We’ve discussed Ontario slip and fall cases in detail in the past. As we explained then, such cases are governed by the Occupiers’ Liability Act (OLA). The crux of the OLA is found in section 3(1), which provides that:
[a]n 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.
Unfortunately, although the language of section 3(1) is fairly straightforward, it has led to some popular misconceptions. In this post, we address two:
- The misconception that occupiers are strictly liable for any slip and fall on their premises. The OLA requires reasonable care, not perfect care. Therefore, to prevail on an OLA claim, a plaintiff must prove that the defendant was negligent.
- The misconception that proving negligence in an OLA action suffices for victory. Even if an occupier fails to meet the reasonableness standard, a plaintiff must still prove that that failure caused his or her injuries.
To illustrate these principles, we will review two 2017 court decisions: Hamilton v. Ontario Corporation #2000533 (“Hamilton”) and Irvine v. Seipt (“Irvine”).
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The OLA and Proving Negligence: Hamilton v. Ontario Corporation #2000533
As noted above, the OLA requires occupiers to “take such care as in all the circumstances of the case is reasonable” to protect visitors and their property. Some litigants incorrectly interpret the OLA to create strict liability for any slip and fall on a property or, at least, to establish a presumption of negligence when a person slips and falls.
Hamilton shows that those approaches are wrong.
Marian Hamilton was a tenant in an apartment building owned by Ontario Corporation #2000533 (o/a Toronto Community Housing Corporation, or TCHC for short). In May 2012, on her way back to her apartment after collecting her mail, she slipped on the vinyl floor in the hallway near her fourth-floor apartment.
As a result of her fall, Hamilton suffered a “serious injury.” Believing TCHC’s inadequate maintenance procedures to be at fault in causing her fall, she sued.
What went wrong?
Unfortunately for Hamilton, she was unable to identify what she slipped on. At one point she claimed that the floor was “quite shiny and slippery,” but at other times she omitted the reference to anything “shiny.”
As the court explained in analyzing her sparse evidence, to prevail on an OLA claim, a plaintiff must “pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury.” Inconsistent testimony merely about something “shiny” won’t suffice.
Unable to point to a specific cause of her fall, Hamilton tried to rely on more general conditions. First, she offered evidence that an airport about 30 km away recorded rainfall on the day of the accident. But Hamilton didn’t remember the weather outside her building that day, and there was no evidence that water had been tracked into the building, so the court ignored the airport report.
Hamilton also turned to what she considered an inadequate maintenance and housekeeping routine. She argued that the two-person maintenance staff could not keep her apartment building “reasonably safe.” But, again, her inability to pinpoint a specific act or failure by TCHC doomed her argument.
If the OLA imposed strict liability on occupiers for, or if it established a presumption of negligence following, a slip and fall, then Hamilton could have prevailed on her claim. But because the statute only requires reasonable care, and because the burden is on the plaintiff to prove his or her claim, Hamilton’s lack of evidence meant she could not win.
The OLA and Proving Causation: Irvine v. Seipt
The second misconception that some people have about the OLA is that proving negligence is enough to win a lawsuit. However, to succeed, a plaintiff must also prove that the defendant’s negligence was the cause of the plaintiff’s injuries. This misconception is understandable, because causation is not explicitly mentioned in the text of the OLA, but failing to prove this element is fatal to a plaintiff’s case nonetheless.
That was the hard lesson the plaintiff learned in Irvine.
In June 2007, the Seipts invited Sharon Irvine to their home for a birthday party. The Seipts had a deck in their backyard, where the party was held. The deck was nearly double the normal height for such structures. At some point, Irvine tried to step onto the deck, but fell backwards. She suffered a fractured wrist, resulting in $31,500 in damages.
What went wrong?
Irvine won in the trial court, although her recovery was reduced by 35% based on the court’s finding of contributory negligence. But bigger problems appeared when the Seipts appealed. Although the trial court had found that the condition of the deck constituted negligence by the Seipts — a conclusion that was itself reversed on appeal — it did not assess whether that condition caused Irvine to fall.
Without that causal element, Irvine could not prevail. On appeal, the Ontario Divisional Court determined that the evidence presented did not support causation. The Divisional Court explained its reasoning with reference to some of the trial court’s findings:
[T]he 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. It would be difficult to move from those findings to a conclusion that the elevation of the deck caused the injury sustained by the respondent.
In short, because the trial judge did not make specific findings with respect to how the breach caused the injury, the claim ultimately failed. This decision demonstrates the level of specificity required in evidence to successfully prove a case.
Avoiding Missteps in Proving Ontario Slip and Fall Claims
The requirements for prevailing on a slip and fall claim in Ontario are not always clearly spelled out in the Occupiers’ Liability Act. Building a strong case requires working with a knowledgeable lawyer who is familiar both with the OLA itself and the judicial decisions interpreting it.
The slip and fall lawyers of Preszler Law Firm understand how to build an OLA case that proves every element of a slip and fall claim and anticipates an occupier’s defense strategy. If you’ve been injured while on another person’s property, contact Preszler Law Firm today for a free consultation.