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Subjective Beliefs Alone Not Sufficient to Demonstrate Breach of Duty

In the recent decision of Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467, the Court reviewed the evidentiary burden a plaintiff must overcome in slip and fall claims against occupiers under the Occupiers' Liability Act, RSO 1990, c O.2 (the "Act").

The plaintiff brought an action against the Toronto Community Housing Corporation ("the defendant") for injuries sustained when she allegedly slipped and fell on the vinyl flooring in the corridor of her apartment building. She did not provide details as to the cause of her slip and fall, stating only that the defendant failed to clean away any hazard and that it was her belief that the floor was slippery. In addition, the plaintiff challenged the defendant's maintenance system, arguing that there was a general lack of cleanliness and upkeep of the building and presented evidence of her past issues and complaints to management. She argued that the system in place was not sufficient enough to ensure that the building was reasonably safe. The plaintiff submitted that in the absence of evidence of a hazard giving rise to an unsafe condition, the Court should draw an inference that her fall must have occurred by reason of defect in maintenance by the defendant.

The defendant argued that to succeed, the plaintiff must be able to point to some act or failure on the part of the defendant that caused her injuries. In this case, the plaintiff had submitted no evidence, and therefore no proof, that there was any hazard on the vinyl floor. The defendant further argued that the absence of objective evidence of an unsafe condition was fatal to establishing a causal connection between any breach of duty and the plaintiff's incident. As such, the defendant submitted that there was no genuine issue for trial.

The Court granted the defendant's motion for summary judgment. There was no dispute that the defendant was an occupier under the Act. However, to succeed in a claim against an occupier for injury sustained in a slip and fall, the plaintiff must pinpoint some act or failure of the part of the occupier that caused the plaintiff's injury.

The Court rejected the plaintiff's argument that her own evidence as to the state of the floor was enough to establish that the corridor was not reasonably safe. The Court also rejected the plaintiff's argument that an inference should be drawn that her fall must have occurred by reason of defect in maintenance by the defendant. On this point, the Court stated that an inference of causation must be based on objective facts, not subjective rationalizations. The Court distinguished this case from previous case law where such an inference had been made, stating that the plaintiff presented no "considerable, uncontradicted, and objective evidence" that the corridor was unsafe. The Court further stressed that the duty of care of an occupier is not one of perfection, but of reasonableness, and an occupier is not required to remove every possibility of danger.

Ultimately, this case serves as a reminder that plaintiffs will not be successful against an occupier unless the plaintiff can present objective evidence to pinpoint an unsafe condition at the location of the incident. A subjective belief will not be sufficient to establish, on a balance of probabilities, that an occupier breached its duty of care to ensure that persons are reasonably safe while on their premises.