Failure to provide objective proof of claim - Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 (CanLII)

October 13, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 (CanLII)

Date of Decision: September 14, 2017
Heard Before: Sanfilippo J.

SUPERIOR COURT OF JUSTICE - ONTARIO
REASONS FOR JUDGMENT

This motion was brought by the TCHC for summary judgment to dismiss the occupier’s liability action brought by Marian Hamilton. Mrs. Hamilton, a tenant of 9 years at the time, alleges to have slipped and fallen on May 7, 2012 on the vinyl floor in the corridor outside her unit. She claims she was walking in the hallway of the premises when she suddenly and without warning slipped and fell on the vinyl floor sustaining a serious injury.

The statement of claim does not detail the cause of the slip and fall, but pleads that the TCHC failed to keep the vinyl floor reasonably safe, and failed to “clean away the ‘hazard’. There is no description of the alleged hazard or lack of care.

Without any evidence of an unsafe condition on May 7, 2012 at or near Mrs. Hamilton’s apartment, the TCHC submits that there is no genuine issue that Mrs. Hamilton will be able to establish liability. The TCHC submits that it had a reasonable system of maintenance but, even if it did not, the absence of objective evidence of an unsafe condition is fatal to establishing a causal connection between any alleged breach of duty and the incident.

Mrs. Hamilton challenges the system of maintenance and inspection that the TCHC had in place, and that there was an inadequate number of on-site TCHC personnel working insufficient hours to keep the Building reasonably safe. Mrs. Hamilton submits that even in the absence of evidence that the area near Mrs. Hamilton’s apartment was unsafe, based on the totality of the evidence, the Judge ought reasonably to infer from a general failure to properly maintain the Building that there was a defect in the vinyl floor that caused her injury.

The TCHC relies on established case law that for Mrs. Hamilton to succeed she must be able to pinpoint some act or failure on the part of the occupier that caused Mrs. Hamilton’s injury. The TCHC submits that Mrs. Hamilton has failed to establish that there was any act or breach on the part of the TCHC that resulted in an unsafe or hazardous condition as would be required to establish that the TCHC’s breach of duty was the cause of Mrs. Hamilton’s injury.

Based on the following reasons, summary judgment is granted dismissing Mrs. Hamilton’s claim. Summary Judgment – Rule 20

Rule 20.04(2)(a) of the Rules of Civil Procedure provides that if a court is satisfied that there is no genuine issue requiring a trial with respect to a claim, the court shall grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87 [“Hryniak”], the Supreme Court held, at para. 49, that there is no genuine issue for trial in the following circumstances:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.  This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

Mrs. Hamilton subjectively believes that her slip and fall was caused by a slippery vinyl floor in the corridor outside her apartment but, by reason of the absence of any objective evidence, Mrs. Hamilton has failed to prove on a balance of probabilities that an unsafe condition existed on May 7, 2012. There is no objective evidence of anything that could have caused the floor to be slippery. Even broadly, there is no evidence of a general lack of maintenance in the fourth-floor corridor that day that could give rise to an objective determination of an unsafe condition to which Mrs. Hamilton’s slip and fall could be connected causally or by reasonable inference.

On the basis of the above this motion brought by the TCHC for summary judgment to dismiss the occupier’s liability action is granted.

Although cost outlines were received after argument, counsels’ submissions on costs were necessarily contingent as the decision was taken under reserve. If the parties cannot agree on costs, counsel for the defendant is at liberty to deliver written cost submissions of no more than three pages within seven days of release of this decision. Counsel for Mrs. Hamilton is invited to deliver written submissions of a similar length within fourteen days of release of this decision. In the absence of any such written submissions and in the absence of notification of a consent agreement on costs, the Judge will issue a ruling on costs, after fourteen days from the release of this decision, based on the cost outlines provided and submissions made at the hearing.

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