Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Angelikis Stamatopoulos and Angelikis Stamatopoulos, as Litigation Administrator for the Estate of Panagiotis Stamatopoulos, deceased.
AND:
PSPIB Agincourt Inc.; I.G. Investment Management Ltd.; NADG Agincourt Mall GP Ltd.; Wal-Mart Canada Corp.
BEFORE: Justice Carissima Mathen
COUNSEL: Julien Bonniere for the Applicant Kyle Duncan for the Respondent
HEARD: March 03, 2026
DECISION on summary judgment motion
OVERVIEW
1On October 31, 2022, Angelikis Stamatopoulos was shopping in a Wal-Mart located at Sheppard Avenue East, in Scarborough. She slipped and fell, fracturing her hip. Together with her husband, since deceased and now represented by his estate, she sued the defendants for damages.
2The defendants, to whom I refer as ‘Wal-Mart’, bring a motion for summary judgment. Wal-Mart says that it is not liable for Ms. Stamatopoulos’ fall or subsequent injuries. The reason is that CCTV footage of the incident shows that Ms. Stamatopoulos fell because she tripped over another patron’s wheeled basket – not as a result of anything that Wal-Mart or its employees did or failed to do. Therefore, there is no genuine issue for trial and the action should be dismissed.
3Ms. Stamatopoulos says that the case is not amenable to summary judgement. First, Wal-Mart has not put its best foot forward on this motion. Second, whether Wal-Mart’s acts or omissions created a hazard to Ms. Stamatopoulos is a triable issue. Third, there remain significant issues of credibility that only a trial judge can assess.
4This is an unfortunate case. Ms. Stamatopoulos, who is elderly, was badly hurt. Nevertheless, having considered all the evidence, I find there is no genuine issue for trial because, on a balance of probabilities, Wal-Mart is not responsible for what happened. Wal-Mart’s motion is granted. The plaintiffs shall pay costs on a partial indemnity basis.
5On October 31, 2022, Ms. Stamatopoulos was shopping at Wal-Mart with her husband, Panagiotis Stamatopoulos.
6Patrick Forbes, a Wal-Mart employee, was standing near the right-hand side of the entrance to aisle 5. He was pushing a shopping cart loaded with items for restocking. Mr. Forbes, who is hearing impaired, was accompanied by another Wal-Mart employee, Govindaraj Sreenivasa. Mr. Forbes had been maneuvering the cart down the main store aisle, when he stopped. Therefore, the cart was perpendicular to the aisle, so that its far end protruded somewhat into the aisle blocking entrance from the right. According to an expert report prepared for Wal-Mart, the aisle was 137 cm wide and the cart protruded into the aisle by about 42 cm.
7CCTV footage shows several people, including the plaintiff’s husband, entering aisle 5, going past the cart. The Wal-Mart employee helping Mr. Forbes, Mr. Sreenivasa, also proceeds into the aisle. Mr. Forbes remains standing just behind the cart, leaning over it and looking down at something in his hand.
8Ms. Stamatopoulos then enters the aisle from the left, closely followed by another patron, wheeling a blue basket, on Ms. Stamatopoulos’ further left. The plaintiff trips and falls diagonally. As she does so, she appears to reach out and make contact with Mr. Sreenivasa, who falls to the ground with her.
9The plaintiffs commenced an action on November 29, 2023. On or about January 4, 2024, Wal-Mart delivered its defence and crossclaim. On or about March 12, 2024, the defendants PSPIB Agincourt et al. delivered their defence and crossclaim, as well as a Jury Notice.
10By the end of October, 2024, all parties had delivered unsworn Affidavits of Documents.
11On November 12, 2024, the parties conducted examinations for discovery of the plaintiffs and the defendants Wal-Mart and PSBIS Agincourt. Wal-Mart was examined through its representative Stephanie Browne, who was the store manager when the incident happened.
12The plaintiffs discontinued the action against the defendant, PSBIS Agincourt, on or about January 6, 2025.
