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Torts - Occupiers' Liability
COMMENT
This is really a statutory tort, grounded in the Occupiers' Liability Act.
The leading SCC case Waldick v Johnson (SCC, 1991) is linked here but doesn't lend itself well to extracts.
Here's a useful 2020 Lawpro (Ontario lawyers' insurance company) posting: New 60 Day Notice Requirement in Occupiers’ Liability Act (Injury from Snow or Ice) Overview.
MORE CASES
Part 2
. Stewart v. Toronto (Police Services Board)
In Stewart v. Toronto (Police Services Board) (Ont CA, 2020) the Court of Appeal dealt with an unusual occupier's liability and trespass issue in a situation of public protest and the police:The duty of an occupier
[71] The provisions of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”) were enacted to replace many of the common law rules “for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons”: s. 2. The intention of the OLA was to replace, refine, and harmonize the common law duty of care owed by occupiers of premises to visitors on those premises: Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456, at p. 475, 83 D.L.R. (4th) 114 (S.C.C.), at p. 127. The OLA promotes and, where circumstances warrant, requires positive action on the part of occupiers to make their premises reasonably safe: Waldick, at p. 477.
[72] To that end, s. 3(1) of the OLA imposes a basic duty on the occupier of premises “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons, are reasonably safe while on the premises.” While the duty is framed quite generally and does not change with the circumstances, the factors relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation: Waldick, at p. 472.
[73] The provisions of the OLA impose duties and obligations on occupiers; they do not grant occupiers any powers. Nevertheless, the jurisprudence recognizes that in order to discharge their duties of care under the OLA, occupiers of premises must have the powers necessary to ensure that persons are reasonably safe while on the occupier’s premises. In Langenfeld, at paras. 58-59, this court observed that while the OLA does not contain provisions that empower the occupier to take the steps necessary to comply with the duties imposed by the Act, occupiers of property have powers at common law. Those common law powers have long included the ability of an owner/occupier to limit access to its property, as described in the next section.
A property owner’s common law powers
[74] As recognized by the case law, the common law powers of property owners/occupiers include the powers to exclude persons from the property, remove persons from the property, and impose terms and conditions on persons while they are on the property: Commonwealth, at pp. 244-45; Weisfeld v. Canada (1994), 1994 CanLII 3503 (FCA), 116 D.L.R. (4th) 232 (F.C.A.), at p. 251; Bracken, at paras. 69-73.
[75] One case has recognized a common law power of an occupier to require those entering its property to submit to a bag search. In Nakochee v. Linklater, 1993 CarswellOnt 5678 (Ont. Ct. J. (Gen. Div.)), the court concluded that a policy formulated by the Band Council of a reserve to authorize baggage searches of those entering the remote reserve by airplane was an exercise of the Band Council’s right and responsibility on behalf of the Band as occupier of the reserve lands. The court stated, at para. 19:An owner or occupier of land has a common law right to impose conditions precedent to entry upon the land. This right is premised, upon the occupier's obligation to ensure the safety of all who are upon the land. Such conditions must be reasonable under the circumstances, and may include a search, provided that it is conducted reasonably, in good faith and with a minimum of intrusion. It would also seem that the person entering upon the land must have prior knowledge of the search as a precondition to entry, and must have the option of not entering upon the land in order to avoid the search. [76] Two points need to be made regarding the exercise of such common law powers of exclusion or restriction by the owner or occupier of government property.
[77] First, while the common law entitles the Crown to withdraw permission from an invitee to be present on its property, the exercise of that power is “subject always to the Charter”: Commonwealth, at p. 245.
[78] Second, in Langenfeld this court held that the common law powers of an occupier, at least as they apply in the context of an occupier performing the duties imposed by s. 3(1) of the OLA, are the antithesis of an arbitrary power and are sufficiently precise to be a limit “prescribed by law” for purposes of Charter s. 1. The powers must be exercised reasonably, having regard to the specific circumstances, and any measures taken must be motivated by legitimate concerns about the safety of persons on the property: Langenfeld, at para. 66.
