Authored for and Published in CICMA March 2019 Newsletter.
Your child has been invited to her best friend’s birthday party at Charlie’s Pizza Palace.
You drop her off at the party. Before you can leave to enjoy the next two hours of freedom, the clerk at Charlie’s hands you a piece of paper and says, “sign here”. Of course, it’s a Release of Liability Waiver, whereby in exchange for allowing your exuberant child to play with her friends in the arcade, or enjoy one of Charlie’s famous pizza rolls, you agree to absolve Charlie’s (and his employees, family members, friends, enemies, and anyone in Canada named Charlie) from liability if your child gets hurt.
Do you sign?
If no, will your child ever speak to you again after you and she are escorted off the property?
If yes, and she gets hurt, can she sue Charlie’s?
Waivers and Liability Release Clauses
Let’s take a step back and discuss these Waiversappearing every time you try to do an activity with an operator/occupier, from skydiving, to laser tag, to arts & crafts.
The general rule on Waivers in Canada is that they are valid and effective if the language of the exclusion refers to the circumstances of the accident and, in the case of negligence, the language excludes liability for risks or injuries caused by negligence. Furthermore, the operator must take reasonable steps to bring the exclusion or Waiver to the attention of the participant so that its effect is understood. Where the evidence confirms that an adult knowingly signs a form that completely absolves the operator or his or her agents, the exclusion will be effective.
In theOntario Superior Court of Justice case of Isildar v. Rideau Diving Supply, a 28-year old had a tragic accident while participating in a scuba diving activity. He drowned. His family sued the operator, who relied on a Waiver and Liability Release. Roccamo J. reviewed the jurisprudence on waivers/liability releases and summarized it as follows:
Based on case law as it has developed, a three staged analysis is required to determine whether a signed release of liability is valid. The analysis requires a consideration of the following:
Is the release valid in the sense that the plaintiff knew what he was signing? Alternatively, if the circumstances are such that a reasonable person would know that a party signing a document did not intend to agree to the liability release it contains, did the party presenting the document take reasonable steps to bring it to the attention of the signator?
What is the scope of the release and is it worded broadly enough to cover the conduct of the defendant?
Whether the waiver should not be enforced because it is unconscionable?
She held, on the facts of that case, that the release in question was valid and, accordingly, the action was dismissed.
Waivers and Children
We know that Waivers can be enforced against adults, because Waivers are contracts and adults are allowed to enter into contracts. This principle was recited in Isildar, as follows:
It is a general principle of contract law that where a party signs a document which he knows affects his legal rights, the party is bound by the document in the absence of fraud or misrepresentation, even though the party may not have read or understood the document.
But what happens if a child signs a Waiver?
My Grade 8 daughter recently brought home a permission slip from school so she could go skating with her class at a local arena. Unsurprisingly, included with the forms from school was a two-page Waiver form from the arena. The form asked us to agree to absolve the arena (and pretty much everyone who lives within 100 kilometres of it) from any and all liability if my daughter was hurt on their premises. The way the document was worded, we would be absolving them from anything and everything that could possibly happen that day, including falling on ice, getting knocked down by a Skate Patrol person, getting stabbed by skates, drowning, and falling through the black hole at Centre Ice.
My options were to sign the form and send her to school that day wearing my hockey equipment, or saying “nope, sorry”. Fearing significant backlash from my 13-year-old (who was already getting her skates ready for sharpening), I said “You sign it.” She did. And she went skating and, thankfully, returned unharmed.
Why did I tell her to sign it? Because a contract signed by 13-year-old is most likely unenforceable in these circumstances. If heaven forbid something would have happened to her, I would have challenged the arena to try and enforce the alleged contract.
This isn’t to say that we would have won.
After the skating trip, I did some research and was surprised to learn that Canadian case law on minors and Waivers doesn’t really exist. Except in British Columbia, where the Legislature put it right into their Infants Act that a contract made by a minor at the time the contract was made is unenforceable against her, except in specified circumstances that in most cases wouldn’t apply to Waivers.
There is no authority anywhere else in Canada that states that a Waiver signed by a child is unenforceable against her. But I would be surprised if a judge enforced a Waiver against a child, given the hurdle of satisfying a court that the contract was not detrimental to the child’s interest.
The other option of course is to sign a Waiver on your child’s behalf. Most smart operators/occupiers won’t allow a child to sign a Waiver. They insist the parent/guardian sign it.
Is this enforceable against the parent of child if the child is injured?
It would likely be unenforceable in British Columbia because of another provision in the Infants Actthat bars parents and guardians from entering into binding contracts on behalf of infants, except in strict accordance with the provisions of the Act.
As for elsewhere in Canada, it remains unknown if a parent/guardian can waive a minor’s rights to claim against anyone protected by a Waiver. My own opinion on this issue is that a parent/guardian cannot waive a child’s legal rights to sue an operator/occupier.
