Joint Occupiers’ Liability to Each Other

How the court determined that occupiers owe a duty of care to other occupiers of the same property

In the 2020 case of Nolet v. Fischer,[1] the Ontario Court of Appeal grappled with the issue of whether an occupier of premises owes a duty of reasonable care to another occupier of the same premises.

The basic facts of the instant case were that the parties had entered into a relationship in 2008; the appellant moved into the respondent’s home in 2010; and they separated and he moved out in 2012. On the day in question, the appellant was in the process of moving out of the house and, while carrying his freezer out of the house, he tripped on the sidewalk and injured his left ankle. He sued the respondent for negligence under the Ontario Occupier’s Liability Act (“OLA”). The respondent brought a motion for summary judgment dismissing the claim, which succeeded.

The motion judge gave two main reasons to support the decision to dismiss. First, the motion judge concluded that the respondent as owner and occupier of the premises did not owe the appellant a duty of care under the OLA, because he was also an occupier of the premises. Second, the motion judge held that, even supposing if the respondent had owed the appellant a duty of care, the appellant did not prove a breach of duty, because he did not prove that there was any unevenness in the sidewalk that constituted a hazard and, even if there was, he was aware of it at the time of the accident. The appellant, nonetheless, appealed the motion judge’s decision to summarily dismiss his claim; and the judgment cited and discussed herein is the decision and reasons for that appeal.

The issue in the case boiled down to whether the motion judge’s decision was correct.

The appellate court decided that the motion judge had erred in law in interpreting the OLA (finding that one occupier cannot owe a duty of care to another) and set aside this erroneous interpretation. However, it also deferred to the findings of fact made by the motion judge that the appellant had not proven a breach of duty. Therefore, it dismissed the appeal.

The appellate court began its interpretive analysis by examining the legislative history of the Act. The OLA came into effect after recommendations were made by the Ontario Law Reform Commission in its 1972 Report on Occupier’s Liability. It abolished the common law distinction between the duties owed to the traditional common law classes of entrants: invitees, licensees, trespassers and contractual entrants. The OLA was and is intended by the legislature to be a complete code with respect to the liability of occupiers. Section 3(1) states that “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”.[2]

The appellate court used the following reasoning to conclude that joint occupiers owe a duty of care to each other. First, while “occupier” and “premises” are terms that are defined, in the Act, “persons entering on the premises” is not. There is nothing in the OLA that excludes an occupier from the category of “persons entering on the premises.” Second, the definition of the duty of care contains a temporal element – “while on the premises” – and it appears to indicate that occupiers, people who are on the premises for a long period, are included within this provision. Third, the court reasoned that, if the legislature had intended for occupiers to be excluded, they presumably would have done so using explicit language.

In the end, even though the appellant was unsuccessful in his particular claim in this case, this case is a precedent that gives guidance on the liability of joint occupiers to one other.

[1] Nolet v. Fischer, 2020 ONCA 155 (CanLII) (https://canlii.ca/t/j5jkr)

[2] Occupier’s Liability Act (“OLA”), R.S.O. 1990, c. O.2, s. 3(1). (https://canlii.ca/t/54whw)