Ont. Super. Ct. Summarily Dismisses Slip And Fall Claim Because No Objective Evidence Of An Unsafe Condition And No Breach Of Maintenance Obligations

Posted in Occupiers' Liability In Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, Ontario Superior Court Justice Sanfilippo summarily dismissed this occupiers' liability action in which the then 67-year old plaintiff tenant alleges she slipped and fell on the vinyl floor in the corridor outside her apartment on the fourth floor of her building. She had been living in the building for nine years.

His Honour held that "[i]n the absence of any objective evidence of any unsafe condition, and after assessment of the housekeeping protocols in place by the TCHC for the upkeep of the Building in general and the corridor specifically, there is no basis on which to find any breach of duty of care by the TCHC that could be found to have caused Mrs. Hamilton's slip and fall".

His Honour reviewed summary judgment law at paras. 12-16, and occupiers' liability law at paras. 30-33. In respect of the latter, he noted that in order "[t]o succeed in a claim against an occupier for injury sustained in a slip and fall, the plaintiff must 'pinpoint some act or failure on the part of the occupier that caused the plaintiff's injury'".

His Honour stated in part:

[22] In the Notice Letter, Mrs. Hamilton stated that she "suddenly slipped on the vinyl floor in the corridor which was quite shiny and slippery."

[23] In the Hamilton Affidavit, Mrs. Hamilton testified to her subjectively-held belief that the floor was slippery but without any reference to visual observation of the floor being shiny. She states as follows:

When I slipped, I slipped on something and went up in the air and fell on my right arm. I slipped with one foot. I recall there being dirt on my clothes from the flooring when I fell. ... I do not recall what I slipped on but I do recall it being slippery.

[24] In her discovery testimony, Mrs. Hamilton provided no evidence of any observation of any hazard on the corridor floor and no mention of observing anything "shiny". The plaintiff testified to her belief that she "slid on something". The Notice Letter was not referenced. Pertinent extracts from the examination evidence are as follows:

Q. 127: What did you fall on?

A. I'm honestly not sure. ... Q. 135: You said that you slipped on something, and you didn't know what it was, you said?

A. I don't. No. ... Q. 240. Again, you didn't notice anything unusual when you were walking --...

A. No. ... Q. 245. You didn't see any water or any spills at that time?

A. I can't recall.

Q. 246. Is it flat, the hallway?

A. Yes, it's flat.

Q. 247. Any other observations of the hallway when you...