Category: Occupiers' Liability

Cooper v. Beaudoin, 2023 ONSC 6543

The plaintiff tripped over sandals during a visit to the home of her sister (Elizabeth) and brother-in law (Daniel). Elizabeth had left the sandals on the back stoop, and the plaintiff broke her ankle when she fell over them. The plaintiff sued Daniel pursuant to the Occupiers’ Liability Act, alleging that he did not take reasonable care in the circumstances to ensure she was reasonably safe while at his home. Following a trial on liability alone, Justice Rees dismissed the action and granted judgment to Daniel. Justice Rees held that Daniel met the standard of care in the circumstances. Daniel was not reasonably required to: request that Elizabeth not leave her sandals on the stoop; warn the plaintiff to look out for sandals left on the stoop; install a shoe rack on the stoop; or, widen the stoop or leave room for shoes to be placed somewhere else. Justice Rees further noted that if liability had been found, the plaintiff would have been found 25% contributorily negligent as she was a frequent visitor of the home and failed to look down when stepping on to the stoop.

Walpole v. Brush, 2023 ONSC 4869

The minor plaintiff was attacked by a dog while visiting the residence of the defendant tenants with her parents. The landlord defendants, who owned the home, were not present at the time of the attack. The landlord defendants brought a summary judgment motion on the basis that the Dog Owners’ Liability Act (DOLA) places liability squarely on the owner of the dog, and the Occupiers’ Liability Act (OLA) did not apply in the circumstances. The plaintiffs argued that the landlord defendants breached common law and statutory duties as occupiers and landlords, and also allowed a hazard on the property in contravention of the Residential Tenancies Act (RTA). Justice Fraser granted partial summary judgment in favour of the landlord defendants and dismissed the action as against them. Justice Fraser found that the DOLA applied to the circumstances of the claim, and that the OLA did not apply. Justice Fraser also found no liability under the RTA because the sections the plaintiffs relied on apply to common areas and not the rental unit.

Wilson v. 356119 Ontario Ltd. et al., 2023 ONSC 600

The plaintiff slipped on ice in a mall parking lot and fractured her elbow. She returned to work as a school bus driver nine months later. She sued the mall property manager and the contractor responsible for winter maintenance in the parking lot for damages. Following a trial, Justice Doyle found that the defendant winter maintenance contractor was negligent in failing to apply salt to the lot before 7:00 a.m., when many patrons first arrived at the mall for coffee and walking. The plaintiff slipped and fell before 8:00 a.m., and while salt was applied shortly before her arrival, there was not sufficient time for it to activate and melt the ice. The plaintiff was held 25% contributorily negligent despite wearing new winter footwear, not carrying many objects, and not moving in a hurry. With respect to contributory negligence the court reasoned that she was well aware of the conditions outside and did not take special precautions despite her experience with the winter conditions that morning. The plaintiff was awarded damages as follows (prior to the contributory negligence reduction): $50,000 in general damages; $10,000 for housekeeping; $10,345 for past loss of income; $0 for future loss of income; and $6,000 for future care. With respect to damages, Justice Doyle was critical of the plaintiff’s failure to mitigate her damages by not pursuing further available treatment and not seeking alternative seasonal employment in the summer.

Raskin v Stepanyan, 2022 ONSC 6247

The plaintiff sued the defendants for damages arising from a fall at the side entrance of a house. One of the defendants ran a dental practice at the premises, and the plaintiff attended as a patient. The defendants did not ever respond to the claim though properly served, and were noted in default. The plaintiff was 64 at the time of the fall and fractured the 5th metatarsal of her right foot. Following a one-day, undefended trial, Justice Morgan concluded that the step where the plaintiff fell was in a state of negligent construction and disrepair which caused the plaintiff to fall. He ordered the defendants to pay to the plaintiff: special damages in the sum of $30,940; lost wages in the sum of $2,040; and damages for pain and suffering in the sum of $35,000. He further ordered the defendants to pay the plaintiff’s costs in the sum of $20,000.

