Defence of Slip, Trip and Fall Liability Claims 101

The legal framework amongst the Atlantic Canadian provinces with respect to the ubiquitous slip, trip and fall claim differs. However, defending a slip, trip and fall claim regardless of jurisdiction is substantially the same.

Background

Canadian jurisdictions take three (3) different approaches to the question of the standard of care expected of homeowners or property owners when considering a slip, trip and fall action. These approaches are:

  1. occupiers' liability legislation;
  2. the common law of occupiers' liability; or
  3. general principles of negligence.1
  • Occupiers' liability legislation governs Nova Scotia and Prince Edward Island. The legislation sets out the standard of care required by property owners towards those who come onto their property. The statutes impose an affirmative duty upon occupiers to take reasonable care for the safety of people on the premises.
  • In contrast, Newfoundland and Labrador determine liability for a slip or trip and fall on the common law of occupiers' liability, but it applies it in a manner virtually indistinguishable from ordinary negligence.2 An occupier is required to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises.3
  • In New Brunswick, the Law Reform Act, SNB 1993, c. L-12, s. 2(1) abolished the law of occupiers' liability. New Brunswick is therefore the only province that applies general principles of negligence. The test is whether the defendant kept the condition reasonably fit for its purpose, i.e. the defendant is required at law to provide reasonably safe premises for the purposes contemplated.4

Despite the different legal approaches for slip and falls amongst the provinces, there are some consistent legal principles that emerge.

A frequently relied on decision from the Newfoundland Court of Appeal, Gallant v Roman Catholic Episcopal, 2001 NFCA 22 ["Gallant"] provides a succinct summary of these legal principles. In Gallant, the court looked at a situation where a woman fell on ice while approaching the door to a Roman Catholic Church. The Court stated the following:

As already noted, in the common law jurisdictions in Canada, a generally consistent approach to occupiers' liability has emerged, one which is compatible with Stacey. The following is not an attempt to create an exhaustive list but a collection of principles, which emerge from the cases under the current, generally accepted view of occupiers' liability and which are relevant to the law in this province, post Stacey:

  1. There is a positive obligation upon occupiers to ensure that those who come onto their properties are reasonably safe;
  2. The onus is on the plaintiff to prove on a balance of probabilities that the defendant failed to meet the standard of reasonable care-the fact of the injury in and of itself does not create a presumption of negligence- the plaintiff must point to some act or failure to act on the part of the defendant which resulted in the injury;
  3. When faced with a prima facie case of negligence, the occupier can generally discharge the evidential burden by establishing they have a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what proportional to reasonably perceived potential risk to those on the property; and,
  4. The occupier is not a guarantor or insurer of the safety of the persons coming on their premises.5

Defending a Slip or Trip and Fall Claim

While each case will have unique considerations, the below items offer some key points with respect to defending a slip or trip and fall claim.

  • In Atlantic Canada, the jurisprudence and Occupiers' Liability legislation have abolished the classification of the claimant as an "invitee", "licensee", or "trespasser". Such classifications are no longer relevant.
  • The common law question of whether the defendant's actions or omissions gave rise to an "unusual danger" is also no longer relevant.
  • The standard of care in the Atlantic Provinces is not one of perfection. The standard is one of reasonableness. The trier of fact in every case determines what standard of care is reasonable and whether it has been met.6
  • In order to satisfy a court that the occupier acted reasonably, a defendant will need to lead evidence that establishes a "system of inspection, maintenance and monitoring".
    1. It is critical for the owner of a premise to not only have a reasonable and adequate system in place for inspection and maintenance of the premises, but also to maintain a log or record showing that inspections have taken place within the relevant time periods. It is imperative that evidence showing compliance with an inspection procedure on the date in question can be produced.
    2. Immediately contact the property owner and advise them to retain all records that relate to inspections, these may include daily logs, hourly logs, checklists or schedules for inspection.
    3. Consider whether there are protocols or policies in place for maintenance and monitoring, particularly as it relates to weather events.
    4. Advise the property owner to retain maintenance records to assess all work orders. Advise the occupier to retain any system that monitors the premises, including video camera evidence.
    5. If the slip and fall is in winter, consider whether the occupier had a contract or arrangement with a third party for snow removal and sanding/salting of ice services. Secure any relevant contract.
    6. Secure the names and contact details of any employee or relevant person who may have evidence with respect to a system of inspection, maintenance or monitoring and of the alleged fall.
    7. Secure weather reports from the day of the alleged fall.
    8. Secure photographs of the location of the alleged fall.
  • What is reasonable in terms of standard of care will depend on subjective factors and will differ from case to case. However, below offers some examples of factors that a court will weigh in assessing whether the occupier acted reasonably
    1. The location of the slip or trip and fall. Courts will likely expect a property owner to keep sidewalks, entranceways and walkways reasonably safer than areas such as parking lots. An occupier still owes a duty of care to ensure a parking lot is reasonably safe, but a court will not hold it to the same standard as a sidewalk or walkway.
    2. The frequency and the method of cleaning (i.e. sweeping/mopping) and inspection. The acceptable frequency of monitoring and inspection will depend on the type of business, the individuals that enter the premise and the prevailing conditions including, and most importantly, the weather. An owner of a commercial property will have to meet a more onerous standard than that applied to a residential property owner. Courts have considered the methods used for snow and/or ice control (i.e. salting/sanding along with shoveling following snowfall and ongoing surveillance if temperatures fluctuate).
    3. The steps a property owner took to warn/notify individuals of a potential danger or hazard (i.e. signage or caution tape).
    4. If a property owner has specific knowledge of ice formation and/or snow accumulation in certain area(s), a court will expect the application of additional due diligence, particularly with respect to surveillance and inspection efforts.

With respect to weather, courts have acknowledged that ice and slippery conditions in the wintertime are to be expected.7 That is not to say that a property owner is relieved of a duty to take care of their property. The property owner has a duty to use reasonable care in ensuring that the premises are reasonably safe for its intended use.

Footnotes

1 Hatty v Reid, 2005 NBCA 5

2 Gallant v Roman Catholic Episcopal Corp., for Labrador/Diocese of Labrador City-Schefferville (2001), 200 Nfld. & PEIR 105 (CA) at 27

3 Supra at 27

4 McAllister (Litigation Guardian of) v Wal-Mart Canada Inc, [2000] NBJ No 300, 228 NBR (2d) 230 (CA) at 22.

5 Gallant at 27

6 Miller v Royal Bank, 2008 NSSC 32 and affirmed by the Nova Scotia Court of Appeal, 2008 3NSCA 118

7 Gallant at 36 citing wit

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