Authors: Ashley Bennett, & Caleb Timmermann, adapted from a presentation to the County of Carleton Law Association.
Since 1990, all claims relating to occupiers’ liability in Ontario have been governed by the Occupiers’ Liability Act (the “Act”).1 According to the Act, anyone who is in physical possession or control of a property has a duty to take care that persons on the property are reasonably safe.2 Just as this duty applies to homeowners, it likewise applies to owners and occupiers of commercial businesses. Consequently, the failure of commercial occupiers to fulfill this duty can result in injuries and a considerable amount of litigation.
The following snapshot of four recent occupiers’ liability cases from Ontario, which focus on cases involving slips, trips and falls in the commercial context, provide valuable takeaways on this area of the law and may be useful for business owners as they consider their obligations to take care of persons on their property.
Note: a summary of the Occupiers’ Liability Act along with relevant terms follows this article.
Mind the gap!
Nagrare v Swirls Cup Cakes, 2017 ONSC 2567
The plaintiff was injured after tripping while entering a bakery in Mississauga and brought a claim under the Act against Swirls Cupcakes, the tenant of the premises, and the landlord. The plaintiff alleged that one or both failed to take reasonable care to prevent injuries to customers and others.
However, according to the plaintiff’s own evidence, there was no crack, irregularity, or obstacle at the doorway of the bakery — she simply tripped and fell. In light of this, Swirls brought a motion for summary judgment and both the plaintiff and Swirls produced expert reports for the motion.
Swirls’ expert reported that the entrance was in good repair and properly constructed in compliance with the Ontario Building Code. The plaintiff’s expert chose to instead focus on the sign affixed to the bakery door that warned customers to “watch your step”, saying that it should have been of a different colour and printed in all capital letters.
The court, however, held that this argument was nonsensical and concluded that the defendant had made sufficient effort to provide a legible and highly visible warning sign. The court also held that there was no breach of the duty to take reasonable care under the Act.
- Tenants and Landlords should see it as their responsibility to warn customers of potential hazards. In this case, a sign warning of a high step potentially saved a costly judgment.
Hit me with your best “double shot”
Mackay v Starbucks Corporation, 2017 ONCA 350
One of the key elements of this case, which went to appeal, was whether or not Starbucks was considered an “occupier” of an ice-covered municipal sidewalk which joined the café with its patio, and upon which the plaintiff had slipped and fallen.
According to the evidence at trial, as part of maintaining their patio, Starbucks had salted and sanded the steps where it joined the municipal sidewalk. It also made a pathway from the municipal sidewalk to the steps. The trial judge concluded that by doing so, Starbucks had assumed sufficient control over the municipal sidewalk to be considered an “occupier” under the Act.
On appeal, the trial judge’s decision was upheld with the Court of Appeal noting that it is consistent with the Act that landlords (owner) and tenants (occupier) can be joint occupiers with a municipality of portions of the sidewalk next to their stores.
- Courts will look closely at the level of possession and control a commercial tenant or landowner has over the premises and may find occupier status for a portion of a municipal owned sidewalk adjacent to its storefront. Because of this, injured parties should consider naming the storeowner, tenant and the Municipality if injured on property that borders commercial and municipal property.
Shop till you drop
Rego v Walmart, 2017 ONSC 812
In this case, while the plaintiff’s fall was captured on video surveillance, and there were several witnesses, more evidence was required to determine liability under the Act.
After slipping and falling in a Walmart store, and being attended to by a number of employees, the plaintiff commenced an action against Walmart, alleging that she had fallen as a result of liquid on the floor and that Walmart did not have a reasonable system of inspection and maintenance in place at the time of the incident.
Walmart, meanwhile, argued that there was no liquid on the floor and that the plaintiff fell as a result of the fact that she had been wearing high heels. Walmart also argued that it had maintained a reasonable system of inspection and maintenance at the time of the incident and requested a summary judgement.
The incident was captured on the store’s video surveillance system. When examination of the security camera footage showed no liquid or debris visible in the area, and showed other individuals walking through the area, suggesting that there was no liquid in the vicinity, the plaintiff claimed that while she did not see any liquid, she later observed a Walmart employee cleaning a liquid from the area. The court noted that while this employee had been identified, Walmart had not sought to provide any evidence from this individual. Furthermore, the court recognized that the plaintiff sought to examine the security camera operator, presumably because the video surveillance did not show an employee wiping liquid off the floor.
In light of this, the court concluded that both the credibility of witnesses and the plaintiff’s own evidence was in question. As such, it refused to grant summary judgment, holding that the issue of whether there was in fact liquid on the floor was a genuine issue requiring a trial.
- At the early stages of an investigation, it is prudent for storeowners to keep a full, unedited, copy of any video surveillance for the purposes of litigation. It is also prudent to interview all employees and obtain a written copy of their statement. Early preservation of evidence can help reduce the cost of a long court battle.
A step in the wrong direction
Carnovale v Longo Brothers Fruit Markets Inc., 2017 ONSC 4131
While walking back to her car through the parking lot of Longo’s grocery store in Vaughan, the plaintiff stepped onto a traffic island and fell forward, injuring herself. She commenced an action against Longo’s and the owner of the property on which the store was located.
The defendants subsequently moved for summary judgment – where a judicial decision is made, avoiding prolonged trial time and costs – and both the plaintiff and the defendants filed expert reports prepared by forensic engineering firms.
According to the plaintiff’s expert, the curb height of 20 centimeters was higher than what the plaintiff had expected. The judge, however, found that there was no evidence filed by the plaintiff herself to support this theory. The defendants’ expert, meanwhile, pointed out that a 20-centimeter stair was the allowable maximum according to the Ontario Building Code. This comparison supported the defendant’s claim that the curb was at a proper height and was reasonably safe as is required under the Act.
The judge was in agreement with the defendants that if the Province had legislated that the rise of a stair at 20 centimeters is reasonable, a curb of a similar height could not be inherently hazardous. Ultimately, the motion for summary judgment was granted and the plaintiff’s action was dismissed.
- Summary judgment motions can be a useful tool to resolve issues of liability in cases where the facts are reasonably straightforward and credibility is not an issue.
Summary of Legislation
“Occupier” is defined in section 1 of the Act as follows:
1. In this Act,
(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”)
Section 2 of the Act replaces the common law duty with a single statutory duty: Common law duty of care superseded
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. R.S.O. 1990, c. O.2, s. 2.
Section 3(1) of the Act imposes an affirmative duty requiring occupiers to take reasonable care in the circumstances to make their premises 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.
(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. R.S.O. 1990, c. O.2, s. 3.
- Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
- Ibid at s. 3(1).