Category: Occupiers Liability Act

Cooper v. Beaudoin, 2023 ONSC 6543

The plaintiff tripped over sandals during a visit to the home of her sister (Elizabeth) and brother-in law (Daniel). Elizabeth had left the sandals on the back stoop, and the plaintiff broke her ankle when she fell over them. The plaintiff sued Daniel pursuant to the Occupiers’ Liability Act, alleging that he did not take reasonable care in the circumstances to ensure she was reasonably safe while at his home. Following a trial on liability alone, Justice Rees dismissed the action and granted judgment to Daniel. Justice Rees held that Daniel met the standard of care in the circumstances. Daniel was not reasonably required to: request that Elizabeth not leave her sandals on the stoop; warn the plaintiff to look out for sandals left on the stoop; install a shoe rack on the stoop; or, widen the stoop or leave room for shoes to be placed somewhere else. Justice Rees further noted that if liability had been found, the plaintiff would have been found 25% contributorily negligent as she was a frequent visitor of the home and failed to look down when stepping on to the stoop.

Walpole v. Brush, 2023 ONSC 4869

The minor plaintiff was attacked by a dog while visiting the residence of the defendant tenants with her parents. The landlord defendants, who owned the home, were not present at the time of the attack. The landlord defendants brought a summary judgment motion on the basis that the Dog Owners’ Liability Act (DOLA) places liability squarely on the owner of the dog, and the Occupiers’ Liability Act (OLA) did not apply in the circumstances. The plaintiffs argued that the landlord defendants breached common law and statutory duties as occupiers and landlords, and also allowed a hazard on the property in contravention of the Residential Tenancies Act (RTA). Justice Fraser granted partial summary judgment in favour of the landlord defendants and dismissed the action as against them. Justice Fraser found that the DOLA applied to the circumstances of the claim, and that the OLA did not apply. Justice Fraser also found no liability under the RTA because the sections the plaintiffs relied on apply to common areas and not the rental unit.

Addy v. Goulet, 2023 ONSC 1265

Shortly after her 30th birthday, the plaintiff was injured at a bar where bocce was played near an outdoor patio seating area. The defendant Goulet tossed a ball to a friend standing near the plaintiff. The friend did not know the ball had been thrown to him and it hit the plaintiff in the back of the head. Prior to trial the plaintiff and the bar defendants entered into a Pierringer agreement and the trial proceed as against Goulet only. Goulet argued that the bar was liable for lack of signage and lack of a barrier between the bocce court and the patio seating. Justice Williams accepted that the lack of signage fell below the applicable standard of care, but found that there was no causal relationship between the lack of signage and the plaintiff’s injury. Justice Williams was unable to find that the lack of barrier was negligent as no expert evidence was led on the standard of care required of a bocce field. Goulet was found 100% liable.

In terms of damages the plaintiff suffered ongoing headaches, fatigue, and neuropsychological impairments resulting from post-concussion syndrome. She continued to work but was unable to maintain the same level of participation in her employment as before the incident. Her social life was more limited and she had less energy to complete daily activities. Justice Williams awarded: $125,000 in general damages; $23,733.80 for out of pocket expenses; $142,272.68 (plus gross-up) for future care costs; $228,093 for past loss of income; and $1,082,800 (plus gross up) in future loss of income.

Musa v. Carleton Condominium Corporation No. 255 et al., 2022 ONSC 1030

This personal injury action arose from a fall by the plaintiff on ice outside of the condo building where he lived. The trial proceeded on liability only, as damages had been agreed upon. The condo had retained a winter maintenance contractor, which was at the premises prior to the fall and was still plowing at the time of the fall. The contractor had not performed any salting before the fall. Justice Hackland held that the contractor was negligent and liable to the plaintiff. Justice Hackland was persuaded by the expert engineer called by the plaintiff regarding best practices for salting.

