Fiona M. Brown 1.416.679.2781 x 204 | fbrown@sbalawyers.ca

Julianne Brimfield

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Occupiers Liability Act and the Standard of Care:

Recent Cases

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Table of Contents

Occupiers Liability Act and the Standard of Care: Recent Cases ............................................... 3

1 INTRODUCTION ................................................................................................................. 3

2 TRIAL DECISIONS .............................................................................................................. 4

2.1 Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711 (CanLII) ................... 4

2.2 Souliere v. Casino Niagara, 2014 ONSC 1915 (CanLII) .................................... 5

2.3 Khelifa v. Sunrise et al., 2015 ONSC 740 (CanLII) ............................................ 6

2.4 Bhatt v. William Beasley Enterprises Limited, 2015 ONSC 2168 (CanLII) ......... 7

2.5 Tondat v. Hudson’s Bay Company, 2017 ONSC 3226 (CanLII) ......................... 8

3 Summary Judgment motions: .............................................................................................. 9

3.1 Miltonberg v. Metro Inc., 2012 ONSC 1063 (CanLII) ......................................... 9

3.2 Gohm v. York et al, 2013 ONSC 7118 (CanLII) ................................................10

3.3 Harris v. Loblaw Co. Ltd., 2015 ONSC 4572 (CanLII) .......................................11

3.4 Brown v. Marriott, 2016 ONSC 7619 (CanLII)...................................................11

3.5 Cartini v. 156 Square One Ltd., 2016 ONSC 8151 (CanLII)..............................12

3.6 Rego v. Walmart, 2017 ONSC 812 (CanLII) .....................................................13

3.7 Nagrare v. Swirls Cup Cakes, 2017 ONSC 2567 (CanLII) ................................13

3.8 Carnovale v. Longo Brothers Fruit Markets Inc., 2017 ONSC 4131 (CanLII) ....14

4 Appeal decisions: ...............................................................................................................14

4.1 Saisho v. Loblaw Companies Limited, 2015 ONCA 172 (CanLII) .....................14

4.2 2085337 Ontario Limited v. Miller, 2016 ONSC 3208 (CanLII) .........................15

4.3 Cannon v. Cemcor Apartments Inc., 2017 ONCA 378 (CanLII) ........................16

4.4 Irvine v. Seipt, 2017 ONSC 2551 (CanLII) ........................................................17

4.5 Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632 (CanLII) ....18

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Occupiers Liability Act and the Standard of Care:

Recent Cases 1 INTRODUCTION

In most cases under the Occupiers Liability Act, R.S.O. 1990, c. O.2 (“Occupiers Liability Act”), whether or not an entity or individual is an occupier is not generally in dispute1. Rather, what is normally in dispute is whether there was a duty of care owed, and whether this duty was breached.

Section 3(1) of the Occupiers Liability Act outlines the duty of care owed by an occupier as follows:

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

In Waldick v. Malcolm2, the Court of Appeal confirmed that occupiers have an affirmative duty to make their premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. However, the duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take "such care as in all the circumstances of the case is reasonable". The trier of fact in every case must determine what standard of care is reasonable and whether it has been met.3 Recent case law confirms that the tests laid out by the Court of Appeal in Waldick v. Malcolm continue to apply.

The following cases demonstrate that the Courts must perform a factual analysis in each case in order to determine whether there has been a breach of the standard of care. Whether or not there was a breach often depends on whether there was a reasonable system of maintenance in place and/or whether required procedures were followed.

Recent case law also suggests that summary judgment motions are a useful tool that can be employed to resolve the issue of liability early in cases where the facts are reasonably

1 Occasionally this issue is raised in a proceeding. In the recent decision of MacKay v. Starbucks Corporation, 2017 ONCA 350 (CanLII), the Court was required to determine whether Starbucks was the “occupier” of the municipal sidewalk outside of its store. The Court of Appeal agreed with the trial judge’s determination that the behaviour of Starbucks rendered it an occupier, as it assumed significant control over the sidewalk and the persons using the sidewalk to access their store.

2 Waldick v. Malcolm, 1991 CanLII 8347 (ON CA), aff’d 1991 CanLII 71 (SCC)

3 Ibid, para 20.

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straightforward. However, where there are contradictory facts or the evidence is incomplete, the Courts have also demonstrated that they can be reluctant to grant summary judgment.

2 TRIAL DECISIONS

2.1 Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711 (CanLII)

Facts: The plaintiff was using a leg weight machine at a fitness club when his right foot slipped off the foot platform. He quickly tried to restore the locking device to prevent the descent of the weights, but was unable to do so, resulting in a crush injury to his small finger on his right hand. As a result, he lost the end portion of the finger.

The plaintiff alleged that his foot slipped off the platform because he had, just moments earlier, stepped in a puddle of water near a water fountain, which had caused the soles of his shoes to become wet and slippery. He had tried his best to dry his shoes off by stomping his feet on the ground and thought he had been successful in so doing.

The defendants argued that they did what they reasonably could to ensure that water spills near the water fountain were cleaned up in a timely way. They had hired a full-time cleaning company and this responsibility was supplemented by their own employees when necessary. The defendants also argued that any potential breach of their duty to keep their premises reasonably safe did not cause the injury to the plaintiff. Rather, the plaintiff caused the accident himself.

