Occupier’s liability and relationships – troubling times

March 6, 2020 | David LeDrew

In Nolet v. Fischer, 2020 ONCA 155, the Ontario Court of Appeal weighed in on a relatively novel occupiers’ liability issue and may have created a new avenue for people to sue their former significant others.

In this case, David Nolet (the plaintiff) sued Caroline Fischer (the defendant) after their relationship ended.  The plaintiff was seeking damages stemming from a fall that occurred while the plaintiff was moving out of the defendant’s house – he tripped on a sidewalk while carrying his freezer out of the house.

The defendant brought a motion for summary judgment to dismiss the plaintiff’s claim, which motion was granted for two primary reasons:

  1. The defendant, as owner and occupier, did not owe the plaintiff a duty of care under the Occupiers’ Liability Act, R.S.O. 1990, c. O-2 (“OLA”) as the plaintiff himself was an occupier; and
  2. If the defendant owed the plaintiff a duty of care, the plaintiff did not prove a breach of that duty as he did not prove unevenness on the sidewalk that was a hazard and, if there was unevenness that was a hazard, the plaintiff was aware of it.

The Court of Appeal held that the motion judge was incorrect in her interpretation of the OLA in finding that one occupier cannot owe a duty of care to another occupier.  However, the appeal was dismissed on the basis of the second point in that there was no breach of the duty of care.

Neither of the parties located case law where one occupier has sued another for this type of incident.

The Court of Appeal analyzed the history of the OLA and common law duties that apply to occupiers.  The Court held that the OLA is “intended to be exclusive and comprehensive, effectively constituting a complete code with respect to the liability of occupiers”.  As there is a list of exclusions under the OLA, the Court found that the legislature did not intend for the present circumstances to be an exclusion.

Curiously, the Court briefly analyzed coverage – specifically whether or not there may be coverage available when one spouse sues another spouse as certain policies exclude coverage claims by a resident family member.  It is unclear how or why consideration for coverage was made in the circumstances.

Here, the plaintiff sued the defendant when he too had care and control over the subject property.  Given these facts, analogies come to mind that could lead to absurdities – such as a cleaner suing an owner for failing to clean.

When couples separate, it is usually a complicated, emotional and challenging time.  Allowing for personal injury claims of this nature under the OLA is unlikely to simplify the process.

It is not yet clear if the Court of Appeal’s decision will be challenged.


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