Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467

CITATION: Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467

COURT FILE NO.: CV-14-503600

DATE: 20170914

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARIAN HAMILTON, Plaintiff

AND:

ONTARIO CORPORATION #2000533 o/a TORONTO COMMUNITY HOUSING CORPORATION a.k.a. GLENYAN MANOR, Defendants

BEFORE: Sanfilippo J.

COUNSEL: Michael Salerno and Adele Di Paola, for the Plaintiff

Hannah Kohn, for the Defendant Toronto Community Housing Corporation

HEARD: August 31, 2017

REASONS FOR JUDGMENT

A. Introduction

[1] This motion was brought by the defendant, Ontario Corporation #2000533 o/a Toronto Community Housing Corporation a.k.a. Glenyan Manor (the “TCHC”), for summary judgment to dismiss the occupier’s liability action brought by the plaintiff, Marian Hamilton.

[2] Mrs. Hamilton alleges to have slipped and fallen on May 7, 2012 on the vinyl floor in the corridor outside her apartment on the fourth floor of 10 Deauville Lane, East York, Ontario (the “Building”). At that time, Mrs. Hamilton had been a tenant of the Building for nine years.

[3] The basis of Mrs. Hamilton’s claim is pleaded in paragraph 7 of her statement of claim:

On or about the 7^th day of May, 2012, Marian Hamilton was walking in the hallway of the premises when she suddenly and without warning slipped and fell on the vinyl floor sustaining a serious injury.

[4] The statement of claim does not detail the cause of the slip and fall. Paragraph 8 pleads that the TCHC failed to keep the vinyl floor reasonably safe, and in paragraph 8(c) that the TCHC failed to “clean away the ‘hazard’”, but there is no description of the alleged hazard or lack of care.

[5] The TCHC admits that it was the owner and occupier of the Building, and thereby owed a duty of care pursuant to the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “Act”). The TCHC’s defence is that Mrs. Hamilton has no evidence, and thereby cannot prove, that there was any hazard on the vinyl floor proximate to her apartment that caused her to slip and fall.

[6] Without any evidence of an unsafe condition on May 7, 2012 at or near Mrs. Hamilton’s apartment, the TCHC submits that there is no genuine issue that the plaintiff will be able to establish liability. The TCHC submits that it had a reasonable system of maintenance but, even if it did not, the absence of objective evidence of an unsafe condition is fatal to establishing a causal connection between any alleged breach of duty and the incident.

[7] The plaintiff challenges the system of maintenance and inspection that the TCHC had in place on May 7, 2012 as deficient and insufficient to meet the maintenance and housekeeping needs of the residents of the Building. The plaintiff submits that there was an inadequate number of on-site TCHC personnel working insufficient hours to keep the Building reasonably safe. The plaintiff submits that even in the absence of evidence that the area near Mrs. Hamilton’s apartment was unsafe, based on the totality of the evidence, I ought reasonably to infer from a general failure to properly maintain the Building that there was a defect in the vinyl floor that caused her injury.

[8] The TCHC relies on established case law that for the plaintiff to succeed she must be able to pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury. The TCHC submits that Mrs. Hamilton has failed to establish that there was any act or breach on the part of the TCHC that resulted in an unsafe or hazardous condition as would be required to establish that the TCHC’s breach of duty was the cause of Mrs. Hamilton’s injury.

[9] This motion for summary judgment is brought pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and, in particular, Rule 20.01(3), which provides that

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[10] The defendant seeks dismissal based on its defence on the issue of liability, the issue of damages being left to be determined subsequently in the event of judgment on liability in favour of the plaintiff

[11] Based on the following reasons, summary judgment is granted dismissing the plaintiff’s claim.

B. Summary Judgment – Rule 20

[12] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that if a court is satisfied that there is no genuine issue requiring a trial with respect to a claim, the court shall grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [“Hryniak”], the Supreme Court held, at para. 49, that there is no genuine issue for trial in the following circumstances:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[13] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence presented without turning to the fact-finding powers in sub-rule 20.04(2.1). This involves analysis of the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly determine the dispute. In the result, the summary judgment is a timely, affordable and proportionate procedure.

[14] If the judge determines that there is a genuine issue requiring a trial, the judge may determine whether the need for a trial can be avoided by using the powers under Rules 20.04(2.1) and (2.2), namely: (1) weighing the evidence, (2) evaluating the credibility of a deponent, and (3) drawing any reasonable inference from the evidence.

[15] This two-part test, termed a “roadmap/ approach” to summary judgment under Rule 20, was explained in Hryniak at para. 66 as follows:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[16] In a motion for summary judgment, “[e]ach side must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried”: Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 11, citing Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Ont. Gen. Div.), at p. 434. A court is entitled to assume that the record on a motion for summary judgment contains all the evidence that would be presented at trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, at para. 27, aff’d 2014 ONCA 878, [2014] O.J. No. 5815, leave to appeal dismissed, [2015] S.C.C.A. No. 97.

C. The Incident

[17] On May 7, 2012 at approximately 3:30 p.m., Mrs. Hamilton, then 67 years old, left her apartment, which was the third unit from the fourth floor’s central elevator bank, to go to the main floor mail room that served the 247 apartments in the seven-floor building. She wore orthopedic slippers and was in no hurry.

[18] The corridor had a vinyl floor with which Mrs. Hamilton was familiar by reason of her nine-year tenancy. After attending at the mail room, and stopping to chat with some fellow residents, Mrs. Hamilton set about returning to her apartment, with only mail and keys in hand.

[19] At approximately 4:00 p.m., Mrs. Hamilton states that she slipped and fell in the fourth-floor corridor two doorways from her apartment. This location was identified by Mrs. Hamilton in a letter sent to the TCHC on May 10, 2012 (the “Notice Letter”). In her discovery testimony and filed affidavit evidence (the “Hamilton Affidavit”), which was unchallenged by cross-examination, Mrs. Hamilton testified that the slip and fall took place in this vinyl-floored corridor.

[20] The TCHC admits that Mrs. Hamilton fell on May 7, 2012, but disputed the location of the fall. The TCHC submits that Mrs. Hamilton fell inside her apartment, and not in the corridor, by reason of the notation on two clinical notes obtained from the North York General Hospital, filed, which state that Mrs. Hamilton “fell in her apartment”.

[21] From an interpretative standpoint, it is consistent for Mrs. Hamilton to have referred to the building in which she resided as “her apartment” when providing information to the clinic intake clerk, such that there is no inconsistency between her sworn testimony and the notation in the clinical records sufficient to give rise to a genuine issue. To the extent that the discrepancy argued by the TCHC in the location of the fall raises a genuine issue for trial, I use the fact-finding powers provided under Rule 20.04(2.1), and particularly the power to weigh evidence and to draw any reasonable inference therefrom, to find that Mrs. Hamilton’s fall occurred in the fourth-floor corridor.

[22] In the Notice Letter, Mrs. Hamilton stated that she “suddenly slipped on the vinyl floor in the corridor which was quite shiny and slippery.”

[23] In the Hamilton Affidavit, Mrs. Hamilton testified to her subjectively-held belief that the floor was slippery but without any reference to visual observation of the floor being shiny. She states as follows:

When I slipped, I slipped on something and went up in the air and fell on my right arm. I slipped with one foot. I recall there being dirt on my clothes from the flooring when I fell. … I do not recall what I slipped on but I do recall it being slippery.

[24] In her discovery testimony, Mrs. Hamilton provided no evidence of any observation of any hazard on the corridor floor and no mention of observing anything “shiny”. The plaintiff testified to her belief that she “slid on something”. The Notice Letter was not referenced. Pertinent extracts from the examination evidence are as follows:

Q. 127: What did you fall on?

A. I’m honestly not sure.

Q. 135: You said that you slipped on something, and you didn’t know what it was, you said?

A. I don’t. No.

Q. 240. Again, you didn’t notice anything unusual when you were walking --…

A. No.

Q. 245. You didn’t see any water or any spills at that time?

A. I can’t recall.

Q. 246. Is it flat, the hallway?

A. Yes, it’s flat.

Q. 247. Any other observations of the hallway when you fell?

A. No, not at the time. I can’t recall.

Q. 248. What do you think caused your fall?

A. I’m not sure. … There had to be something on the floor that I did not see. I can’t recall.

Q. 253-255: You said that you – can you tell me how you fell?

A. I was just walking down with my keys in my hand … And maybe one letter in the same hand. And I’m walking down, and all of a sudden, my feet just went up like that. I just went up in the air and just – fell. I slid on something. I don’t know what it was. …

[25] Mrs. Hamilton testified that the lighting of the corridor presented no problem in sight lines (Q. 140-141), she has no recollection of feeling any wetness, or indeed anything, on the floor (Q. 135-137) and she does not recall the weather that day (Q. 238). No one witnessed her fall (Q. 239, 283). Her son, who attended to her after her fall, did not detect anything on the floor (Q. 282).

[26] The plaintiff’s evidence at its highest is that she detected some dirt on her clothing as she rested on the floor after her fall (Q. 259-262). There is no description of the amount or location of the dirt or, indeed, any evidence on which to determine on a balance of probabilities that the dirt had any role in the incident.

[27] Mrs. Hamilton testified to her history of complaints, made over the term of her tenancy, of general lack of cleanliness and upkeep of the Building. She called the maintenance office and forwarded letters, which were testified to but not placed in evidence. These complaints show Mrs. Hamilton’s subjectively-held belief of the Building’s lack of cleanliness and upkeep. She also produced photographs, taken after the incident, of spills in the corridor. However, she did not connect these conditions with the conditions of the corridor on May 7, 2012.

[28] Mrs. Hamilton’s testimony did not connect any of her maintenance complaints to the day of the incident or even the days leading to May 7, 2012. Mrs. Hamilton’s subjectively-held belief is that there had to be something on the floor, undetected by her before or after her fall, which caused her to slip and fall, but she is unable to identify any hazard or unsafe condition that day.

[29] The plaintiff is obligated to put her “best foot forward”, to “lead with trump” in tendering evidence of a condition that caused the premises not to be reasonably safe. The evidence, taken in its totality, shows that there is no genuine issue for trial on the issue of proof of an unsafe condition in the vinyl-floored corridor outside of Mrs. Hamilton’s apartment on May 7, 2012. Mrs. Hamilton is not able to identify any unsafe condition that is alleged to have caused her to slip and fall.

D. The Duty of an Occupier

[30] The duty of the TCHC as an occupier of the Building derives from the Act, section 3 of which states as follows:

Occupier’s duty

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

[31] To succeed in a claim against an occupier for injury sustained in a slip and fall, the plaintiff must “pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury”: Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (Ont. S.C.J.) per Perell J., at para. 8, citing St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. 2721 (Ont. S.C.J.), at para. 27; Gemelus v. Ecole Secondaire Catholique Renaissance, 2010 ONSC 4232, 2010 CarswellOnt 6802 (Ont. S.C.J.), at para. 21 [“Gemelus”]; Miltenberg v. Metro Inc., 2012 ONSC 1063, 2010 CarswellOnt 1588 (Ont. S.C.J.) [“Miltenberg”]; Gohm v. York, 2013 ONSC 7118, 2013 CarswellOnt 15704 (Ont. S.C.J.), at paras. 20—21 [“Gohm”]; Whitlow v. 572008 Ontario Ltd, [1995] O.J. No. 77 (Ont. Gen. Div), at para. 33, which states as follows: “[a] plaintiff must still be able to point to some act, or some failure to act, on the part of the occupier which caused the injury complained of, before liability can be established.”

[32] The duty of care on the occupier does not extend to the removal of every possibility of danger. The Act does not impose strict liability. The standard of care is not perfection but rather reasonableness: see George v. Covent Garden Market Corporation, 2007 ONSC 29276, [2007] O.J. No. 2903 (Ont. S.C.J.), at para. 35; Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (Ont. S.C.J.), at para. 28 [“Garofalo”]; Gohm, at para. 22; Nandlal (Ont. S.C.J.), at para. 10; Miltenberg, at para. 33. As stated in Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456, at p. 472:

After all, the statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation — thus the proviso ‘such care as in all circumstances of the case is reasonable’.

