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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