Slip and fall: the inspection gap that trips up defendants

In slip and fall litigation, the floor is rarely where the case is decided; the real battleground is the paper trail, or the lack of one. Since the 1991 Supreme Court of Canada’s ruling in Waldick v. Malcolm, [1991] 2 SCR 456, occupiers have had an affirmative duty to make their premises reasonably safe, and that duty reaches beyond mopping up a spill. Rather, one must now ask if a system was in place to catch the problem before anyone hits the floor.

What does a reasonable slip and fall inspection system require?

Under Ontario’s Occupiers’ Liability Act (OLA), the standard of care is reasonableness and not perfection. The same standard can also be found in common law, such as cited in Rahnama v. Loblaws City Market, 2024 BCSC 2120.

As such, occupiers are not expected to eliminate every possible hazard on their premises. However, they are expected to have a working system to detect and address hazards, and to follow through on it.

At most, there’s no fixed formula that applies for everything. Instead, courts look at several factors, such as the:

• type of premises
• volume of foot traffic
• nature of foreseeable risks

For instance, what satisfies the standard in a low-traffic courthouse will not satisfy it in a high-volume retail environment.

For commercial premises such as supermarkets, common law has confirmed that liability can be avoided where an occupier shows two things:

• that reasonable policies and procedures were put in place, including regularly scheduled sweeps and inspections; and
• that those policies were actually followed on the day in question

Commercial occupiers with no safety policy at all face the stiffest exposure. Where no policy exists, an occupier will be liable for any slip and fall injury.

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The standard of care for occupiers

In Martin v. AGO et al, 2022 ONSC 1923, the Ontario Superior Court dismissed a slip and fall claim after a lawyer slipped on water in the lobby of the Hamilton Court House. The Court found that the occupiers met the standard of care because their system included:

• floor inspections by a day porter at least four times a day on each floor
• a posted work order number allowing anyone in the building to report a spill
• mats placed inside each of the three public entrances
• wet floor signs installed daily throughout the ground floor

The court also noted that the spill itself was barely visible. Other visitors had walked through the area without noticing the water on the ground. What also made the difference is the combination of scheduled inspections and an on-call reporting system; a work order system on its own would not have been enough.

On the other hand, a restaurant owner who maintained his own parking lot was found liable after a patron slipped and broke her leg. In Flentje v. Nichols, 2006 CanLII 32904 (ON SC), the court described defendant’s approach as haphazard, even though he was “diligent” and “had his own version of a system,” since this “system of winter snow and ice removal was not reasonable for a commercial establishment.”

As shown by these cases, what matters is whether the system worked on the specific day of the incident, not whether the occupier was generally conscientious. Common law seems to also have a higher standard when it comes to commercial establishments.

When this standard of care was breached, damages can be claimed against the occupier in a slip and fall case:

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How do plaintiffs use inspection records to establish breach?

Plaintiffs in slip and fall cases have access to one of the most useful tools in litigation before a single witness is called: the defendant’s own documents. Through documentary discovery, they can obtain important pieces of evidence, such as:

• inspection logs
• maintenance schedules
• internal policies

Here, the aim is to measure the gap between what the defendant said it would do and what it actually did.

At examination for discovery, plaintiff’s counsel can focus on the following areas:

• whether a maintenance policy or standard exists and how it was developed
• whether it was adequate for the type and volume of traffic on the premises
• whether it was followed on the day of the incident
• who was trained and responsible for compliance

Timing also matters in the early stages. Plaintiff’s counsel should move quickly to speak with the client in detail, visit the accident site, and secure any available surveillance footage before it is overwritten. The reason is that a client’s recall of events will eventually fade, and conditions at the scene can change rapidly. In snow and ice cases specifically, conditions can deteriorate or improve within hours of an accident, making contemporaneous documentation especially valuable.

Liability of municipalities on slip and falls

Municipal defendants face particular exposure from their own records. For instance, under s. 44(1) of Ontario’s Municipal Act, municipalities can be held liable for leaving a road or sidewalk in a state of non-repair. Once a plaintiff establishes non-repair and causation, the municipality must show it had a reasonable inspection and repair system in place.

