Toronto Injury Lawyer Blog
Slip and Fall cases are incredibly nuanced, fact dependent and more complicated than you would think.
Slip and Fall cases would appear to be very basic when compared to the complicated legislation which we have in Ontario for car accident cases. In an Ontario Car Accident case, the client needs to be educated on the concept of a no fault accident benefit claim and all of the forms and regulations which come with that. And to add to the complexity of the case, there’s a tort claim which would seem basic and straight forward, but it’s not with the application of Ontario’s deductible for non-pecuniary damage claims, medico legal threshold for general damage claims; along with the set offs allocated to the tort defendant for any benefits which are coming in. These concepts appear unfair to accident victims. More importantly, they are hard to grasp for accident victims; and catch accident victims by surprise because it appears that the system has been rigged in order to protect insurance companies instead of compensating innocent accident victims who have done nothing wrong except for being in the wrong place at the wrong time. In a day and age where fairness, equal opportunity and equity is really important; the world of car accident law in Ontario didn’t get the memo.
Having examined all of that, it should be the case that slip and fall cases aren’t as complicated as car accident cases. But that can’t be further from the truth.
While car accident cases have their own sets of legislation, the same thing applies for slip and fall cases.
In a slip and fall case, there are special notice periods (timelines) for a Plaintiff to deal with. Failure to meet those deadlines often doesn’t matter. Ignorance of the law; meaning the Plaintiff didn’t know how the laws worked and that there were time sensitive deadlines to meet is not excuse. Failure to meet these deadlines may stop a case in its tracks before it even has a chance to get off the ground.
A larger pitfall which few Plaintiffs consider is who they are suing. This can get unduly complicated in a slip and fall case; and if differs significantly from any other personal injury case you might see.
Take a dog bite case for example. The Plaintiff will sue the dog owner, and the person who was harbouring/controlling the dog at the time of the dog attack. That’s pretty straight forward.
Take a car accident case as another example. The Plaintiff will sue the operator of the vehicle which caused the accident; and will sue the owner of that vehicle as well. That’s pretty straight forward too.
A slip and fall case is a completely different can of worms. Knowing the precise location of the fall is of the utmost importance. A few inches here or there can change the owner of the property completely, and thus change the identity of the Defendant as well. Once we know the exact location of the fall, determining the correct identity of the Defendant(s) can be a challenge as well.
In a car accident case, there is only one operator of the Defendant vehicle.
In a dog bite case, there is only one owner of the dog (if a married couple, there might be two depending on who is listed on the property).
But, in a slip and call case, there can be multiple owners of the property. In fact, there can be unlimited owners of a single property. There are no limits on how many people, or legal entities can own a piece of land. The owner can be individuals, corporations, partnerships, limited liability corporations, the corporations can be stacked under holding companies, LLCs, or different subsidiaries located outside of Ontario or Canada for that matter. The next thing you know is that you’re having to name a Canadian holding company and the parent company based overseas.
But it’s not just about the owner. You also have to take into consideration the property manager(s), the maintenance contractors, the maintenance subcontractors; or anyone else who might have been responsible for inspecting and maintaining the property. The number of Defendants for what would seem like a simple slip and fall case begin to add up very fast. Instead of having to name one, or two Defendants; there are now between 5-10 Defendants. Each Defendant has to Defend the action and each Defendant will bring forth a cross claim against the other co-Defendants. This adds up to a lot of finger pointing and a lot of pleadings to sort through. All of this finger pointing will amount to Defendants seeking to pass the blame onto each other. Getting the Co-Defendants to sort things out is very timely. Sometimes, this doesn’t happen. You might have one Defendant who is prepared to accept some of the blame, but another Defendant is refusing to accept any responsibility for the accident whatsoever. Negotiations might fail simply because while while one Defendant is being reasonable, another, or multiple others are being completely unreasonable. These sorts of disagreements cause unduly delay, and can sidetrack a case completely.
As the case progresses, some Defendants will be released from the action if, and only if there is an agreement with respect to indemnification as between all of the parties. If all of the Defendants remain in the action, that means that everyone will be producing documents (Affidavits of Documents) and producing deponents to be examined for discovery. This also means that a Plaintiff will need to endure questioning not just from one lawyer, but from lawyers from all of the parties who are involved in the action. Having to respond to questioning from multiple lawyers at discovery is not an easy or pleasant exercise for anyone.
The last point which we would like to hightlight is the Plaintiff’s obligation at law to repay OHIP for their injury related treatment from the accident. This is called OHIP’s right to subrogation, or OHIP’s subrogated claim. OHIP does not have this right to subrogation in a car accident case. But they have that right in a slip and fall case. This adds an extra unknown layer of the law for the Plaintiff who is new to personal injury cases in Ontario. The effect is that the Plaintiff must repay OHIP for the medical treatment which they received in relation to the slip and fall case. This figure can be in the thousands, tens of thousands, or hundreds of thousands of dollars depending on the severity of the injuries and how much treatment was received in relation to the accident.
