Plaintiff slipped and fell during a winter weather event in a crosswalk at the New Sudbury Centre
In a recent decision, the Ontario Superior Court of Justice ruled that the defendants in a slip-and-fall lawsuit are fully liable for the plaintiff’s damages.
The case centred on a 2013 incident in which the plaintiff slipped and fell during a winter weather event in a crosswalk near the entrance to Walmart at the New Sudbury Centre. The plaintiff brought an action for damages pursuant to the Occupiers’ Liability Act (OLA). The plaintiff sued the mall owner, the property management company responsible for maintaining the mall, and the company tasked with snow removal and winter maintenance for the mall's exterior asphalt areas, including parking lots, roadways, and crosswalks.
The defendants acknowledge that they were “occupiers” as defined in the OLA, and accordingly that they owed a duty pursuant to s.3(1) of the OLA.
The parties settled the amount of the plaintiff’s damages, and the case proceeded to trial on the issue of liability only. The court determined that the defendants were 100 percent responsible for the plaintiff’s damages, which had been previously settled at $65,000. The court subsequently addressed issues of interest and costs.
The court awarded the plaintiff $116,929.07 in costs, encompassing $80,000 in fees and $26,529.07 in disbursements. The plaintiff’s substantial indemnity fees were reduced to reflect proportionality, considering the modest damages amount. The Superior Court emphasized balancing access to justice with proportionality principles.
Although simplified procedure rules generally cap costs at $50,000 for fees and $25,000 for disbursements, the court noted that this action began under ordinary rules in 2014. Consequently, the hard cap introduced in 2020 did not apply.
The court acknowledged the defendants’ rigid stance on liability, noting it led to the protracted litigation. However, the court did not deem their actions egregious.
The court's ruling underscored the importance of proportionality and access to justice in cost awards, particularly in simplified procedure cases. The court also reminded the defendants about the consequences of delayed payments and rigid litigation positions.
The court awarded the plaintiff a total of $65,000 in damages, prejudgment interest of $12,976.20, post-judgment interest, and costs of $116,929.07.
