In February 2015, the plaintiff, a 66-year old contractor, fell from a ladder while working at premises leased by the defendant corporation, Crème. The fall resulted in him suffering catastrophic injures and requiring round-the-clock care at a care facility.   Medical experts opined that the plaintiff’s life expectancy was shortened to 3.7 years (as of January 2019) and that he was in a permanent vegetative state.

After coming to Canada in 1990, the plaintiff worked through a sole proprietorship under the name “Sam’s Construction” until 2013, when a new company was incorporated (“Incircle”) with the assistance of his son, Stefan. The plaintiff was initially the sole director but by January 2015, Stefan was appointed as director in place of the plaintiff. At the time of the February 2015 incident, the plaintiff was essentially retired but assisted Stefan on a voluntary, unpaid basis

In 2012, the principals of Crème were introduced to Stefan by a friend. Stefan secured the lease for the first outlet of the business and, soon thereafter, developed a business arrangement with the principals. While he was not made an officer, director or shareholder, he was a de facto owner and partner of the defendant corporation. He participated in profit sharing (50%) and was involved in all key decision-making.

He was given the title “Director of Business Development” and was responsible for seeking out opportunities for new locations, negotiating leases and overseeing any renovation/construction work. At each of the four sites he opened, he acted as the general contractor while the plaintiff did most of the construction work. There were never any written contracts between Sam’s Construction / Incircle and Crème. 

The trial judge determined that Stefan was carrying out the construction work on the premises and, in doing so, acting in his capacity as an owner/partner of Crème as well as its agent, rather than an independent, arm’s length contractor. The judge held that pursuant to the Workers Compensation Act, the absence of a written contract and direct relationship between Stefan and Crème led to the conclusion that Crème, through Stefan, supervised the renovation work at the premises. As such, the trial judge found Crème to be the occupier of the premises for the purposes of the Occupier’s Liability Act (OLA) thereby owing a duty of care to the plaintiff. Neither Incircle nor the plaintiff were found to be independent contractors.

The plaintiff retained a professional engineer who opined that the ladder used by the plaintiff was not tall enough to safely complete the specific job and also that it was damaged and unsafe. The defendant retained expert engineers, who opined that the ladder was in excellent working condition and of sufficient height for the job. The defendant’s expert opined that the plaintiff could have used one hand or his shins to establish a third point of contact for stability while completing his work.

In analyzing the standard of care, the trial judge determined that nothing in the evidence allowed an inference that the condition of the ladder caused the plaintiff’s fall. However, the trial judge preferred the evidence of the plaintiff’s expert engineer, noting that the plaintiff’s work required the use of both hands such that he did not have a free hand to establish a third point of contact. The trial judge also noted that the slope of the ladder would not effectively allow for the shin-contact while working, which the defendant’s expert agreed on cross-examination was not factored into his analysis.

The trial judge noted that s. 5 of the OLA required supervision in the context of independent contractors and, a lesser duty where the exclusionary provision does not apply, would be inconsistent with the legislation. While owners and occupiers are not required to supervise how tradespersons conduct their work, they must take reasonable steps to protect persons on the premises from an “objectively unreasonable risk of harm” in respect of the condition of the premises, activities on the premises or the conduct of third parties.

At a minimum, this would require maintaining an adequate system of supervision that allowed for intervention to stop unsafe activities or procedures. “To suggest otherwise would be to permit owners and occupiers to turn a blind eye, if not to sanction, unsafe practices with no fear of liability.”

The trial judge therefore concluded that Crème owed the plaintiff a duty of care and breached the applicable standard of care. However, the judge also found that the plaintiff’s conduct significantly contributed to the incident and his resulting injuries.

The trial judge noted that the plaintiff was an experienced contractor and accepted Stefan’s evidence that he never instructed his father on how to do his work. The judge noted the plaintiff chose the ladder for the job and continued to use the ladder for the job, notwithstanding the gradually increasing ceiling heights at the premises. The plaintiff therefore failed to assess the risk / appreciate the danger of using an inadequate ladder and demonstrated a significant disregard for his own safety. Liability was therefore apportioned 50-50 between Crème and the plaintiff.

Ontario’s OLA does not explicitly speak to supervision. However, using the analysis of the trial judge in this case, an occupier would most likely be found to owe a duty of care to an injured tradesperson where the occupier is unable to demonstrate that it took reasonable steps to satisfy itself that the tradesperson was competent, was supposed to undertake the work being performed and was completing the work properly.

See Woo v Crème De La Crumb Bakeshop & Catering Ltd., 2019 BCSC 1752 (CanLII), 

Shalini Thomas

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.

Read More

Pin It on Pinterest