Canada: Slip And Fall Case Dismissed On Summary Judgment Motion: No Objective Evidence Of Unsafe Condition

Last Updated: October 10 2017
Article by Patricia J. Forte

For 9 years, Marian Hamilton resided on the fourth floor of an apartment building in Toronto.  In May 2012, at 67 years of age, she slipped and fell on the vinyl floored corridor near her unit.  She started a lawsuit against the building owner, Toronto Community Housing Corporation ("TCHC"), for compensation for the injuries that she sustained.1

Following examinations for discovery, TCHC brought a summary judgement motion to dismiss the action.  TCHC's position was that Mrs. Hamilton had no objective evidence, and therefore could not prove, there was any hazard on the floor that caused her to slip and fall.  Without evidence of an unsafe condition, there was no genuine issue of liability for trial.

The fall arose while Mrs. Hamilton was returning to her apartment with mail and her apartment key in hand.  She suddenly slipped and fell.  She described the vinyl floor as "quite shiny and slippery".  However, she was unable to produce any evidence in support of her visual observation that the floor was "shiny", and she could not recall what she may have slipped on.  Neither the floor nor her clothes felt wet after her fall.  She could not recall seeing any water or spills in the area.  She confirmed that the corridor was flat.  The lighting in the corridor was reasonable.  Mrs. Hamilton simply had no idea what caused her fall beyond "feeling" that she slid on "something".

The presiding judge, Justice Sanfilippo, made repeated reference to Mrs. Hamilton's "subjectively-held beliefs" in comparison to the "objective evidence" required to prove liability.  For example, Justice Sanfilippo cited Mrs. Hamilton's "subjectively held belief" that there "had to be something" on the floor, undetected by her before or after the fall, which caused her to slip and fall, but which she was unable to identify as a hazard or an unsafe condition that day.  Justice Sanfilippo also cited Mrs. Hamilton's "subjectively held belief" about the building's lack of cleanliness and upkeep, which TCHC contradicted with its evidence.

Justice Sanfilippo reviewed the law pertaining to summary judgment motions and occupiers' liability.  About the latter, Justice Sanfilippo highlighted:

  • To succeed in a claim against an occupier for injuries sustained in the slip and fall, a plaintiff must "pinpoint some act or failure on the part of the occupier that caused the plaintiff's injury";
  • The duty of care on the occupier does not extend to the removal of every possibility of danger;
  • The Occupier's Liability Act does not impose strict liability;
  • The standard of care is not perfection, but rather reasonableness;
  • The duty of care established by the Occupier's Liability Act must not be confused with a presumption of negligence; and
  • The burden of proof is on the plaintiff to show that the defendant was in breach of a positive duty of care.

In the absence of cogent evidence of the condition of the floor that caused her to slip and fall, Mrs. Hamilton asked the court to draw an inference that her fall "must have occurred by reason of a defect in maintenance by TCHC".  On this point, Justice Sanfilippo stated: "an inference of causation must be based on objective facts, not subjective rationalization".  Justice Sanfilippo referenced precedent case law, including the Ontario Court of Appeal decision in Kamin v. Kawartha Dairy Ltd.2  In the Kamin case, the Court of Appeal confirmed that:

  • An inference cannot be based on conjuncture or speculation; and
  • There can be no inference unless there are objective facts from which to infer the other facts which it has sought to establish.

Mrs. Hamilton's action did not have the factual elements present in the Kamin case, in which there was considerable, uncontradicted, objective evidence about the overall poor condition of the parking lot in which Mrs. Kamin tripped.

Mrs. Hamilton's failure to pinpoint any unsafe condition in the corridor in which she fell led to the determination that the case could not succeed.  Her evidence at its highest was that the floor was slippery, but there was no objective evidence of anything that might have caused the floor to have been slippery or unsafe that day.  In the result, there was no basis on which to find any breach of duty of care by TCHC.  The action was dismissed.

Key Points

Just because an individual is injured in a slip and fall incident does not mean that the occupier of the premises has breached a duty of care and is liable. The fact of an injury does not mean a case is compensable.  Remember the basics of occupiers liability law.  Put the plaintiff to the strict burden of proof.

In the appropriate circumstances, a summary judgment motion can expedite the final determination of the case.


1 Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 (CanLII)]

2 2006 CanLII 3259 (ONCA)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Patricia J. Forte
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions