



COURT OF APPEAL FOR ONTARIO

CITATION: Osmond v. Watkins, 2018 ONCA 386

DATE: 20180419

DOCKET: C64477

Benotto, Brown and Miller JJ.A.

BETWEEN

Tony Leo Osmond

Plaintiff (Appellant)

and

Christopher Charles Watkins and Jasmine Catherine
    Watkins

Defendants (Respondents)

Daniel DUrzo, for the appellant

Derek Zulianello, for the respondents

Heard and released orally: April 17, 2018

On appeal from the order of Justice David A. Broad of the
    Superior Court of Justice, dated September 27, 2017, with reasons reported at
    2017 ONSC 5729.

REASONS FOR DECISION

[1]

The respondents, Christopher and Jasmine Watkins, hired the appellant,
    Tony Osmond, to complete the construction of a two-story front porch at their
    residence. The appellant fell from the roof of the porch while performing the
    work and was seriously injured.

[2]

The appellant sued the respondents alleging negligence, breach of duty
    of care, and breach of their duty under s. 3(1) of the
Occupiers Liability
    Act
, R.S.O. 1990, c. O.2, 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. His primary allegation was that the respondent homeowners, as
    the occupier of the premises on which the construction work was performed, were
    negligent in failing to provide him with safety equipment.

[3]

The respondents moved for and obtained summary judgment dismissing the
    appellants action. The appellant appeals. His main argument is that since
    material facts were in dispute and the credibility of the parties was in issue,
    the motion judge erred in concluding there were no genuine issues requiring a
    trial.

[4]

We are not persuaded by the appellants submission.

[5]

The motion judge adopted, as the applicable standard of care in the
    circumstances, that stated by the Alberta Court of Appeal in
Mahe v.
    Boulianne
, 2010 ABCA 32, 474 A.R. 223, at paras. 11, 12 and 15:

When the plaintiff visitor is a trained professional or
    tradesman who is retained by the occupier to provide skilled work, the duty of
    the occupier only encompasses the safety of the premises, but does not extend
    to telling the visitor how to practice his occupation.

It must be remembered that where a lay customer engages a
    professional or tradesman, it is presumed that the tradesman knows how to do
    the work. Any advice respecting the work is presumed to come from the tradesman
    to the lay customer, not from the lay customer to the tradesman. If the
    tradesman fails to do the work properly or safely, he cannot blame his customer
    on the basis that the customer should have known better.



The appellants duty, as the occupier of the premises, was to
    ensure that the premises were reasonably safe. He had no overriding duty to
    monitor whether the practices followed by the professional electrician
    respondent were safe. The work had certain inherent and obvious risks,
    particularly the risk of falling, which were well-known to the respondent.
    [Citations omitted.]

[6]

The appellant does not submit the motion judge erred in adopting those
    principles, nor does he point to any other case that sets a different standard
    of care for such circumstances. Nor did the appellant offer any authority for
    the proposition that knowledge of a lack of experience on the part of the plaintiff
    would override or negate the principles of law stated by the Alberta Court of
    Appeal in
Mahe
.

[7]

The appellant contends the motion judge made two fact-related errors:
    (i) he determined the case in the face of contested material facts; and (ii) he
    made palpable and overriding errors of fact. The errors, according to the
    appellant, relate to the issue of whether the appellant or the respondents
    controlled and directed the renovation work.

[8]

We are not persuaded by this submission. Before the motion judge was
    evidence from each of the parties, together with an affidavit from a non-party
    witness, Rolind Okerlund, who was part of the work crew assembled by the
    appellant to perform the work.

[9]

The motion judge made several key findings of fact: (i) there was no
    evidence the appellants fall was caused by any defect in or lack of repair
    affecting the premises or any hazardous conditions associated with the premises
    themselves; (ii) there was no dispute the appellant was performing the
    renovation work for valuable consideration; (iii) there was no basis for a
    contractual claim that the respondents had failed to furnish the appellant with
    safety equipment; (iv) there was no evidence the appellant was inexperienced in
    performing roofing work or working at heights; and (v) the evidence did not
    support a finding that the respondents were aware the appellant lacked the
    necessary experience to carry out the project.

[10]

The
    appellant has not persuaded us that any of those key findings amounted to a
    palpable and overriding error of fact or required a full trial before they
    could be made. As well, it is significant that in his affidavit Mr. Okerlund 
    who was the only independent witness and who was not cross-examined  deposed
    that: (i) the respondents did not exercise any form of direct supervision or
    control over the appellant; (ii) a roofer had been hired to do the roofing
    portion of the job; and (iii) on the day of the fall, Mr. Okerlund had told the
    appellant he should leave the roofing work for the roofer.

[11]

Accordingly,
    we are not persuaded that the motion judge erred in deciding the case by way of
    a summary judgment motion or that there is any basis for appellate intervention
    in the judgment he granted.

[12]

The
    appeal is dismissed.

[13]

Based
    on the agreement of the parties, the respondents are entitled to their costs of
    the appeal fixed at $8,500, inclusive of disbursements and applicable taxes.

M.L.
    Benotto J.A.
David Brown J.A
B.W. Miller J.A.


