Canada: Ont. Super. Ct. Summarily Dismisses Slip And Fall Claim Because No Objective Evidence Of An Unsafe Condition And No Breach Of Maintenance Obligations

Last Updated: October 16 2017
Article by Michael S. Teitelbaum

Posted in Occupiers' Liability In Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, Ontario Superior Court Justice Sanfilippo summarily dismissed this occupiers' liability action in which the then 67-year old plaintiff tenant alleges she slipped and fell on the vinyl floor in the corridor outside her apartment on the fourth floor of her building. She had been living in the building for nine years.

His Honour held that "[i]n the absence of any objective evidence of any unsafe condition, and after assessment of the housekeeping protocols in place by the TCHC for the upkeep of the Building in general and the corridor specifically, there is no basis on which to find any breach of duty of care by the TCHC that could be found to have caused Mrs. Hamilton's slip and fall".

His Honour reviewed summary judgment law at paras. 12-16, and occupiers' liability law at paras. 30-33. In respect of the latter, he noted  that in order "[t]o succeed in a claim against an occupier for injury sustained in a slip and fall, the plaintiff must 'pinpoint some act or failure on the part of the occupier that caused the plaintiff's injury'".

His Honour stated in part:

[22] In the Notice Letter, Mrs. Hamilton stated that she "suddenly slipped on the vinyl floor in the corridor which was quite shiny and slippery."

[23] In the Hamilton Affidavit, Mrs. Hamilton testified to her subjectively-held belief that the floor was slippery but without any reference to visual observation of the floor being shiny. She states as follows:

When I slipped, I slipped on something and went up in the air and fell on my right arm. I slipped with one foot. I recall there being dirt on my clothes from the flooring when I fell. ... I do not recall what I slipped on but I do recall it being slippery.

[24] In her discovery testimony, Mrs. Hamilton provided no evidence of any observation of any hazard on the corridor floor and no mention of observing anything "shiny". The plaintiff testified to her belief that she "slid on something". The Notice Letter was not referenced. Pertinent extracts from the examination evidence are as follows: 

Q. 127: What did you fall on?

A. I'm honestly not sure.
Q. 135: You said that you slipped on something, and you didn't know what it was, you said?

A. I don't. No.
Q. 240. Again, you didn't notice anything unusual when you were walking --...

A. No.
Q. 245. You didn't see any water or any spills at that time?

A. I can't recall.

Q. 246. Is it flat, the hallway?

A. Yes, it's flat.

Q. 247. Any other observations of the hallway when you fell?

A. No, not at the time. I can't recall.

Q. 248. What do you think caused your fall?

A. I'm not sure. ... There had to be something on the floor that I did not see. I can't recall.

Q. 253-255: You said that you – can you tell me how you fell?

A. I was just walking down with my keys in my hand ... And maybe one letter in the same hand. And I'm walking down, and all of a sudden, my feet just went up like that. I just went up in the air and just – fell. I slid on something. I don't know what it was. ...

[25] Mrs. Hamilton testified that the lighting of the corridor presented no problem in sight lines (Q. 140-141), she has no recollection of feeling any wetness, or indeed anything, on the floor (Q. 135-137) and she does not recall the weather that day (Q. 238). No one witnessed her fall (Q. 239, 283). Her son, who attended to her after her fall, did not detect anything on the floor (Q. 282).

[26] The plaintiff's evidence at its highest is that she detected some dirt on her clothing as she rested on the floor after her fall (Q. 259-262). There is no description of the amount or location of the dirt or, indeed, any evidence on which to determine on a balance of probabilities that the dirt had any role in the incident.

[27] Mrs. Hamilton testified to her history of complaints, made over the term of her tenancy, of general lack of cleanliness and upkeep of the Building. She called the maintenance office and forwarded letters, which were testified to but not placed in evidence. These complaints show Mrs. Hamilton's subjectively-held belief of the Building's lack of cleanliness and upkeep. She also produced photographs, taken after the incident, of spills in the corridor. However, she did not connect these conditions with the conditions of the corridor on May 7, 2012. 

[28] Mrs. Hamilton's testimony did not connect any of her maintenance complaints to the day of the incident or even the days leading to May 7, 2012. Mrs. Hamilton's subjectively-held belief is that there had to be something on the floor, undetected by her before or after her fall, which caused her to slip and fall, but she is unable to identify any hazard or unsafe condition that day.

[29] The plaintiff is obligated to put her "best foot forward", to "lead with trump" in tendering evidence of a condition that caused the premises not to be reasonably safe. The evidence, taken in its totality, shows that there is no genuine issue for trial on the issue of proof of an unsafe condition in the vinyl-floored corridor outside of Mrs. Hamilton's apartment on May 7, 2012. Mrs. Hamilton is not able to identify any unsafe condition that is alleged to have caused her to slip and fall.

[44] Having considered the plaintiff's submissions, including the case law relied upon by the plaintiff, I do not accept that the inference sought by the plaintiff can be drawn in the facts of this case. An inference of causation must be based on objective facts, not subjective rationalization.

