Canada: Case Comment: Duty Of Care Under The Occupiers' Liability Act

Last Updated: May 24 2017
Article by James B. Prior

Recently, the Ontario Superior Court of Justice considered the duty owed to a volunteer under the Occupiers' Liability Act in Baltadjian v. Roman Catholic Episcopal Corporation for the Diocese of Alexandria, 2017 ONSC 61 ("Baltadjian").

In this case, the plaintiff, a parishioner of the defendant church, volunteered to paint the church's interior walls and ceilings.  After assuring a supervisor of the defendant that he was comfortable painting from a ladder and had previous experience doing so, the plaintiff attended for painting duty on multiple occasions over several weeks using an eight foot stepladder.  Unfortunately, while working from the stepladder, the plaintiff fell, resulting in a head injury and coma for 25 days.  He subsequently commenced an action against the defendant church, arguing that it breached its duty to ensure his reasonable safety while he was voluntarily working on the premises.  In response, the defendant brought a motion for summary judgment.

In granting the defendant's summary judgment motion, the Court considered subsection 3(1) of the Occupiers' Liability Act, which imposes on an occupier a duty to take reasonable care so that persons entering on its premises are reasonably safe, such that conduct is negligent if it creates an objectively unreasonable risk of harm.  In reviewing the governing principles under the Occupiers' Liability Act, the Court reiterated the principle that the duty of occupiers to make their premises reasonably safe for people entering on them is not absolute and that occupiers are not insurers liable for any damages that may be suffered by people entering their premises.

After a thorough consideration of all the evidence, the Court granted the defendant's summary judgment motion, finding that it provided a reasonably safe environment that ensured the reasonable safety of the plaintiff.  In making this determination, the Court was mindful of the fact that the integrity of the stepladder in question was confirmed through expert evidence, as well as the fact that the floor on which it was placed was flat, solid and clear of debris.  As such, the stepladder was suitable for its purpose, which was supported by the fact that there were no complaints about it by the plaintiff or others.  The Court specifically noted that the use of a stepladder itself does not inherently constitute an objectively unreasonable risk of harm.

In addition, the Court indicated that even if it could have been said that the stepladder presented an objectively unreasonable risk of harm, the plaintiff, due to his head injury and amnesia, could offer no evidence as to the cause or mechanics of his fall.  As such, the requisite causal nexus could only have been made by speculation and conjecture, which the Court was not prepared to do.

After an extensive consideration of all relevant factors, the Court, putting aside its sympathy for the unfortunate plaintiff, held that the defendant provided a reasonably safe environment for the plaintiff.  As such, it granted the defendant's motion for summary judgment dismissing the plaintiff's claim.

The decision in Baltadjian reminds us that the Occupiers' Liability Act does not create a standard of perfection or presumption of negligence against occupiers whenever individuals are injured on their premises.  Rather, a plaintiff must be able to point to some act, or failure to act, on the part of the occupier which caused or contributed to his or her injury before liability will be established.  Unfortunately, this fundamental principle is frequently forgotten by many plaintiffs, who too often presume that when an accident occurs on an occupier's premises, the occupier is automatically negligent.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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