[33] The duty of care established by the Act must not be confused with a presumption of negligence: see Gohm, at para. 20; Gemelus, at para. 21. The burden of proof is on the plaintiff: “The onus is on the plaintiff to prove on a balance of probabilities that the defendant was in breach of a positive duty of care”: Garofalo, at para. 30; see Canada (Attorney General) v. Ranger, 2011 ONSC 3196, 2011 CarswellOnt 3697 (Ont. S.C.J.), at para. 33, which states: “[o]f course, it is important not to lose sight of the fact that, nevertheless, the burden of proof of a breach of the statute rests with the plaintiff.”

E. The Plaintiff’s Position

[34] The plaintiff submits that Mrs. Hamilton’s evidence that the corridor floor was slippery is sufficient to establish that the corridor was not reasonably safe on May 7, 2012. In the absence of any evidence of any substance or debris, or of anything physical or tangible that could be pointed to as causing the floor to be slippery, shiny or otherwise, the plaintiff has submitted meteorological evidence that there was rainfall recorded at Toronto’s Pearson Airport on May 7, 2012.

[35] Mrs. Hamilton has no recollection of the weather at the Building, which is in East York, on May 7, 2012, and there is no evidence at all of any wetness being tracked into the fourth-floor corridor, or indeed the Building, that day. It cannot be established on a balance of probabilities that precipitation caused a slippery condition on the corridor that day. Submissions made of the possibility of drops or leaks of products by fellow residents similarly have no evidentiary support in a record that contains evidence only of drops or leaks experienced randomly prior to and well after the day of Mrs. Hamilton’s incident.

[36] The plaintiff submits that in the absence of any evidence specifically pinpointing a causative act or failure on the part of the occupier in its housekeeping of the corridor on May 7, 2012, that the existence of such an unsafe condition as being causative of the fall can be inferred from a general lack of maintenance or housekeeping overall in the Building. The maintenance of the Building was attended to at the material time as follows:

• The Building, housing 247 apartments in its seven floors, was serviced by an on-site Junior Superintendent, Avelino Guevarra, and a full-time custodian, Joe Porter. The on-site personnel were supervised by a Community Housing Supervisor, George Ewer, who attended the Building every few weeks or on an as needed basis. In addition, a resident “key person” was available on-site during weekends to assist the residents in contacting a TCHC call centre, which was always open, should the need arise.
• Mr. Porter was responsible for garbage removal and general cleaning of the Building, working 7:30 a.m. to 4:00 p.m., Monday to Friday.
• When not responding to an incident, Mr. Porter attended to duties set out in a task list, which included checking the garbage chute rooms contained on each floor. His weekly cleaning duties included mopping all hallway floors every Tuesday or Wednesday, using the floor machine if necessary.
• Mr. Guevarra worked during business hours. His work schedule included the responsibility to assist in building cleaning if his inspection disclosed any maintenance issues. Mr. Guevarra’s work routine list included daily building inspection and the requirement that all common floors and doors are washed monthly.
• Mr. Guevarra testified that he conducts inspections of the Building each morning and then monitors the premises throughout the day for hazards.

[37] The TCHC produced log sheets, including the daily log sheet for May 7, 2012, that showed that both Mr. Guevarra and Mr. Porter were on duty that day, and that both were involved in “Housekeeping Routine”. However, the log sheet does not call for any entries detailing the timing of visual inspection of the Building, or of any observations made or any housekeeping undertaken.

[38] Mr. Guevarra testified that the floors in the common areas, including the corridor proximate to Mrs. Hamilton’s apartment, were mopped on an as-needed basis and machine-cleaned once a week. Mr. Guevarra has no evidence of inspection of the corridor on the day of the incident, but performed a visual inspection of the corridor three days later, on May 10, 2012, at the time of receipt of the Notice Letter, and found the hallway to be clean, dry and in good repair.

[39] Mr. Porter testified that on the morning of May 7, 2012, his practice was to perform a visual inspection of the corridors on each floor as part of the daily cleaning of the garbage chutes. Mr. Porter testified that he believes that he visually inspected the corridor adjacent to Mrs. Hamilton’s apartment on the morning of May 7, 2012 as part of his general and standard practice. No unsafe condition was detected. In the absence of a log, this evidence is based on Mr. Porter’s recollection.