13The record before the court includes:
a. CCTV video on October 31, 2022 of approximately two hours in length, including 45 seconds during which the incident in question occurred
b. Affidavit of Leigh Harrison, Partner in the Plaintiffs’ counsel law firm
c. Affidavit of Russell Hatch, Partner in the Defendants’ counsel law firm
d. Affidavit of Angelikis Stamatopoulos
e. Transcript of the examination for discovery of the plaintiff Angelikis Stamatopoulos on November 12 and November 18, 2024
f. Transcript of the examination for discovery of the defendant Wal-Mart (Stephanie Browne) on November 12, 2024
g. Affidavit of Patrick Forbes
h. Transcript of the examination for discovery of Patrick Forbes on August 7, 2025
i. Affidavit, curriculum vitae and expert report of Tom Flynn, mechanical engineer
j. Transcript of examination for discovery of Tom Flynn on November 14, 2025
ISSUES
14The plaintiffs claim damages of over $1,000,000. They plead that Ms. Stamatopoulos’ injuries are the direct result of the defendants’ negligence and breach of the Occupiers’ Liability Act, R.S.O., c.0.2 (“OLA”). In particular:
a. The defendants failed to take all such reasonable care to see that the plaintiff Ms. Stamatopoulos was safe while on their Premises.
b. The defendants created a situation of danger for users of the Premises.
c. The defendants created a situation of danger and emergency from which Ms. Stamatopoulos could not extricate herself, despite all reasonable care and diligence.
d. Of note, seven other particulars relate to the condition of the floors and Wal-Mart’s failure to keep them safe. In her examination for discovery, Ms. Stamatopoulos appeared to concede that issue and it did not feature in the arguments at this motion. I therefore do not consider the condition of the floors.
15Accordingly, on this summary judgment motion, the issue is whether there is a genuine issue for trial about the defendants’ liability under the OLA.
ANALYSIS
16The facts as I find them are contained in the following analysis.
Is there a genuine issue for trial under the OLA?
The Law
Summary Judgment
17Rule 20.04(2)(a) provides: “The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”.
18Therefore, to obtain summary judgment, the moving party must first establish that there is no genuine issue for trial about its liability under the OLA. The onus then shifts to the responding party to prove that their claim or defence has a real chance of success: Sanzone v. Schechter, 2016 ONCA 566, 402 DLR (4th) 135, at para. 30. The court must take a hard look at the evidence. While the onus is on the moving party to establish there is no issue requiring a trial, the responding party must “lead trump or risk losing”: 1061590 Ontario Ltd. v. Ontario Jockey Club, 1995 CarswellOnt 63 (Ont. C.A.), at para. 36.
19There will be no genuine issue for trial if the court through summary judgment can reach “a fair and just determination on the merits”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49. Such a determination is warranted if the process (a) allows the court to make the necessary findings of fact, and to apply the law to the facts and (b) is a proportionate, more expeditious and less expensive means to achieve a just result.
20In determining whether there is a genuine issue for trial, a court may evaluate credibility, weigh the evidence, and draw reasonable inferences from that evidence: Rule 20.04 (2.1). The court can assume that the record contains all the evidence the parties would present if the matter proceeded to trial. The court may draw an adverse inference from a party’s failure to provide evidence of any person having personal knowledge of contested facts: Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 at para 23.
21The court should use its enhanced powers to decide a motion for summary judgment only where it leads to “a fair process and just adjudication”: Ang v. Lin, 2023 ONSC 4446, at para. 15, citing Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44, and Eastwood Square Kitchener Inc. v. Value Village Stores, Inc., 2017 ONSC 832, at paras. 3-6 (and cases cited therein).
Occupiers’ Liability Act
22Section 3 (1) and 4(1) of the OLA reads 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.
Risks willingly assumed
4 (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property. R.S.O. 1990, c. O.2, s. 4 (1).
