Spring is finally upon us and with the rising temperatures inevitably comes rain. It is not uncommon to find wet and slippery entryways in many high traffic areas around the city, including stores and restaurants, increasing the likelihood of slip and falls.
Section 3(1) of the Occupiers’ Liability Act (“OLA”) requires the occupier of a premises to take such care as is reasonable in the circumstances in order to ensure that those who enter onto the premise are reasonably safe while there. This means that when you visit a department store, for example, it is that department store’s duty to take the steps reasonably necessary to ensure your safety.[i]
The Court of Appeal recently addressed this duty in Tondat v Hudson’s Bay Company, where the Plaintiff entered a mall on a rainy day and slipped and fell after stepping on a wet, tile floor. In applying the OLA requirement, the Court of Appeal upheld the trial decision of Justice André, who found that Hudson’s Bay had not acted reasonably in the circumstances to ensure the safety of those who entered the mall.[ii]
At Trial Hudson’s Bay claimed it had acted reasonably, providing expert evidence that the tile floor was designed to be slip-resistant when wet. However, the Court rejected this evidence because it did not take into account other factors that could affect the slip-resistance of a floor in a high traffic area, such as the type of footwear worn by patrons and the possibility of other substances on the floor. Also, the Court found that, at the time of the fall, there was only one maintenance worker assigned on duty for the entire mall, and there was no record of any maintenance done in the area where the Plaintiff fell.
Another factor considered by the Court was that of contributory negligence; meaning, the extent to which the Plaintiff’s actions contributed to his or her injury. In slip and fall cases, factors that may lead to a finding of contributory negligence include the type of footwear the Plaintiff was wearing and whether they were acting recklessly by running or not paying attention to their surroundings.
The Court of Appeal upheld the finding that contributory negligence was not a factor in this case. This determination was made based on there being no evidence that the Plaintiff was in a hurry, and that she was wearing shoes with rubber soles and did suffer from any medical condition that could cause her to fall.[iii]
If you have been injured in a slip and fall, the lawyers at Bogoroch & Associates LLP can help you understand your legal rights and how to apply the facts of Tondat v Hudson’s Bay Company to your case.
[i] Occupiers’ Liability Act, RSO 1990, c O2.
[ii] Tondat v Hudson’s Bay Company. 2018 ONCA 302 (CanLII).
[iii] Tondat v Hudson’s Bay Company, 2017 ONSC 4595 (CanLII).