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Torts - Occupiers' Liability (2). Lyng v. Ontario Place Corporation
In Lyng v. Ontario Place Corporation (Ont CA, 2023) the Court of Appeal considered an appeal from a personal injury action in which the trial judge apportioned 75% of damages to the appellant and 25% to the respondent under the principles of contributory negligence. In these quotes the court addresses the s.3 ['Occupier’s duty'] of the Occupiers' Liability Act:Occupiers’ Liability Act
[24] Section 3 of the Act provides that: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. [25] Ontario Place correctly points out that occupiers are not required to take unrealistic or impractical precautions against known risks, nor are they required to protect against every possible danger: Waldick v. Malcolm, 1991 CanLII 71 (SCC), [1991] 2 S.C.R. 456, at pp. 470-72. The standard is not perfection.
[26] Ontario Place’s argument is that wet grass caused by rainfall, as found by the trial judge, is not an unusual danger that it, as the occupier, had to guard against. It points to several lower court, and two appellate court, decisions in support. It highlights the British Columbia Court of Appeal’s decision in Malcolm v. B.C. Transit (1988), 1988 CanLII 3213 (BC CA), 32 B.C.L.R. (2d) 317 (C.A.), and this court’s decision in Winters v. Haldimand (County), 2015 ONCA 98, 33 M.P.L.R. (5th) 1. In Winters it was held that an occupier does not have a duty to warn of the dangers of climbing a tree, and in Malcolm the court, concluding that wet grass was not an unusual danger, held that there is no duty “to warn an adult, not suffering under any disability, of the ordinary risks arising out of the exigencies of everyday life. Any such adult person without being warned knows and accepts the risks of falling on a steep, wet, grassy slope or a path”: at para. 10.
[27] The trial judge, however, cited the leading authority from the Supreme Court – Waldick – noting that “[a]s indicated in Waldick, the duty of reasonable care 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”. The trial judge then proceeded to thoroughly address the factors present here and explained why, in the circumstances of this case, Ontario Place was liable.
[28] Distinguishing this case from those relied upon by Ontario Place, the trial judge specifically found that “[b]y blocking the pedestrian bridge and making no reasonable effort from preventing the crowd, a number who have been drinking alcohol, from going onto that wet hazardous hill, Ontario Place failed in its duty to take care that persons were reasonably safe while on its premises”. It is important to note that the trial judge did not find that Ontario Place had an obligation to prevent patrons from entering onto all patches of wet grass, everywhere on the premises, but pinpointed what he viewed as Ontario Place’s negligent decision to not place “barriers to prevent people from going down [the] slippery hill”. He concluded that it would have been a “simple matter to warn people to avoid that hill as it was a slip and fall hazard after a heavy rain”.
[29] The trial judge did what s. 3 directs him to do – he carefully considered what would have been reasonable in the circumstances. In the end he found two clear breaches: 1) the failure to erect barriers at the location where people would proceed down the hill in question, and 2) the failure to warn the crowd (i.e., by a sign) to avoid the hill.
[30] The trial judge approached this question as required by s. 3 and by Waldick. I see no error and would reject this ground of appeal. . Musa v. Carleton Condominium Corporation No. 255
In Musa v. Carleton Condominium Corporation No. 255 (Ont CA, 2023) the Court of Appeal considered a negligence 'slip and fall' case. Here the court considered a leading standard of care case in slip and fall litigation:[44] Although the trial judge did not explicitly cite to the Supreme Court’s decision in Waldick, the thrust of his analysis is consistent with the contextual analysis that the court espoused. In Waldick, a slip and fall case, the court articulated several factors to consider in assessing reasonable care, including: the weather, the time of year, the size and nature of the property, the cost of preventive measures, the quality of the footwear worn by the plaintiff, and the length of the pathway.
[45] In my view, these factors informed the trial judge’s decision. He identified that: the incident took place amidst a snowstorm that set in at 4 a.m. on a residential condominium property, the temperature was just below freezing, and ice formation was readily foreseeable. He considered in some detail the preventative measure of pre-salting the property, and he expressly made a finding on the type and quality of footwear of the respondent’s winter boots. Further, the trial judge considered and accepted the expert evidence and industry best practices guidelines in determining the appropriate standard of care. Contrary to the appellant’s submission, the trial judge’s analysis was entirely in keeping with Waldick. . Musa v. Carleton Condominium Corporation No. 255
In Musa v. Carleton Condominium Corporation No. 255 (Ont CA, 2023) the Court of Appeal considered a negligence 'slip and fall' case. Here the court illustrates the involvement of the Occupier's Liability Act (OLA), with the contracted snow removal company being held to be the 'occupier' of the condominium under the OLA:[2] The respondent sued Carleton and Exact Post. The parties agreed on damages, and a trial proceeded on the issue of liability. Exact Post also accepted that Carleton’s obligations with respect to winter maintenance of the condominium property were wholly delegated to it. For the purposes of this action, Exact Post was deemed to be an occupier of the condominium property under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (the “OLA”).
