Justice Mathen’s recent decision in Stamatopoulos et al. v. Pspib Agincourt Inc. et al., 2026 ONSC 1380, reaffirms that Ontario occupiers owe a duty of reasonableness, not perfection, under the Occupiers’ Liability Act (OLA), especially when injuries stem from fellow patrons, not the occupier.
Case Summary
An elderly plaintiff fractured her hip after tripping over another shopper’s wheeled basket while entering a busy Wal-Mart aisle in Scarborough on October 31, 2022. Wal-Mart sought summary judgment, using CCTV footage and engineering evidence to show the fall resulted from patron congestion, not any store cart, employee actions, or floor conditions. The plaintiffs alleged OLA breaches, including the creation of a hazard at the aisle entrance, but the Court disagreed.
Legal Principles Applied
Drawing on Hryniak v. Mauldin, 2014 SCC 7 and Rule 20, the Court held summary judgment appropriate where the record allows a fair, proportionate resolution without trial. Key OLA tenets included: reasonable care in context (not eliminating all risks); no strict liability; no duty to “sanitize” busy retail spaces; and common sense in assessing foreseeability.
Critical Findings
- A restocking cart protruded 42 cm into a 137 cm aisle, leaving ample room for multiple patrons, as confirmed by video and expert analysis.
- The plaintiff tripped over a basket wheeled by a patron directly behind her, never contacting the cart or employees.
- The employee used a store Telzon device (not a cellphone); minor cart adjustments predated the fall, and congestion arose from customer traffic.
- No Wal-Mart act or omission caused the fall, making it an “unforeseeable accident.”
Why Summary Judgment Succeeded
Plaintiffs claimed Wal-Mart failed to “put its best foot forward” (e.g., no supervisory affidavit) and raised credibility issues, but the Court found these irrelevant to causation. Video evidence resolved factual disputes decisively, justifying dismissal with $21,177.39 in partial indemnity costs.
Key Takeaways for Defence Counsel
- Evidence is crucial. CCTV and targeted experts can enable early wins via summary judgment in strong OLA defences.
- Pinpoint causation. Plaintiffs must link specific occupier failures to injury; patron actions alone won’t suffice.
- Understand retail realities. Busy stores aren’t liable for every slip in crowded aisles if reasonable passage exists.
At Flaherty McCarthy LLP, our insurance defence litigation team, with expertise in both occupiers’ liability and personal injury claims, stays ahead of evolving case law, such as Stamatopoulos, to deliver strategic, cost-effective results for our clients, whether defending insurers or advancing claims.