Issues: Did the defendants breach the standard of care? If so, did the defendant’s breach of the standard of care cause the plaintiff’s injury?

Result: The defendants did breach the standard of care. However, the plaintiff was also contributorily negligent and liability was apportioned 50/50.

Analysis: The Judge stated the evidence indicated that the defendants had devised a reasonable maintenance system for their fitness club to ensure the safety of their members. Specifically, they had placed a perforated mat beneath the water fountain to prevent customers from getting their feet wet. The defendants also hired a full-time cleaning service whose sole responsibility was to keep the premises clean and cleaners were expected to be working in the club at all times. In addition, the club employees themselves were obliged, on becoming aware of any water spills, to clean up any such spill to avoid any potential hazard and the club had a janitorial closet for this purpose.

However, on the day of the loss, there was no evidence to suggest that the maintenance system designed for the fitness club by the defendants was practically operational. Specifically, there was no evidence to suggest a cleaner was on duty in the club on the day of loss as no witness was called, nor were any cleaning logs produced. The Judge noted that, had there been any cleaners present at the fitness club throughout the club’s hours of operation on the day of the loss, it would have been easy enough to establish that fact and the Judge drew an adverse inference from the defendant’s failure to call evidence on this issue. As such, the Judge was satisfied on the balance of probabilities that the defendants failed in their legal duty to make their fitness club premises

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reasonably safe for their members by taking reasonable care to protect such persons from foreseeable harm.

The Judge also found that the accident was caused by the water on the plaintiff’s shoe as it was the most plausible explanation for the accident. As such, the defendant’s breach of the duty to keep the premises safe caused the plaintiff’s injury.

The Judge also found that the plaintiff was contributorily negligent as, not only did he foresee the risk of harm from operating the leg press machine with wet shoes, he was negligent in failing to ensure that his shoes were not wet before beginning his fourth set on the machine. The plaintiff failed to take the steps that a reasonably prudent person would have taken in such circumstances to remove any risk of danger.

2.2 Souliere v. Casino Niagara, 2014 ONSC 1915 (CanLII)

Facts: The plaintiff attended Casino Niagara to see a comedy show. Prior to the show, she attended a buffet style restaurant at the Casino where she served herself. After finishing her meal, and while walking to the exit, the plaintiff slipped on a greasy substance on the floor near the dessert station.

A cashier at the restaurant gave evidence that she saw a man walking with a plate of food to the dining section several seconds before the plaintiff’s fall. She also observed a brown liquid substance fall to the floor off the man’s plate approximately where the plaintiff fell. The parties agreed that a brown greasy food substance was found on the floor in the area of the plaintiff’s fall and the same substance was also observed on the plaintiff’s right shoe after she had fallen.

Evidence from the supervisor of the restaurant indicated that, because the customers serve themselves, “food flies everywhere”. The restaurant cleaning and inspection policy provided that all employees were responsible for monitoring food spillage and for cleaning any food spillage observed. All of the employees were trained to be on the lookout for food spillage wherever they may be in the restaurant, and clean the spillage as soon as possible. The cooks were also responsible for cleaning the areas around their food stations. The supervisor also regularly patrolled the restaurant. There were two bussing stations and one hostess station in the restaurant. Each of those stations is equipped with sanitizer bottles, cloths, a broom, and a dustpan. There were also “Wet Floor” signs at the stations that are to be put in place if the spill could not be cleaned quickly.

Issues: Did Casino Niagara breach the standard of care?

Result: Casino Niagara did not breach the standard of care. The plaintiff’s action was dismissed.

Analysis: The Judge stated there is a positive duty on occupiers to take such care as in all the circumstances is reasonable to make the premises reasonably safe for persons entering them. The Judge also noted that the liability analysis is fact-driven and requires a consideration of whether the occupier had in place reasonable policies and procedures for the inspection and

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maintenance of the premises and that premises in which there is a higher risk of spillage require more vigilant policies and procedures.

The Judge stated that the restaurant was a busy place and food spills occur regularly, however, the restaurant itself was a relatively small space, staffed with many employees during its busy hours. The Judge was of the belief that, given the number of employees on duty, no food spill would go unnoticed for a significant period of time. The Judge did note that no evidence had been presented to confirm that the policy had been followed, however, the evidence suggested that the floor of the restaurant was clean, with the exception of the spill on which the plaintiff slipped. As such, the Judge concluded that the policy for inspecting and cleaning was working reasonably well and Casino Niagara met the standard of care in section 3(1) of the Occupiers Liability Act.

The Judge also noted that the plaintiff did not meet the causation test in this case, as she did not prove that her fall would have been prevented if Casino Niagara had a more vigilant policy for inspecting and cleaning the restaurant floors. The Judge specifically noted that the food substance fell onto the floor about 3 seconds before she slipped and, given it happened so quickly, it was doubtful that it could have been prevented by even the most vigilant inspection and cleaning policy. The Judge stated that, to hold Casino Niagara responsible for the plaintiffs slip and fall in these circumstances would be tantamount to finding that Casino Niagara was an insurer against any slip and fall.