[3] The trial focused on a very specific issue: whether the timing of Exact Post’s application of road salt was consistent with the reasonableness standard of care required of a commercial snow removal contractor in the circumstances.
[4] The trial judge held that in the circumstances of this case, since Exact Post had decided not to pre-salt the roadway in advance of the storm, it was required to apply road salt concurrently with or very promptly after plowing the snow, to prevent the formation of ice. The trial judge concluded that the delay in applying road salt was due to an inherent problem in Exact Post’s system for applying salt to client properties. Accordingly, the trial judge found Exact Post negligent in its failure to apply road salt in an appropriate and timely manner. This negligence caused a dangerous icy surface to form on the roadway that had been plowed for use by the residents, creating an unreasonable risk of injury by slipping and falling.
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[17] The parties agreed at trial that the appellant was an “occupier” of the condominium premises where the plaintiff slipped and fell. Subsection 3(1) of the OLA prescribes the occupier’s “duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises … are reasonably safe while on the premises.” This duty applies “whether the danger is caused by the condition of the premises or by an activity carried on on the premises”: s. 3(2). The appellant also had a common law duty to take reasonable care in carrying out its winter maintenance activity.
[18] At the time of the incident, Ottawa’s Property Maintenance (By-law No. 2005-208) provided, under the heading “Snow and Ice”: “[e]very owner or occupant of a building shall keep the roofs of the buildings and the surrounding lands free of accumulations of snow or ice that might create an accident hazard.”
[19] As noted above, a winter maintenance contract existed between the appellant and Carleton. It is not contested that Carleton wholly delegated its snow removal service to Exact Post through this contract. The relevant portions stated:ROADWAYS AND PARKING AREAS
1. The Contractor shall remove snow from all parking lots and roadways after a snowfall of 5 centimetres or more, when drifting occurs causing snow banks, or when called by the Manager.
2. The cleaning of parking lots and roadways (including the shared access road) will commence during the end of the snowfall or immediately following.
3. Roadways, parking lots, entrances, and sidewalks shall be cleared within eight (8) hours or as soon as possible after the storm and all snow will be removed from the development.
4. After a snowfall of 10 centimetres or more, the Contractor shall clear and open up all roadways before commencing on parking lots to allow maximum access to and from the project.
5. No hour restrictions shall be placed on the Contractor, but the Contractor shall attempt to confine his work to the hours between 6 a.m. and 11 p.m.
6. The Contractor shall remove any ice build-up that may occur over the term of this contract. The Corporation and the manager shall determine whether the ice buildup is sufficient to require removal.
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PRIORITY OF SNOW REMOVAL
1. Early morning pass through of roadways to allow traffic out of project.
2. Contractor to return and clear out parking spots during the day. ....
[21] The trial judge concluded that at the time of the injury, the appellant had failed in its common law and statutory duty under the OLA to take reasonable care to ensure that residents walking on the condominium’s roadway were reasonably safe. He found that the delayed application of road salt fell below the standard of care required of a commercial winter maintenance contractor in the circumstances.
[22] In reaching that conclusion, the trial judge accepted the respondent’s expert evidence – which was supported by industry best practices guidelines – that what likely occurred here was the creation of slippery film on a freshly plowed road. When Mr. Newman cleared a pathway using his heavy box plow, the plow compacted the remaining snow on the pavement, which very quickly froze or had already frozen. This compacted snow was very slippery to pedestrians like the respondent.
[23] According to the evidence of the respondent’s expert, the slippery hazard could have been avoided by either pre-salting the driveway or applying the road salt concurrently with or immediately after plowing. As Mr. Mitchell decided not to pre-salt the roadway, he was required to apply the salt concurrently with or very promptly after plowing the snow to prevent ice from forming on the pavement. Instead, Exact Post delayed in applying road salt. This delay was due to a systemic problem inherent in the appellant’s winter maintenance system, which involved Mr. Mitchell personally handling the salt application in 14 properties spread around the city. Put simply, he was overstretched. His failure to delegate salting to his plow operators was problematic as timely application of road salt became a “hit and miss.” Therefore, the failure to apply salt in a timely and appropriate manner was negligent. The trial judge also found that the dangerous road condition was the proximate cause of the plaintiff’s injury. . Kim v. Ottawa (City of)
In Kim v. Ottawa (City of) (Div Court, 2022) the Divisional Court granted a Small Claims Court appeal involving the Occupiers' Liability Act:The Occupiers’ Liability Act
[17] Section 3 of the Occupiers’ Liability Act provides:(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.
(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on 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] Where a person willingly assumes the risks of entering premises, s. 4(1) of the Occupiers’ Liability Act substitutes a lesser duty on the occupier “to not create a danger with the deliberate intent of doing harm or damage” and “to not act with reckless disregard” with respect to the person or their property.
[19] Contrary to Ms. Kim’s written submissions, the applicable duty on the City is that set out in s. 3(1) of the Occupiers’ Liability Act.
