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The Duty of Care of the Occupier of Property

February 1, 2022

Nova Scotia

,

Canada

Issue

In what circumstances will a property owner be found liable for injuries incurred on the premises on the basis that the premises were inherently unsafe, dangerous, or otherwise not fit for use?

Conclusion

No decision was identified where an owner of a premises was found to be liable on the basis that the area was inherently unsafe, dangerous, or otherwise not fit for use.

A property owner is not an insurer for all accidents which may occur on such owner’s property. In order to attract liability, a property owner must have breached a duty of care owed to an individual, and such breach must have caused damages to that individual. (Lavigne v. Neal)

Until the emergence of s.4 of the Occupiers’ Liability Act, the duty of care owed by occupiers of property to their lawful visitors was that a visitor, using reasonable care on his part for his own safety, was entitled to expect that the occupier shall on his part use reasonable care to prevent damage from "unusual danger", which he knew or ought to have known; and that, where there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined as a matter of fact. Now under the Occupiers' Liability Act, it would appear that the issue is whether the occupier took reasonable care, in the circumstances, to make their premises safe. (Hill v. Cobequid Housing Authority)

In the context of vicarious liability the Supreme Court of Canada in City of St. John v. Donald ("Donald"), stated that where the danger of injurious consequences to others from work ordered to be done is so inherent in it that to any reasonably well-informed person who reflects upon its nature the likelihood of such consequences ensuing, unless precautions are taken to avoid them, should be obvious, so that were the employer doing the work himself his duty to take such precau­tions would be indisputable. That duty imposed by law he cannot delegate to another, be he agent, servant or contractor, so as to escape liability for the consequence of failure to discharge it.

In Milina v. Bartsch, the plaintiff was severely injured after crashing while doing an acrobatic stunt at a ski jump exhibition. The plaintiff brought an action against the owner of the property. However, the Court found that the owner was not liable since it was not an "occupier" under the Occupiers Liability Act, R.S.B.C. 1979, c. 303 since it did not have the requisite control over the premises. The Court also found that the owner would not have been liable even if the plaintiff had shown that it was an occupier since the plaintiff failed to establish that the owner had breached the relevant standard of care. The owner was able to rely on the company running the ski jump exhibition to conduct it in a safe manner. The plaintiff argued that the owner was not able to rely on the company, based on the rule in Donald, supra, since the activity (the ski exhibition) was inherently dangerous. However, this argument was rejected by the Court.

Law

Section 2 of the Occupiers' Liability Act, SNS 1996, c 27 ("OLA") defines an "occupier" as follows:

(a) “occupier” means an occupier at common law and includes

(i) a person who is in physical possession of premises, or

(ii) a person who has responsibility for, and control over, the condition of premises, the activities conducted on the premises or the persons allowed to enter the premises,

Section 4 sets out the duty of care of an occupier:

4 (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 each person entering on the premises and the property brought on the premises by that person are reasonably safe while on the premises.

(2) The duty created by subsection (1) applies in respect of

(a) the condition of the premises;

(b) activities on the premises; and

(c) the conduct of third parties on the premises.

(3) Without restricting the generality of subsection (1), in determining whether the duty of care created by subsection (1) has been discharged, consideration shall be given to

(a) the knowledge that the occupier has or ought to have of the likelihood of persons or property being on the premises;

(b) the circumstances of the entry into the premises;

(c) the age of the person entering the premises;

(d) the ability of the person entering the premises to appreciate the danger;

(e) the effort made by the occupier to give warning of the danger concerned or to discourage persons from incurring the risk; and

(f) whether the risk is one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection.

(4) Nothing in this Section relieves an occupier of premises of any duty to exercise, in a particular case, a higher standard of care that, in such case, is required of the occupier by virtue of any law imposing special standards of care on particular classes of premises. 1996, c. 27, s. 4.

Section 3 of the OLA states that the statute replaces the common law rules:

Replacement of common law rules 3 This Act applies in place of the rules of common law for the purpose of determining the duty of care that an occupier of premises owes persons entering on the premises in respect of damages to them or their property. 1996, c. 27, s. 3.

In Hill v. Cobequid Housing Authority, 2010 NSSC 294 (CanLII), MacAdam J. explained that prior to the adoption of the OLA the duty of care of occupiers was based on the idea of "unusual danger":

[17] Until the emergence of s. 4 of the Occupiers’ Liability Act, the duty of care owed by occupiers of property to their lawful visitors was founded in the often quoted statement of Willes, J. in Indermaur v. Dames (1866), L.R. 1 C.P. 274 (Eng.C.P.) at p. 288:

...With respect to such a visitor, at least, we consider it settled law that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact.

After surveying decisions from across Canada, MacAdam J. concluded that now under the OLA to determine whether an occupier is liable for an injury on their premises the question is whether the occupier took reasonable care, in the circumstances, to make their premises safe:

[21] In the present instance the defendants, neither in their written or oral submissions, suggested that the plaintiff, in order to be successful, was required to establish that there was an “unusual danger.” At para. 50 in Smith v. Atlantic Shopping Centres Ltd., supra, Justice MacLellan referenced the principles outlined by Justice Cameron in Gallant v. Roman Catholic Episcopal Corp. for Labrador/Diocese of Labrador City‑Schefferville, 2001 NFCA 22 (CanLII), [2001] N.J. No. 118, at para. 27.

