The Occupiers’ Liability Act places a positive duty on occupiers to take such care as is reasonable in the circumstances to ensure that persons entering upon their premises are reasonably safe when doing so. The duty of care in each case is fact specific and takes into consideration, amongst other things, the nature of the premises and the activities carried out thereon.
As such, in alleging a breach of this positive duty, a plaintiff cannot expect the Court to presume negligence on the part of an occupier of a premises, nor can a plaintiff presume that some act, or failure to act, on the part of the occupier caused the plaintiff’s alleged injuries. Such was the situation in Cannito v. Madison Properties Inc., 2018 ONSC 6190.
On June 27, 2012, the plaintiff, Maria Pia Cannito, fell and injured herself while walking through a parking lot of a plaza owned by the defendant, Madison Property Inc. Ms. Cannito alleges that she tripped and fell over the corner of a speed bump, which she claims was insufficiently marked and maintained by the defendant.
In a sworn affidavit, and during her testimony at trial, Ms. Cannito stated that she drove to the York Plaza to do her monthly pension cheque banking. After completing her transaction, she left the bank and headed towards the main parking lot where she had earlier parked her vehicle. In the process of walking to her vehicle, she tripped and fell, striking her chest, and scraping her wrists and knees.
Being scared, embarrassed and in pain, she got up and retuned to the bank. When asked, she refused medical assistance. Shortly afterwards however, she retuned to her vehicle before driving home.
Ms. Cannito conceded that at the time of the incident, and shortly after she left the plaza, she did not know what caused her to trip and fall. She further conceded that she did not mention to any of the staff at the bank that she tripped and fell on the speed bump.
Approximately two weeks after the trip and fall, Ms. Cannito returned to the plaza with her son-in-law to show him where she fell. Her son-in-law took photographs of the approximate location of her fall, which included the speed bump and pedestrian crossing. It was at this time that the pair noticed what appeared to be a missing piece on the southwest corner of the speed bump, which Ms. Cannito readily claimed caused her to trip and fall.
The issues the Court took into consideration were:
- Whether, on a balance of probabilities, Ms. Cannito was able to prove that the defendant breached its duty of care under section 3(1) of Occupiers’ Liability Act; and
- If a breach of the duty of care was established, whether Ms. Cannito could prove on a balance of probabilities that, but for the negligence of the defendant, the injuries would not have occurred.
Justice Alfred O’Marra dismissed the plaintiff’s action against the defendant with costs.
In reaching his decision, his Honour found that there was no evidence indicating that the installation of the speed bump was done for any other purpose than to take reasonable steps to ensure the premises was safe for its customers crossing the laneway to and from the parking lot and the stores in the plaza, by employing appropriate means to reduce the speed of passing vehicular traffic.
Further, his Honour found that the markings on the speed bump was compliant with the standard practice of walking surfaces, and consequently provided advanced warning of a raised pavement surface, thus making it readily visible to prudent road users.
In weighing whether the evidence was sufficient in order to establish that, but for the negligence of the defendant, the injuries would not have occurred, His Honour opined that “there is no objective proof of causation. The plaintiff must be able to establish that an act on the part of the occupier caused her injury. An inference of causation must be based on objective facts rather than conjecture or speculation.”
When Ms. Cannito fell, she did not know what the cause of the fall was. It was only when she returned two weeks later with her son-in-law, did she notice a missing piece of the speed bump, which she then concluded was the cause of her trip and fall.
Citing Lansdowne v. United Church of Canada, 2002 BCSC 1604, His Honour went on to explain that “the Court cannot presume negligence on the part of an occupier of a premises. Nor can it presume that some act, or failure to act, on the part of the occupier caused the plaintiff to fall.” The evidence must be objective and not based on speculative rationalization.
Without objective evidence from which a reasonable inference of causation can be drawn, Ms. Cannito failed to prove on a balance of probabilities that an unsafe condition caused her to trip and fall. At best, she was only able to advance a theory based on a subjective belief owing to the “missing piece” of the speed bump. There was no objective evidence connecting the plaintiff’s fall with any deficiency in the speed bump or its condition at the time of her fall.
If the Court is forced to speculate in order to find that the defendant breached its duty under the Occupiers’ Liability Act, then the plaintiff’s evidence falls short of establishing the nexus between the cause and resulting damages, thereby resulting in the plaintiff’s failure to discharge the burden of proof.
 Souliere v. Casino Niagara 2014 ONSC 1915 at para. 49
 Bauman v. Stein, 1991 B.C.J. No. 548 (BC CA)
 Vandergaast v. Atterton,1988 B.C.J. No. 2695 (C.A.)