I find comfort for my (non-binding) opinion in the rules of court and jurisprudence dealing with children in litigation. Among other things, generally speaking a minor cannot bring an action without a litigation guardian (an adult). Moreover, a settlement of an infant claim needs court approval. Therefore, I find it difficult to accept that a parent/guardian would be able to sign away a child’s rights to sue (usually at a busy counter with children running and screaming nearby) to the child’s detriment but would otherwise be precluded from settling a court action to the child’s benefit without court approval.
That isn’t to say that a parent can’t sign away their own legal rights to claim for loss of care, guidance, or companionship. Whether that Waiver is enforceable against the parent would be subject to the same enforceability principles discussed above.
Do you Sign?
So, having now read about everything you were afraid to learn about Waivers, do you sign Charlie’s Pizza Palace’s Waiver? Or do you move to British Columbia?
[Insert here image of your child staring up at you with those big puppy-dog eyes]
For the purpose of this article, the term “Waiver” is used to include liability release clauses.
Under the common law, contracts which are detrimental to the interests of an infant (person under 18) are void. See for example Altobelli v. Wilson,1957 CarswellOnt 43,  O.W.N. 207, 5 R.F.L. Rep. 326.
This is my opinion for the purpose of this article and is notto be construed as legal advice. By reading these next few paragraphs, you are hereby waiving your rights to sue me or my firm for anything whatsoever. It doesn’t matter if you are a child or a parent/guardian of a child. You can’t sue us. Thank you.
Note that under section 40 of the BCInfants Act:
40. A guardian may make a binding agreement for an infant,
(a) if the agreement involves a consideration not greater than $10 000, with the consent of the Public Guardian and Trustee, or
(b) in a case other than one referred to in paragraph (a), with the approval of the court by order made on the petition of a party to the agreement.
The Plaintiff suffered injuries after tripping on a speed bump in a parking lot owned by the Defendant. While the parties agreed to damages, the matter proceeded to trial on the issue of liability. The Court considered whether the Defendant breached its duty of care under the Occupiers’ Liability Act.
In describing the accident, the Plaintiff admitted that she did not know what caused her to trip and fall. In fact, she did not even know that she had tripped on a speed bump. It was not until she returned to the parking lot two weeks later, after meeting with a lawyer, when she noticed that there was a piece of the speed bump that was missing. Upon seeing this, the Plaintiff claimed that this was what caused her to fall. Specifically, in her Examination for Discovery testimony, which she confirmed at trial, the Plaintiff explained “there was a piece missing and maybe that’s [where] I tripped and then I fell.”
Both parties called forensic consulting engineers as experts to testify as to whether the speed bump was compliant with applicable codes and standards. On hearing this evidence, the Court found that the speed bump markings were compliant with the standard practice for walking surfaces. Further, the markings provided advanced warning to the raised pavement service, making it clearly visible to prudent road users. The Court noted that the yellow border and grid markings provided a clear contrast to the surrounding black asphalt surface. In reviewing the photographs taken, the Court concluded “even a cursory downward glance by anyone crossing in the area of the speed bump would have readily revealed the existence of the speed bump.” Further, the Court found that even if the speed bump was not painted solid yellow and/or had an irregular shape on the side of the speed bump, this was not a breach of the standard of care.
In order to be successful, the Plaintiff must be able to establish that an act on the part of the occupier caused her injury. An inference of causation must be based on objective facts, rather than speculation. The Court found that the Plaintiff failed to meet this test. In the present case, at best, the Plaintiff was only able to advance a theory based on her subjective belief that she tripped either (1) on the speed bump; or (2) “maybe” it was because of a “broken” or “missing” piece. However, there was no objective evidence to establish that the fall was because of a deficiency of the speed bump markings or its condition. Therefore, the Claim was dismissed.
This case serves as an important reminder that the burden is on the Plaintiff to establish that the Defendant has breached their duty of care under the Occupiers’ Liability Act. Mere speculation is not enough.
This case involves an accident at QK Fitness (“QK”) when the plaintiff, Fatemeh Hosseinkhani (the “plaintiff”), tripped and fell on a dumbbell during a gym class. She sued QK for negligence. QK successfully brought a motion for summary judgment to dismiss the plaintiff’s action arguing that it could not be negligent for two reasons: because the plaintiff signed a waiver or, in the alternative, that the plaintiff was solely responsible for her accident. The plaintiff took the position that she had no opportunity to read the Agreement before she signed it, that no one brought the exclusion of liability clause to her attention when she signed it, and that the defendant failed in its duty of care to properly instruct the plaintiff on the safe use of round dumbbells.
The plaintiff joined QK in February 2014 on a one-year membership agreement. Upon joining, she was given a tour of the facility and, at its conclusion, was presented with an Agreement to sign. Clause 3.3 “Exclusion of Liability” appeared on the reverse side of the Agreement. This clause released QK from any liability for personal injury arising out a member’s participation in a program or use of the facilities and/or arising out of the negligence of QK. The plaintiff signed the Agreement.