As already noted, in the common law jurisdictions in Canada a generally consistent approach to occupiers' liability has emerged, one which is compatible with Stacey. The following is not an attempt to create an exhaustive list but a collection of principles which emerge from the cases under the current, generally accepted view of occupiers' liability and which are relevant to the law in this province, post Stacey:

1. There is a positive obligation upon occupiers to ensure that those who come onto their properties are reasonably safe (see: Stacey; DeMeyer v. National Trust Co. (1995), 1995 CanLII 16381 (MB QB), 104 Man. R. (2d) 170 (Q.B.); Preston v. Canadian Legion, Kingsway Branch No. 175 (1981), 1981 ABCA 105 (CanLII), 123 D.L.R. (3d) 645 (Alta.C.A.));

2. The onus is upon the plaintiff to prove on a balance of probabilities that the defendant failed to meet the standard of reasonable care ‑ the fact of the injury in and of itself does not create a presumption of negligence ‑ the plaintiff must point to some act or failure to act on the part of the defendant which resulted in her injury (see: Kayser v. Park Royal Shopping Centre Ltd. (1995), 1995 CanLII 655 (BC CA), 16 B.C.L.R. (3d) 330 (C.A.); Empire Ltd. v. Sheppard, 2001 NFCA 10);

3. When faced with a prima facie case of negligence, the occupier can generally discharge the evidential burden by establishing he has a regular regime of inspection, maintenance and monitoring sufficient to achieve a reasonable balance between what is practical in the circumstances and what is commensurate with reasonably perceived potential risk to those lawfully on the property. An occupier's conduct in this regard is to be judged not by the result of his efforts (i.e. whether or not the plaintiff was injured) but by the efforts themselves (see: Empire Stores);

4. The occupier is not a guarantor or insurer of the safety of the persons coming on his premises. (See: Empire Stores; Qually v. Pace Homes Ltd. and Westfair Foods Ltd. (1993), 1993 CanLII 14812 (MB QB), 84 Man.R. (2d) 262 (Q.B.) and also, Stevenson v. City of Winnipeg Housing Co. (1988), 1988 CanLII 7383 (MB QB), 55 Man. R. (2d) 137 (Q.B.) in which the court found that there was no duty to completely clear sidewalks of snow in a Winnipeg winter, and that frozen patches were inevitable, notwithstanding that the occupier took reasonable care to make the property reasonably safe.)

[25] It would appear, therefore, that at issue is whether the defendants took reasonable care, in the circumstances, to make their premises safe.

In Lavigne v. Neal, 2003 NBQB 22 (CanLII), the Court emphasized that an owner of a property is not an insurer for everyone who is injured on the property:

[51] I am of the view that to hold the Defendant liable in the circumstances of this case would require imposing upon a homeowner an unrealistically high duty of care. A property owner is not an insurer for all accidents which may occur on such owner’s property. In order to attract liability, a property owner must have breached a duty of care owed to an individual, and such breach must have caused damages to that individual.

In City of St. John v. Donald, 1926 CanLII 66 (SCC), [1926] SCR 371 ("Donald"), the Supreme Court of Canada explained that in certain circumstances an employer will be liable for the actions of a contractor where it normally would not be, if the work carried out is intrinsically dangerous:

While it is a proposition absolutely untenable that in no case can a man be responsible for the act of a person with whom he has made a contract (Ellis v. Sheffield Gas Consumers’ Company)[67]. It is, no doubt, the general rule that the person who employs an independent contractor to do work in itself lawful and not of a nature likely to involve injurious consequences to others is not responsible for the results of negligence of the contractor or his servants in performing it. The employer is never responsible for what is termed casual or collateral negligence of such a contractor or his workmen in the carrying out of the contract; and it is not universally true that he is responsible for injury occasioned by improper or careless performance of the very work contracted for; he is not so where the work is not intrinsically dangerous and, if executed with due care, would cause no injury, and the carrying out of it in that manner would be deemed to have been the thing contracted for. His vicarious responsibility arises, however, where the danger of injurious consequences to others from the work ordered to be done is so inherent in it that to any reasonably well-informed person who reflects upon its nature the likelihood of such consequences ensuing, unless precautions are taken to avoid them, should be obvious, so that were the employer doing the work himself his duty to take such precautions would be indisputable. That duty imposed by law he cannot delegate to another, be he agent, servant or contractor, so as to escape liability for the consequence of failure to discharge it. That, I take it, is a principle applicable in such a situation whatever be the nature otherwise or the locus of the work out of which it arises. Injuries due to improper acts authorized by the employer, to his negligence in the selection of the contractor, to his failure to impart proper instructions, to his neglect to prevent the creation on his own property by the contractor of a nuisance, or its continuance, or to his giving employment to do acts which, though lawful, can be done only at the peril of him who does them, are really not within the purview of the doctrine imputing vicarious responsibility. In these cases the responsibility is rather direct and rests on personal acts or omissions.