Lewis v. 3414493 Canada Inc., 2022 ONSC 2769

The plaintiff was injured in a slip and fall. The plaintiff was a resident of the apartment that owned the parking lot where she fell. Her lease contained a waiver of liability in favour of the apartment owners and property managers. The plaintiff brought a motion seeking a determination as to whether the landlord defendants could rely on the waiver provision. The landlord defendants brought a motion to strike certain paragraphs of the plaintiff’s reply to their statement of defence, which related to the waiver provision. Justice Perell held that the landlord defendants could not rely upon the waiver because it was contrary to the Residential Tenancies Act, 2006 and O. Reg. 517/06 Maintenance Standards. He also noted that sections 8 and 9 of the Occupiers’ Liability Act specifically state that landlords are subject to the same duty of care in section 3 of that Act.

Martin v. AGO et al, 2022 ONSC 1923

The plaintiff, a criminal lawyer, slipped and fell at the ground lobby of the Hamilton Courthouse. The parties agreed that there was a small amount of water near one of the wickets from the umbrella of an earlier entrant. The parties had agreed on the quantum of damages. Following a trial on the issues of liability and contributory negligence, Justice Valente dismissed the action, finding that the courthouse cleaning staff had an appropriate cleaning system in place and that the water present was so small that a reasonable system would not have identified it. Even if the defendants were found liable, Justice Valente would have found the plaintiff 30% contributorily negligent for wearing shoes that were worn down on the soles.

Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030

This personal injury action arose from a fall by the plaintiff on ice outside of the condo building where he lived. The trial proceeded on liability only, as damages had been agreed upon. The condo had retained a winter maintenance contractor, which was at the premises prior to the fall and was still plowing at the time of the fall. The contractor had not performed any salting before the fall. Justice Hackland held that the contractor was negligent and liable to the plaintiff. Justice Hackland was persuaded by the expert engineer called by the plaintiff regarding best practices for salting.

Massaroni v. Yum! Brands Inc., 2021 ONSC 5460

The plaintiff was injured while taking a shortcut between two commercial properties, when she tripped over a curb/retaining wall dividing the properties. She sustained fractures in her foot and ankle. The defendants brought a summary judgment motion seeking dismissal of the action on the basis that they met the applicable requirements under the Occupiers’ Liability Act. Justice Black granted the motion and dismissed the plaintiff’s action. He found there was no evidence that persons were “invited” to cross over the barrier, and noted that a municipal sidewalk was only 10 metres away. Neither defendant had a duty to clean stones and debris from the top of the barrier to make it safer for pedestrians because it was clearly not intended for pedestrian passage.

Adler v. Promenade General Partner Inc., 2021 ONSC 5393

The plaintiff slipped and fell in a walkway of Promenade Mall near the food court. She alleged that she fell because her shoe became stuck on something sticky on the walkway. She suffered significant injuries, including fractures to her face, skull, and left kneecap. There were no photographs or other objective evidence showing any sticky substance on the ground. The defendants brought a summary judgment motion seeking dismissal of the action on the basis that the plaintiff failed to prove any breach of the Occupiers’ Liability Act. Justice Boswell dismissed the motion, holding that the defendants failed to prove there was no genuine issue requiring a trial. The plaintiff’s offering of her own direct observations of a sticky substance on the floor was admissible direct evidence that there was a sticky substance on the floor and that her foot stuck to it. Her ability to pinpoint a hazard raised a genuine issue for trial, as did the issue of whether the defendants had a reasonable system in place to detect and correct hazards.

Haley v. Stepan Canada Inc., 2020 ONCA 737

The plaintiff truck driver alleged that he tripped and fell on uneven ground when he attended the defendant’s premises to pick up a load. He alleged to have sustained serious injuries, and brought an action for damages. He did not advise the defendant of the incident until he served his statement of claim. There were no witnesses of the fall and no contemporaneous photographs of the scene. More than five years after the incident, he delivered an expert opinion that the fall was caused by an unsafe elevation. The report conflicted with the plaintiff’s discovery evidence regarding the fall location. The motion judge determined there was no genuine issue requiring a trial and dismissed the action. The plaintiff appealed, arguing that the motion judge erred by reversing the onus on the motion and by assuming that the premises were safe in the face of the expert opinion about the unsafe condition. The Court of Appeal rejected those submissions, and found that the motion judge had correctly determined that the respondent had established there was no genuine issue requiring a trial. The motion judge had evidence before him regarding systems in place for inspection at the premises, which revealed no issues. He was not obliged to accept the expert opinion. The appeal was dismissed.