Case: Theriault v. Avery’s Farm Markets Limited, 2022 NSCA 36 (CanLII)

Keywords: slip and fall; Occupiers’ Liability Act, S.N.S. 1996, c. 27


The Appellant stops at Avery’s Farm Market in Coldbrook, Nova Scotia. Upon entering the store, she asks an employee where she can find some pears. The employee directs her to a display table. While approaching the display table, her right foot slides forward. The Appellant is wearing “wedge-heeled sandals”. She grabs the table for support, but lands on her left knee. The incident is captured on surveillance video. (See para. 7).

The Appellant brings a claim for damages against Avery’s Farm, alleging she suffered injuries as a result of the fall, and that Avery’s Farm breached its obligations under the Occupiers’ Liability Act, S.N.S. 1996, c. 27. (“OLA”). (See para. 8).

The Trial Judge determines the Appellant did not prove the Respondent breached its duty under the OLA, and dismisses her claim. The Court of Appeal dismisses the Appellant’s appeal. (See para. 11).


For the Court of Appeal, the legal principles applicable to an OLA claim are “not controversial”. (See para. 62). As helpfully summarized by the Court of Appeal (drawing from previous decisions in Miller v. Royal Bank of Canada, 2008 NSCA 118 and Gallant v. Roman Catholic Episcopal Corp. for Labrador, 2001 NFCA 22), the following principles are relevant to the application of s. 4 of the OLA:

    • there is a positive obligation upon occupiers to ensure that those who come onto their properties are reasonably safe;
    • the onus is on the plaintiff to prove on a balance of probabilities that the defendant failed to meet the standard of reasonable care;
    • the fact of an injury in and of itself does not create a presumption of negligence. The plaintiff must point to some act or failure to act on the part of the defendant that resulted in their injury;
    • if a plaintiff is able to demonstrate a prima facie case of negligence, the occupier can discharge its evidential [sic] burden by showing it has a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what is commensurate with reasonably perceived potential risk to those lawfully on the property; and
    • an occupier is not a guarantor or insurer of the safety of the persons coming on its premises. (See para. 63).

Importantly, the Court of Appeal in this case added two additional principles to those previously articulated in Miller and Gallant. First, that “the factors to be considered by the trial judge will be specific to the particular fact situation”; and second, that the mere existence of an act or omission by an occupier does not give rise to an “automatic finding of negligence”. Rather, a finding that there has been a statutory breach depends on “all the circumstances”. (See para. 64).

As outlined by the Court of Appeal, the Appellant’s argument was that since she fell, and since there was debris left on the floor near where she fell (as captured on surveillance video), the Trial Judge should have made a prima facie finding of negligence. (See para. 66).

Based on the principles summarized above, the Court of Appeal rejected this argument: “[i]t is not enough to demonstrate there was debris on the floor; she was required to establish the nature thereof was such that the respondent had not met its statutory burden to take reasonable care for her safety.” (See para. 67).

In this particular case, the Court of Appeal found that the Appellant had to show that permitting debris to be on the floor caused her to fall. (See para. 67). Here, as noted by the Court of Appeal, the Trial Judge had “carefully reviewed the surveillance video” and determined that, while there may have been debris on the floor, the area where the Appellant slid was “clear of debris”. (See para. 68).

Interestingly, the Court of Appeal undertook its own review of the surveillance video. For the Court of Appeal, the Trial Judge’s finding was “entirely supportable” and there was no basis to interfere with the conclusion that the Appellant failed to demonstrate prima facie negligence. (See para. 69).

Counsel for the Appellant: Luke Godin & J.W. Stephen Johnston (Boyne Clarke LLP, Dartmouth)

Counsel for the Respondent: Jonathan Cuming (Taylor MacLellan Cochrane, Kentville)

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