From Indermaur v. Dames to Kamin v. Kawartha Dairy Limited: The Evolution of Occupiers’ Liability Law in Ontario
The importance of occupiers’ liability law cannot be overstated. It is an area of law that affects everyone. We are all occupiers at times and guests at other times. Historically the courts and the legislature in Ontario have grappled with balancing the important right of property occupiers to do as they wish while they are on their own property, against the goal of protecting the public from preventable injury.1
Under the current regime in Ontario, a person injured while on property may be able to sue the occupier of that property for damages. Liability in such a case is established by proving a breach of the Occupiers’ Liability Act2 (“OLA“). Under the OLA a lawsuit for damages will succeed if the injured party can establish that his or her injury was caused by the failure of the occupier of the property to take reasonable care to ensure that the injured person was reasonably safe while on the property.
The law regarding occupiers’ liability in Ontario today, despite its nuances, is relatively straightforward. This was not always the case. Occupiers’ liability law in Ontario has undergone tremendous changes over the past 150 years and, as the Court of Appeal demonstrated in the landmark 2006 decision in Kamin v. Kawartha Dairy Limited3, the law in this area continues to develop and evolve.
Often, it has been said that to predict the future one must first learn about the past. This article will therefore provide a historical overview of the law governing occupiers’ liability in Ontario since Confederation, and provide a brief look at where occupiers’ liability law currently is and may go in the future.
Overview
As with other Commonwealth jurisdictions, the law in Ontario regarding occupiers’ liability has moved from a strict common law regime to one that is wholly statute based4.
Historically, the courts had been successful in fashioning reasonable common law tests that plaintiffs must meet to establish liability on the part of negligent tortfeasors. However, occupiers’ liability law in Ontario is one of the few areas where the common law proved unworkable. For reasons which remain unclear, the common law of occupiers’ liability in Ontario became irretrievably bogged down by a perplexing regime dating back to the 1800’s. It ultimately took intervention by the Ontario legislature in 1980 to simplify the system and create the comparatively straightforward and farreaching occupiers’ liability regime that we have today.
The Common Law Period (1866-1980)
Prior to 1980, occupiers’ liability law in Ontario was based on common law principles first articulated in Indermaur v. Dames5
Indermaur was a case before the English Court of Common Pleas in 1866. The plaintiff attended on the defendant’s premises to examine a gas regulator, during which visit he accidentally fell through a chute in the floor that had been left unfenced. The plaintiff suffered injuries as a result of the fall and sued the defendant occupier for damages.
Indermaur established three categories of entrants to land: (1) trespassers; (2) licensees; and (3) invitees. Each of these categories of entrants was treated differently under the common law. Later case law established a fourth category of entrant: contractual entrants.
The court in Indermaur held that the plaintiff was an invitee because he was at the defendant’s premises on lawful business in the course of fulfilling a contract. The open chute was an unusual danger that the defendant knew of and the defendant was found negligent for not having warned the plaintiff of the existence of the chute and not having taken steps to prevent the plaintiff from falling down the chute.
Indermaur was quickly adopted into Canadian law. It was referred to by the Upper Canada Court of Common Pleas as early as 1868-6, and was used as an authority by the Supreme Court of Canada as early as 1907-7.
There were two main problems which confronted common law courts using the Indermaur categorization approach: (1) establishing the applicable category for a particular entrant; and (2) establishing the duty owed by an occupier to each of the four categories of entrants.
The Four Categories of Entrants at Common Law
Throughout the 19th and 20th centuries the courts continued to provide more fulsome definitions of the various categories of entrants. Some of the important cases in this area include Robert Addie & Sons v. Dumbreck8, Beaton v. MacMaster9, Wessell v. Kinsmen Club10 and Maltais-Comeau v. Laliberte11.
Canadian cases followed Indermaur in defining an invitee as a person whose presence on the property was not only permitted but was either of sole benefit to the occupier or at least of mutual benefit to both of the parties.
Other cases such as Robert Addie & Sons developed the definition of trespasser. A trespasser was defined in common law as a person who went onto a property without invitation and whose presence was either unknown to the occupier or, if known, was objected to.
A licensee, the third category, was defined as a person whose presence on the property, while not of benefit to the occupier, was not objected to or undesired. To illustrate, in Beaton v. MacMaster the court deemed a daughter visiting her mother at home to be a licensee. In Wessell, a swimmer at a recreational pool was held to be a licensee.
A contractual entrant, the final category, was defined as a person who had paid exclusively in return for the use of the premises. For example, in Maltais-Comeau patrons of zoos were held to be contractual entrants.
