What Happens If I’m Injured in a Slip or Trip and Fall in Ontario?

By Eddie Wiley

Personal Injury Lawyer

Hillier & Hillier Personal Injury Lawyers

If you have been injured in a slip or trip and fall accident in Ontario, you may be able to recover compensation from one or more parties responsible for the property.

Hillier & Hillier has extensive experience representing individuals injured in slip or trip and fall claims. Call Hillier & Hillier at 905-453-8636 for a FREE CONSULTATION. Alternatively, click here to submit an online request for a FREE CONSULTATION.

The Occupiers’ Liability Act governs most slip or trip and fall claims while the Municipal Act applies to slip or trip and fall claims on municipal property.

An occupier is a person in physical possession of the property or a person who has control over the property, the activities carried on there, or the people allowed to enter the premises. Section 3 of the Occupiers’ Liability Act requires occupiers to take reasonable care to keep you safe from harm while on their property. Failure to adhere to this standard may result in the occupier being liable for your injuries. For more information on slip or trip and fall claims, click here.

Slip or trip and fall claims may require extensive investigation and, depending on the case, collaboration with multiple experts to successfully pursue a claim for damages. They also involve strict deadlines, which is why it is important to promptly consult with a lawyer.

What Should I Do Immediately After a Fall?

Immediately after your fall, you should do the following:  

• Take photographs of the hazard that caused your fall, whether it be a slippery substance, ice, uneven flooring, or another dangerous condition. For hazards such as uneven flooring, it may be helpful to place an item beside the hazard for scale. The more photographs, the better.

• Identify witnesses and obtain their contact information.

• Ask that surveillance footage be preserved and take photographs of any surveillance cameras as proof that cameras were present and may have captured the incident.  

• Report the incident to a person in charge at the property. Obtain a copy of an incident report if possible.

• Preserve the footwear and clothing you were wearing, as your footwear may be relevant to the issue of liability. Often, defendants will argue that you were wearing inappropriate footwear, which caused your fall.

• Seek medical treatment for your injuries and accurately report the circumstances surrounding your fall.

• Retain counsel as soon as possible to ensure important deadlines are not missed and crucial evidence is preserved.

What Deadlines Apply to My Slip or Trip and Fall Claim?

If your fall was caused by snow or ice, you must generally notify the occupier of the property within 60 days of your fall of your intention to bring a claim. Otherwise, you might lose your ability to sue unless you can establish that you had a reasonable excuse for the delay and the defendant was not prejudiced in its defence of your claim. This notice period does not apply where the injured individual dies from their injuries.

If your fall occurred on municipal property, you must generally notify the relevant municipality within 10 days of your fall of your intention to bring a claim. Otherwise, you might lose your ability to sue unless you can establish that you had a reasonable excuse for the delay and the defendant was not prejudiced in its defence of your claim. This notice period does not apply where the injured individual dies from their injuries.

For all other types of claims, the above notice periods will not generally apply. However, it is nevertheless prudent to place the potential defendant on notice of a claim and request that all relevant evidence be preserved. This way, if the defendant fails to preserve crucial evidence despite being placed on notice of a claim, you may ask the trier of fact, whether a judge or jury, to draw an adverse inference from the defendant’s failure to preserve or produce the evidence. In other words, the trier of fact may infer that the defendant failed to produce this evidence because it was not helpful to the defence.

Finally, you generally have two years from the date you discovered the material facts of your claim to commence a lawsuit. This may occur as early as the date of your fall.

Why Is Preserving Evidence Important?

Preserving evidence that depicts the hazard is important because hazards will typically disappear or be corrected. Ice will melt, spills will be cleaned, and uneven surfaces will be repaired.

This is why taking photographs and preserving other types of evidence, such as surveillance footage and witness statements, is crucial. Without photographs or CCTV footage depicting the hazard, it may be more difficult for the trier of fact, whether a judge or jury, to assess whether the condition was dangerous. By contrast, photographs or CCTV footage may help the trier of fact assess the nature and severity of the hazard.

Certain types of evidence can be easily lost. Witnesses may disappear, surveillance footage may be lost, and the hazard itself will often be corrected prior to litigation.