2.3 Khelifa v. Sunrise et al., 2015 ONSC 740 (CanLII)

Facts: The plaintiff slipped and fell from a fire escape at a residential building, which she had accessed to smoke a cigarette. The plaintiff alleged that her foot slipped on the ice and snow that had been allowed to accumulate on the landing. The plaintiff alleged that she had gone out on the fire escape many times prior to the date of the accident and she had never been advised by anyone in the building not to go out on the fire escape. She testified that she had never seen any salt applied to the landings of the fire escape and that there was snow and ice present there on a constant basis.

The maintenance of the building was taken care of by the property manager. He lived at the premises and gave testimony that he was aware that it was his responsibility to check for snow and ice and, if slippery, to put down salt. With respect to the fire escapes, he testified that he regularly had to remove ice from the stairs of the north side of the building because of a leaky downspout. However, the fire escape that the plaintiff used was on the west side of the building and he testified that it required little maintenance because it was not affected by the leaky downspout and it faced the sun, so any snow on it would melt. With respect to maintenance in general, the property manager checked the conditions on a daily basis and as required, he would use a snow blower and/or a shovel to remove snow and he would spread salt which was kept on site to ensure it was not slippery.

The evidence also suggested that ice did not build up on the fire escape due to its construction - the flat portions of the fire escapes were not the usual flat surfaces one expects on stairs; rather, they were grids, with many holes, which make it less likely for snow to accumulate.

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Issues: Were the defendants liable for the plaintiff’s injuries under section 3(1) of the Occupiers Liability Act?

Result: The defendants met its duty of care as there was a reasonable system of inspection in place. Furthermore, the plaintiff’s fall was likely a suicide attempt.

Analysis: The Judge noted that the evidence indicated that the fire escapes were not designated as being “off limits” and the evidence also suggested that it was known that the tenants used the emergency exits to smoke. The Judge also stated that the fire escape was intended for emergency use and consequently, there was a duty on the property manager to ensure that it could be navigated safely. The Judge felt that the emergency exits should be inspected as frequently as other areas of the property for snow and ice, such as the sidewalks and stairs. Also, since there was some evidence that tenants use the fire escapes intermittently, they must be safe for that use. The Judge stated that it was reasonably foreseeable to the owners and property managers of the building that if the fire escapes were not inspected for snow and ice conditions, the users of the fire escapes, both tenants and emergency crews, could encounter unsafe conditions and sustain injury. Thus, that danger had to be addressed by regular and proper inspections of the conditions of the fire escape.

After considering all the evidence, the Judge found that there was a reasonable system of maintenance in place for tenants and visitors at the building. It was not a perfect system, however, an occupier is not held to a standard of perfection. Rather, the duty is to take reasonable care in the circumstances to ensure safety for those persons on the property.

The Judge ultimately found that the plaintiff was an unreliable witness and preferred the evidence of the other witnesses, the photographic evidence of the emergency landing that did not show any ice, and the evidence of the defendant’s engineer. The Judge found that the plaintiff failed to prove that she fell because she slipped on ice, rather, the Judge was satisfied that the fall was an attempted suicide on the part of the Plaintiff (she had a significant history of health conditions and prior suicide attempts).

This decision as upheld on appeal.

2.4 Bhatt v. William Beasley Enterprises Limited, 2015 ONSC 2168 (CanLII)

Facts: The plaintiff was 11 years old at the time of the loss and had a pre-existing spinal condition that caused him to easily break bones. He fell and broke his ankle while he and his father were attempting to board the Sky Ride at the Centreville Amusement Park located on Centre Island in Toronto.

The Sky Ride is an aerial tramway that has 45 chairs which seat two people. The ride moves continuously and has a loading platform about 6 feet off the ground. There were generally two staff members in the loading area and two staff members in the unloading area. A staff member is responsible for advising customers that the chair is coming and assist them getting into the chair. Similar to a ski lift, the chair does not stop as it approaches. However, there was no sign advising customers that the chair does not stop in the loading area.

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The ride had been in use since the 1970s and the evidence indicated that here have been customers that failed to get onto the chair of the Sky Ride and that, as a result, had suffered “bumps and bruises”, however, no one had ever fractured a bone before. There was also a rubber “pit” about 20 or 30 feet in front the loading area where customers have landed because they have been unable to board the ride.

The plaintiff and his father testified that they were not aware that the chair did not stop. They were informed where to stand to board and both assumed the chair would stop. When they were struck by the approaching chair, the plaintiff fell forward and the plaintiff’s father stumbled but did not fall.

Issues: Was the defendant liable for the plaintiff’s injuries under section 3(1) of the Occupiers Liability Act?

Result: The defendant failed to meet its duty of care and was liable for the plaintiff’s injuries.

