In Nandlal v. Toronto Transit Commission (2014 ONSC 4760), the Court considered an occupier's liability for injuries arising from a slip and fall. The Defendant, the Toronto Transit Commission ("TTC"), was successful in a motion for Summary Judgment on the basis that the Plaintiff could not succeed in establishing negligence as against the Defendant. The key finding was that the Plaintiff could not prove the TTC's negligence of having "slippery and debris strewn steps" was the cause of the fall.
The Court noted that in order to succeed in an occupier's liability claim, the Plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the Plaintiff's injuries. The Court noted that the Occupiers Liability Act did not impose strict liability. Further, an occupier was not an Insurer. The Court explained that the presence of a hazard did not in itself lead to the conclusion that the occupier had breached its duty. Further the duty of care imposed on the occupier does not extend to the removal of every possible danger. Instead, the Court found the standard of care was one of reasonableness and not perfection.
In considering the motion, Justice Perell noted that at the Examination for Discovery the Plaintiff said that she slipped on floor tiles. In response to the Summary Judgment motion, she reported that she thought that she had slipped on debris at the top of the stairs. The basis of her belief was that the morning of the fall she saw debris in the TTC station and she had frequently seen debris at the station in the past. On the day of the fall, however, she did not see the debris she believed that she fell on. She did not know what she stepped on but believed that there was something.
The Court explained that the success of the case depended on the Plaintiff providing evidence that there were slippery and debris strewn steps where she slipped and fell. Justice Perell noted that even if it was established that the hazard did exist, then she still might not succeed. To avoid liability, the Defendant, TTC would have to show that it took reasonable care to ensure that the Plaintiff and others were reasonably safe.
The Court held that the Plaintiff had not satisfied her onus. Justice Perell noted that there was no objective evidence of the slippery stairs hazard. Rather, there was only subjective rationalization by the Plaintiff that she had seen other debris on other parts of the station that day or in the past. The Court concluded that this did not lead to the inference that there was debris on the stairs that day.
The Court noted that it was important to use common sense in applying the Occupiers Liability Act. Justice Perell held that falls at bus terminals, airports, sea ports, train stations, and subway stations can occur without someone being responsible or with the responsibility resting with someone other than the occupier of the property. The Court found that falls occur on stairs without anyone being responsible for what is just an accident. Justice Perell concluded it was not reasonable or practicable to impose an obligation on the TTC to be in a position to continuously and immediately clean up after its patrons who litter on the premises including the stairwell.
The Court held that there was no evidence to justify the conclusion that it did not meet the statutory duty and dismissed the Plaintiff's claim.
This case is of assistance in instances where there is no direct evidence of a hazard. Additionally, it will be helpful for Defendants in cases where it is unreasonable for the occupier to have been aware of the presence of every hazard, particularly in a store or other location where there are multiple patrons walking through the location.
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