Court of Appeal Affirms Occupier’s Liability

In Ontario, the occupier of property is under a statutory duty to:

“take reasonable care in the circumstances to make their premises safe. The factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation.”

Occupiers’ Liability Act, S.3(1), R.S.O. 1990, c. O.2. The contours of that duty were recently explored in the case of Tondat v. Hudson’s Bay Company, 2018 ONCA 302.

The Tondat case arose on a rainy day, when Ms. Tondat slipped and fell on the tile floor at the entranceway to the Hudson’s Bay store and suffered a fractured kneecap. Not surprisingly, it was determined that her fall occurred as a result of the wet floor. Next, the court was required to determine whether Hudson’s Bay had taken reasonable care in the circumstances to prevent her fall on the wet floor. There was little evidence to support that had been done.

Specifically, it was determined that a single maintenance person had been on duty that day in the 118,348 square foot store, as both a cleaner and a porter. Not surprisingly, there was no evidence of any maintenance occurring in the area where Ms. Tondat fell. Perhaps recognizing this, Hudson’s Bay put forth ‘novel’ evidence from a ‘slip and fall accident’ expert, that the floor tiles had a superior coefficient of friction when wet, such that the flooring was reasonably safe whether wet or dry. However, it was conceded that the expert’s tests had been run in a highly controlled way, and did not take into account various factors that could have affected the coefficient of friction of the tiles (i.e. how slippery the wet floor was), such as the wetness of the floor, the nature of a person’s footwear or the presence of any greasy substances on the floor. As such, the trial judge concluded that the expert had not replicated the conditions typical of the entrance to a busy department store on a rainy day, and accordingly discounted the expert’s testimony as to whether the floor was slippery. As such, Hudson’s Bay failed to discharge their duty to ensure that their premises were reasonably safe for people entering, and it’s defence that ‘it’s choice of flooring alone constituted reasonable care’ failed.

The above case serves as a reminder that if you have been injured in a slip and fall accident, you should try to have pictures taken of the scene where you fell. Where your injuries are serious, you should contact a lawyer such as the lawyers at Michael’s Firm, at 1-647-495-8995, with offices in both Toronto and Hamilton for your convenience.

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