Analysis: The Judge stated that the evidence that prior customers had suffered bumps and bruises after having been struck from behind by a chair demonstrated that the boarding of the continuously moving Sky Ride chair was inherently dangerous. The Judge also noted that the Sky Ride is unlike all other rides in the park in that it was a continuously moving ride that did not stop for boarding. The Judge determined that neither the plaintiff or his father were verbally advised that the ride did not stop, there were no visual cues available and that there were no customers ahead of the plaintiff to demonstrate that the ride did not stop during boarding. The Judge stated that this instructional information could have easily been provided by way of a sign at little cost to the defendant. The Judge concluded that the defendant’s failure to post a sign that provided boarding instructions and notice that the ride did not stop, and the failure to verbally warn the plaintiff the Sky ride did not stop prior to bearding, amounted to a breach of its affirmative duty to make the premises reasonably safe for its customers under the Occupiers Liability Act.

The Judge also found that the defendants were not in compliance with the ride operating manual, as the plaintiff was not asked if he needed the chair slowed down for boarding and there were not enough employees operating the ride at the time of the loss, as provided in the manual. The Judge found that these also amounted to breaches under the Occupiers Liability Act.

2.5 Tondat v. Hudson’s Bay Company, 2017 ONSC 3226 (CanLII)

Facts: The plaintiff attended a Bay store to return a small vacuum cleaner. It had rained heavily earlier that day and continued to drizzle. Upon entering the store, the plaintiff stepped on a black mat. When she stepped off the mat onto the tiled floor, she slipped and fell, breaking her knee cap. The plaintiff alleged that there was water on the floor and this was corroborated by her sister, who attended after the fall.

The Bay had contracted with Quinterra to handle cleaning services inside the store. Only one employer was assigned to clean the store on the day of the loss, and that employee only did “light duty” that day. There was no evidence that the employee had cleaned the area of the fall on the day of the loss.

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The plaintiff commenced an action against the Bay and Quinterra.

Issues: The only issue was whether the defendants were responsible for the plaintiff’s accident.

Result: Judgment was granted in favour of the plaintiff as against Quinterra.

Analysis: There was no dispute that both defendants were “occupiers” under the Occupiers Liability Act. The Judge also found that there was water on the floor where the plaintiff fell. The Judge assigned little weight to expert evidence submitted by the defendants, as the friction testing was performed under ideal conditions and did not take into account potential other factors that could affect the friction of the floor.

The Judge also noted that there was no evidence that the area had been cleaned that day, nor was there any evidence of a safety system to abate the risk of a fall or a system to handle adverse weather conditions. To the contrary, the plaintiff established that Quinterra did not have a system for dealing with water hazards in the vestibule and that, even if it did, it was not working on the day of the loss.

3 Summary Judgment motions:

3.1 Miltonberg v. Metro Inc., 2012 ONSC 1063 (CanLII)

Facts: An ice cream container fell on the plaintiff when she attempted to remove two ice cream containers stacked one on top of the other from the top shelf of a freezer at the defendant grocery store.

The plaintiff was 5 foot tall and was 73 years old on the date of loss. She was at the store with her husband, who was looking at other items at the time of the loss. The freezer was over 6 feet in height, with the top shelf at 5 feet and 7 inches in height. The ice cream containers were stacked 2 units high, 4 units deep on the shelf. The ice cream containers were regularly stored for purchase by customers in this manner. In attempting to get the top ice cream container, the plaintiff reached for both the top ice cream container and the one below it. When she picked up the bottom container, the top box slid or fell, hitting her in the face.

Issues: The defendant brought a summary judgment motion to address liability.

Result: The motion was granted and the action was dismissed.

Analysis: The Judge stated that there is some inherent risk involved in everyday interactions between individuals in society and an occupier is not required to sanitize their environment to such a degree to negate all inherent risk. What is required is balancing of what may be a reasonable course of conduct against the potential for harm.

The Judge stated that the evidence suggested that stacking ice cream containers in such a manner is standard for the grocery industry. The Judge also stated that it was apparent that the plaintiffs were seeking an opportunity to take this matter to trial in order to examine the defendant’s

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witnesses and to discover the industry standard for stacking ice cream. In effect, there was an attempt to shift the onus of disproving negligence onto the shoulders of the defendants. The Judge went on to state that the plaintiff’s own actions caused the ice cream container to fall on her and there was no evidence that the stacking of the containers themselves caused the containers to fall. The Judge also stated that common sense in this case dictates that if one is to reach out and above one’s head to grab an item that has another similar item on top but unattached, then there is the substantial likelihood that the top item may fall. Common sense also dictates that one who is not able to safely reach for the item may request assistance from a partner, friend or store attendant.

3.2 Gohm v. York et al, 2013 ONSC 7118 (CanLII)

Facts: The defendant, Mr. York, owned a hobby farm on which he kept approximately seven of his own horses. At the time of the loss, Mr. York was in Alberta. The co-defendant, Ms. MacDougall, was looking after the property at the time of the loss.

The plaintiff was a friend of Ms. MacDougall. She owned a horse and asked if she could house it on the York property. The plaintiff was walking with Ms. MacDougall, who was leading one of Mr. York’s horses to a paddock, when they crossed a bungee cord fence. When Ms. MacDougall stepped off the fence it recoiled and the plaintiff either fell, tripped or was bounced up in the air and fell face-forward. She alleges that she suffered a serious knee injury as a result.

Mr. York’s evidence was that the paddock in question was enclosed by a bungee cord gate and an electric fence. He himself never had an issue with the gate or fence and it was acknowledged that this type of gate and fencing are routinely used on horse farms throughout Ontario. There was no evidence presented that it is unsafe or that the installation by Mr. York was in any way negligent.

