posted March 11, 2008

Occupiers Liability working notes (and excerpts from cases)

Background Research -

Review of Occupier’s liability law and how it affects people who use public parks

Please note: Most of this research was done at the Bora Laskin Law Library at the University of Toronto. Some of it was done on the electronic eCarswell internet site, a very expensive site to pay for privately, but available free from the Law Society of British Columbia at courthouses in Vancouver and Victoria [and likely elsewhere in the province as well]. Wherever possible, the citations for cases mentioned below (e.g. where you can look a case up and read it for yourself) are to law libraries and free legal databases. In some cases, alternate citations were not found. For example, there are a handful of “Ontario Judgments” cases and two “Alberta Judgments” cases that were located on the B.C. eCarswell site, and an alternate citation hasn’t been found at this time.

Some of the more recent cases cited below can be found on a free, public legal database website: http://www.canlii.org/en/index.html.

All references to law or sections of the law (“s. 4(4)), unless otherwise noted, are made to the Ontario Occupiers’ Liability Act (“OLA”).

“The plaintiff” is the person who brings a lawsuit against another, called “the defendant”. The defendant tries to defend herself against the claim that she was responsible for the harm suffered by the plaintiff, and consequently, liable to pay “damages” (money paid to compensate the plaintiff for the dangerous situation which led to the harm).

The Bora Laskin Law Library has published a very helpful guide for law students and other people interested in doing legal research. http://www.law-lib.utoronto.ca/Resguide/toc.htm. It gives an introduction to legal research and citation, overviews of both the judicial system and the legislative process, a summary of legal resources and legislation for Canada, Britain and the United States, as well as a guide to electronic legal resources.

Unless otherwise indicated, the notes below are taken from Linden & Feldthusen, Canadian Tort Law , 8th ed.

The researcher’s comments/ questions are written in italics with square brackets.

General History of Tort Law in Canada – Linden – Canadian Tort Law

- tort law is a relatively new field for Canada - a tort law is a civil wrong whereby a person sues another person (or corporation) for damages for wrongs other than a breach of contract (as opposed to a criminal wrong, which results in action taken by the state against the person alleged to have committed the crime). - some examples of torts law come into play in the following circumstances: damage resulting from a defective product, a person who is injured as a result of someone’s negligent conduct or inflammatory words, etc. - the first Canadian torts text was published in 1972; prior to that Canadian jurisdictions generally looked to British torts law. - the law of torts has diverged amongst Canada and other Commonwealth countries “which have followed paths of their own choosing.” - law of torts is now being rewritten so as to reflect the varying needs of each jurisdiction [this is key for us; what are the forces e.g. insurance, etc. that are nudging us in the direction of “risk-free” living, and a corresponding dearth of interesting, lively activities in public life, the commons and elsewhere?]

Functions of Tort Law

- compensation – shifting of cost from one person to another - deterrence - education - psychological function - market deterrence

Occupiers’ liability is the law that governs that person A may sue person B if A is injured while on B’s property.

- historically, occupier’s liability was governed by the common law (e.g. decided on a case-by-case basis, rather than written down beforehand as the law that applies in all similar circumstances). - many injustices arose from very different perspectives of the law of negligence and the historic immunity of landowners. - in 1972, the Ontario Law Reform Commission reported on Occupier’s liability. - this report led to the 1st Ontario Occupier’s Liability Act in 1980.

• there was a strong lobby from agriculture and recreation groups to insulate certain landowners, which resulted in s. 4 of the Act.

- at common law as well as now under the Act (s. 3), an owner or occupier of land or buildings has a general duty of care to take all reasonable measures to make sure that people who enter the premises (and their property) are safe.

- I did a search at the B.C. Courthouse on O.L.A. s. 3 (this general duty) [the search includes all of the subsections of a section, e.g. this search for OLA s. 3(3) yields the same result as a search for s. 3]. An example of a few cases of note for us re: public spaces were as follows:

Cooper v. Canada [found on eCarswell, citation to be provided later]

- woman falls off ramp at airport. - judge’s comments: “standard is reasonableness, not flawlessness.” - issue isn’t whether or not metal rail should have been there, rather whether it presented an unsafe condition. - defendant can’t be an insurer of all who suffer falls.