On August 8, 2014 the plaintiff participated in an exercise class requiring the use of two dumbbells and a low step. She had been participating in this class about once every two weeks since joining the club. As there were not enough hexagonal plastic covered dumbbells, the plaintiff used a pair of circular metal dumbbells located in the room where the class was being taught. The plaintiff would usually use the hexagonal dumbbells, but had occasionally used the circular ones.
Some exercises involved using the step, others required the use of dumbbells and some required the use of both. About 20 minutes into the class, during an exercise requiring the step, and not the dumbbells, the plaintiff placed her dumbbells about 18 inches in front of her, on her right-hand side, as instructed by the fitness instructor. The plaintiff received no instructions on what type of dumbbells to use or how to place the dumbbells when they were not in use. The plaintiff was instructed to step off the step to her right. When she did so, she stepped on one, or both, of the dumbbells. She believes that one, or both, of the dumbbells rolled from their original position and caused her to fall. The plaintiff suffered a burst fracture of her T12 vertebrae.
Exclusion of Liability Clause
The court relied on the Court of Appeal decision Schnarr v Blue Mountain Resorts Limited, 2018 ONCA 313 which confirmed the ability of occupiers to obtain waivers or exclusions of liability under section 3(3) of the Occupiers Liability Act (“OLA”); however, to rely on such an exclusion of liability, the occupier must take “reasonable steps” to bring the restriction or exclusion to the attention of the person to whom the duty of care is owed, as set out in section 5(3) of the OLA. Reasonable steps may be apparent in the Agreement itself (ie) large instructions such as “PLEASE READ CAREFULLY” the exclusion of liability clause, red lettered instructions such as “THE CONDITIONS WILL AFFECT YOUR LEGAL RIGHTS INCLUDING THE RIGHT TO SUE OR CLAIM FOR COMPENSATION FOLLOWING AN ACCIDENT”, or having the person sign or initial the specific provision providing for the exclusion or restriction.
In this case, the court found that QK did none of these things and, therefore, failed to meet the requirement in section 5(3) of the OLA. On this basis, the defendant’s motion for summary judgment could not be satisfied. The court then went on to consider QK’s second argument, that it bore no responsibility for this accident.
Negligence on the Part of the Defendant
According to section 3 of the OLA, to succeed in a claim against QK, the plaintiff must pinpoint some act or failure on the part of QK that caused the plaintiff’s injury before liability can be established (see Hamilton v Ontario Corporation #2000533 o/a Toronto Community Housing Corporation, 2017 ONSC 5467). The presence of a hazard does not, in itself, lead to the conclusion that QK has breached its duty. QK is not required to take unrealistic or impractical precautions against known risks (see Drummond v The Cadillac Fairview Corp Ltd., 2018 ONSC 4509).
In the present case, the court noted there was no allegation that the round dumbbells were defective or inherently dangerous when properly used. Rather, the allegation was that the defendant failed to properly warn or instruct the plaintiff on their proper use. There is no evidence that round dumbbells are a known hazard. To the contrary, the evidence of the defendant was that they were routinely used by participants in the exercise class without incident.
The only issue left for the court was whether QK had a duty to instruct the plaintiff regarding the proper placement of the dumbbells when not in use. The plaintiff relied on the Miltenberg v Metro Inc., 2012 ONSC 1063 decision, where the plaintiff was injured after a tub of ice cream fell on her as she reached for the bottom of two tubs stacked on the top shelf of the freezer. In that case, the court held that to avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The court refused to accept the plaintiff’s argument that the defendant had a duty to warn customers that reaching for goods on the top shelf could cause injury. The court found that risk to be obvious. The court, in Miltenberg, also rejected the plaintiff’s argument that there should have been signs warning customers that items may fall from their placement on higher shelves as “customers do not need to be warned that ice cream containers or any item could fall on them if not gripped properly.”
The plaintiff, In the subject case, also relied on a couple of cases involving the standard of care to be exercised by school authorities when providing supervision and protection of students and tried to argue that the same duty of proper training and instruction was applicable to an exercise instructor at QK, a gym for adults. In rejecting this argument, as well, the court found that children require more supervision and instruction than adults. And, the cases the plaintiff relied on involved a child injured playing tackle football and a child who was injured while doing a somersault over a boxhorse as part of a gymnastics program. Both of these activities are inherently dangerous, an both require instruction and the progressive development of specific skills (see Thomas v Hamilton, 1994 CanLII 739; 20 OR (3d) 598 (C.A.) and Thornton v Board of School Trustees of School District No. 57, 1976 CanLII 1083 (BCCA),  S.W.R. 240, 73 D.L.R. (3d) 35 (BCCA).
