



COURT OF APPEAL FOR ONTARIO

CITATION: Nolet v. Fischer, 2020 ONCA 155

DATE: 20200227

DOCKET: C65939

Feldman, Fairburn and Jamal JJ.A.

BETWEEN

David Nolet

Plaintiff (Appellant)

and

Caroline Fischer

Defendant (Respondent)

Joel P. McCoy, for the appellant

Chad Leddy, for the respondent

Heard: October 25, 2019

On appeal from the order of Justice Francine
    Van Melle of the Superior Court of Justice, dated September 28, 2018.

Feldman J.A.:

Introduction

[1]

The appellant was moving out of the respondents
    home after their relationship ended, tripped on the sidewalk while carrying his
    freezer out of the house and injured his left ankle. He sued for damages under
    the
Occupiers Liability Act
, R.S.O. 1990, c. O.2. The respondent
    moved successfully for summary judgment dismissing his claim.

[2]

The motion judge gave two bases for dismissing
    the action. The first was that the respondent as owner and occupier of her premises
    did not owe the appellant a duty of care under the
Occupiers Liability Act

because he was also an occupier of the premises. The second was that if the
    respondent did owe him a duty of care, the appellant did not prove a breach of
    duty, because he did not prove there was any unevenness on the sidewalk that
    constituted a hazard, and if there was, he was aware of it.

[3]

I would defer to the factual findings of the
    motion judge on the second ground and dismiss the appeal on that basis.

[4]

However, in dealing with the first issue, the
    motion judge erred in law in her interpretation of the
Occupiers Liability
    Act
by finding that under the Act, one occupier cannot owe a duty of care
    to another occupier. I would set aside that erroneous interpretation.

Background
    facts and findings of the motion judge

[5]

The parties began dating in 2008. The appellant
    moved into the respondents house in 2010. In 2012, he moved to a separate room
    in the basement as their relationship had ended. He moved out later in April
    2012. While he lived at the respondents house, the appellant contributed approximately
    $500 per month towards expenses. On the day of the move, the appellant and his
    friend were carrying a small freezer when he tripped on the sidewalk and fell,
    causing injury including to his left ankle.

[6]

The appellant claimed he fell on a trip ledge
    between two concrete slabs that was about one to two inches high. The height of
    the trip ledge and whether it constituted a hazard were issues in dispute
    between the parties.

[7]

The respondent had two main defences to the
    action. The first was that under the
Occupiers Liability Act
, one
    occupier of premises owes no duty to another occupier of the same premises. The
    motion judge spent a considerable portion of the reasons making factual findings
    on the issue whether the appellant was also an occupier of the premises and
    concluded that he was.

[8]

The parties were unable to refer the motion
    judge to any case where one occupier had sued another for this type of
    accident. The motion judge accepted the respondents argument that the reason
    there was no case law was because there is no cause of action. The motion judge
    accepted that the legislation was never intended to permit co-occupants to sue
    each other under the
Occupiers Liability Act
. It stands to reason
    that a co-occupant is not an entrant on the premises as envisioned by this
    legislation.

[9]

The respondents second main defence was that if
    she owed a duty of care, the appellant had not proved any breach of duty. On
    that issue, the motion judge found that the appellant had not proved the
    existence of the hazard as he had alleged.

[10]

The appellant said the ledge was one to two
    inches high but there was no independent corroboration of that measurement. The
    respondent admitted there may have been a ¾ inch trip ledge on the right side
    of the sidewalk, but the appellants evidence was that he tripped in the middle
    or on the left side, injuring his left ankle. The photographs in evidence appeared
    to show that the height difference on the left side and in the middle was far
    less than on the right side. The motion judge concluded that: in any event,
    there is no reliable evidence on this point. The motion judge also noted that
    the appellant admitted that he had seen the unevenness before the move-out date
    and that he was therefore aware of a possible hazard. She concluded: [t]hus it
    was not the concealed danger to which he referred in para. 5 of the Statement
    of Claim.

Issue 1: Did the motion judge err in her interpretation
    of the
Occupiers Liability Act
?

[11]

The first issue raised on appeal is whether the
    motion judge erred in law by finding that under the Act, one occupier of
    premises is precluded from suing another occupier of the same premises, or that
    an occupier cannot be a person entering on the premises to whom the other
    occupier owes a duty of care. As indicated, the motion judge spent a
    considerable portion of her reasons determining whether the appellant was also
    an occupier of the respondents premises, and after finding that he was,
    concluded that no duty of care was owed to him because of his status as an
    occupier. In my view, that finding constitutes an error of law. The Act does
    not preclude one occupier from suing another occupier or negate the duty of
    care owed by an occupier to another occupier when that occupier enters on the
    premises.

(a)

On a proper interpretation of the
Occupiers
    Liability Act
, one occupier can owe a duty to another occupier

[12]

The Ontario
Occupiers Liability Act
was
    passed in 1980 in order to replace the common law rules that governed an
    occupiers liability and duty of care owed to persons who enter the occupiers
    premises. The Act followed from the recommendation contained in the Ontario Law
    Reform Commissions 1972

Report on Occupiers Liability
to abolish
    the common law distinction between the duties owed to the common law classes of
    entrants: invitees, licensees, trespassers and contractual entrants, and to
    create one duty of care owed to all entrants, subject to specifically
    articulated exceptions and limitations.

[13]

Section 2 of the Act provides that subject to
    specifically identified exceptions in s. 9 where a higher duty is owed, the Act
    applies in place of the rules of the common law. Section 2 provides:

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 occupiers liability in law in respect of dangers to persons entering on
    the premises or the property brought on the premises by those persons.

[14]

This court has made it clear in recent cases
    that the wording of the Act establishes that it is intended to be exclusive and
    comprehensive, effectively constituting a complete code with respect to the
    liability of occupiers: see
MacKay v. Starbucks Corp.
, 2017 ONCA 350, 413
    D.L.R. (4th) 220, at paras. 45-46;
Schnarr v. Blue Mountain Resorts Limited
,
    2018 ONCA 313, 140 O.R. (3d) 241, at paras. 25-26, 59-60, leave to appeal
    refused, [2018] S.C.C.A. No. 187.

[15]

As a result, one must look to the Act to
    determine any occupiers liability issue.

[16]

The Act defines an occupier very broadly in s. 1
    and provides that there can be more than one occupier of the same premises:

occupier includes,

(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)

[17]

Subsections 3(1) and (3) state:

(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.



(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 occupiers duty.

[18]

Section 3 of the Act describes the duty of care
    that is owed by an occupier to persons entering on the premises. While
    occupier and premises are defined terms in the Act, persons entering on
    the premises is not defined in the Act. However, there is nothing in the Act
    to suggest that such persons cannot also be occupiers.

[19]

First, we know from s. 2 that the Act replaces
    the common law duties that were owed to the previously defined classes of
    entrants: licensees, invitees, trespassers, and contractual entrants.
    Therefore, persons entering on the premises includes everyone who fit into
    the former categories. To the extent that those categories could possibly have
    excluded anyone, there is no exclusion that arises from the words or phrase
    persons entering on the premises.

[20]

The respondent argued that at common law, one
    occupier could not sue another, and that the Act did not change that rule.
    However, the respondent could provide no authority for the proposition that
    there was any such prohibition at common law, nor have I found any authority
    that supports the respondents argument.

[21]

Second, the temporal scope of the duty of care that
    extends over the time while on the premises also indicates that the duty is
    owed to other occupiers. The duty extends to property brought onto the premises
    by those persons, and it extends throughout the time period while on the
    premises. Therefore, after a person enters on the premises, for however long
    that person or their property remains on the premises, the occupier owes the
    person the prescribed duty of care. The duty is therefore owed to a person who
    remains on the premises including a person who lives there.

[22]

Third, the Act contains a number of exclusions
    from the duty of care. The statutory interpretation principle 
expressio
    unius
 or implied exclusion applies here; if the legislature had also intended
    to exclude other occupiers from persons entering on the premises, it would
    have done so along with the other exclusions: Ruth Sullivan,
Sullivan on
    the Construction of Statutes
,
6th ed. (Markham: LexisNexis, 2014),
    at p. 248. As a complete code, the Act contains all restrictions, limitations
    and exceptions to when the occupiers duty of care arises.

[23]

One exception is in s. 3(3) where the occupier
    can restrict, modify or exclude the duty. Then, under s. 4, the duty does not
    apply to risks that are willingly assumed by the person who enters on the
    premises, subject to the qualifier, that even then, the occupier still owes a
    duty not to create a danger with the deliberate intent to harm or to act with
    reckless disregard of the person or the persons property. Subsections 4(2), (3)
    and (4) address criminal entrants, as well as trespassers and people using other
    peoples property as unpaid recreational space, and provide that in certain
    situations these entrants will be deemed to have willingly assumed all risks
    for the purpose of subsection (1). Finally, s. 9 is not an exclusion per se,
    but maintains previously imposed higher obligations for innkeepers, common
    carriers and bailees, and preserves the obligations of employers to employees.

[24]

Given this explicit list of exclusions to the
    standard occupiers duty of care, and given the absence of other occupiers
    from this list, I conclude that the legislature did not intend such an
    exclusion. This analysis is reinforced by the fact that the Act clearly
    contemplates the possibility of multiple occupiers of the same premises.

[25]

To conclude, there is no language or provision
    of the Act that one occupier does not owe the duty of care to another occupier,
    or that provides that when an occupier enters on the premises they are not a
    person entering on premises for the purpose of the Act. Nor is there any
    basis to read any such legal restriction into the Act. While persons may enter
    onto premises for many different reasons and may leave quickly or stay
    indefinitely, the Act creates one duty that is owed to all such persons
    including those who are also other occupiers.

(b)

In spite of the existence of the duty, the
    paucity of cases may have other explanations

[26]

As the motion judge noted, the parties could not
    find any case where one occupier was found liable to another occupier under the
    Act.

[27]

One explanation may be the defence of the
    willing assumption of risk. Whether it could be argued in any particular case
    where there is more than one occupier, that a person who is an occupier and who
    enters on premises has willingly assumed some or all of the safety risks
    associated with the premises for the reason that the person is also an
    occupier, would be decided on a case-by-case basis, depending on such factors
    as the nature of the relationship between the occupiers and the degree of
    control they each may have over the premises.

[28]

Another could be the unavailability of
    insurance. For example, where one spouse has an accident in the family home,
    that spouse is unlikely to sue the other unless there is insurance coverage
    available, and some insurance policies explicitly exclude from coverage claims
    by a resident family member.

[29]

For example, in
Traders General Insurance
    Company v. Gibson
, 2019 ONCA 985, Ms. Gibson had a homeowners insurance
    policy that covered her for amounts she became legally liable to pay for
    unintentional bodily injury arising out of her ownership or occupancy of her
    home. Ms. Gibsons adult daughter lived with her in the home. The daughter was
    injured when she fell off the porch and the porch railing came down with her.

[30]

The policy contained an exclusion for claims for
    bodily injury to you or any person residing in your household other than a
    residence employee. The court found that the daughter was in residence but not
    as an employee and therefore coverage for her injuries was excluded under the
    policy.

[31]

It was clear in that case that the insurance
    policy would cover claims by a number of potential occupiers against the
    homeowner, including residence employees or any person not in residence but left
    in physical possession of the premises. In other words, the policy language
    accepts that one occupier can be legally liable to pay another occupier for
    unintentional bodily injury arising out of the use or occupation of the
    premises. It then limits its coverage to indemnify for such liability by the
    specific wording of the policy.

[32]

While there may be explanations such as these for
    why, in practice, occupiers do not often recover from other occupiers, there
    exist situations in which it is obvious that this should be possible. For
    example, because the definition of occupier is so broadly framed, some people
    are occupiers while they are in physical possession of premises who have no
    control over the premises maintenance or repair. Depending on the
    circumstances, such a person may be, for example, a friend or grandparent
    visiting overnight. While that friend or grandparent may have a duty to warn
    others who may enter, such as a delivery person or a repair person, of hazards
    that they are aware of, there is nothing in the Act that says that the owner of
    the premises does not owe the occupiers duty of care to the overnight guests,
    or that they are not persons entering on the premises because they are also
    occupiers within the definition contained in s. 1.

[33]

To conclude, the apparent paucity of case law
    where one occupier has sued another does not undermine the proper
    interpretation of the Act which does not preclude such claims on the sole basis
    that the person to whom the duty is owed is also an occupier of the premises.

[34]

As the motion judge erred in law by finding that
    the respondent did not owe any duty of care to the appellant under the Act, the
    appeal turns on whether the motion judge erred in finding in the alternative,
    that there was no breach of duty.

Issue 2: Did the motion judge err in finding there was no breach of
    the duty of care?

[35]

As this was a motion for summary judgment, the
    motion judge had to be satisfied that she could decide the issues based on the
    record before her and that there was no genuine issue requiring a trial. The
    motion judge was satisfied that the record before her was complete. She
    observed that the facts were largely uncontroverted and it was a case of
    applying the law to the facts.

[36]

The appellant submits that the motion judge failed
    to consider all the evidence before her and that her reasons for rejecting his
    claim were inadequate. I would not accept those submissions.