Vizbaras v. Hamilton (City) 2005 Carswell Ont 7752, 20 Municipal & Planning Law Reports (4th) 131

- plaintiff tripped over a “pop-up cap” used to service a barrel related to the City’s water supply. - a senior official had testified that this was the first accident of its kind in 26 years. - court found that there was a century of experience in the City of no claims resulting from harm caused by the “pop up cap.” - as a result, the court found that this history contradicted the plaintiff’s claim that the cap posed a danger for which the City was responsible.

Winters v. Loblaws 2005 Carswell Ont 3551

- plaintiff slipped and fell on a wet floor in the foyer of the store. - court found that the store was not liable as it had a reasonable system in place, including:

- large signs in the parking lot & coming into the store.

- warning signs directly in front of where the plaintiff slipped.

The duty of the responsible person (the occupier) exists except to the extent that the occupier is free to modify this duty (s. 3(3)) either by:

a) agreement or

b) by notice

[Look up : Allison v. Rank City Wall Canada. Ltd. (1984) 6 Dominion Law Reports.(4th edition) (Ont. High Court of Justice)

This case says that the restrictions must be: 1) specific

2) brought to the visitor’s attention

Get also: Canada. SS Lines Ltd. V. the King [1952] All English Reports 305 (Privy Council)

Carson v. Thunder Bay (1985) 52 Ontario Reports (2nd edition) 173 (District Court)

Behul Estate v. Polar Star Enterprises Inc. [1989] 79 Ontario Reports (2d) 573 (Ont. High Court of Justice)]

s. 6(1) third party liability.

[get: Bouffard. V. Canada. [1998] Ontario Judgments No. 1018 (General Division)

Polny v. Cadillac Fairview Corp [1993] Ontario Judgments No. 2092 (General Division) affirmed by [1997] Ontario Judgments No. 1087 (Court of Appeal)]

[- test for City – was it reasonable to hire the contractor in the first place, does the contractor have technical expertise?]

There are, however, groups of people who are not held to the general s. 3 duty that exists for everyone else. Section 4(4) holds the agricultural community and recreational landowners to a much lower standard of care than others – there is a duty merely not to create a danger with deliberate intent to harm person or property, or to act with reckless disregard for presence of people of their property

“This provision was intended to protect “the interests of the agricultural community and to promote the availability of land for recreation.” [Linden p. 740]

[Why are only rural recreation interests protected here? What are the underlying assumptions? What are the arguments in favour of and against extending a wider range of movement to other areas like the parks, rinks, etc? More work needs to be done on the legislative history and rational behind this provision.]

s. 4(1) risks that are willingly assumed

- although this provision appears to leave an opening for the argument that a person can choose to assume risks, the Supreme Court of Canada, in 1991, left very little room for this argument in the landmark Waldick v. Malcolm 83 Dominion Law Reports (4th) 114 case. ''[See full e- text of the case at: http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1991/1991canlii71/1991canlii71.html]. -this was the first Occupiers’ Liability Act case to reach the Supreme Court of Canada and has determined how s. 4 will be interpreted by the courts. - the case involved an incident which occurred in rural Ontario 4 days after an extremely severe ice storm. - the plaintiff fractured his skull when he fell in an icy parking lot. - the plaintiff had come to get his hair cut (for little or no money as I recall). - he knew lot was icy; he had arrived, walked into the home with no incident and was therefore aware of the treacherous conditions. - he was injured on his way back to his car to get his cigarettes. - the defendants had shoveled the concrete walkway but had taken no steps to shovel the icy parking lot. - the defendants argued that “local custom” was that people in that rural area didn’t shovel or treat their parking lots.

- the court said:

- that person who seeks to rely on custom must establish the custom on a balance of probabilities.

- the custom must be reasonable.