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C. Powers created by The Trespass to Property Act
[85] Central to the TPS’ position that its officers’ imposition of the Condition of Entry was lawful is its view of the relationship between the TPA and the common law powers of the owner/occupier of property, which it succinctly summarized at para. 60 of its factum:As authorized agent of the City, for the purposes of administering the TPA, and therefore in the position of the City as occupier, the TPS was entitled by the occupiers’ common law power to impose a “precondition to entry, such as a security screening, if the precondition is reasonable and connected to maintaining the safety of persons on the property.” [86] As I will explain, this position misconceives the relationship amongst the common law powers of an occupier to restrict entry to its property, the TPA, and the City TPA Letter.
[87] The product of a 1980 reform of long-standing petty trespass legislation, the TPA was intended by the government to provide a “relatively quick, cheap and intelligible remedy” for trespass: Ontario, Ministry of the Attorney General, Discussion Paper on Occupiers’ Liability and Trespass to Property, (May 1979), at p. 13. In R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3, at para. 32, the Supreme Court described the key remedies made available to occupiers by the TPA:[T]he Trespass to Property Act, 1980, S.O. 1980, c. 15, provides owners or agents of the owners with a number of options. Under the current law, s. 2 makes trespass a provincial offence subject to a fine of up to $2,000. Occupiers may direct persons to leave a property (s. 2(1)(b)), and give notice that further activity or entry onto the property is prohibited either absolutely (s. 3) or within limits (s. 4). More intrusively, as already discussed, occupiers or their agents (and police officers) are empowered to arrest without warrant if on reasonable grounds they believe the individual is trespassing (s. 9). The inconvenience and indignity of being arrested may sometimes be seen as more of a punishment than the amount of the fine ultimately levied. It is equally, on that account, more of a deterrent. [88] Although the TPA provides owners/occupiers with a suite of enforcement powers against those who should not be on a property or carrying on a particular activity on the property, it does not confer on an owner/occupier or its agent any legal power to create restrictions on access to its property. Those powers find their source either in the common law powers of owners/occupiers or, in some cases, statutes respecting a specific owner/occupier or class of owner/occupier. What the TPA does provide is a set of statutory remedies to which an owner/occupier, such as the City, can resort in order to enforce its common law or statutory powers to restrict access. However, the TPA is not, in itself, a source for the power of an owner/occupier to establish restrictions on or conditions for access to a property.
[89] This point was made clearly in Bracken. In that case, the Town of Fort Erie issued a notice under the TPA to Mr. Bracken to stop his protests outside of the Town Hall. The Town took the position that it had the authority to issue the trespass notice under s. 229 of the Municipal Act, 2001, S.O. 2001, c. 25, which gave its Chief Administrative Officer the authority for “exercising general control and management of the affairs of the municipality”, and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25(2)(h), which requires an employer to “take every precaution reasonable in the circumstances for the protection of a worker”: Bracken, at para. 68. This court did not accept those statutory provisions as sources of authority for the trespass notice: at para. 69.
[90] This court then went on to consider, and reject, the TPA as a discrete source of a power to restrict entry onto municipal property, stating at paras. 70-72:Neither does the authority to exclude others from property come from the Trespass to Property Act, R.S.O. 1990, c. T.21, which does not set out the preconditions for its use. The authority to invoke the Act must come from other legal sources, such as the right to exclude others that is inherent in the status of an occupier in the common law of property. That is, the Act does not create any substantive property rights, but functions as an enforcement mechanism for rights that come from other sources: see Batty v. Toronto (City), 2011 ONSC 6862, 108 O.R. (3d) 571, at paras. 81-82; R. v. S.A., 2014 ABCA 191, 312 C.C.C. (3d) 383, at para. 277-278.