The problems that arise when trying to define which category an entrant falls into are numerous and obvious. The Supreme Court of Canada grappled with such a situation in 1959 in Hillman v. MacIntosh12. A package delivery worker was injured while picking up a package from a tenant at a commercial building. The worker then sued the owner of the commercial building. Was the parcel delivery person attending at the building to satisfy the interests of the owner of the building? There is no doubt that he was there to satisfy the interests of the tenant, but it is not as apparent what benefit the owner of the building received as a result of the parcel delivery.
The Supreme Court of Canada ultimately concluded that since it was in the defendant’s interest to facilitate its tenants’ business operations, the parcel delivery person was an invitee.
This lack of certainty in categorizing an entrant was a serious problem with the Indermaur approach to occupiers’ liability. The common law regime was a frustrating one for property occupiers; it was impossible to predict with any degree of certainty what category a particular entrant would fall into and, as a result, it was impossible to know the level of the duty that one owed to entrants. It was also frustrating for injured plaintiffs. In many cases it was difficult to determine the category the plaintiff fell into, whether the occupier had breached his or her duty and, therefore, whether a potential lawsuit had merit.
The Duties Owed by an Occupier at Common Law
The court in Indermaur established that an invitee was entitled to expect the occupier to use reasonable care to prevent damage from an unusual danger that he knows or ought to know exists.
With respect to the second category, the duty toward licensees was modified by the case law so much over time that it is ended up as indistinguishable from that owed to an invitee.13
Trespassers, the third type of entrants identified by Indermaur, could only successfully sue an occupier if they were injured by a wilful act involving something more than the absence of reasonable care. This would include a deliberate act designed to harm the trespasser or something done with reckless disregard as to the presence of the trespasser14.
Toward the contractual entrant an occupier was held to owe a duty to make the premises as safe as reasonable care and skill on the part of anyone can make them15.
The difference in duties owed to the various categories of entrants made the selection of a category particularly important. The inflexible nature of the categories was such that courts on occasion tied themselves in knots attempting to slot an entrant into one category or another.
The Statutory Regime (1980-present)
In 1980 the Ontario enacted the Occupiers’ Liability Act16. This law removed the various categories of entrants to property. It also created one universal duty which occupiers must meet for nearly every entrant to the occupiers’ property.
The OLA defines “occupier” quite broadly. An occupier is one who is in possession of the premises, or a person with responsibility for and control over the condition of the premises or the activities there carried on. The definition also includes those who have control over which persons are allowed to enter the premises. (S. 1)
The word “premises” is defined equally broadly, and refers to lands and/or structures and includes water, ships, vessels, trailers and portable structures designed for or used for residence, business or shelter, as well as non-operating trains, railway cars, vehicle and aircraft.
The Statutory Duty Owed by an Occupier
Section 3 of the OLA establishes the general duty owed by an occupier to those persons entering their premises. This duty – which essentially requires that one take reasonable care to see that persons and property on premises are reasonably safe – is similar to the ordinary common law duty of care one encounters in a negligence analysis. The duty is based on an objective test of reasonableness.17
Exceptions to the General Statutory Duty
The statutory duty set out by OLA is far-reaching and applies in most situations in Ontario. However the OLA contains a few notable exceptions to the general duty.
The OLA includes a provision that allows for entrants to willingly assume a risk when entering onto property18. In such a case the occupier only owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person, and to not act with reckless disregard for the presence of the person. Persons who have entered onto a property with the deliberate intention of committing a criminal act are deemed to have willingly assumed all risks and are subject to this lower duty of care.
This lower standard of care applies in cases of trespassers under the Trespass to Property Act and to entrants who are attending rural19 and certain other types of property20 for the purpose of recreational activity, and who have not paid an entrance fee.
Section 10(2) excludes application of the OLA to any municipal corporation or the Crown in respect of public highways and public roads, including sidewalks.
While the introduction of the Occupiers’ Liability Act certainly streamlined the law in this area and made it more predictable, it did not end the evolution of the law in Ontario regarding occupiers’ liability. Indeed, one area that the OLA did not address was that of causation.
Kamin v. Kawartha Dairy Limited
Kamin v. Kawartha Dairy Limited21 significantly changed the law in Ontario regarding causation in occupiers’ liability cases. The plaintiff had fallen in the defendant’s parking lot and suffered serious injuries. In her testimony the plaintiff was unable to pinpoint where it was that she fell in the parking lot. She was also unable to recall why or how she fell.