In the subject case, the court found that the exercise activities involved were simple and the skills involved were rudimentary. Neither the exercises themselves nor the equipment used were inherently dangerous. There was no evidence that the round dumbbells represented an unusual hazard or that the defendant had any reason to believe that they were hazardous. There is no evidence that the round dumbells were not reasonably safe for the purpose for which they were intended. The evidence suggests they had been used thousands of times without incident.
More importantly, the court also found that a round dumbbell might roll is an obvious risk. An occupier does not have to warn an adult about obvious risks (see Jassal v Hilcox, 2016 ONSC 5523).
The court held that the plaintiff had not proven a case of negligence against the defendant for failure to warn her that a round dumbbell placed on the floor on its side could roll and granted summary judgment to the defendant. The plaintiff’s action was dismissed.
This decision clarifies the ability of occupiers to obtain waivers under the OLA so long as reasonable steps are taken to ensure the exclusion is brought to the attention of the person signing the waiver and that an occupier is not required to provide warnings about obvious risks.
The Defendant, Ceeps-Barneys Limited (“the Ceeps”), is a popular pub / sports bar beloved by students of Western University (past and present). In this matter, the Ceeps brought a motion for summary judgment for a dismissal of the plaintiffs’ action against it, as well as a dismissal of the co-defendants cross-claims against it. The plaintiffs took the position that the Ceeps breached its common-law duty of care owed by a commercial host, as well as the statutory duty of care under the Liquor Licence Act and the Occupiers Liability Act, as the plaintiff was injured by the actions of its patrons. The Ceeps took the position that the evidence established that it was not liable.
On October 24, 2009, the co-Defendant brothers, Sean and Brenden Woods, were celebrating Brenden’s graduation. They had both consumed alcohol prior to arriving at the Ceeps on the night of the incident. A representative for the Ceeps confirmed that the brothers were asked to leave after Sean had consumed alcohol at the Ceeps and was visibly intoxicated. The representative advised that a taxi was not offered because Brenden did not appear to be intoxicated. The evidence was unclear on how much alcohol Brenden had consumed that day but Brenden agreed that he was not intoxicated when he voluntarily accompanied his brother out of the Ceeps.
The Ceeps had nine to twelve security officers on duty that night. One of them provided evidence that he saw Sean and Brenden leaving the bar around the same time that the plaintiff, who was stumbling down the street in an intoxicated manner, tried to hail a cab but was refused. Sean indicated he would take the cab and slapped the plaintiff on his back. The plaintiff wrongly interpreted the slap to be malicious and a scuffle ensued. The plaintiff kicked, punched and chased Sean, who eventually swung back. The supervisor of the Ceeps security team intervened in the fight. While doing so, Brenden came from behind the supervisor and struck the plaintiff in the face. Brenden admitted to running towards the fight, interpreting the plaintiffs clenched fists as possible further aggression and then punching the plaintiff. Sean had little memory of what happened.
The supervisor of the Ceeps security team’s evidence undermined Brenden’s interpretation of the incident. The supervisor recalled that he ran over to the scuffle and was focused on verbally calming the plaintiff down. He was able to do so for 15 to 20 seconds, without physically touching the plaintiff. He did not interpret any aggression from the plaintiff when he saw a fist coming over his left shoulder, striking the plaintiff’s face. The security video also confirmed the above events / evidence.
The plaintiff could not recall the altercation as his last memory of the night was being poured a drink at another bar up the street. He conceded that he was ejected from the bar and that his blood-alcohol level was significantly high when the ambulance arrived shortly after the above altercation.
The plaintiffs tendered expert reports to support their allegations of liability against the Ceeps. Their experts opined that the altercation could have been avoided if the Ceeps had met the industry-standards of having proactive and effective security measures in place. Namely, that the Ceeps served Sean alcohol and then failed to escort him out into a taxi / bus, failed to have adequate security present outside to prevent the altercation and failed to prevent Brenden from joining the fight.
The Court ultimately dismissed the Ceeps’ motion, finding that there was a genuine issue requiring a trial on whether the Ceeps’ breached its obligations under the Occupiers Liability Act since the altercation occurred on its own parking lot premises and as none of the Ceeps’ security members monitored Brenden or took steps to prevent him from joining the altercation.
The Court noted that whether something was “reasonably foreseeable” was an objective test, requiring an analysis that focuses on whether someone in the defendant’s position ought reasonably to have foreseen the harm prior to the incident occurring rather than whether the specific defendant did. This imposed a positive obligation on the Ceeps security staff which the Ceeps failed to establish they had discharged, in order to escape liability.
The Court also found that the issue of causation and foreseeability of the plaintiff’s injuries, as well as the plaintiff’s own contributory negligence, would be for the Court to decide based on all of the evidence, including what weight should attach to the plaintiffs’ expert evidence, since the defendants had not tendered their own expert evidence on the issue of liability.
The Court found that there would be no savings in terms of time or expense to resolve the liability issues between the plaintiff and other defendants, including the plaintiff’s own contributory negligence, if summary judgment is granted in favor of the one defendant, the Ceeps.
