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Beware Your Fellow Occupiers – the Court of Appeal Weighs in on the Occupiers’ Liability Act

Published on: April 2020 | What's Trending

Brick wall with a caution watch your step sign on the wall

Can one house member sue another for injuries sustained in the house they share? The Ontario Court of Appeal says yes.

In Nolet v. Fischer, 2020 ONCA 155, the Court considered the claim of Mr. Nolet, who tripped and injured his ankle while he was moving out of Ms. Fischer’s home after their relationship ended. Mr. Nolet sued for damages under the Occupiers’ Liability Act (OLA”).

Ms. Fischer brought a successful motion for summary judgment. The motion judge dismissed the action for two reasons:

  1. Ms. Fischer, as owner and occupier of her premises, did not owe Mr. Nolet a duty of care under the OLA because he was also an occupier of the premises; and
  2. If Ms. Fischer did owe Mr. Nolet a duty of care, no breach of the duty was proven because he did not prove there was any unevenness on the sidewalk that was a hazard, and if there was, he was aware of it.

The Court of Appeal

While the Court of Appeal dismissed the appeal, relying on the second reason, the Court went on to find that the motion judge erred in law in her interpretation of the OLA in finding that one occupier cannot owe a duty of care to another occupier under the Act.

The Court of Appeal reviewed the history of the OLA and the definitions for “occupier” and “premises”. The Court acknowledged that there was a shortage of case law, but concluded that this apparent paucity of case law, involving  one occupier suing another did not undermine the proper interpretation of the OLA. The Court found that the OLA does not preclude such claims on the sole basis that the person to whom the duty is owed is also an occupier of the same premises.

The Court looked at section 3 of the OLA, which describes the duty of care owed by an occupier to “persons entering on the premises”. The Court noted that the phrase “persons entering on the premises” was not defined and there was nothing in the OLA to suggest that such persons cannot also be “occupiers”.

The Court also noted that the temporal scope of the duty of care that extends over the time “while on the premises” applies to persons remaining on the premises, including a person who lives there.

The Court of Appeal applied the statutory interpretation principle “expressio unius” or “implied exclusion” and held that if the legislature had intended to exclude other occupiers from “persons entering on the premises” it would have done so expressly, as it did with the other exclusions in the OLA.

The Court of Appeal noted that where a person is an “occupier” by virtue of being in physical possession of the premises but has no control over maintenance or repair, it is obvious that a claim should be permitted under the OLA. This would include a friend or grandparent visiting overnight. The Court noted that there is nothing in the OLA that says that the owner of the premises does not owe a duty of care to overnight guests because the guests are also “occupiers” within the definition in the Act.

So, does this mean that the flood gates have opened and it is open season for injured persons to sue their fellow housemates?

Not exactly.

Willing Assumption of Risk

The Court of Appeal noted that one potential defence is that of the willing assumption of risk.

A defendant occupier may well argue that a person who is also an occupier has willingly assumed some or all of the safety risks associated with the premises for the reason that the person is also an occupier.

The Court noted that this defence would be considered on a case-by-case basis, depending on factors such as the nature of the relationship between the occupiers and the degree of control they each may have over the premises. In a residential situation, one can expect this will involve an assessment of each occupier’s household responsibilities, especially snow/ice removal and repairs.

Insurance

The Court of Appeal also commented on the unavailability of insurance, which it thought might explain why there have not been any cases where one occupier was found liable to another occupier under the OLA.

In OLA matters, insurance policies typically respond to defend and/or indemnify a defendant, depending on the wording of the policy and any exclusions. Some homeowners’ policies exclude coverage for claims by a resident family member.

The Court posited that where a spouse has an accident in the family home, that spouse is unlikely to sue the other unless there is insurance coverage available.

To the benefit of the Court, it did not foresee that the majority of Canadians would be isolating in their homes for the foreseeable future to combat a global pandemic, which may cause spousal/household tensions to escalate to the point where a fellow “occupier” may become litigious irrespective of the availability of insurance. That being said, if insurance coverage is unavailable or excluded and a housemate does not have sufficient assets to satisfy a potential judgment, then the end result is a ruined relationship without compensation.