The evidence, however, showed that the parking lot was in a state of disrepair and in generally poor condition. The trial judge found that the system of inspection and repair of the parking lot was inadequate. Moreover, the lot had last been paved twenty years earlier. Without any evidence of where and why the fall occurred, the trial judge felt compelled to find that the plaintiff had failed to discharge the onus of proof insofar as causation was concerned. The claim was accordingly dismissed. The court relied on nearly sixty-year-old case law in concluding that causation had not been established:
“[A] court cannot decide cases on the basis of sympathy and compassion alone. Neither of the Kamins knew where in the parking lot or how Mrs. Kamin fell. They do not know where they parked. There was no record of any of the possible witnesses who might have assisted and the defendant was not advised of the claim until April, 2000, approximately nine months after the event. The earliest pictures of the parking lot were taken in December, 1999- I cannot conclude that Mrs. Kamin’s fall resulted from any breach by the defendant. She has not discharged the onus on her to establish on a balance of probabilities that any failure by the Dairy caused or materially contributed to her injury.”
In a 3-0 decision reversing the trial judge, the Court of Appeal held that the causation test employed by the trial judge was too strict. The Court of Appeal referred to several cases in which the Supreme Court of Canada had held that causation need not be determined by scientific precision22.
The Court of Appeal was satisfied that the defendant’s parking lot was in an uneven and unsafe state, and that there was no other plausible explanation as to why the plaintiff fell.
It was surprising to many that the Court of Appeal would deviate from the traditional test which had theretofore required a plaintiff to establish causation with greater precision, at least as to location of the alleged defective condition, before finding a breach of duty. In short, in Ontario today if an injured plaintiff can first establish that the generalized condition of the property was sufficiently dangerous to have caused the injury, the court will then examine whether there is any other reasonable explanation for the plaintiff’s injury using factors including whether the plaintiff was a normally careful person, the weather conditions, the plaintiff’s footwear, the plaintiff’s eyesight and general health, etc. When the court finds that these factors are all answered in favour of the plaintiff, it is open to the judge to draw an inference that the plaintiff was injured as a result of the failure of the occupier of the property to comply with the required statutory duty.
The OLA is unmistakably a change for the better when viewed against the pre-1980 common law regime.
However, while the legislature may have removed some areas of the common law in respect of occupiers’ liability, the Ontario courts, as illustrated in Kamin, continue to be judicially active and the common law in this area continues to evolve.
The OLA itself is not entirely without faults. There is certainly room for interpretation of several areas of the Act, including provisions relating to independent contractors and those who are alleged to have willingly assumed the risk on entry.
And while the current regime continues to function fairly well, there remains the possibility that it could go off-course as occurred during the early development of occupiers’ liability law, or simply take a different course. New Brunswick, for example, abolished the law of occupiers’ liability completely for accidents which occurred on or after June 1, 1994-23. Liability there is now determined in accordance with the general negligence principles.
Footnotes
- Klar, Lewis N. Tort Law: 3rd ed. (Carswell: Scarborough: 2003) at 525-526.
- R.S.O. 1990, c. O.2.
- [2006] O.J. No. 435 (C.A.)
- Six provinces – Alberta, British Columbia, Manitoba, Nova Scotia, Ontario, and Prince Edward Island – have replaced the common law with occupiers’ liability statutes.
- (1866) L.R. 1 C.P. 274; affirmed (1867) L.R. 2 C.P. 311 (Ex. Ch.)
- Winckler Estate v. Great Western Railway Co., [1868] O.J. No. 136 (U.C.C.P.)
- Valiquette v. Fraser, [1907] S.C.J. No. 26 (S.C.C.)
- [1929] A.C. 358 at 371 (H.L.)
- (1986), 72 N.S.R. (3d) 336 (T.D.)
- (1982), 21 C.C.L.T. 10 (Ont. H.C.)
- (1986), 36 C.C.L.T. 26 (N.B.Q.B.), [1959] S.C.R. 384.
- [1959] S.C.R. 384.
- Klar, Lewis N. Tort Law: 3rd ed. (Carswell: Scarborough: 2003) at 537.
- Robert Addie & Sons v. Dumbreck, supra.
- Arseneau v. Fredericton Motor Inn (1985), 59 N.B.R. (2d) 60 at 64 (Q.B.)
- supra.
- Waldick v. Malcolm, (1989) 70 O.R. (2d) 717 (C.A.), aff’d [1991] 2 S.C.R. 456, by Blair J.A. at page 723.
- Section 4(1), Occupiers’ Liability Act, R.S.O. 1990, c. O.2.
- A rural premises includes: property that is used for agricultural purposes, is vacant and undeveloped or a forested or wilderness premises.
- Golf courses when not open for playing, utility rights-of-way and corridors excluding structures located thereon, unopened road allowances; private roads reasonably marked by notice as such; and recreational trails reasonably marked by notice as such.
- supra.
- Snell v. Farrell, [1990] 2 S.C.R. 311 and Athey v. Leonati, [1996] 3 S.C.R. 458.
- Law Reform Act, S.N.B., 1993, c. L-1.2.