In Commonwealth, McLachlin J. noted that under the common law, “the Crown as property owner is entitled to withdraw permission from an invitee to be present on its property, subject always to the Charter.” At common law, an occupier of a property has the power to expel others, and has the power to invoke the remedies supplied by the Trespass to Property Act. In my view, the authority to revoke Mr. Bracken’s licence to be present on the premises and issue the trespass notice, and thus the “law” that is the source of the limit on Mr. Bracken’s rights, is the common law.
The Trespass to Property Act has also long been used by government as a mechanism to exercise this common law power to exclude persons from public property: see, for example, Batty; Smiley v. Ottawa (City), 2012 ONCJ 479, 100 M.P.L.R. (4th) 306; R. v. Semple, 2004 ONCJ 55, 119 C.R.R. (2d) 295; Gammie v. Town of South Bruce Peninsula, 2014 ONSC 6209, 322 C.R.R. (2d) 22. Unlike other municipalities, the Town has no by-law regulating its use of trespass notices, or even a trespass policy. I observe that the risk of arbitrary action is higher in the absence of a well-crafted by-law, and there are greater opportunities for uncertainty as to what sorts of actions will be permitted. [Emphasis added.] . Nolet v. Fischer
In Nolet v. Fischer (Ont CA, 2020) the Court of Appeal engaged in an interesting examination from first principles of the Occupiers Liability Act:Issue 1: Did the motion judge err in her interpretation of the Occupiers’ Liability Act?
[11] The first issue raised on appeal is whether the motion judge erred in law by finding that under the Act, one occupier of premises is precluded from suing another occupier of the same premises, or that an occupier cannot be a person “entering on the premises” to whom the other occupier owes a duty of care. As indicated, the motion judge spent a considerable portion of her reasons determining whether the appellant was also an occupier of the respondent’s premises, and after finding that he was, concluded that no duty of care was owed to him because of his status as an occupier. In my view, that finding constitutes an error of law. The Act does not preclude one occupier from suing another occupier or negate the duty of care owed by an occupier to another occupier when that occupier enters on the premises.
(a) On a proper interpretation of the Occupiers’ Liability Act, one occupier can owe a duty to another occupier
[12] The Ontario Occupiers’ Liability Act was passed in 1980 in order to replace the common law rules that governed an occupier’s liability and duty of care owed to persons who enter the occupier’s premises. The Act followed from the recommendation contained in the Ontario Law Reform Commission’s 1972 Report on Occupiers’ Liability to abolish the common law distinction between the duties owed to the common law classes of entrants: invitees, licensees, trespassers and contractual entrants, and to create one duty of care owed to all entrants, subject to specifically articulated exceptions and limitations.
[13] Section 2 of the Act provides that subject to specifically identified exceptions in s. 9 where a higher duty is owed, the Act applies “in place of the rules of the common law”. Section 2 provides:Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. [14] This court has made it clear in recent cases that the wording of the Act establishes that it is intended to be exclusive and comprehensive, effectively constituting a complete code with respect to the liability of occupiers: see MacKay v. Starbucks Corp., 2017 ONCA 350, 413 D.L.R. (4th) 220, at paras. 45-46; Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313, 140 O.R. (3d) 241, at paras. 25-26, 59-60, leave to appeal refused, [2018] S.C.C.A. No. 187.
[15] As a result, one must look to the Act to determine any occupier’s liability issue.
[16] The Act defines an occupier very broadly in s. 1 and provides that there can be more than one occupier of the same premises:
“occupier” includes,
(a) a person who is in physical possession of premises; or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises. (“occupant”)
[17] Subsections 3(1) and (3) state:
(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.
…
(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty.
[18] Section 3 of the Act describes the duty of care that is owed by an occupier to “persons entering on the premises”. While “occupier” and “premises” are defined terms in the Act, “persons entering on the premises” is not defined in the Act. However, there is nothing in the Act to suggest that such persons cannot also be occupiers.
