Winning a Slip and Fall Case in Ottawa, Ontario – Occupiers Liability
Slip and fall and trip and fall cases fall under what is called Occupiers Liability torts. Tort is a legal term and means a wrongful act (assault, negligence for example) or infringement of a right (charter breach for example). Occupiers’ liability is a field of tort law. Occupiers liability is concerned with what duties of care are applied to property owners and occupiers as it relates to persons who use property owned or leased by others. If a duty of care is established, the court will apply a standard of care to the property owner or occupier when determining liability. The court will hear evidence and make findings of facts. If those facts support there being a duty of care owed and a breached of the standard of care owed, the Court will award damages to an injured person who can prove that the breach of the standard caused them injury.
What evidence is needed to win your slip and fall personal injury case depends on the facts of your particular case and specifically what caused the slip and fall.
In general terms however, the Courts have interpreted and applied the provisions of the Occupiers’ Liability Act of Ontario and those cases provide some guidance in slip an fall liability cases. In Ontario, the Occupiers’ Liability Act is the main statute that creates a duty on property owners and occupiers (such as tenants) to ensure their properties are safe.
In a recent slip and fall case, the Court set out some basic principles to be applied in Occupiers Liability cases. They include the following:
- To succeed in a claim against an occupier for injuries sustained in the slip and fall, a plaintiff must “pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury”;
- The duty of care on the occupier does not extend to the removal of every possibility of danger;
- The Occupier’s Liability Act does not impose strict liability;
- The standard of care is not perfection, but rather reasonableness;
- The duty of care established by the Occupier’s Liability Act must not be confused with a presumption of negligence; and
- The burden of proof is on the plaintiff to show that the defendant was in breach of a positive duty of care.
The specific section of the decided case [ Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467] is as follows:
“D. The Duty of an Occupier
[30] The duty of the TCHC as an occupier of the Building derives from the Act, section 3 of which states as follows:
Occupier’s duty
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.
[31] To succeed in a claim against an occupier for injury sustained in a slip and fall, the plaintiff must “pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury”: Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (CanLII), 2014 ONSC 4760 (Ont. S.C.J.) per Perell J., at para. 8, citing St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. 2721 (Ont. S.C.J.), at para. 27; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232 (CanLII), 2010 CarswellOnt 6802 (Ont. S.C.J.), at para. 21 [“Gemelus”]; Miltenberg v. Metro Inc., 2012 ONSC 1063 (CanLII), 2010 CarswellOnt 1588 (Ont. S.C.J.) [“Miltenberg”]; Gohm v. York, 2013 ONSC 7118 (CanLII), 2013 CarswellOnt 15704 (Ont. S.C.J.), at paras. 20—21 [“Gohm”]; Whitlow v. 572008 Ontario Ltd, [1995] O.J. No. 77 (Ont. Gen. Div), at para. 33, which states as follows: “[a] plaintiff must still be able to point to some act, or some failure to act, on the part of the occupier which caused the injury complained of, before liability can be established.”
[32] The duty of care on the occupier does not extend to the removal of every possibility of danger. The Act does not impose strict liability. The standard of care is not perfection but rather reasonableness: see George v. Covent Garden Market Corporation, 2007 ONSC 29276, [2007] O.J. No. 2903 (Ont. S.C.J.), at para. 35; Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (Ont. S.C.J.), at para. 28 [“Garofalo”]; Gohm, at para. 22; Nandlal (Ont. S.C.J.), at para. 10; Miltenberg, at para. 33. As stated in Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456, at p. 472:
After all, the statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation — thus the proviso ‘such care as in all circumstances of the case is reasonable’.
[33] The duty of care established by the Act must not be confused with a presumption of negligence: see Gohm, at para. 20; Gemelus, at para. 21. The burden of proof is on the plaintiff: “The onus is on the plaintiff to prove on a balance of probabilities that the defendant was in breach of a positive duty of care”: Garofalo, at para. 30; see Canada (Attorney General) v. Ranger, 2011 ONSC 3196 (CanLII), 2011 CarswellOnt 3697 (Ont. S.C.J.), at para. 33, which states: “[o]f course, it is important not to lose sight of the fact that, nevertheless, the burden of proof of a breach of the statute rests with the plaintiff.””
To read the actual wording of the Occupiers’ Liability Act, click here (Occupiers’ Liability Act of Ontario).
In the end, simply because a person was injured as a result of a slip and fall does not necessarily mean that the property owner or occupier will be held liable. However, if an injured person can prove all the necessary elements of their case, damages will be awarded. The elements in general terms are: a duty of care existed, the standard of care applicable was breached, the breach of the standard of care caused the injuries alleged, the result of the breach of the standard of care was foreseeable.
As personal injury lawyers, our job is to gather the evidence to prove the elements of your case. We work hard with experts such as engineers and accident re-constructionists who often are needed to prove negligence.
If you have been injured in a slip and fall incident, or a trip and fall incident, we can assess your case for free.
Marc-Nicholas Quinn
Ottawa slip and fall lawyer
613-315-4878