In Miltenberg v. Metro Inc., 2012 ONSC 1063 (CanLII), Mr. Justice Andrew J Goodman granted the defendant’s motion for summary judgment and dismissed an action based on breach of obligations under the Occupiers Liability Act. In doing so, he made some observations of general application in such cases.
Here, the 73-year-old plaintiff had been injured while attempting to remove ice cream containers from the top shelf of a freezer at the defendant’s store.
On the motion, there was evidence from the store manager, that “the manner in which the ice cream containers were stacked was safe and in accordance with store procedures in the grocery industry generally”.
The defendant moved for summary judgment. Referring to the B.C. case of Tran v. Kim Le Holdings Ltd.  BCSC 1690 (S.C.), Justice Goodman said: “there is some inherent risk involved in everyday interactions between individuals and society. An occupier is not required to stay sanitize their environment to such a degree to negate all inherent risk. What is required is balancing of what may be a reasonable course of conduct against the potential for harm. The standard of care for occupiers is one of reasonableness. It requires neither perfection nor unrealistic or impractical precautions against known risks.”
His Honour added that “just because the matter becomes litigious and the parties seek redress through the courts, does not mean that any concept of common sense evaporates.” He concluded that the plaintiff had failed to adduce sufficient evidence to demonstrate a genuine issue for trial and granted the defendant’s motion for summary judgment, dismissing the action.