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Tort - Occupier's Liability - Duty of Care

Campbell v. Bruce (County) (Ont CA, 2016)

In this case the Court of Appeal commented as follows on the nature of the duty of care imposed by s.3 of the Occupier's Liability Act:
[26] ....... The leading case dealing with duty of care under the OLA is Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456. In that case, Iacobucci J. articulated the purpose of the OLA, at 477:
The goals of the Act are to promote, and indeed, require where circumstances warrant, positive action on the part of occupiers to make their premises reasonably safe.
[27] Iacobucci J. also discussed the contents of the duty of care under the OLA, at 472:
[T]he statutory duty on occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation – thus the proviso "such care as in all circumstances of the case is reasonable". [Emphasis in original.]
[28] The trial judge specifically cited and applied Waldick in his reasons for judgment. He considered the knowledge, decisions and actions of the appellant with respect to the design, construction and operation of the Trials Area of the Park.

[29] In the context of an extensive discussion of these factors, I do not think that the trial judge’s use of the word “ensure” in the above passage equates to him saying that the municipality became in effect an “insurer” for all activities in the Park. Rather, a fair reading of the passage, in conjunction with the rest of the reasons on duty of care, is that “ensure” means “take appropriate care”.

[30] Nor do I think that the trial judge’s use of the words “catastrophic harm” means the trial judge improperly inserted the nature of the potential harm to users of the Park into the analysis. In discussing duty of care under the OLA in Kennedy v. Waterloo County Board of Education (1999), 1999 CanLII 3746 (ON CA), 45 O.R. (3d) 1 (C.A.), Feldman J.A. said, at 11-12:
In Veinot v. Kerr-Addison Mines Ltd., 1974 CanLII 20 (SCC), [1975] 2 S.C.R. 311 at p. 317, 51 D.L.R. (3d) 533, Dickson J, speaking for the majority, quoted with approval several factors listed by Lord Denning on the issue of whether an occupier has taken reasonable care:
The following excerpt from Lord Denning's judgment [Pannett v. McGuinness & Co. Ltd., [1972] 3 W.L.R. 387] aptly expresses in my opinion the more salient points a judge should have in mind when considering intrusions upon land:
The long and short of it is that you have to take into account all the circumstances of the case and see then whether the occupier ought to have done more than he did. (1) You must apply your common sense. You must take into account the gravity and likelihood of the probable injury. Ultra-hazardous activities require a man to be ultra-cautious in carrying them out. The more dangerous the activity, the more he should take steps to see that no one is injured by it.


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