To succeed in an occupier’s liability claim, a plaintiff must be able to point to some act or failure to act on the part of the occupier that caused the plaintiff’s injury. An occupier need not remove every possible danger – the standard of care is one of reasonableness and not perfection.
In Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (“Nandlal”), Justice Perell of the Ontario Superior Court of Justice relied on this test in granting summary judgment to the defendant Toronto Transit Commission (“TTC”).
In Nandlal, the plaintiff had slipped and fell down a staircase at a TTC subway station. She brought a claim against the TTC under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, claiming that she slipped and fell because of debris on the stairs, and that the TTC had failed to carry out its duty of care to take reasonable steps to keep the subway station reasonably safe.
Let’s rewind to January 2014, when the Supreme Court of Canada released Hryniak v. Mauldin, 2014 SCC 7 (“Hryniak”). In Hryniak, the Supreme Court held that there is a two part test for determining whether a court should grant summary judgment:
1. If, based on the evidence before the court, there is no genuine issue requiring a trial with respect to a claim or defence, summary judgment is appropriate.
2. If there appears to be a genuine issue requiring a trial, the Court may use its new fact-finding powers under Rules 20.04(2.1) and (2.2) to grant summary judgment, provided that their use is not against the interest of justice.
In Nandlal, Justice Perell did not have to go any further than the first step in concluding that this case required summary judgment.
There was no objective evidence to confirm that there was debris on the stairs at the time of the plaintiff’s slip and fall. The TTC had a reasonable system of maintenance in place which required personnel to monitor the transit station for hazards. Even if there had been debris on the stairs, or if the stairs had been slippery, the Court concluded that the TTC was not, and could not, be expected to continuously and immediately cleanup after its patrons who litter the premises.
There was no genuine issue for trial. There was enough evidence for the Court to conclude that the TTC took steps to make its premises as safe as in all the circumstances was reasonable.