The recent Court of Queen’s Bench of Alberta appeal decision in Hache v. Western Edmonton Mall Property Inc. sheds some light on occupiers’ liability claims in Ontario. The Plaintiff brought a claim against West Edmonton Mall following an injury in a parking garage. The Mall brought a motion for summary judgment on the basis that the incident was not foreseeable which was dismissed by a Master. The Defendant appealed that decision. It is the first case which considered the Supreme Court of Canada’s decision in Rankin (Rankin’s Garage & Sales) v. J.J. (2018 SCC 19 (CanLII), which was released in May, 2018.
The Court noted that Dougherty v. A Clark Enterprises Ltd. (2015 ABQB 562 (CanLII)) set out a three part test to assess whether an occupier breached the standard of care under the Occupiers’ Liability Act (R.S.A. 2000, c. O.4) – (1) was the risk reasonably foreseeable; (2) did the Defendant breach the appropriate standard of care; and (3) did the visitor willingly accept the risk.
First, the Court considered whether it was reasonably foreseeable that a visitor to the Mall would walk down a vehicle entry and take a running leap over a 44.5 inch concrete wall. The Court found that it was not. The Court accepted the Mall’s argument and concluded, from an objective perspective, that the risk of a pedestrian jumping and falling off an entry ramp intended for sole use by vehicles – which did not include a pedestrian walkway – was not reasonably foreseeable by the occupier prior to the incident involving the Plaintiff.
Second, the Court considered whether the Mall breached the appropriate standard of care. In doing so, the Court noted that the standard was reasonableness; not perfection. The occupier did not need to remove every possible danger. The Court found that there was no evidence that, at the material time, the ramp was either defective or unsafe for use by visitors. The construction was in compliance with the applicable Building Code at the time it was built. While the Building Code had subsequently changed, the Court found that there was no evidence to support a finding that the Mall was required to upgrade the concrete walls in order to meet the requisite standard of care.
The Court also rejected the argument that the Mall should have foreseen the accident and installed warning signs. Where a danger was so obvious and apparent that anyone would be aware of it, there was no duty to warn.
Finally, the Court considered section 7 of the Occupiers’ Liability Act which provides that “[a]n occupier is not under an obligation to discharge the common duty of care to a visitor in respect of risks willingly accepted by the visitor.” The Court referenced Rankin which recognized that the duty of care was not eliminated where a person, who is on premises, was deemed to have “willingly assumed all risks.” Instead, in such circumstances, occupiers are held to a lower standard of care.
On this point, the Court found that the Plaintiff was deliberate and purposive in his decision to knowingly and voluntarily walk down the vehicle ramp and jump over the concrete wall of the entry ramp. Neither the entry ramp nor the concrete retaining walk constituted a “hidden danger.” Even if the Court accepted that the parkade ramps were regularly used by pedestrians to access the street, purposively jumping over the ramp’s concrete wall was “hardly the conventional way for using the ramp.” The Court concluded that the Plaintiff made a poor decision, with full knowledge of the danger inherent in this decision, to use the ramp in an unconventional manner. The Court concluded that it could only translate into one thing – the Plaintiff willingly accepted the risk inherent in his jump. The motion for summary judgment was granted.
In similar cases, it is important to lead evidence regarding the purpose of the area where the incident occurred. If the actions that lead to an injury fall outside of the anticipated behaviour of visitors, an occupier may be able to avoid a finding of liability.
See Hache v West Edmonton Mall Property Inc, 2018 ABQB 461 (CanLII).
