Fridays With Rogers Partners

At our muffin meeting, we discussed a decision released yesterday wherein the Court of Appeal upheld a dismissal of a claim involving a trip and fall accident.

In Nolet v. Fischer, 2020 ONCA 155, the plaintiff was moving out of his ex-girlfriend’s house when he tripped and fell on a sidewalk. He sued his ex-girlfriend. The claim was dismissed on a summary judgment motion.

Although the Court of Appeal held that the motion judge erred in deciding that an occupier of premises is precluded from suing another occupier of the same premises, the Court of Appeal agreed that there was no breach of the duty of care.

The Court of Appeal noted that the duty on an occupier is to take reasonable care. It is not absolute.

Although photos showed an unevenness or ledge between two of the sidewalk slabs, the plaintiff did not prove that the height discrepancy was significant enough to constitute a hazard. Further, the plaintiff knew of the unevenness, such that he was aware of the need to take care to avoid the possibility of tripping.

The Court of Appeal disagreed that prior case law has established that a trip ledge of ¾ of an inch to 2 inches is always a hazard. Whether or not a hazard exists is a question of fact for each case.