In Milina v. Bartsch, 1985 CanLII 179 (BC SC), the plaintiff was severely injured after crashing while doing an acrobatic stunt at a ski jump exhibition. The plaintiff brought an action against the owner of the property. However, the Court found that the owner was not liable since it was not an "occupier" under the Occupiers Liability Act, R.S.B.C. 1979, c. 303 since it did not have the requisite control over the premises:

Pursuant to the agreement, T.I.C.C. Limited was not in physical pos­session of the relevant premises at the time the plaintiff was injured. Moreover, the agreement places all responsibility for the activities con­ducted on the premises on Show Producers. T.I.C.C. Limited did not have "control" over the activities conducted on the premises in the sense intended by the Act. T.I.C.C. Limited's control under its contract with Show Producers was limited to very specific matters. The only power which T.I.C.C. Limited retained was the right to remove persons who were "objectionable" or "offensive". The show in which the plaintiff was injured cannot be described as either objectionable or offensive.

On these facts, I am satisfied that T.I.C.C. Limited does not fall within the definition of "occupier" under the relevant occupier's liability legislation. While technically it may not have called itself a landlord under the terms of this agreement, it was a landlord for purposes of deter­mining its duty of care to those entering on and conducting activities on the premises. One must look to the substance of the relationship between T.I.C.C. Limited and Show Producers. As stated in Bentley v. Vancouver Exhibition Assn., 1936 CanLII 218 (BC CA), 50 B.C.R. 343, [1936] 1 W.W.R. 480, [1936] 2 D.L.R. 128, per Martin J.A. at p. 480:

We are all of the opinion that the appeal should be allowed. We think, in brief, that the defendant association cannot be held to be liable, because it had given up possession and control of the building in question for the time in question to the joint societies of Girl Guides and Boy Scouts, and therefore was exonerated from liability while it was in the occupation and control of those societies, who were in the position of lessees, or something in legal effect equivalent thereto, of the owner (the defendant).

For these reasons I conclude that T.I.C.C. Limited is not an occupier within the relevant Occupiers Liability Acts. Its duty was confined to that of a landlord. Under s. 6 of the British Columbia Occupiers Liability Act, the duty placed on a landlord is not sufficiently broad to create a duty to the plaintiff in the circumstances of this case.

The Court also found that the owner would not have been liable even if the plaintiff had shown that it was an occupier since the plaintiff failed to establish that the owner had breached the relevant standard of care. The owner was able to rely on the company running the ski jump exhibition to conduct it in a safe manner. The plaintiff argued that the owner was not able to rely on the company, based on the rule in Donald, supra, since the activity (the ski exhibition) was inherently dangerous. However, this argument was also rejected by the Court:

I accept the submission of counsel for T.I.C.C. Limited that under these circumstances it would be unreasonable to expect T.I.C.C. Limited to make further inquiries. In particular, T.I.C.C. Limited was under no duty to ascertain the manufacturers of the equipment and make inquiries of them regarding its proper use. T.I.C.C. Limited rents space to many people for many purposes – people who are presumably competent to organize the shows which they put on. To require that T.I.C.C. Limited perform independent inquiries on every aspect of every activity being performed on its premises would be to go beyond the boundaries of reasonableness. In my view, T.I.C.C. Limited was reasonably entitled to rely on Show Producers and through them, on Messrs. Bartsch and Phil­lips to conduct the show in a safe manner.

As for the plaintiff's contention that T.I.C.C. Limited was not en­titled to so rely because the activity in question was inherently dangerous, my reasons on this point in connection with the claim against Labatts and Show Producers apply equally to the claim against T.I.C.C. Limited.

[...]

Secondly, I am satisfied that the activity in which the plaintiff was engaged was not inherently dangerous within the meaning of the rule relied on by the plaintiff. In St. John v. Donald, [ 1926 CanLII 66 (SCC), 1926] S.C.R. 371 at 383, [ 1926] 2 D.L.R. 185, the principle relied upon by the plaintiff is stated to arise:

... where the danger of injurious consequences to others from the work ordered to be done is so inherent in it that to any reasonably well-informed person who reflects upon its nature the likelihood of such consequences ensuing, unless precautions are taken to avoid them, should be obvious, so that were the employer doing the work himself his duty to take such precau­tions would be indisputable. That duty imposed by law he cannot delegate to another, be he agent, servant or contractor, so as to escape liability for the consequence of failure to discharge it.

In assessing whether an activity is inherently dangerous, regard must be had to the degree of training and expertise of the persons executing the activity. What is dangerous for one person may be safe for another. The evidence indicates that stunts such as the one the plaintiff was performing at the time of his injury have been done thousands of times on the same equipment, without serious mishap. A reasonably well informed person reflecting on the nature of this activity and the likely consequences would conclude that it was reasonably safe, provided that the performers were properly qualified.

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