Issues: Mr. York brought a summary judgment motion to address liability.

Result: The motion was granted and the action was dismissed as against Mr. York.

Analysis: The Judge stated that it was clear that the plaintiff and Ms. MacDougall were friends enjoying a day together, working with horses, on Mr. York’s hobby farm. The Judge described them both as “experienced horsewomen”.

The Judge identified that the basic issue before him was whether Mr. York was negligent in the manner in which he built fencing and/or gates on his property in such a way that he should have foreseen could reasonably cause injury to visitors to his property. The Judge concluded that the plaintiff had not presented any evidence as to how Mr. York could possibly be found liable as an occupier for the accident which occurred. The Judge noted that it would appear that the plaintiff had failed to consider that the onus is on her to prove her case. As in Miltonberg (above) she appeared to want to shift the onus of disproving negligence onto the shoulders of Mr. York.

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3.3 Harris v. Loblaw Co. Ltd., 2015 ONSC 4572 (CanLII)

Facts: The plaintiff was shopping at a grocery store when she slipped and fell. She alleged that she slipped on ice and/or water near the broccoli located in the produce section of the grocery store. The plaintiff reported seeing ice on the broccoli, water on the floor and that her jeans were immediately soaked after her fall. Her friend also swore an affidavit that she observed a large puddle of water and crushed ice, similar to that used to keep the broccoli cold, on the floor after the plaintiff’s fall.

The store owner’s evidence was that there was a mat along the edge of the “fresh counter” (where the broccoli was located). Employees were trained to look for water and debris on the floor and to clean up any debris or water seen. The store also maintained a “sweep log” and inspections were conducted every hour. The last inspection occurred five minutes before the plaintiff’s fall.

There were references to water and ice from broccoli on the incident report prepared by the store employees from the day of the fall, which was based on the plaintiff’s reports.

Issues: The defendant brought a summary judgment motion to address liability.

Result: There was a genuine issue requiring a trial.

Analysis: The Judge found, for the purpose of the motion, that a “hazard” existed on the floor which caused the plaintiff to fall and that this “hazard” was water and/or ice from the counter where broccoli was displayed. However, the Judge stated that there was conflicting evidence regarding the systems put in place and the inspection system. As such, there was a genuine issue requiring a trial with respect to whether the defendants met the standard of care owed to the plaintiff.

3.4 Brown v. Marriott, 2016 ONSC 7619 (CanLII)

Facts: The plaintiff slipped and injured his back while walking through the lobby of a Marriott Hotel. When he entered the lobby, the floor was dry. However, while he was checking in with a clerk at the reception desk, with his back to the lobby area, a cleaner mopped the floor and placed a wet floor sign in the middle of the room. After he was finished speaking with the desk clerk, he was directed to the elevator. As he walked across the room, both feet skidded, but has was able to regain his balance without falling. He was not aware that the floor has been mopped and at no time was he verbally warned that the room had just been mopped.

The training provided by Marriott required that the desk clerk checking the plaintiff in to inform him that the floor may be wet and to be careful. The cleaner was also required to dry mop the floor to reduce excess water.

Issues: The defendants brought a summary judgment motion to address liability.

Result: Marriott failed to meet its duty of care and was liable for the plaintiff’s injuries.

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Analysis: The Judge noted that, to be effective, a sign, such as the wet floor sign set up by the cleaner, must be visible to the person it is intended to protect. However, the plaintiff was unable to see the sign and the cleaner even moved it away from the plaintiff, making it less likely he would see it while walking to the elevators The Judge also noted that the cleaner created a dangerous situation and failed to adequately warn the plaintiff, which could have easily been done through a verbal warning.

The Judge also found that mopping the floor created a wet and slippery surface behind a guest, who had his back turned and was unaware that the floor was being cleaned, and this created a reasonably foreseeable risk in the circumstances that required the defendant employees to warn the plaintiff of the danger. Furthermore, the Judge stated that the plaintiff did not have a chance to avoid the danger in the absence of appropriate warnings. The Judge also stated that a verbal warning by the cleaner or desk clerk would have been simple, cost-effective and convenient.

3.5 Cartini v. 156 Square One Ltd., 2016 ONSC 8151 (CanLII)

Facts: The plaintiff was in the parking garage at Square One mall which had sloped tiers for parking. While unlocking her car, she asked her young son to hold her shopping cart, however, he let go of the cart and it began rolling away. The plaintiff tripped and fell while chasing the cart.

Issues: The defendant brought a summary judgment motion.

Result: Partial summary judgment was granted.

Analysis: The Judge noted that the plaintiff presented two theories in support of her case: the “unsafe parking lot theory” and the “unsafe shopping cart theory”.

The summary judgment motion was granted with respect to the “unsafe parking lot theory”. The defendants produced an expert report stating that the parking lot ramp complied with industry standards and there was no evidence that it was in a state of disrepair or that there was any hazardous situation. The plaintiff did not present any expert evidence on this issue. Rather she argued that her foot got caught on “something”, causing her fall. The Judge noted that the video evidence of the fall did not show “something”. The Judge went on to conclude that the plaintiff failed to meet the evidentiary burden in respect of the “unsafe parking lot theory” of the case.