Municipal records can be a plaintiff’s strongest evidence because they set the standard against which the municipality is judged. In Bourgoin v. Leamington (Municipality), 2006 CanLII 11904 (ON SC), it was held that the city’s own internal policy required patching sidewalk depressions that exceeded half an inch in depth. However, the place where the plaintiff fell exceeded that threshold. The court further held that budget constraints did not excuse the failure to follow the city’s own standard.

In Cerilli v. Ottawa (City), 2006 CanLII 40785 (ON SC), the city’s decision to skip its own snow removal quality standards, apparently to cut costs, was found to amount to gross negligence. The court confirmed that a municipality or city cannot use its own departure from its standards as protection against liability.

How do courts weigh maintenance logs against plaintiff expert evidence?

In slip and fall disputes, a maintenance log does not automatically protect an occupier. Courts rather look at two things:

• whether the records reflect a system that was actually working, and
• whether the log is complete or conspicuously silent about the day in question

Common law on maintenance logs

When logs are absent entirely, courts have drawn negative inferences. In Britt v. Zagjo Holdings Ltd., (1996) CarswellOnt 1186 (Gen. Div.), a property owner kept no records showing its snow maintenance system was operating and had given the contractor no clear instructions. The owner was found liable despite having hired a contractor, because nothing showed the system had actually functioned.

In Braks v. Dundeal Canada (GP) Inc, 2022 ONSC 3978, the building operator described what the day porter should have done after over-spraying cleaning product near an elevator. However, no evidence was led at trial as to what policies existed or whether they had been followed. The court then concluded that in the absence of such evidence, those steps were simply not taken. The absence of proof of a system was treated as proof the system did not exist.

In jury trials, plaintiff-side expert evidence has the most room to operate. The Ontario Court of Appeal confirmed in Kerr v. Loblaws Inc., 2007 ONCA 371 that a jury is not bound by inspection intervals that were accepted or rejected in prior cases, but it must assess reasonableness on the specific evidence before it. That creates space for plaintiff experts to introduce industry benchmarks or engineering standards that a defendant’s records fail to satisfy.

Both sides should preserve evidence from the outset, since if documentation is not secured promptly, the court may draw a negative inference. In the most serious cases, intentional destruction of records can support a spoliation finding, though that requires proof of both intent and a purpose to gain a litigation advantage.

What should an occupier prove to rebut liability in a slip and fall?

Once a plaintiff establishes a dangerous condition and a causal link to the injury, a prima facie case for personal injury is made out. The onus then shifts to the occupier to show it took reasonable steps to prevent the harm.

As applied to occupiers’ liability cases, Greer v. Tp. Mulmur, 1926 CanLII 402 (ON SCAD) states that when the absence of repair is shown, the burden moves and “it is then for the municipality to show that the want of repair existed notwithstanding all reasonable efforts on the part of the municipality to comply with the law.”

Two things that the occupier must prove

In practice, the occupier must satisfy two points:

• that a reasonable inspection and maintenance system was in place
• that the system was followed

If a policy existed but was not followed, the occupier remains liable even where the policy itself was reasonable.

Liability of independent contractors

Where an independent contractor caused the hazardous condition, s. 6(1) of the OLA provides a potential route to avoiding liability. However, it requires more than having hired someone.

In such a case, the occupier must show that it:

• acted reasonably in selecting the contractor,
• verified the contractor’s competence, and
• confirmed the work was properly performed

Outsourcing the work without monitoring whether it was done is not enough to discharge the occupier’s duty.

Misfeasance vs. Nonfeasance in slip and falls

The distinction between misfeasance and nonfeasance also applies here.

Where an occupier did nothing at all, the case against it tends to be more direct. Where it tried to address the hazard but did so deficiently, the plaintiff must establish the inadequacy of that effort.

Common examples include:

• incomplete winter maintenance
• improperly dried floors
• failure to put up warning signs after applying cleaning products

Slip and fall: the inspection gap is the case

Slip and fall litigation does not turn on a wet floor. It turns on whether anyone was looking for one, how often, and whether anyone wrote it down. The affirmative duty from Waldick in 1991 was about the systems behind a safe space, and whether those systems held when it mattered.

For lawyers on both sides, the lesson is the same. Plaintiffs should be looking for the inspection gap in discovery, and defendants should be filling it long before anyone hits the floor.

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