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Torts - Occupiers' Liability II

. 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.

....

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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