C.A. Finds Trial Judge Set Causation Bar Too High in Slip and Fall Case

This afternoon, the Court of Appeal released its decision in Kamin v. Kawartha Dairy Limited. This was an occupier’s liability case that had been decided by Madam Justice Sarah Pepall in March, 2004. You can read the trial decision here.

The trial ruling was interesting. The plaintiff, a 69 year old woman, claimed to have stumbled and fallen in the defendant’s parking lot. She broke her hip and then had a heart attack. Damages had been agreed to at trial, at slightly more than $100,000.

Justice Pepall found that “while the Dairy had a system in place, it was inadequate and did not meet the standard set out in s. 3(1) of the Occupier’s Liability Act“. However, she went on to dismiss the plaintiff’s action on the basis that the evidence had not satisfactorily established causation:

[A] court cannot decide cases on the basis of sympathy and compassion alone.  Neither of the Kamins knew where in the parking lot or how Mrs. Kamin fell. They do not know where they parked. There was no record of any of the possible witnesses who might have assisted and the defendant was not advised of the claim until April, 2000, approximately nine months after the event. The earliest pictures of the parking lot were taken in December, 1999… I cannot conclude that Mrs. Kamin’s fall resulted from any breach by the defendant.  She has not discharged the onus on her to establish on a balance of probabilities that any failure by the Dairy caused or materially contributed to her injury.

The Court of Appeal allowed the appeal and reversed the trial decision. A unanimous court held that Justice Pepall had applied too onerous a test on the issue of causation. The Court pointed to several decisions of the Supreme Court of Canada that had estabilshed that “causation need not be determined by scientific precision” (Snell v. Farrell) and that “liability is established where the defendant’s negligence caused or materially contributed to the plaintiff’s injury” (Athey v. Leonati).

On the evidence at trial, the Court of Appeal was satisfied that the defendant’s parking lot was at or past its life expectancy, it was in a chipped and uneven state and no other plausible explanation for the plaintiff’s fall had been given. The Court ruled that the trial judge had “set the bar too high” in her causation analysis. It gave judgment for the plaintiff for the agreed-upon damages.

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