This decision indicates that summary judgment, on the issue of liability, is unlikely to be granted in a case involving multiple layers of liability and multiple parties. While it cannot be said with certainty that the outcome would have been different if the Ceeps had obtained a rebuttal report from their experts on the issue of liability, it certainly did not assist their position to have the plaintiffs’ expert evidence proceed uncontested.
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
An application was brought under rule 14.05(3)(d) of the Rules of Civil Procedure to determine rights that depend on contract interpretation. The applicant was National Gallery of Canada (“National Gallery”) and the respondents Lafleur de la Capitale (“Lafleur”) and Intact Insurance Company (“Intact”).
The application relates to two underlying actions arising out of a fatal trip and fall accident that occurred on August 27, 2013 on the National Gallery’s premises. Conrad Lafreniere, an employee of Lafleur, was performing routine maintenance work, cleaning leaves and debris, near the entrance ramp to the National Gallery’s underground parking garage. As a vehicle approached to enter the garage, Mr. Lafreniere moved over to the edge of the entrance ramp, fell over a concrete ledge, and suffered fatal injuries.
The first underlying action, against the National Gallery, was commenced by Mr. Lafreniere’s widow, Ms. Arsenault. The Workplace Safety and Insurance Board (“WSIB”) had a subrogated claim in relation to the claim commenced by Ms. Arsenault and payments made, by the WSIB, to her. The second underlying action, against the National Gallery, was commenced by Mr. Lafreniere’s mother and siblings pursuant to the Family Law Act.
The National Gallery and Lafleur entered into a Service Contract under which LaFleur was required to supply all labour and equipment to complete the interior and exterior maintenance throughout the premises. Lafleur was also responsible for properly training and supervising its employees and ensuring that all employees wore safety equipment and were kept safe while carrying out their work.
Under the Service Contract, Lafleur also agreed to indemnify and save harmless the National Gallery from all claims, demands, losses, costs, damages, actions, suits, or proceedings arising out of or in connection with its work under the contract.
Lafleur also agreed to obtain a CGL insurance policy under which National Gallery would be added as an additional named insured. The policy was issued to Lafleur by Intact.
In both underlying actions, the plaintiffs claimed that Mr. Lafreniere’s fall, and subsequent death, was caused by the negligence or breach of duty of the defendants, National Gallery and the Attorney General of Canada. All of the particulars of negligence, set out in paragraph 8, in the Statements of Claim related to design issues of the building and the property, including the failure to install a fence, railing or protective barrier in the area where Mr. Lafreniere fell, for example.
The National Gallery commenced a third party claim, in both underlying actions, against Lafleur for its failure to properly train Mr. Lafreniere, and also claimed contribution and indemnity from Lafleur.
Intact issued a Commercial General Liability policy to Lafleur. The National Gallery was named as an additional named insured under the policy by way of endorsement. The policy was with respect to the legal liability arising out of Lafleur’s operations under the Service Contract.
The court went on to examine the wording of the Services Contract between the National Gallery and Lafleur, in particular the paragraph dealing with “Indemnification by Contractor”. This section stated that Lafleur shall indemnify and save the National Gallery harmless from all claims . . . . “based upon, arising out of, related to, occasioned by or attributable to the activities of the Contractor, the Contractor’s servants, agents . . . in performing the Work . . . ”
The issue for the court was whether Lafleur and Intact owed a duty to defend the claims against the National Gallery in the underlying two actions.
In ultimately deciding in the negative, the court reviewed the leading case law, in this regard:
an insurer is required to defend a claim on behalf of an insured when the facts alleged in the pleadings, if proven true, would require the insurer to indemnify the insured for the claim: Progressive Homes Ltd v. Lombard General Insurance, 2010 SCC 33 (CanLII)
the duty of defend should, unless the contract of insurance indicates otherwise, be confined to the defence of claims which may be argued to fall under the policy: Nichols v. American Home Assuance Co., 1990 SCC (CanLII)
where there are multiple claims, or where only some of them are potentially covered, a court must assess the substance or the “true nature” of each claim contained within the pleadings to see if it falls within the scope of coverage: Papapetrou v 1054422 Ontario Ltd.2012 ONCA 506 (CanLII)
Following its review of these cases, the court agreed that the question of whether the duty to defend extends to the whole claim depends on the specific pleadings at issue and the resulting determination of the “true nature” of the claims.
