Fridays with Rogers Partners

At our weekly firm meeting, Annie Levanaj discussed the recent decision of Justice Boswell dismissing a summary judgment motion brought by the defendants in Adler v. Promenade General Partner Inc., 2021 ONSC 5393.

Incident

This action arose from an incident that occurred on August 8, 2018, when Ms. Adler, the plaintiff, slipped and fell while walking near the food court in the Promenade Mall and suffered significant injuries. Ms. Adler sued the owner of the mall, Promenade, the property manager and the property manager’s cleaning contractor for damages, alleging negligence and breach of the Occupiers Liability Act[1]. The plaintiff alleged that she tripped after her foot got stuck on a sticky substance on the floor which she claims was a hazard, and that the defendants failed to take reasonable care to ensure her safety while on the mall premises. 

The defendants moved for summary judgement. While they accepted that they owed a duty of care under the OLA and in common law, they argued that there was no objective evidence to allow a trier of fact to conclude there was substance on the floor where the plaintiff fell. As such, the defendants argues that the plaintiff’s claim was based on speculation.

Argument of the Moving Parties

The moving parties argued that the case could not succeed because there was no objective evidence as to the hazardous substance on the floor where Ms. Adler tripped. They relied on the cases Hamilton[2] and Nandlal[3]. They also advanced two fall-back arguments, if the court concluded that there was admissible evidence of a hazard:

1. The presence of a hazard is not sufficient on its own to establish a breach of the duty of care, because the OLA does not impose strict liability, and the evidence demonstrates that they had a reasonable system of inspection and maintenance in place; and
2.  Even if the court were to find that there is a genuine issue for trial, this would be an appropriate case for the court to exercise its enhanced fact-finding powers to determine the case in a summary fashion. They stated that the plaintiff’s case was so weak that it would be just, fair and proportionate for the court to determine it won’t succeed, and dismiss it.  

Argument of the Plaintiff

Ms. Adler repeatedly gave evidence as to the incident and the presence of the sticky substance which caused her to slip, as seen in her Statement of Claim, her discovery on November 22, 2019, her affidavit in response to the summary judgement option, and in her cross-examination on her affidavit on June 2, 2021.

The plaintiff denied that her case was grounded in speculation, stating that she knew there was something sticky on the floor, and that just because she could not identify the substance does not mean that her claim was invalid. She argued that not being able to identify the substance was not an impediment to her claim because:

1. There was circumstantial evidence available that supported her inference that the sticky subject was food or drink; and
2. It is not strictly necessary under the OLA that she identify the substance. Instead, she is only required to establish that there was a hazard on the floor, and the defendants breached their duty of care to ensure that persons using the mall were reasonably safe.

The plaintiff argued that the defendants failed to ensure the premises were reasonably safe, and did not demonstrate that they had a reasonable system in place to inspect and maintain the premises.

Court Analysis

Evidence of a Hazard

Justice Boswell distinguished this case from the ones relied on by the defendants. He stated that in those cases, the motions judge was satisfied that the plaintiffs had not adduced any admissible evidence of a hazard capable of substantiating a breach of an occupier’s duty of care, and had only advanced their own speculative rationalization about what must have happened.

In this case, the difference was that while Ms. Adler may not have been able to identify the substance that was on the floor, she could pinpoint the hazard. She was not speculating, but was offering her own direct observations as to the sticky substance on the floor. Her testimony constituted admissible, direct evidence of the fact that there was a sticky substance on the floor that her foot stuck to. The court stated that: 

“She has offered her own direct observations of a sticky substance on the floor.  She did not see it.  She is unable to identify it.  But she felt it.  She says clearly that her foot stuck to it and in doing so it impacted her stride and caused her to fall forward.  Her testimony on this issue is admissible, direct evidence that there was a sticky substance on the floor and that her foot stuck to it… If that evidence is believed, the trier of fact will be able to conclude that there was a hazard on the floor that posed a risk to those using the premises, even though the trier may not be able to say precisely what the substance was.”[4]

Evidence of Reasonable Care

The court noted that the OLA standard is reasonableness, not strict liability. The plaintiff bears the onus to establish, on a balance of probabilities, that the defendants failed to take reasonable care to ensure the safety of those using the mall. The court noted that according to the evidence, it is far from clear that the defendants had a reasonable system in place to detect and correct hazards as they arose in the food court.

Decision

The court concluded that given the evidence, there was a genuine issue requiring trial as to whether the defendants took reasonable steps to ensure the safety of persons while on the premises of the Promenade Mall. The defendants’ motion was accordingly dismissed.

Takeaway

This case is important for occupiers. Even if a hazard cannot definitively be identified, it may still be enough to constitute an issue requiring a trial, and to dismiss a summary judgment motion. Before bringing a motion for summary judgment, occupiers should ensure they have strong evidence of the absence of a hazard, or of a reasonable and operational system of inspection and maintenance of the premises.

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[1] R.S.O.1990, c.O.2

[2] Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 

[3] Nandlal v. Toronto Transit Commission, 2014 ONSC 4760

[4]at para 49.