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The Presence of a “Trap” Is Not an Essential Criterion for a Personal Injury Claim

By Alice Bourgault-Roy, from our Insurance Law Practice Group

December 14, 2021 — Since the Supreme Court ruling in Rubis v. Gray Rocks Inn Ltd., 1982 CanLII 17 (SCC), [1982] 1 SCR 452, in 1982, personal injury claims have largely been determined on the basis of the concept of “trap”. Essentially, a trap is defined by the case law as a situation that has an inherent danger, which is hidden rather than apparent, and which has an element of abnormality. The existence of such a trap is in a way assimilated to the fault of the owner or custodian, who is responsible for the victim’s injuries due to his or her failure to ensure the safety of the premises.

However, on November 17, the Court of Appeal sets the record straight in Costco Wholesale c. Pominville, 2021 QCCA 1753. The facts of this case are simple: Mrs. Pominville, a 57-year-old woman, falls on the wet floor of a Costco Wholesale store shortly after a violent storm. The Superior Court finds the big-box chain store liable. Costco appeals the decision, arguing that the trial judge failed to analyze liability under the “trap” criteria, which should have led her to dismiss the action.

The Court of Appeal unanimously upholds the trial judge’s decision and explicitly rejects the use of this common law framework, stating the following:

[12] If the concept of “trap” is at all useful in civil law — which is debatable — it is nothing more than the result of a failure to maintain, supervise, design or warn of a danger, and not the fault itself. In this sense, it is possible to find fault in the absence of a trap just as it is possible to find no fault even if the trap criteria is met. Thus, the judge’s failure to refer to the trap criteria is in no way an error. [free translation; emphasis added]

In other words, according to the Court of Appeal, personal injury claims do not require the victim to meet an additional burden of proof that is different from other civil liability claims. The victim’s burden is therefore limited to proving the existence, on a balance of probabilities, of a fault, a damage and causation.

Thus, in order to determine whether the owner or custodian of the premises was at fault, it must be determined whether, in the circumstances of each case, he or she took reasonable steps to prevent a dangerous situation from occurring or continuing. The victim does not have to prove that the danger was “hidden” or “abnormal” in order to establish a fault.

In this case, the Court of Appeal finds that there are several factors converging toward a finding of fault on the part of Costco. Indeed, even though the store is aware that the floor becomes very slippery when wet, it does not post any warning signs and fails to close a garage door allowing water to penetrate on the premises, despite the storm. Moreover, while the store claims to check the premises every hour, the logbook for the day of the accident is mysteriously missing, so there is no evidence of proper maintenance. The Superior Court therefore does not err in concluding that Costco did not take appropriate steps to prevent the accident.

In essence, the point to remember from this decision is that a personal injury claim does not require the presence of an actual “trap”, but rather the existence of a fault, which may consist in a failure to maintain, a lack of supervision, the inadequate design of a building, or even a failure to warn passers-by of a danger. As to whether the danger is apparent or normal, this would be more a question of shared responsibility between the victim and the owner or custodian of the premises.