This is why promptly consulting with a lawyer is important. A lawyer can quickly place the proper parties on notice and request that relevant evidence, including CCTV footage, be preserved. If evidence is lost after a preservation request, the court may be asked to draw an adverse inference.  

For the same reason, it is important for you to preserve any relevant evidence in your possession, such as footwear, clothing, witness statements, and photographs. The failure to preserve such evidence might result in an adverse inference being made against you.

Even if you did not take photographs or obtain CCTV footage capturing the hazard, you may still be able to prove its existence and that it caused your fall by other methods, such as witness statements and incident reports.

The more evidence you have depicting the hazard and establishing that it caused your fall, the stronger your claim may be.

Who Is Responsible for My Slip or Trip and Fall in Ontario?

An occupier of the premises where you sustained your injury may be legally responsible for your slip or trip and fall.

An occupier is a person who was in physical possession of the property where you fell, or had control over the property, the activities carried on there, or the people permitted to enter.  

Occupiers often include the owner of the property as well as property managers and maintenance contractors, assuming they exercised sufficient control over the conditions of the property.

Occupiers may also be vicariously liable for the actions of their employees where an employee’s negligence created or contributed to the hazard that caused your fall.

Slip or trip and fall claims can occur on virtually any type of property open to the public, including but not limited to retail stores, grocery stores, small businesses, parking lots, shopping plazas, private homes where you are lawfully present, restaurants, bars, and nightclubs. 

A lawyer will often be able to ascertain the owner of the property through a title search and place the owner on notice of your claim. The owner will often identify any maintenance contractors or other relevant parties that should be placed on notice of the claim.

If your slip or trip and fall occurred on municipal property, the municipality, maintenance contractors, or other parties it retained may be legally responsible if they contributed to the hazard.

If your slip or trip and fall occurred on municipal property, your claim against the municipality will generally be governed by the Municipal Act. However, common law principles of negligence will generally apply to any contractors, such as winter maintenance contractors, who are also defendants to your claim.

If your slip or trip and fall occurred elsewhere, such as a business open to the public, your claim will generally be governed by the Occupiers’ Liability Act.

These regimes involve different notice periods and legal standards.

What Do I Have to Prove in a Slip or Trip and Fall Claim?

You must prove the following elements in a slip or trip and fall claim:

The Defendant Owed You a Duty of Care: you must prove that the defendant was an occupier as defined by section 1 of the Occupiers’ Liability Act. The Act imposes a duty of care on occupiers which is owed to patrons or invitees to their property.

Breach of the Standard of Care (Negligence): The Occupiers’ Liability Act requires occupiers to adhere to a certain standard of care. Specifically, a defendant must take reasonable care in the circumstances to keep you safe from harm while on their property as required by section 3 of the Occupiers’ Liability Act. You must prove the occupier breached this standard of care.

Typically, proving this element of your claim involves identifying a hazardous condition on the property that was caused by, or allowed to persist because of, the defendant’s negligence or breach of the standard of care.

It is important to note that occupiers are not held to a standard of perfection, but rather to a standard of reasonableness. Sustaining an injury on an occupier’s property is not enough to recover compensation. You must prove the occupier acted unreasonably in a way that caused or allowed the hazardous condition to persist. Depending on the case, you may need to retain an expert, such as an engineer or other specialist who can comment on industry standards.

Determining whether an occupier’s conduct is reasonable usually involves considering the foreseeability and gravity of harm posed by the hazard, the cost of preventative measures, industry standards, custom, and practice. Reasonableness is assessed based on the unique facts of each case.

The Defendant’s Negligence Caused Your Injury and Damages: You must prove that the defendant’s breach of the standard of care caused your injury and resulting damages. You must prove that your injury would not have occurred but for the defendant’s breach of the standard of care. For example, the failure to salt a parking lot after a major winter storm (breach of the standard of care) may allow ice to accumulate and cause a person to slip and sustain injury. If the hazardous condition and your injury would have occurred even if the defendant did not breach the standard of care, then your claim may fail on the issue of causation.  You may need to retain an expert to comment on the issue of causation depending on the facts of your case.

