More From the BC Court of Appeal On Occupier's Liability Lawsuits
Last month the BC Court of Appeal released reasons for judgement clarifying that there is only one standard of care to be applied in BC Occupier’s Liability lawsuits. This week the BC Court of Appeal released further reasons for judgement providing a useful summary of the legal principles to be applied in these types of claims.
In this week’s case (Foley v. Imperial Oil Limited) the Plaintiff, an ICBC adjuster, slipped and fell on ice at an Esso Station in North Vancouver. He dislocated his knee and sued for damages. At trial his claim succeeded and he was awarded just over $45,000 in damages. The Defendant appealed arguing the trial judge misapplied the law. The BC Court of Appeal disagreed and upheld the trial judgement. In doing so the Court provide the following helpful summary of the legal principles in occupier’s liability litigation:
[26] The law on occupiers’ liability has gradually merged from the “rigid rules and formal categories” of the common law that “spawned confusion and injustice”, into the general principles that govern the law of negligence. See Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, ON: LexisNexis Canada Inc., 2011) at p. 705.
[27] The duty of an occupier is now governed by s. 3 of the Act, which provides:
Occupiers’ duty of care
3(1) An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the property, will be reasonably safe in using the premises.
(2) The duty of care referred to in subsection (1) applies in relation to the
(a) condition of the premises
(b) activities on the premises, or
(c) conduct of third parties on the premises.
[28] The standard imposed by the Act is one of reasonableness: the reasonableness of the system implemented to safeguard the particular risk on the premises, and the reasonableness of the implementation of that system. The standard of reasonableness is not one of perfection. As was noted by the trial judge at para. 55, citing Lamont v. Westfair Properties (Pacific) Ltd., 2000 BCSC 406 at para. 20, “An occupier is not expected to be an insurer against all risks[.]”
[29] The Act provides a complete code regarding the duty of an occupier of land. Reference to earlier common law cases is no longer required and may, in fact, result in legal error if the wrong standard of care (one based on the common law categories) is applied, rather than the statutory standard of care. The comprehensive nature of the standard of care of an occupier under the Actwas confirmed in Weiss v. Young Men’s Christian Association of Greater Vancouver (1979), 11 B.C.L.R. 112 (C.A.), where Mr. Justice Aikins, for the Court, noted at 118:
… In my view, s. 3(1) is comprehensive, in the sense that it fully and clearly imposes a duty on an occupier and defines the standard of care necessary to fulfil that duty. Thus, in my judgment, it is unnecessary to an understanding of the standard prescribed by the subsection to refer to any of the specially formulated standards of care laid down in the common law cases. Indeed, to do so is more likely to mislead than assist in understanding what the subsection says.
[30] As with any tort claim, the party advancing the claim carries the burden of proof on a balance of probabilities. The burden of proof in establishing liability under the Act was described inKayser v. Park Royal Shopping Centre Limited (1995), 16 B.C.L.R. (3d) 330 (C.A.) as follows:
[13] The onus of proof on a plaintiff to prove the liability of a defendant on a balance of probabilities in a standard negligence action also applies in cases arising under the Occupiers Liability Act. As Wood J.A. held in Bauman v. Stein (1991), 78 D.L.R. (4th) 118 (B.C.C.A.) at 127:
Section 3 of the Occupiers Liability Act does not create a presumption of negligence against “the occupier of the premises” whenever a person is injured on the premises. A plaintiff who invokes that section must still be able to point to some act (or some failure to act) on the part of the occupier which caused the injury complained of before liability can be established.
