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Knowledge of Exact Cause of Fall Not Required to Establish Liability

In Branton et al v. 2008422 Ontario Ltd. c.o.b. as Euro-Ex, 2021 ONSC 7548, the defendant brought a summary judgment motion in an occupiers’ liability claim. The plaintiffs brought a cross-motion seeking a finding of liability against the defendant.

The defendant was engaged in road construction work on the street where the plaintiffs lived. At the time of the incident, the defendant was installing new curbs. During this construction work, the plaintiffs did not have access to their driveway.

The construction created a temporary ditch at the foot of the plaintiffs’ driveway. In order to facilitate access to the roadway, the defendant constructed a temporary dirt ramp. There was a drop-off on both sides of the ramp.

Late one evening, the plaintiff returned to his house and fell, sustaining a foot injury. He did not know what caused him to fall but indicated that, when he stepped with his left foot, there was “air”.

The plaintiffs’ engineering expert stated that the ramp posed a significant hazard. The edges of the ramp were not demarcated. There was also an excessive elevation difference and excessive side slope. Further, the lighting in the area was low.

Justice Mitchell held that the defendant breached the statutory duty of care.

Regarding whether the breach of the duty of care caused the plaintiff’s fall, the plaintiff stated on discovery that, when he attempted to step, he fell down but he did not know what caused him to fall.

Justice Mitchell stated that, although the plaintiff could not specifically comment on the cause of the fall, he knew the precise location of the fall.  Justice Mitchell indicated that it can be inferred that the drop-off on the side of the ramp caused the fall.

Justice Mitchell dismissed the defendant’s summary judgment motion and granted partial summary judgment to the plaintiffs on liability.