“In my view, the legislation’s intention in enacting s. 4 of the Act was to carve out a very narrow exception to the class of visitors to whom the occupier’s statutory duty of care is owed…. Rare may be the case where a visitor who enters on premises will fully know of and accept the risks resulting from the occupier’s non-compliance with the statute.” [Iacobucci, p. 479]

- in effect, s. 4 will almost never be used to conclude that a person willingly assumed the risks of his/her activity, (which would be a bar to collecting damages).

- instead, the courts will almost always resort to the mechanism of contributory negligence, e.g. liability will be shared by the person who suffered the damage and the person alleged to be at least partly responsible for the accident. [codified in the Negligence Act which deals with elements of how liability is shared when 2 or more people are sued and found liable under the Occupiers’ Liability Act.]

Other key cases:

Leblond v. Ottawa Board of Education [1984] Ontario Judgments No. 1150 (High Court of Justice)

Hewitt v. City of Etobicoke [1986] Ontario Judgments No. 459 Hutchison v. Daredevil Park [2003] 2003 CanLII 25623 (Supreme Court of Justice)

- in this case, the mere fact that the plaintiff enjoyed a waterslide did not result in the abandonment of his legal rights.

- with respect to the enumerated grounds (e.g. snowmobiling on private grounds), the court will assume a person willingly accepted all risks if:

- the person paid no entry fee.

- the person was not being provided with living accommodation.

- I did an electronic “key cite” search for all of the cases in Canada that had been considered by the courts following the Waldick [link to CanLII] case. [This was on the BC courthouse eCarswell database]. Of 122 cases, Waldick was followed in 100 cases, and distinguished [this means that the court said that the facts of the case in question were not like those in the Waldick case, therefore, they were not obliged to follow the law [precedent] established by the Supreme Court of Canada] in only 3 cases:

Sall. V. Coquitlam School District 1996 Carswell BC 1996

- a youth went up on a flat roof of school to retrieve ball – he had done this numerous times before with no mishap. - the court deemed he was trespassing and that there was nothing inherently dangerous or amiss with the roof.

Cucksey v. Stratford (City)

- woman alleged that she fell on stairs that were covered in ice and snow. - court found no evidence of defective design, no reported difficulty with the stairs, nor any evidence of inherent danger or slippery state [reading between the lines, it seems that the woman who was coming from the bar had been drinking].

Anderson v. Anderson (1993) Man. Q.B. 1

- woman spraying/cleaning out chicken barn slipped and her leg was chewed up in an uncovered auger which moved water and waste out.

In any legal action against the City, a person would have to establish that the City or City employee did not take reasonable care to prevent FORESEEABLE accidents.

Cases where courts found that an accident was not foreseeable:

Rai v. Kozier –

A woman washed her husband’s gas soaked clothes in Laundromat washer. This resulted in fire and explosion and she suffered severe burns (even though a sign was posted warning not to wash clothes with gas on them).

**Ricard v. City of Trenton [2000] Ontario Judgments No. 4700 (Supreme Court of Justice) affirmed [2001]Ontario Judgments No. 4288 (Court of Appeal).

[read/get this case]

A 10-year-old boy died when he fell from the tree he was climbing and hit his head on a rock. The court held that the trees were for enjoyment and shade, not climbing which “is not part of the natural and normal use for trees.”

- arguments such as prior safe use (e.g. campfires at Dufferin) are considered as a relevant factor, but not determinative.

s. 5 (restriction of duty or liability)– Occupiers’ Liability Act search for Ontario resulted in 1 case – Siwac Ont. Court of Appeal – [couldn’t find trial decision I needed for facts in database – try to find this].

When are warnings required? [Clearly, at Dufferin, we’d go with the worst case scenario and regard any unclear situations according to the “unknown danger” standard].

At p. 753, Linden suggests that “there is a duty to warn about unknown dangers, but not about obvious dangers.”

Unknown v. “obvious” danger cases

Alchomoqicz cv. Schram [1999] Ontario Judgments No. 115, 49 Municipal & Planning Law Reports (2d) 299 (Court of Appeal).

[facts?]

Fowler v. Ont (Minister of Health) [1997] Ontario. 160, 26 Ontario Trial Cases 21 (General Division) affirmed by [1998] 116 Ontario Appeal Cases 393.