[19] First, we know from s. 2 that the Act replaces the common law duties that were owed to the previously defined classes of entrants: licensees, invitees, trespassers, and contractual entrants. Therefore, “persons entering on the premises” includes everyone who fit into the former categories. To the extent that those categories could possibly have excluded anyone, there is no exclusion that arises from the words or phrase “persons entering on the premises”.
[20] The respondent argued that at common law, one occupier could not sue another, and that the Act did not change that rule. However, the respondent could provide no authority for the proposition that there was any such prohibition at common law, nor have I found any authority that supports the respondent’s argument.
[21] Second, the temporal scope of the duty of care that extends over the time “while on the premises” also indicates that the duty is owed to other occupiers. The duty extends to property brought onto the premises by those persons, and it extends throughout the time period “while on the premises”. Therefore, after a person enters on the premises, for however long that person or their property remains on the premises, the occupier owes the person the prescribed duty of care. The duty is therefore owed to a person who remains on the premises including a person who lives there.
[22] Third, the Act contains a number of exclusions from the duty of care. The statutory interpretation principle “expressio unius” or “implied exclusion” applies here; if the legislature had also intended to exclude other occupiers from “persons entering on the premises”, it would have done so along with the other exclusions: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014), at p. 248. As a complete code, the Act contains all restrictions, limitations and exceptions to when the occupier’s duty of care arises.
[23] One exception is in s. 3(3) where the occupier can “restrict, modify or exclude” the duty. Then, under s. 4, the duty does not apply to risks that are “willingly assumed” by the person who enters on the premises, subject to the qualifier, that even then, the occupier still owes a duty not to create a danger with the deliberate intent to harm or to act with reckless disregard of the person or the person’s property. Subsections 4(2), (3) and (4) address criminal entrants, as well as trespassers and people using other people’s property as unpaid recreational space, and provide that in certain situations these entrants will be deemed to have willingly assumed all risks for the purpose of subsection (1). Finally, s. 9 is not an exclusion per se, but maintains previously imposed higher obligations for innkeepers, common carriers and bailees, and preserves the obligations of employers to employees.
[24] Given this explicit list of exclusions to the standard occupier’s duty of care, and given the absence of “other occupiers” from this list, I conclude that the legislature did not intend such an exclusion. This analysis is reinforced by the fact that the Act clearly contemplates the possibility of multiple occupiers of the same premises.
[25] To conclude, there is no language or provision of the Act that one occupier does not owe the duty of care to another occupier, or that provides that when an occupier enters on the premises they are not a person “entering on premises” for the purpose of the Act. Nor is there any basis to read any such legal restriction into the Act. While persons may enter onto premises for many different reasons and may leave quickly or stay indefinitely, the Act creates one duty that is owed to all such persons including those who are also other occupiers.
(b) In spite of the existence of the duty, the paucity of cases may have other explanations
[26] As the motion judge noted, the parties could not find any case where one occupier was found liable to another occupier under the Act.
[27] One explanation may be the defence of the willing assumption of risk. Whether it could be argued in any particular case where there is more than one occupier, that a person who is an occupier and who enters on premises has willingly assumed some or all of the safety risks associated with the premises for the reason that the person is also an occupier, would be decided on a case-by-case basis, depending on such factors as the nature of the relationship between the occupiers and the degree of control they each may have over the premises.
[28] Another could be the unavailability of insurance. For example, where one spouse has an accident in the family home, that spouse is unlikely to sue the other unless there is insurance coverage available, and some insurance policies explicitly exclude from coverage claims by a resident family member.
[29] For example, in Traders General Insurance Company v. Gibson, 2019 ONCA 985, Ms. Gibson had a homeowner’s insurance policy that covered her for amounts she became “legally liable to pay” for unintentional bodily injury arising out of her ownership or occupancy of her home. Ms. Gibson’s adult daughter lived with her in the home. The daughter was injured when she fell off the porch and the porch railing came down with her.
