeeping and the risk of injuries due to slips and falls
- Employees routinely cleaned and inspected the store’s departments and floors every day
- Under the cleaning policies, employees should inspect their departments every half-hour, and departments should complete sweep logs every hour
- The logs detailed when and whether each department finished an inspection
- A first aid attendant helped the appellant after her fall at approximately 11:15 a.m. and later completed an incident report
- The logs from that day showed that employees swept that department at 9:20 a.m. and 10:22 a.m., as well as inspected it at 9:50 a.m., 10:42 a.m., and 11:25 a.m.
The appellant claimed that the first aid attendant made an unreliable incident report four days after the incident under the supervision of the store manager, who was not working on the day of her fall and was not credible as a witness, as shown by gaps in the evidence.
The appellant asserted that the store’s lack of a video recording showing the relevant department and its failure to call certain employees as witnesses enabled her to challenge the veracity of the store’s maintenance program and logs.
The appellant argued that the principles in Thomasson v. Moeller, 2016 BCCA 14, permitted the summary trial judge to draw adverse inferences from the respondent’s inability to provide a video recording.
The appellant claimed that the video would have proven or disproven the respondent’s claim that the store implemented its inspection and sweeping policy. The appellant added that, without such a recording, the judge should infer that the video would not have supported the respondent’s position that it met its statutory obligations.
The summary trial judge disagreed and dismissed the appellant’s claim for personal injury damages. He refused to draw inferences from the respondent’s failure to call specific witnesses and noted that the appellant had ample opportunity to obtain the employees’ evidence.
The judge also declined to draw an adverse inference that the logs were unreliable from the respondent’s failure to keep and produce video evidence. He noted that other indicators sufficiently showed the logs’ reliability.
No occupiers’ liability
The Court of Appeal for British Columbia dismissed the appeal. The appeal court saw no error in the summary trial judge’s finding that the respondent implemented a reasonable maintenance system on the day of the incident.
The appeal court held that the evidence, the sufficient reliability of the sweep logs without the need for a corroborating video, and the appellant’s ample opportunity to obtain the employees’ evidence supported the judge’s finding and his refusal to draw the adverse inference requested by the appellant.
The appeal court noted that the evidence showed that:
- It was uncertain whether the camera would have recorded the conditions at the scene of the incident due to the device’s location and the angles visible
- Nobody viewed the video recording
- On the day of her fall, the appellant asked someone to keep the video, but she did not repeat this request within the two-year period before she filed her civil claim
- It was unknown whether somebody with actual knowledge of the recording destroyed it
- The store overwrote the video as a standard practice 30 days after its recording, not specifically as an intentional way to destroy evidence
The appellant rejected the argument by the appellant’s counsel that the respondent’s employees were willfully blind to their obligation to preserve evidence that might prove or disprove the existence and implementation of reasonable safety measures.
The appeal court determined that the close ties between the fact-finding process and the question of whether to draw the appellant’s suggested adverse inferences meant that it should review this issue on the “palpable and overriding” standard.
The appeal court concluded that the judge considered the appellant’s arguments about the credibility and reliability of the respondent’s evidence, found these arguments unpersuasive, and made no error – palpable or otherwise – in declining to draw the requested inferences.
