The case of Souliere v Casino Niagara raises the issue of the standard of care of an occupier of commercial premises. In this case a restaurant was the defendant and the Court found that the determination of the standard of care is a flexible and fact-driven inquiry. What may be adequate in one circumstance may not be so in another.
In this case, the Casino did not require employees to keep logs and did not place any particular employee in charge of cleaning food spills in their buffet service restaurant, but rather, asked each employee to be vigilant and to either clean any food spillage immediately, or in the case of the cashier, to report any observed spills to other staff, as soon as possible.
The Court noted that, “the liability analysis is fact driven and varies from case to case. Premises in which there is a higher risk of spillage require more vigilant policies and procedures.” The Court also noted that a system similar to that employed by Casino Niagara had been criticized in another case, because simply asking already busy employees to also be vigilant for spills was deemed inadequate in the circumstances.
Nevertheless, the Court found that due to the small size of the restaurant, the generally clean condition of the floor, and the fact that thirteen employees were on duty, the system of simply asking each employee to keep and eye out for spills was enough to satisfy the Occupier’s Liability Act, under these circumstances. The Court was likely influenced in this conclusion, because it also found that the spill had been on the floor for only a few seconds before Souliere fell and thus no system, however rigorous, could have prevented the fall.
The key finding for counsel dealing with a slip and fall case is that the standard of care is flexible and fact driven. The nature of the business will impact what is reasonable and it is incumbent upon counsel to call evidence to demonstrate that in the circumstances of each slip and fall, the system in place either was or was not reasonable in the specific circumstances.
Joel Dick’s practice includes a focus on slip and fall cases in order to obtain a copy of this decision please contact Joel at djdick@hshlawyers.com or 416-572-3516.