In terms of the facts, in this application, the court concluded that in the underlying action brought in the name of Ms Arsenault, for WSIB’s subrogated interest, there was no duty on Intact to defend the National Gallery, for the following reasons:
The nature of the claim was really one of a subrogated workplace claim
The CGL coverage contained an exclusion for “Worker’s Compensation and Any Obligation of the Named Insured under a Workers’ Compensation plan”
The CGL coverage also contained an exclusion for bodily injury to an employee of the Insured arising out of and in the course of employment; Mr. Lafreniere was not an employee of the National Gallery nor in the course of employment with the National Gallery at the time of the accident
The Services Contract required that the National Gallery would be added as an additional insured – it was not listed as a named insured
The Certificate of Insurance required that the National Gallery was an additional Insured but only insofar as Legal Liability arising vicariously out of the operations of the Named Insured
With respect to the underlying action brought by the FLA claimants, the claim alleged that Mr. Lafreniere’s death was caused by the negligence of the National Gallery as occupier. The court found that the allegations in the Statement of Claim related to design issues of the building and the property and that the indemnity provisions in the policy must be read in conjunction with the allegations in the Statement of Claim.
The wording of the indemnity provision made it clear, to the court, that indemnity was “based upon, arising out of, related to, occasioned by or attributable to the activities of the Contractor.” Lafleur was the Contractor and was not named as a party in the Statement of Claim. There were no allegations in the Statement of Claim that alleged negligence or tortious activities of Lafleur so no indemnification could be triggered. The allegations in the Statement of Claim related to design and control by the National Gallery as occupier and, therefore, could not be related to or attributable to the activities of Lafleur.
The court went on to state that, on its face, the CGL policy would cover bodily injury and would be for the type of loss that was sustained. Even though there were no exclusions that applied, the major challenge, for National Gallery, was that the allegations in the Statement of Claim fell outside of the indemnity agreement.
The court concluded that the allegations in the Statement of Claim did not arise out of the activities of the Contractor, Lafleur. There were no allegations in the Statement of Claim that Lafleur or its servants did anything wrong; that is why the claim falls outside of the indemnity agreement.
Based on this analysis, the court found that neither Lafleur or Intact owed the National Gallery a duty to defend.
While this case does not offer anything new about the duty to defend, it provides a good analysis of the issues that arise in duty to defend disputes and a reminder that the allegations in the Statement of Claim must be carefully considered, along with the wording in the indemnity provision of the contract.
The Supreme Court of British Columbia granted the City its motion for summary judgment in an action commenced by an elderly Plaintiff who sustained a slip and fall injury.
In Sapia v Invermere (District), the Plaintiff was an 82 year old woman who was a regular patron of the Invermere Seniors’ Hall (the “hall”). The injury happened as the Plaintiff left the building and walked towards her vehicle. There was a gradual slope from the hall to the parking lot such that the parking lot at the end of the walkway was lower than the sidewalk by about six inches. The step up from the parking lot was about the same height as the standard curb. The Court noted that there was a noticeable difference in the colour between the walkway (light grey) and the parking lot (dark black).
The Plaintiff was familiar with the area where the fall occurred but could not describe how or why she fell. Expert opinion evidence tendered on her behalf concluded that because of seniors’ decreased visual acuity, the absence of a warning yellow line to demarcate the elevated portion of the walkway was the reason for the fall. It was noted that since the fall, the area where the elevation changed had been highlighted by yellow paint.
The Court referenced Dahl v. Liberty Investments Ltd. ( B.C.J. No. 461) which recognized that there was a high standard of care when it was apparent that the premises would be used by senior citizens. The Court added “there is a high standard of care imposed on an occupier of premises where the principal users have a decreased awareness of their surroundings.”
The Court recognized that an occupier’s conduct will be negligent if it creates an “objectively unreasonable risk of harm.” The fact that the Plaintiff fell was not sufficient to establish liability. Remedial measures taken after an incident were also not necessarily determinative that such steps were undertaken to comply with a duty of care; it was only one factor to consider. The Court found that the Plaintiff must prove what hazard caused her to fall. One cannot speculate as to the cause.
The Court concluded that expert evidence was not necessary in this case as the expert provided commentary that was common knowledge. The Court found that judicial notice could be taken of the fact that as people age, their physical prowess, including visual acuity, declined. While not excluded, the expert report was “simply a piece of evidence to consider within the whole of the evidence.”
The Court found that one way to assess the appropriate standard of care would be to ask if the existence of the yellow line would have alerted the Plaintiff to the drop in the sidewalk. The Court was satisfied that a yellow line would have provided such an alert. However, this did not end the analysis. The Court also considered whether there were any other cautionary alerts in the absence of a yellow line. The Court was satisfied that there was an alert even though it may not have been deliberately created for that purpose. The sidewalk and parking lot were of markedly different colours such that the edge of the sidewalk was apparent. The Court also found that the drop from the sidewalk to the parking lot was apparent. There was no need to mark or paint a yellow line to highlight what was apparent for everyone to see.
The Court concluded that the premises were reasonably safe and that the Plaintiff had not satisfied that the Defendants breached their high standard of care to ensure that the premises frequently used by senior citizens were reasonably safe.
While not binding in Ontario, the case serves as a reminder that an occupier’s decision to take subsequent remedial actions to address potential hazards will not be determinative of liability. The burden remains on the Plaintiff to establish that an occupier breached their standard of care to protect individuals at a premises.
