Occupiers’ Liability Update 2011:
Waldick v. Malcolm Two Decades Later
March 9, 2011
Stephen A. Mullings
Dutton Brock LLP
Occupiers’ Liability

Start with reading/re-reading the Occupiers’ Liability Act

Act codifies common law definition of occupier and duties

Waldick v. Malcolm remains leading occupiers’ liability case

Each case will be decided on its own facts

Section 4 defence of voluntary assumption of risk rarely invoked

Consider trial with a jury in cases that you are able
2
Section 1 of Occupiers’ Liability Act
1. In this Act,
“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
3
Section 3 of Occupiers’ Liability Act
Occupier’s duty
3.(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.
4
Section 4 of Occupiers’ Liability Act
Risks willingly assumed
4.(1) The duty of care provided for in subsection 3(1)
does not apply in respect of risks willingly assumed by
the person who enters on the premises, but in that case
the occupier owes a duty to the person not to create a
danger with deliberate intent of doing harm or damage
to the person or his or her property and to not act with
reckless disregard of the presence of the person or his
or her property.
5
Waldick v. Malcolm
6
Waldick v. Malcolm – 1991 (S.C.C.)
First case involving Occupiers’ Liability Act that went to Supreme
Court of Canada in 1991
Issues
1. Relevance of local customs
2. Occupiers’ duty under the circumstances
3. S.4 and Voluntary assumption of risk
(a) knowledge of physical risk; and
(b) consenting to legal risk.
4. Contributory negligence
7
Galka v. Stankiewicz – 2010 (Ont. S.C.J.)
8
Galka v. Stankiewicz – 2010 (Ont. S.C.J.)




Co-defendant City of Toronto operated archery range
Co-defendant archer had no training and was inexperienced
Plaintiff agreed to ill-conceived plan to retrieve lost arrows
City knew users regularly violated rules by retrieving arrows
adjacent to other targets – this did not amount to liability – accident
was unpredictable and therefore, not foreseeable
Section 4: Voluntary assumption of risk (volenti)

The plaintiff’s agreement was not enough to invoke s.4 of the Act
Contributory negligence

Plaintiff and co-defendant made choices – both found 50% liable
9
Schneider v. St. Clair Region C.A. – 2009 (Ont. C.A.)









Plaintiff was skiing off-trail when she struck a concrete wall
At trial, municipality was held to be 80% liable (plaintiff 20%)
Trial judge said s.4 – voluntary assumption of risk did not apply
Court of Appeal overturned trial decision and s.4 applied
Defendant not liable
Interpretation of “reckless disregard”
Key: defendant lacked knowledge
Rare decision applying s.4
Distinguished from Onyschuk, Herbert
10
Herbert v. Brantford – 2010 (Ont. S.C.J.)








Injured while using property for recreational purposes (off-trail)
City in this case had an inspection system
Path had little or no recovery zone and loose rocks and boulders
Loose rocks on pathway not properly reported after inspections
Judge held that inspection system failures = reckless disregard
Reckless disregard was substantially connected to injuries
Distinguished from Schneider on issue of reckless disregard
Plaintiff held to be 60% liable; City was 40% liable
11
Musselman v. 875667 – 2010 (Ont. S.C.J.)









Tragic case - plaintiff rendered paraplegic after fall down stairs
No guards, no wall and no rail on the west side of staircase
Landlord, tenant restaurant owner and City of Toronto sued
Lease was a “completely care-free net lease”
Landlord found not to be an occupier pursuant to s.1 of Act
Tenant was occupier and breached duty of care in s.3 of Act
Restaurant stairs were grossly noncompliant with Building Code,
the City’s own building and property standards by-laws
City was negligent in approving plans for staircase – it should have
been apparent that it was unsafe – “accident waiting to happen”
Tenant was 70% liable and City was 30% liable
12
Ouderkirk v. Clarry – 2010 (Ont. C.A.)
- Plaintiff fell from new deck – broke ankle
- Deck had no railings, temporary stairs
- Did not comply with Building Code
- Building permit never obtained
- Defendant testified that plaintiff warned
- Plaintiff said she did not see temporary stairs
- Jury held no breach by occupier and that the plaintiff failed to take
reasonable care for her own safety
- Jury verdict upheld by Ont. C.A. – difficult to overturn jury verdicts
- Distinct from Musselman – both non-compliant with Building Code
13
Taylor v. Allard – 2010 (Ont. C.A.)








Tenants hosted party which of course involved drinking
Plaintiff attended drunk and fell while trying to avoid fight
Fell on cinder block ringing the fire pit
Landlord had installed cinder blocks
At trial, judge held that tenants and plaintiff were each 50% liable
Ont. C.A. varied the judgment and held that the landlord was to
share in 50% of the liability with the two tenants (1/3 of 50% each)
Landlord was occupier (admitted in pleadings) and breached
duties under sections 3 and 8 (s.8 – failure to repair and maintain
premises); in particular danger created by installation of blocks
Distinct from Musselman on landlord issue
14
Conclusion
1. Read and re-read the Occupiers’ Liability Act – codified common law
2. Waldick continues to be the leading case 20 years later
3. Each case to be decided on its own merits
4. S. 4 defence of Volenti / voluntary assumption of risk is rarely applied
5. Juries – defendants like them because of their common sense
15
Questions?
16
Thank you!