[30] The policy contained an exclusion for claims for “bodily injury to you or any person residing in your household other than a residence employee”. The court found that the daughter was in residence but not as an employee and therefore coverage for her injuries was excluded under the policy.
[31] It was clear in that case that the insurance policy would cover claims by a number of potential “occupiers” against the homeowner, including residence employees or any person not in residence but left in physical possession of the premises. In other words, the policy language accepts that one occupier can be legally liable to pay another occupier for unintentional bodily injury arising out of the use or occupation of the premises. It then limits its coverage to indemnify for such liability by the specific wording of the policy.
[32] While there may be explanations such as these for why, in practice, occupiers do not often recover from other occupiers, there exist situations in which it is obvious that this should be possible. For example, because the definition of “occupier” is so broadly framed, some people are occupiers while they are in physical possession of premises who have no control over the premises’ maintenance or repair. Depending on the circumstances, such a person may be, for example, a friend or grandparent visiting overnight. While that friend or grandparent may have a duty to warn others who may enter, such as a delivery person or a repair person, of hazards that they are aware of, there is nothing in the Act that says that the owner of the premises does not owe the occupiers’ duty of care to the overnight guests, or that they are not persons entering on the premises because they are also occupiers within the definition contained in s. 1.
[33] To conclude, the apparent paucity of case law where one occupier has sued another does not undermine the proper interpretation of the Act which does not preclude such claims on the sole basis that the person to whom the duty is owed is also an occupier of the premises.
[34] As the motion judge erred in law by finding that the respondent did not owe any duty of care to the appellant under the Act, the appeal turns on whether the motion judge erred in finding in the alternative, that there was no breach of duty. . Campbell v. Bruce (County)
In Campbell v. Bruce (County) (Ont CA, 2016) 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. . MacKay v. Starbucks Corporation
In MacKay v. Starbucks Corporation (Ont CA, 2017) the Court of Appeal conducts an interesting examination of when an adjoining private property occupant (tenant) might still be liable as an 'occupier' under the Occupier's Liability Act, where they assumed de facto care over an adjoining municipal sidewalk whereby customers accessed their commercial premises:Analysis
[10] Since it came into force on September 8, 1980, the Occupiers’ Liability Act has governed the duty of care owed by an occupier of premises to anyone who enters those premises. The legislation was enacted following the 1972 Report of the Ontario Law Reform Commission, which recommended that the common law duty of care owed by occupiers, which mandated a standard of care that was more or less stringent depending on why the injured person was on the property (invitee, licensee or trespasser), should be replaced with one generalized statutory duty.
[11] Section 2 of the Act replaces the common law duty of care with a single statutory duty:2. Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. [12] Section 3 of the Act prescribes the duty of care that is owed by an occupier of premises to persons entering onto the premises to see that they are reasonably safe:3.(1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. [13] “Occupier” is defined inclusively in s. 1 as follows:
“occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises.
[14] As the definition makes clear, there can be more than one occupier of the same premises. This includes municipal sidewalks: Bongiardina v. York (Regional Municipality) (2000), 2000 CanLII 5408 (ON CA), 49 O.R. (3d) 641 (C.A.), at para. 20.
[15] Because the municipality owns the sidewalk, it has the primary responsibility for its condition and owes a duty of care to persons who use the sidewalk. The municipality is not, however, liable for personal injuries caused by snow or ice on a sidewalk except in cases of gross negligence: Municipal Act, S.O. 2001, c. 25, s. 44(9). This gross negligence standard takes account of the fact that it takes time for the municipality to clear every sidewalk in a city following a snowfall or other inclement weather.