The Judge stated that neither side presented expert evidence with respect to the “unsafe shopping cart theory”. Specifically, there was no evidence available regarding the general design and characteristics of shopping carts, the availability and merits of shopping carts equipped with braking mechanisms, or the potential hazards of shopping carts in parking garages. The Judge also noted that the shopping cart was owned by Walmart, who was not a party to the action. As such, the Judge provided the plaintiff “one more opportunity” to bring Walmart into the action and present a case that this issue was a triable issue.

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3.6 Rego v. Walmart, 2017 ONSC 812 (CanLII)

Facts: The plaintiff was walking through a Walmart store when she slipped and fell. She alleged that she slipped on a puddle of liquid on the floor. There was a video of the fall.

Issues: The defendant brought a summary judgment motion to address liability.

Result: There was a genuine issue requiring a trial.

Analysis: The Judge noted that it was Walmart’s position that there was no liquid on the floor, which was seemingly corroborated by the video footage and the evidence of various Walmart employees. The plaintiff also acknowledged that she did not see any liquid or debris at the time of her fall, however, claimed that she saw an employee cleaning a liquid from the area where she fell later on. The video footage showed an employee in the area later on, but did not suggest they were cleaning any liquid. However, because Walmart did not provide the evidence of the specific employee identified by the plaintiff in the video, the Judge felt there was a genuine issue requiring a trial on the issue of whether there was liquid on the floor.

The Judge also felt that a “fuller factual record” was required to adequately address whether Walmart had a proper system of inspection/maintenance in place, and whether this was followed.

3.7 Nagrare v. Swirls Cup Cakes, 2017 ONSC 2567 (CanLII)

Facts: The plaintiff tripped and fell over the door threshold while entering a Swirls Cup Cakes store, suffering dental fractures and a head injury.

Issues: The defendant brought a summary judgment motion to address liability.

Result: There was no genuine issue requiring a trial and the plaintiff’s action was dismissed.

Analysis: Both parties produced expert reports. The defendant’s expert report indicated that the threshold and entrance to the store was properly constructed in compliance with the Ontario Building Code, and that it was in a good state of repair, was the correct height, width and depth for a riser that forms the threshold to a retail establishment, and was made of the appropriate concrete. The plaintiff’s expert did not comment on the physical attributes of the entrance or threshold, but rather focused his attention on the ‘human factors’ that might have caused the plaintiff’s fall, emphasizing the need for a proper warning sign given the potential tripping hazard represented by the riser at the entrance of the store. While there was a clearly visible warning sign that stated “Watch your steps” at the bottom of the door and just above the threshold, the plaintiff’s expert was of the view that this sign did not suffice to adequately warn of the danger, suggesting it should have been capitalized and the sign a different colour.

The Judge concluded “there really is nothing to the Plaintiff’s case” and went on to state that “Sometimes a person simply falls and there is no one to blame. Unfortunately, trips happen”. The Judge concluded that there was no breach of the duty of care under the Occupiers Liability Act and there was no genuine issue requiring trial.

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3.8 Carnovale v. Longo Brothers Fruit Markets Inc., 2017 ONSC 4131 (CanLII)

Facts: The plaintiff tripped and fell over a pedestrian island in a parking lot outside a Longo’s store, sustaining injuries

Issues: The defendant brought a summary judgment motion to address liability.

Result: There was no genuine issue requiring a trial and the plaintiff’s action was dismissed.

Analysis: The plaintiff did not submit an Affidavit for this motion. However, there was a video of the incident showing the fall.

Both parties produced expert reports. The defendant’s expert report opined that the plaintiff fell because she misplaced her foot on the curb of the traffic island, so that not enough of her foot was planted to support the weight transfer to her right leg. The plaintiff’s expert report indicated that the height of the curb of the traffic island was higher than what he surmised that the plaintiff expected as a pedestrian and, therefore, she fell forward while her right foot was stopped due to “encountering an elevation difference greater than expected”. The plaintiff’s expert also relied on the Ontario Provincial Standard Drawing (“OPSD”) to suggest that the curb should have been no higher than 15cm (all parties agreed it was about 20cm). Notably, the OPSD is not mandatory and does not apply to private property.

The Judge was satisfied there was no genuine issue requiring trial. The Judge went on to note that a review of the video of the incident confirmed that the plaintiff did not trip on the rise of the curb itself, rather, having successfully lifted her right foot over the curb, for some reason, the plaintiff failed to plant her right foot properly on the traffic island. The Judge went on to note that does not mean that the curb was a hazard, noting that the curb was not obstructed from view in any way, and was certainly not so high that any reasonable person would encounter difficulty in clearing it, as the plaintiff’s husband did so with ease in the video.

The Judge also noted that, in the absence of evidence from the plaintiff that she, as a pedestrian in the parking lot, was confused about the height of the curb based upon her own previous experience or expectation, her expert’s opinion had no factual foundation. The Judge also found that the plaintiff’s expert’s reliance on the OPSD had no application to the case before him.