Adler v. Promenade General Partner Inc., 2021 ONSC 5393

The plaintiff slipped and fell in a walkway of Promenade Mall near the food court. She alleged that she fell because her shoe became stuck on something sticky on the walkway. She suffered significant injuries, including fractures to her face, skull, and left kneecap. There were no photographs or other objective evidence showing any sticky substance on the ground. The defendants brought a summary judgment motion seeking dismissal of the action on the basis that the plaintiff failed to prove any breach of the Occupiers’ Liability Act. Justice Boswell dismissed the motion, holding that the defendants failed to prove there was no genuine issue requiring a trial. The plaintiff’s offering of her own direct observations of a sticky substance on the floor was admissible direct evidence that there was a sticky substance on the floor and that her foot stuck to it. Her ability to pinpoint a hazard raised a genuine issue for trial, as did the issue of whether the defendants had a reasonable system in place to detect and correct hazards.

Fernandez v. Toronto (City of), 2021 ONSC 5106

The plaintiff slipped on snow/ice on a walkway near a construction site for the City of Toronto’s extension of the TTC subway system. She had witnessed contractors cleaning snow in the area just before walking through the walkway. She slipped and fell on what she believed to be a snow-covered patch of ice. The plaintiff sued the City of Toronto, Toronto Transit Commission, and the general contractor, Bondfield Construction Company.

The defendants brought a motion for summary judgment. Justice Perell granted the motion and dismissed the action, holding that there was no breach of duty under the Occupiers’ Liability Act, and no gross negligence by the City. Justice Perell found that the systems in place for winter maintenance were reasonable.

Despite disagreement between the defendants as to whether the winter maintenance policy was strictly followed, Justice Perell found there was no genuine issue requiring a trial about that issue because as a matter of fact the walkway conditions were addressed before the plaintiff reached the area. Justice Perell specifically noted that there was no suggestion that the plaintiff was careless in crossing the walkway, rather this was a case of an accident occurring without anyone being careless.

Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313

In Schnarr v. Blue Mountain and Woodhouse v. Snow Valley Resorts, the Plaintiffs executed the ski resorts’ waivers of liability as a condition of the purchase of their lift tickets and were subsequently injured. In Schnarr, the motion judge held that the resort could not disclaim liability for any breach of the deemed warranty of providing services of a “reasonably acceptable quality” and found that the Plaintiff could advance claims in negligence and breach of warranty. The motion judge held that the negligence claim would be subject to the resort’s waiver, but that the breach of warranty claim would not. In Woodhouse, the motion judge held that the resort’s waiver was presumptively void and that the Plaintiff could proceed with her claim. The two appeals were heard together. The Ontario Court of Appeal held that ss. 7 and 9 of the Consumer Protection Act, 2002, S.O. 2002, c. 30 (“CPA”) conflicted with s. 3 of the Occupier’s Liability Act, R.S.O. 1990, c.O.2 (“OLA”). As such, the specific provisions of the OLA prevailed over the general provisions of the CPA and the Plaintiffs were bound by the waivers and releases of liability, regardless of whether their claims were in tort or breach of warranty.

Osmond v. Watkins et al., 2017 ONSC 5729

The Plaintiff was a tradesman and fell while performing work on the roof of the Defendants’ home. The Defendants brought a motion for summary judgment. Justice Broad granted the motion on the basis that a tradesman is presumed to know how to perform roofing work and to be aware of the necessary safety equipment required to perform that work. Justice Broad went on to state that even if there was evidence that the Plaintiff was inexperienced in roofing work, and the Defendants were aware of this, it did not require the Defendants to provide safety equipment or to supervise the Plaintiff to ensure that he used it.

Hamilton v. Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467

The Plaintiff alleged that she slipped and fell on vinyl flooring in Toronto Community Housing that was installed in the hallway in front of her apartment. She had resided at this apartment for nine years. On a summary judgment motion, Justice Sanfilippo dismissed the Plaintiff’s claim due to a lack of objective evidence of any unsafe condition that could be found to have caused the Plaintiff’s slip and fall.