Author: Christopher Fleury

When an individual brings a personal injury lawsuit in Ontario, the onus is on them (and their lawyers) to prove their case. In most cases this means that they must prove to the Court that the defendant breached a legal duty that was owed to them, and that the breach of the legal duty caused injury and the incurrence of expenses.

The word caused or causation is often overlooked. It is common for an injured victim to not be able to identify precisely, for example, exactly which pothole they tripped over. It is also common for the victim to incur a head injury, or otherwise simply not remember some of the significant details surrounding how they were injured.

To prove causation a plaintiff must show that it is more likely than not, that but for the defendant’s actions, the injury would not have occurred. This is referred to as the “but for” test. The but for test is a factual inquiry and must be applied in a robust and common sense fashion.

Fortunately, where a plaintiff falls in circumstances of obvious disrepair but cannot point to the precise location or cause of the fall, courts have been generous in their application of the principles of causation.

For example: in Kamin v Kawartha Dairy, 2006 CanLII 3259 (ON CA), the trial judge found that, although the defendants had not met its duty to maintain its parking lot, the plaintiff had not proven causation as neither the plaintiff or her husband could identify the precise location or cause of her fall. The Court of Appeal reversed the trial judge’s decision finding that she had erred in her causation analysis by setting too high an onus for the plaintiff to meet.

“In my view, the trial judge erred in failing to find, or to draw the only reasonable inference, that on all the evidence the respondent's negligence caused or materially contributed to the appellant's fall and her resulting injuries. Applying the causation analysis discussed in Snell v. Farrell and Athey v. Leonati, in my view the probable reasonable cause of the appellant's fall was the state of disrepair of the asphalt surface of the respondent's parking lot.”

The Kawartha Dairy case has been relied upon and applied by Ontario Courts in factually similar circumstances as recently as 2021.

But this does not mean it is a free for all for injured plaintiffs. Where there is little or no evidence that the defendant has breached its legal duties, the plaintiffs case will not succeed. This was the case in Nandlal v TTC, 2014 ONSC 4760 and a line of cases which follow it, which are commonly relied upon by defendants. In Nandlal there was no objective evidence that anything was wrong with the floor where the plaintiff fell.

If you have been seriously injured but do not remember important details regarding the event that caused your injury, it is important that you contact an experienced injury lawyer right away. The lawyer will be able to investigate and determine whether you have a viable case.