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Occupiers' Liability

No Substance No Judgment

 Jun 7, 2018 4:00 PM
by Fiona Brown

The plaintiff’s claim relates to a slip and fall that occurred, in a washroom, at Casino Rama on February 16, 2015.  The plaintiff did not notice that the floor was wet, as she entered the washroom, but admitted she did notice a custodian and a yellow caution sign on the floor.  The plaintiff claims that the floor was wet and slippery, which caused her to fall.

Casino Rama’s position was that the plaintiff had failed to provide any direct evidence that there was an unsafe condition and, rather, she had “rationalized the explanation for the fall.”

The court relied on the Hamilton v Ontario Corporation 2000533 decision where the court granted the defendant’s motion for summary judgment.  In this decision, the plaintiff “subjectively believed” that her fall was caused by a slippery vinyl floor in the corridor outside of her apartment, but was unable to provide any objective evidence of anything that could have caused the floor to be slippery.   Further, there was no evidence of a general lack of maintenance in the corridor that could give rise to a determination of an unsafe condition to which the plaintiff’s fall could be connected, causally, or by reasonable inference.

In Rietta the court agreed with the plaintiff’s assertion that her case differs from the Hamilton decision in that there are two objective facts:  the presence of the custodian and a yellow caution sign in the washroom.   The court felt that these facts gave rise to a triable issue and the defendant’s motion was dismissed.

This decision makes it clear that no evidence of a substance or debris in the area of a fall will not be enough to be successful on summary judgment.   Objective evidence of “something” that could have caused an unsafe condition will create a triable issue.  This decision also reiterates that solid maintenance logs confirming regular patrolling are key for defending slip and fall cases.

See Rietta v Casino Rama, 2018 ONSC 2403

Also see Hamilton v Ontario Corporation 2000533, 2017 ONSC 5467


Fiona Brown has an insurance law practice that has focused exclusively on insurance defence for almost 22 years. Read more ...


  

 

 
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