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.

Webster v. Inneractive Security Services Inc., 2020 ONSC 6957

The plaintiff attended a heavy metal concert and shortly after the music started, he was found lying on the ground severely injured and surrounded by a crowd of people. The incident resulted in his quadriplegia. He sued multiple defendants, including the relevant venue and security company, for alleged negligence, occupiers’ liability, and breach of the Ontario Liquor License Act. The defendants brought a motion for summary judgment to have the claim dismissed. The defendants argued that the plaintiff could not prove what act or omission on their part had caused the injury, and had not put forward any credible theory as to who or what caused the injury. Justice Skarica granted the defendants’ motion and dismissed the action. He found that the plaintiff had not provided a sufficient factual basis to establish that the harm was a reasonably foreseeable consequence of the defendants’ conduct. He held that the defendants had acted reasonably in the circumstances, which was all that was required. With respect to the plaintiff’s allegations against the security guards, Justice Skarica noted that there was no evidence that any of these alleged defects contributed to the plaintiff’s injuries. He added that there was no medical evidence indicating that the security guards injured the plaintiff by moving him after his fall.

Karpouzis v. Toronto (City of), 2020 ONSC 143

The plaintiff in Karpouzis v. Toronto (City) was injured while skateboarding in a City park at night; he suffered a serious brain injury and has not returned to work in the eight years since the accident. The City brought a summary judgment motion, arguing that it was not liable for the plaintiff’s injuries under the “recreational trails” provisions of the OLA. Justice Perell concluded that the City did not breach the standard and dismissed the action.

Zambo v. 848875 Ontario Inc., 2019 ONCA 499

The plaintiff sustained injuries as a result of a slip and fall incident in the parking lot of the defendant’s store. At trial, the jury found that the defendant took such reasonable care in all the circumstances to see that the plaintiff was reasonably safe while on the premises. The defence led evidence that: there had been a major winter storm; that the snow removal contractor had plowed and salted the parking lot before the incident; and that any attempts to re-attend could have made matters worse and could have created safety concerns due to the presence in the parking lot of pedestrians and other cars. The plaintiff testified three times that she had no idea why she fell and failed to testify at any time that she slipped on any ice. The plaintiff appealed, arguing that there was no evidence that would have supported the jury’s verdict. In dismissing the plaintiff’s appeal and upholding the trial decision, the Court of Appeal noted that the test for setting aside a jury’s verdict is extremely high. It requires a court to conclude that the verdict is “so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it”. The appellant did not meet this test.

Ali v. Smart REIT, 2019 ONSC 2824

The plaintiff attended the defendant strip mall on a summer afternoon. After parking her car, she walked towards the store she intended to attend. In order to access the store, she needed to traverse the sidewalk that ran in front of all stores in the plaza, which was raised above the roadway. The plaintiff tripped and fell over the sidewalk’s curb. She commenced an action for damages, alleging that the defendant proprietors of the plaza failed to meet the applicable standard of care with respect to the design of the curb. The defendant moved for summary judgment. Justice Copeland granted summary judgment and dismissed the action, holding that the curb appeared to be an ordinary sidewalk curb which a pedestrian could encounter in a variety of locations in the greater Toronto area. The curb did not contravene any bylaws or building standards; it was in a good state of repair; and it was clearly visible to approaching pedestrians.