[45] By way of example, in Musselman v. 875667 Ontario Inc., 2010 ONSC 3177, 93 C.L.R. (3d) 58 (Ont. S.C.J.), the plaintiff's fall down a staircase was not witnessed by anyone. The objective evidence established that the staircase was in an "overall unsafe condition" and was "overall grossly incompliant" with the applicable building codes and by-laws. On the basis of evidence of the generally unsafe condition of the staircase, the court drew an inference that the generally unsafe staircase caused the fall.

[46] Reference was made in Musselman to Snell v. Farrell, [1990] 2 S.C.R. 311, wherein the inference of causation was similarly determined based on objective evidence. In doing so, the court stated that an inference cannot be based on conjecture or speculation, citing Caswell v. Powell Duffryn Associated Collieries Ltd. (1939), [1940] A.C. 152 (U.K. H.L.), at p. 169: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it has sought to establish."

[47] In Kamin v. Kawartha Dairy Ltd. (2006), 79 O.R. (3d) 284 (Ont. C.A.) [Kamin], the plaintiff sustained personal injury when she tripped in a parking lot that was found to be unreasonably unsafe, resulting in a determination that the occupier failed to meet the standards required by section 3(1) of the Occupier's Liability Act, but nonetheless failed in her action as the plaintiff could not identify the precise location of the fall. This determination was reversed on appeal on the basis that too high an onus had been set on the issue of causation, which need not be determined by "scientific precision", and that the facts of the case supported an inference that the trip and fall must have resulted from a breach of duty by the occupier. The Court of Appeal stated as follows, at para. 8:

 Had the trial judge not erred in her causation analysis by setting too high an onus for the appellant to meet, there was ample evidence on which to find that the appellant's injuries were caused, or materially contributed to, by the respondent's negligence. This is particularly so given that there was no evidence of any other possible reason for her to have fallen. In my view, the trial judge erred in failing to find, or to draw the only reasonable inference, that on all the evidence the respondent's negligence caused or materially contributed to the appellant's fall and her resulting injuries.

[48] This action advanced on behalf of Mrs. Hamilton does not have the factual elements present in Kamin, where there was considerable, uncontradicted objective evidence that the entire parking lot in which the trip occurred was in very poor, unsafe condition, uneven, chipped and in need of resurfacing. There is no objective evidence here of an unsafe condition in the corridor at or even proximate to where the plaintiff slipped and fell, or indeed otherwise on the floor or in the Building generally. This case does not have an evidentiary basis on which to find a breach of duty of care by the TCHC to which a causation analysis of the nature set out in Kamin could be applied.

[49] This case bears more similarity to Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, CarswellOnt 11129, aff'd 2015 ONCA 166, 2015 CarswellOnt 3228, where the plaintiff slipped and fell at the threshold of a flight of stairs at a TTC station. The plaintiff did not see any debris or hazard on the tile stair at the location of her fall, but had noticed debris in the station on prior occasions and elsewhere on the station on the day in question. There was no evidence of defect in the location where the plaintiff fell. The Court of Appeal dismissed the argument that the lower court judge had erred in refusing to draw an inference based on the evidence before him that the top of the staircase where Mrs. Nandlal fell was in a state of non-repair. The distinguishing element from Kamin was the lack of objective evidence of unsafe and generally unmaintained conditions in or about the area of the fall. 

[50] The plaintiff's lack of any objective evidence to pinpoint an unsafe condition at the incident site, or even in the fourth-floor corridor, leads to the determination that this case cannot succeed. The plaintiff's evidence at its highest is that the floor was slippery, but there is no objective evidence of anything that might have caused the floor to have been slippery or unsafe that day.

G. Conclusion

[51] I have determined that there is no genuine issue requiring trial on the issue of liability. It is fair and just to determine the liability issue in this action summarily pursuant to Rule 20.

[52] The plaintiff subjectively believes that her slip and fall was caused by a slippery vinyl floor in the corridor outside her apartment but, by reason of the absence of any objective evidence, the plaintiff has failed to prove on a balance of probabilities that an unsafe condition existed on May 7, 2012. There is no objective evidence of anything that could have caused the floor to be slippery. Even broadly, there is no evidence of a general lack of maintenance in the fourth-floor corridor that day that could give rise to an objective determination of an unsafe condition to which Mrs. Hamilton's slip and fall could be connected causally or by reasonable inference.

[53] There is a subjective belief by Mrs. Hamilton that her slip and fall must have been caused by something and that lack of maintenance must be the cause. That Mrs. Hamilton had issues with the maintenance of the Building by the TCHC in the past, or detected spills in the corridor at times after the incident, does not reasonably allow for an inference to be drawn that Mrs. Hamilton's injury was caused by an unsafe condition on May 7, 2012.

[54] In the absence of any objective evidence of any unsafe condition, and after assessment of the housekeeping protocols in place by the TCHC for the upkeep of the Building in general and the corridor specifically, there is no basis on which to find any breach of duty of care by the TCHC that could be found to have caused Mrs. Hamilton's slip and fall.

[55] Summary judgment is granted dismissing the plaintiff's claim.

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