Pursuant to the Occupiers’ Liability Act, the occupier of a property (property owners, tenants and managers) in Ontario is required to keep people reasonably safe from harm when they enter the property. Furthermore, property occupiers can be liable for injuries that occur on their property, if they did not take reasonable steps to keep visitors safe.
Two recent decisions explore what is expected by an occupier in Ontario.
The Court of Appeal recently heard the decision of Tondat v. Hudson’s Bay Company and Quiterra et al. on March 9, 2018. Hudson’s Bay, as the appellant, was appealing the trial judge’s decision on liability. The respondent’s fall occurred after she had walked into the vestibule, or entryway, to the store. She walked across a floor mat, stepped onto the tile floor, and slipped and fell. The parties agreed on the quantum of damages and the trial was limited to the question of liability.
The trial judge concluded that the floor where the respondent fell was wet, and that this was the cause of her fall. He accepted that there was no evidence of any safety system in place at the store to abate the risk of a fall, any effective inspection or maintenance system, or that the existing maintenance system was adjusted to account for adverse weather conditions. He did not accept expert opinion about the tiling on the floor having a superior coefficient of friction when wet.
The appellants accepted the trial judge’s findings that a wet floor caused the respondent’s fall, and that they lacked an effective inspection or maintenance system. Their main argument was that the trial judge failed to require the respondent to prove that the wet floor “created an unreasonable risk of harm”, before he turned his focus to the measures adopted by the appellants to make the premises safe. It is a novel approach. It adopts the logic that sometimes there will be wet floors – is that an unreasonable risk of harm?
It was accepted that the Plaintiff has the onus to provide that some act or failure on the part of the occupier caused her injury. However, the appellant argued that the Plaintiff must establish then that what caused the injury was some specific objectively unreasonable risk of harm. The Court of Appeal disagreed. They found that the trial judge, when it was determined that the fall was caused by the wet floor, had to determine whether the occupier, in all of the circumstances, had taken reasonable care to prevent a fall on a wet floor. In taking into account the expert’s evidence, the appellants had not shown that the floor tiles were safe to walk on in any condition, wet or dry.
The evidence of maintenance and other measures taken by the appellants to make the premises safe consisted of a time sheet showing that a single maintenance person had been on duty both as a cleaner and porter in the 118,348 square foot store on the day in question, without any indication of what, if anything, had taken place in the vestibule area where the accident occurred.
The Court of Appeal stated that, “Every occupiers’ liability case needs to be determined on its own facts”.
It is unlikely that the case will be appealed to the Supreme Court of Canada and even it is, it is unlikely that leave will be granted as this does not appear to be a case of national importance.
In the second case, Rietta v. Casino Rama, the Defendant Casino Rama brought a summary judgment motion to dismiss the Plaintiff’s claim. The Plaintiff fell on February 16, 2015, while using the washroom. Casino Rama denied that there were unsafe conditions in the washroom. The Plaintiff stated that this was not an appropriate summary judgment motion as she would be able to prove liability on a balance of probabilities.
The Plaintiff did not notice that the floor was wet when she entered the washroom, but she did observe a custodian and a yellow caution sign on the floor.
The Plaintiff stated that she fell because the floor was slippery due to the presence of water.
Casino Rama’s position was that the Plaintiff failed to provide any direct evidence that there was an unsafe condition and that she has rather rationalized the explanation for the fall.
Reference was made to Hamilton v. Ontario Corporation 20053, a 2017 Ontario Superior Court of Justice decision. On granting the defendant’s motion for summary judgment in Hamilton, Sanfilippo J. noted that:
The plaintiff subjectively believes that her slip and fall was caused by a slippery vinyl floor in the corridor outsider her apartment but, by reason of the absence of any objective evidence, the plaintiff has failed to prove on a balance of probabilities that an unsafe condition existed on May 7, 2012. There is no objective evidence of anything that could have caused the floor to be slippery. Even broadly, there is no evidence of a general lack of maintenance in the fourth-floor corridor that day that could give rise to an objective determination of an unsafe condition to which Mrs. Hamilton’s slip and fall could be connected causally or by reasonable inference.
Ferguson J found that the circumstances in the Casino Rama incident differed. There was not only subjective rationalization, but also two objective facts – the presence of the custodian and the yellow caution sign in the washroom. These facts give rise to a triable issue and the case was found not to be amenable to summary judgment. The motion was dismissed.
It will be interesting to see if the decision is appealed. It appears that a trial is required to determine if Casino Rama should have done more, such as blocking off the washroom while it was being cleaned?
Both cases highlight that at present, occupiers are required to have a system of maintenance in place, that can be proven to be effected, but also that the maintenance is appropriate for the area. Simply having maintenance is not enough. What the case law demonstrates is that the maintenance needs to be documented, that it is timely and appropriate measures are being enacted, and appropriate for the premises. There needs to be a safety system in place and an effective inspection or maintenance system.
If you have any questions as an occupier about ensuring that your maintenance is appropriate, please do not hesitate to contact us to discuss.