Gravelle, Court File No. CV-09-114.
On December 4,
2014, Chantal M. Brochu of Buset &
Partners LLP obtained a judgment in
favour of homeowners being sued for a
slip and fall on their front steps
following a four-day jury trial in
Thunder Bay, Ontario. Damages were
assessed at over $1M.
delivered newspapers to the defendants’
home daily for 6 months. He slipped and
fell on the defendants’ front porch
steps on a frosty October morning in
Thunder Bay. Since no one, not even the
plaintiff, saw any ice, the plaintiff’s
case turned on a theory that the
defendants had neglected to replace a
perpetually leaking eavestrough that
left a frozen puddle of water on the
steps. The defendants were generally
acknowledged, even by the plaintiff, to
have been conscientious homeowners with
a well-maintained property.
theory rested on the combined effect of
three pieces of evidence: (1) the
presence of discolouration consistent
with moisture on the top step, visible
in a picture taken the day after the
accident; (2) the replacement of the
eavestrough shortly after the accident
(the defendants denied any connection
between the replacement and the
accident); and (3) the testimony of a
former friend of the defendants who
claimed to have observed puddles on the
steps from a leaking eavestrough.
The jury concluded
that the defendants had met the duty
imposed on them by the Occupiers’
Liability Act to take reasonable
care to ensure their premises were safe.
Sometimes accidents happen without the
homeowner being at fault.
Loblaws Cos, 2014 ONSC 1949, 2014
CarswellOnt 3872, aff’d 2015 ONCA 172,
2015 CarswellOnt 3586.
On December 19,
2007, the 90-year-old plaintiff was
shopping at a bulk item grocery store.
Another patron (the individual
defendant) pushed a shopping cart into
him. The shopping cart was overloaded,
which may have prevented the individual
defendant from seeing the plaintiff in
his path had he not been distracted by
his friend. The plaintiff was seriously
injured and spent the last year of his
life in the hospital. His damages were
assessed at over $500,000.00.
Chantal M. Brochu
of Buset & Partners LLP successfully
defended Loblaws both at trial and on
Liability turned on
whether the store employees ought to
have intervened to prevent the
individual defendant from pushing what
was described as a dangerously
overloaded shopping cart from the cash
registers to the exit.
In reasons for
judgment released March 26, 2014,
following a four-day trial in December
2013, the trial judge found that there
was “no doubt that if the cashier
observed an obviously overloaded cart,
it would be incumbent on the employee to
try to prevent the customer from moving
the cart until it was in a position
where it could be moved safely”: para
70. The issue was “whether or not any of
the employees actually ‘saw something’
when [the individual defendant] started
moving his overloaded cart”: para 70.
The store had a
general policy to ensure the safety of
patrons and employees. The evidence
demonstrated that the employees were
aware of this policy and understood that
they were to react to situations wherein
a patron may have overloaded his cart.
The trial judge found that none of the
employees whose inaction was impugned
had acted unreasonably, and that the
store owner could not be faulted for
failing to have a specific policy
addressing overloaded carts. The store
owner had met its duty under the
Occupiers’ Liability Act to keep its
premises reasonably safe for the
plaintiff: para 80.
The trial judgment
was upheld on appeal in an endorsement
released on March 17, 2015.
A judgment against
the store owner defendant in this case
would potentially have had far-reaching
implications for “no frills”-type
grocery stores that leave customers to
be responsible for bagging and boxing
their own purchases and loading their
own carts without assistance from a