[16] Although occupiers of both residential and commercial properties are often subject to municipal by-laws that obligate them to clear the ice and snow on public sidewalks that surround their property, that obligation is not sufficient to make them occupiers of the sidewalk within the meaning of the Act: Bongiardina, at para. 29; Slumski v. Mutual Life Assurance Co. of Canada, [1994] O.J. No. 301 (Div. Ct.), at para. 5.
[17] In order to be an occupier of the sidewalk within the meaning of the Act, the occupier of the adjacent premises must have taken steps to come within clause (a) or (b) of the definition, by sharing sufficient possession or control with the municipality. That is what occurred in two often-referred to cases, Bogoroch v. Toronto (City), [1991] O.J. No. 1032 (C.J. (Gen. Div.)) and Moody v. Toronto (City) (1996), 1996 CanLII 8229 (ON SC), 31 O.R. (3d) 53 (C.J. (Gen. Div.)).
[18] The facts in Bogoroch bear a number of similarities to this case. The plaintiff slipped and fell on an ice patch on the sidewalk in front of the defendant’s Kitchen Table store on Spadina Road, and suffered a broken ankle. The City of Toronto had issued a permit to Kitchen Table to use a portion of the sidewalk in front of the store, constituting about 25 percent of the sidewalk, to sell and display its goods. The trial judge first found that Kitchen Table was in physical possession of the portion of the sidewalk covered by the permit. However, that was not where the plaintiff fell. He fell on the sidewalk in front of the goods on display.
[19] On the issue whether Kitchen Table was an occupier of that area, the trial judge accepted the plaintiff’s submission that Kitchen Table intended to and did use the entire sidewalk, not just the portion granted by the permit, to sell and display its goods throughout the year, and that the rest of the sidewalk “became virtually an aisle of the store … from which both the general public and its customers could view and buy its goods.” He found that through its policy of aggressive marketing, the defendant used the entire sidewalk to further its commercial objectives, and was therefore an occupier of the entire sidewalk in front of its store, within the meaning of what is now clause (a) of the definition.
[20] Moody also involved a slip and fall on a sidewalk. The accident occurred outside the Rogers Centre (then called the Skydome) at 10:15 p.m. when the plaintiff was leaving a Blue Jays game. The plaintiff fell on part of the road allowance for Blue Jays Way owned by the City of Toronto. The plaintiff tripped over the raised edge of a concrete slab. The plaintiff did not see the protruding concrete edge because he was walking in a large crowd at the time and had to keep his head up.
[21] The plaintiff sued both the City and the Skydome. The Skydome moved for summary judgment on the basis that it was not an occupier within the meaning of the Act. The motion judge dismissed the motion. He found that the evidence could support a finding of control by the Skydome over the patrons using the walkway, and thus could support a finding that the Skydome was an occupier of the premises within the meaning of clause (b) of the definition.
[22] The evidence showed that: i) the walkway was used almost exclusively by Skydome patrons; ii) a significant number of Skydome patrons had no alternative but to use the walkway; and iii) the number of patrons using the sidewalk before and after each game created a crush of activity that made it impossible for a patron to watch for hazards on the walkway.
[23] The motion judge in Moody also addressed the concern that the result in the case could represent an extension of liability beyond the old common law of occupiers’ liability and the policy that had informed it. He referenced two cases decided before the enactment of the Occupiers’ Liability Act, where the courts imposed a duty of care on property owners who invited a person to use the sidewalk in front of their properties and the person suffered injury as a result: Driscoll v. Breslin et al., 1954 CanLII 141 (ON CA), [1954] O.R. 913 (C.A.), aff’d 1955 CanLII 15 (SCC), [1956] S.C.R. 64 and Snitzer v. Becker Milks Co. Ltd. et al. (1976), 1976 CanLII 594 (ON SC), 15 O.R. (2d) 345 (H.C.). The motion judge did not cite these cases to suggest that the common law of occupiers’ liability continues to apply. He cited them simply to demonstrate that imposing liability in a case like the one before him would not represent a novel departure or be contrary to public policy.
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