4 Appeal decisions:

4.1 Saisho v. Loblaw Companies Limited, 2015 ONCA 172 (CanLII)

Facts: This was an appeal to the Court of Appeal from a trial judge’s decision to dismiss the underlying action.

The underlying action arose from an incident whereby the elderly plaintiff was struck and injured by another customer’s overloaded cart at a bulk store. The plaintiff sustained significant injuries and subsequently passed away. The trial judge concluded that the store policies in respect of

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general health and safety and the directions given to employees to take action if they saw a hazard were adequate and reasonable in all the circumstances.

Issues: The plaintiff appealed the trial judge’s decision.

Result: The appeal was dismissed.

Analysis: The evidence indicated that staff were required to be alert to dangerous activities of customers, including overloaded shopping carts. Staff testified that, if they saw one, they would intervene and address the situation. However, cashiers were not responsible for loading carts.

The Court stated that, to require a standard that would specifically address the problem of overloaded shopping carts, as the appellant/plaintiff submitted, would be to require a standard of perfection and that is not what the law requires. The Court also stated that the standard of care is reasonableness in the circumstances and that this was a tragic event that took place in a matter of seconds while the operator of an overloaded shopping cart was momentarily distracted. That he was negligent was not in doubt. However, the conduct of the occupier was reasonable in all the circumstances and the law required nothing more.

4.2 2085337 Ontario Limited v. Miller, 2016 ONSC 3208 (CanLII)

Facts: This was an appeal before the Divisional Court from the decision of a Deputy Judge at Small Claims Court (“the trial judge”).

The underlying action arose as a result of a trip and fall. The plaintiff was entering the front doors of a Hampton Inn by Hilton when she fell “dramatically and heavily”. The plaintiff testified that her foot caught as she was crossing an exterior Hilton-branded mat placed just outside the front entrance. The evidence established that mats were placed in several locations throughout the premises.

The trial judge concluded that this mat introduced a “hazard” which served no reasonable purpose and thereby fell below the standard of care, despite the fact it was agreed the mat was lying flat when the plaintiff started to cross it. The trial judge determined that the mat was unnecessary as the pavement underneath provided traction and concluded that the only purpose for the red mat was decorative or branding purposes as dictated by the head office.

Issues: The defendant appealed on the basis that the trial judge applied a standard the law does not mandate and made palpable and overriding errors in his interpretation of the evidence.

Result: The appeal was allowed.

Analysis: The Court determined that the trial judge correctly identified the principles to be applied when assessing the standard of care under s. 3(1) of the Occupier’s Liability Act. However, the Court found that the trial judge failed to apply those principles.

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The Court was unable to find any evidentiary basis for the trial judge’s determination that some mats located permanently or temporarily within the premises were useful while the exterior mat was not. The Court also noted that the trial judge seemingly rejected the evidence of Hilton’s maintenance supervisor that the external mat was always present and was not only used for “branding purposes” but also to provide traction and to collect moisture and dirt. The Court also noted that the usefulness of the exterior mat was beside the point. The issue before the trial judge was whether Hilton had taken such care as was reasonable in all the circumstances to see that the plaintiff was reasonably safe while on the premises.

The Court stated that the trial judge could not conclude that Hilton had fallen below the standard imposed simply because the plaintiff suffered an injury, as harm does not dictate a finding of liability. The statute imposes a reasonableness standard that must be applied in the context of all of the circumstances of the case. The evidence suggested that the plaintiff had visited the premises many times without incident and that the mat was flat at the time of her trip and fall.

The Court stated that it was apparent that the trial judge reached his conclusion concerning the standard of care in spite, not in light, of the evidence. As such, the trial judge’s conclusion the mat was a “hazard” was an unreasonable finding. So, too, was the finding Hilton had failed to take such care as in all the circumstances of the case were reasonable. Nothing out of the ordinary was revealed during the trial other than the plaintiff’s dramatic and exceedingly unfortunate fall.

4.3 Cannon v. Cemcor Apartments Inc., 2017 ONCA 378 (CanLII)

Facts: This was an appeal before the Court of Appeal from the decision of a trial judge dismissing the plaintiff’s action.

The underlying action arose as a result of a slip and fall incident in the parking lot of the apartment building where the plaintiff lived. As a result of his fall, he broke his leg. The defendant was responsible for maintaining the parking lot and had outsourced this contract to a property management company.

The trial judge found that the defendant did have a reasonable policy in place to provide proper winter maintenance for the parking lot. The trial judge also held, based largely on the evidence of defence witnesses, but to some extent on the plaintiff’s evidence, that the parking lot was adequately cleared at the time of the accident, but for the “isolated slippery spot” on which the plaintiff slipped and fell.

One of the issues raised by the plaintiff were the number of interventions by the trial judge during counsel’s cross-examination of the witnesses.

Issues: The defendants appealed on the basis that the trial judge erred in finding that the defendant followed its maintenance policy on the day of the accident.

Result: The appeal was dismissed.

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Analysis: The Court stated that the trial judge made no factual error in his analysis of the evidence and it was open to the judge to treat the firsthand evidence of the witnesses as more probative of the condition of the parking lot than the statistical information from Environment Canada which was being relied upon by the plaintiff.

