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ONCA fills gap :"OCCUPIERS" NOT barred from claiming DUTY OF CARE against OTHERS SHARING STATUS 2020/02/28 13:35  
( Again : not legal advice. Governancers & others should rely on an insured licensee of the Law Society of Ontario. PLEASE ESPECIALLY DO NOT RELY ON THE 'PRACTICE OF LAW' NOR ON 'PROVISION OF LEGAL SERVICES' BY WELL-INTENTIONED EMPLOYEES OF INSURANCE COMPANIES unless such are personally in good standing as fully licensed by L.S.O. That lesson has been underlined bigtime by some recent trips elsewhere into such a Twilight Zone for Building Scheme governancers ! )

Yesterday an appeal decision by ONCA Ontario's Court of Appeal arguably "filled in a gap" left somewhat un-addressed by Ontario's Legislature in 1980.

IF - IF - it was a "gap", in 2018 it got read by an Ontario lower court to totally bar premises liability claims by an injury claimant with an arguable enough share of "occupier" status" as to the venue of an injury.

One of two grounds chosen in 2018 to dismiss the claim was that the claimant was held constructively an "occupier" based on which the judge then took a huge and unsupported magic leap to conclude further meant TOTALLY BARRING such claim against another occupier ( like the legal owner ).

The "gap" - if that's what it was - arguably had been below the radar, not seriously raised in post-1980 litigation ( if at all ). And maybe even not at all in disputed condo common element injury claims by injured owners against condominium corporations, their insurers and/or their agents.

( Closing that "gap" should now get some extra attention from Ontario Building Scheme owners & insurers as to EASIER or LESS OBSTRUCTIONABLE claims for an owner's injury or loss on Building Scheme common lands. In such non-condo shared ownership communities the legal title to any common lands may be vested in ( private "plot" ) co-owners as tenants -in-common. Or alternately in something incorporated like the Gates of Hell Owners Association INC. Will insurance premiums now rise faster, for example if an injured ( Building Scheme private "plot" ) co-owner NOW cannot be barred totally from even merely TRYING TO SUE for an injury or loss on the common lands ? But who knew before this particular litigation ? Unlike non-condo/non- Building Scheme claimant Nolet here, such victims actually may be a full co-owner on title to common lands, or at least some sort of stakeholder routed through title by appurtenance of private "plot" ownership. ONCA's appeal decision means that co-ownership cannot totally bar a co-owner's loss or injury claim. )

Turning directly back to Ontario's condo universe, although Ontario condo corporations are NOT owners of record of the common elements, they are expressly legislated to be "occupiers" of them with a view to OLA Ontario’s Occupiers’ Liability Act R.S.O. 1990 ch O.2 http://canlii.ca/t/53nn4

In 2018 from totally outside the condo & Building Scheme universes had been brought forth the appealed 2018 lower court ruling : that under OLA a loss-suffering or injury-suffering "occupier" was held BARRED FROM SUING other "occupiers" of the same premises.

Sorta like : "How can I sue myself including suing myself as part of a group ? Don't I as an "occupier" have some degree of control & responsibility ? Couldn't I have known & remedied a risk beforehand ? " ( The 2018 rationale however was ZERO except : ‘ there’s no caselaw given to me, so therefore I am merrily waving the magic judicial wand against all such claims !’ )

Remember that OLA is worded to recognize the possibility of concurrent & multiple arms-length "occupiers" for different purposes. Think for example : a giant recreational development with umbrella'd or specialized arms-length concessionaires conducting complementary commercial activities . . .

ANYWAY the ONCA panel has emphatically just crushed that part of the 2018 ruling's decision that purported to automatically shield all remaining "occupiers" ( & their insurers of course ) against ALL claims for loss or injury merely suffered by any particular "occupier(s)".

Nolet v. Fischer, 2020 ONCA 155 issued Feb 27/20 http://canlii.ca/t/j5jkr

Injured in 2012 on an allegedly uneven surface while moving out of a romantic co-habitation with the respondent solely on title in Shelburne Ontario, in 2018 plaintiff Nolet had been dismissed upfront in raising his OLA DUTY OF CARE claim. He was ruled to have NOT ONLY failed to meet his evidentiary burden but TO HAVE BEEN TOTALLY BARRED. ( 'But I was not on title' and 'I entered and was injured' ! The lower court : ' No matter : you had a key, could invite & expel visitors, and exerted some management . . . ' ).

On appeal the outcome is confirmed : Nolet's injury claim still fails. But ONCA totally crushes one of the lower court's two grounds for the 2018 summary dismissal upfront loss.

ONCA also reduces the ex-girlfriend owner's 2018 lower court cost award from $ 30 K to $ 22.5 K because that one ground had been overthrown on appeal.

Bottom line : ONCA DECISIVELY has just crushed one ground of two applied by the lower court to summarily dismiss injury claimant Nolet's loss claim but not the other in the earlier Nolet v. Fischer, 2018 ONSC 5771 issued Sep 28/18 http://canlii.ca/t/hvbv5

Who & how should be held an "occupier" under OLA's wording ?

ONCA leaves intact the lower court criteria to answer that question including a 1977 ONCA decision relevantly quoting - from the late 1970's era of actually legislating OLA - a late U.K legal superstar :

" . . . [33] The Court of Appeal confirmed in Couch v. McCann (1977), 1977 CanLII 1802 (ON CA), 77 D.L.R. (3d) 387 (Ont. C.A.) at paragraph 7. Houlden, J.A. said the following:

The leading modern case on who is an occupier is the decision of the House of Lords in Wheat v. E. Lacon & Co. Ltd., [1966] A.C. 552. There it was held that a person could be an occupier without having exclusive control of the premises and that control could be shared between two or more persons.

Lord Denning gave the following definition of an occupier (at p. 578):
wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an ‘occupier’ and the person coming lawfully there is his ‘visitor’…

and Lord Pearson in his speech enunciated this test (at p. 589).

The foundation of occupier’s liability is occupational control, i.e., control associated with and arising from presence in and use of or activity in the premises. . . ." - unquote from the lower court AND LEFT INTACT BY ONCA
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