[40] The plaintiff submits that the housekeeping protocol conducted by the TCHC is not sufficient to ensure that the Building is reasonably safe, principally on the following grounds:

• The maintenance needs of a complex the size of the Building was too significant for the two-member staff. Further, there was no on-site building maintenance, housekeeping and inspection after business hours and on weekends.
• Mr. Porter could not have observed the corridor area in which Mrs. Hamilton fell from the vantage point of his routine inspection of the garbage chute area as the sight lines did not allow for such a view. However, Mr. Porter’s testimony on this observation was not cross-examined upon and no graphic evidence of the sight line was tendered.
• The maintenance protocol was not enhanced in inclement weather.
• The large number of tasks assigned to the on-site personnel by their work lists attributed too little priority and gave too little time for corridor inspection and maintenance.
• There is lack of details on the daily log to document the inspections and housekeeping said to have been performed by Mr. Guevarra and Mr. Porter.

[41] The plaintiff submits that the maintenance protocol by the TCHC was entirely reactive and thereby inconsistent with the affirmative duty on occupiers to take reasonable care, citing Preston v. Canadian Legion of British Empire Service League, Kingsway Branch (1981), 1981 ABCA 105, 123 D.L.R. (3d) 645 (Alta. C.A.). The plaintiff submits that tasking employees with a duty to clean up spills as they notice them is insufficient to satisfy the duty of care imposed by the Act unless it is supplemented by a system of routine inspection and sweeping, relying on Davis v. Kin’s Farm Market (Lynn Valley) Ltd., 2010 BCSC 677, 2010 CarswellBC 1195, at para. 38.

[42] In terms of the inability of Mrs. Hamilton to pinpoint a cause for her slip and fall, the plaintiff submits that where evidence of a slip and fall is provided by a credible and reliable witness, with few material inconsistencies or deviations in her evidence, a determination can be made that it was more probable than not that the plaintiff fell by reason of an unsafe condition or hazard, relying on Miller v. Canada (Attorney Gerneral), 2015 ONSC 669, 2015 CarswellOnt 1145, at paras. 53, 55 and 60, and Simmons v. Yeager Properties Inc., 2013 BCSC 889, 2013 CarswellBC 1512, at paras. 25—27, rev’d 2014 BCCA 201. The plaintiff emphasized that there is no duty on the part of Mrs. Hamilton to “glue her eyes to the ground”, as stated in Dufty v. Great Pacific Industries Inc., 2000 BCSC 1474, 2000 B.C.T.C. 750, at para. 44.

[43] The plaintiff asks the court to determine that in the absence of evidence of a hazard giving rise to an unsafe condition an inference can be drawn that the plaintiff’s fall must have occurred by reason of a defect in maintenance by the defendant.

F. Analysis

[44] Having considered the plaintiff’s submissions, including the case law relied upon by the plaintiff, I do not accept that the inference sought by the plaintiff can be drawn in the facts of this case. An inference of causation must be based on objective facts, not subjective rationalization.

[45] By way of example, in Musselman v. 875667 Ontario Inc., 2010 ONSC 3177, 93 C.L.R. (3d) 58 (Ont. S.C.J.), the plaintiff’s fall down a staircase was not witnessed by anyone. The objective evidence established that the staircase was in an “overall unsafe condition” and was “overall grossly incompliant” with the applicable building codes and by-laws. On the basis of evidence of the generally unsafe condition of the staircase, the court drew an inference that the generally unsafe staircase caused the fall.

[46] Reference was made in Musselman to Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, wherein the inference of causation was similarly determined based on objective evidence. In doing so, the court stated that an inference cannot be based on conjecture or speculation, citing Caswell v. Powell Duffryn Associated Collieries Ltd. (1939), [1940] A.C. 152 (U.K. H.L.), at p. 169: “Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it has sought to establish.”

[47] In Kamin v. Kawartha Dairy Ltd. (2006), 2006 CanLII 3259 (ON CA), 79 O.R. (3d) 284 (Ont. C.A.) [Kamin], the plaintiff sustained personal injury when she tripped in a parking lot that was found to be unreasonably unsafe, resulting in a determination that the occupier failed to meet the standards required by section 3(1) of the Occupier’s Liability Act, but nonetheless failed in her action as the plaintiff could not identify the precise location of the fall. This determination was reversed on appeal on the basis that too high an onus had been set on the issue of causation, which need not be determined by “scientific precision”, and that the facts of the case supported an inference that the trip and fall must have resulted from a breach of duty by the occupier. The Court of Appeal stated as follows, at para. 8:

Had the trial judge not erred in her causation analysis by setting too high an onus for the appellant to meet, there was ample evidence on which to find that the appellant’s injuries were caused, or materially contributed to, by the respondent’s negligence. This is particularly so given that there was no evidence of any other possible reason for her to have fallen. In my view, the trial judge erred in failing to find, or to draw the only reasonable inference, that on all the evidence the respondent’s negligence caused or materially contributed to the appellant’s fall and her resulting injuries.

