Slip and Fall Claims in Ontario

What the law actually requires

Ontario's Occupiers' Liability Act applies in place of the common-law rules on an occupier's duty (s. 2). The Act defines "occupier" broadly (s. 1): it covers someone physically in possession of the premises, and also someone who is responsible for, and in control of, what condition the premises are in or what activities happen there. More than one occupier can exist for the same premises, so a tenant, a property manager and a winter maintenance contractor may each be in the picture, depending on the facts.

Section 3 sets out the duty: an occupier must take the care that is reasonable, taking all the circumstances into account, so that those who come onto the premises are reasonably safe while there. Two points follow from that wording:

• The standard is reasonableness, not perfection. The duty is one of reasonable care, so the presence of ice alone does not settle whether the duty was breached.
• What is reasonable depends on the circumstances of the case, such as the type of property, the likely foot traffic, the weather, and what inspection and maintenance practices were in place and followed.

Questions such as the salting schedule, who was responsible, when someone last attended the site and what records exist can be relevant. Their weight in any particular case depends on the evidence.

The notice deadlines that can end claims

These are notice periods, not limitation periods. The Limitations Act, 2002 separately sets a general two-year limit that runs from the day the claim was discovered (s. 4). When a particular notice period began turns on the facts, and a lawyer should confirm it immediately.

Both statutes include relief provisions:

• Missing or defective notice is not always a bar. Section 6.1(6) of the Occupiers' Liability Act and section 44(12) of the Municipal Act, 2001 (in Toronto, s. 42(8) of the City of Toronto Act, 2006) say that a missing or insufficient notice does not bar the action where a judge finds a reasonable excuse and finds that the defendant's defence has not been prejudiced. Whether a judge would accept an excuse depends on the facts and is not something to assume.
• Death. If the injured person has died as a result of the injury, missing the notice does not bar the action (Occupiers' Liability Act s. 6.1(5); Municipal Act, 2001 s. 44(11); City of Toronto Act, 2006 s. 42(7)).

Whether a notice period has already passed, or can still be met, is a question for a lawyer, and it is one that depends on the date of the fall.

Who a fall claim may be brought against

Identifying the right defendant can be a significant part of a fall claim. Under section 6.1, a snow-or-ice notice can go to an occupier or to a snow-removal contractor, and a notice given to either one is effective for the others (s. 6.1(7)). The table below gives common examples; it is a general illustration, not a rule, and the real answer depends on who had control of the location.

For sidewalks, section 44(9) of the Municipal Act, 2001 says a municipality is liable for injury from snow or ice on a sidewalk only in a case of gross negligence. Section 44(3) lists other defences, for example that the municipality had no knowledge of the road's condition and could not reasonably have been expected to learn of it. In the City of Toronto, the matching provisions are in s. 42(5) and s. 42(3) of the City of Toronto Act, 2006.

Where an occupier hires an independent contractor for snow removal, more than one party may be involved. Section 6 of the Act deals with when an occupier is, or is not, responsible for work done by an independent contractor, and the contract between them can matter. Whether the contract's terms are available before a lawsuit is started depends on the circumstances.

Evidence to preserve early

Evidence about a fall can be lost quickly, for example when conditions change or a business overwrites its recordings. Items a lawyer would typically want to know about include:

1. Photographs of the hazard (ice, spill, broken step, missing handrail), including wide shots that show the location.
2. An incident report. Whether a report was made, and who has a copy.
3. Witnesses, with contact details, since staff and bystanders can become hard to trace.
4. Video. Retention periods vary by business, and a written preservation request is something a lawyer can advise on.
5. Medical records that describe how the injury happened.
6. The footwear worn, kept as it was, because footwear can be raised by the other side.
7. Weather information for the time and place of the fall.
8. Written notice, within the applicable period where section 6.1 or section 44(10) applies.

Contributory negligence: what a defendant may argue

A defendant may say the fall was partly or wholly the injured person's own fault. Arguments that are sometimes raised include:

• Footwear: that the shoes were unsuitable for the conditions
• Attention: that the person was distracted or not looking
• Obviousness: that the hazard was visible and avoidable
• Route: that a cleared path was available
• Prior knowledge: that the person knew the area and the risk

Section 3 of the Negligence Act directs the court to divide the damages according to each party's degree of fault, where the plaintiff's own fault helped bring about the loss. As a purely illustrative example, if damages were assessed at $100,000 and the plaintiff were found 25% at fault, the award would be reduced by 25%, to $75,000. The share of fault is decided by the court on the facts.

What a slip and fall claim is worth

The value of a claim depends on the injury, the evidence of fault, and the records of loss. Categories of damages commonly claimed include:

• General damages for pain and suffering and loss of enjoyment of life
• Past and future income loss, including reduced earning capacity
• Future care costs such as treatment, medication, assistive devices and home modification
• Out-of-pocket expenses such as physiotherapy, prescriptions and travel
• Family Law Act claims: section 61 of the Family Law Act allows certain family members of an injured person to recover their pecuniary loss, including an amount for lost guidance, care and companionship

Two points differ from car accident claims:

• The auto tort deductible and thresholds are tied to automobiles. Sections 267.5 to 267.11 of the Insurance Act apply only to proceedings about bodily injury or death arising from the use or operation of an automobile (s. 267.4). A fall on premises is not that kind of proceeding.
• Statutory accident benefits are an auto insurance feature. The Statutory Accident Benefits Schedule provides its benefits under motor vehicle liability policies in respect of accidents (O. Reg. 34/10, s. 2). A person injured in a fall on someone's premises is usually not claiming under that Schedule, so any recovery would come from a different source, such as a claim against a responsible party or other insurance the person holds. A lawyer can advise on which applies.

How the claim proceeds

The usual steps in an Ontario civil claim include the following. The details depend on the case and the court.

1. Investigation: notice, preservation requests, weather data, witness statements, maintenance records
2. Claim issued before the limitation period expires (generally two years from discovery, Limitations Act, 2002, s. 4)
3. Documentary discovery: each party must disclose relevant documents in an affidavit of documents (Rule 30.03 of the Rules of Civil Procedure)
4. Examinations for discovery: parties are questioned by the other side under Rule 31
5. Medical assessments
6. Mediation: Rule 24.1 makes mediation mandatory in specified actions, including actions commenced in the City of Toronto, the City of Ottawa and the County of Essex (Rule 24.1.04)
7. Pre-trial and trial, for matters that are not resolved earlier

How long a claim takes, and whether it resolves before trial, depends on the injury, the evidence and the parties. A lawyer can explain the likely stages for a particular case.