23Having considered the authorities submitted by the parties, I rely on the following principles:
a. an occupier of premises owes a duty to take such care in all the circumstances to see that persons entering the premises are reasonably safe: Lavoie v. Rainbow Centre Mall 2021 ONSC 4166;
b. the standard of care is reasonableness, not perfection or unrealistic or impractical precautions: Kerr v. Loblaws Inc., 2017 ONCA 371 (Ont. C.A.);
c. the moving party 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.) at para.8;
d. the duty of care must not be confused with a presumption of negligence: Gohm v. York, 2013 ONSC 7118, 2013 CarswellOnt 15704 (Ont. S.C.J.), at para. 20;
e. the Act does not impose strict liability: George v. Covent Garden Market Corporation, 2007 ONSC 29276, [2007] O.J. No. 2903 (Ont. S.C.J.), at para. 35;
f. the occupier is not under the duty to remove every possible danger: Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467 at para. 32; or “sanitize their environment to…negate all risk”: Miltenberg v. Metro Inc., 2012 ONSC 1063, at para 32;
g. in assessing liability, a measure of “common sense” should apply: Miltenberg, ibid at paras 39-40;
h. there is no duty to warn of an obvious and self-evident danger: Winters v. Haldimand (County), 2015 ONCA 98, 2015, at para 16; and
i. where the defendant is a grocer or similar retailer, it may be liable for injuries that result from creating a limited space for customers circulating with shopping carts, given the reasonable foreseeability that someone could be hurt as a result: LeClerc v. Westfair Foods Ltd., 1999 CarswellMan 381 at para 26.
Application
24I have reviewed the evidence submitted, including the affidavits, cross-examinations, expert report and the video.
25Having done so, I find there is no genuine issue for trial because the evidence shows on a balance of probabilities that Ms. Stamatopoulos’ fall was not caused by anything Wal-Mart did or failed to do. Further, the responding parties have not proved that a trial is required to address deficiencies in the evidence.
26In particular, I find:
a. The position of Mr. Forbes’ shopping cart did not create a hazard for Wal-Mart patrons. At 11:49:26 am, Mr. Forbes stops the cart with it slightly protruding into the aisle. He and it remain there for approximately thirty seconds until the incident occurs. It is clear to the naked eye that there is sufficient room for people to enter the aisle despite the cart’s presence. The latter fact is confirmed by Mr. Flynn’s expert report.
b. Furthermore, and because this next point was argued at the hearing, the video shows that at the time of the incident there was room for more than one person to enter the aisle. In particular, the video shows Panagiotis Stamatopoulos and another patron entering the aisle in quick succession, around 11:49:49 am, in such a way that I am satisfied that they could have done so side by side.
c. Ms. Stamatopoulos fell after she tripped over a wheeled basket being steered by a patron who tried to enter aisle 5 immediately behind her, right after she did. This sequence is shown at 11:49:51 – 11:49:52 am.
d. Ms. Stamatopoulos never came into contact with the shopping cart. Furthermore, while the shopping cart was extending into the right side of aisle, Ms. Stamatopoulos entered the aisle from the left. She followed her husband who also came from that direction.
e. Mr. Forbes is examining a hand-held device. While Ms. Stamatopoulos alleged that Mr. Forbes was on his cellphone, in view of the evidence including Mr. Forbes’ affidavit and discovery, I find it more likely that the device was a ‘Telzon’ which assists Wal-Mart employees to locate merchandise and inventory.
f. Contrary to the plaintiffs’ submissions at the hearing, Mr. Forbes is not ‘rocking’ the cart back and forth. Mr. Forbes appears to move the cart backwards slightly when Panagiotis Stamatopoulos almost touches the cart as he moves into the aisle at 11:49:49 am. The cart then moves forward again slightly, but its movement stops before Ms. Stamatopoulos starts to enter the aisle. The cart is stationary when Ms. Stamatopoulos trips over the wheeled basket.
g. While the immediate area was congested, I am not persuaded that the shopping cart was a primary driver of that congestion. The shopping cart did narrow the entrance to the aisle, but the more relevant factor is the number of other patrons milling about and trying to enter the aisle at the same time. The collision was between two patrons trying to do just that.