The Court also noted that there were many interventions by the trial judge during cross examination. The Court noted that some were appropriate, given that a trial judge had a responsibility to ensure that cross-examinations are conducted fairly and in accordance with the rules of evidence. However, the Court also stated that many of the interventions were unnecessary, or at least premature, especially in the context of a trial without a jury. While the Court found that the efficiency and, perhaps more importantly, the tone of the trial suffered, the trial judge’s interventions did not rise to the high level required to displace the presumption of judicial impartiality.

4.4 Irvine v. Seipt, 2017 ONSC 2551 (CanLII)

Facts: This was an appeal before the Divisional Court from the decision of a trial judge that the defendants/appellants were 65% liable and the plaintiff/respondent 35% liable for injuries suffered by the plaintiff in a fall that occurred on the defendants premises.

The underlying action arose as a result of a fall that occurred at the home of the defendants as they were hosting an afternoon birthday party. The elderly plaintiff was attempting to step up onto the deck when she fell back, extending her hands and suffering a left wrist fracture. The deck was approximately 13.5 inches off the ground, whereas the standard riser of a step is about 7 inches.

The trial judge found that the defendants were occupiers, that they owed a duty of care to the plaintiff. The trial judge concluded that the height of the deck off the ground was sufficient to create a risk of harm, not only to the plaintiff, but to others on the property and particularly the elderly. The trial judge went on to find that the defendants were negligent in failing to have a step in place or some other means to ensure users of the porch and backyard could safely step up or down at that location.

Issues: The defendants appealed on the basis that the trial judge erred in setting the standard of care too high and failed to explain how the alleged breaches were causative of the plaintiff’s injuries.

Result: The appeal was granted and the plaintiff’s claim was dismissed.

Analysis: The Court stated that the trial judge correctly held that the defendants were occupiers and the plaintiff was an invitee and, therefore, the defendants owed a duty of care to the plaintiff. However, the Court stated that the trial judge erred in concluding that the height of the deck created a risk of harm, as the Court noted that the duty under the Occupiers Liability Act was not absolute and the trial judge’s reasons for decision did not refer to any evidence and did not contain an analysis as to whether that created an objectively unreasonable risk of harm.

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The Court went on to note that the plaintiff had the burden of proving, on a balance of probabilities, that the height of the deck caused her to fall and the trial judge did not identify causation as an issue let alone refer to the evidence on the subject of causation. The Court stated that the failure to make a finding of causation was an error. The Court went on to state that, had he turned his mind to causation, the trial judge would have had to consider findings he made elsewhere, namely: the respondent was walking; the step up to the deck was plain and obvious; the step up was significantly higher than the usual riser; it was daylight; and there appeared to be no issues of visibility. The Court concluded that it would be difficult to move from those findings to a conclusion that the elevation of the deck caused the injury sustained by the plaintiff.

4.5 Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632 (CanLII)

Facts: The plaintiff was injured while participating in recreational game of tug-of-war among the summer-season tenants of the Defendant Gores Landing Marina (the Marina). The Marina was a large lakeside property with rental cottages and sites for vacation trailers. It operated as a seasonal campground with 60 trailer sites, 19 rental cottages, and 102 boat slips.

The Marina had previously hosted an annual “Jimmy Buffet Day” celebration for the cottage and trailer tenants on the August long weekend. The celebration included a barbeque, a volleyball match, horseshoes, cards, and games for the children. This sponsored celebration ended several years before the loss. However, the tenants of the campsite continued to arrange their own August long weekend celebration, which the Marina was aware of and did not discourage. The tug-of-war event was not supervised; however, the rope that was used was obtained from a shed on the property and belonged to the Marina. The rope had previously been used for a children’s swing and had several loops in it, one if which the plaintiff put his hand through to improve his grip. During the tug-of-war, the rope constricted around his hand, causing a significant injury, and requiring an amputation.

The plaintiff sued the Marina, the Marina’s owner/operator and the individual who supplied the rope for the tug-of-war. The defendants commenced third party claims against the tug-of-war participants.

Various third parties and the defendants brought a summary judgment motion to address liability, which was granted and the plaintiff’s claim was dismissed.

Issues: The plaintiffs/appellants appealed on the basis that the motion judge erred in excluding the discovery evidence of several parties and erred in concluding that there was no genuine issue requiring trial.

Result: The appeal was allowed.

Analysis: The Court found that the motion judge had improperly excluded discovery evidence of several parties on the basis of an interpretation of rules 39.04 and 31.11 of the Rules of Civil Procedure that the Court described as a “strict approach”. However, the Court found that this strict approach, provided under Rule 31.11, failed to comport with Rule 39.04 and the motion judge erred by concluding that the discovery evidence of various parties/witnesses was inadmissible on

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the summary judgment motion. The Court stated that the motion judge took an overly technical approach to the admission of the discovery evidence and he permitted those technical grounds to underpin his decision.

The Court went on to find that the improperly excluded evidence offered some support for the plaintiff’s claimant that the defendants were vicariously liable for the actions of a co-defendant. As there was a triable issue as to vicarious liability, the Court allowed the appeal and set aside the judgment dismissing the action.

Prepared by Fiona Brown and Julianne Brimfield.