Is housemate able to make a claim under the Occupiers Liability Act against another housemate - Nolet v. Fischer, 2020 ONCA 155

March 06, 2020, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Is housemate able to make a claim under the Occupiers Liability Act against another housemate - Nolet v. Fischer, 2020 ONCA 155

Date of Decision: February 27,  2020
Heard Before: Feldman, Fairburn and Jamal JJ.A.

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

OCCUPIERS LIABILITY ACT: duty of care; liability; is one occupier of a property excluded from making claim against another; does the Act include or exclude occupiers from making claims from one another; pursuant to the Act one occupier may make a claim against another.

The appellant was moving out of the respondent’s 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 on the following basis.

• 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.
• 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.

In this case the Justices defer to the factual findings of the motion judge on the second ground and dismiss the appeal on that basis.

They note however, that the motion judge erred in law in her interpretation of the Occupiers’ Liability Act in the first case by finding that under the Act, one occupier cannot owe a duty of care to another occupier. This is set aside as an erroneous interpretation.

The parties began dating in 2008, and the appellant moved into the respondent’s house in 2010. In 2012, he moved to a separate room in the basement as their relationship had ended, and moved out later in April 2012. The appellant contributed approximately $500 per month towards expenses.

The appellant claims 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.

The parties were unable to refer the motion judge to any case where one occupier had sued another for this type of accident, and the motion judge accepted the respondent’s 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.”

The appellant said the ledge was one to two inches high but there was no independent corroboration. The motion judge concluded that: “in any event, there is no reliable evidence on this point.”, and 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?

As indicated, the motion judge spent a considerable portion of her reasons determining whether the appellant was also an occupier of the respondent’s 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.

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

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”)

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 occupier’s duty.

The Act clearly 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.

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 has any authority been found since that supports the respondent’s argument. 

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.

The Act has an explicit list of exclusion and given this explicit list excludes “other occupiers” from the list, the Appeal Court concluded 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.

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.

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.

Conclusions

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.

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