On September 14, 2017, Justice Sanfilippo of the Ontario Superior Court of Justice granted summary judgment dismissing the plaintiff's occupiers' liability claim, stating that without objective evidence pointing to the cause of her slip and fall, the claim could not succeed.

Facts

The plaintiff, Mrs. Hamilton, a nine-year resident of an apartment building owned by the defendant, Toronto Community Housing Corporation ("TCHC"), alleged that on May 7, 2012, she slipped and fell in the 4th-floor hallway leading to her apartment unit after returning from the mail room located on the main floor.

The statement of claim did not describe the reason for the plaintiff's fall. It only mentioned that the TCHC failed to "clean away the 'hazard" and failed to keep the floor reasonably safe – without including a description of the hazard or lack of care. In fact, Mrs. Hamilton's notice letter to the TCHC, her responding affidavit, and her discovery testimony all failed to mention the specific 'hazard' that caused her to slip and fall. The best evidence Mrs. Hamilton had was that she detected some dirt on her clothing after her fall.

The Plaintiff's Submissions

Plaintiff's counsel submitted that Mrs. Hamilton's evidence that the "corridor floor was slippery was sufficient to establish that the corridor was not reasonably safe" on the date of the incident. Plaintiff's counsel did not refer to any specific or objective evidence pinpointing the occupier's negligence and instead submitted that the existence of an unsafe condition as being "causative of the fall can be inferred from the general lack of maintenance." Plaintiff's counsel requested that the court "determine that in the absence of evidence of a hazard giving rise to an unsafe condition, an inference can be drawn that the plaintiff's fall must have occurred by reason of a defect in the maintenance by the defendant."

The Defendant's Submissions

Plaintiff's counsel did not refer to any specific or objective evidence pinpointing the occupier's negligence...

TCHC relied on case law that established that for the plaintiff to succeed, she must be able to "pinpoint some act or failure on the part of the occupier that caused the plaintiff's injury." TCHC's defence was that the plaintiff had no evidence to prove that there in fact was a hazard on the floor proximate to her apartment that caused the slip and fall. TCHC submitted that without evidence to support the allegations, there was no genuine issue that Mrs. Hamilton could establish liability on TCHC's part.

The Outcome

In order for occupiers to be found liable for an injury sustained on their premises, a plaintiff must "pinpoint some act or failure on the part of the occupier that caused the plaintiff's injury,"1 which was not proved in this case.

The Court rejected the inference sought by plaintiff's counsel, stating that an inference of causation must be based on objective terms. The Court reasoned that the plaintiff was attempting to rely on her own (subjective) belief that there must have been a substance on the floor which caused her to fall. Without the ability to recall what she fell on, combined with the absence of objective evidence regarding the source of the fall, there was no concrete evidence put before the court to effectively infer the cause of the fall.  The plaintiff's lack of objective evidence to pinpoint an unsafe condition at the incident site, on the day of the incident, led the court to the determination that this case could not succeed. After reviewing the evidence presented, including the housekeeping protocols in place by TCHC for the upkeep of the subject building, the Court found that there was no genuine issue for trial on the issue of liability, and summary judgment was granted dismissing the plaintiff's claim.

Conclusion and Commentary

The finding in this case further defines instances in which a plaintiff cannot recover from a slip and fall where an inference must be made in the Occupiers' Liability context. This case serves as a reminder that the Plaintiff has the "onus to prove on a balance of probabilities that the defendant was in breach of a positive duty of care."2 Occupiers' Liability is not strict liability.

The duty of care on the occupier does not extend to the removal of every prospect of danger, nor does the Occupiers' Liability Act impose strict liability. The lesson to be learned is that these cases are fact dependent and a thorough investigation of the alleged loss must be conducted as soon as possible to preserve the evidence that will be needed to advance your defence.

1 Nandlal v. Toronto Transit Commission, 2014 ONSC 4760
2 Garofalo v. Canada Safeway Ltd., [1998] OJ ON 302 (Ont SCJ) at para 30.

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