- occupier of pool was not unreasonable in failing to warn a healthy adult not to dive off high board when not in control of his body.

- nor is warning required for an adult who knowingly dives into shallow water

McQueen v. Alberta [2001] Alberta Judgments No. 346 at paragraph 62, 285 Alberta Reports 290, affirmed by [2002] Alberta Judgments No. 407, 303 Alberta Reports 39 (Court of Appeal).

- nor is it necessary to warn about falling debris in the wake of severe ice storm

Lebrun v. Ingram [2000] Ontario Judgments No. 2577 (Supreme Court of Justice).

- nor to warn experienced snowmobiler of danger crossing train lines when there is very little snow cover.

Lemieux. V. Porcupine Snowmobile Club of Timmins Inc [1999] Ontario Judgments No. 1779, 120 Ontario Appeal Cases 292 at paragraph 5.

- not necessary to warn that short cuts through steep alleys with loose gravel might lead to a fall.

- need not warn an adult with diabetes of the ordinary risks of everyday life. [see FN 307 p. 753]

b) visitor’s job to pay attention to her/his own safety

- adult cyclist injured on stairs which were part of detour of public path – he didn’t slow down although he was entering an unknown route with construction.

- adult who dives into shallow water. McQueen v. Alta [2001] A.J. No. 346 affirmed by [2002] A.J. 407 (Court of Appeal)

- person knowingly dives into shallow end of pool. Bibney v. Gillialand [1992] 71 B.C. Law Reports (2d) 314; affirmed without reasons by Supreme Court of Canada. [we may want to get this decision at some point]

c) what is “reasonably safe” and “custom”?

1) supermarket slip and fall cases

- store owners who have successfully defended a claim have been able to establish:

i) the store had implemented reasonable policies and procedures for maintenance.

ii) those policies and procedures were followed at the time of the accident.

- in high risk areas, such as produce areas, there will be a higher standard of care than areas where the risk of spillage is less. - larger stores with lots of employees are typically expected to have a more elaborate procedure than smaller stores.

3)ice slip cases

- key case is Waldick discussed above.

- key issues will look at whether or not the situation involves people who are particularly vulnerable. (e.g. older people)

- cases of rising/falling temperatures may require higher level of care.

d) contributory negligence

examples of situations in which a person may be found to be partly responsible for her/his injuries.

- cases involving drunkenness.

- driving too fast.

- not checking that workplace is reasonably safe, e.g. plaintiff who was injured by twisted metal at his worksite was partly responsible for his injury.

- putting ladder on a slippery surface.

Get/to do for further research:

1. General reading/possible resources for any further information:

Children in tort law. KJC1663 C45 (law library stacks)

Third party liability. KD1949 M38 2006 (law library stacks)

Canadian Tort Law. KE1232 L56 2006 8th ed. (especially read chapters 4, 5, 6, 7, 9, 13 & 14, 15, 16, 17, 18, 19, 20)

- also read cases in footnotes on pp. 752-4 and on, if relevant.

1972 Ontario Law Reform Commission report on Occupier’s liability –[ read this for background re: how the agricultural and recreation communities were distinguished from other places]

Legislative history of Ontario Occupiers’ Liability Acts 1980 onward.

• Ricard v. City of Trenton [2000] Ontario Judgments No. 4700 (Supreme Court of Justice) affirmed by [2001] Ontario Judgments No. 4288 (Court of Appeal)

[read/get this case] where 10 year old boy died when he fell from the tree he was climbing and hit his head on a rock.

“The Occupier’s Liability to Protect Guests from Themselves.” (1994) 16 Advocates Q. 506

- Min of A.G. “Discussion Paper on Occupier’s Liability and Trespass to Property. (May 1979) p. 9 -11

- Think about any way that snowmobiling cases are sufficiently analogous to help us re: any park activities?

- if so, look at the key cases to get a sense of the conditions under which courts say “no duty” in some cases and a “duty” in others

Content last modified on November 17, 2008, at 03:31 AM EST