Expert Evidence in Occupiers’ Liability Trials Involving Flooring Material

Expert Evidence in Occupiers’ Liability Trials Involving Flooring Material

A recent Ontario Court of Appeal decision, Tondat v. Hudson’s Bay Company, 2018 ONCA 302 (“Tondat”), upheld the trial judge’s finding of liability in a slip and fall accident: http://canlii.ca/t/hr6rs.  The case arises from a plaintiff’s slip and fall on a wet tile floor in the Bay.

The sole issue on appeal was whether the trial judge erred by failing to require the plaintiff prove at trial that the wet floor in question constituted a specific, objectively “unreasonable risk of harm”.

The relevant legislation is section 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Act”) which provides that “an occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises…are reasonably safe while on the premises”.  The Act imposes an affirmative duty requiring occupiers to take reasonable care in the circumstances to make their premises safe.  The factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation: Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456, at 472. (Tondat at para 5).  The plaintiff in an occupiers’ liability case has the onus to prove that some act or failure to act on the part of the occupier caused her injury.

 

Madam Justice Epstein, writing for the Court of Appeal, held that the trial judge had correctly conducted the inquiry required by s.3(1) of the Act.  The trial judge had:

(1) determined the cause of the plaintiff’s fall was the wet floor; and

(2) then considered whether the defendants had taken reasonable care to prevent a fall on a wet floor. (Tondat at para 7)

In dealing with the second issue, the defendants’ entire defence was based on whether its’ duty as occupiers were discharged by its choice of flooring.  In so doing, the defendants relied on expert evidence that the flooring material had a superior coefficient of friction when wet, such that the flooring was reasonably safe whether wet or dry.  The trial judge discounted the expert’s evidence and, ultimately, rejected the defendants’ defence.  The Court of Appeal held that it was reasonable for her to do so, specifically: (1) the plaintiff was not obligated to call her own expert evidence to rebut the defendants’ expert; and (2) the trial judge was justified in finding that the flooring was not inherently safe based upon the expert’s simulated testing of the flooring.

The Court of Appeal did not close the door to the defence argument that the choice of superior flooring can go to prove an occupier discharged its duties pursuant to the Act, as has been held in other appellate cases (see: Miller v. Royal Bank of Canada 2008 NSCA 118 (CanLII)).

 

The key takeaways from Tondat are:

(1) When obtaining expert evidence to support the premise that the defendants discharged their duty as occupiers by installing superior flooring materials, it is key that the expert conducts simulated tests mirroring the conditions existing at the time of the fall.

(2) Tondat informs us as to what specific evidence the court looks for in making out a successful defence.  Claims adjusters and examiners ought to gather as much pre-claim information about the conditions at the time of the fall as possible.  Defence counsel should obtain from the plaintiff and other witnesses additional information about conditions to provide to the expert which will inform the simulated tests and ultimately, the expert’s opinion.

Insights & Commentary

ONCA Clarifies Existing Jurisprudence Regarding the Disclosure of Settlement Agreements - photo
  • Commentaries

ONCA Clarifies Existing Jurisprudence Regarding the Disclosure of Settlement Agreements

By Landan Peleikis Introduction The Ontario Court of Appeal’s decision in Poirier v. Logan[1] serves as a stark reminder of the detrimental consequences that result from failing to immediately disclose settlement agreements to non-settling parties. Background The respondents, Jeremy Logan and Morey Chaplick owned the respondent M.C. Capital Corp. (“M.C. Capital”). M.C. Capital ran a … Continued

The Court of Appeal upholds 26-month notice period in Currie v. Nylene Canada Inc., 2022 ONCA 209 - photo
  • Commentaries

The Court of Appeal upholds 26-month notice period in Currie v. Nylene Canada Inc., 2022 ONCA 209

In Currie v. Nylene Canada Inc., 2022 ONCA 209, the Ontario Court of Appeal upheld an award of a 26-month notice period on the basis of “exceptional circumstances”. Background The plaintiff, Diane Currie, brought an action against her former employer after she was terminated.  Ms. Currie started working for her employer in September 1979.   In … Continued

by

A Great New Resource: Civil Procedure and Practice in Ontario - photo
  • Commentaries

A Great New Resource: Civil Procedure and Practice in Ontario

Stieber Berlach LLP is pleased to share an important new free textbook, Civil  Procedure and Practice in Ontario, which includes contributions from Katie Di Tomaso as an author of two chapters annotating sections 1-5 and 15-24 of the Limitations Act, 2002 and Christian Breukleman as an author of the chapter on Rule 29 of the Rules of Civil Procedure dealing with Third Party Claims. CPPO is … Continued

by

Human Rights Tribunal Finds “Good Faith” COVID-19 Restrictions Can Still Be Discriminatory, Sets Benchmark Monetary Award. - photo
  • Commentaries

Human Rights Tribunal Finds “Good Faith” COVID-19 Restrictions Can Still Be Discriminatory, Sets Benchmark Monetary Award.

JL v. Empower Simcoe 2021 HRTO 222 In a recent decision confirmed by the Human Rights Tribunal of Ontario (the “HRTO”) May 7, 2021 (2021 HRTO 348), the HRTO has ruled that COVID-19 restrictions and protocols accepted to benefit the health of the public can still be discriminatory under the Ontario Human Rights Code (the “Code”).  Restrictions … Continued

by

All News