This action was brought against the Village of Kaslo (B.C.) by a plaintiff who sustained damages after falling down an embankment off Water Street (an unpaved alleyway). The Village had erected concrete barriers at the mouth of the street/alley in order to bar vehicles from entry and to demarcate the embankment. However, there were gaps between the barriers. Although the plaintiff was familiar with the area, she had her back to the barriers while helping her husband park their motor home. As a result, she stepped between one of the gaps before falling down and injuring herself.
In determining liability, the Court relied on the Supreme Court’s decision of Ryan v. Victoria (City), 1999 CanLII 706 (SCC) in which conduct was defined as negligent where it created “an objectively unreasonable risk of harm”. In this case, the Court noted the following factors: the embankment was patently obvious, the area was rarely used, the plaintiff knew of the embankment and there had been no other incidents of falls down the embankment.
Court dismissed the action and found that the infrastructure placed in the area of the fall by the Village was adequate. It was not necessary to put up fencing or fall protection as it was obvious that the area was hazardous. The Court also found that the plaintiff would not have fallen if she watched where she was stepping. Namely the “proximate cause” of her fall was determined to be her inattention in walking backwards toward the embankment despite being aware of the hazard.
While this decision is not binding on an Ontario Court, the duty of care owed by an occupier is defined almost identically in the Occupiers Liability Act of B.C. and Ontario. As such, the decision would likely be persuasive in Ontario in suggesting that common sense and the principles of reasonableness should prevail in disputes over whether an occupier has discharged its duty of care to ensure that people (and/or their property) will be reasonably safe while on their premises.
Shalini defends insurance claims covering all aspects of general insurance liability including motor vehicle accidents, occupiers’ liability, slip and falls, as well as accident benefits litigation and arbitration and priority and loss transfer disputes.
The Plaintiff’s claim in Walsh v. Papadopoulos arose as a result of a fall that occurred on the basement stairway of a home owned by the Defendant, Antonio Pirone. Two days before the fall, the Plaintiff and her sister, the Defendant, Easter Papadopoulos, had been at their sister’s house in Paris, Ontario to bake. Baskets of baked goods were later transported in Ms. Papadopoulos’ vehicle to the residence of her boyfriend, Mr. Pirone, in Toronto.
The Plaintiff entered Mr. Pirone’s home through the side door. The weather had been wet that day. The Plaintiff was carrying a large basket with both hands which blocked her view of what was at her feet. Ms. Papadopoulos allegedly instructed the Plaintiff to take the basket that she was carrying downstairs. The Plaintiff proceeded to the basement staircase, fell on the steps and fractured her right ankle.
Ms. Papadopoulos brought a summary judgment motion seeking to dismiss the Plaintiff’s claim against her on the basis that she owed no duty of care to the Plaintiff at law.
In support of her contention that Ms. Papadopoulos was an occupier, the Plaintiff relied on the fact that Ms. Papadopoulos had a key to the premises along with various texts suggesting, among other things, that Ms. Papadopoulos spent the majority of her time at her boyfriend’s house.
Ms. Papadopoulos alleged that the Plaintiff failed to submit evidence that would result in the conclusion that she was an occupier of the premises. The Plaintiff provided no objective evidence that the steps in question were unsafe, improperly constructed or maintained. The Plaintiff also had no expert evidence to suggest that there was any defect in the design or maintenance of the steps.
Although there was contradictory evidence, Justice Dow found that the evidence and a matrimonial law precedent being relied on by the Plaintiff could lead to the conclusion, on a balance of probabilities, that Ms. Papadopoulos owed the Plaintiff a statutory duty under s. 3 of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
Ms. Papadopoulos was required to show that even if she owed a duty to the Plaintiff and that such a duty was breached, it would not result in a finding of even 1% liability attributable to Ms. Papadopoulos. According to Justice Dow, Ms. Papadopoulos failed to establish this. He concluded that there was a genuine issue for trial with regard to liability and declined to grant the Defendant’s summary judgment motion.
In this case, it did not matter that the Plaintiff failed to provide any objective or expert evidence of any defect or improper maintenance of the steps in question. The key was the Plaintiff’s evidence that Ms. Papadopoulos instructed the Plaintiff to take the basket downstairs when she knew that the Plaintiff was unable to use the handrail on the staircase, which could result in a trier of fact finding that a duty of care was triggered and potentially breached.
As we often see in similar cases involving summary judgment motions, this decision makes it clear that if the motions judge has any doubt as to whether a Defendant can be found even 1% liable on the basis of the available evidence and case law, summary judgment is not likely to be granted. While they can still be a very useful tool to dismiss slip and fall cases, summary judgment motions seem best used in circumstances where the facts do not create even the potential for liability to be found outside the strict confines of the Occupiers’ Liability Act.
Krista has a diverse insurance law practice which focuses on bodily injury litigation, including general negligence/liability claims, motor vehicle accidents, commercial general liability, homeowners’ liability and occupiers’ liability, as well as priority/loss transfer disputes between insurers. Read more...
