The Plaintiff’s claim in Walsh v. Papadopoulos arose as a result of a fall that occurred on the basement stairway of a home owned by the Defendant, Antonio Pirone. Two days before the fall, the Plaintiff and her sister, the Defendant, Easter Papadopoulos, had been at their sister’s house in Paris, Ontario to bake. Baskets of baked goods were later transported in Ms. Papadopoulos’ vehicle to the residence of her boyfriend, Mr. Pirone, in Toronto.
The Plaintiff entered Mr. Pirone’s home through the side door. The weather had been wet that day. The Plaintiff was carrying a large basket with both hands which blocked her view of what was at her feet. Ms. Papadopoulos allegedly instructed the Plaintiff to take the basket that she was carrying downstairs. The Plaintiff proceeded to the basement staircase, fell on the steps and fractured her right ankle.
Ms. Papadopoulos brought a summary judgment motion seeking to dismiss the Plaintiff’s claim against her on the basis that she owed no duty of care to the Plaintiff at law.
In support of her contention that Ms. Papadopoulos was an occupier, the Plaintiff relied on the fact that Ms. Papadopoulos had a key to the premises along with various texts suggesting, among other things, that Ms. Papadopoulos spent the majority of her time at her boyfriend’s house.
Ms. Papadopoulos alleged that the Plaintiff failed to submit evidence that would result in the conclusion that she was an occupier of the premises. The Plaintiff provided no objective evidence that the steps in question were unsafe, improperly constructed or maintained. The Plaintiff also had no expert evidence to suggest that there was any defect in the design or maintenance of the steps.
Although there was contradictory evidence, Justice Dow found that the evidence and a matrimonial law precedent being relied on by the Plaintiff could lead to the conclusion, on a balance of probabilities, that Ms. Papadopoulos owed the Plaintiff a statutory duty under s. 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
Ms. Papadopoulos was required to show that even if she owed a duty to the Plaintiff and that such a duty was breached, it would not result in a finding of even 1% liability attributable to Ms. Papadopoulos. According to Justice Dow, Ms. Papadopoulos failed to establish this. He concluded that there was a genuine issue for trial with regard to liability and declined to grant the Defendant’s summary judgment motion.
In this case, it did not matter that the Plaintiff failed to provide any objective or expert evidence of any defect or improper maintenance of the steps in question. The key was the Plaintiff’s evidence that Ms. Papadopoulos instructed the Plaintiff to take the basket downstairs when she knew that the Plaintiff was unable to use the handrail on the staircase, which could result in a trier of fact finding that a duty of care was triggered and potentially breached.
As we often see in similar cases involving summary judgment motions, this decision makes it clear that if the motions judge has any doubt as to whether a Defendant can be found even 1% liable on the basis of the available evidence and case law, summary judgment is not likely to be granted. While they can still be a very useful tool to dismiss slip and fall cases, summary judgment motions seem best used in circumstances where the facts do not create even the potential for liability to be found outside the strict confines of the Occupiers’ Liability Act.
See Walsh v. Papadopoulos, 2018 ONSC 1828 (CanLII).
