The claimant slipped on a wet floor in the bathroom of the Nanaimo Burger King restaurant and injured his right shoulder and right knee. Buinesses are supposed to have a system in place for maintaining safety but the Court found no evidence that such system was in place (Scarfe v. Fernco Developments Ltd., 2015 BCSC 2310).
In fact the court found that someone filled in a list of arbitrary times and the shift coordinators or managers in charge initialed all the times in order to meet the Burger King Franchise standards.
The court compared the handwriting on these checklists in the absence of expert handwriting analysis. In R. v. Abdi, the Ontario Court of Appeal said, regarding s.8 of theCanada Evidence Act:
This section does not preclude a trier of fact from comparing disputed handwriting with admitted or proved handwriting in documents which are properly in evidence, and drawing inferences there from. In these circumstances, a trier of fact may make the comparison in the absence of witness testimony as to the genuineness or otherwise of the disputed writing.
The defendant did not establish that a reasonable system of inspection was in place because of lack of evidence. The lawsuit against Burger King Restaurants of Canada Inc. was discontinued and the defendant Seacastle Enterprises Inc. was found liable for failing to have a proper system in place. The defendant put a good system in place to ensure that the washrooms in its restaurant were clean and dry but lacked a system to ensure compliance by the people who were carrying out the responsibility.
The claimant was not found to have contributed to his own injury and the court awarded him the following:
1) Pain and suffering award: $50,000;
2) Past Loss of Earning Capacity: $5,000; and
3) Future Loss of Earning Capacity: $10,000.
Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.