Damages: you must prove that you incurred damages as a result of the injuries caused by the defendant’s negligence.  The available types of compensation or heads of damages include:

• general damages for pain and suffering

• loss of past and future income

• the cost of medical, rehabilitation, and attendant care

• the cost of housekeeping and home maintenance assistance

• out-of-pocket expenses incurred because of your injury

You will often need expert evidence from medical specialists to comment on the diagnosis, prognosis, impact of your injury on your ability to work, and any care or assistance you may require because of your injury. You may also need evidence from an accountant to calculate claims for past and future income loss, future care costs, and housekeeping and home maintenance assistance.  

Note that you generally will be unable to claim damages from the defendant arising from unrelated injuries, medical conditions, or other factors not caused by the accident.  For example, you will generally be unable to claim a loss of future income if you suffered from other medical conditions or injuries that would have prevented you from working in any event.

For more information on the heads of damages, click here.

What Do I Have to Prove in a Slip or Trip and Fall Claim Against a Municipality?

You must prove all the same elements (duty of care, breach of the standard of care, causation, and damages) against a municipality. However, proving a breach of the standard of care is often more challenging and requires a different analysis than the one set out above. 

If you slipped on ice or snow on municipal property, you must prove that the municipality was “grossly negligent” in failing to address these conditions under subsection 44(9) of the Municipal Act. This is a more onerous standard than mere negligence under the Occupiers’ Liability Act. Gross negligence typically involves a marked departure from the standard of a reasonable person.

For this reason, claims arising from slips or trips and falls caused by ice or snow on municipal property are more challenging to prove than similar claims arising on an occupier’s property.

However, if the municipality retained a contractor to complete snow clearing and salting operations on municipal sidewalks, you may also pursue a claim against the contractor. A claim against the contractor will typically be governed by common law principles, which require that you prove the contractor was negligent rather than grossly negligent, in addition to the other elements of a lawsuit (duty of care, causation, and damages).

If your slip or trip and fall was caused by something other than ice or snow on municipal property, a different legal test applies. In this case, you must establish that the municipality failed to keep the subject property in a reasonable state of repair in the circumstances under subsection 44(2) of the Municipal Act. However, the municipality may have a statutory defence under subsection 44(3) of the Municipal Act if it can establish one of the following:

• it did not know and could not reasonably have been expected to know about the state of repair of the property;

• it took reasonable steps to prevent the default from arising; or

• at the time of your fall, the municipality complied with minimum standards set out in the regulations under the Municipal Act.

Minimum standards address matters such as sidewalk surface discontinuities, snow accumulation, ice formation, treatment of icy sidewalks, and frequency of inspections. Where these standards are met, the municipality may have a statutory defence.

Again, for slip or trip and fall claims caused by something other than ice or snow on municipal property, you may have a claim against a contractor retained by the municipality. Common law principles of negligence generally apply to claims against contractors retained by the municipality. 

What If I Was trespassing?

If you were trespassing when you fell, section 4(1) of the Occupiers’ Liability Act imposes a duty on the occupier to avoid deliberately and intentionally causing you harm. This is a significantly lower standard for an occupier to meet, and it is much more challenging to prove negligence against an occupier if you were trespassing.

What If I Was Partly at Fault?

If you were partly at fault, your award for damages may be reduced to reflect your degree of fault. This is known as the defence of contributory negligence. For more information on how your award for damages may be reduced to reflect your degree of fault, click here.

Examples of where a finding of contributory negligence may be made include the following:

• inappropriate footwear such as high heels in a snowstorm

• ignoring warning signs

• being distracted

• intoxication

• rushing

• not wearing prescription glasses

When Should I Contact a Lawyer?

You should contact a lawyer as soon as reasonably possible after your fall. This will help ensure that you meet appropriate deadlines, such as the 60-day notice requirement for claims arising from snow or ice on an occupier’s property, and the 10-day notice requirement for claims arising from a fall on municipal property. Your lawyer will also move quickly to investigate and ensure relevant evidence is preserved.

The lawyers at Hillier & Hillier have represented numerous individuals injured in slip or trip and fall claims. If you have been injured in a slip or trip and fall incident, call Hillier & Hillier at 905-453-8636 for a FREE CONSULTATION or click here to submit an online request for a FREE CONSULTATION.