For 9 years, Marian Hamilton resided on the fourth floor of an apartment building in Toronto. In May 2012, at 67 years of age, she slipped and fell on the vinyl floored corridor near her unit. She started a lawsuit against the building owner, Toronto Community Housing Corporation (“TCHC”), for compensation for the injuries that she sustained.[1]

Following examinations for discovery, TCHC brought a summary judgement motion to dismiss the action. TCHC’s position was that Mrs. Hamilton had no objective evidence, and therefore could not prove, there was any hazard on the floor that caused her to slip and fall. Without evidence of an unsafe condition, there was no genuine issue of liability for trial.

The fall arose while Mrs. Hamilton was returning to her apartment with mail and her apartment key in hand. She suddenly slipped and fell. She described the vinyl floor as “quite shiny and slippery”. However, she was unable to produce any evidence in support of her visual observation that the floor was “shiny”, and she could not recall what she may have slipped on. Neither the floor nor her clothes felt wet after her fall. She could not recall seeing any water or spills in the area. She confirmed that the corridor was flat. The lighting in the corridor was reasonable. Mrs. Hamilton simply had no idea what caused her fall beyond “feeling” that she slid on “something”.

The presiding judge, Justice Sanfilippo, made repeated reference to Mrs. Hamilton’s “subjectively-held beliefs” in comparison to the “objective evidence” required to prove liability. For example, Justice Sanfilippo cited Mrs. Hamilton’s “subjectively held belief” that there “had to be something” on the floor, undetected by her before or after the fall, which caused her to slip and fall, but which she was unable to identify as a hazard or an unsafe condition that day. Justice Sanfilippo also cited Mrs. Hamilton’s “subjectively held belief” about the building’s lack of cleanliness and upkeep, which TCHC contradicted with its evidence.

Justice Sanfilippo reviewed the law pertaining to summary judgment motions and occupiers’ liability. About the latter, Justice Sanfilippo highlighted:

  • 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.

In the absence of cogent evidence of the condition of the floor that caused her to slip and fall, Mrs. Hamilton asked the court to draw an inference that her fall “must have occurred by reason of a defect in maintenance by TCHC”. On this point, Justice Sanfilippo stated: “an inference of causation must be based on objective facts, not subjective rationalization”. Justice Sanfilippo referenced precedent case law, including the Ontario Court of Appeal decision in Kamin v. Kawartha Dairy Ltd.[2] In the Kamin case, the Court of Appeal confirmed that:

  • An inference cannot be based on conjuncture or speculation; and
  • There can be no inference unless there are objective facts from which to infer the other facts which it has sought to establish.

Mrs. Hamilton’s action did not have the factual elements present in the Kamin case, in which there was considerable, uncontradicted, objective evidence about the overall poor condition of the parking lot in which Mrs. Kamin tripped.

Mrs. Hamilton’s failure to pinpoint any unsafe condition in the corridor in which she fell led to the determination that the case could not succeed. Her evidence at its highest was that the floor was slippery, but there was no objective evidence of anything that might have caused the floor to have been slippery or unsafe that day. In the result, there was no basis on which to find any breach of duty of care by TCHC. The action was dismissed.

Key Points

Just because an individual is injured in a slip and fall incident does not mean that the occupier of the premises has breached a duty of care and is liable. The fact of an injury does not mean a case is compensable. Remember the basics of occupiers liability law. Put the plaintiff to the strict burden of proof.

In the appropriate circumstances, a summary judgment motion can expedite the final determination of the case.