The recent Court of Queen’s Bench of Alberta appeal decision in Hache v. Western Edmonton Mall Property Inc. sheds some light on occupiers’ liability claims in Ontario. The Plaintiff brought a claim against West Edmonton Mall following an injury in a parking garage. The Mall brought a motion for summary judgment on the basis that the incident was not foreseeable which was dismissed by a Master. The Defendant appealed that decision. It is the first case which considered the Supreme Court of Canada’s decision in Rankin (Rankin’s Garage & Sales) v. J.J. (2018 SCC 19 (CanLII), which was released in May, 2018.
The Court noted that Dougherty v. A Clark Enterprises Ltd. (2015 ABQB 562 (CanLII)) set out a three part test to assess whether an occupier breached the standard of care under the Occupiers’ Liability Act (R.S.A. 2000, c. O.4) – (1) was the risk reasonably foreseeable; (2) did the Defendant breach the appropriate standard of care; and (3) did the visitor willingly accept the risk.
First, the Court considered whether it was reasonably foreseeable that a visitor to the Mall would walk down a vehicle entry and take a running leap over a 44.5 inch concrete wall. The Court found that it was not. The Court accepted the Mall’s argument and concluded, from an objective perspective, that the risk of a pedestrian jumping and falling off an entry ramp intended for sole use by vehicles – which did not include a pedestrian walkway – was not reasonably foreseeable by the occupier prior to the incident involving the Plaintiff.
Second, the Court considered whether the Mall breached the appropriate standard of care. In doing so, the Court noted that the standard was reasonableness; not perfection. The occupier did not need to remove every possible danger. The Court found that there was no evidence that, at the material time, the ramp was either defective or unsafe for use by visitors. The construction was in compliance with the applicable Building Code at the time it was built. While the Building Code had subsequently changed, the Court found that there was no evidence to support a finding that the Mall was required to upgrade the concrete walls in order to meet the requisite standard of care.
The Court also rejected the argument that the Mall should have foreseen the accident and installed warning signs. Where a danger was so obvious and apparent that anyone would be aware of it, there was no duty to warn.
Finally, the Court considered section 7 of the Occupiers’ Liability Act which provides that “[a]n occupier is not under an obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor.” The Court referenced Rankin which recognized that the duty of care was not eliminated where a person, who is on premises, was deemed to have “willingly assumed all risks.” Instead, in such circumstances, occupiers are held to a lower standard of care.
On this point, the Court found that the Plaintiff was deliberate and purposive in his decision to knowingly and voluntarily walk down the vehicle ramp and jump over the concrete wall of the entry ramp. Neither the entry ramp nor the concrete retaining walk constituted a “hidden danger.” Even if the Court accepted that the parkade ramps were regularly used by pedestrians to access the street, purposively jumping over the ramp’s concrete wall was “hardly the conventional way for using the ramp.” The Court concluded that the Plaintiff made a poor decision, with full knowledge of the danger inherent in this decision, to use the ramp in an unconventional manner. The Court concluded that it could only translate into one thing – the Plaintiff willingly accepted the risk inherent in his jump. The motion for summary judgment was granted.
In similar cases, it is important to lead evidence regarding the purpose of the area where the incident occurred. If the actions that lead to an injury fall outside of the anticipated behaviour of visitors, an occupier may be able to avoid a finding of liability.
The plaintiff’s claim relates to a slip and fall that occurred, in a washroom, at Casino Rama on February 16, 2015. The plaintiff did not notice that the floor was wet, as she entered the washroom, but admitted she did notice a custodian and a yellow caution sign on the floor. The plaintiff claims that the floor was wet and slippery, which caused her to fall.
Casino Rama’s position was that the plaintiff had failed to provide any direct evidence that there was an unsafe condition and, rather, she had “rationalized the explanation for the fall.”
The court relied on the Hamilton v Ontario Corporation 2000533 decision where the court granted the defendant’s motion for summary judgment. In this decision, the plaintiff “subjectively believed” that her fall was caused by a slippery vinyl floor in the corridor outside of her apartment, but was unable to provide any objective evidence of anything that could have caused the floor to be slippery. Further, there was no evidence of a general lack of maintenance in the corridor that could give rise to a determination of an unsafe condition to which the plaintiff’s fall could be connected, causally, or by reasonable inference.
In Rietta the court agreed with the plaintiff’s assertion that her case differs from the Hamilton decision in that there are two objective facts: the presence of the custodian and a yellow caution sign in the washroom. The court felt that these facts gave rise to a triable issue and the defendant’s motion was dismissed.
This decision makes it clear that no evidence of a substance or debris in the area of a fall will not be enough to be successful on summary judgment. Objective evidence of “something” that could have caused an unsafe condition will create a triable issue. This decision also reiterates that solid maintenance logs confirming regular patrolling are key for defending slip and fall cases.