[37]

The duty of care owed by an occupier to a person
    who enters on the premises is to take such care as in all the circumstances of
    the case is reasonable to see that persons entering on the premisesare
    reasonably safe while on the premises. The duty is to take reasonable care 
    it is not absolute.

[38]

The motion judge was not satisfied that the
    appellant had proved a breach of that duty for the following reasons which I
    synthesize as follows. 1) Although it is clear from the photos that there is an
    unevenness or ledge between two of the sidewalk slabs, the appellant did not
    prove that the height discrepancy created was significant enough to constitute
    a hazard. He did not provide measurements of the height differential to
    substantiate his claim that the ledge was 1-2 inches as opposed to ¾ inch. Further,
    he tripped on the left side of the slab where the ledge was lower than on the
    right side. 2) The appellant was aware of the unevenness between the concrete
    slabs so that he was aware of the need to take care to avoid the possibility of
    tripping there. The motion judge therefore rejected the appellants submission
    that the trip ledge was a concealed danger.

[39]

While the motion judge did not state explicitly
    why the respondent met her duty of care, it is clear from her reasons that she
    found that the appellant had not proved that the respondent failed to take
    such care as in all the circumstances of the case is reasonable to see that
    the condition of the sidewalk was reasonably safe. I see no error in that
    conclusion. It was open to the motion judge to view the photographs in
    conjunction with the evidence of the witnesses and to make a finding regarding
    the safety condition of the sidewalk and that the appellant was aware of that
    condition.

[40]

I also see no error in the motion judges
    conclusion that there was no genuine issue for trial. The evidence of how the
    accident happened was explored under oath with all the witnesses, and
    photographs from the time of the accident were in the record. The motion judge
    was in as good a position as a trial judge to look at the photos and assess
    whether the ledge constituted a safety hazard.

Other issues raised by the appellant

[41]

In his factum the appellant raised a number of
    other issues, some of which are dealt with by the reasons above. I address the
    three outstanding issues here.

[42]

First, the appellant argued that the motion
    judge erred by ignoring binding precedent that [w]hile there is no hard and
    fast rule, it is well established that a trip ledge, and specifically one that
    is the size of ¾ of an inch to 2 inches, is a hazard. In support of this
    proposition the appellant cites two cases where a ¾ inch to 1 inch ledge and a 1
    to 1.5 inch ledge were each found to breach the occupiers standard of care:
Ford
    v. Windsor (City)
,
1955 CarswellOnt 492 (C.A.);
Litwinenko v.
    Beaver Lumber Co.

(2008), 237 O.A.C. 237 (Div. Ct.). Neither of
    these cases says that a ¾ inch ledge is always a hazard. In fact,
Ford

states [i]t is a question of fact in each case: at para. 1.

[43]

Second, the appellant argued that the motion judge
    failed to provide sufficient reasons for her findings on credibility. There is
    no specific finding on credibility. With respect to the motion judges finding
    whether or not the ledge was high enough to constitute a hazard, it is clear
    that she relied on the contemporaneous photos. To the extent that credibility
    influenced her decision on other issues (such as how the appellant fell), her
    findings with respect to the existence of a hazard provide a sufficient
    justification and explanation for disbelieving the appellant.

[44]

Third, the appellant argued that the motion
    judge erred by failing to allow the parties to make submissions on costs and
    sought leave to appeal the costs award. The motion judge received costs
    outlines from both parties and ultimately awarded the costs of the entire
    action to the respondent on a partial indemnity basis in the amount of $30,000.
    I see no reviewable error with that process.

Conclusions

[45]

The motion judge erred in law in her
    interpretation of the
Occupiers Liability Act
. The Act does not
    preclude one occupier from suing another occupier for breach of the statutory
    duty to take reasonable care for the safety of persons entering on the premises
    and the property they bring onto the premises.

[46]

However, I would dismiss the appeal on the
    alternative ground articulated by the motion judge, that the respondent did not
    breach her duty of care.

[47]

Counsel agreed at the end of oral argument that
    if on appeal each party were to be successful on one of the two main issues,
    then there would be no costs of the appeal.

[48]

With respect to the costs of the motion, which
    were $30,000 to the respondent, the appellant submitted that if he were to be
    successful on the issue of the interpretation of the
Occupiers Liability
    Act
, then the costs below should be reduced by $5000 to $10,000. I
    consider that a reasonable submission.

[49]

In the result, I would order no costs of the
    appeal, and that the costs below be reduced by $7,500.

Released: K.F. February 27, 2020

K. Feldman J.A.

I agree. Fairburn J.A.

I agree. M. Jamal J.A.