h. I do not find any of the cited cases comparable in terms of their facts. Counsel for the plaintiffs acknowledged that this situation is unusual. Until she fell on Mr. Sreenivasa, the plaintiff did not come into physical contact with any employee or any store structure. Other than the fact that Mr. Forbes was leaning over the cart when Ms. Stamatopoulos fell, Wal-Mart through its employees was not involved in the incident.
i. I asked plaintiffs’ counsel whether the problem is that a cart was protruding into the aisle, or that an employee was operating a cart in such a way as to reduce the available space in that aisle. For example, had Mr. Forbes moved the cart into the aisle like a patron might and then stopped, would that count as a ‘hazard’? Counsel said that it would. This supports Wal-Mart’s argument that the plaintiffs demand a standard of perfection rather than reasonable risk mitigation. The implication is that, so long as any patrons are in Wal-Mart, employees should not be moving among them, and certainly not with shopping carts. The implication does not accord with common sense: Miltenberg. It far exceeds the standard required under the OLA as described in other cases.
27The defendants argue that this matter is not suitable for summary judgment because the moving party has not put its ‘best foot forward’. They argue this because:
a. Neither Stephanie Browne nor any other Wal-Mart employee in a supervisory position swore an affidavit. Therefore, while they did examine Ms. Browne, the plaintiffs could not ask her ‘leading questions’ such as whether she had given Mr. Forbes any verbal instructions regarding how to operate the shopping cart or how to interact with the Telzon. This would be important to know, given that Wal-Mart has no written instructions on such topics.
b. Wal-Mart’s expert, Tom Flynn, did not specifically address whether the physical situation in the aisle allowed for “multiple persons” to enter the aisle without risking contact with each other.
c. Patrick Forbes poses credibility problems with respect to his answers about what he was doing, including with the Telzon, and whether he was paying attention to his surroundings.
28I am not persuaded that any of the above-noted issues are significant enough to find that the plaintiffs have a real chance of success at trial. That is because:
a. I have found that Ms. Stamatopoulos tripped and fell over another patron’s wheeled basket. Neither the shopping cart nor Mr. Forbes played a role in that fall. Therefore, any verbal instructions Ms. Browne may or may not have given Mr. Forbes is irrelevant.
b. I have found that despite the shopping cart’s position, there was still sufficient room for more than one person to enter the aisle. Therefore, Mr. Flynn’s opinion or potential testimony about multiple patrons is not critical to deciding the case.
c. I am satisfied that Mr. Forbes was using a Wal-Mart device, not his cellphone. Furthermore, I am satisfied that he was not ‘rocking’ the cart back and forth, but moved it back slightly and then forward again even more slightly, all before Ms. Stamatopoulos started to enter the aisle. Further testimony from Mr. Forbes would not be helpful.
29To conclude, Wal-Mart owed a duty of care to take reasonable precautions to make its premises safe for Ms. Stamatopoulos and other patrons. There is no evidence in this case that, on October 31, 2022, Wal-Mart failed to do that. Having reviewed the record, I am satisfied that what befell Ms. Stamatopoulos was an awful but unforeseeable accident that did not involve Wal-Mart at all and against which Wal-Mart could not have taken reasonable precautions. Consequently, Wal-Mart did not breach the Occupiers’ Liability Act.
30Based on all the evidence, I find that there is no genuine issue for trial. Summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.
31At the hearing, the parties agreed that partial indemnity costs should follow the cause. Mr. Duncan was called in 2020 and bills $240 an hour partial indemnity. He lists 43 hours of work, which I find reasonable. Partial indemnity legal fees, disbursements and HST amount to $21,177.39. I find those costs appropriate.
ORDER
32In conclusion, I make the following order:
a. The motion for summary judgment is granted.
b. The Plaintiffs shall pay costs fixed at $21,177.39.
c. An order shall issue consistent with these reasons.
Mathen, J.
Date: March 4, 2026