Speculation vs. Direct Evidence Under the Occupiers’ Liability Act: Adler v. Promenade General Partner Inc. et al.
In Adler v. Promenade General Partner Inc. 2021 ONSC 5393, the Plaintiff slipped and fell in the food court of Promenade Mall in Thornhill, Ontario.
The Plaintiff’s evidence was that her foot adhered to a sticky substance on the floor of the food court. As a result, this impacted her stride and caused her to fall forward. The Plaintiff, however, did not see the substance, did not take photographs of the substance, nor was she able to identify or describe it.
The Defendants subsequently moved for summary judgment, arguing that the Plaintiff had produced no “objective” evidence of the presence of a hazard and was thus unable to establish a breach of any duty of care owed to her. Relying on the cases of Nandlal  and Hamilton, the Defendants argued that the Plaintiff had advanced a purely speculative account of the mechanics of her fall.
Ruling in favour of the Plaintiff, Justice Boswell opined:
The case at bar is different. Ms. Adler is not attempting to reconstruct what must have happened, nor is she speculating about what conditions might have led to her fall. She has offered her own direct observations of a sticky substance on the floor. She did not see it. She is unable to identify it. But she felt it. She says clearly that her foot stuck to it and in doing so it impacted her stride and caused her to fall forward. Her testimony on this issue is admissible, direct evidence that there was a sticky substance on the floor and that her foot stuck to it.
Ms. Adler may not be able to pinpoint the substance that was on the floor, but she is able to pinpoint the hazard. In the result, this case is distinguishable from Nandlal and Hamilton. Here there is direct evidence that there was a sticky substance on the floor. If that evidence is believed, the trier of fact will be able to conclude that there was a hazard on the floor that posed a risk to those using the premises, even though the trier may not be able to say precisely what the substance was.
In the context of occupiers’ liability, this decision provides important clarification that a plaintiff’s failure to see or identify what caused their injury will not necessarily be fatal to their claim.
 Adler v. Promenade General Partner Inc. 2021 ONSC 5393
 Nandlal v. Toronto Transit Commission, 2014 ONSC 4760.
 Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467.
 Adler at paragraphs 49-50.
Author: Christian Genova
August 19, 2021