[48] This action advanced on behalf of Mrs. Hamilton does not have the factual elements present in Kamin, where there was considerable, uncontradicted objective evidence that the entire parking lot in which the trip occurred was in very poor, unsafe condition, uneven, chipped and in need of resurfacing. There is no objective evidence here of an unsafe condition in the corridor at or even proximate to where the plaintiff slipped and fell, or indeed otherwise on the floor or in the Building generally. This case does not have an evidentiary basis on which to find a breach of duty of care by the TCHC to which a causation analysis of the nature set out in Kamin could be applied.

[49] This case bears more similarity to Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, CarswellOnt 11129, aff’d 2015 ONCA 166, 2015 CarswellOnt 3228, where the plaintiff slipped and fell at the threshold of a flight of stairs at a TTC station. The plaintiff did not see any debris or hazard on the tile stair at the location of her fall, but had noticed debris in the station on prior occasions and elsewhere on the station on the day in question. There was no evidence of defect in the location where the plaintiff fell. The Court of Appeal dismissed the argument that the lower court judge had erred in refusing to draw an inference based on the evidence before him that the top of the staircase where Mrs. Nandlal fell was in a state of non-repair. The distinguishing element from Kamin was the lack of objective evidence of unsafe and generally unmaintained conditions in or about the area of the fall.

[50] The plaintiff’s lack of any objective evidence to pinpoint an unsafe condition at the incident site, or even in the fourth-floor corridor, leads to the determination that this case cannot succeed. The plaintiff’s evidence at its highest is that the floor was slippery, but there is no objective evidence of anything that might have caused the floor to have been slippery or unsafe that day.

G. Conclusion

[51] I have determined that there is no genuine issue requiring trial on the issue of liability. It is fair and just to determine the liability issue in this action summarily pursuant to Rule 20.

[52] The plaintiff subjectively believes that her slip and fall was caused by a slippery vinyl floor in the corridor outside her apartment but, by reason of the absence of any objective evidence, the plaintiff has failed to prove on a balance of probabilities that an unsafe condition existed on May 7, 2012. There is no objective evidence of anything that could have caused the floor to be slippery. Even broadly, there is no evidence of a general lack of maintenance in the fourth-floor corridor that day that could give rise to an objective determination of an unsafe condition to which Mrs. Hamilton’s slip and fall could be connected causally or by reasonable inference.

[53] There is a subjective belief by Mrs. Hamilton that her slip and fall must have been caused by something and that lack of maintenance must be the cause. That Mrs. Hamilton had issues with the maintenance of the Building by the TCHC in the past, or detected spills in the corridor at times after the incident, does not reasonably allow for an inference to be drawn that Mrs. Hamilton’s injury was caused by an unsafe condition on May 7, 2012.

[54] In the absence of any objective evidence of any unsafe condition, and after assessment of the housekeeping protocols in place by the TCHC for the upkeep of the Building in general and the corridor specifically, there is no basis on which to find any breach of duty of care by the TCHC that could be found to have caused Mrs. Hamilton’s slip and fall.

[55] Summary judgment is granted dismissing the plaintiff’s claim.

H. Costs

[56] Although cost outlines were received after argument, counsels’ submissions on costs were necessarily contingent as the decision was taken under reserve. If the parties cannot agree on costs, counsel for the defendant is at liberty to deliver written cost submissions of no more than three pages within seven days of release of this decision. Counsel for the plaintiff is invited to deliver written submissions of a similar length within fourteen days of release of this decision. In the absence of any such written submissions and in the absence of notification of a consent agreement on costs, I will issue a ruling on costs, after fourteen days from the release of this decision, based on the cost outlines provided and submissions made at the hearing.

Sanfilippo J.

Date: September 14, 2017