Category: Occupiers' Liability

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.

Lebko v. Toronto Standard Condominium Corp. 1862, 2019 ONSC 1602

The plaintiff sustained injuries while exiting an elevator in a condominium building. She alleged that the elevator was not level with the ground when she exited. The defendants brought a motion for summary judgment seeking dismissal of the action. Justice Brown granted summary judgment for all defendants. With respect to the condominium corporation and the property manager, Justice Brown held that they had reasonable systems in place to ensure that the elevators were Code compliant. They had entered into service contracts for the provision of monthly preventative maintenance and retained a security company to inspect the premises at all times, including the general functioning of the elevators. With respect to the security company, Justice Brown held that there was no evidence to indicate that it was negligent in its duties. Upon becoming aware of the issue with the elevator, it took the elevator out of service and notified the superintendent. With respect to the elevator maintenance contractor, Justice Brown found that there was no evidence to demonstrate that the contractor’s maintenance regime was not Code compliant, nor that the regime was not being followed. There was no evidence that its conduct fell below the standard of care. Justice Brown dismissed the action.

Gallo v. Bramalea City Centre Equities Inc.

A minor plaintiff was injured on an escalator at Bramalea City Centre. The injuries caused the plaintiff to lose multiple fingers. The defendant TSSA brought a motion for summary judgment on the basis that it did not owe a duty of care to the plaintiff in respect of the frequency of its inspections. TSSA admitted that it did owe the plaintiff a duty of care in respect of performance of inspections, but argued that it met the requisite standard of care. Justice Faieta dismissed the TSSA’s motion, holding that this was not a clear case for the grant of partial summary judgment because it would not result in fair and just determination on the merits. The allegations of fault against the TSSA contained in the statement of claim were not clearly severable from the balance of the case against the remaining defendants, which would remain even if partial summary judgment were granted. To grant summary judgment would also raise the risk of inconsistent findings in relation to the adequacy of the frequency of inspections, the performance of inspections, action taken following inspections, and the condition of the escalator prior to the incident. Justice Faieta held that the most sound and efficient approach in the circumstances was for the matter to proceed to trial so that the trier could determine the issues with a full perspective.

Caron v. Omers Realty Corporation et al., 2019 ONSC 1374

The plaintiff was a government lawyer who slipped and fell in the kitchenette of her office as a result of water that had leaked out from under the sink from a hot water dispenser. Following a trial, Justice Roger dismissed the action, holding that the defendants had in place a reasonable cleaning and inspection regime as well as a call service that would alert them of any issues in the kitchenette. He rejected the evidence of the plaintiff’s expert, who had not attended the premises and did not conduct any slip testing. He accepted the evidence of the defendant’s expert, who conducted testing to measure the floor’s slip resistance. Despite dismissing the claim, Justice Roger went on to consider the issues of causation and damages. He found that the plaintiff’s psychological impairments largely predated the incident. He held that in the event the plaintiff was awarded damages, the defendant would not be permitted to deduct any LTD benefits the plaintiff received as a result of the private insurance exception to the common law principles regarding deduction of collateral benefits. Finally, Justice Roger held that had the plaintiff been successful on the issue of liability, he would have awarded the plaintiff general damages in the sum of $80,000, and damages for past loss of income in the sum of $290,562.

Townsend v. City of Kitchener

The minor plaintiff was injured from a trip and fall over a raised concrete edge of a buried metal transformer box owned by the defendant Kitchener-Wilmot Hydro. The transformer box was located on a driveway apron road allowance owned by the defendant City of Kitchener. The two defendant homeowners owned the properties adjacent to the road allowance. The homeowners brought a motion for summary judgment seeking dismissals of the claims against them. The homeowners’ only involvement with the apron was driving their vehicles over it, removing ice and snow, and applying salt as needed. Justice Broad held that there was no genuine issue for trial and dismissed the claims against the homeowners. He affirmed that two exceptions exist at common law to the principle that a homeowner is free from liability for injuries arising from failure to maintain municipally owned streets and sidewalks: (1) the “special circumstances” exception; and (2) the “flow exception”. He held that neither of these exceptions applied in this case.