[20] Ms. Kim also relies on s. 9(1) of the Occupiers’ Liability Act. Section 9(1) provides:Nothing in this Act relieves an occupier of premises in any particular case from any higher liability or any duty to show a higher standard of care than in that case is incumbent on the occupier by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of,
(a) innkeepers, subject to the Innkeepers Act;
(b) common carriers;
(c) bailees. [21] In my view, s. 9(1) of the Occupiers’ Liability Act has no application to this case. As the Court of Appeal for Ontario explained in Schnarr v. Blue Mountain Resorts Limited,[3] s. 9(1) provides that the statute does not restrict the imposition of a higher liability or standard of care upon occupiers and provides, as examples, innkeepers, common carriers, and bailees. The class of persons in s. 9(1) is not exhaustive; however, “s. 9(1) should be read ejusdem generis and be restricted to situations that are similar to the enumerated examples”: Schnarr, at para. 54.
[22] In Schnarr, at para. 55, the Court of Appeal was clear:Indeed, the situations in which Ontario courts have imposed a higher standard of care upon an occupier are squarely analogous to the enumerated classes in s. 9(1). For example, in Miakowski (Litigation guardian of) v. Persaud … this court held that occupiers who are also landlords remain subject to the duties imposed on landlords under the Residential Tenancies Act ... And in Miller v. Canada (Attorney General) ... Leach J. held that the Crown’s duty to take reasonable and adequate measures to protect an inmate from a reasonably foreseeable risk of injury and predictable dangers supplemented the Crown’s duties under the OLA as an owner and occupier of penitentiaries. [citations omitted] [23] The City, as occupier of a fitness facility, is not in a position analogous to that of a landlord, a common carrier, a bailee, or a landlord. Section 9(1) has no application to the circumstances of this case.
[24] The statutory duty imposed by s. 3(1) of the Occupiers’ Liability Act is a duty to take reasonable care. The Occupiers’ Liability Act does not impose a strict liability standard. As the Court of Appeal stated in Waldick v. Malcolm,[4] at para. 20:All courts have agreed that the section imposes on occupiers an affirmative duty to make the premises reasonably safe for persons entering them by taking reasonable care to protect such persons from foreseeable harm. The section assimilates occupiers’ liability with the modern law of negligence. The duty is not absolute and occupiers are not insurers liable for any damages suffered by persons entering their premises. Their responsibility is only to take “such care as in all the circumstances of the case is reasonable.” The trier of fact in every case must determine what standard of care is reasonable and whether it has been met. [25] The duty of care under the Occupiers’ Liability Act is a standard of reasonableness, not perfection; it does not require unrealistic or impractical precautions against known risks: Kerr v. Loblaws.[5]
[26] In my view, the deputy judge misapprehended the standard of reasonable care required under s. 3(1) of the Occupiers’ Liability Act and applied a strict liability standard. Although the deputy judge wrote at para. 37 of her reasons that the City “failed to make their premises reasonably safe” for Ms. Kim, at para. 43, the deputy judge described the City’s obligation in the following terms:The City of Ottawa had the obligation to make sure that the premises were safe for all users. Victims should not refrain from doing an activity for fear for their safety. Yuna Kim had right to expect that she would be safe when she was using the Champagne pool. . Jonas v. Elliott
In Jonas v. Elliott (Ont CA, 2021) the Court of Appeal succinctly states the purpose of the Occupiers' Liability Act:[4] The Occupiers’ Liability Act R.S.O. 1990, c. O.2 provides that a person or organization with physical possession and/or responsibility for and control over a property is supposed to take steps to ensure that all persons on the property are reasonably safe while on the premises. .... . Onley v. Whitby (Town)
In Onley v. Whitby (Town) (Ont CA, 2020) the Court of Appeal considered the standard of care under the Occupiers' Liability Act after an power wire electrocution subsequent to a lightning strike:[4] The appellants sued under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2. (the “OLA”). The trial judge found that while the possibility of the lightning strike was foreseeable, the precise nature of this sort of injury being caused by damage to the interior wires of the pole, without any outward sign of damage, was not. He went on to consider whether the respondent had met its “duty to take such care as in all the circumstances is reasonable to see that persons entering the premises…are reasonably safe while on the premises”: OLA, s. 3(1).
[5] The main issue at trial was liability and specifically whether the respondent had met its standard of care. The trial judge found that it had. In assessing the standard of care, the trial judge considered the fact that the respondent had a safety agreement with the Electrical Safety Authority (the “ESA”). This agreement provided for annual inspections performed by the ESA as well as advice on compliance with the Electrical Safety Code, O. Reg. 164/99.
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Occupiers’ duty of care
[10] The OLA imposes an affirmative duty on all occupiers 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”: s. 3(1). It does not require a standard of perfection: Drummond v. Cadillac Fairview Corporation Limited, 2019 ONCA 447, at para. 42. What constitutes reasonable care depends on the facts of each case: Tondat v. Hudson’s Bay Company, 2018 ONCA 302, at para. 5.
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